Appeal, No. 13, Oct. T., 1958, from decree of Court of Common Pleas No. 5 of Philadelphia County, March T., 1956, No. 6113, in case of Rose Frank Berezin v. Max Berezin. Decree affirmed.
Walter Stein, with him Berger and Gelman, for appellant.
Louis J. Goffman, with him Anthony S. Minisi and Abraham L. Freedman, and Wolf, Block, Schorr & Solis-Cohen, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 186 Pa. Super. Page 342]
We are here concerned with an action in divorce a.v.m. instituted by Rose Frank Berezin against her husband, Max Berezin. The complaint averred cruel and barbarous treatment, indignities to the person, and adultery, but only the last allegation was pressed. The husband defended on the ground that the wife was not an innocent and injured spouse because, at the time of his undenied adultery, there had accrued to him a cause of action against her for indignities to the person. The distinguished master, now a United States District Court Judge, recommended a divorce on the ground of adultery. While he expressed doubt concerning the merit of the husband's legal position, the master disposed of the question by finding that a case of indignities by the wife "has not been made out". Exceptions were filed and argument was heard before a court en banc consisting of Judges REIMEL and WEINROTT. The exceptions were subsequently dismissed and a final decree entered. The husband has appealed.
Appellant's first and principal contention is that, because of her prior indignities to his person, the appellee is not an innocent and injured spouse. Appellant does not here question the commission of adultery. His position is that, prior to his adultery and at a time when he was an innocent spouse, there had accrued to him a cause of action in divorce on the ground of indignities to the person which, he argues, is a complete defense to appellee's present action on the ground of adultery. We are not in accord with this contention. Adultery is "the most serious marital transgression known to the law", Newman v. Newman, 170 Pa. Superior Ct. 238, 85 A.2d 613, and we cannot agree that the commission of indignities by one spouse gives to the other a permanent license to commit adultery without being subject to the sanction of divorce.
[ 186 Pa. Super. Page 343]
Appellant relies upon that portion of Section 10 of The Divorce Law*fn1 which provides that the plaintiff must be "the innocent and injured spouse". The application of this provision in defense of an action based on the ground of adultery has never been directly considered. The import of our prior cases is that the plaintiff in a divorce action must be innocent of any contribution to the situation of which he complains. Consequently one who has provoked, encouraged, or consented to the acts complained of may not assert them as a successful ground for divorce. This principle is most frequently invoked in cases involving the refusal of a divorce on the ground of indignities because of similar conduct on the part of the plaintiff. See Moyer v. Moyer, 181 Pa. Superior Ct. 400, 124 A.2d 632. It has also been held in actions grounded on desertion that the defendant may assert, by way of justification, prior conduct on the part of the plaintiff which would constitute grounds for a divorce had an action been brought by the defendant. See Boyles v. Boyles, 179 Pa. Superior Ct. 184, 116 A.2d 248. A case involving prior adultery as a defense to a charge of desertion is Litch v. Litch, 89 Pa. Superior Ct. 15. There the plaintiff-husband instituted suit for divorce on the ground of desertion. At the hearing the wife testified that the immediate cause for her withdrawal from the home was her husband's confession that he had been guilty of adultery. This Court held that the wife was justified in leaving, and a divorce was refused.
It is well settled that subsequent adultery by the plaintiff, after a cause of action for divorce on another ground has accrued against the defendant, cannot be asserted as a defense. In Ristine v. Ristine, 4 Rawle 460, the Supreme Court held that recrimination was
[ 186 Pa. Super. Page 344]
expressly established as a statutory bar to a divorce founded on adultery, but that subsequent adultery was not a defense to a charge of desertion. See also Mendenhall v. Mendenhall, 12 Pa. Superior Ct. 290; Hanson v. Hanson, 177 Pa. Superior Ct. 384, 110 A.2d 750. The same conclusion has been reached where the divorce was grounded on indignities to the person, and cruel and barbarous treatment. See Bock v. Bock, 162 Pa. Superior Ct. 506, 58 A.2d 372; Fay v. Fay, 27 Pa. Superior Ct. 328. In Clark v. Clark, 160 Pa. Superior Ct. 562, 52 A.2d 351, the husband sought a divorce on the ground of indignities. In defense, the wife presented testimony tending to show that, subsequent to the acts of indignities, there had been intimacies between the husband and another woman. It was held that the alleged adultery was not a defense. We noted that the purported intimacies "were not connected in any way with the allegations in the libel... and did not provoke the indignities of which he complains". See also Orsuto v. Orsuto, 171 Pa. Superior Ct. 532, 91 A.2d 284. The language of President Judge RHODES in Anthony v. Anthony, 160 Pa. Superior Ct. 18, 49 A.2d 877, is particularly appropriate here (italics supplied): "In order to determine whether a particular libellant is an 'innocent and injured ...