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MANLEY v. MANLEY (09/20/60)

September 20, 1960

MANLEY
v.
MANLEY, APPELLANT.



Appeal, No. 13, Oct. T., 1960, from decree of Court of Common Pleas of Delaware County, June T., 1956, No. 721, in case of Thomas F. Manley v. Violet Evelyn Clark Manley. Decree affirmed.

COUNSEL

Charles F. Mayer, for appellant.

John B. H. Donaldson, with him Lippincott & Donaldson, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Woodside

[ 193 Pa. Super. Page 253]

OPINION BY WOODSIDE, J.

This appeal was taken by the wife-defendant from a final decree granting the appellee a divorce a.v.m., upon the ground of adultery.

[ 193 Pa. Super. Page 254]

The plaintiff-appellee brought the action on the ground of indignities. Subsequently, by leave of court, he amended his complaint alleging that the defendant had committed adultery between May 21 and June 8, 1958.

The master recommended that a divorce be granted on both grounds. The court below concluded that the indignities committed by the wife should be excused on the ground that she was mentally ill, but entered a decree granting the divorce on the ground of adultery.

We must examine for ourselves the testimony in divorce cases heard without a jury and determine therefrom, independently of the findings of the master, or even the court below, whether in truth and in fact a legal cause of divorce has been made out. Of course, the master's report, although advisory only, is to be given the fullest consideration as regards the credibility of witnesses whom he has seen and heard. Boyer v. Boyer, 183 Pa. Superior Ct. 260, 263, 130 A.2d 265 (1957); Rech v. Rech, 176 Pa. Superior Ct. 401, 403, 107 A.2d 601 (1954).

The plaintiff is vice-president of the Associated Hospital Service of Philadelphia (Blue Cross). The master reported that he "was responsive to questioning and appeared entirely candid, and although under obvious mental strain he was essentially composed and direct in his testimony ... Mild in manner ... there was at no time any conscious effort to deceive or misrepresent ... [he was] in all respects fully credible." By contrast the master found the defendant "a belligerent and aggressive individual, dynamic and self-assertive, argumentative and contentious ... her testimony was biased and discolored and her recollections many times were faulty."

An examination of the record convinces us that the defendant was guilty of adultery with Donald Wilson,

[ 193 Pa. Super. Page 255]

    who is the co-respondent named in this case. She has long been enamored of him. He sent her numerous endearing notes and greetings. She testified, "I was in love with him. I still am, and he is with me, and that's that." At the hearing, when she was shown the endearing notes and greetings, she said, "A shame you couldn't have gotten some of my notes to him." She admitted to the plaintiff that she had an "affair" with Wilson, and on numerous occasions told her husband that he was not the father of her youngest child. Between the time the parties separated in October of 1958, and the time of the hearings, Wilson had been at the defendant's residence almost continuously. The telephone in the defendant's home is listed in both her name and Wilson's name. The two of them were arrested together several times for disorderly conduct. Wilson frequently spent all night at the defendant's home, where they were alone except for small children.

The plaintiff charges the defendant with adultery from May 21 to June 8, 1958. There is evidence from which it can be inferred that on 14 different dates within that period Wilson stayed over night at the defendant's home. The defendant admits that he has been at her home practically every night since the plaintiff left and that he has stayed over night at least five or six times. Wilson was present at several hearings but did not testify.

We concur with the conclusion of the master and the court below that this evidence, in the language of the Supreme Court, "would lead the guarded discretion of a reasonable and just man to a conclusion of guilt." Matchin v. Matchin, 6 Pa. 332 (1847).

The parties were married in 1940, and lived together until September or October of 1957. There are four children of the marriage, three living with the mother and the oldest (16 years old at the time of the hearing)

[ 193 Pa. Super. Page 256]

    living with the father. Immediately after their marriage, the parties lived normally, but when the plaintiff returned from the service in 1945, he noticed his wife was cool to him. In 1949 she began drinking heavily, and staying away from home more and more frequently and later and later at night - sometimes all night. This was the year she gave in her testimony as the one in which she fell in love with Wilson.

We shall not detail the conduct which the master found sufficient to warrant the granting of a divorce on the ground of indignities, but as some of the testimony mony bears upon the defendant's mental condition and the adultery, as well as the issue of indignities, it becomes necessary to refer to some of it. There can be no question that she made the plaintiff's life burdensome, and that since falling in love with Wilson, she has not hid her hate for her husband.

After 1949 the defendant's drinking, and with it her conduct, grew progressively worse. Her actions brought her numerous encounters with the police, and at least five times she was charged with disorderly conduct.

In 1953 she received medical and psychiatric treatment from two physicians and at the Pennsylvania Institute as an out patient and subsequently, for a period of a month, in the Pennsylvania Hospital. Thereafter, she drank less, but used alternately sleeping pills and benzedrine in great quantities.

One time, while in jail on a disorderly conduct charge, she took seven sleeping pills. She testified that she did this so she would be taken to the hospital where she could make a telephone call which she hoped would obtain her release from jail. She said that she previously had taken a full bottle of sleeping pills so she knew that seven ...


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