Appeal, No. 419, Oct. T., 1962, from decree of Court of Common Pleas of Sullivan County, sept. T., 1961, No. 2, in case of Robert K. Benscoter v. Margaret I. Benscoter. Decree affirmed.
Patrick H. Fierro, with him Anthony D. Miele, and Fierro & Miele, for appellant.
Keeneth B. Lee, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 200 Pa. Super. Page 252]
In this case the husband filed a complaint in divorce a.v.m. on the ground of indignities to the person. The master recommended that a divorce be granted; however, the court below, after reviewing the matter, dismissed the complaint. This appeal by the husband followed.
Upon appeal from a decree in a divorce proceeding heard before a master, it is the duty of the appellate court to make an independent investigation of the evidence in order to determine whether in truth it does establish a legal cause for divorce: Zirot v. Zirot, 197 Pa. Superior Ct. 124, 177 A.2d 137. We have accordingly reviewed the entire testimony and record in this case and have arrived at an independent conclusion that the husband is not entitled to a divorce a.v.m.
The parties were married on august 21, 1946 in West Nanticoke, Pennsylvania. Four sons were born as a result of the marriage. Richard was born January 22, 1948; Kenneth was born March 15, 1950; Wayne
[ 200 Pa. Super. Page 253]
was born November 22, 1952 and Garey was born December 28, 1957. At the time of the hearing in January 1962 the plaintiff was 39 years of age and the defendant was 37 and she was suffering from multiple sclerosis.
The main indignity of which the husband complains is that the wife expressed her disappointment in failing to have a female child and that she verbally abused him and blamed him for this failure. The wife's alleged misconduct was sporadic in nature and did not constitute a course of conduct as required by law: Simons v. Simons, 196 Pa. Superior Ct. 650, 176 A.2d 105. It must be pointed out that the parties lived together for 15 years and it was not until August of 1961 that the plaintiff complained about the defendant. Therefore, the plaintiff's condition could not have been as intolerable nor his life so burdensome as he now alleges: Moyer v. Moyer, 181 Pa. Superior Ct. 400, 124 A.2d 632; Cunningham v. Cunningham, 119 Pa. Superior Ct. 380, 181 Atl. 458.
In August of 1958 the defendant-wife was stricken with the incurable disease, multiple sclerosis. As a result of this disease she has double vision, slurred speech, weakness of the muscles and she cannot walk without the assistance of another person or a cane. She falls down frequently. She lost weight and at the time of the hearing weighed only 86 pounds. She is subject to the frustrations that are attendant to this progressive disease. Event he plaintiff testified that in September of 1961 the defendant attempted to commit suicide three times. These circumstances cannot be blindly disregarded. Ill health both explains and excuses a ...