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NICHOLS v. NICHOLS (03/24/66)

decided: March 24, 1966.

NICHOLS
v.
NICHOLS, APPELLANT



Appeal from decree of Court of Common Pleas of Allegheny County, Oct. T., 1962, No. 1528, in case of Robert A. Nichols v. Irene M. Nichols.

COUNSEL

Henry E. Rea, Jr., with him Paul Brandt, C. Donald Gates, Jr., and Brandt, Riester, Brandt & Malone, for appellant.

Thomas H. Welsh, with him Metz, Cook, Hanna & Kelly, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J.

Author: Wright

[ 207 Pa. Super. Page 222]

On July 31, 1962, Robert A. Nichols filed a complaint in divorce a.v.m. against his wife, Irene M. Nichols, on the ground of indignities to the person. Following the filing of an answer and the determination of a rule for a bill of particulars, a master was appointed on June 13, 1963. After taking testimony, the master filed a report on June 18, 1964, recommending that the prayer of the complaint be denied. On January 5, 1965, the court below sustained exceptions filed by the husband and entered a final decree. This appeal followed.

The parties were married on November 5, 1948. The wife was then forty-three years of age and the husband was thirty-seven. The wife had been married twice previously and the husband once before. No children were born to their union. The wife had a daughter by a previous marriage. The husband is Division President of Basic Engineers, a concern engaged in designing and fabricating. The wife performs the duties of a housewife. The parties lived together without difficulty apparent to others until July 18, 1962, when the husband left the common habitation.

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: Benscoter v. Benscoter, 200 Pa. Superior Ct. 251, 188 A.2d 859; Stofko v. Stofko, 201 Pa. Superior Ct. 301, 191 A.2d 697. A divorce may not be granted without clear proof of compelling reasons: Sacavitch v. Sacavitch, 206 Pa. Superior Ct. 229, 212 A.2d 926; Staffieri v. Staffieri, 197 Pa. Superior Ct. 443, 179 A.2d 663. To warrant a decree

[ 207 Pa. Super. Page 223]

    of divorce on the ground of indignities, there must be clear and satisfactory proof of a course of conduct which rendered the condition of the other party intolerable and life burdensome, and from which an inference of settled hate and estrangement may be deduced: Nordmann v. Nordmann, 204 Pa. Superior Ct. 562, 205 A.2d 690. It was the husband's burden to show that his wife's conduct manifested settled hate and estrangement: Sokol v. Sokol, 205 Pa. Superior Ct. 459, 211 A.2d 118; Blatt v. Blatt, 206 Pa. Superior Ct. 177, 212 A.2d 907. We are satisfied that the husband failed to meet this burden in the case at bar. Even if we accept the husband's testimony as substantially true, we agree with the master that it did not make out a clear and convincing case.

The husband testified that his wife controlled the family finances and did not give him enough money. Yet he turned his pay checks over to her without objection. The wife testified that her husband gave her the pay checks voluntarily because he felt that she was more capable of handling the money. The husband also complained that his wife refused to prepare his breakfast. He apparently ate cold cereal, a sweet roll, and milk which required little or no preparation. He stated on cross-examination that he did not ask his wife to get up in the mornings, and the testimony indicates that he preferred that she did not do so. He accused his wife of calling him a sex maniac, and an alcoholic. The appellation sex maniac was employed on only one occasion during a quarrel. The husband was admittedly a solitary drinker. The wife testified that he began to drink to excess and she told him that, if this continued, he would become an alcoholic. Her comments fall far short of the abusive language generally associated with a charge of indignities.

The husband testified that his wife embarrassed him when they had guests in the ...


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