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STEINKE v. STEINKE (10/28/75)

decided: October 28, 1975.

STEINKE, APPELLANT,
v.
STEINKE



Appeal from decree of Court of Common Pleas of Bucks County, No. 74-5785-02-3, in case of Cecilia Marie Steinke v. Robert O. Steinke, Jr.

COUNSEL

Stanton C. Kelton, III, for appellant.

Robert O. Steinke, Jr., appellee, in propria persona, submitted a brief.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Spaeth, J., concurs in the result. Concurring Opinion by Spaeth, J.

Author: Jacobs

[ 238 Pa. Super. Page 76]

This is an appeal from the decree entered below dismissing plaintiff-appellant's complaint for divorce a.v.m. Because we find that appellant's evidence did establish grounds for divorce due to indignities offered by the husband, Robert Steinke, to the appellant, we reverse.

The record discloses the following facts. The parties met in May, 1971, when Robert was 20 and Cecilia was only 16. In August of that year they eloped to Maryland and were married on August 4. Neither Cecilia nor her mother, who testified in her behalf, noticed anything unusual about Robert at that time. However, shortly after the marriage, Robert informed appellant that he never wanted to grow up and he started wearing diapers and rubber pants. On occasion he would request appellant to change the soiled diapers, which she refused to do. Appellant testified that she was shocked by this behavior and found it impossible to discuss the situation with Robert. Their families and friends apparently knew nothing about it.

In June, 1972, appellant's daughter was born and Robert stopped wearing diapers. A few months later he expressed a desire to dress as a woman, and thereafter would wear women's clothes around the house. He obtained some information by mail regarding transexualism which detailed the treatments and surgical possibilities available to effect a complete change in sex. As the idea of becoming a woman grew on him, he began to visit doctors and psychiatrists with the view of developing himself as a woman. To this end he began taking hormones.

For a while appellant maintained hope that Robert would overcome this phase but as it persisted she resolved to seek outside help. With the advice of her mother, she took her husband to see a psychiatrist who would help him overcome his desire to change his sex. After a few visits, however, Robert decided he was receiving no help

[ 238 Pa. Super. Page 77]

    and discontinued the treatment in favor of that provided by the doctors who were guiding him in a six month program leading up to the anticipated sex change surgery. He began to assume the total identity and appearance of a woman, with the help of the hormone pills, at work and in public as well as at home. For the first time the situation became known to the friends of the couple.

Robert testified that at this time, when he was assuming all feminine attributes possible, short of surgery, he felt that the whole experiment was a trial period during which he sought to resolve his inner conflict, and that the ultimate operation was not a certainty. Nevertheless, after three months of the six month treatment had elapsed, appellant demanded that he leave their home. On February 10, 1974, he moved into a separate apartment, continuing to live as a woman to the extent of calling himself "Karen" and appearing at a support hearing in June of 1974 in women's attire. In July of that year when the doctors informed him that he was not a fit subject for the operation, Robert had already reached that conclusion on his own. He stopped the treatments and, feeling himself cured, he resumed living as a man.

In July, 1974, about the time Robert was abandoning the desire to become a woman, appellant filed her complaint in divorce alleging indignities. A hearing was held before the court in October at which Robert appeared without counsel, and very ably contested the divorce in his own behalf. In December he sent a letter to the judge who heard the divorce withdrawing his contest. The lower court found that sufficient grounds for divorce were not established because the husband's conduct stemmed from psychiatric disorder.

In reviewing this case, we are required to make an independent study of the record. See Dougherty v. Dougherty, 235 Pa. Superior Ct. 122, 339 A.2d 81 (1975); Barr v. Barr, 232 Pa. Superior Ct. 9, 331 A.2d 774 (1974). In matters of credibility, however, the lower court's

[ 238 Pa. Super. Page 78]

    judgment is entitled to great weight as it is the lower court which has had the opportunity to observe the witnesses, their demeanor and inflection, and is thus in a better position than the reviewing court to settle the questions on that issue. Dougherty v. Dougherty, supra; Sells v. Sells, 228 Pa. Superior Ct. 331, 323 A.2d 20 (1974).

The Act of May 2, 1929, P.L. 1237, § 10(1)(f), as amended, 23 P.S. § 10(1)(f) allows the innocent and injured partner to a marriage to obtain a divorce from the bond of matrimony where the other spouse "[s]hall have offered such indignities to the person of the innocent and injured spouse, as to render his or her condition intolerable and life burdensome." Indignities have not been defined by the law, but rather conduct alleged to be productive of indignities has been evaluated together with the peculiar circumstances of each case. See Boyer v. Boyer, 183 Pa. Superior Ct. 260, 130 A.2d 265 (1957); McLaughlin v. McLaughlin, 170 Pa. Superior Ct. 516, 87 A.2d 101 (1952). Appellate courts have attempted to draw general guidelines thought to be instructive in shaping the offense of indignities. It has thus generally been determined that such conduct must constitute a course of behavior which is humiliating and degrading, inconsistent with the injured individual's position as a wife, making that condition intolerable and life a burden to her. A single act of indignity is not sufficient, but a course of treatment "of such character as to render the condition of any woman of ordinary sensibility and delicacy of feeling intolerable and her life burdensome" will present grounds for divorce. Commonwealth ex rel. Whitney v. Whitney, 160 Pa. Superior Ct. 224, 228, 50 A.2d 732, 734 (1947) (emphasis original). Such conduct is understood to manifest the spirit of malevolence, hate and estrangement which has come to replace natural love and affection in a marriage and is central to a charge of indignities. Barr v. Barr, supra; Sells v. Sells, supra.

[ 238 Pa. Super. Page 79]

That the appellant-wife in the present case has come to find life with her husband intolerable and burdensome does not indicate unusual sensitivity or extraordinary delicacy on her part. It is certainly to be anticipated that a reasonable woman might react to her husband adopting not only the clothing, but the full physical appearance of a woman, by becoming shocked and repelled. This Court has recognized that unnatural sexual conduct or excessive and unusual sexual demands represent indignities making a spouse's condition intolerable and life burdensome. Where such conduct can be established, we have held that divorce is appropriately granted. See Crissman v. Crissman, 220 Pa. Superior Ct. 387, 281 A.2d 719 (1971) (homosexual conduct of husband grounds for divorce); Diehl v. Diehl, 188 Pa. Superior Ct. 491, 149 A.2d 133 (1959) (excessive sexual demands of wife grounds for divorce); Krug v. Krug, 22 Pa. Superior Ct. 572 (1903) (unusual sexual demands of husband grounds for divorce). The record in the present case details facts which make relief for appellant's unhappy condition particularly appropriate: she married her husband at the very young and immature age of 16, without the advice or blessing of her family, when they had known each other only a few months, and she was unaware of her husband's predilections. Furthermore, the conduct of the husband is of such a nature as to cause revulsion in a young and inexperienced woman, tending to create an atmosphere where affection sours and loathing grows in its place.

In addition, the husband's conduct indicates a lack of concern for his wife's well-being and neglect of his responsibility to her and the child. The appellant testified that it was humiliating to her that her husband would appear in front of her friends and associates, as well as in public places, in feminine attire. A course of conduct which is humiliating and degrading to a woman has been held to provide evidence sufficient in itself to support

[ 238 Pa. Super. Page 80]

    the allegation of indignities. DiFabio v. DiFabio, 200 Pa. Superior Ct. 381, 188 A.2d 838 (1963); Simons v. Simons, 196 Pa. Superior Ct. 650, 176 A.2d 105 (1961); Boyer v. Boyer, supra. Also the testimony of both parties substantiates the finding that the husband's behavior naturally provoked a strained and distant relationship wherein communication and other intimacies ceased. Persistent neglect of one spouse by the other has been found to manifest indignities. Priest v. Priest, 162 Pa. Superior Ct. 232, 57 A.2d 437 (1948); Commonwealth ex rel. Whitney v. Whitney, supra. Finally, appellant testified that she was concerned for her young daughter who exhibited some questionable social behavior, possibly due to the influence of the husband. Whereas this alone would not support an allegation of indignities, concern for the wholesome development of the child provides additional support for the appellant's decision to seek a dissolution of her marriage. This Court has recognized that an indignity to a child can sometimes be an indignity to the parent and the mistreatment of children can be grounds for divorce. Crissman v. Crissman, supra; Walker v. Walker, 109 Pa. Superior Ct. 539, 167 A. 446 (1933); Cavazza v. Cavazza, 102 Pa. Superior Ct. 312, 156 A. 629 (1931).

The lower court, however, held that grounds for divorce were not established due to the finding that the husband was acting under the compulsion of a psychiatric disorder. It is true that conduct springing from mental ill health cannot constitute indignities because it must be regarded as unintentional and lacking in the spirit of hate and estrangement which is the heart of the charge of indignities. Barr v. Barr, supra; Boggs v. Boggs, 221 Pa. Superior Ct. 22, 289 A.2d 479 (1972); Fawcett v. Fawcett, 159 Pa. Superior Ct. 185, 48 A.2d 23 (1946). "'[This] doctrine must not, however, be pushed to extremes. The guilty spouse cannot excuse . . . mistreatment amounting to indignities by the shallow excuse of nervousness or irritability unfounded in any specific ailment. The

[ 238 Pa. Super. Page 81]

    law still considers the parties as masters of their own conduct unless legal insanity has intervened . . . or recognizable and definable disease has usurped the will, and the ill-treatment is but the normal manifestation of the derangement of health.'" Dougherty v. Dougherty, supra at 130, 339 A.2d at 85, quoting, 2 A. Freedman, Law of Marriage and Divorce in Pennsylvania, 700-01 (2d ed. 1957).

In the present case the husband attempted to explain the conduct complained of as being symptomatic of mental illness. He produced no witnesses or other evidence to corroborate his own testimony that he suffered from mental disease. On the contrary, both he and appellant testified that the doctors and psychiatrists he consulted recommended he persist in this course of conduct, and administered hormones and medication to effect a physical change preparatory to a sex change operation. Since no cure was prescribed or treatment recommended other than continuation and even increase of the same behavior, it is difficult to believe there was any recognizable illness in the first place. Furthermore, the husband discontinued treatment, after only a few brief sessions, with the psychiatrist the appellant had selected who was attempting to modify the husband's behavior. Refusal to submit to medical treatment to correct a disorder destructive to the marriage has been held to be grounds for divorce. Fiorilli v. Fiorilli, 202 Pa. Superior Ct. 529, 198 A.2d 369 (1964).

In this day of growing acceptance of transvestite and homosexual behavior, with sex change operations a commonplace occurrence in many areas, we hesitate to accept the view that mental imbalance is displayed when an individual experiments with one of these concepts. In reference to the case at bar, we remain unconvinced by the husband's unsubstantiated testimony that he was compelled by mental illness to adopt the patterns of living he displayed. Rather than mental illness, we must view

[ 238 Pa. Super. Page 82]

    the husband's predilection as the indulgence of a private fantasy. As such, it cannot excuse the indignities complained of, and can constitute grounds for divorce. In this context it is instructive to note that the conduct here at issue does not parallel that reported in prior cases where divorce was denied due to the emotional instability of the defendant. Those cases review incidents stemming from clearly ascertainable physical maladies requiring surgery, Stinson v. Stinson, 163 Pa. Superior Ct. 497, 63 A.2d 413, allocatur refused, 163 Pa. Superior Ct. xxv (1949), or describe violent acts of a wild and strange nature, requiring that the perpetrator be institutionalized. See, e.g., Simons v. Simons, supra; Braun v. Braun, 186 Pa. Superior Ct. 260, 142 A.2d 361 (1958); Glass v. Glass, 164 Pa. Superior Ct. 118, 63 A.2d 696 (1949). Other cases indicate that the plaintiff knew in advance of the marriage the precarious mental condition of the defendant, and thus willingly chose the added responsibility of a spouse with unusual needs. Boggs v. Boggs, supra; Fawcett v. Fawcett, supra.

All the cases cited above reveal a particularly dependent spouse troubled by a nervous condition which causes overreaction to private fears and imagined injuries making self control impossible. In the present case, no such lack of control was demonstrated. The alleged illness was never so debilitating that the defendant was unable to hold a job or function to care for himself. Rather than hospitalization, the treatment prescribed by the medical profession was to aggravate the symptoms of the alleged disease. In addition, the appellant was unaware of her husband's inclinations at her marriage. Considering these circumstances we must hold that refusal to grant the divorce was error.

Decree reversed and a decree of divorce a.v.m. for appellant granted.

Disposition

Decree reversed and decree of divorce a.v.m. granted.

[ 238 Pa. Super. Page 83]

Concurring Opinion by Spaeth, J.:

Every so often a judge finds his legal sense overwhelmed by common sense. He knows he should keep his mind in suspension, and not form an opinion on what should be the outcome of the case until he has researched the law; and yet, no sooner does he hear the facts than he finds himself thinking, "Surely this result must be wrong."

This is such a case. Surely this young woman deserves a divorce. Her husband's practice of wearing and soiling diapers and rubber pants repulsed her and destroyed her affection for him. His transvestite behavior caused her great concern for the mental health of her daughter, and humiliated her in front of friends, family, and in public. Sexual relations ceased altogether.

And yet the President Judge of the lower court, who has at least as much common sense, and more legal experience, than I, felt obliged to deny a divorce. In a thoughtful and sensitive opinion, he summarized his reasons as follows:

"The evidence in this case falls far short of showing settled hate and estrangement by the defendant toward his wife. At the hearing herein he protested his love for his wife and child, and was believed by the undersigned.

". . . Defendant's bizarre conduct was the product of a psychiatric disorder. The conduct was not directed at the plaintiff and was without any intention of hurting her." Opinion of lower court, at 4-5.

Although the opinion filed by the majority of this court is clearly concerned with reaching a humane result, I do not think it responds to the reasoning of the lower court.

First, the majority seems to accept the lower court's formulation of the law, for like the lower court it cites decisions saying that "the spirit of malevolence, hate and estrangement which has come to replace natural love and

[ 238 Pa. Super. Page 84]

    affection in a marriage . . . is central to a charge of indignities." Majority Opinion, at 78, citing Barr v. Barr, 232 Pa. Superior Ct. 9, 331 A.2d 774 (1974), and Sells v. Sells, 228 Pa. Superior Ct. 331, 323 A.2d 20 (1974). Then, however, after so stating the law, the majority only finds that "the husband's conduct indicates a lack of concern for his wife's well-being and neglect of his responsibility to her and the child." Id. at 79. "[L]ack of concern" is far short of "hate and estrangement." If the majority really means that "the spirit of . . . hate and estrangement . . . is central to a charge of indignities", it seems to me that it should have affirmed, not reversed, the order of the lower court.

Second, the majority finds it "difficult to believe there was any recognizable illness [of the husband] in the first place," going on to add: "In this day of growing acceptance of transvestite and homosexual behavior, with sex change operations a commonplace occurrence in many areas, we hesitate to accept the view that mental imbalance is displayed when an individual experiments with one of these concepts." Majority opinion, at 81. I have no such difficulty or hesitancy in this case. To me, the husband is plainly a deeply troubled man; I quite agree with the lower court, that his "bizarre conduct was the product of a psychiatric disorder . . . not directed at . . . and without any intention of hurting [his wife]."

Accordingly, if we are to reverse the order of the lower court -- and I agree with the majority that we should -- we must re-examine and restate the law, first, on what must be proved to make out a charge of indignities, and second, on when proof of a mental disorder may represent a defense to that charge.

I

The record here shows estrangement of the parties, but it does not show a "spirit of malevolence, hate." There is no reason to disagree ...


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