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C. BURTIS COXE v. DORIS B. COXE (11/22/76)

decided: November 22, 1976.

C. BURTIS COXE, APPELLANT,
v.
DORIS B. COXE



Appeal from the Order dated August 29, 1975 of the Court of Common Pleas of Chester County, at No. 38 June Term, 1972, Civil Action-Law. No. 107 October Term, 1976.

COUNSEL

W. Robert Landis, West Chester, for appellant.

V. Clayton McQuiddy, III, West Chester, for appellee.

Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., file dissenting opinions.

Author: Cercone

[ 246 Pa. Super. Page 232]

This is an appeal from an order of the Court of Common Pleas of Chester County, dismissing a complaint in divorce. The court overruled the master, who recommended that plaintiff-husband be granted a divorce.

Appellant-husband married appellee in November of 1952. The parties have two children, born in 1955 and 1958. Appellant seeks a divorce on the ground of indignities. There is no dispute that his testimony is sufficient at law to support his claim. The sole issue before this court is that of credibility.

Plaintiff-appellant contends that the master's findings, absent "gross irregularity or mistake of law," are binding on the court below and on this court. This argument is without merit. It is well-settled that in divorce cases, the evidence must be considered de novo at every stage of review; and that review extends to questions of credibility. Gehris v. Gehris, 233 Pa. Super. 144, 148, 334 A.2d 753 (1975). Such a review of the record in the instant case sustains the lower court's characterization of plaintiff's testimony as "replete with inherent improbabilities, inconsistencies, and contradictions." Both husband and wife had considerable and conflicting complaints about each other concerning conduct, attitude and familial responsibilities.

Plaintiff, who throughout the marriage worked at two jobs, testified that defendant berated him publicly and privately for not working harder and making more money. When pressed for examples of such conduct occurring in public, he described two incidents, each in front of a different couple. He described the relationship to

[ 246 Pa. Super. Page 233]

    these couples as having been a close one from 1964 to the present. He stated that he had not sought to have them testify because of the close personal relationship. Yet, when asked the present whereabouts of one of the couples, he replied that he did not know.

About half of plaintiff's complaints relate to persistent verbal abuse to which he allegedly was subjected by defendant. A review of his testimony in this respect reveals that he claims to have been insulted in one way or another from 39 to 45 times a week for several years. As the court said in Cunningham v. Cunningham, 119 Pa. Super. 380, 381, 181 A. 458 (1955):

"The fact [of living together] may . . . be taken into consideration in passing on the degree or severity of the alleged indignities which render the libellant's condition intolerable and his or her life burdensome. If one physically and financially able to leave the common home continues to stay there, it may have some bearing on the intolerableness of his condition and the burdensomeness of his life." (Original emphasis.)

The master found as a fact that on June 1, 1972, defendant rhetorically questioned plaintiff's virility and parentage, in unsavory terms, and told him to take his things and leave the marital home with his girlfriend. Had plaintiff's home life truly been as miserable as he portrayed it, it is hard to believe that he would wait for this inherently improbable edict before leaving.

The rest of plaintiff's complaints, aside from some referring to isolated incidents and to conduct not constituting indignities, allege that defendant refused to make coffee for him in the morning, usually refused to make lunch for him when he was able to come home for that meal, and, on those occasions when he could come home for dinner, customarily insulted his palate with TV dinners, meat pies, and leftovers. With respect to the coffee complaint he testified:

". . . [W]ith much persuasion on my part she did make coffee. I would have to beg and plead to

[ 246 Pa. Super. Page 234]

    have coffee made. I had my office underneath in the home. I would have to get the ball peen hammer and hammer on the joist to move her to get out of bed to get coffee, after being down there from seven thirty to work . . . I made it two-thirds of the time and she made it one-third with much persuasion."

He added on further examination that he resorted to hammering on the floor joist under her bed two or three times a month.

Defendant's testimony on the subject of coffee was as follows:

". . . [T]he children always took an early school bus when they went to school. I usually got up with the children, or a little before. The first thing I did when I got up, for the most part, was put on the coffee pot. It was a percolator. It took about ten minutes. For many years, I was in a car-pool with other mothers on the road. It took about ten minutes to take the children to the school bus stop. It was about a mile away.

"When I came back, the coffee would be ready or be done, and I would go back, and if he wasn't awake I would call him."

We agree with the lower court that the wife's version of the coffee problem is more believable. Her denial that she ever refused to make him lunch or dinner is at least as credible as his testimony to the contrary.

Plaintiff alleged that when he tried to take afternoon naps, defendant deliberately interfered with his attempts to sleep by running a vacuum cleaner near the bedroom. Defendant admitted that her vacuuming time occasionally coincided with his naptime, but denied any deliberate interference with his sleep. We regard plaintiff's inference of a design to disturb him as pure conjecture; from what the record tells us of his temperament, we believe that defendant would no more deliberately interrupt his slumber than she would poke a hibernating bear.

[ 246 Pa. Super. Page 235]

When asked about the effect of defendant's conduct on his day-to-day emotional state, plaintiff replied:

"The . . . effect it had was I prayed to the Supreme Being that he would remove this witch out of the picture many, many times, and cast the devil from her."

Early in the hearing plaintiff's counsel observed, "The problem here is obviously Mr. Coxe is nervous and upset, and he is having difficulty in being responsive to the question." While ordinarily it would be unfairly conclusory to consider such nervousness a reflection of the guilty conscience of one giving less-than-truthful testimony, the instant plaintiff is no shrinking violet; he is a District Justice of the Peace with fourteen years' experience in the taking of testimony, has a successful career as an insurance agent, and has worked as a salesman and bill collector. These experiences involve considerable human contact; his emotional state in court is not easily attributed to a nervous disposition or to the unfamiliarity of his surroundings.

The best that can be said of plaintiff's testimony is that parts of it are believable enough to be accorded equal weight with defendant's denials. We are asked to believe that plaintiff, an ambitious and aggressive man, endured daily abuse in prolonged silence punctuated only by an occasional tap of the ball peen hammer and a periodic plea to the Almighty to remove the "witch" from the picture. Were defendant the stereotyped shrew portrayed by plaintiff's testimony, the likelihood is that he would have removed himself from the picture long ago. Taken as a whole, plaintiff's tale of woe lacks the ring of truth.

No lengthy review of defendant's testimony is necessary, as her version of events is generally more spontaneous, straightforward, and believable. The episode on the basis of which the master rejected her testimony (her professed surprise on being told at the hearing that she would not receive alimony if the divorce were granted)

[ 246 Pa. Super. Page 236]

    reflects more on her motives for contesting the divorce, and the truthfulness of her statement that she still loves her husband, than on the accuracy of her recital of past events.

The inference of "settled hate and estrangement" that we would have to draw from the credible evidence in order to rule in plaintiff's favor cannot be drawn without resort to speculation. But cf. Silfies v. Silfies, 168 Pa. Super. 421, 79 A.2d 130 (1951). The rule that controls this case was stated in Bobst v. Bobst, 160 Pa. Super. 340, 343, 51 A.2d 414, 416 (1947):

"No rule has securer footing than that 'the testimony of the husband, denied and contradicted by the wife, (as in this case,) cannot be regarded as creating more than a doubtful balance of evidence. When such a situation occurs, the libellant fails to make out a clear and satisfactory case.'"

The instant plaintiff has similarly failed to meet his burden of proof, and the lower court's dismissal of the complaint was proper.

Order affirmed.

HOFFMAN, Judge, dissenting:

Appellant, plaintiff-husband in a divorce action in the court below, contends that the lower court erred when it dismissed appellant's complaint despite the master's recommendation that a divorce be granted.

Appellant filed a complaint in divorce a. v. m. on June 9, 1972, based on a claim of indignities.*fn1 A master,*fn2 appointed on October 4, 1972, took testimony on February

[ 246 Pa. Super. Page 2376]

, February 22, and September 17, 1973. Although the hearing was extensive, neither party presented corroborative evidence; rather both appellant and appellee chose to rely on his and her own oral testimony. On March 4, 1975, the master filed his report in which he recommended that the court grant the divorce on the ground of indignities. Appellee filed exceptions to the report, first that the master's conclusions concerning credibility were not supported by the record, and, second, that, even crediting appellant's testimony, the record did not support a finding of indignities. On August 29, 1975, the lower court dismissed appellant's complaint, based on appellee's first exception.*fn3 After a review of the record of the master's hearing, the court found that appellant's testimony was "replete with inherent improbabilities, inconsistencies, and contradictions."

The lower court and both parties agree that the instant case turns on this Court's holding in Gehris v. Gehris, 233 Pa. Super. 144, 334 A.2d 753 (1975). The lower court distinguished the facts of the instant case from those in Gehris.*fn4 I believe that this case is controlled

[ 246 Pa. Super. Page 238]

    by our decision in Gehris and that we must, therefore, reverse.

The Majority is correct in stating that "[i]t is wellsettled that in divorce cases, the evidence must be considered de novo at every stage of review; and that review extends to questions of credibility. . . ." (At 1297). See also, Eifert v. Eifert, 219 Pa. Super. 373, 281 A.2d 657 (1971); Del Vecchio v. Del Vecchio, 169 Pa. Super. 617, 84 A.2d 261 (1951). However, we noted in Gehris that "[t]he obvious important exception to de novo review by a reviewing court is that great weight must be accorded to the findings of the court or master below if the issues of credibility are ones that are necessarily resolved by personal observations. For example, if the ultimate decision rests on a statement asserted by one party and denied by the other, where there is no corroborative evidence, demeanor on the stand is necessarily dispositive of the issue and is the kind of evidence that cannot effectively be reviewed by an appellate court." 233 Pa. Super. at 148, 334 A.2d at 755. (Emphasis added). See also, Uhlinger v. Uhlinger, 169 Pa. Super. 574, 83 A.2d 423 (1951). In an effort to review such findings, an appellate court is remitted to speculation; therefore, traditionally, credibility has been entrusted to the factfinder who hears and observes the witnesses.

In Gehris, the appellant urged this Court to reverse findings of the lower court which had seen and heard the witnesses. In Dougherty v. Dougherty, 235 Pa. Super. 122, 127, 339 A.2d 81, 84 (1975), the appellant challenged the master's findings as "'one sided, prejudicial, and not based upon the evidence presented.'" The lower court had adopted the master's recommendations that a divorce be granted. Procedurally, the instant case is different from Gehris and Dougherty only in that the lower court herein exercised de novo ...


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