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decided: December 15, 1976.


Appeal from the Order and Opinion dated December 5, 1974, of the Court of Common Pleas, Civil Division, Law, of Adams County, Pennsylvania, to No. 5 July Term, 1973. No. 8 March Term, 1976.


Henry O. Heiser, III, Gettysburg, for appellant.

Jesse L. Crabbs, Hanover, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Watkins, President Judge, joins. Spaeth, J., files a dissenting opinion.

Author: Cercone

[ 246 Pa. Super. Page 267]

In this appeal appellant-husband, Robert J. Riley, contends that the court below erred in dismissing his complaint in divorce. On May 8, 1973, appellant filed a complaint alleging that his wife, Helen W. Riley, had offered such indignities to his person as to warrant a divorce a. v. m.*fn1 Although appellee was properly served she neither filed an answer nor entered an appearance. However, at the master's hearing on September 6, 1974, appellee appeared and contested the action, but without the benefit of counsel. The master found in favor of appellant and recommended that the divorce be granted. The lower court, upon reviewing the testimony, overruled the findings of the master and dismissed appellant's complaint. From this dismissal the husband has appealed.

The parties were married in Hanover, Pennsylvania on June 25, 1949. Eleven children were born of this union,

[ 246 Pa. Super. Page 268]

    six of whom are under the age of eighteen and reside at home in the custody of appellee-wife. At the time of the master's hearing, appellant was 47 years of age and his wife 48.

Appellant testified that in the fall of 1972 the alleged indignities of his wife became so intolerable that he removed himself from their marital abode. Specifically, appellant testified that the following conduct of his wife compels the dissolution of their marriage: her false and constant accusations of infidelity, her approbrius name-calling such as "dirt" and "scum," her frequent neglect to prepare appellant's meals, her rare completion of the family laundry chores, her lack of affection and employment of the silent treatment, and her interruptions of his work and arguments with him in front of his fellow workers. He further testified that he awakened one night and found his wife pointing a firearm at his head. In addition, appellant stated that upon returning from a convention in Georgia he found his bedroom in such a state of disarray that he slept in the family camper. Not long thereafter, he left the family residence at the alleged request of his wife and daughter.

Appellee presented another picture. She admitted that on occasions she called appellant names. She further acknowledged that there were times when she did not have meals prepared, but that this was usually because she was occupied with the six children and her other considerable household duties. She conceded that in the volatile period preceding their estrangement she and her husband would not speak to each other for extensive lengths of time. She explained, however, that this was due principally to the fact that appellant was rarely at home and viewed his family obligation as confined simply to putting food on the table. If these were indeed the circumstances, it is hardly surprising to find a want of affection in the marriage. Nor is it difficult to understand why the family laundry was never totally finished, considering the size of the family. Appellee explained that

[ 246 Pa. Super. Page 269]

    the bedroom was torn up because it was in the process of being painted. She denied ever having told appellant to leave, and stated that when appellant informed her he was going to leave, she replied that if that was what he desired, then he should leave. She categorically denied the incident with the firearm and speculated that her husband may have imagined the episode since he was drinking that evening. Appellee acknowledged the fact that she often accused appellant of unfaithfulness, but maintained that her suspicions were reasonably justified.

Appellant testified that since he left his family his disposition has improved and things have progressed so well at his primary job that he has received a raise. Appellant's witness, a former co-worker, confirmed the change in appellant's nature after the separation and, additionally, verified that appellee had on occasion interrupted appellant at work and engaged him in domestic arguments.

Appellant argues that the court below erred in two instances: (1) in concluding that the evidence was insufficient to sustain a claim of indignities, and (2) in further holding that he was not an ...

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