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JERRY J. L. B. HARGROVE v. JOSEPHINE L. HARGROVE (12/02/77)

decided: December 2, 1977.

JERRY J. L. B. HARGROVE, II
v.
JOSEPHINE L. HARGROVE, APPELLANT



No. 1592 October Term, 1976, Appeal from the Decree of the Court of Common Pleas, Civil Action, Law, of Northampton County, at No. 241 October Term, 1966.

COUNSEL

Charles C. D. Lundy, Philadelphia, for appellant.

Alfred P. Antonelli, Bethlehem, for appellee.

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

Author: Hoffman

[ 252 Pa. Super. Page 124]

Appellant contends that the lower court erred in sustaining the master's recommendation that the parties be divorced and in granting a divorce a. v. m.*fn1 We affirm the lower court's decree.

On August 11, 1956, appellant-wife and appellee-husband were married in Allentown, Pennsylvania. They have one child, a daughter born on September 27, 1960. On December 30, 1966, appellee filed a complaint in divorce a. v. m. on the grounds of indignities. On November 21, 1974, the lower court appointed a master who conducted a hearing on January 16, 1975. Appellee testified to the following facts: shortly after he married appellant, she began telling him at least 2-3 times a week that she made a mistake marrying him because he was not good enough for her. When appellee was laid off by Bethlehem Steel Corporation, appellant disparaged him; her aspersions depressed appellee. In addition, appellant almost daily accused appellee of infidelity, even though appellee did not give appellant any reason to make these allegations. Appellant often called him a son-of-a-bitch and informed him that she was going to make certain that he could not continue his work as a minister.

In 1960, appellee became the pastor of the Second Baptist Church in Bethlehem. When he moved into the parsonage,

[ 252 Pa. Super. Page 125]

    appellant refused to follow until one month later because she preferred to stay with her mother in Allentown. Even after joining appellee at the parsonage, appellant would frequently return to her mother's house and remain there for periods of time ranging from two weeks to a month. Appellant ignored appellee's pleas to return. Appellee drove appellant to Allentown so that she might use her mother's washing machine, but he did not know that appellant intended to remain in Allentown for these extended periods of time. In 1962, appellant left appellee without advance warning or justification. This separation plus the earlier sporadic separations caused appellee great embarrassment and prompted the circulation of derogatory rumors throughout the church community. In 1964, appellant filed a divorce action against appellee; she later discontinued this action. In 1965, and 1967, appellant requested the Church Board of Deacons to investigate her suspicions that appellee indulged in adulterous relationships. The Board talked to appellee and appellant and recommended that they reconcile their differences.

In 1968, appellant unexpectedly returned to appellee's residence. The parties shared a common residence from 1968, until July 4, 1973, but maintained separate bedrooms and ate their meals in separate rooms and at separate times. Appellant and appellee engaged in sexual intercourse on no more than three or four occasions during this period. Appellant and appellee argued frequently, causing appellee to endure a continuous state of nervousness. Appellant also related the substance of family arguments to appellee's neighbors and fellow church members, thereby causing appellee extreme embarrassment and endangering his position as pastor. On July 4, 1973, appellant left appellee, once again without notice or cause. The parties have not lived together since that date. Finally, appellee testified that he provided well for his wife and child, that he had been a good and dutiful husband and father, that he did everything he could to make his marriage work, and that he did not contribute to the collapse of his marriage.

[ 252 Pa. Super. Page 126]

Appellant proffered a radically different version of events during her 19 years of marriage. She testified that on various occasions, appellee had pointed a rifle at her back, assaulted her, cut some skin off her neck with a butcher knife because she had burned dinner, threatened to kill her, called her "bitch," and told her to go to hell. In 1968, she brought a charge of assault and battery against appellee, but later dropped the charges. She testified that appellee carried on numerous affairs with other women. In particular, on one occasion, appellee told appellant that the only person he cared about in the world was another woman and that he only married appellant to spite this other woman. She also alleged that she found love letters and postcards to appellee from another woman. She introduced one such letter, allegedly written in 1967 by someone named "Dee", into evidence and claimed that the letter established a romantic link between appellee and one Delores Smith who lived in Virginia.

Appellant testified that her sporadic stays in Allentown with her mother prior to the 1962 separation were the result of appellee's refusal to transport her back home rather than her preference for living with her mother. She asserted that appellee constantly accused her of infidelity without any reasonable basis for such charges. She admitted calling appellee before the Board of Deacons on two separate occasions, but claimed that she did this in order to heal a festering sore in the church community stemming from rumors of her husband's infidelity.

In 1968, appellee requested that appellant return to the marital abode and she complied. From 1968, to July 1973, the parties engaged in sexual relations on the average of 2-3 times a month. During this period, appellee deserted appellant on numerous occasions for periods ranging from one to two weeks. She testified that she had been a good wife and mother, but she wondered if she had been partially at fault in causing the marital breakdown. She admitted that she was jealous of appellee.

[ 252 Pa. Super. Page 127]

When questioned on cross-examination, both parties denied each other's allegations and countercharges. Neither side presented corroborative testimony or documentary evidence with the exception of one letter allegedly demonstrating appellee's infidelity. The master chose to believe appellee rather than appellant and, consequently recommended that the lower court grant a divorce a. v. m. On March 31, 1976, the lower court dismissed appellant's exceptions to the master's report and entered a decree of divorce a. v. m. This appeal followed.

Appellant first contends that the lower court erred in accepting the master's recommendation because his report erroneously credited appellee's testimony and because the master never specifically found that appellant's testimony was not believable. In Gehris v. Gehris, 233 Pa. Super. 144, 148, 334 A.2d 753, 755 (1975), we articulated the legal guidelines controlling our review of this contention:

"The law is clear that when a divorce matter is heard by a judge sitting without a jury, this Court must make a complete and independent review of the record of the proceedings below. Eifert v. Eifert, 219 Pa. Super. 373, 281 A.2d 657 (1971). The Court's review extends even to matters of credibility. Del Vecchio v. Del Vecchio, 169 Pa. Super. 617, 84 A.2d 261 (1951). The Court must 'examin[e] the record to discover inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias and interest, opposition to incontrovertible physical facts, patent falsehoods. . . .' 12 P.L.E. § 143 Divorce; see also, Faszczewski v. Faszczewski, 182 Pa. Super. 295, 126 A.2d 773 (1956); Rankin v. Rankin, 181 Pa. Super. 414, 124 A.2d 639 (1956). The 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

[ 252 Pa. Super. Page 128]

    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. See, Rankin, supra; Uhlinger v. Uhlinger, 169 Pa. Super. 574, 83 A.2d 423 (1951); . . . ."

We reiterated this approach in Dougherty v. Dougherty, 235 Pa. Super. 122, 127, 339 A.2d 81, 84 (1975), and added that: "[A] master is not required to state specifically why he or she credits some testimony, but not other testimony. Particularly in a case such as this which amounts to little more than 'a swearing contest,' implied in the master's findings is the fact that he found one witness credible, while rejecting the contentions of the other."

In the instant case, only two witnesses testified: appellant and appellee. In his report, the master, after a searching analysis of the evidence presented,*fn2 concluded that the testimony of the two parties was irreconcilable, and because neither party presented corroborating witnesses or evidence, his assessment of the parties' credibility governed the case. In short, the master properly found that the instant case amounted to a "swearing contest."*fn3 He stated that appellant

[ 252 Pa. Super. Page 129]

    appeared reluctant to answer several questions,*fn4 that she contradicted herself often,*fn5 and that her testimony was ambiguous and confusing, especially with reference to dates, times, and places.*fn6 By contrast, the master found appellee to be a convincing and credible witness who presented his testimony in an honest and straightforward manner. Our independent review of the record supports the master and the lower court insofar as each credited the husband's testimony and discredited the wife's testimony because of contradictions and inconsistencies. See Dougherty v. Dougherty, supra; Gehris v. Gehris, supra.

Appellant next contends that appellee failed to establish sufficient indignities to his person to justify the granting of a divorce decree a. v. m. Section 10(f) of the Pennsylvania Divorce Law, supra, provides inter alia that: ". . . [I]t shall be lawful for the innocent and injured spouse to obtain a divorce from the bond of matrimony, whenever it shall be judged, . . . that the other spouse: . . . [s]hall have offered such indignities to the person of the injured and innocent spouse, as to render his or her condition intolerable and life burdensome." While our appellate courts have been reluctant to formulate a general definition of what constitutes "indignities," we have noted that indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility,

[ 252 Pa. Super. Page 130]

    manifest disdain, abusive language, or malignant ridicule. Gehris v. Gehris, supra, 233 Pa. Super. at 147-48, 334 A.2d at 754-755. See also McKrell v. McKrell, 352 Pa. 173, 42 A.2d 609 (1945); Sells v. Sells, 228 Pa. Super. 331, 323 A.2d 20 (1974); Fodor v. Fodor, 221 Pa. Super. 321, 292 A.2d 485 (1972); Gerenbeck v. Gerenbeck, 199 Pa. Super. 410, 186 A.2d 49 (1962). We believe that appellee introduced sufficient evidence to establish the perpetration of indignities by his wife. Appellee testified that appellant began to belittle him incessantly shortly after his marriage. Appellant constantly accused him of infidelity, called him names and argued with him. She would spend weeks at her mother's home without warning appellee of her intentions in advance or heeding appellee's pleas to return. This conduct humiliated appellee and made him nervous; it also resulted in rumors and suspicions which adversely affected appellee's position as a minister. Appellant even brought appellee before his church's Board of Deacons on two separate occasions on charges of infidelity. Appellant left appellee in 1962 and remained away until 1968 when she suddenly returned. In 1973, appellant left again, and the parties have not lived together since that time. Despite appellee's efforts to reconcile the parties' differences, the marriage failed. Appellee's testimony, credited by the master and the lower court, establishes that appellant's conduct made appellee's condition intolerable and life burdensome and caused the disintegration of the parties' marriage. Griffie v. Griffie, 220 Pa. Super. 461, 289 A.2d 198 (1972).

[ 252 Pa. Super. Page 131]

Appellant next asserts that appellee could not rely upon his uncorroborated testimony to establish indignities because appellant's testimony contradicted and shook appellee's testimony. Baxter v. Baxter, 192 Pa. Super. 62, 159 A.2d 533 (1960). In Schrock v. Schrock, 241 Pa. Super. 53, 60, 359 A.2d 435, 439 (1976), our Court stated that: "[A] divorce may be granted upon the uncorroborated testimony of the plaintiff unless, of course, that testimony 'is not only contradicted but shaken by the defendant.'" See also Regan v. Regan, 227 Pa. Super. 552, 322 A.2d 711 (1974); Hanna v. Page 131} Hanna, 195 Pa. Super. 309, 171 A.2d 646 (1961); D'Alessandro v. D'Alessandro, 187 Pa. Super. 194, 144 A.2d 445 (1958); Hansell v. Hansell, 182 Pa. Super. 158, 126 A.2d 509 (1956); Miln v. Miln, 175 Pa. Super. 613, 106 A.2d 862 (1954); Frantz v. Frantz, 134 Pa. Super. 48, 3 A.2d 987 (1939); Freedman, Law of Marriage and Divorce in Pennsylvania, § 744 at 1385. (2nd Ed.1957). We believe that appellant's testimony contradicted but did not "shake" appellee's testimony. The master chose to believe appellee's testimony and found appellant to be an evasive, contradictory and confusing witness. The record supports the master's assessment of the competing testimony. As we observed in Schrock v. Schrock, supra, a party's testimony is not "shaken" merely because his or her spouse denies the damaging parts. See also Arcure v. Arcure, 219 Pa. Super. 415, 281 A.2d 694 (1971). D'Alessandro v. D'Alessandro, supra; Hansell v. Hansell, supra; Miln v. Miln, supra; Freedman, supra, § 758 at 1395-96.*fn7

Appellant next argues that the master and the lower court erred in relying upon events after the 1962 separation and after the filing of the divorce complaint in December, 1966, in finding that appellee had established grounds of indignities. Appellant did not object to the admission of this testimony at the master's hearing. Moreover, we have stated that: "Evidence of what occurred after the separation and filing of the libel [is] relevant for the purpose of shedding light upon the nature of the atmosphere

[ 252 Pa. Super. Page 132]

    existing while the parties lived together, and discloses a continuation of the humiliation and incivility to which libellant had been subjected from the beginning of his married life." Martin v. Martin, 157 Pa. Super. 538, 542-43, 43 A.2d 637, 640 (1945). See also Schrock v. Schrock, supra; Boyer v. Boyer, 183 Pa. Super. 260, 130 A.2d 265 (1957); Glick v. Glick, 170 Pa. Super. 142, 84 A.2d 248 (1951). We believe that all of this testimony was properly received by the master and that there was sufficient evidence of occurrences constituting indignities prior to the separation, to justify the granting of a divorce decree.

Appellant next contends that appellee delayed too long in instituting and proceeding with this divorce action. In Regan v. Regan, supra, 227 Pa. Super. at 554, 322 A.2d at 713, we said: "There is no general statute of limitations applicable to divorce actions and generally mere delay in bringing a divorce action is not a ground for denial of the relief sought. Larsen v. Larsen, 184 Pa. Super. 221, 132 A.2d 883 (1957). However, long delay in bringing a divorce action after separation casts doubt on the good faith of the plaintiff. Orme v. Orme, 177 Pa. Super. 209, 110 A.2d 870 (1955)." See also Campbell v. Campbell, 205 Pa. Super. 207, 208 A.2d 36 (1965); Walper v. Walper, 198 Pa. Super. 409, 182 A.2d 209 (1962); Gillen v. Gillen, 195 Pa. Super. 60, 169 A.2d 340 (1961). In the instant case, however, the lower court, endorsing the findings of the master, found that: "[A]ppellee made repeated attempts to resolve the problems with his wife and to have her return to live with him. He displayed extreme patience in dealing with his wife and only decided to proceed with this action after it became perfectly obvious that the marriage could not be saved. This enhances [appellee's] good faith. If the delay in the proceeding is to be blamed upon anyone, it was [appellant] who caused the delay by her frequent false reconciliations, which led [appellee] to believe that he might be able to change her behavior." We will honor the conclusion of the master and the lower court that appellee acted in good faith in proceeding with this action and we will not penalize appellee for earnestly attempting to save his marriage.

[ 252 Pa. Super. Page 133]

Finally, appellant contends that appellee's ostensible reconciliation with her from 1968 to 1973 conclusively established that her conduct did not render appellee's condition intolerable and his life burdensome. However, as noted by the lower court, reconciliation is not a complete defense to an action for divorce on the grounds of indignities. Instead, it is merely a factor to consider in evaluating the severity of a defendant's conduct. Moyer v. Moyer, 181 Pa. Super. 400, 124 A.2d 632 (1956); Hahne v. Hahne, 168 Pa. Super. 324, 77 A.2d 682 (1951). In the case at bar, while the parties did reside together between 1968, and 1973, the master and the lower court accepted appellee's testimony that he and his wife slept in separate bedrooms, ate meals separately and continued to argue. We agree with the lower court that the mere fact that the parties lived together from 1968-1973 does not compel us to find that appellant's behavior did not make appellee's life intolerable.

Because we conclude that appellant presents no meritorious contentions, we affirm the decree of the lower court granting a divorce a. v. m. in favor of appellee.

The decree in divorce a. v. m. is affirmed.

SPAETH, Judge, dissenting:

Many cases say that when the testimony in a divorce case has been heard by a master, this court must review the testimony "de novo" while at the same time giving the master's findings on credibility "the fullest consideration." This sounds like an instruction to write one's solution to a problem on a clean blackboard without erasing the solution already written there by some one else. Accordingly, in Coxe v. Coxe, 246 Pa. Super. 231, 369 A.2d 1297 (1976), I collected the cases and concluded that one could make some sense of them by adopting the following rule:

[ 252 Pa. Super. Page 134]

If we do not take "de novo" too literally, and if we make an earnest effort to give the master's findings on credibility "the fullest consideration", I think that at least in most cases we shall not miss the mark by much. If in a given case we conclude to reject the master's findings, we should explain in detail the basis of our rejection. Thereby we shall avoid, at least as much as possible, the danger of making an arbitrary decision.

Id. 246 Pa. Super. at 255, 369 A.2d at 1309 (dissenting opinion).

I propose to apply this rule here, first considering the master's findings and then reviewing the testimony "de novo." This done, it will be in order to discuss what is the most appropriate remedy.

1: The Master's Findings

The majority characterizes the master's report as "a searching analysis." Majority opinion at 128. My own appraisal is not so generous. After giving the master's findings the fullest consideration, I have concluded that they should be rejected. I shall explain the basis of this rejection by discussing in detail three particular aspects of the master's report.

-a-

When one compares the master's report with the record, one finds important instances in which the master quotes the wife's testimony out of context. Sometimes, indeed, the master seems to state his findings as though he were not the lower court's surrogate but the husband's advocate. One result is that the report gives quite a misleading impression of the wife's testimony.

In Finding 38 of his report the master says:

38. Defendant admitted stating to Plaintiff that "if you feel that way, Jerry, why don't you step completely out of my life." (N.T. 64.)

Record 180a.

[ 252 Pa. Super. Page 135]

This implies that the wife admitted that she sought a divorce. In fact she said that it was her husband who wanted to come and go as he pleased, and that it was he who sought a divorce:

Q. Either way. On August 10th, what was the reason that you came back to Pawnee Street?

A. I returned because Mr. Hargrove had been continually asking me to return. And, I had decided at one time to return and then I changed my mind because Mr. Hargrove had called me and he said to me that I had been used to doing what I wanted to do and he had been used to coming and going as he wanted to do. And, he said he thought at this point we should get a divorce. I asked him then, I said, "if you feel that way, Jerry, why don't you step completely out of my life."

Record 69a.

In Finding 39 of his report the master says:

39. Defendant admitted living at the parsonage off and on until 1963. (N.T. 83.)

Record 180a.

This implies that the wife admitted that she would leave the parsonage improperly. Her testimony was:

Q. So you were living at the parsonage off and on until 1963?

A. Yes, I was. Yes, I was because at that time when my mother took ill I asked my husband his permission to go to my mother, and he gave me his permission ...


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