No. 467 April Term 1977, Appeal from the Order of the Court of Common Pleas of Beaver County, Civil Action Law, Beaver, Pa., No. 536 of 1975 (Domestic Relations).
Albert J. Jones, Aliquippa, for appellant.
Arthur S. Herskovitz, Aliquippa, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 50]
This case arises on a husband's petition asking that his obligation to support his wife be terminated. The lower court granted the petition on the basis that the wife's "friendship" with another man constituted "indignities." This was error.
It is well established that the obligation of support terminates when it is shown that the conduct of the financially dependent spouse provides a ground for divorce. Commonwealth ex rel. Young v. Young, 213 Pa. Super. 515, 247 A.2d 659 (1968), allocatur refused; Commonwealth ex rel. Brobst v. Brobst, 173 Pa. Super. 171, 96 A.2d 194 (1953); Commonwealth (ex rel., Appellant) v. Crabb, 119 Pa. Super. 209, 180 A. 902 (1935). Here, as indicated, the lower court held that the wife's conduct did provide a ground for divorce in that it constituted "indignities." Various cases have defined "indignities" in various, and sometimes inconsistent, ways. In Steinke v. Steinke, 238 Pa. Super. 74, 357 A.2d 674 (1975), this writer had occasion to collect the cases, and concluded that
the "essential feature" of a charge of indignities, Phipps v. Phipps, 368 Pa. 291, 81 A.2d 523 (1951), cert. denied, 342 U.S. 942, 72 S.Ct. 554, 96 L.Ed. 701, is a "course of conduct" that will depend "largely upon the circumstances of each case" but that in every case must be "inconsistent with the position and relation as a spouse," McKrell v. McKrell, 352 Pa. 173, 42 A.2d 609 (1945), and render the condition of the injured and innocent spouse "intolerable" and his or her life "burdensome," Act of May 2, 1929, [P.L. 1237, § 10, as amended by the Act of March 19, 1943, P.L. 21, § 1], 23 P.S. § 10.
[ 255 Pa. Super. Page 51]
"Kaufman's." Over an hour later, Mr. Gerace drove into the parking lot. In his car were Mrs. Narbesky and her daughter. N.T. 24. Mrs. Gerace also stated that "they were sitting almost on top of each other." N.T. 26.*fn1
Mrs. Narbesky admitted that she had been with Mr. Gerace in Kaufman's parking lot on Easter Sunday. She explained her relationship with Mr. Gerace as follows: She first met Mr. Gerace and his daughter at weekend football games in which Mrs. Narbesky's child and Mr. Gerace's grandchildren played. When Mr. Gerace's daughter became ill, she went to her house almost every day to take care of her and her children; Mr. Gerace was also there. Some time later Mrs. Narbesky became aware that her son "had been on dope." She called Mr. Gerace, who had been a township commissioner, for advice.*fn2 He agreed to talk to her and said
[ 255 Pa. Super. Page 53]
that he had various newspaper clippings on the subject. When she drove to Kaufman's parking lot with her daughter it was to meet Mr. Gerace there to discuss the problem. (She said she did not seek her husband's advice because he had proved unhelpful in the past, and had in fact told their son that he did not have to listen to his mother.) After the meeting at Kaufman's, she continued to call Mr. Gerace for advice and he dropped by the house, sometimes several times a ...