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LEONARD S. KELLER v. ROCHELLE M. KELLER (02/15/80)

filed: February 15, 1980.

LEONARD S. KELLER
v.
ROCHELLE M. KELLER, APPELLANT



No. 527, 528, 529, 2581 (Consolidated) October Term, 1978, Appeal from Orders in the Court of Common Pleas of Montgomery County, Civil Division, No. 77 - 4851. 2295-77.

COUNSEL

Louis Lipschitz, Philadelphia, for appellant.

Jack A. Rounick, Norristown, for appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Spaeth

[ 275 Pa. Super. Page 575]

This is an appeal from two orders, one granting appellee-husband a divorce based upon indignities to the person,*fn1 and the other denying appellant-wife support.

[ 275 Pa. Super. Page 576]

On March 18, 1977, the husband filed a complaint for divorce, alleging indignities and including a separate count requesting that the court find that the wife was not entitled to support. The court appointed a master, and hearings were held on June 3 and 6, July 21 and 22, and August 18 and 19, 1977. When the master ruled that he could not hear testimony on the support issue, the wife filed a petition for support; after the master's hearings, she filed a petition for alimony pendente lite, counsel fees, and expenses. On December 14, Judge CIRILLO, sua sponte, consolidated the petition for support with the divorce action, and the next day, without a hearing, he ruled that the wife was not entitled to support. On September 27, 1978, Judge VOGEL entered a decree granting the husband a divorce based on indignities.

-1-

On an appeal from a divorce decree, we are obliged to make an independent review of the record. Barr v. Barr, 232 Pa. Super. 9, 331 A.2d 774 (1974); Nacrelli v. Nacrelli, 288 Pa. 1, 136 A. 228 (1927). However, "[a] report of a master, who has had the advantage of seeing and hearing the parties and their witnesses, is, nevertheless, to be given fullest consideration." Vautier v. Vautier, 138 Pa. Super. 366, 367, 11 A.2d 207, 208 (1939). See also Lyons v. Lyons, 116 Pa. Super..385, 176 A.2d 792 (1935).

To make out a charge of indignities, three elements must be proved: (1) a course of conduct that, although varying according to the circumstances of each case, must in every case (2) be inconsistent with the marital relationship, and (3) render the condition of the innocent party intolerable and his or her life burdensome. Steinke v. Steinke, 238 Pa. Super. 74, 87, 357 A.2d 674, 680-81 (1976) (SPAETH, J., concurring) (collecting cases). Although no general rule can be formulated as to what constitutes indignities in a particular case, the matter being one that depends upon all the circumstances of the particular case and the position in life, character, and disposition of the parties, Margolis v. Margolis, 201 Pa. Super. 129, 133, 192 A.2d 228, 230 (1963), our cases

[ 275 Pa. Super. Page 577]

    hold that proof of "vulgarities, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, or malignant ridicule" may be sufficient to make out a case for divorce based on indignities. Barton v. Barton, 248 Pa. Super. 278, 283, 375 A.2d 96, 98 (1977). See also Bristol v. Baranyi, 259 Pa. Super. 418, 393 A.2d 897 (1978). Moreover, several of these factors "may coalesce to justify a finding of indignities, although taken separately, no single incident or factor would be sufficient." Barton v. Barton, supra, 248 Pa. Super. at 283, 375 A.2d at 98. Finally, it should be noted that in the present case, the burden of proving indignities was on the husband as the party seeking the divorce, Mintz v. Mintz, 258 Pa. Super. 187, 392 A.2d 747 (1978); Taddigs v. Taddigs, 200 Pa. Super. 29, 186 A.2d 455 (1962), and that the husband was required to prove that he was an innocent and injured spouse, Mintz v. Mintz, supra.

Among the master's findings were the following. The parties were married on March 1, 1959 in New York City. After living in New York for approximately one and one-half years, they moved to Plymouth Meeting in Montgomery County, Pennsylvania. The parties have two children: Scott, born December 17, 1960, and Bruce, born January 4, 1963. The family lived together in Montgomery County until March 18, 1977, when the husband and Scott moved out. The master does not identify any beginning of the parties' marital problems; rather he points to several actions on the part of the wife as showing indignities on her part. In summary, the master found that the wife had intentionally tried to isolate the children from their father; that she knowingly permitted the virtual exclusion of the father from Bruce's Bar Mitzvah pictures; that she eliminated the husband's name from the program book at Scott's religious confirmation; that she made a comment to her husband that she would abandon him if he had a stroke; that she acted disrespectfully toward her husband and his family when her husband's mother died; that she hired an architect to make changes to their house without his approval; that she frequently

[ 275 Pa. Super. Page 578]

    berated him before his family and friends; and finally, that she engaged in a campaign of harassment against him within their home. Many of these findings turned on the master's opinion that the husband and his several supporting witnesses presented a more credible version of the marriage than the wife and her one supporting witness.*fn2

After examining the master's findings in the context of the entire record, as we have independently reviewed it, we have concluded that the husband has proved that he is entitled to a divorce. This is a difficult conclusion because the master's findings are somewhat misleading and incomplete; nevertheless, the record supports certain key findings, and persuades us to affirm the lower court's decree.

The relationship between the parties appears to have had little life for many years prior to the divorce. Both husband and wife agreed that by 1971 or so it had become apparent that they ...


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