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LILLIAN A. BRITTON v. HARRY ROBERT BRITTON (07/25/80)

filed: July 25, 1980.

LILLIAN A. BRITTON
v.
HARRY ROBERT BRITTON, JR., APPELLANT



No. 67 April Term 1979, Appeal from the Order of the Court of Common Pleas of Erie County, Civil Division at No. 797-A-1978.

COUNSEL

Harry R. Britton, Jr., appellant, in pro. per.

James D. McDonald Jr., Erie, for appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 280 Pa. Super. Page 88]

This is an appeal from an order granting a divorce on the grounds of indignities and desertion.*fn1

On February 24, 1978, the wife filed a complaint for divorce, alleging indignities and desertion. The lower court appointed a master, who held a hearing on April 20. On April 26, the master filed a report recommending that the wife be granted a divorce on both of the alleged grounds. On November 28, the lower court dismissed the husband's exceptions to the master's report, stating that "[t]he Court cannot conceive of a woman who more richly deserves a divorce than Lillian A. Britton." On December 22, the lower court entered a final decree of divorce, and the husband brought this appeal.

In Keller v. Keller, 275 Pa. Super. 573, 419 A.2d 49, (1980), this court stated:

[ 280 Pa. Super. Page 89]

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. 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, 85, 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 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.3d at 98. Finally, it should be noted that . . . 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

[ 280 Pa. Super. Page 90]

    prove that he was an innocent and injured spouse, ...


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