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RICHARD G. GROSS v. HELEN A. GROSS (08/22/80)

filed: August 22, 1980.

RICHARD G. GROSS, APPELLANT,
v.
HELEN A. GROSS



No. 881 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, at No. 129 October Term, 1979, Family Division.

COUNSEL

Edgar J. Cooke, Bellevue, for appellant.

Robert A. Banks, Ambridge, for appellee.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 281 Pa. Super. Page 47]

This is an appeal from an order denying appellant-husband a divorce based upon indignities to the person.*fn1

On July 11, 1977, the husband filed a complaint for a divorce, alleging indignities. On October 17, he filed an amended complaint that alleged desertion in addition to indignities. The lower court appointed a master, who held a hearing on July 28, 1978. On May 14, 1979, the master filed a report recommending that the husband be granted a divorce on the grounds of indignities. On September 4, the lower court sustained the wife's exceptions to the master's report and denied the husband a divorce. He has now brought this appeal.

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

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).

[ 281 Pa. Super. Page 48]

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, 85-87, 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 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 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 July 20, 1957, in Ambridge, Pennsylvania, and have two children, twin girls, Joyce and Janet, born on April 25, 1962. The marriage was troubled from the outset. The parties lived with the wife's father and her daughter from an earlier ...


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