No. 1114 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Civil Action - Law, of Berks County, at No. 336 October Term, 1975.
William Runyeon, Reading, for appellant.
Lynn E. Stock, Reading, for appellee.
Price, Hoffman and Watkins, JJ. Price, J., notes dissent.
[ 280 Pa. Super. Page 348]
This is an appeal by the appellant-husband, Donald H. Rollman, from the order of the Court of Common Pleas of Bucks County, Civil Division, dismissing appellant's complaint in divorce.
Plaintiff and defendant, husband and wife, were married on September 19, 1959, in Reading, Pennsylvania. After each of the parties had filed and subsequently withdrawn several divorce actions against each other, the plaintiff-husband initiated the instant divorce action against his wife on September 30, 1975. In his divorce complaint plaintiff alleged indignities to the person as grounds for his divorce. Defendant-wife contested the divorce action and extensive masters' hearings were held thereon. On September 22, 1978 the Master filed his report with the court recommending that plaintiff be granted the divorce. Defendant filed exceptions to the Master's Report and, after argument thereon, the Court of Common Pleas sustained two of defendant's exceptions to the report and dismissed the plaintiff's Complaint via an order dated May 8, 1979. Plaintiff now appeals the lower court's May 8, 1979 Order.
The testimony produced by plaintiff at the various Master's Hearings, and accepted as credible by the Master, indicated that defendant had verbally abused the plaintiff over a long period of time, had referred to him as a "nigger lover", "son-of-a-bitch", "whore lover" and other vile names, had refused to engage in sexual relations with the plaintiff for five months prior to their separation, had embarrassed the plaintiff in front of their relatives and friends, on numerous occasions, and had physically abused the plaintiff on several occasions. The Master found that this conduct on defendant's part amounted to indignities to the person, that plaintiff did nothing to justify defendant's conduct, and that therefore plaintiff was the injured and innocent spouse and was entitled to a divorce. The court below, in refusing to accept the Master's recommendation, held that the "plaintiff's credible evidence although somewhat weak, is sufficient to sustain the Master's conclusion
[ 280 Pa. Super. Page 349]
that defendant did commit indignities to the person of the plaintiff" but also held that plaintiff was not an "injured and innocent spouse" and therefore was not entitled to the divorce.
While no general rule can be formulated as to what constitutes indignities in a particular action for divorce it has been held many times that vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule and any other plain manifestation of settled hate and estrangement are sufficient grounds for divorce as they, either individually or collectively, amount to indignities to the person. Schrock v. Schrock, 241 Pa. Super. 53, 359 A.2d 435 (1976). We agree with the Master and the court below both of whom held that the above-described conduct of the defendant did constitute indignities to the person of the plaintiff as it made his life burdensome and his condition intolerable. The issue is whether the court below was correct in denying the divorce because the plaintiff's conduct was such that he was not an injured and innocent spouse.
If both parties to a divorce action are nearly equally at fault so that neither party can clearly be found to be the injured and innocent spouse, a divorce will not be granted to either of them. Mintz v. Mintz, 258 Pa. Super. 187, 392 A.2d 747 (1978). However, to be the injured and innocent spouse, for purposes of a divorce, a party need not be totally free from fault. Rensch v. Rensch, 252 Pa. Super. 294, 381 A.2d 925 (1977). This is especially so in a situation where the conduct of the party seeking the divorce was provoked by the other spouse. Rhinehart v. Rhinehart, 197 Pa. Super. 558, 180 A.2d 82 (1962).
The court below found that plaintiff's conduct was such that he could not be said to be the injured and innocent spouse because evidence was produced at the Master's Hearing tending to show that he would go out drinking on the average of once every other week and that his drinking became a major problem in their ...