NO. 2564 OCTOBER TERM, 1978, Civil Action Law--Appeal from Order of the Court of Common Pleas, Lancaster County Entered September 13, 1978, at No. 142, December Term, 1973, Action in Divorce
Louise G. Herr, Lancaster, for appellant.
John W. Burge, Lancaster, for appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
Appellant, ("Husband") appeals from an order of the lower court sustaining Appellee's ("Wife") exceptions to the report of a Master in Divorce and denying Appellant a Decree in Divorce upon the ground of indignities to the person.*fn1 The Master recommended in her report that a Decree of Divorce be granted the husband, but the lower court refused to adopt such recommendation upon finding that husband was not an injured and innocent spouse by reason of indignities committed by him.
Husband contends on appeal that the lower court erred in failing to accord appropriate weight to the findings of the Master with regard to the credibility of the witnesses who appeared before the Master.
Before we address Husband's contention, we reiterate our scope of review, and as we stated in Brown v. Brown, 288 Pa. Super 354, 356, 431 A.2d 1085, 1086 (1981), (quoting from Schrock v. Schrock, 241 Pa. Super. 53, 57-8, 359 A.2d 435, 437-8 (1976)):
"'. . . we must initially note that it is our duty, on appeal, to make an independent study of the record and to determine whether a legal cause of action for divorce exists. Barr v. Barr, 232 Pa. Super. 9, 331 A.2d 774 (1974); Arcure v. Arcure, 219 Pa. Super. 415, 281 A.2d 694 (1971). Moreover, while the master's findings of fact and recommendation that a divorce be granted are only advisory, where the issue is one of credibility and the master is the one who heard and observed the witness, his findings should be given the fullest consideration. Gehris v. Gehris, 233 Pa. Super. 144,
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A.2d 753 (1975); Sells v. Sells, 228 Pa. Super. 331, 323 A.2d 20 (1974).'"
And see, Gross v. Gross, 281 Pa. Super. 45, 47, 421 A.2d 1139, 1140 (1980) (quoting from Keller v. Keller, 275 Pa. Super. 573, 419 A.2d 49 (1980)); Britton v. Britton, 280 Pa. Super. 87, 421 A.2d 417 (1980).
As the lower court found that Husband committed indignities as well, we should also again observe that no general rule can be formulated as to the precise nature of the conduct that will constitute indignities to the person in a given case, as such conclusion will depend upon the circumstances of that particular case. Brown v. Brown, supra, 288 Pa. Super. at 356-7, 431 A.2d at 1086 (quoting from Schrock v. Schrock, supra, 241 Pa. Super. at 58, 359 A.2d at 437-8, which in turn quoted from Sells v. Sells, 228 Pa. Super. 331, 333-34, 323 A.2d 20, 22 (1974)); Shuda v. Shuda, 283 Pa. Super. 253, 423 A.2d 1242 (1980); Keller v. Keller, supra; Rollman v. Rollman, 280 Pa. Super. 344, 421 A.2d 755 (1980).
As no strict test thus applies, the Supreme Court has delineated a framework of conduct within which we may determine whether indignities are present:
"'Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement'" McKrell v. McKrell, 352 Pa. 173, 180, 42 A.2d 609, 612 (1945) (quoting from Evans v. Evans, 152 Pa. Super. 257, 262, 31 A.2d 590, 592 (1943)).
The McKrell court also said:
"The essential feature of the offense of indignities to the person is that it must consist of a course of conduct or continued treatment which renders the condition of the innocent party intolerable and his or her life burdensome . . . [citations omitted] . . . What is meant by such indignities is left undefined in the law, and depends largely upon the circumstances of each case; they must consist of such a ...