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JACK A. BEAVER v. HILMA BEAVER (02/10/83)

submitted: February 10, 1983.

JACK A. BEAVER
v.
HILMA BEAVER, APPELLANT



No. 3348 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Columbia County, Civil Division, at No. 1715 of 1979

COUNSEL

William S. Kreisher, Bloomsburg, for appellant.

John M. Kuchka, Bloomsburg, for appellee.

Brosky, Cirillo and Lipez, JJ.

Author: Brosky

[ 313 Pa. Super. Page 515]

This appeal follows the granting of a divorce to appellee, husband. The action was brought pursuant to the 1929 Divorce Law*fn1 and was based on appellee's allegations that his wife subjected him to indignities that rendered his condition intolerable and life burdensome. On appeal, Mrs. Beaver contends that her husband sustained neither his burden of proving that she had subjected him to indignities, nor his burden of showing that he was the injured and innocent spouse. For the reasons that follow, we reverse.

Initially, we must examine what is our scope of review. In Schrock v. Schrock, 241 Pa. Super. 53, 57-58, 359 A.2d 435, 437-438 (1976), we explained:

[I]t 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, 334 A.2d 753 (1975); Sells v. Sells, 228 Pa. Super. 331, 323 A.2d 20 (1974). Thus, in a case such as this, '[i]f the ultimate decision rests on a statement asserted by one party and denied by the other, where there is no corroborative

[ 313 Pa. Super. Page 516]

    evidence, demeanor on the stand is necessarily dispositive of the issue and is the kind of evidence that cannot effectively be reviewed by an appellate court. (citations omitted).' Gehris v. Gehris, supra, 233 Pa. Super. at 148, 334 A.2d at 755.

Furthermore, as to the burden of proof placed on appellant, we note the following principles.

Appellate courts have not formulated a single definition of indignities. We explained in Barton v. Barton, 248 Pa. Super. 278, 283, 375 A.2d 96, 98 (1977):

[I]ndignities may consist of vulgarities, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, or malignant ridicule. Gehris v. Gehris, supra, 233 Pa. Super. at 147-48, 334 A.2d at 754-755. See also, McKrell v. McKrell, 352 Pa. 173, 42 A.2d 609 (1945); Sells v. Sells, 228 Pa. Super. 331, 323 A.2d 20 (1974); Fodor v. Fodor, 221 Pa. Super. 321, 292 A.2d 485 (1972); Gerenback v. Gerenback, 199 Pa. Super. 410, 186 A.2d 49 (1962). Obviously, several of the factors listed above may coalesce to justify a finding of indignities, although taken separately, no single incident or factor would be sufficient. See Gehris v. Gehris, supra.

In addition to proving indignities, the moving party must also prove that he or she is the injured and innocent spouse. Rorabaugh v. Rorabaugh, 302 Pa. Super. 1, 448 A.2d 64 (1982). To be innocent and injured, a spouse need not be blameless. Gray v. Gray, 220 Pa. Super. 143, 286 A.2d 684 (1971). The spouse who asserts that he or she is innocent and injured, however, must not provoke the alleged indignities, unless the other spouse's retaliation is excessive. Rensch v. Rensch, 252 Pa. Super. 294, 381 A.2d 925 (1977). It has been said that a finding that the moving ...


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