No. 1366 Pittsburgh, 1983, Appeal from the Order of the Court of Common Pleas of Butler County, Family No. 80-281.
Lee A. Montgomery, Butler, for appellant.
George C. Atwell, Butler, for appellee.
Rowley, Hester and Roberts, JJ.
[ 335 Pa. Super. Page 43]
This is a direct appeal from the final Order of the Court en banc dismissing appellant's exceptions to the trial court's order denying a divorce under Section 201(d) of the Divorce Code, 23 P.S. § 201(d). Section 201(d)(1) provides that a court may grant a unilateral divorce, if it determines, after notice and hearing, that the parties have lived separate and apart for at least three years and that the parties' marriage is irretrievably broken. In this case, the trial court determined that appellant, Robert W. Thomas, was not entitled to a divorce under Section 201(d) because the parties, although separated, had engaged in sexual relations during the three year separation period. Because we find that isolated acts of sexual intercourse during a three year separation period do not necessarily defeat a cause of action in divorce under Section 201(d), we reverse.
On June 2, 1980, Robert Thomas filed a complaint for divorce based upon indignities. On July 22, 1980, appellee, Ruth H. Thomas filed an application to proceed under the new Divorce Code, 23 P.S. §§ 101-801, and her application was granted by the trial court. On December 19, 1980, appellee filed a petition for counseling pursuant to Section
[ 335 Pa. Super. Page 44202]
of the Divorce Code, 23 P.S. § 202(a),*fn1 requesting that the divorce proceedings be delayed 90 days and that the parties be ordered to participate in a maximum of three counseling sessions. The trial court ordered counseling and the parties complied with that order. (N.T., August 15, 1983, p. 19). On May 6, 1983, almost three years after the original complaint in divorce was filed, appellant filed an amended complaint and affidavit pursuant to Section 201(d) alleging that he was entitled to a divorce because the parties' marriage was irretrievably broken and because they had lived separate and apart for three years. On May 20, 1983, appellee filed her counter-affidavit denying that the parties have lived separate and apart for a period of three years. A hearing was then held before the trial court on August 15, 1983.
At the hearing, the testimony indicated that appellant moved out of the residence he shared with his wife on March 1, 1980. Appellant testified that he returned to the marital residence numerous times to visit his son. He stated that he had sexual intercourse with his wife approximately a dozen times during their separation. He testified, however, that his visits with his wife were prompted by the suggestions of the marriage counselor and his wife's threats to curtail his visits with his son. Appellee, Ruth Thomas testified that the parties engaged in sexual intercourse approximately 33 times during the separation period and that it was her feeling that the parties' sexual activities were attempts at making the marriage work. She stated that her husband told her that he was "mixed up" and that he didn't know what to do about the situation. She also stated that she initiated a few of his visits with her. Both parties testified that the last sexual encounter occurred in December of 1982.
On August 22, 1983, the trial court filed a Memorandum Opinion and Order denying a divorce. Appellant's exceptions
[ 335 Pa. Super. Page 45]
to the Order were dismissed by the court en banc and the order denying the divorce was approved on October 17, ...