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THOMAS A. VAJDA v. HYE KYONG VAJDA A/K/A MARGARET VAJDA (01/16/85)

filed: January 16, 1985.

THOMAS A. VAJDA
v.
HYE KYONG VAJDA A/K/A MARGARET VAJDA, APPELLANT



No. 00116 Philadelphia 1984, APPEAL FROM THE ORDER ENTERED NOVEMBER 16, 1983 IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY, CIVIL NO. 4438-C OF 1981

COUNSEL

Thomas M. Marsilio, Hazleton, for appellant.

Richard J. Marusak, Hazleton, for appellee.

Cavanaugh, Cirillo and Johnson, JJ.

Author: Cirillo

[ 337 Pa. Super. Page 575]

This is an appeal from the final decree of divorce and equitable distribution of marital property entered by the Court of Common Pleas of Luzerne County. We affirm.

In November, 1981, appellee instituted this action requesting a divorce on the ground of indignities*fn1 as well as equitable distribution of marital property*fn2 and custody of the parties' children. A master was appointed to decide the issues of divorce and equitable distribution. Hearings were held, and the master submitted a report recommending that a divorce be granted to appellee, and containing certain recommendations regarding equitable distribution. Both parties filed exceptions to the report. The trial court remanded the case to the master for a determination of counsel fees. Exceptions were filed with respect to the second master's report. Following consideration of the parties' exceptions, the trial court entered a decree of divorce in favor of appellee and ordered certain equitable distribution of the marital property. This appeal followed.

The first issues we must address are whether the trial court abused its discretion in upholding the master's recommendation characterizing appellee as an injured and innocent spouse, and in granting a final decree of divorce. Our scope of review is both broad and restrictive.

[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).

[ 337 Pa. Super. Page 576]

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 . . . 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 . . . . Moreover, several of these factors "may coalesce to justify a finding of indignities, although taken separately, no single incident or factor would be sufficient." . . . Finally, it should be noted that in the present case, the burden of proving indignities was on the husband as the party seeking the divorce . . . and that the husband was required to prove that he was an innocent and injured spouse . . . .

Id., 275 Pa. Super. 573, at 576-77, 419 A.2d at 51 (citations omitted). See also McKrell v. McKrell, 352 Pa. 173, 42 A.2d 609 (1945); Beaver v. Beaver, 313 Pa. Super. 512, 460 A.2d 305 (1983); Rorabaugh v. Rorabaugh, supra; Barton v. Barton, 248 Pa. Super. 278, 375 A.2d 96 (1977); Schrock v. Schrock, supra. As to the characterization of a party as an "innocent and injured spouse," we have repeatedly stated that for purposes of divorce, one need not be totally free from fault; if, however, there is nearly equal contribution by the parties to the marital discord, a divorce will not be granted to either spouse. See e.g., Liebendorfer v. Liebendorfer, 289 Pa. Super. 339, 433 A.2d 480 (1981); Rollman v. Rollman, supra; Dukmen v. Dukmen, 278 Pa. Super. 530, 420 A.2d 667 (1980); Moorhead v. Moorhead, 278 Pa. Super. 275, 420 A.2d 537 (1980); Keller v. Keller, supra.

Turning to the case at bar, the master's findings of fact, adopted by the trial court, may be briefly summarized: throughout the entire marriage, appellant constantly complained about appellee's earnings, despite the fact that appellee maintained a good job; appellant, who ...


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