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NORMAN C. MANBECK v. SHIRLEY R. MANBECK (02/06/85)

filed: February 6, 1985.

NORMAN C. MANBECK
v.
SHIRLEY R. MANBECK, APPELLANT



No. 2263 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Schuylkill County at No. S-673-1980.

COUNSEL

J. Robert Zane, Schuylkill, for appellant.

Maureen E. Hogan, Pottsville, for appellee.

Wickersham, Montemuro and Montgomery, JJ. Montemuro, J., files a concurring and dissenting opinion.

Author: Wickersham

[ 339 Pa. Super. Page 496]

Norman and Shirley Manbeck were married on September 22, 1956. Plaintiff-appellee Norman Manbeck filed a complaint in divorce on May 14, 1980. The complaint alleged a cause of action under section 201(a)(6) of the Divorce Code*fn1 (indignities), and a cause of action under section 205(a)(4) of the Divorce Code*fn2 (impotency of the defendant-appellant Shirley Manbeck). Shirley Manbeck filed an answer containing a counterclaim for indignities under section 201(a)(6). She also filed claims for alimony and counsel fees and requested that the parties' marital property be equitably distributed.

A master was appointed and hearings were held. The master recommended that the court grant an annulment on the ground that appellant was and is impotent. The master found that each party was capable of supporting himself or herself and that each could provide for his or her reasonable needs. Thus, he recommended that no alimony be granted. He also found that the parties should pay their own counsel fees and costs. Each party was granted a one-half (1/2) interest in the marital home and, with one exception, the other marital property was equitably divided.

[ 339 Pa. Super. Page 497]

Appellant filed timely exceptions to the master's report. With the exception of the issue of appellee's pension, the lower court concurred in the findings and recommendations of the master, and dismissed all of appellant's exceptions, except those relating to the distribution of appellee's pension plan.*fn3 In an opinion and order dated July 19, 1982, the Honorable Donald D. Dolbin granted Norman Manbeck an annulment pursuant to section 205(a)(4) of the Divorce Code. Shirley Manbeck's requests for alimony and counsel fees were denied. This appeal timely followed.

Appellant presents a number of issues for our consideration.*fn4 The first issue is stated as follows:

Did the lower Court err in recommending that an annulment be granted on the grounds that wife was naturally and incurably impotent at the time of the marriage?

Brief for Appellant at 3.

To justify the grant of an annulment on the grounds of impotency it must be proven that the impotency is natural and incurable. 23 P.S. ยง 205(a)(4). Appellant concedes that the parties never completed vaginal intercourse during the marriage. She argues, however, that appellee failed to meet his burden of proving that she was "impotent" and that this impotence was "incurable." She also avers that appellee's claim with regard to her alleged impotency is barred by the doctrine of laches.

[ 339 Pa. Super. Page 498]

We will address the laches question first. Generally, mere delay in bringing a divorce action is not a ground for denial of the relief sought. Regan v. Regan, 227 Pa. Super. 552, 322 A.2d 711 (1974). The Regan case noted, however, that long delay in bringing a divorce action after separation, although not grounds for denial in and of itself, casts doubts on the good faith of the plaintiff. We note that in the case sub judice, plaintiff-appellee filed his complaint in divorce on May 14, 1980, almost one month before the parties separated in early June of 1980. Thus, there was no delay in filing the complaint after separation.

In another case discussing the effect of delay in bringing a divorce action, this court stated:

Although it is true that long delay in bringing a divorce action casts doubt on the good faith of the plaintiff, it does not bar a decree where the right to a divorce is otherwise clearly established. Gillen v. Gillen, 195 Pa. Super. 60, 169 A.2d 340 (1961). It only affects the credibility of the plaintiff in the consideration of the finder of the facts.

Campbell v. Campbell, 205 Pa. Super. 207, 211, 208 A.2d 36, 38 (1965). We find that the delay in the instant case goes only to the credibility of the appellee and the weight to be given the evidence; the delay does not create an absolute bar to appellee's cause of action.

Pursuant to the Campbell case, supra, the question then becomes: was appellee's right to an annulment otherwise clearly established. Appellant argues that appellee failed to meet his burden of proving that she was incurably impotent. As previously stated, both parties admit that they never completed vaginal intercourse during the marriage. At the master's hearing on November 10, 1981, appellant presented the testimony of Doctor Harold B. Cooper. The testimony of Dr. Cooper and the written report of Doctor Richard Kleppinger entered into the record indicated that while appellant is physically capable of sexual intercourse, she suffers from a psychological or emotional disorder referred to as a "sexual disfunction." Dr. Cooper

[ 339 Pa. Super. Page 499]

    further testified that a person diagnosed as having a sexual disfunction "would be someone that cannot participate with normal sexual intercourse." N.T., 11-10-81, at 32.

We must first decide whether appellant's "sexual disfunction" is sufficient evidence on which to base a finding of impotence. As the trial court noted, there is little appellate case law in Pennsylvania dealing with the subject of male impotence, and even less with female impotence. In Wilson v. Wilson, 126 Pa. Super. 423, 191 A. 666 (1937), this court held that impotence as a cause for divorce*fn5 means the incapacity for sexual intercourse. We agree with the lower court that this definition includes "incapacity not only resulting from physical malfunction or impairment of the sexual organs, but also incapacity based upon emotional or psychological factors." Lower ct. op. at 5-6. See, Rickards v. Rickards, 3 Storey 134, 53 Del. 134, 166 A.2d 425 (1960); Hiebink v. Hiebink, 56 N.Y.S.2d 394, aff'd, 269 App.Div. 786, 56 N.Y.S.2d 397 (1945). Instantly, appellant's own witness testified that a person diagnosed as having a sexual disfunction would be someone that cannot participate with normal sexual intercourse. We find that appellant's sexual disfunction makes her incapable of normal sexual intercourse and thus is a valid ground for annulment of the parties' marriage.

Appellant next claims that appellee failed to prove that she is "incurably" impotent. It is true that no doctor testified that appellant's condition was incurable. It is also true, however, that there was no testimony that appellant's sexual disfunction was curable.*fn6 Of course, appellee bore

[ 339 Pa. Super. Page 500]

    the burden of proving his wife's "incurability." Since no medical testimony established whether appellant's condition was incurable or not, we must look at the other evidence presented in order to determine whether appellee met his burden of proof.

The majority of appellee's evidence on the annulment ground had to do with the parties' failure to consummate the marriage over a twenty-four (24) year period. Appellee testified that he had attempted to have intercourse with his wife on innumerable occasions. Each attempt was ultimately rebuffed when appellant told her husband that she was tired or didn't feel well.*fn7 Appellant admits that no vaginal intercourse had, in fact, occurred throughout the marriage.

At this point, we find it appropriate to note that there is no appellate case law in Pennsylvania that holds that a presumption of impotence arises where no intercourse has taken place for a given length of time. Some New Jersey cases, on the other hand, have adopted the rule of triennial cohabitation. This rule provides that a presumption of impotence may arise from the wife's remaining a virgin for three (3) years, during which time the parties cohabit. See Bissell v. Bissell, 93 N.J.Eq. 537, 117 A. 252 (1922); Tompkins v. Tompkins, 92 N.J.Eq. 113, 111 A. 599 (1920). See also Heller v. Heller, 116 N.J.Eq. 543, 174 A. 573 (1934) (stating that although incurability may be presumed

[ 339 Pa. Super. Page 501]

    from the establishment of appropriate facts, such as continued cohabitation where the wife is apt yet remains a virgin, a period of two (2) months was wholly inadequate to cause a presumption to arise). While we do not specifically adopt the rule of triennial cohabitation, we feel that the reasoning giving rise to the rule is valid. There are cases in which incurable impotency can be inferred from the facts and circumstances. This is such a case. Instantly, appellant has been diagnosed as having a "sexual disfunction." Appellant admits that, despite her husband's repeated attempts, no intercourse had taken place throughout the twenty-four (24) year marriage. We find that, given the facts of this case, there was sufficient evidence to infer that appellant is incurably impotent. Thus, we affirm the lower court's grant of an annulment based on section 205(a)(4) of the Divorce Code.

Appellant's next two (2) issues are stated as follows:

Did the lower Court err in denying the low income wife any alimony despite the much higher income of husband and the existence of a twenty-four (24) year marriage?

Did the lower Court err in denying wife any counsel fees or ...


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