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PATSY D. HUNSINGER v. JAMES H. HUNSINGER (02/08/89)

filed: February 8, 1989.

PATSY D. HUNSINGER
v.
JAMES H. HUNSINGER, APPELLANT



Appeal from the Decree entered January 6, 1989 in the Court of Common Pleas of Columbia County, Civil Division, at No. 992 of 1985.

COUNSEL

Thomas E. Leipold, Bloomsburg, for appellant.

Thomas A. James, Jr., Bloomsburg, for appellee.

Brosky, Montgomery and Hoffman, JJ.

Author: Hoffman

[ 381 Pa. Super. Page 455]

This is an appeal from the lower court's final decree ordering the parties' divorce and approving the recommendations and report of the master. Appellant contends that the trial court abused its discretion in (1) concluding that appellee was entitled to a divorce on the ground of indignities;

[ 381 Pa. Super. Page 456]

(2) concluding that a 60%/40% distribution in favor of appellee was equitable under the circumstances; (3) refusing him certain credits or deductions from the value of marital property in his possession in calculating the total value of marital property subject to equitable distribution; and (4) awarding appellee $1,000 towards attorney's fees. For the reasons that follow, we affirm the order of the trial court.

The parties in this action were married on July 6, 1968, initially separated in July of 1985, attempted a reconciliation in 1986, and ultimately separated in August of 1987. On September 12, 1985, appellee initiated a divorce action by filing a complaint alleging indignities and the irretrievable breakdown of the marriage. The court appointed a special master to preside over the divorce and distribution of property. Following the parties' attempt at reconciliation, a hearing was held before the special master on October 8, 1987. On January 18, 1988, the master filed a report and recommendation with the court. Appellant then filed exceptions to the master's report. On June 28, 1988, the lower court issued an Opinion and Order granting one of appellant's exceptions regarding the application of the equitable distribution percentages and remanded the issue to the master to determine the specific form of the award to be made to appellant. The court denied all of appellant's other exceptions. A final decree in divorce was thereby entered. This timely appeal followed.

Appellant initially contends that the trial court abused its discretion in concluding that appellee was entitled to a divorce on the ground of indignities. Specifically, appellant alleges that appellee failed to prove herself to be an innocent and injured spouse pursuant to section 201(a)(6) of the Divorce Code.*fn1 Our standard of review is well-settled.

[ 381 Pa. Super. Page 457]

[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. 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.

Rorabaugh v. Rorabaugh, 302 Pa. Super. 1, 4, 448 A.2d 64, 66 (1982) (citations omitted). With specific regard to divorce based on indignities, we note that "no general rule can be formulated as to what constitutes indignities in a particular case; such matters depend upon all the circumstances of the particular case . . ." Brown v. Brown, 288 Pa. Super. 354, 356-57, 431 A.2d 1085, 1086 (1981). Although there is no strict test that applies in determining whether indignities are present, the Supreme Court has suggested a framework of conduct: "'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) (construing prior divorce code) (quoting Evans v. Evans, 152 Pa. Super. 257, 262, 31 A.2d 590, 592 (1943)). The McKrell court further stated that indignities "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 . . . a course of conduct as is humiliating, degrading and inconsistent with the position and relation as a spouse . . . ." Id. (citations omitted). Furthermore, the plaintiff must prove that he or she is the innocent or injured spouse in order for indignities to be the basis for divorce. Rorabaugh v. Rorabaugh, supra 302 Pa. Super. at 4, 448 A.2d at 66.

[ 381 Pa. Super. Page 458]

Keeping these principles in mind, we turn to the record. The ...


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