Russel Eugene BONAWITZ, Appellant, v. Marjorie J. BONAWITZ.
Superior Court of Pennsylvania.
Decided Dec. 15, 1976.
369 A.2d 1310
Submitted March 1, 1976.
This test, as the master‘s findings amply show, has been met.
The order of the lower court should be reversed and the record remanded with instructions to enter an order divorcing appellant from appellee.
George W. Gekas, Melman, Gekas & Nicholas, Harrisburg, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
PRICE, Judge:
This is an appeal from an order of the court below sustaining exceptions to a master‘s report and dismissing an action for divorce a vinculo matrimonii. After careful review of the record before us, we affirm the order of the lower court.
Russel and Marjorie Bonawitz were married on September 26, 1954, in Harrisburg. Two children, presently
We must initially note that it is our duty, on appeal, to make an independent examination 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, we are acutely aware that where the issue is one of credibility and the master is the one who heard and observed the witnesses, his findings of fact and recommendation 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). However, our review, even in this light, does not lead us to the same conclusion as the master and we must reject his finding that the credibility of the appellant would sustain the granting of this divorce.
It is axiomatic that a husband seeking a divorce on the ground of indignities must clearly and satisfactorily prove not only that his wife‘s course of conduct rendered his condition intolerable and his life burdensome, but also that he was the innocent and injured spouse. E. g., Nichols v. Nichols, 207 Pa.Super. 220, 217 A.2d 807 (1966); Staffieri v. Staffieri, 197 Pa.Super. 443, 179 A. 2d 663 (1962). The appellant complained that the appellee had, among other things, scratched his neck with her fingernails, thrown objects at him, cursed him and his relatives, driven a scissors beneath one of his fingernails, destroyed part of his property, threatened to kill him, and unjustly accused him of infidelity. There is no ques-
Although the appellant‘s testimony limns a perverse pattern of marital misconduct, it was denied or qualified by the appellee and her son, and therefore presents an uncertain balance of evidence. The appellee, corroborated by her son, testified that as between the parties it was the appellant, rather than she, who had directed physical force and vile language against the other. The appellee admitted that she had accused the appellant of infidelity. We recognize that “continuous unfounded accusations of infidelity, when accompanied by other degrading or humiliating conduct, are sufficient to make out a case of indignities to the person.” Yohey v. Yohey, 205 Pa.Super. 329, 334, 208 A.2d 902, 904-05 (1965). Here, however, the appellee claims that her accusations were justified, and therefore do not constitute indignities. We agree with this contention.
The appellee and her son testified that prior to 1969, when the parties separated,3 the appellant would not return home until 3:00 or 4:00 in the morning although he finished work at 11:00 p. m. He also spent several weekends away from home. On occasion, prior to 1969, he was seen accompanied by, and “holding hands” with, one Elizabeth Russell. Often, the appel-
In Friess v. Friess, 156 Pa.Super. 38, 39 A.2d 151 (1944), we were presented with a situation greatly similar to the case at bar. In affirming a rejection by the lower court of a master‘s recommendation to grant a divorce on the ground of indignities, we stated that:
“However damaging the libellant‘s testimony touching this period, since it is denied by the respondent and her daughter, it creates only a doubtful balance of evidence. ‘A decree may be supported by the testimony of the complainant alone, but if this testimony be contradicted and shaken by the respondent and there be
no convincing circumstances warranting a disregard of the contradictory evidence, a case has not been made out.‘” Id. at 43, 39 A.2d at 153, quoting, inter alia, Rommel v. Rommel, 87 Pa.Super. 511, 513 (1926).
A divorce may not be based upon a doubtful balance of the evidence. Walper v. Walper, 198 Pa.Super. 409, 182 A.2d 209 (1962). Here, the appellant‘s testimony was corroborated only to a slight degree by one witness and was contradicted by the appellee and her witness. We agree, therefore with the court below that the appellant failed to carry his burden of proof in establishing indignities as a ground for divorce.
Furthermore, we find the lower court to be correct in its conclusion that the appellant has not shown himself to be an innocent and injured spouse, as required by statute. We have held that a party should not be denied a divorce merely because he or she is not wholly without fault. See Sells v. Sells, supra, and cases cited therein. In the present case, however, the evidence shows that both parties have equally contributed to their marital discord. Neither party, therefore, may claim to be an innocent or injured spouse.
We affirm the order of the lower court.
SPAETH, J., files a concurring opinion.
HOFFMAN, J., files a dissenting opinion in which WATKINS, President Judge, joins.
SPAETH, Judge, concurring:
In Coxe v. Coxe, 246 Pa.Super. 231, 369 A.2d 1297 (1976), I concluded that in reviewing the record of a divorce case that turned on credibility we should act as follows:
If we do not take “de novo” too literally, and if we make an earnest effort to give the master‘s findings on credibility “the fullest consideration,” I think that at
Dissenting opinion at —.
Here, the majority has not explained in detail why it has rejected the master‘s findings. I nevertheless agree with the majority‘s conclusion that the findings should be rejected. My explanation is as follows.
No decision regarding credibility is involved. As indicated by the majority at page 262 of its opinion, appellant himself and Mrs. Russell both gave testimony that showed plainly enough that appellant had been unfaithful to appellee. The master‘s error was in failing to recognize that appellee‘s accusations were therefore justified, and so could not constitute indignities.
I admit that to a certain extent this conclusion arises from an independent review of the record. However, as I discussed in Coxe, we are obliged to make an independent review, so long as we recognize the limitations inherent in the fact that we have not seen the witnesses. To conclude here that no divorce should be granted does not transgress those limitations but rather represents, I submit, a proper discharge of our responsibility.
HOFFMAN, Judge, dissenting:
I dissent.
Once again, the master has recommended a divorce in favor of the husband-plaintiff. The master credited the husband, rejected the wife-defendant‘s account, and recommended a divorce. The lower court, after reviewing the evidence, sustained the exceptions and dismissed the complaint. On that basis, the court, which, of course, had no opportunity to see the witnesses or to assess their credibility, substituted its own judgment for that of the master.
I would reverse, dismiss the exceptions to the master‘s report, and grant the decree in divorce.
WATKINS, President Judge, joins in this dissenting opinion.