195 A. 924 | Pa. Super. Ct. | 1937
Argued November 19, 1937. On March 20, 1936, the libellant, Benjamin A. Hepworth, exhibited his libel, upon which subpoena was allowed the same day, praying for a divorce a vinculo matrimonii against Ida A. Hepworth, his wife. Personal service was had, and a rule for bill of particulars issued, which bill of particulars was filed June 19, 1936. Meanwhile, a master had been appointed to take the testimony and report thereon. Subsequently, counsel for respondent filed a demurrer to the bill of particulars and libel, and the master's appointment was revoked, pending decision on this demurrer. On Sept. 11, 1936, the court filed an opinion and order sustaining the demurrer as to the charge of cruel and barbarous treatment endangering the life of the libellant, but dimissing the demurrer as to the charge of indignities rendering the libellant's condition intolerable and life burdensome, and directing that an answer be filed to the merits *362 within fifteen days. An answer was filed on Sept. 25, 1936, and the same master was reappointed. Four hearings were held, testimony covering four hundred and nineteen pages was taken, and the master made a report recommending the divorce on the ground of indignities to the person. Exceptions to said report were filed. The court below in an opinion by MacDADE, J., entered a decree, dismissing the libel, from which decree this appeal is had.
We know of no authority or precedent for the filing of a demurrer to a bill of particulars and we only call attention thereto in order that it may not be assumed that we approve of such practice. A divorce can never be decreed upon the pleadings. It must be based on testimony, and this court has frequently pointed out its duty to examine the testimony and determine whether it support the grounds alleged in the libel.
In James v. James,
And in Simon v. Simon,
All of the testimony in the case was offered on behalf of libellant, none having been offered on behalf of respondent. The respondent was called as for cross-examination and, with few exceptions, admitted all of the allegations set forth in the bill of particulars and in the testimony offered on the part of libellant.
The parties were married on October 4, 1916. The libel was filed on March 20, 1936. There were no children born of the marriage. The libellant is 56 years of age, and the respondent 53.
The sole question involved is whether under the evidence the court should have entered a decree for libellant.
The libellant bases his right to a divorce on paragraph f. of sec. 10 of the Divorce Act of May 2, 1929, P.L. 1237, which gives that right to the innocent and injured spouse to obtain a divorce, whenever it shall be judged, that the other spouse: "f. Shall have offered such indignities to the person of the injured and innocent spouse, as to render his or her condition intolerable and life burdensome." (Italics supplied).
It will be observed that the indignities must be "to the person" of the injured spouse.
In Johnson v. Johnson,
The law does not define indignities, but depends upon the circumstances of each case, but it must be distinguished from cruel and barbarous treatment: May v. May,
The opinion by Judge RHODES in Sleight v. Sleight,
While the law of this State is liberal as to the number of grounds for which a divorce may be obtained, it is strict as to requirement of proof necessary to obtain it. The ground or grounds alleged in the libel must be clearly established by the evidence in order to warrant a decree of divorce. Putt v. Putt,
"The respondent's misconduct," quoting from the Master's Report, "consisted of continuous and ever recurring solicitations, successful and otherwise, from her friends and neighbors for loans of money and of giving to her friends, neighbors and tradesmen post-dated checks, many of which went to protest because of insufficient funds. This conduct on the part of the respondent commenced soon after marriage and continued without ceasing right up to the time this divorce action was started. It was common knowledge among the friends and neighbors of the parties to this divorce that the respondent was indulging in these financial manipulations and this subject was a constant source of conversation among these same friends and neighbors at card parties and other gatherings."
It would be to no purpose to quote at length from the testimony. An examination of the same which is discussed at length in the Master's Report, tends to establish the following facts, which relate principally to borrowing: "1. The greatest amount she had borrowed from anyone was $350 and the smallest $2 or $3. 2. From two to five years after marriage he learned about her borrowing and begged her to stop but she never did. He provided amply. 4. In 1933 or 1934 he learned of a bill at Pretty's Store of $12.98 which had been running since 1926. 5. That the item of $350 had been borrowed from Jethro Johnson, he learned through a letter he found. 6. She borrowed from Helen Somers $85. 7. She admitted she attempted to borrow from a relative named Cameron. 8. Had procured the endorsement *366 of Morris Richardson to a note for $200. 9. He saw a note from Annie Dalton asking respondent to pay on a note for $100 a balance due of $10. 10. A loan from Jennie Murray of $100. 11. A loan from Mulford Speyer of $100. 12. A bill for groceries at Egan's Store, the amount not stated. 13. A loan from her Aunt, $100. The effect of the foregoing, long after the episodes and learning of them through gossip, on the libellant was that he couldn't eat or sleep, etc., so that he asked her whether she had done or would do shoplifting. 14. She gave a check to the milkman which proved to be bad for $49. 15. She drew from their joint account and her explanation was she got behind $300. 16. She took from the joint account $200 or $300. He later learned some of the money borrowed was to replace this. 17. The libellant was in 1933 or January 1934, forced to take over the management of the household. 18. That at one time, years before, respondent while treasurer of a Church Society used funds, which she repaid by borrowed money, amounting to $100."
The sole complaint of libellant relates to the financial transactions of the respondent, his wife. There is not a word of evidence of other than respectful treatment to the person of libellant. It should be borne in mind that since the Act of 1893, P.L. 344, a married woman has the right to contract on her personal credit. Thriftlessness or poor financial management of a woman's affairs, is no cause for divorce: Schulze v. Schulze,
The libellant himself testified on examination in chief, as well as under cross-examination, that his sole complaint is that of borrowing and giving post-dated checks: "Q. Then in other words, the real cause of your difficulties was the fact that she would borrow money. A. Yes, borrow money, and she gave bad checks which gave me a bad name."
That the acts set forth in the bill of particulars, as *367
well as in the testimony, and assuming that the testimony supports all of the allegations, do not constitute such indignities as entitle libellant to a divorce, is clear from all of our decisions. In Hexamer v. Hexamer,
In the instant case, the libellant and respondent continued to live together in their joint home until after the divorce proceedings were instituted. In Cunningham v. Cunningham,
After a careful examination of the entire record, we concur in the well considered opinion and finding of the lower court.
Decree affirmed.