McCaskey v. McCaskeyMcCaskey v. McCaskey
Appellant contends that the lower court erred in dismissing her exceptions to the master’s report and in entering a decree of divorce a.v.m. 1 We affirm the lower court’s decree.
On December 27, 1947, appellant-wife and appellee-husband were married in Pittsburgh, Pennsylvania. They have five children, ranging in age at the time оf the hearing from 14 to 26. On October 10, 1975, appellee filed a complaint in divorce a.v.m. on the grounds of indignities to the person. The lower court appointed a master who conducted hearings on March 30, 1976, and on April 7, 1976. Appellee testified as follows: appellant consumеd straight gin until her speech became slurred while with appellee and his business associates. Without provocation, appellant struck and insulted an employer of appellee. Appellant telephoned the wives of two of appellee’s business associatеs, told them that appellee *363 was a homosexual and intimated that he was currently involved in a homosexual affair with an employee of her husband’s firm. 2 This conduct embarrassed and humiliated appellee. Appellee also testified that appellant consumed large quantities of alcohol in the family room of the home until she became unconscious; she refused to clean the home or to prepare his breakfast; and, except on infrequent occasions, appellant refused to engage in sexual intercourse. Appellant rеgularly abused appellee verbally in front of their children and friends by calling him a drunkard, homosexual, no damn good, an inadequate provider, and an adulterer. Appellant’s conduct made appellee nervous and upset and his doctor prescribed librium tablets for him.
Appellеe admitted that during a very emotionally stressful period 12 years earlier, he had engaged in a homosexual incident with his then 12 year old son, Bill, Jr. Both appellee and his son received psychiatric care after the event and the family remained together and worked out the problem. Bill, Jr. has forgiven his father. Following the parties’ separation in February, 1974, appellee attempted a reconciliation but appellant’s excessive drinking prevented a reunion.
Appellee called Cherry Greenberg, 3 the wife of one of appellee’s co-workers, who corroborated appеllee’s testimony. She confirmed that appellant telephoned her to say that appellee is a homosexual. Appellee’s sons both testified; appellee called Bill, Jr. and appellant called David. Both stated that appellant called appеllee a homosexual in their presence and that appellant frequently became inebriated at home and slept in the family room.
Appellant presented a different version of the events of the marriage. She denied ever insulting appellee while with *364 friends or business associates. She denied that she slept in the family room after passing out from drinking; instead, she asserted that appellee sometimes locked her out of the master bedroom. Appellant stated that she prepared breakfast for appellee, cleaned the house regularly, and entertained appellee’s business guests. Appellant stated that she did not have a drinking problem and that she did not become intoxicated in front of appellee’s business associates. Appellant accused appellee of insulting and belittling her in front of their friends. Appellant stated that her son Bill informed her about appellee’s homosexual advances and that she was shocked and deeply hurt by the incident. She indicated that they were able to work through the problem and resolve the difficulty.
Appellant admitted calling appellee a homosexual and a drunkard in front of the children, accusing appellee of infidelity, and calling Ms. Greenberg and another wife of a business associate to discuss appellee’s homosexual tendencies. She denied calling appellee’s business associates.
Thе master concluded that appellee had proved a case of indignities to the person and therefore recommended that the court grant a divorce. 4 On March 17, 1977, the court, en banc, dismissed appellant’s exceptions to the master’s report and entered a decree of divorce a.v.m. This appeal followed.
Appellant first contends that the lower court erred in approving the master’s finding that she demonstrated settled hate and estrangement toward appellee. More specifically, she alleges that the court and master erroneously relied upon appellant’s post-separation conversation with Ms. Greenberg to establish the element of settled hate and estrangement.
We recently reiterated the legal guidelines controlling our review of this contention:
“The law is clear that whеn a divorce matter is heard by a judge sitting without a jury, this Court must make a complete and independent review of the record of the proceedings below.
Eifert v. Eifert,
In the instant case, appellant repeatedly insulted and humiliated appellee in the presence of his business associates and their family. She initiated arguments while in public, she belittled him and his earning capacity in the presence of business associates. Appellant constantly accused appellee of being a drunkard, a homosexual and an adulterer in the presence of their children. Moreover, appellant admitted calling the wives of two of her husband’s business associates, informing them of her husband’s homosexual act and intimating a similar current proclivity on his part. Appellee’s testimony was corroborated by the clear and concise testimony of Ms. Greenberg, as well as that of his sons, David and Bill. We believe, as did the master and the lower court, that the constant insults, provocations, and humiliations of appellee constitute a course of conduct which rendered appellee’s condition intolerable and his life burdensome.
Neither the master nor the lower court relied upon appellant’s phone calls to Ms. Greenberg as direct proof of indignities. Both aсcepted the conversation as evidence which shed light upon the behavior of the parties prior to the separation. See
Hargrove v. Hargrove,
supra; and
Boyer
v.
Boyer,
Appellant next argues that the lower court erred in finding that appellant’s accusations of infidelity were unfoundеd. On direct examination appellant acknowledged that she accused appellee of being unfaithful when she discovered a condom in his shirt pocket when he returned from a business trip. In 1973, appellant accused appellee of infidelity when he stated that he was intеrested in another woman. Appellee steadfastly denied giving appellant any reason to suspect him of infidelity and maintained that he never engaged in a relationship with another woman during the course of their marriage. Appellee did admit that he may have kissed a waitress whilе entertaining customers. Pennsylvania courts have indicated 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.
Politylo v. Politylo,
In DeBias, we found that whether appellant’s accusations of infidelity were unfounded rested on the credibility оf the witnesses, a determination most properly made by the master, who, having heard the testimony and observed the witnesses, is clearly in the best position to determine this issue. The master in the instant case credited appellee’s testimony and found that appellant’s accusations wеre unfounded. We affirm this finding of credibility.
*368 Finally, appellant contends that appellee is not an innocent and injured spouse as required by § 10(l)('f) of the Pennsylvania Divorce Law, supra. Particularly, she asserts that appellee’s insulting behavior towards appellant plus his admitted homosexual conduct with their oldest son preclude a finding that he is innocent and injured.
Pennsylvania case law establishes “the principle that the requirements of innocence and injury do not mean that the plaintiff need be wholly free from fault. . . . We have consistently held that a party should not be denied a divorce merely because he or she is not entirely without fault.”
Ryave,
supra,
The lower court adequately dealt with appellee’s insults to his wife by stating: “It is clear that [appellee], is an outgoing man whose demeanor is normally boisterous, loud and, at times, crude. It is also evident that he frequently аrgued with his wife, privately and in public. The Master’s finding that, in the course of these arguments, both parties provoked one another and both retaliated in kind is well supported by the evidence. However, the evidence also establishes a pattern of insult and provocation on the рart of the [appellant] as the usual instigation for these altercations. Even if this were not so, the malicious and humiliating epithets habitually used by [appellant] when angered are, as the Master found, unjustified and excessive even as retaliation to her husband’s provocations, particularly when employed in front of the children or plaintiff’s business associates. Although [appellee] frequently lost his temper with his wife, there is nothing in his behavior as reported on the record which merits the treatment he received from her. He was not the initiating irritant, in this regard at least, and the indisсretions he did commit were far overshadowed by those of the [appellant].” We agree with this analysis completely.
As for appellant’s contention that a homosexual act upon their son will now bar appellee’s action for divorce, we have stated: “In an action for divorce . . . , mis
*369
treatment of a spouse’s child has been held to constitute indignities directed to the person of the parent and thus may support a divorce decree.”
Crissman v. Crissman,
Order affirmed.
Notes
. Divorce Law, Act of May 2, 1929, P.L. 1237, § 10; as amended Act of Marсh 19, 1943, P.L. 21, § 1; 23 P.S. § 10, as amended. Act of September 22, 1972, P.L. 880, No. 202, § 1.
. Appellant admitted calling Jenny Croneworth whose husband, Bill, worked with appellee. Ms. Croneworth’s husband was dead at the time of the hearing.
. The witness gave her name as Cherry Greenberg, however the master referred to her as Sherry Greenberg. Ms. Greenberg stated that her stage name is Teri Renee and she is also referred to as Teri in the transcript at time.
. The master filed a comprehensive 36 page recommendation.