Lead Opinion
Opinion by
In this аction by Mrs. Zimmerman for divorce from bed and board upon the grounds of adultery and indignities to the person, both the master and the court found her allegations unproved and the cоmplaint was dismissed. If there was any adultery it was condoned, and the substantial question before us is whether the plaintiff has sustained the charge of indignities. This depends upon whether the defendant’s actions with reference to his secretary, the woman with whom he is alleged to have committed adultery, constituted a course of action calculated to make plaintiff’s condition intolerable and her life burdensome. Under such circumstances, proof of a single act of adultery, or even more than one such act, is insufficient unlеss a course of improper conduct is shown. Here the evidence is insufficient to prove either adultery or a course of improper conduct such as to amоunt to indignities.
This evidence, if believed, might be sufficient to show libidinous inclination, but there was no evidence that Mr. Zimmerman and the secretary were ever seen together except in the office or in public places. The husband’s office and the apartment in which the parties lived were just across the hall from each other. He seemed to be a man whose work was the most important thing in his life. There is little evidence that he was ever away from his wife very long except when he was аcross the hall in his office. While both apartment and office were in a large motel, no one testified, nor was there any hint in the testimony, that the defendant and his secretary wеre ever seen together in a bedroom. No proof sufficient to show a course of adulterous conduct is to be found in the evidence.
The plaintiff also complаins that, while she insisted on July 4, 1958, that the secretary be discharged, her husband refused to comply with her demand. However, for nine months after that date the secretary remained on the jоb. Mrs. Zimmerman and her husband lived together as husband and wife until the next April. During that period they went together on vacations to Hawaii and to Florida. It is hard to see from the tes
Excеpt for the alleged failure to discharge the secretary, the only evidence of a course of conduct is her testimony that her husband told her he had committed adultery lоts of times. He denied having made this statement and in view of the failure of the proof to show any adultery, it is not easy to accept the wife’s testimony on this point. Moreover, as the court below points out, she testified that this statement was made several months after July 4, 1958 and therefore before February 1959. He also told her in the same conversation, shе says, that he had sexual relations with the secretary. This suggests to us the same questions which it did to Judge Sheely: “If the plaintiff had been outraged at what she saw on July 4, and had then demanded that Miss Moyers leave, and now had her worst suspicions confirmed, would she have delayed until February or later to lay down her ultimatum that Miss Moyers must leave? And if, after the July incident, the defendant wаs more or less on probation so far as Miss Moyers was concerned, would he have been likely to make such a confession, and in such a bragging manner?”
We agree with the mаster and the court below that the balance of credibility is against the plaintiff. The husband and the secretary both denied any immoral
We agree with the court below that the real reason for the break in April was probably financial. Mr. Zimmеrman refused his wife’s request to lend $1,000 to their daughter and son-in-law. She became angry and later that day left her husband’s apartment and did not return. She also complained that she had tо ask him for money every day at that period, although she admitted that he supported her very well and her annual expenditures amounted to $39,000.
A financial dispute triggered the seрaration, whether or not there were other or deeper causes for the rift. Adultery was not proved. A careful reading of the testimony leaves a clear impression that, upon the failure of such proof, the evidence falls far short of the quantity and quality required to show continuous vulgarity, reproach, contumely, studied neglect, incivility, disdain, abusе, ridicule or any other manifestation of settled hate or estrangement such as is necessary to lead properly to the conclusion that the defendant has renderеd the plaintiff’s life burdensome or her condition intolerable : Donlan v. Donlan,
The plaintiff in her statement of the question involved in this appeal, summarizes the conduct of the plaintiff upon which she relies to establish indignities. The question reads: “Did the conduct of the Defendant who, over the protests of the Plaintiff, insisted on keeping in his employment in an area contiguous to the living quarters of the Plaintiff and the Defendant, a woman towards whom he had manifested improper relations, and admitted adultery, constitute indignities to the person Avithin the meaning of the Divorce Code of Pennsylvania?”
If the facts as to defendant’s conduct were established as stated, the plaintiff might prevail. However, neither the adultery nor the husband’s admission of adultery has been proved by the credible evidence. The manifestation of “improper relations” , consisted of only two isolated instances of immoral conduct falling short of аdultery, if the Avife’s witnesses are believed, and consist of nothing more than vulgarity if the Tiusband’s witnesses are credited. We find, as did the master and the court below, that the balance of credibility on the controverted issues rests with the husband , and his Avitnesses and that the plaintiff’s protest of the continued employment of the secretary was not made at the time of the incident of July 4, 1958, nor at ány intervening time until just before the plaintiff left, after her husband refused to lend the $1,000 to the Mapes, in April,
Order affirmed.
Concurrence Opinion
Concurring Opinion by
A realistic reading of this record impels the conclusion that the husband-appellee wаs guilty of improper conduct with his secretary, and that there was merit in the position of the wife-appellant that her husband should get either a new secretary or a new addrеss. I do not dissent because of my reluctance to interfere with the determination of the lower court in a proceeding for a divorce from bed and board. Cf. Reddick v. Reddick,