Barton v. Barton

375 A.2d 96, 248 Pa. Super. 278, 1977 Pa. Super. LEXIS 1944
CourtSuperior Court of Pennsylvania
DecidedJune 29, 1977
Docket31
StatusPublished
Cited by12 cases

This text of 375 A.2d 96 (Barton v. Barton) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barton v. Barton, 375 A.2d 96, 248 Pa. Super. 278, 1977 Pa. Super. LEXIS 1944 (Pa. Ct. App. 1977).

Opinion

HOFFMAN, Judge:

Appellant, plaintiff in a divorce action in the court below, contends that the lower court erred when it granted appellee’s exceptions to the master’s recommendation that a di-' vorce a. v. m. 1 be entered in appellant’s favor. We agree, and, therefore, reverse the order of the lower court.

On October 17, 1974, appellant-husband filed a complaint in divorce in the Court of Common Pleas of Dauphin County. After the parties completed discovery, the lower court appointed a master to take testimony in the contested action. On February 21, 1975, the master conducted a hearing at which only appellant and appellee testified. The master’s report, filed on May 19, 1975, recommended that the court grant the divorce. On December 2, 1975, the court en banc sustained appellee’s exceptions to the report and dismissed the complaint. This appeal followed.

Appellant contends that the lower court erred when it substituted its own findings of facts for those made by the master. He further contends that if the court had accepted *280 the master’s findings, the evidence would have been sufficient to prove indignities to the person. Divorce Law, supra; 23 P.S. § 10.

The master’s report made the following findings which are adequately supported by the record. The parties were married in Chicopee Falls, Massachusetts, on July 18, 1952. This was appellant’s third marriage; the previous marriages terminated in divorce. It was appellee’s first marriage. The couple has three children, two of whom were minors residing with appellee at the time of the hearing. The family moved to Mechanicsburg, Cumberland County, in 1969, where they lived until the couple separated in 1973.

The master found that grounds for divorce existed based on several events:

“4. The problems in this marriage began sometime in 1969. (N.T. 5).
“5. In 1969, [appellee] began drinking heavily, and this drinking increased to a frequency of about once a week, causing the [appellee] to prepare meals in an incomplete manner. (N.T. 5).
“6. [Appellee’s] drinking caused [appellant] and [appellee] to get into arguments at dinner, resulting in [appellant’s] becoming sick. (N.T. 10).
“7. [Appellee] would, on occasion, call [appellant] such names as ‘piss-poor provider,’ ‘asshole,’ ‘no damn good bastard.’ (N.T. 6).
“8. [Appellee] initiated arguments at bedtime with [appellant], thereby causing him to lose sleep and impair his performance at his job. (N.T. 10).
“9. The sexual relations between the parties deteriorated from 1969, eventually resulting in no sex life at all. (N.T. 7).
“10. [Appellee] refused to have sexual relations with [appellant] and berated [appellant] for wanting sex, informing [appellant] that ‘his six months weren’t up yet.’ (N.T. 7, 22).
*281 “11. [Appellee] never told [appellant] that she loved him and, in fact, she told [appellant] that she hated him, offering to pack his bags and throw him out. (N.T. 7, N.T. 17-18).
“12. On several occasions, [appellee] falsely accused [appellant] of infidelity and adultry. [sic] (N.T. 8).
“13. In January, 1973, while intoxicated, [appellee] attacked [appellant], burning him with a cigarette and scratching him on the neck. [Appellee’s] hysteria was such that she had to be taken to the hospital where she and [appellant] were treated. The entire incident was witnessed by children of the parties. (N.T. 6).
“14. Before the parties separated, [appellant] frequently ate lunch with a woman with whom he later entered into a meretricious relationship. [Appellant] and this woman usually ate in the company of other people but, on occasion, they dined alone. (N.T. 14). 2
“15. During the entire period of marriage, [appellant] had a substantial income and provided his family with all the material necessities and some luxuries. (N.T. 8-9).”

In addition, the master found that “[appellant] committed no acts which would justify [appellee’s] actions toward him.” In his discussion, the master stated explicitly that he found appellant “to be the more credible of the two parties and the Findings of Fact indicate that the Master has chosen to accept [appellant’s] version” of the various events, despite appellee’s denials of some of the facts.

The court concluded that appellant had not proven “a continuous course of conduct rendering [his] condition intolerable and life burdensome.” In reaching that conclusion, however, the court rejected the master’s findings and substituted its own. For example, the master found that “there is no evidence that [appellant’s] relationship [with his fellow worker] prior to the parties’ separation was anything beyond friendly. The [appellant] testified that he never had sexual *282 relationships with another woman prior to his separation, and the Master chooses to believe this testimony.” Nonetheless, the court rejected appellant’s reliance on the wife’s accusations of infidelity as a basis for a finding of indignities because it found that the wife’s suspicions were reasonable. Compare Yohey v. Yohey, 205 Pa.Super. 329, 208 A.2d 902 (1965), with Kramer v. Kramer, 194 Pa.Super. 538, 168 A.2d 624 (1961), and Barnes v. Barnes, 181 Pa.Super. 427, 124 A.2d 646 (1956). In addition, the court found that there was no evidence of settled hatred, despite an explicit finding that appellee had told appellant of her hatred towards him. Finally, the court discounted appellee’s intoxication and the unpleasantness and arguments precipitated by her drinking and found that appellant had failed in his obligation to seek professional assistance for his wife. The court noted further that “. . . [appellant] did not attempt to secure professional help but brought alcoholic beverages into their home. And, if [appellee] is believed, [appellant] mixed her drinks in their home.” To the contrary, appellant testified that he only purchased one bottle of liquor for appellee as a Christmas present. He denied that he mixed his wife drinks.

Our scope of review in divorce matters is broad: “. . . when a divorce matter is heard by a judge sitting without jury, this Court must make a complete and independent review of the record of the proceedings below.” Gehris v. Gehris, 233 Pa.Super. 144, 148, 334 A.2d 753, 755 (1975); Eifert v. Eifert, 219 Pa.Super. 373, 281 A.2d 657 (1971); Del Vecchio v. Del Vecchio, 169 Pa.Super.

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Bluebook (online)
375 A.2d 96, 248 Pa. Super. 278, 1977 Pa. Super. LEXIS 1944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barton-v-barton-pasuperct-1977.