Berky v. Berky

177 A.2d 1, 197 Pa. Super. 234, 1962 Pa. Super. LEXIS 806
CourtSuperior Court of Pennsylvania
DecidedJanuary 16, 1962
DocketAppeals, Nos. 107, 108, 307, and 308
StatusPublished

This text of 177 A.2d 1 (Berky v. Berky) 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
Berky v. Berky, 177 A.2d 1, 197 Pa. Super. 234, 1962 Pa. Super. LEXIS 806 (Pa. Ct. App. 1962).

Opinion

Opinion by

Flood, J.,

We have before us Mrs. Berky’s appeals from orders of the court below granting a decree in divorce to her husband, dismissing her suit in divorce a mensa et thoro, and dismissing her exceptions to the refusal of the court below to issue a rule to show cause why the proceedings in each of the cases should not be returned to the master for the purpose of taking additional testimony. Her husband has appealed from an order granting her additional counsel fee in the sum of $750 and $750 for costs of appeal.

The complaints of both parties are based upon indignities to the person. The matter ivas largely one of credibility. The master believed the testimony of the husband and disbelieved the wife insofar as she contradicted him. The court approved the master’s report, basing its opinion as to credibility not only upon the master’s recommendation, but to some extent upon the impression made upon the court when the parties were before it on the wife’s petition for alimony pendente lite.

1. Mr. Berky testified that his wife began to. accuse him of infidelity with one of his employes early in their married life, that accusations of infidelity continued throughout the marriage, and that these accusations involved two employes and another girl whom he specifically named and fifteen or twenty persons altogether.

According to Mr. Berky, when his wife saw him in conversation with another woman, she customarily accused him of flirting and whenever friends asked him [237]*237to bring Ms wife to their home, she immediately accused him of going to bed with the man’s wife.

On one occasion Mrs. Berky produced a news photograph taken of a meeting at the Twin Coaches. She showed this photograph to her mother, stating that it showed Mr. Berky and one of his female employes together. Mr. Berky denied that he was present at the meeting, and another of his employes corroborated his testimony.

Mrs. Berky made remarks reflecting unfavorably upon Mr. Berky’s fidelity in front of her family in Florida. She accused him of adulterous inclinations towards maids in the house.

In her testimony the wife admitted that there was no basis for such accusations. She denied making the accusations, but it appears clearly from her own testimony that she made some such charges, and the master and the court below were fully justified, in our opinion, in concluding that the accusations were made as testified to by the husband, that they were baseless, and that they were such as to constitute indignities to the husband.

The husband also testified that Mrs. Berky seriously interfered with his business. Shortly after the marriage she insisted that he discharge a certain female employe who, she said, had told her, in effect, that she would tell Mrs. Berky how to handle Max. Mrs. Berky told her husband that the girl had something on Mm and that the girl had to be fired or she would sue him for divorce. Mr. Berky told her he had merely taken the girl out once or twice before their marriage, which had no significance because the girl was engaged at the time of the wife’s complaint, and that, if he fired her on his wife’s say so, one of his other girls might quit. As a result of his wife’s insistence and her emotional condition, Mr. Becky let this girl go. The girl requested permission to speak to Mrs. Berky [238]*238but she refused. At that time he had five girls in his employ, and within a week or two, two more had quit, leaving him with only two, neither of whom “had work of the same capacity”.

Mrs. Berky called Mr. Berky very offensive names on a number of occasions. While she denied this to some extent, she admitted calling him a heartless bastard.

These unmerited reproaches by his wife, the abusive names she called him and her interference with the conduct of his business were sufficient to justify the master’s conclusion that Mrs. Berky’s conduct constituted indignities entitling the husband to a divorce.

In addition, Mr. Berky testified to continuous complaints by his wife on other matters, constant dissatisfaction with living in Uniontown, and unwillingness to entertain his friends. She quarreled with him over the arrangement of the furniture, and his conduct in making his son a beneficiary of his insurance policy. These matters, while not of themselves sufficient ground for divorce, fill in the picture of continuous harassment. The testimony as a whole indicated that Mr. Berky was continually harassed and often bewildered and distracted by his wife’s conduct. The master believed the husband’s testimony, and it is sufficient in our opinion to warrant the conclusion that Mrs. Berky’s conduct rendered his life burdensome and his condition intolerable to the point where he felt that he could not continue to live with her. We affirm the conclusion of the master, confirmed by the court, that he was subjected by his wife to such indignities as would entitle him to a divorce.

2. The wife did not seriously dispute in her brief or argument the refusal of her divorce a mensa et thoro. Her testimony was insufficient either to warrant such a decree or to furnish a defense to her husband’s action.

[239]*239Mrs. Berky’s testimony was that Mr. Berky was not considerate of her when her child was born, that he accused her of spoiling the baby and of nagging him during the period shortly after the birth, that he spent too many nights away from home, that he slapped her in the face at least five times, that in a fit of anger he broke a chair, and that he took a trip of two or three weeks’ duration to Mexico, without her and, while he was away, sent her only four postcards which told her little more than where he was, and that he often called her a bitch.

As to the more serious of these accusations the master found that Mr. Berky slapped Mrs. Berky only after she had called him names which he felt were insulting to the memory of his mother. It appeared that the slapping occurred on only one occasion. She admitted that she called him a heartless bastard and that this was the occasion of the slapping. She said he slapped her five times and he admitted to slapping her twice at this time. There was no other instance of violence during the six years of cohabitation.

He denied swearing at her or calling her a “S. of a B.’’

Mrs. Berky testified that during one argument Mr. Berky broke a chair in anger, but later in her testimony, she admitted that the chair was not broken, and the matter fades into insignificance when all the testimony on both sides is considered.

Mr. Berky was out at night a good deal, but it appeared that this was required by his business, in most Instances, and that his other absences occurred during the last year or two before suit was brought, when he attended Masonic meetings in Pittsburgh. The master’s conclusion that these absences did not amount to indignities is warranted. The husband testified that the trip to Mexico was taken at the suggestion of his doctor who advised him to get away and have a period [240]*240alone by way of vacation. He had given his wife a trip to Florida just before this, and they went on another extended trip together shortly afterward.

It is quite clear that the husband supported his wife adequately. She said she had no complaint about this. He took her on several trips, including one to Hawaii and a Carribean cruise.

There is clearly no basis in this testimony for granting the wife a decree a mensa et thoro.

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Cite This Page — Counsel Stack

Bluebook (online)
177 A.2d 1, 197 Pa. Super. 234, 1962 Pa. Super. LEXIS 806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berky-v-berky-pasuperct-1962.