Opinion
June 15, 1971.
September 21, 1971.
Divorce — Indignities to the person — Innocent and injured spouse — Evidence — Indignities suffered when wife was inebriated.
1. In this action in divorce, plaintiff husband contended that he was entitled to a decree on the ground of indignities suffered when defendant was intoxicated. It appeared that the couple's sole source of entertainment was weekend visits to local taprooms, on which occasions defendant would become inebriated and subject plaintiff to verbal abuse. Defendant conceded that she was a heavy drinker but contended that plaintiff was not an "innocent and injured spouse" as he was in part responsible, since he took her to places where the only thing one could do was drink. In addition, there was evidence that plaintiff was involved with another woman before the parties separated.
It was Held, in light of the record, that plaintiff was not an "innocent and injured spouse". The decree of the court below, overruling the findings of the master and granting a divorce, was reversed.
2. In divorce actions heard before a master, it is the duty of the appellate court to make an independent study of the case.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 794, Oct. T., 1971, from decree of Court of Common Pleas of Columbia County, Jan. T., 1969, No. 73, in case of Elmer Eifert v. Geraldine E. Eifert. Decree reversed and divorce vacated.
Divorce.
Report of master filed finding that plaintiff was not an injured and innocent spouse and recommending dismissal of complaint. Exceptions thereto by plaintiff sustained and final decree entered on ground of indignities to the person, opinion by KREISHER, P.J. Defendant appealed.
Hervey B. Smith, with him Smith, Eves and Keller, for appellant.
Franklin E. Kepner, for appellee.
WATKINS and JACOBS, JJ., dissented.
Argued June 15, 1971.
Appellant Geraldine Eifert appeals from a decree of the Court of Common Pleas of Columbia County overruling the findings of a Master and awarding appellee Elmer Eifert a final decree in divorce a.v.m.
Appellee instituted this action pursuant to Section 10 of The Divorce Law of 1929. Appellee contends that he is entitled to a divorce because of indignities suffered when appellant became intoxicated. From the record, it appears that the couple's sole source of entertainment was weekend visits to local taprooms. These visits occurred practically every Friday and Saturday night for some eight years and on many of these occasions appellant would become inebriated and subject appellee to verbal abuse.
". . . [I]t shall be lawful for the innocent and injured spouse to obtain a divorce from the bond of matrimony, whenever it shall be judged, in the manner hereinafter provided, that the other spouse:
. . .
(f) shall have offered such indignities to the person of the innocent and injured spouse, as to render his or her condition intolerable and life burdensome." The Divorce Law of 1929, P.L. 1237, Section 10, as amended, 23 P.S. 10.
Appellant concedes that she is a heavy drinker, but nevertheless contends that appellee is not an "innocent and injured spouse" as he was in part responsible for her condition in that he continually took her to places where the only thing one could do was drink.
The Master found against appellee, stating that he was not an "innocent and injured spouse" as required under the statute. The lower court, however, found that the parties "were not equally at fault" and granted appellee the divorce.
In reaching its decision the court also applied the doctrine of "comparative rectitude" which can be defined as the principle "that where both parties are guilty of misconduct for which a divorce may be granted, the Court will grant a divorce to the one who is less at fault." 24 Am. Jur. 2d D. S., Sec. 228. We cannot find any Pennsylvania decision which accepts this doctrine, nor has the appellee cited any. Implicitly, it seems to be rejected in cases such as Murphy v. Murphy, 204 Pa. Super. 576, 205 A.2d 647 (1964). ("A plaintiff . . . may be denied relief because of conduct falling short of grounds for divorce.") A better statement of the law in Pennsylvania is that Section 10, in requiring a plaintiff to be "innocent" as well as "injured" does not mean that he has to be wholly free from all fault. See, e.g., Murphy v. Murphy, supra.
It is our duty to make an independent study of the case. DeMedio v. DeMedio, 215 Pa. Super. 255, 260, 257 A.2d 290, 294 (1969), aff'd per curiam, 437 Pa. 579, 260 A.2d 738 (1970). After a careful review of the record and an examination of the relevant authority, we are compelled to agree with the findings of the Master.
This case is governed by Hunter v. Hunter, 169 Pa. Super. 498, 83 A.2d 401 (1951) and Othmer v. Othmer, 158 Pa. Super. 384, 45 A.2d 389 (1946). In both of these cases a husband was denied a divorce because he not only made no effort to control his wife's drinking habits but actually encouraged them and therefore was not an "innocent and injured spouse". The only evidence in the record that could establish that appellee made any attempt to help his wife with her problem was a general statement that he had "tried everything" to make her stop. This is quite a difficult proposition to accept since it was uncontradicted that their sole weekend entertainment for years was drinking, that appellee drank quite heavily himself, and that he would often take her out to the car after she had become intoxicated and leave her there regardless of the weather and her condition while he returned to drink. It appears that appellant did little drinking when she was not in these public places. In addition, there is evidence that appellee was involved with another woman before the parties separated. In light of the record and the applicable cases, we agree with the Master that appellee is not an "innocent and injured spouse."
Appellant does not know how to drive so she was dependent upon appellee for transportation.
The decree of the court below is reversed and the divorce vacated.
WATKINS and JACOBS, JJ., dissent.