Phipps v. Phipps , 368 Pa. 291 ( 1951 )

Opinion by

Mr. Justice Jones,

In this case, the libellant sued for divorce on the grounds of cruel and barbarous treatment and indignities to his person. At trial, he abandoned the cruel and barbarous treatment charge and rested his case on indignities in connection wherewith he proved, inter alia, an act of adultery on the part of the respondent. The learned trial judge entered a decree of divorce which, on appeal, the Superior Court unanimously affirmed (one judge being absent) : see Phipps v. Phipps, 165 Pa. Superior Ct. 622. We granted an allocatur primarily because of an apparent conflict between the decision in the instant case and the decision in Allen v. Allen, 165 Pa. Superior Ct. 379, with respect to whether evidence of an act of adultery is relevant and material to an issue of indignities to the person of the libellant. If such evidence is admissible in the situation indicated, then a secondary question follows as to whether the fact of adultery must have been known to the libellant prior to the institution of the divorce action in order to render such evidence competent at trial.

In Allen v. Allen the Superior Court had held that testimony of the respondent’s adultery “was not admissible on the charge of indignities and should have been disregarded even though in evidence without objection.” With such evidence thus excluded, the court was of the opinion that the libellant had not made out a case of indignities and reversed the decree in divorce which the trial court had granted. However, two members of the court, while concurring in the result reached by the majority, disagreed that the testimony of the respondent’s adulterous act was inadmissible and pointed out (p. 383) that the Superior Court had consistently held “that a wife’s affair with another man, in itself, may constitute an indignity, and that conduct by a husband with respect to other women, although not sufficient to support a charge of adultery may be considered as a form of personal indignity to the wife rendering her condition intolerable and life burdensome”, citing, inter alia, Blansett v. Blansett, 162 Pa. Superior Ct. 45, 48, 56 A. 2d 341, where it was said,— “That [a wife’s affair with another man] constitute [s] an indignity is abundantly clear . . . .”

Why, then, may not evidence of adultery, which, as the opinion in the Allen case concedes, “is an indignity in its gravest form”, be relevant and material proof on an issue of indignities. The only reason contra advanced in the Allen case is that, by statute, adultery is made a separate and distinct ground for divorce and is of such gravity that, when established, prohibition of the marriage of the offending spouse to the paramour follows as a matter of legislative direction. Note was also made of the fact that a statute requires that the paramour be named in the libel and, as corespondent, be given notice of the charge and an opportunity to defend. But, neither the fact that adultery alone, when pleaded and proven, will justify a divorce nor the statutory provisions peculiar to such an action operate to deprive the adulterous conduct of its evidentiary value as relevant and material proof of an indignity. Cruel and barbarous treatment is also a separate ground for divorce, but evidence of the respondent’s physical violence toward and threats against the life of the libellant (viz., cruel and barbarous treatment) is relevant and material to, and may be used to sustain, a charge of indignities: see Zonies v. Zonies, 151 Pa. Superior Ct. 317, 321-322, 30 A. 2d 193; Sarbiewski v. Sarbiewshi, 127 Pa. Superior Ct. 463, 468, 193 A. 91; and Sleight v. Sleight, 119 Pa. Superior Ct. 300, 303, 181 A. 69. The greater offense is thus material evidence of the lesser charge.

We hold, therefore, that evidence of a respondent’s adultery is admissible on a charge of indignities. How far such evidence goes in helping to establish a course of conduct, requisite to sustaining a charge of indignities, is for the fact-finder to appraise subject, of course, to appellate review for legal sufficiency of the evidence. But, the evidence is admissible, nonetheless, even though it falls short of supporting a charge of indignities. What was said in Allen v. Allen, supra, in presently pertinent connection, was considerably retracted, if not entirely overruled, six months later by the Superior Court’s opinion in the instant case where, as we have already mentioned, evidence of an act of adultery by the respondent was held to be admissible on a charge of indignities. The Superior Court there correctly said (p. 625) — “Counsel for respondent . . . argue that you cannot establish indignities by proving adultery. If staying together in the same room at the hotel at Stroudsburg had been the only evidence of misconduct on the part of respondent, we would readily agree; but it was not.” The unanimity of the Superior Court in the instant case is peculiarly significant in view of the separate concurrence in the Allen case on the admissibility of evidence of the respondent’s adultery.

As stated in Martin v. Martin, 154 Pa. Superior Ct. 313, 317, 35 A. 2d 546, — “The essential feature of the offense of indignities to the person is that it must consist of a course of conduct or continued treatment which renders the condition of the innocent party intolerable and his or her life burdensome [citing cases].” Obviously, one act of adultery is insufficient to sustain a charge of indignities even though the offense, of itself, is adequate ground for divorce on an appropriate charge. Other misconduct of the respondent, as testified to, tending to prove indignities but which might have been extenuated as mere indiscretions or discounted as the imaginings of an overly suspicious or jealous spouse assumes its true import when pondered against the background of the respondent’s deliberate and flagrant unfaithfulness to the libellant. Thus, the evidence as a whole becomes capable of constituting, as a matter of law, indignities to the person of the libellant rendering his condition intolerable and his life burdensome which is to be determined objectively.

Nor was the respondent’s adulterous act any the less admissible because the libellant did not learn of it until after he had commenced his action in divorce, if such indeed be the actual fact. The importance of the evidence of adultery lies in its capacity as an aid to the fact-finder in appraising the respondent’s conduct in general with respect to her husband and her treatment of him. Its admissibility, in the circumstances here present, does not depend upon whether the libellant knew of it before the separation. Of course, if he did not then know of it, it was not a direct indignity such as where the innocent party comes upon his offending spouse flagrante delicto. In Holbrook v. Holbrook, 160 Pa. Superior Ct. 129, 131, 150 A. 2d 709, it was expressly recognized that “Testimony as to respondent’s conduct after the parties’ separation is relevant for the purpose of shedding light upon respondent’s behavior prior to the separation. [Citing] Hewitt n. Hewitt, 136 Pa. Superior Ct. 266, 7 A. 2d 45; Zonies v. Zonies, 151 Pa. Superior Ct. 317, 30 A. 2d 193.” The question with which we are here concerned is as to the relevancy amd materiality of the evidence of adultery and not as to the extent of its probative value.

The Superior Court, having considered all of the evidence including the testimony of the respondent’s adulterous conduct, unanimously affirmed the findings and conclusions of the learned trial judge who had personally heard and seen the witnesses. While it is the appellate court’s duty, in the exercise of its jurisdiction in divorce cases, to carefully examine the entire record including the evidence and determine, except where there has been an issue and jury trial (Middleton v. Middleton, 187 Pa. 612, 615, 41 A. 291), whether on the facts the trial court reached the correct conclusion (Nacrelli v. Nacrelli, 288 Pa. 1, 4-5, 136 A. 228), yet it has been wisely recognized that “the findings of fact and conclusions of the trial judge, who heard the testimony and saw the witnesses, are entitled to careful consideration on appeal and will not be lightly disturbed”: see Holbrook v. Holbrook, supra, at p. 131, and cases there cited.

The action of the Superior Court in the instant case is accordingly approved. We are not disposed under our power to allow an appeal from that court (Act of June 24, 1895, P.L. 212, Sec. 7(e), 17 PS §190), to afford a party to a divorce proceeding a second appellate de novo review. Appeals in divorce cases were, by Section 7 of the.Act of May 5, 1899, P.L. 248, 17 PS §186, committed to the jurisdiction of the Superior Court. What had theretofore been the function of this court with respect to the review of the entire record, including the evidence, on the appeal of a divorce case became the province of the Superior Court. And, “It was announced by this court soon after the act creating the Superior Court went into operation that our jurisdiction to review its judgments would be exercised only in cases of general importance or to secure uniformity of decision”: Taylor v. Philadelphia Rapid Transit Company, 245 Pa. 189, 196, 91 A. 631. See cognate pronouncement by Mr. Justice Mitchell in Kraemer v. Guarantee Trust & Safe Deposit Co., 173 Pa. 416, 418, 33 A. 1047. Whether the findings made below by the master or judge, who saw and heard the witnesses in person, have been lightly set aside on appeal presents a question of law properly reviewable by this court in furtherance of uniformity: e. g., Bobst v. Bobst, 357 Pa. 441, 54 A. 2d 898; Dash v. Dash, 357 Pa. 125, 53 A. 2d 89; McKrell v. McKrell, 352 Pa. 173, 42 A. 2d 609; and Wick v. Wick, 352 Pa. 25, 42 A. 2d 76. Such is not the situation in this case.

The Superior Court was fully warranted in not granting the prayer of the petition for a remission of the case to the court below for the purpose of taking the testimony of the respondent’s son, Bradford Sweet. His knowledge of the particular subject matter did not in any sense qualify as after-discovered evidence. What he knew and his whereabouts in Auburn, New York, where he was living with his natural father with his mother’s permission, were, of course, well known to her at the time of the divorce hearings. If she desired his testimony, it could have been taken by deposition when he refused to come to Scranton to testify. The hearings extended intermittently over a period of three months during which time Bradford spent the Christmas holidays in Scranton (although unknown to his mother) visiting at the home of friends. But, even if the proffered testimony, as forecast by Sweet’s affidavit and respondent’s petition to remit, were received in evidence, it would be merely cumulative of testimony of the respondent and her witness Martin in attempted refutation of Jean Kehrli, a witness for the libellant, whom the trial judge and the Superior Court justifiably accredited. Moreover, the unfilial reasons to which Sweet’s affidavit confesses as being the cause of his not having attended the divorce hearings tends to impeach his credibility which, no doubt, the Superior Court also took into consideration in rejecting the petition' to remit.

Decree affirmed.