Cunningham v. Cunningham , 1915 Pa. Super. LEXIS 255 ( 1915 )

Opinion, by

Head, J.,

We may agree with the able counsel for appellant that “this is a most remarkable and unusual case.” Strange as the facts may be, the legal questions arising from them which must control the determination of the appeal before us, are neither numerous nor complicated. Both are sufficiently stated in the opinions filed in the court below which will be printed in the report, of the qase.

The libellant seeks to be relieved from the obligations of what is considered, by all Christian nations, to be at least the most important civil contract into which two human beings can enter, to wit, the contract of marriage. His right to such relief is neither a natural nor an absolute one. If it exists, it is beqause the sovereign legislative power has' chosen to confer it, in,, .relief of recognized evils incident to a further continuance of the marital obligation, which would be more harmful to the State than the severance of that relation. To entitle him to a decree, therefore, he must have established the existence of some cause recognized by the legislature as a sufficient support for the judgment he seeks. The original libel rested the case of the libellant on the allegation that the respondent “by cruel and. barbarous treatment and indignities to his person hath rendered the condition of this libellant intolerable and his life burdensome and his health has been thereby seriously impaired.” Later on he sought to amend his original bill and was permitted to amend it by alleging the respondent had been guilty of willful and malicious desertion. Although the libellant and respondent had lived together in the marital relation for upwards of twelve years, and during that period had occupied the same room and bed, in his amended complaint he lays the time of the desertion as of the date of his marriage. It is apparent, therefore, that the desertion of which he complains is not the ordinary case of desertion, understood in the speech of the people, when that term is used. It is a species of fictitious or constructive desertion resulting, as he believes, from the unusual relation that existed between himself and his wife during the many years that elapsed between their marriage and their actual separation. His right to a decree of divorce depends on two questions, viz: Has he shown by the evidence in the record that his wife had willfully and maliciously deserted him for the statutory period before the filing of his libel? Has he established that she had subjected him to a course of cruel and barbarous treatment, within the meaning of the statute, or such indignities to his person as to render his condition intolerable and his life burdensome?

The learned court below, after a full examination of the evidence and a careful consideration of the legal propositions arising therefrom, answered both of these questions in the negative and refused the decree prayed for. We are obliged by the statute,, conferring and defining our jurisdiction,, to examine for ourselves the testimony in cases of this character and to determine therefrom, independent of the findings of any examiner or even of the court below, whether or not in truth and in fact a legal cause of divorce has been made out.

Leaving aside for the moment any consideration of the central fact out of which this controversy evidently arises, let us briefly dispose of the. contention between the parties as to whether or not a cause of divorce exists because of what is called “nagging” by the wife; differences of opinion as to many more or less everyday questions. We agree with the learned court below that as to this branch of the case no cause of divorce has been shown. In stating the law on this question we can do no better than repeat what we said in Ingram v. Ingram, 58 Pa. Superior Ct. 522, a case that, in this respect alone, presented .much more aggravating features' than the case at bar, viz: “Her' testimony does tend to establish that he frequently refused to talk with her • that on one occasion some years ago he pointed a revolver at her, although he' uttered ho threat he would usé it; that he would remain away from home until late at night, and sometimes all of the night, léaving her a prey to anxiety for his safety and apprehension for her own.- These and other like facts testified to indicate a course of conduct which, if established, would necessárily be' productive of much unhappiness. But if it be “such cruel and barbarous treatment” endangering the Wife’s life as is cóntémplated by the státute, then, indeed is our language too poor to furnish adequate terms to apply to the conduct usually depicted in the . cases where divorces havé been granted on the grounds we have been considering. So, too, there inay be and are many and serious injuriés to that inner and finer life which is of the spirit, that ate not the ‘indignities to the person’ with which the statute déals. The legislature has not yet seen'fit to'recognize as grounds of divorce that temperaments áre incompatible, that ideals have been lowered; that indifference has usurped the seat of affection, and unhappiness driven away peace and contentment.”

The peculiar view which' this respondent now entertains, of her duties and obligations in the marriage state, had-its origin in her conception of that relation before she entered into it. Whatever may now be the understanding of her husband as to the letters he wrote and thé way he conducted himself at that time, no fair-minded reader of the evidence can doubt what was the understanding of the respondent. She had every reason to believe that her conception of what she viewed, as the better idea of the way in which two married people should live, was fully shared by her proposed husband, and that he not only accepted it but desired to live in accordance with it, and to that end requested her aid even if times should come when for the moment he might be unable to wholly live up to it. The evidence tends to show that during many years, in all material ways, he lived and prospered by holding to the compact on which they had mutually built their hopes of future happiness. If it be true that these conceptions of life and its .oblé ■gations, strained and abnormal as they may appear* have now entered so deeply into the make-up of - this woman as to dominate her attitude towards her husband, it cannot be said that he is without responsibility for their existence. . .

The opinions filed by the court below, as we think after much reflection, exhibit convincing reasons for the conclusion that,, as the record is now, before us, this libellant has failed to show either a case of willful and malicious desertion without cause, or of cruel and bar* barous treatment and indignities to his.person within the contemplation of the statute. The assignments of error are overruled. . ■ ’

Decree affirmed.