Bender v. Bender

Argued April 24, 1925. The libel in this case was for divorce a mensa et thoro. The master filed an extended report and a supplemental report recommending a decree. Exceptions thereto were considered by three judges of the county who sat at the argument. The decree in favor of the complainant followed. The trial court was satisfied by competent and adequate evidence that the defendant not only had no affection for his wife, but that he engaged in a course of conduct well calculated to give her distress of mind and to establish a case of such indignities to the person as rendered her condition intolerable and life burdensome. An examination of the evidence satisfies us of the propriety of the decree. Little testimony was offered by the defense, and the relevant parts of that were from the respondent and two of the women in whose company he spent much of his time to the neglect of his wife, and the denials to the extent to which they, were made, were not convincing to the master of the court. The manner of the respondent on the stand was characterized by the master as insolent, and his testimony certainly gives that impression to the reader. The complainant was corroborated in material respects and the fact that she finally left the respondent's home on account of his treatment of her and his association with other women, was a fact supporting her testimony: Baker v. Baker, 195 Pa. 407; Krug v. Krug, 22 Pa. Super. 572. The character of the indignities necessary to create a cause of divorce is well stated by President Judge ORLADY in Breene v. Breene, 76 Pa. Super. 568. Support as to the efficiency of the evidence is found in the opinion of Judge PORTER in Krug v. Krug, supra. It is unnecessary to go into a detailed consideration of the evidence in the case. It is sufficient to say that it supports the conclusion of the court as to the decree entered.

The court fixed the amount of alimony to be paid to the complainant at $45 per month. Exception is taken to this on the ground that the allowance is too great. The statute provides that the court may allow the wife such alimony as her husband's circumstances will admit of with the limitation that the amount so allowed shall not exceed the third part of the annual profit or income of his estate or of his occupation and labor. It is conceded that the respondent has property approximating $30,000 in value. It also appears that he is a man of more than ordinary business ability and able to increase his income by his personal efforts. He cannot refuse to occupy his time profitably for the purpose of diminishing the allowance made to his wife. The statute clearly indicates that what he earns by his occupation and labor is to be taken into consideration in fixing the allowance, and this being done, the amount fixed is well within the statutory limitation.

The assignments of error are dismissed and the decree affirmed at the cost of the appellant.