Robinson v. Robinson
Robinson v. Robinson
Dissenting Opinion
Dissenting Opinion by
I am unable to agree with the majority opinion that plaintiff, John H. Robinson, is entitled to a divorce on the present record. The majority suggests that this is a case where a younger woman married an older man for his money and property alone without giving anything in return therefor. Even if true, it would not afford a legal basis for severing the marital tie. As I view it, the matter is in fact much more complex. Therefore I file this dissent.
The master and the lower court considered credibility the determinative issue, as in most respects the
At the time of their marriage plaintiff was seventy-three years of age and defendant was forty-five years of age. They had been friends for more than twenty years. Defendant’s two prior marriages ended in divorce. Plaintiff’s first wife died on December 6, 1953. The parties became engaged on January 1, 1954. After their marriage on June 29, 1954, they resided at plaintiff’s residence in Allison Park, Allegheny County. They were separated finally on December 23, 1954, after several previous short separations. They live in their respective homes in Pittsburgh.
Plaintiff related six incidents of alleged misconduct by defendant upon which he bases his complaint. The pattern of defendant’s conduct on all occasions seems to have been the same, being spontaneous and unprovoked rage. The first three incidents took place in the first three months of the marriage. Plaintiff testified that in the latter part of July or the first part of
The three subsequent incidents, one occurring each month during the last three months of cohabitation, were of the same type except that on these occasions defendant directed some physical abuse toward plaintiff. The first of these, which plaintiff terms the “main one,” occurred on October 4, 1954. On this evening plaintiff had retired to an upstairs bedroom when suddenly de
The last incident before the final separation occurred on December 23, 1954. Defendant, without warning or provocation, threw a fork at plaintiff who was not injured. Plaintiff was able to calm her, and defendant’s daughter was summoned. After gathering-some personal belongings defendant left, assisted by her daughter and plaintiff. Defendant did not return thereafter to the marital home as four days later, on December 27, 1954, plaintiff caused this divorce action to be instituted.
Plaintiff was corroborated by the police officers and the doctors in those matters which I have indicated; in other respects he depends upon his own testimony. Defendant either denied the incidents or glossed over their seriousness. She testified that the only marital discord came as the result of differences concerning marital relations, and the failure of plaintiff to repair the house and buy new furniture. Defendant’s other witnesses testified in a general and negative vein, and did not
It is obvious that, except for the use of abusive language in the hospital, the extent of defendant’s conduct consisted of displays of temper and certain limited physical abuse directed toward plaintiff. This conduct may be more in the nature of cruel and barbarous treatment than of indignities. Although both grounds were alleged and the master believed that both were present, it is my opinion that the lower court correctly concluded that cruel and barbarous treatment had not been established.
It clearly appears that defendant was not well, and that her condition was responsible in large measure for her conduct. See Barnes v. Barnes, 181 Pa. Superior Ct. 427, 434, 435, 124 A. 2d 646; Moyer v. Moyer, supra, 181 Pa. Superior Ct. 400, 412, 413, 124 A. 2d 632. Plaintiff testified that nothing preceded the incidents which apparently came “out of the blue.” As he expressed it she acted as though her mind just snapped. The final' incident was preceded by a discussion concerning a Christmas tree, but it was not sufficient to bring the reaction which followed. See Barnes v. Barnes, supra, 181 Pa. Superior Ct. 427, 435, 124 A. 2d 646. The chief, of police testified that plaintiff told him on the first occasion that defendant was mentally ill and needed hospitalization; and apparently plaintiff attempted to have her committed to a mental institution. Both
Drunkenness in itself is not a ground for divorce, and it will not excuse or justify a course of improper conduct by one spouse toward the other. Steinman v. Steinman, 144 Pa. Superior Ct. 193, 195, 197, 18 A. 2d 816; Othmer v. Othmer, 158 Pa. Superior Ct. 384, 390, 45 A. 2d 389; Slavin v. Slavin, 162 Pa. Superior Ct. 636, 638, 60 A. 2d 355. Defendant’s conduct, however, was not merely drunkenness or its result. She was suffering from a mental condition which was diagnosed as “Chronic alcoholism,” which is a distinct psychotic disease. See Soltaniuk v. Metropolitan Life Insurance Company, 133 Pa. Superior Ct. 139, 142, 2 A. 2d 501; New England Mutual Life Insurance Co. of Boston v. Hurst, 174 Md. 596, 199 A. 822, 825, 831; Benjeski v. Benjeski, 150 Pa. Superior Ct. 57, 60, 27 A. 2d 266. “ ‘When an alcoholic shows pronounced mental and physical degeneration, he is termed “chronic.” ’”
I note another aspect of this case. Plaintiff testified that he intended to seek a divorce after the incident when he learned that the strong box was missing. His conduct thereafter seems to have been directed toward the recovery of the strong box rather than the preservation of their marriage. He told defendant he would hold up the divorce proceeding if she would release the money and return it to him. It had been placed in both names. Plaintiff testified that the event which made him decide to proceed with the divorce action was when he believed defendant went to the bank for the purpose of obtaining the joint fund. He then instructed his attorney to file a complaint in divorce. Plaintiff’s own conduct, in this respect, raises some question of his good faith in the matter, and it certainly detracts from his claim that defendant’s temperamental conduct rendered his condition intolerable and his life burdensome. See Garroway v. Garroway, 163 Pa. Superior Ct. 317, 319, 61 A. 2d 379, affirmed 361 Pa. 464, 65 A. 2d 414.
It is my conclusion that plaintiff has not met his burden. In fact, his own case establishes the explanation for the conduct of defendant. He has shown only isolated conduct which sprang from defendant’s illness or was intensified by it. The majority would ignore this phase of the case because the defendant for some
The decree of divorce should be reversed and the complaint dismissed.
Judge Wright joins in this dissent.
The conduct of defendant in throwing objects, such as the knife, and her hysteria may indicate something more than a slight display of temper or temporary irritation (Knox v. Knox, 109 Pa. Superior Ct. 45, 48, 165 A. 769), but the three incidents recited do not establish statutory cruelty. See Sleight v. Sleight, 119 Pa. Superior Ct. 300, 303, 306, 307, 181 A. 69; Edelman v. Edelman, 165 Pa. Superior Ct. 485, 487, 69 A. 2d 165; Megoulas v. Magoulas, 166 Pa. Superior Ct. 510, 512, 513, 72 A. 2d 598. No single incident was sufficiently severe in itself to meet that requirement. See Eberly v. Eberly, 154 Pa. Superior Ct. 641, 645, 36 A. 2d 729.
“Chronic alcoholism” is the pathological result of the habitual use of alcohol in toxic amounts. Stedman’s Medical Dictionary, 17th Ed.; The Merck Manual of Diagnosis and Therapy, 8th Ed., p. 1091. It is to be distinguished from “alcoholism” which is the mere morbid effect of excessive ingestion of ethyl alcohol, from “acute alcoholism” which is a temporary mental disturbance with muscular incoordination, and from “dipsomania,” or spree drinking, which is a periodic urge to drink with the desire usually absent between episodes. The Merck Manual of Diagnosis and Therapy, 8th Ed., p. 1091.
Opinion of the Court
Opinion by
This is an appeal from a decree granting a divorce a.v.m. to the plaintiff on the ground of indignities to the person. The parties were married on June 29, 1954 and the divorce action was filed on December 27, 1954. The grounds alleged were indignities to the person and cruel and barbarous treatment. Four hearings were held before the master, who recommended a decree of divorce on both grounds. Exceptions were filed by the defendant, but the court below entered a decree of divorce on the ground of indignities to the person.
The master had the advantage of seeing and hearing the parties and their witnesses and observing their appearance and demeanor while testifying whereas we are confined to the printed record. The demeanor of witnesses is the very touchstone of credibility and may well be the deciding factor in appraising trustworthiness. Megoulas v. Megoulas, 166 Pa. Superior Ct. 510, 512, 72 A. 2d 598.
The master concluded that the weight of the credible testimony rested with the plaintiff. While we are not bound by his findings, his conclusion upon the credibility of witnesses must be given the fullest consideration and should not be lightly disregarded. Brown v. Brown, 163 Pa. Superior Ct. 490, 63 A. 2d 130. After a careful and independent review of the record, we conclude that the decree should be affirmed.
On October 4, 1954, while the plaintiff Avas in bed, the defendant threw a butcher knife at him. The knife weighed about one pound and had a nine-inch blade. Fortunately for the plaintiff, she missed. However, not being satisfied Avith her poor marksmanship, she tried again and threw a crockery slop jar at him. Again she missed the mark. While the plaintiff was leaving the house to summon the police, the defendant threAV another object at him.
On October 6 or 7, 1954 the defendant returned to the plaintiff’s home, with her daughter, to get some of her clothes. The defendant, unknown to the plaintiff,
On October 11 or 12, 1954, the defendant again returned to the plaintiff. One night, while the plaintiff was sleeping in a downstairs bedroom, the defendant fired a revolver out of a kitchen window. The plaintiff managed to take the gun away from her, but a struggle ensued during which the defendant attempted to strike the plaintiff with a broom. The plaintiff took the broom away from her but she grabbed him in the groin. Finally, the defendant, who weighed approximately 225 pounds, fell to the floor. The defendant again left the plaintiff but she returned in December of 1954.
Two days before Christmas, 1954, while at the dinner table, the. defendant threw a fork at the plaintiff. It was 11 5/8 inches long and weighed about one pound. The defendant forced the plaintiff to the floor, tried to bite the plaintiff, then spit at him a dozen times. She then yelled “Murder, murder, murder.” The plaintiff called for the defendant’s daughter. While plaintiff was helping the defendant out. of the house, she attempted to throw her weight against him but fell into a rhododendron bush. The plaintiff ran back into the house, whereupon the defendant broke the front door glass. Shortly thereafter the plaintiff filed this divorce action. None of the incidents above described were provoked by any actions of the plaintiff. The only explanation which the plaintiff could give was that the defendant had been drinking. The defendant made a general denial.
The assaults and batteries committed by the defendant, coupled with the other acts, constitute indignities to the person. Cruel and barbarous treatment and indignities to the person are separate and distinct grounds for divorce. Eberly v. Eberly, 154 Pa. Superior Ct. 641, 644, 36 A. 2d 729, but treatment in the nature of cruelty may be considered on the issue of indignities. Sharpe v. Sharpe, 177 Pa. Superior Ct. 76, 80, 110 A. 2d 804; Trimbur v. Trimbur, supra.
The defendant objected to the testimony of Dr. Kelly and Dr. Frederick on the ground of privilege. The court below did not consider the testimony of Dr. Frederick. We likewise will honor the defendant’s request and will not consider the testimony of either doctor. The hospital record, which the defendant objected to, was withdrawn from the evidence by the plaintiff and we did not consider it.
Plaintiff was corroborated in some of the details by the police officers. Defendant’s witnesses testified in a general, negative vein, and did not seriously contradict what is clear from the record concerning the behavior of defendant. The plaintiff testified that he
We are convinced that the plaintiff is the innocent and injured spouse and has proved his case by a preponderance of clear and satisfactory evidence.
Decree affirmed.
Reference
- Full Case Name
- Robinson v. Robinson, Appellant
- Cited By
- 10 cases
- Status
- Published