Hexamer v. Hexamer

Opinion by Porter, J., The plaintiff filed in the court below a libel praying for a divorce from the respondent, alleging that she, “by cruel and barbarous treatment and indignities to his person, hath rendered the condition of this libelant intolerable and his life burdensome.” The libel as originally filed alleged, as a further ground for divorce, that the respondent had given herself up to adulterous practices and been guilty of adultery with divers persons in this commonwealth and elsewhere, but the libelant saw fit, by an amendment, to entirely eliminate this charge from the issue. The only question which the court below was called to pass upon, or to be considered upon this appeal, is, did the evidence produced establish that the respondent had by cruel and barbarous treatment and indignities to the person of her husband, the libelant, rendered his condition intolerable, and his life burdensome within the meaning of the Act of June 25, 1895, P. L. 308? The court below deemed the evidence insufficient and dismissed the libel; from which decree the libelant appeals; [238] The opinion of the court below, by Judge Martin, which will appear in the report of this case, so fully reviews the testimony and vindicates the conclusion at which he arrived as to render unnecessary an extended discussion of the questions presented. In determining whether there was cruel and barbarous treatment and indignities to the person of the libelant, within the meaning of the statute, which rendered the condition of the latter intolerable and his life burdensome, the whole conduct of the wife towards her husband during the period of the alleged treatment should be considered: Barnsdall v. Barnsdall, 171 Pa. 625; Fay v. Fay, 27 Pa. Superior Ct. 328. The parties were married on January 7, 1891, and dwelt together as man and wife until November 11, 1908, almost eighteen years. One child was born of this union, a daughter, on October 24, 1900. The husband testified to the conduct of the wife during the entire period of their cohabitation, and as to some of the matters covered by his testimony he was corroborated by the testimony of other witnesses. It has been argued here that the testimony established that the conduct of the wife during that entire period had constituted such cruel and barbarous treatment and indignities to the person of her husband as to entitle him to a divorce under the statute. The discontent of this libelant seems, from the testimony, to have had its origin in the discovery of the fact that his wife was not a good cook; that this cannot be considered in passing upon his right to a divorce, under the statute, is too clear for serious discussion. The statute was intended to afford a remedy to the husband for the intentional acts of the wife which could be reasonably held to involve cruel and barbarous treatment, or indignities to his person, resulting in rendering his condition intolerable. There is nothing in the statute which would warrant the courts in granting a divorce because the wife did not do what she was not able to do. The testimony disclosed five alleged acts of trivial violence offered bj^ the wife to the husband, the last of which occurred about six years before the husband left his wife. That physical violence offered by the respondent to the [239] plaintiff was not the cause for his leaving her six years later, in 1908, is clearly established by the testimony. During the intervening six years there was not, so far as the evidence discloses, either violence or anything that could be construed to be a threat of violence. Even had the libelant separated from his wife in 1902, immediately following the last act of physical violence, the evidence produced, as to five widely separated and trivial violent acts, during a period of eleven years, would not have warranted a court in granting a decree of divorce, under the provisions of the act of 1895. The testimony of the libelant to the effect that the respondent had refused, during the period they cohabited, to have unrestrained sexual intercourse with him, does not establish a case of barbarous and cruel treatment, which would justify the granting of a divorce: Magill v. Magill, 13 Pittsburg Legal Journal, 626; Eshbach v. Eshbach, 23 Pa. 343; Platt v. Platt, 38 Pa. Superior Ct. 551. The testimony with regard to the incidents hereinbefore referred to includes all of that produced which referred directly to the treatment of this libelant by his wife; the remainder of the testimony referred not directly to the treatment of the libelant by the respondent, but had reference to the manner in which she treated other men. It has been suggested in the argument for the appellant that the latter withdrew from the libel the allegation of adultery on the part of his wife because of his regard for the future of his child, but, that if necessary, the circumstances disclosed by the evidence were sufficient to establish the graver charge. We cannot thus change the issue. The libelant cannot have a decree of divorce upon any ground other than that alleged in his libel. Courts ought never to sever the marriage contract, but where the application is made in sincerity and truth, for the cause in the libel set forth, and no other, and fully sustained by the testimony: Middleton v. Middleton, 187 Pa. 612; Olson v. Olson, 27 Pa. Superior Ct. 128. The cruel and barbarous treatment and indignities to the person, rendering the condition of the husband intolerable or life burdensome, which are by the act of June 25, 1895, made a cause for divorce, relate [240] to the treatment of the husband by his wife, and her conduct toward him personally. President Judge Rice, in his opinion in Fay v. Fay, 27 Pa. Superior Ct. 328, said: “Nevertheless, the acts or conduct of the wife towards her husband, that will entitle the latter to a divorce under the clause of the statute now being considered, must be not only such as render his condition intolerable or life burdensome, but such as amount to cruel and barbarous treatment. Both of these statutory elements must concur. If by other means, which do not constitute legal cruelty, his condition is rendered intolerable, this clause of the statute does not apply;” and to the same effect Schulze v. Schulze, 33 Pa. Superior Ct. 325. Causes sufficient for the granting of a decree of divorce are such only as are defined by the acts of assembly: Gordon v. Gordon, 48 Pa. 226; Angier v. Angier, 63 Pa. 450; Richards v. Richards, 37 Pa. 225. The burden was upon the libelant in this case to establish by evidence the facts which would entitle him to a divorce for the cause alleged in his libel. He was required to prove that his wife had been cruel to him, had offered indignities to his person, and this burden he could not discharge by proving that his wife had been too kind to other men. The testimony exhibits a state of domestic infelicity, but it does not present a case of cruel and barbarous treatment by the wife of the husband, or indignities to his person, which rendered his condition intolerable and life burdensome, within the meaning of the statute: Hahn v. Bealor, 132 Pa. 242. The testimony, it may be conceded, established that the conduct of the respondent with men other than her husband had been indiscreet and such as to arouse the suspicions, or even the jealousy, of the libelant. The pangs of jealousy may have rendered the condition of the husband intolerable and his life burdensome, but for such a result, produced by such a cause, the statutes do not confer upon the courts jurisdiction to decree a divorce. The decree is affirmed and the appeal dismissed at cost of the appellant.