Opinion
November 11, 1964.
December 16, 1964.
Divorce — Evidence — Sufficiency — Divorce a mensa et thoro — Cruelty — Indignities to person — Allegations alone not sufficient — Jurisdiction — Residence of plaintiff — Motion to set aside decree — Knowledge of defendant — Time for appeal — Stay of proceedings.
1. The proof required in an action for divorce a mensa et thoro must be as clear as in an action for an absolute divorce.
2. A divorce can never be decreed upon the pleadings but must be based on testimony; and jurisdictional facts must be established by satisfactory evidence.
3. In order to warrant a decree of divorce on the ground of indignities, there must be clear and satisfactory proof of a course of conduct which rendered the condition of the other party intolerable or his life burdensome, and from which an inference of settled hate and estrangement may be deduced; the conduct must have been continual and persistent and not a single act or isolated instance.
4. In this case, it was Held that the evidence was insufficient to establish either cruel and barbarous treatment or indignities to the person as a ground to support the decree.
5. Where it appeared that although defendant's husband did not appear at the hearing he did move to set aside the decree within the six weeks after it was entered, and that there was no evidence that he knew of its entry until he was served with notice of the new petition for alimony filed shortly before that time, it was Held that the doctrine of Worobey v. Worobey, 201 Pa. Super. 41, could not be applied, in the circumstances.
6. A stay of proceedings after a decree is entered in a divorce action stops the running of the statutory period allowed for appeal.
Before ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ. (RHODES, P.J., absent).
Appeals, Nos. 211 and 212, April T., 1964, from orders of Court of Common Pleas of Allegheny County, Jan. T., 1964, No. 491, in case of Franziska A. Nordmann v. Uwe Hans Nordmann. Orders reversed.
Proceedings upon petition of defendant and rule to show cause why a decree in divorce from bed and board should not be stricken and upon petition of plaintiff for alimony pendente lite.
Order entered discharging rule to strike decree and directing husband to pay alimony and counsel fees, opinion by WEISS, J. Petitioner appealed.
Allen N. Brunwasser, for appellant.
R.C. McHugh, with him Joseph F. Weis, Jr., and Weis Weis, for appellee.
Argued November 11, 1964.
The primary question in this appeal is whether the evidence given at the ex parte hearing on the complaint in divorce a mensa et thoro is sufficient to support the decree. The appeal taken from the decree was in time since the proceedings were stayed by order of the lower court following the entry of the decree. Commonwealth v. Samolsky, 202 Pa. Super. 406, 195 A.2d 818 (1963).
The proof required in an action for divorce a mensa et thoro must be as clear as in an action for an absolute divorce. Commonwealth ex rel. Reddick v. Reddick, 198 Pa. Super. 111, 181 A.2d 896 (1962). Accepting the evidence before us as believable, since appellant-husband did not appear to refute it, we conclude that it was insufficient to establish either cruel and barbarous treatment or indignities to the person as grounds to support the decree.
Initially it is observed that there is no evidence to establish jurisdiction. The record shows only that the parties were married May 17, 1958, in Carnegie and went to live with appellee's mother at Lakdale. Lakdale is not identified by county or state and her present address is not given. It is suggested by counsel for appellee that Lakdale was in fact an error and was meant to be Oakdale, Allegheny County, Pennsylvania, as set forth in the complaint, on which the proper allegations of residence are also given, viz., 611 North Highland Avenue, Oakdale, Pennsylvania, and 28 years residence in Pennsylvania. These allegations are not sufficient. A divorce can never be decreed upon the pleading but must be based on testimony. Hepworth v. Hepworth, 129 Pa. Super. 360, 195 A. 924 (1937); and jurisdictional facts must be established by satisfactory evidence. Miln v. Miln, 175 Pa. Super. 613, 106 A.2d 862 (1954).
There is no evidence to support the charge of cruel and barbarous treatment. Appellee's strongest statement is ". . . he flew into this rage and started slapping me around." Much more extreme acts of cruelty were rejected by us in Robinson v. Robinson, 183 Pa. Super. 574, 133 A.2d 259 (1957), although held to be evidence of indignities. However, we are of the opinion that all of the evidence does not satisfy the rule used to determine indignities as a ground for divorce, viz., there must be clear and satisfactory proof to show a course of conduct which renders the condition of the other party intolerable or his life burdensome, and from which an inference of settled hate and estrangement may be deduced. The conduct must be continual and persistent and not a single act or isolated instance. Craig v. Craig, 170 Pa. Super. 530, 85 A.2d 626 (1952).
Appellee's testimony shows but one specific incident which occurred on a New Year's Day when her husband started to slap her around. Even her references to foul names are not followed by any particular names and such occurrences happened only a few times between 1958 and 1963.
Although appellant did not appear at the hearing, he did move to set aside the decree within six weeks after it was entered. There is no evidence that he knew of its entry until he was served with notice of the new petition for alimony filed shortly before that time. We cannot apply the doctrine of Worobey v. Worobey, 201 Pa. Super. 41, 190 A.2d 167 (1963), under the circumstances.
"When such improper motive is apparent, dilatory tactics resulting in the prolonging of litigation will not be countenanced."
We are of the opinion that this matter should be remanded for a full hearing and, in view of that action, the order for permanent alimony and counsel fees must also be vacated, without prejudice to appellee to renew her petition in the lower court for the allowance of same.
Orders reversed and new trial awarded on complaint, without prejudice to renew petition for permanent alimony and counsel fees.