Dearth v. Dearth , 141 Pa. Super. 344 ( 1940 )

Whatever humiliation libellant suffered was due to his own complaints to his neighbors about his wife's association with Jubeck. If she was guilty of adultery, he should have laid that as ground for divorce; but he evidently realized that his evidence fell far short of the proof necessary for a decree on that ground. Evidence which is suggestive of adultery but is wholly insufficient to warrant a divorce on that ground, is not probative of indignities to the person, and will not justify a divorce for that cause.

This Court said in Hexamer v. Hexamer, 42 Pa. Super. 226, where a divorce was refused in circumstances more favorable to the libellant than in this case, speaking through Judge WILLIAM D. PORTER: "The burden was upon the libellant 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 libellant. 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."

I would reverse the decree and dismiss the libel.

Judge RHODES joins in this dissent.