FAMILY LAW:

S.M.C. v. W.P.C.

2012 Pa. Super. 92, 44 A.3d 1181 (2012)

Opinion by DONOHUE

W.P.C. ("Husband") appeals from the order . . . entered by the hearing officer which, inter alia, granted S.M.C. ("Wife") spousal support. . . .

ENTITLEMENT TO SPOUSAL SUPPORT

Husband's first three issues on appeal address the trial court's determination that Wife is entitled to spousal support. He asserts that it was error for the trial court to award spousal support in this case because of her voluntary departure from the marital residence, and her exposure of Husband to indignities by going on a cruise with her friends prior to separation and engaging in an extramarital affair post-separation. . . . He also argues that the trial court erred by excluding evidence of Wife's post-separation affair. . . .

The law pertaining to spousal support in Pennsylvania is clear: "Married persons are liable for the support of each other according to their respective abilities to provide support as provided by law." 23 Pa. C.S.A. 4321(1). A long-recognized exception to the obligation to pay spousal support exists where the recipient spouse conducts him or herself in a manner that would constitute grounds for a fault-based divorce. . . .

Initially, we note that all of Husband's arguments regarding Wife's non-entitlement to spousal support are grounds for a fault-based divorce, to wit, indignities and desertion. . . . We begin with Husband's argument that he was subjected to indignities based upon Wife's post-separation extramarital affair. . . . The trial court found that Wife's post-separation conduct was irrelevant for purposes of determining her entitlement to spousal support based upon this Court's decision in Jayne v. Jayne, 443 Pa. Super. 664, 663 A.2d 169 (Pa. Super. 1995), and thus her post-separation relationship with another man was not a basis for denying Wife spousal support.

In Jayne, the wife testified that she believed her husband was engaging in an extramarital affair after they separated. . . . Based on this evidence, the hearing master concluded that the wife had presented sufficient evidence to grant a divorce on the ground of indignities. . . .

Because the extramarital affair and protection from abuse proceedings both involved post-separation conduct by the husband, and the record did not support a finding that they shed light upon the behavior of the parties pre-separation, the Jayne Court concluded that the evidence should not have been considered by the hearing master. Id.

Turning to the case sub judice, we agree with the trial court that the holding announced in Jayne case precludes the consideration of post-separation conduct in determining whether Wife is entitled to spousal support. Although Husband is correct that the holding does not specifically address spousal support, as we stated above, spousal support can only be denied if the recipient spouse exhibits conduct that would constitute a ground for fault-based divorce. A fortiori, if there is no evidence of conduct that would constitute grounds for a fault-based divorce, then a spouse is entitled to support. Because post-separation conduct does not constitute a basis for granting a fault-based divorce without evidence that it sheds light on the pre-separation conduct of the parties, it likewise cannot be a basis for precluding the award of spousal support.

The record does not support a finding that Wife engaged in an extramarital affair prior to separation. Likewise, just as in Jayne, the record does not support a finding that Wife's post-separation conduct shed light on her conduct prior to separation. The evidence of Wife's post-separation affair was therefore irrelevant, as it did not constitute a ground for fault-based divorce based on indignities. As such, the hearing officer correctly excluded evidence of Wife's post-separation affair, and the trial court did not abuse its discretion by denying Husband's exceptions on that basis.

Husband also contends that Wife should not have been granted spousal support because she went on a cruise without him, over his objection, which he argues gives rise to a finding of indignities, as he was angry and hurt by her behavior. . . .

There is no specific definition or test as to what constitutes indignities. "Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement." Hunsinger v. Hunsinger, 381 Pa. Super. 453, 554 A.2d 89, 91 (Pa. Super. 1989) (quoting McKrell v. McKrell, 352 Pa. 173, 180, 42 A.2d 609, 612 (1945)). A single act by a spouse, however, will not give rise to a finding of indignities. Rather, "indignities 'must consist of a course of conduct or continued treatment which renders the condition of

the innocent party intolerable and his or her life burdensome . . . a course of conduct as is humiliating, degrading and inconsistent with the position and relation as a spouse.' " Id.

Clearly, the act of going on a single vacation with friends despite Husband's protestations does not qualify under the above definition of indignities. Furthermore, Husband's testimony that he was "angry" and "insulted" by Wife going on the cruise is insufficient to show that her travel rendered his condition intolerable or his life burdensome. . . .

Husband further argues that Wife was not entitled to spousal support because she left the marital home without cause and against his wishes, i.e., a claim of desertion. The trial court found that Wife was justified in leaving the marital residence based upon Husband's emotional abuse of Wife.

In order to overcome a claim of desertion, the trial court must find that the departing spouse presented evidence of "an adequate legal cause for leaving." Clendenning v. Clendenning, 392 Pa. Super. 33, 572 A.2d 18, 20 (Pa. Super. 1990) (citations omitted). . . .

In Clendenning, testimony by a wife regarding her husband's anger, yelling, beating his cane on a table, and demands that she conduct herself in accordance with his wishes was found to be an adequate legal cause for the wife to have left the marital home. . . .

In the case at bar, Wife testified that Husband was "emotionally abusive." She indicated that she attended marriage counseling for three years before leaving in an attempt to save their marriage, but that Husband did not participate. Wife testified that Husband sent her "mean messages" while she was on a cruise with her friends, calling her a "whore" and telling her to "suck his dick," which caused her to be afraid to return to the home. Wife stated that Husband "bullied" her, and that she and E.C. were fearful when they knew Husband was coming home.

Based upon existing precedent, we conclude that there was sufficient evidence for the trial court to conclude that Wife had adequate legal cause to leave the marital home, and that she did not depart "maliciously or casually on a whim or caprice.". . .

QUESTIONS

1.Why was the husband seeking to show that the wife had engaged in behavior that would entitle him to a fault divorce?

2.What impact did the wife's post-separation conduct have on the husband's support obligation?

3.Under what circumstance might this conduct have been given more weight by the court?