Phipps v. Phipps

In this case, the libellant sued for divorce on the grounds of cruel and barbarous treatment and indignities to his person. At trial, he abandoned the cruel and barbarous treatment charge and rested his case on indignities in connection wherewith he proved, inter alia, an act of adultery on the part of the respondent. The learned trial judge entered a decree of divorce which, on appeal, the Superior Court unanimously affirmed (one judge being absent): see Phipps v. Phipps, 165 Pa. Superior Ct. 622. We granted an allocatur primarily because on an apparent conflict between the decision in the instant case and the decision in Allen v. Allen, 165 Pa. Superior Ct. 379, with respect to whether evidence of an act of adultery is relevant and material to an issue of indignities to the person of the libellant. If such evidence is admissible in the situation indicated, then a secondary question follows as to whether the fact of adultery must have been known to the libellant prior to the institution of the divorce action in order to render such evidence competent at trial.