193 A. 484 | Pa. Super. Ct. | 1937
Argued April 26, 1937. On March 8, 1937, relator, Alice May Cronhardt, obtained an order for support against her husband, the defendant in the court below. The husband, by way of defense, offered in evidence, in the support proceeding a certified copy of a decree of absolute divorce, granted him on October 10, 1935 by the Circuit Court of Baltimore County, Maryland, on the ground of his wife's desertion.
The court below, although it filed no opinion in this case, ruled the Maryland decree invalid, stating, "I do not think we should recognize that divorce down there. It does not seem to me it was obtained in good faith, and there has been no personal service of the proceedings on Mrs. Cronhardt so she might have an opportunity to defend. Therefore I will say we refuse to recognize that divorce and consider them still married. I will make an order on him for the support of the wife." From the order so made the defendant appealed, alleging that the trial court erred in refusing to recognize the Maryland divorce.
The question here presented is whether this Maryland divorce decree was entitled to full faith and credit in the courts of this state under Article 4, Section 1 of the United States Constitution, and as such was a bar to the present action.
The evidence produced in the present action shows that the parties were married in Baltimore, Maryland, in 1902 where they lived as husband and wife for *503 thirteen years, until 1915, when relator left her husband, allegedly because he was a pervert, and came to Philadelphia where she has lived ever since, up to and including the commencement of this proceeding on February 2, 1937.
Shortly after she left Baltimore, he also came to Philadelphia where he has been employed or in business ever since. They lived entirely apart in Philadelphia and there never was a reconciliation after their separation in 1915.
The principal point of dispute on this appeal is whether the evidence in this support proceeding shows that his domicil at the time he applied for a divorce in Maryland was in fact in Philadelphia. She testified that after coming to Philadelphia he lived in different rooming houses in Philadelphia, was in business there and had his address in the Philadelphia telephone book; that he "lived" in Philadelphia and had a position there ever since she came there.
The record and evidence in the Maryland divorce proceedings, introduced in evidence in this case, showed that at the time that action was instituted, namely in August of 1934, he resided with his sister and her husband in Catonsville, Baltimore County, Maryland, where he had lived for fifteen or twenty years preceding, although he commuted to Philadelphia for business during the last seven years. His sister corroborated the fact that he resided during this time with her and her husband in Maryland. The record of the Maryland divorce case shows that there was no actual notice or service of process upon the wife in that action, service being by publication only.
Defendant, testifying in his own behalf, stated that since coming to Philadelphia he boarded at various places, had apartments at others, that he was first employed by a wholesale grocery firm and later went into the brokerage business on Front Street where he was *504 Philadelphia manager for a Pittsburgh firm, that for eight or ten years preceding the hearing he had paid for a room at his sister's in Maryland, had a bank account, his will, and some clothing there, went down there week ends and holidays, and that he never intended to make Philadelphia his permanent domicil.
So far as the record in the present case shows, the Maryland court granting the husband a decree of divorce had such jurisdiction of the parties and the subject matter as would make it necessary for the court below to grant the decree full faith and credit under the United States Constitution, Article 4, Section 1.
In this respect the present case is ruled by Atherton v.Atherton,
The United States Supreme Court reiterated its ruling in the Atherton case in Thompson v. Thompson,
The principle regarding the jurisdiction of a state to decree a divorce in relation to the domicil of the parties therein, as announced by the United States Supreme Court in the Atherton and Thompson cases, is given in the Restatement, Conflict of Laws, Section 113 as follows: "A state can exercise through its courts jurisdiction to dissolve the marriage of spouses of whom one is domiciled within the state and the other is domiciled outside of the state if, . . . . . . (b) the state is the last state in which the spouses were domiciled together as man and wife." Comment f. under this section of the Restatement reads: "Decree at last matrimonial domicil. If suit is brought at the last domicil where the spouses lived together, the party who has left that domicil cannot justly complain of being called back there to litigate the question of divorce by the spouse still domiciledthere (italics supplied)."
The relator in the present case could, of course, attack the decree of the Maryland court by showing that it lacked jurisdiction of the subject matter or of the parties. It is firmly established that, where the full *506
faith and credit clause is relied upon to compel the enforcement in one state of a decree rendered in another, the facts essential to the jurisdiction of the court granting the decree may be contradicted. In Thompson v. Whitman,
In Haddock v. Haddock, supra, the court stated (p. 573) ". . . . . . it is elementary that where the full faith and credit clause of the Constitution is invoked to compel the enforcement in one State of a decree rendered in another, the question of the jurisdiction of the court by which the decree was rendered is open to inquiry. And if there was no jurisdiction, either of the subject matter or of the person of the defendant, the courts of another State are not required, by virtue of the full faith and credit clause of the Constitution, to enforce such decree. . . . . ." The dissenting opinion in the Haddock case also announces this principle as follows (p. 608): "Doubtless the jurisdiction of the court granting the divorce may be inquired into, and if it appear that the plaintiff had not acquired a bona fide domicil in that State at the time of instituting proceedings, the decree is open to collateral attack, Bell v. Bell,
That domicil is a jurisdictional fact necessary to the extra-territorial validity of a foreign decree of divorce, the lack of which may be raised in a collateral proceeding is shown by the following Pennsylvania cases, some of which involve the refusal to recognize Nevada divorces, rendered on constructive notice only: Colvin v. Reed,
However, the Maryland decree offered in evidence in the present case by the defendant husband is presumed to be valid, and the burden was upon the relator to show by a preponderance of the evidence, that defendant was not in fact domiciled in Maryland when he applied for a divorce there, or that there were other facts negativing the jurisdiction of the Maryland court.
In Delanoy v. Delanoy,
In the case at bar, the Maryland decree was a finding by the Maryland court that libellant was domiciled in that state when he applied for the divorce there. The divorce laws of Maryland [Bagby's Annotated Code, Laws of Maryland, Article 16, Sections 37 and 40] require that libellant have his "residence" in the county where the action is brought. The Maryland courts have stated that "residence" as used in the states divorce law means domicil: Harrison v. Harrison,
As Maryland was the matrimonial domicil, and also, so far as this record shows when considered with relation to the burden of proof, the domicil of the husband-libellant when he applied for a decree there, the case is ruled by Atherton v. Atherton, supra, and Thompson v. Thompson, supra; the Maryland decree must be given full faith and credit and as such is a bar to the present action [Commonwealth v. Allen,
Order of the court below is reversed and the petition for the order of support is dismissed, without prejudice, however, to the right of the relator to attack the validity of the decree in divorce entered by the Circuit Court of Baltimore County, Maryland.