156 Pa. Super. 385 | Pa. Super. Ct. | 1945
Opinion by
The parties to this support action entered into what they believed to be a valid marriage contract. They lived together as husband and wife for about nine years until their separation in March 1942. One child was born. On May 29,1942, in a proceeding in the municipal court, relatrix obtained an order for the support of herself and the child, increased in October of the same year to $35 per week. In the first proceeding respondent agreed to pay $25 per week for the support of his “wife” and their child and an order was made on the agreement. In his answer to the petition in the second proceeding he admitted that he had married the relatrix
The order of May 29, 1942 was based on appellant’s agreement to pay; the first hearing on the merits was had on August 27, 1942. Appellant then might have offered testimony of his prior subsisting marriage as a defense to his liability for support of relatrix. He was not limited in his proof to a decree of annulment but was free to establish that his marriage with relatrix was void from its inception, in any manner by any competent evidence. Com. ex rel. Knode v. Knode, 149 Pa. Superior Ct. 563, 27 A. 536. In the absence of such proof at that hearing, while he could not thereafter be heard to
Tbe lower court relied upon Com. ex rel. v. May, 77 Pa. Superior Ct. 40 (and our later cases, Com. ex rel. Iacovella, 121 Pa. Superior Ct. 139, 182 A. 727; Com. ex rel. Isaacs v. Isaacs, 124 Pa. Superior Ct. 450, 188 A. 551) in dismissing appellant’s petition. Applying tbe principle of tbe May case tbe court found that tbe order of October 7, 1942, unappealed from, adjudicated tbe status of tbe parties as lawfully married, as well as respondent’s liability for tbe maintenance of relatrix within tbe statute. Viewing tbe order as a final adjudication of a lawful marriage tbe court held that appellant was bound thereby and could not in a later bearing in tbe same proceeding contest tbe validity of tbe marriage or bis liability for support, even by proof of a decree of annulment regularly entered by a court of common pleas of tbe Commonwealth, unappealed from by relatrix.
At most, tbe order of October 1942 was res adjudicata only for tbe purposes of tbe proceeding in which it was entered. It might have been admissible in a subsequent divorce or annulment proceeding between tbe parties, for some purposes, but it could not operate as a bar to either party seeking a divorce or an annulment of tbe marriage. We are of tbe opinion that tbe language of tbe May case is too general for universal application. It has been so recognized. An order of support entered against a husband usually is an adjudication that tbe wife is entitled to support under tbe statute and is not barred by her prior conduct. And yet we know of no case which bolds that tbe husband may not have tbe
We are of the opinion that innocence of one seeking relief is not a controlling consideration. And the fact that the husband here was not the injured party in the bigamous marriage did not foreclose his right to question the support order. It may be that respondent is entitled to relief on jurisdictional grounds alone. The Municipal Court of Philadelphia has jurisdiction “in all proceedings brought against any husband or father” who has deserted his wife or children or has failed to support them. Act of July 17, 1917, P. L. 1015, 17 PS 694. (Emphasis added.) When the information is made by a wife against one alleged to be her husband, the act contemplates an existing valid marriage as a necessary jurisdictional fact. But we are not resting
The order is reversed, but at appellant’s costs, and without prejudice in this or any other proceeding brought by relatrix for the support of the child.
