33 A.2d 675 | Pa. Super. Ct. | 1943
Argued May 3, 1943.
In 1901, the Supreme Court of the United States held that the jurisdiction of a state court granting a divorce may be inquired into and, if it appear that neither of *71
the parties had acquired a bona fide domicil in that state at the time of instituting proceedings the decree is open to collateral attack and a recital in the proceedings that such domicil existed may be contradicted. Bell v. Bell,
In 1906, it held that a state court, even of the plaintiff'sdomicil, could not render a judgment in divorce that would be entitled to enforcement in other states against a non-resident who did not appear and was not personally served of the process.1Haddock v. Haddock,
On December 21, 1942, it overruled Haddock v. Haddock (Williamsv. State of North Carolina,
Were it not for the misleading press notices and the generally confused discussion of the Williams Case emanating, perhaps, from the somewhat extravagant language in the dissenting opinion of Mr. Justice JACKSON,2 it would scarcely be necessary to point out the limited effect of this decision. We shall discuss it briefly.
Mr. Williams and Mrs. Hendricks had long been domiciled in the State of North Carolina; they were both married to others. In 1940, they went to Las Vegas, *72
Nevada, and after remaining the few weeks required by Nevada law, were granted divorces, intermarried and returned to North Carolina where they set up housekeeping as husband and wife. They were promptly indicted and convicted of bigamy. They defended by offering in evidence the Nevada decrees. The jury were instructed to find them guilty if either (1) they had not acquired a bona fide domicil in Nevada, or (2) if their matrimonial domicil was in North Carolina and the Nevada divorces had been procured without personal service in Nevada or without an appearance by the defendant-spouse. When the case was argued in the Supreme Court, the state did not seek to sustain the judgment on the ground the domicil was a sham. As said by Mr. Justice DOUGLAS, ". . . . . . it[the state] admits that there probably is enough evidence in the record to require the petitioners to be considered `to have been actually domiciled in Nevada'" (
The case was sent back, presumably for the very purpose of retrial on the issue whether the Nevada domicils were bona fide. Not only do we think the language of the majority opinion reaffirms Bell v. Bell, but if the court had been of opinion that a mere residence for the required period would support a valid decree it would have directed that defendants be discharged.
We now come to a consideration of the facts of the present case.
The parties were married in 1899. They have not lived together since 1919. In 1920, the husband instituted divorce proceedings in Allegheny County and obtained a decree of divorce in 1932 on the ground of indignities. On appeal, this court reversed and dismissed the libel (
In June 1941, the husband went to Las Vegas, Nevada, and on September 8, 1941, was granted a divorce *74 on the ground that the parties "had lived separate and apart for more than three consecutive years last past and immediately preceding the commencement of this action, without cohabitation," a ground not recognized by our divorce laws. The wife was not served in Nevada and she did not enter an appearance although she was served in Pennsylvania.
The present petition is for the revocation of an order for support made in March 1922 and subsequently modified several times. The basis of the petition for revocation is the Nevada divorce decree. Com. ex rel. v. Parker,
The Nevada decree is prima facie valid and the burden of proving the contrary was on appellee. Com. ex rel. Cronhardt v.Cronhardt,
In our opinion the Nevada decree was invalid for the reasons just stated and the order of the court will be affirmed. We have not been asked to recognize the Nevada decree on the ground ofcomity. There is, perhaps, some doubt whether we could even if we were so inclined. See Goodrich, Conflict of Laws, § 19. It is obviously not a case for the application of the principle. The ground upon which the divorce was granted in Nevada is not a ground recognized by this commonwealth; appellant undoubtedly went there for the purpose of evading our laws under which his previous attempts to obtain a divorce were frustrated; the legitimacy of children is not involved; and there are no other circumstances which at all appeal to us. Compare Commonwealth v.Custer,
In view of our conclusion, it is unnecessary to discuss at length the question whether the Nevada decree was invalid on the additional ground that, because of the previous decisions of this court against him, appellant's right to a divorce was res adjudicata. Refusal of a divorce on one ground is not a bar to procuring it in another action on a different ground. *76 Viney v. Viney,
The orders are affirmed, costs in each appeal to be paid by appellant.