27 A.2d 536 | Pa. Super. Ct. | 1942
Argued May 1, 1942.
On January 25, 1939 upon complaint of relatrix as the wife of the defendant, charging him with nonsupport, the County Court of Allegheny County adjudged him guilty `as charged' and ordered him to pay $80 monthly `for the support of his wife.' No appeal was taken from that order, but after full compliance with it for about a year and one-half, defendant petitioned the court to vacate the order and dismiss the proceeding on *565
the ground that relatrix was not his wife. At the hearing there was testimony of a former marriage of relatrix with one George Shoop on February 13, 1913. But the presiding judge refused to permit any inquiry into the former marriage of relatrix to another man unless the defendant first heard of it after January 25, 1939, the date of the order of support referred to above. On defendant's appeal to this court (Com. v. Knode,
The testimony taken on the rehearing in the court below is entirely sufficient to support the court's findings of fact, in substance, that: On February 13, 1913, relatrix innocently entered into a ceremonial marriage with one George Shoop in the County of Lebanon without knowledge of his prior subsisting marriage. At that time George Shoop was lawfully married to another woman and his former marriage had not been dissolved either by death or divorce. About two weeks after the marriage ceremony, Shoop was charged with bigamy and with perjury in making false answers to questions in his application for a license to marry relatrix. Shoop pleaded guilty to both of these charges in the Court of Quarter Sessions of Lebanon County and was sentenced on both convictions. No proceedings were ever instituted by this relatrix to have her supposed marriage with George Shoop formally annulled by judicial decree. On these findings, the lower court concluded as a matter of law that because the marriage of relatrix to Shoop was bigamous, it was a nullity, and, therefore, did not prevent her from entering into a lawful marriage with defendant. Accordingly, the court refused to vacate the existing order upon defendant for her support and to dismiss the proceedings, but on consideration of relatrix' petition, upon which testimony was taken at the same hearing, increased the support order *566 to $100 per month, an amount not disproportionate to defendant's earnings. This order, the court, in subsequent proceedings, refused to modify. Defendant appealed.
It is conceded, as it must be, that the fact of defendant's marriage contract with the prosecutrix has been finally adjudicated by the order of support, unappealed from, entered on January 25, 1939 and defendant cannot now deny that he was a party to a marriage ceremony with relatrix. The single question, therefore, is whether she then was incompetent to enter into a valid marriage contract with defendant. If so, he is relieved from every obligation to support her; otherwise not. Com. v.Knode, supra.
The principles controlling this appeal were discussed in Klaasv. Klaas,
A decree of annulment in reality does not annul the marriage, for it does not speak only from its date; it merely declares that the marriage was void from the very beginning. It does not create a new status but, on the contrary, affirms that there has been no change in status. A nullity in law is not comparative, to be measured by degrees; it is absolute, implying that the thing has no legal existence. Such decree is no more than a declaratory judgment, judicially determining with certainty and finality that there never was a valid marriage. Many circumstances arise where it may be the part of wisdom to take advantage of available procedure for a declaratory judgment under the Divorce Code of 1929,
Defendant places much emphasis upon the following language ofCom. v. White,
There can be no more persuasive testimony of the nullity of a marriage, than a conviction of the husband of bigamy. Relator, therefore, is the wife of defendant and as such is entitled to support.
Order affirmed.