Moore v. Moore

64 Pa. Super. 192 | Pa. Super. Ct. | 1916

Opinion by

Williams, J.,

By the decree of the court below made September 22, 1910, upon a libel or petition, these parties were absolutely divorced from the nuptial ties and bonds theretofore contracted by them. In making this decree the court added an order upon the respondent to pay to the libellant during the term of her natural life the weekly sum of seventy-five dollars. This amount was paid by him until June 7th, 1915, when he ceased the payment. Upon petition setting forth these facts a rule was granted upon respondent to show cause why he should not be judged guilty of contempt in not obeying the decree of the court. This rule was subsequently discharged, and this appeal questions the correctness of the ruling of the court below.

With the merits of the divorce we have no concern, as there is no appeal by either party upon that question.

Our inquiry is confined to the correctness of that part of the decree which provides for the payment by the respondent to the libellant “weekly and every week thereafter during the term of her natural life of the sum of seventy-five dollars as support or alimony.”

If the court below, when it made the decree of divorce a. v. m. had the power, either by common law or under the provisions of a statute to order the payment of alimony, then the rule for the attachment should have been made absolute and the decree of the court must be reversed— otherwise, it must be affirmed.

Divorces a vinculo matrimonii were not decreed in ecclesiastical courts. Hence alimony was granted by them only as an incident to' a divorce a mensa et thoro: 14 Cyc. 743—note, citing Rees v. Waters, 9 Watts 90. Except where the common law rule has been changed by statute, alimony cannot.be awarded upon a divorce a vinculo matrimonii or sentence of nullity.

The Constitution of 1874, Art. 3, Sec. 7, prohibits the legislature from passing special laws granting divorces. Since all divorces are now by virtue of statute law, and as there is no provision for the order of the court for the payment of permanent alimony in divorce a. v. m., except where the husband is the libellant under the Act of May 8, 1854, P. L. 644, as amended by the Act of June 25, 1895, P. L. 308, it follows that the order decreeing alimony cannot be sustained unless by reason of the lapse of time the appellee is estopped from questioning the decree.

The Supreme Court, in Wall v. Wall, 123 Pa. 545, Justice Williams (p. 553), said: “If such want of jurisdiction appear upon the record, it can be taken advantage of at any time and in any court where the conclusiveness of the judgment is the subject of judicial inquiry. The reason for this is the fact that the record of the judgment bears upon its face the proof of its illegality and shows the want of power in the tribunal to render it.” See also, Poor Directors v. Poor Directors, 25 Pa. Superior Ct. 595, (600).

It follows, therefore, that as the court had no power to decree the payment of alimony, and as that decree can be and has been questioned, the order discharging the rule for an attachment'must be affirmed.

Appeal dismissed.