Barnes v. Buck

• Decision Date: 30 October 1975
• Citation: 346 A.2d 778,464 Pa. 357
• Parties: Virginia L. BARNES, Guardian of the Estate of Betty J. Buck, Appellant, v. Robert C. BUCK.
• Court: Pennsylvania Supreme Court

Page 778

346 A.2d 778

464 Pa. 357

Virginia L. BARNES, Guardian of the Estate of Betty J. Buck, Appellant, v. Robert C. BUCK.

Supreme Court of Pennsylvania.

Argued Nov. 22, 1974.

Decided Oct. 30, 1975.

Ambrose R. Campana, Campana & Campana, Williamsport, for appellant.

Richard T. Eisenbeis, John A. Felix, Fine, Eisenbeis & Felix, Williamsport, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and MANDERINO, JJ.

OPINION OF THE COURT

POMEROY, Justice.

This is a suit in equity for support and maintenance ¹ brought on behalf of Betty J. Buck ² against her alleged husband, Robert C. Buck. Concluding that Betty and Robert Buck were not married and that therefore Betty was not entitled to relief, the trial court dismissed the complaint. This appeal by Betty's guardian followed. ³ We affirm.

Betty J. Buck and Robert C. Buck, the appellee, were legally married in Pennsylvania in 1950, and in 1971 were purportedly divorced in Ohio at the suit of the husband by decree of the Court of Common Pleas of Knox County, Ohio. The question presented is whether or not that decree of divorce is entitled to full faith and credit in Pennsylvania. ⁴

The parties had moved to Ohio in 1954 and were there domiciled at the time of the divorce proceeding. Betty was served with process in that action, but did not appear or defend. The Ohio court found that she had been guilty of gross neglect of duty entitling her husband to a divorce, custody of the minor child of the parties and to division of marital property. It entered a decree accordingly. Subsequent to the divorce the parties separately returned to Pennsylvania, and were residents of this State at the time the present suit was brought.

There is no dispute that the Ohio court had jurisdiction over the parties and the cause of action and that its divorce decree has not been vacated or set aside. The appellant contends, however, that the divorce was fraudulently obtained in that Robert concealed from the Ohio court Betty's known mental incompetence, that this would serve the vitiate the decree in Ohio, and that therefore the decree is not entitled to full faith and credit. Robert responds that the issue of the validity of the divorce decree has been settled adversely to Betty by the same court that entered the divorce decree, and that its reaffirmance of the decree is itself entitled to full faith and credit. To this contention appellant In January of 1973, about 13 months after the divorce decree had been entered, Betty Buck's guardian filed in the Knox County, Ohio, Court of Common Pleas a petition to set aside the divorce decree on the ground that her husband had fraudulently failed to disclose to the court that Betty was mentally incompetent when the divorce action was brought. A hearing upon this petition was fixed for February 16, 1973. On February 9, however, the lawyer for appellant mailed to the clerk of the Knox County court a praecipe to discontinue the action to set aside the divorce decree for the reason that Robert was then residing in Lycoming County, Pennsylvania. The record shows that this praecipe was received by the clerk of court and marked 'filed' on February 15, 1973. The scheduled hearing was held nevertheless on the next day, and, when the petition failed to appeal, the Knox County court granted Robert's motion for dismissal of the petition. ⁵ The text of the decree is reproduced in the margin. ⁶

replies that the Ohio court's action in the latter proceeding was a nullity. The relevant facts as to this claim follow.

The decree of the Ohio court dismissing the petition to set aside the divorce decree, like the divorce decree itself, is entitled to full faith and credit in the courts of Pennsylvania, note 4, Supra. That is, we must give it the same recognition and Res judicata effect as it would receive in the courts of Ohio. ⁷ Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963); Johnson v. Muelburger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951); Lynne Carol Fashions, Inc. v. Cranston Print Works Co.,453 F.2d 1177 (3d Cir. 1972). In an effort to show that the order of dismissal is not entitled to recognition, appellant argues that her voluntary discontinuance of the action to set aside the divorce decree terminated that action on the date the praecipe to discontinue was filed (February 15, 1973); that the Ohio court either intentionally ignored the praecipe or was not made aware of it, but that in either event the parties to the proceeding were no longer properly before the Ohio In effect, appellant is contending that her voluntary dismissal before trial of the action to set aside the divorce decree 'effectively ousted the court's jurisdiction' (appellant's brief at 7), and hence deprived it of the power to enter a decree on the merits. It is true that the full faith and credit clause does not require that we give recognition to a judgment rendered without jurisdiction or without notice and a fair opportunity to be heard; indeed, due process of law mandates that we not do so. See Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Restatement (Second) of Conflict of Laws § 104 and the comment thereto (1971). When, however, the court of another state has purported to act on the merits of a case, its jurisdiction to do so and the regularity of its proceedings are presumptively valid. See Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1944). In the case at bar appellant has failed to carry her burden of showing that the proceedings in connection with her petition to set aside the divorce were irregular in any manner. It is clear that appellant had notice of the February 16 hearing on the petition, and the opportunity to be present. As the court below observed, there is 'no indication that plaintiff's praecipe (to discontinue) was not considered by the Ohio court in issuing its order of February 16, 1973,' nor has the appellant cited 'authority or evidence indicating that the Court of Common Pleas of Knox County acted contrary to the Ohio law.' No appeal was taken from that court's February 16 order, entitled 'judgment decree', see note 6, Supra, and it stands as a final judgment or decree of an Ohio court of record. As such, it must be accorded full faith and credit. It follows that under ordinary principles of Res judicata ¹⁰ appellant may not again litigate in our courts the question of fraudulent procurement of the divorce decree. ¹¹ Because the divorce decree stands unimpaired after challenge in the State of rendition, ¹² Betty and Robert Buck cannot be considered as husband and wife in Pennsylvania. There is thus no basis in law for the support action, and the trial court was correct in dismissing it.

court on February 16, 1973; and that the order of dismissal for want of prosecution entered that day was a nullity. ⁸ [464 Pa. 364] This argument is based upon an Ohio rule of civil procedure which provides that normally a notice by a plaintiff of dismissal of an action is without prejudice. ⁹

Decree affirmed; costs to be equally divided between the parties.

NIX, J., did not participate in the consideration or decision of this case.

ROBERTS, J., filed a concurring opinion.

MANDERINO, J., filed a dissenting opinion.

ROBERTS, Justice (concurring).

I concur in the result because the full faith and credit clause of the Constitution does not require that Pennsylvania entertain in its courts a nonjurisdictional collateral attack on the Ohio judgment.

On this record appellant has failed to establish that her attack on the Ohio judgment rests on jurisdictional grounds. She is, therefore properly denied relief in this proceeding.

MANDERINO, Justice (dissenting).

I dissent. Rule 41(a)(1) of the Ohio Rules of Civil Procedure allows a petitioner to voluntarily discontinue a case without prejudice, provided the case has not previously been discontinued. Since appellant filed on February 15, 1973 a praecipe for discontinuance of her petition to set aside the Ohio divorce decree, the Court of Common Pleas of Knox County had no jurisdiction over the case on February 16, 1973. Therefore, its dismissal of appellant's petition for failure to prosecute was void.

I would, therefore, reverse the chancellor's decree and remand for a hearing to determine the validity of the Ohio divorce decree.

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1 Act of May 23, 1907, P.L. 227, § 1, as amended, 48 P.S. § 131.

2 The suit was brought by Virginia Barnes, the appellant, who was appointed guardian of the estate of Betty J. Buck after the latter had been declared mentally incompetent by the Court of Common Pleas of Lycoming County, Pennsylvania, on October 11, 1972.

3 Act of July 31, 1970, P.L. 673, No. 223, art. II § 202, 17 P.S. § 211.202(4) (Supp.1975).

4 Article IV, Section 1, of the Constitution of the United States provides:

'Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may be General Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.'

The Act of June 25, 1948, c. 646, 62 Stat. 947, 28 U.S.C. § 1738, provides:

'The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authoriticated by affixing the seal of such State, Territory or Possession thereto.

'The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.

'Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United...