Com. ex rel. Lorusso v. Lorusso

• Decision Date: 16 April 1959
• Citation: 150 A.2d 370,189 Pa.Super. 403
• Parties: COMMONWEALTH ex rel. Marguerite LORUSSO, Appellee, v. Dr. Nicholas LORUSSO, Appellant.
• Court: Pennsylvania Superior Court

Page 370

150 A.2d 370

189 Pa.Super. 403

COMMONWEALTH ex rel. Marguerite LORUSSO, Appellee, v. Dr. Nicholas LORUSSO, Appellant.

Superior Court of Pennsylvania.

April 16, 1959.

Application for Allocatur Denied June 26, 1959.

Solomon Lubin, Wilkes-Barre, for appellant.

James T. Shea, Shea & Shea, Wilkes-Barre, for appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

WOODSIDE, Judge.

This is an appeal from an order of the Court of Common Pleas of Luzerne County discharging a rule to show cause why an order of support should not be vacated, and the arrearages remitted.

It involves the validity of a Nevada divorce.

Dr. Nicholas Lorusso and his wife, Marguerite, were married July 20, 1946, and separated December 16, 1953. They resided in Wilkes-Barre, Pennsylvania. On March 11, 1954, the doctor was ordered by the Court of Quarter Sessions of Luzerne County to pay for the support of his wife the sum of $120 per month, which was increased in August of that year to $130 per month.

April 1, 1958, the defendant obtained the above rule upon a petition alleging that he was granted an absolute and final decree in divorce from his wife, Marguerite, in Nevada on April 2, 1957, and alleging further that for a time prior thereto he was not able to make all the payments due on the support order, because his earnings were insufficient. Marguerite filed an answer challenging the jurisdiction of the Nevada court to enter the decree in divorce. After a hearing before Judge Flannery the rule was discharged. This appeal followed.

It is well settled in Pennsylvania that a valid divorce decree terminates the duty of a husband to support his wife. Commonwealth v. Petrosky, 1951, 168 Pa.Super. 232, 77 A.2d 647; Commonwealth ex rel. McCormack v. McCormack, 1949, 164 Pa.Super. 553, 67 A.2d 603; Commonwealth ex rel. Parker v. Parker, 1915, 59 Pa.Super. 74. Accordingly, if the Nevada divorce in question is valid in Pennsylvania, the support order, together with any arrearages that accrued after the divorce was granted, must be vacated. On the other hand, if the Nevada divorce decree is not valid in Pennsylvania, there has been no legal termination of the duty to support.

Article IV, section 1 of the Federal Constitution, known as the full faith and credit clause, places the Pennsylvania courts under a duty to accord prima facie validity to the Nevada decree. Esenwein v. Commonwealth ex rel. Esenwein, 1945, 325 U.S. 279, 280, 65 S.Ct. 1118, 89 L.Ed. 1608; Williams v. State of North Carolina, 1942, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279. A decree of divorce is a conclusive adjudication of everything involved therein except the jurisdictional facts on which it is founded. Williams v. State of North Carolina, 1944, 325 U.S. 226, 232, 65 S.Ct. 1092, 89 L.Ed. 1577; Commonwealth ex rel. McVay v. McVay, 1955, 383 Pa. 70, 73, 118 A.2d 144. Domicile is a jurisdictional fact. The bona fides of the domicile of a person granted a divorce in another state is subject to collateral attack in Pennsylvania by a spouse domiciled here who did not appear in the court of the other state. Esenwein v. Commonwealth ex rel. Esenwein, supra; Commonwealth ex rel. McVay v. McVay, supra. The full faith and credit clause requires us to assume that the appellant had a bona fide domicile in Nevada. Willams v. State of North Carolina, supra. The burden is on the party attacking the divorce of a sister state to show by a preponderance of the evidence that jurisdiction was in fact lacking. Commonwealth ex rel. Esenwein v. Esenwein, supra; Williams v. State of North Carolina, 1944, supra, 325 U.S. 226, 233, 65 S.Ct. 1092; Commonwealth v. Petrosky, supra; Commonwealth ex rel. Meth v. Meth, 1944, 156 Pa.Super. 632, 41 A.2d 752; Commonwealth ex rel. Cronhardt v. Crohardt, 1937, 127 Pa.Super. 501, 193 A. 484; Loiacono v. Loiacono, 1955, 179 Pa.Super. 387, 391, 116 A.2d 881.

Domicile involves both the physical presence at a given place, and an intention to make a home there permanently or indefinitely. A change of residence with a present intention to live at the new place permanently or indefinitely constitutes the establishing of a new domicile. Commonwealth ex rel. Meth v. Meth, supra; Commonwealth ex rel. Esenwein v. Esenwein, 1944, 348 Pa. 455, 35 A.2d 335, affirmed in 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608, supra; Melnick v. Melnick, 1943, 154 Pa.Super. 481, 36 A.2d 235; Lesker Case, 1954, 377 Pa. 411, 105 A.2d 376; Wallace v. Wallace, 1952, 371 Pa. 404, 89 A.2d 769.

The question here is whether the appellee has overcome the presumption that the appellant had a bona fide domicile in Nevada.

As stated by the hearing judge, there is no dispute about what the defendant did during the period relevant here.

At the beginning of 1957, the defendant was a medical practitioner in Wilkes-Barre in good standing, member of the Luzerne County Medical Society, a staff member of the Wilkes-Barre General Hospital and owner of a property on Park Avenue in Wilkes-Barre where he had lived since he and his wife separated in 1953.

In January 1957, he closed his office and living quarters, gave up his medical practice, and left for Las Vegas, Nevada, arriving there on January 24th. On March 8, 1957, he instituted a divorce action in Clark County, Nevada. His wife was personally served in Wilkes-Barre, Pennsylvania, with notice of the proceedings, but did not appear either in person or by counsel. The divorce was granted April 2, 1957.

Within a month after he arrived in Las Vegas, Doctor Lorusso sought employment in Nevada as a physician. He found employment with the Southern Nevada Memorial Hospital as a physician at a hospital in Overton, Nevada, a small town of 600 population, 65 miles north of Las Vegas. Before he could accept the position it was necessary for him to obtain a certificate to practice medicine in Nevada. After considerable correspondence, he secured the necessary credentials to obtain a temporary certificate. Upon receiving the certificate he started his employment in Overton on May 21, 1957.

In order to obtain a permanent license to practice medicine in Nevada, it was necessary for him to take an examination in five subjects in the basic sciences--pathology, anatomy, physiology, chemistry and bacteriology. As it had been 18 years since he studied these subjects in medical school, he purchased text books and studied for the examinations. During the month of September 1957, he went to Reno, 450 miles away, and took the examinations. He failed to pass pathology and chemistry. This required retaking the examinations in all five subjects. After further study, he again took the examinations on June 3, 1958, and passed all of them.

Shortly before starting his employment in Overton, the appellant attempted to obtain a recommendation from the Luzerne County Medical Society, and was advised he could not get it without first paying his 1957 dues. He thereupon paid them. In March 1958 he attempted to join the Clark County (Nevada) Medical Society, by obtaining a transfer from the Luzerne County (Pennsylvania) Medical Society, and was told that he would be required to pay his dues to the latter society for 1958, before he could obtain the transfer. He, thereupon, paid his dues for 1958.

In January 1957 he asked for a leave of absence from the Wilkes-Barre General Hospital Staff. Under the rules of the hospital leaves cannot be granted for more than three months at a time. He obtained additional leaves until November 1957 when he resigned.

Since arriving in Nevada in January 1957, the appellant left that state only twice. In September 1957 he flew back to Wilkes-Barre where he remained for about 12 days. At the end of that time he flew back to Nevada, taking with him Mrs. Mary Jane Linso and her 10 year old daughter. He married Mrs. Linso September 21, 1957, in Nevada. The other time he left Nevada was to return to Pennsylvania for the hearing in this case.

He is presently living in a home in Overton, where he is continuing his employment as a physician at the hospital. He has been under contract with the Southern Memorial Hospital continuously since May 21, 1957. His present contract of employment expires June 10, 1959. He is now in his third year as a resident of Nevada.

Since July 1957, defendant has obtained a Nevada driver's license, paid Nevada personal property taxes for the fiscal years 1957-1958 and 1958-1959; registered his automobile and received Nevada license plates; paid a poll tax and registered to vote there; obtained a listing in the Moapa Valley telephone directory; opened a checking and a savings account in a Las Vegas bank; and joined the Moapa Valley Chamber of Commerce and the Las Vegas Chess Club.

As stated above, domicile involves physical presence in a place plus an intention to live there permanently or indefinitely. The physical presence of the appellant in Nevada is a fact not here in issue, as all of the evidence indicates his presence there. Unlike In re Dorrance's Estate, 1932, 309 Pa. 151, 163 A. 303, Lesker case, 1954, supra, 377 Pa. 411, 105 A.2d 376 and Commonwealth ex rel. Harmon v. Harmon, 1953, 172 Pa.Super. 459, 94 A.2d 191, we are not faced with the problem of conflicting testimony concerning the physical presence of the person at the place of alleged domicile.

As the physicial presence of the appellant in Nevada is not questioned, we must direct our attention to his intention. Did he intend to reside there permanently or indefinitely, or did he intend to leave Nevada to return to Pennsylvania, or to go to some other state?

Intention is a thought known only to the person who has it. With our limited ability to extract the throughts of another against his will, we must rely upon what he says his thoughts are and what his acts indicate his thoughts to be. The appellant says when he went to Nevada it was, and thereafter has been, his intention to continue to live there....