Com. ex rel. Messing v. Messing

• Decision Date: 15 June 1961
• Parties: COMMONWEALTH ex rel. Mildred MESSING, Appellant, v. David MESSING.
• Court: Pennsylvania Superior Court

171 A.2d 893

195 Pa.Super. 334

COMMONWEALTH ex rel. Mildred MESSING, Appellant, v. David MESSING.

Superior Court of Pennsylvania.

June 15, 1961.

Application for Allocatur Denied Aug. 16, 1961.

J Webster Jones, Philadelphia, for appellant.

Lester J. Schaffer, Philadelphia, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS MONTGOMERY and FLOOD, JJ.

FLOOD, Judge.

This is an appeal from the dismissal by the Municipal Court of Philadelphia, of the wife-plaintiff's petition for support upon the ground that the defendant-husband had been validly divorced from the plaintiff in Nevada in 1952.

There was no question that the divorce in Nevada was procedurally correct and that notice was sent to the plaintiff. She ignored the proceedings and a divorce decree in favor of the husband was handed down on August 28, 1952 reciting due service of the summons and process upon the wife, the introduction of evidence by the husband in support of the allegations of the complaint, and no rebuttal evidence introduced by the wife. There was a finding by the Nevada court that the husband had been a resident of Nevada for more than six weeks prior to commencement of the action, and an actual bona fide resident and domiciliary of that state physically residing there.

The appellant argues that at the time of the Nevada decree (1) her husband was not a bona fide resident of Nevada and (2) there was outstanding a preliminary injunction which had been issued against him by the Court of Common Pleas No. 7, Philadelphia County enjoining him from prosecuting an action of divorce against the plaintiff in Nevada or in any other jurisdiction outside of Pennsylvania.

1. Under our law the Nevada decree must be recognized as valid since the evidence shows that the plaintiff went into business in Nevada at or about the time of arrival there in 1951 and has remained there since. There is some indication that he moved to California in 1959 although this is by no means clear. Certainly from 1951 to 1959 he lived in Nevada and made his living there. Under these circumstances, even though his motive in going to Nevada may have been to get a divorce, we cannot refuse to recognize the Nevada decree, for the reasons fully set forth by Judge Woodside in Commonwealth ex rel. Lorusso v. Lorusso, 1959, 189 Pa.Super. 403, 150 A.2d 370.

2. If the Nevada court actually had jurisdiction to grant the divorce we must recognize it even though there was an injunction outstanding in Pennsylvania against the husband. The husband's action in prosecuting the divorce action would be a violation of the injunction and he would be in contempt of the order of the Common Pleas Court of Philadelphia, if the injunction were valid and outstanding. But while he would be liable to suffer the penalties of contempt, this would not empower us to ignore the judgment of the Nevada court which had jurisdiction in the matter of the divorce. Equity acts in personam and the Philadelphia court could punish the defendant for disregarding its decree when it...