Com. v. Case

• Decision Date: 19 March 1963
• Parties: COMMONWEALTH v. Russell J. CASE, Appellant.
• Court: Pennsylvania Superior Court

Page 756

189 A.2d 756

200 Pa.Super. 200

COMMONWEALTH v. Russell J. CASE, Appellant.

Superior Court of Pennsylvania.

March 19, 1963.

Rehearing Denied April 18, 1963.

William J. Carlin, George T. Kelton, Bristol, for appellant.

T. S. Cadwallader, Cadwallader, Darlington & Clarke, Yardley, for appellee.

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

PER CURIAM.

The order of the court below is affirmed on the opinion of Judge Monroe of the Court of Quarter Sessions of Bucks County.

WOODSIDE, Judge (concurring in part and dissenting in part).

I concur with this court's conclusion that an order for the support of the defendant's wife was properly made for the reasons set forth in Judge Monroe's scholarly opinion, but I think under the circumstances the amount of the order was exorbitant.

Orders for the support of a wife are limited to one-third of the husband's income or earning power. This is the maximum allowed to the most worthy wife--one who has spent her life sacrificing to help an ungrateful husband accumulate his capital, develop his earning capacity and rear his children only to be cast aside when she has become needy, ill and old.

In the case before us, the relatrix owned and operated a dress shop for 12 years, going out of business after she left the defendant. At the hearing a few months later, she first denied, and then reluctantly admitted, that she had leased a storeroom to go back into the business. She lived with the defendant--in luxury--for less than a year. In order to marry him, she left and divorced her former husband after many years of married life, cooperated with the defendant in his leaving and divorcing his wife after many years of married life, and committed a fraud upon the courts of Alabama to get her divorce. Certainly, this relatrix is not entitled to the most liberal order possible. Nevertheless, her desertion and fraud proved to be a good investment for her. The defendant is ordered to pay $120 a week, plus taxes and mortgage installments, making a total of $8280 a year. ¹

The defendant's income tax return shows gross income of $25,983 in the last reported year. He pays his first wife $7200 a year under an agreement entered into with the relatrix's knowledge, and undoubtedly with her consent and for a purpose which she then thought was for her benefit. (The defendant paid both his wife and the relatrix's husband, who thereupon entered no objections to the fraudulently obtained divorce.) The trial judge concluded that the defendant had income in excess of the amount he returned for income tax purposes, and set his gross income at $34,823 and his net income, after taxes and the payments to his first wife, at $19,123.

A sound argument might be made that the order exceeds one-third of the defendant's earning capacity, but whether or not it does, I think it is excessive. I would reduce the weekly order to $75, which, added to the mortgage and real estate tax payments, would constitute an order of $5940 a year.

MONTGOMERY and FLOOD, JJ., join in this opinion.

The opinion of Judge Monroe follows:

The defendant, Russell J. Case, is being charged with violation of Section 733 of the Penal Code of the Commonwealth of Pennsylvania in that he was failed to support his wife, Hellene R. Case. The defendant was formerly married to Elma Case; on the third day of February, 1961, he secured a 'Final Decree of Divorce' from her in Geneva County, Alabama. The prosecutrix was formerly married to Robert Lanning Kulp; on the fourth day of February, 1961, she secured a 'Divorce Decree' from him in Covington County, Alabama. A general appearance for both spouses is noted in the decrees which are incorporated in the record. On February 17, 1961, Russell J. Case and the prosecutrix were married in Morrisville, Bucks County, Pennsylvania.

The defendant denies that the divorce decrees obtained by the parties in Alabama were valid because of the fraud committed on the Courts in Alabama and hence contends that he is not now legally married to the prosecutrix. Both the divorce decrees contained a provision prohibiting each party thereto from remarrying except to each other for a period of sixty days.

On this phase of the case there is no real conflict in the testimony of the prosecutrix and the defendant. They had been 'going together' for approximately two years prior to February, 1961. Mr. Case gave Mr. Kulp a check for $10,000.00 for Mr. Kulp's share of the Kulp residence at 1911 Yardley Road, Yardley, Pennsylvania. During the last week of January or the first week in February, 1961, the exact date is uncertain, Mr. Case and Mrs. Kulp left together by car for Montgomery, Alabama, to obtain divorces from their respective spouses. They stayed in a Montgomery Motel for two nights. Both Mr. Case and Mrs. Kulp went to the same Montgomery attorney recommended to Mr. Case by his company attorney. It was Mr. Case's idea that the parties should get their divorces in Alabama. After one visit to the attorney's office in Montgomery, the parties left Montgomery, picked up Mrs. Kulp's daughter in Virginia and returned to Bucks County.

Prior to the Montgomery visit, Mr. Case lived in an apartment in Morrisville, Bucks County; Mrs. Kulp lived in the 1911 Yardley Road house in Yardley, Bucks County. Prior to leaving for Montgomery and on her return therefrom, Mrs. Kulp was operating her own business in Trenton, New Jersey. Its operation was discontinued in January of 1962. Mr. Case has been continually employed by a corporation manufacturing pork meat products, in Trenton, New Jersey. Both parties testified that they had never been to Alabama prior to this trip, did not own any property in that state, and had never established a residence there for voting purposes.

From the foregoing it is clear that the Cases perpetrated a fraud on the Courts in Alabama as they were never good-faith residents in that state. It is equally clear that the full faith and credit clause bars a defendant from attacking a divorce on jurisdictional grounds in the courts of a sister state where both spouses have submitted themselves to the personal jurisdiction of the courts of the rendering state and the decree is not subject to such attack in the courts of that state. Sherrer v. Sherror, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948); Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, 1452 (1948); compare Harrison v. Harrison, 183 Pa.Super. 562, 133 A.2d 870 (1957). Mr. Case, therefore, cannot attack the validity of his own divorce decree in this proceeding, if he could not do it in Alabama. In Alabama, a spouse may not attack a collusive divorce where he himself participated in the collusion. Wright v. Wright, 230 Ala. 35, 159 So. 220 (1935). The leading case is Levine v. Levine, 262 Ala. 491, 80 So.2d 235 (1955), in which in wife sought by direct attack to set aside a divorce obtained by her husband several years earlier in an action in which she had appeared. The court held that the wife was estopped from asserting the invalidity of the divorce because she either participated in the fraud on the court or was negligent in failing to contest the residence issue.

The defendant asserts that even if he is estopped from attacking the validity of his own decree, he is not precluded from attacking the validity of the decree obtained by Mrs. Kulp. But third-party attack on a divorce decree in a sister state is dependent on its availability in the rendering state. Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (1951). In Fairclough v. St. Amand, 217 Ala. 19, 114 So. 472 (1927), the Alabama Supreme Court held that one in privity with a person who by fraudulent conduct procures a divorce is estopped to question its validity. The facts in that case were similar to those in the instant case in that the second husband was seeking to have his wife's prior divorce declared invalid because of a fraud as to residence. The court held that Fairclough was the instigator of the prior suit, '[h]is was the guilty knowledge of all the facts and the law in the premises * * *. His subsequent marriage to Dorothy after the divorce in Alabama and his recognition of the child by her are additional reasons or grounds for the estoppel against him as the real, active, guilty party in interest here.' Fairclough, supra, at 473, 474. Likewise in Mussey v. Mussey, 251 Ala. 439, 37 So.2d 921 (1948), the court held that the husband was estopped to deny the validity of a Nevada decree, where he was the principal movant in the Nevada proceedings wherein his wife was divorced from her first husband.

In the instant case, Mr. Case admits that it was his idea that he and Mrs. Kulp should go to Alabama to obtain their divorces. And on the strength of those divorces, he married her. Since Mr. Case would be estopped in Alabama from attacking the validity of the Kulps' divorce, he is estopped in Pennsylvania from collaterally attacking it.

Mr. Case and Mrs. Kulp were married in Pennsylvania within the sixty day prohibited period specified by their decrees. Pennsylvania follows the general rule that the validity of a marriage is determined by the law of the place where it was contracted. Commonwealth v. Custer, 145 Pa.Super. 535, 21 A.2d 524 (1941); Jewett v. Jewett, 196 Pa.Super. 305, 175 A.2d 141 (1961). This rule is applicable except where the marriage is repugnant to the public policy of the domicile of the parties, in respect to polygamy, incest, or miscegenation, or is otherwise contrary to its positive laws, or is entered into a fraud or in evasion of the law of the domicile of the parties. It is abundantly clear that Pennsylvania is the domicile of the parties, the marriage occurred in Pennsylvania and there is nothing in the laws of Pennsylvania which requires, as a matter of public policy or otherwise, a waiting period after a divorce decree.

While we have been unable to find any Pennsylvania cases...