Com. v. Doughty

• Decision Date: 11 September 1958
• Parties: COMMONWEALTH v. Stewart E. DOUGHTY, Appellant.
• Court: Pennsylvania Superior Court

Page 521

144 A.2d 521

187 Pa.Super. 499

COMMONWEALTH v. Stewart E. DOUGHTY, Appellant.

Superior Court of Pennsylvania.

Sept. 11, 1958.

Application for Allocatur Denied Nov. 19, 1958.

Bernard V. DiGiacomo, Conshohocken, for appellant.

A. Benjamin Scirica, Norristown, for appellee.

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

WATKINS, Judge.

This is an appeal from the order of the Court of Quarter Sessions of Montgomery County, dismissing exceptions to a support order imposed upon the appellant husband, Stewart E. Doughty, requiring him to pay the sum of $40 per week for the support of his minor son, Ross, age 11, and $20 per week for the support of his wife Ann, a total of $60 weekly. The amount of the said order to be effective so long as the wife and son occupy the property held by the entireties and the appellant continue to pay the carrying charges on said real estate.

The appellant claims that the court below erred in entering any order; and that the order made was excessive and so vague as to prohibit compliance therewith.

The parties were married under fictitious names, in Elkton, Maryland, October 9, 1935. The wife at that time was 18 years of age, the husband nine months older. This marriage was kept secret and on December 14, 1941 they went through another marriage ceremony under their correct names and thereafter lived together as man and wife. There is one child of the marriage, a son Ross, who was eleven years old at the time of this action.

It was apparently a happy marriage and they lived together without untoward incident in a home owned by the entireties in Creamery, Montgomery County, Pennsylvania. In June of 1956 the husband advised his wife that he had been having an affair with another woman for the past six or seven years and that she was pregnant. However, he promised not to see her again, so his wife forgave him and they continued to live together.

On November 17, 1956 the appellant put into operation a plan to get rid of his marriage obligation, more devious and complicated than has ever come to our attention. While the parties were on a shopping trip, he took his wife to the office of his attorney. She was there confronted with a prepared separation agreement and also a power of attorney containing a waiver of summons, entry of appearance and submission to the jurisdiction of a Mexican District Court, for the purpose of enabling the appellant to secure a Mexican divorce. The power of attorney contained unfilled blanks, including the agent's name and was in the past tense, setting forth that a divorce had already been begun when in fact, it had not at that time been instituted.

The appellant gave as his reason for this sudden drastic action that he was being threatened with arrest by the other woman; that he would be disgraced, lose his position and be forced to sell the stock in his father's corporation; and that the pregnant woman's three brothers were 'gunning' for him unless these arrangements were completed. He further persuaded her to sign, by promising that the divorce and his marriage to the other woman was only for the purpose of giving the expected child a name and that he would immediately divorce the other woman and remarry her.

Under these circumstances and without legal counsel and being advised to tell no-one of the arrangements, she signed the papers. She was understandably 'numb and nervous' at the time and did not fully understand the provisions of the documents.

The same evening the appellant flew to El Paso, Texas and the day following telephoned his wife that he was coming home and could not go through with it. He returned and continued to live with his wife.

On November 25, 1956, he again flew to El Paso, Texas. On this visit he remained three days. He merely crossed the bridge to Juarez to appear in court. He did not stay in Mexico even for one night, never lived there and had no intention to live there. He again returned to his home and wife on November 28, 1956. The Mexican divorce is dated November 28, 1956 and it was marked filed November 26, 1956.

Notwithstanding the separation agreement and the Mexican divorce they continued to live together without any change in their relationship. They made family plans for Christmas; celebrated their wedding anniversary; went out to dinner parties together with friends and never disclosed the incidents of the separation agreement and divorce.

On May 17, 1957 without any warning or notice, the appellant left their home, leaving a note in which he disclosed that he had married the other woman in December and that a child was born on December 18. He asked her to take it easy on his reputation as he now had five people to support. He indicated he expected the terms of the separation agreement to be carried out. He ended his note with the endearing words, 'Will die loving you'. He established a home in Norristown for the other woman and her child where he is presently living. On June 12, 1957 the wife brought this action.

None of the provisions of the separation agreement were performed by the appellant from the date of the execution of the agreement on November 17, 1956 to the date of his leaving on May 6, 1957. To this date he has not met several of the provisions of the agreement including the transfer of real estate owned by the entireties, to the wife.

A separation agreement between a husband and wife generally provides for the wife's support during the separation and subsequent reconciliation and cohabitation presumably ends the deed of separation. Commonwealth ex rel. Makowski v. Makowski, 1948, 163 Pa.Super. 441, 62 A.2d 71. The return of this husband to his wife after he told her he was unable to go through with his plans, their living together as man and wife for a period of seven months, visiting friends, celebrating a wedding anniversary and conducting themselves publicly as a happily married couple are wholly inconsistent with the provisions of an agreement releasing the husband from the obligation for the support of his wife. It is clear, by this action, that the parties indicated their intention of abandoning the provisions of the contract. Commonwealth ex rel. DiValerio v. DiValerio, 1951, 169 Pa.Super. 477, 82 A.2d 687.

Even if he had not returned to his wife, the agreement is void because it was obtained by duress, coercion and fraud. She signed to save her husband from arrest, disgrace and threatened bodily harm. She was persuaded to sign by the false promise of her husband that the divorce and subsequent marriage to the other woman was for the purpose of giving the expected child a name and that he would then remarry her.

We agree with President Judge Dannehower, who wrote the opinion for the court below, where he says: 'In our opinion, the separation agreement is manifestly and grossly unfair, unjust, unreasonable and invalid. This good and loving wife was taken advantage of by a self-willed and determined husband to such an extent that it amounts to duress. There can be little doubt that after the husband had the separation agreement prepared according to his own unreasonable terms, and secured a power of attorney from someone in Philadelphia, and having told his wife that he would be arrested, disgraced, lose his position and stock, be in danger from the other woman's brothers and that he would remarry her, took her to his attorney's office where, within an hour, although the papers were read and explained to her, she was divested of her marital rights without the benefit of her own counsel and without fair consideration. All this 40 year old wife was to receive under the agreement was a promised conveyance of an entireties property, the household furnishings, a promise by the husband to pay the carrying charges on the house, certain modest insurances for herself and son, and $20.00 a week for the son and his future education. She was to receive no future support for herself, only $20.00 weekly for the son, and if she remarried, then her husband was excused from fulfilling any payments on the real estate, taxes, insurance. This husband, with a substantial income, working for his father's corporation, and with a father who had been ill for years, and owning over 20,000 shares of a substantial corporation, devised this plan to rid himself of his wife and son and marry another girl. He married the other woman on December 17, 1956 without the knowledge of the prosecutrix, with whom he was then living as husband and wife, and ten days thereafter celebrated his fifteenth wedding anniversary with the prosecutrix. It is little wonder that the prosecutrix testified that when she executed both papers, she was shocked, nervous and numb. Such an agreement and conduct we cannot countenance.'

It is well settled in this Commonwealth that a valid divorce decree, because of the severance of the marital relationship terminates the duty of the husband to support his wife. Commonwealth ex rel. McVay v. McVay, 1955, 177 Pa.Super. 623, 626, 112 A.2d 649. The appellant contends that the wife is barred in any collateral attack against the Mexican divorce because it was rendered with her consent and submission to the jurisdiction of the Mexican court.

With respect to the validity of the Mexican divorce, it is quite evident from the circumstances and the testimony that the appellant never intended to establish a...