Commonwealth Ex Rel. Esenwein v. Esenwein.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtLINN, Justice.
Citation35 A.2d 335,348 Pa. 455
Decision Date06 March 1944

348 Pa. 455
35 A.2d 335


Supreme Court of Pennsylvania.

Jan. 3, 1944.
Writ of Certiorari Denied March 6, 1944.

See 64 S.Ct. 639.

Appeal No. 5, March term, 1944, from judgment of Superior Court at No. 235 April term, 1943, which affirmed the order of the County Court of Allegheny County at No. 287 of 1922, entered February 26, 1943, refusing defendant's prayer for the vacation of the order of December 8, 1942; Charles E. Kenworthey, Judge.

Proceeding by the Commonwealth, on the relation of May H. Esenwein, against her husband, William F. Esenwein, to compel defendant to support relator. From a judgment, 153 Pa.Super. 69, 33 A.2d 675, affirming a county court's order dismissing defendant's petition to revoke a support order, defendant appeals.


DREW, J., and MAXEY, C. J., dissenting.


Fred C. Houston, Sidney J. Watts, and Baker & Watts, all of Pittsburgh, for appellant.

Jacob Seligsohn and N. J. Lippard, both of Pittsburgh, for appellee.

LINN, Justice.

William F. Esenwein appeals from judgment of the Superior Court affirming the action of the County Court of Allegheny County refusing to revoke an order made for the support of his wife. The parties were married in Pittsburgh in 1899; they separated in 1919. The support order has been in effect since 1922. In 1932 he sued for a divorce on the ground of indignities, but failed. Esenwein v. Esenwein, 105 Pa.Super. 261, 161 A. 425, affirmed 312 Pa. 77, 167 A. 350. He sued again in 1939 on the ground of desertion but failed again. 141 Pa.Super. 604, 15 A.2d 735.

On November 12, 1942, he applied to the County Court for a reduction in the amount of the order. He averred, inter alia, that he had become a resident of Nevada on June 30, 1941, and on September 8, 1941, had obtained a decree of divorce. The court, on December 8, 1942, reduced the order to $75 a month.

On February 1, 1943, he filed the petition now before the court for revocation of the support order on the ground of the Nevada divorce decree, relying on Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 143 A.L.R. 1273. To that petition his wife filed an answer averring, inter alia, ‘that the said proceedings in Nevada resulting in a so-called decision or decree in divorce in favor of petitioner were conceived and executed in fraud both upon the states and courts of Nevada and Pennsylvania.’ After hearing, that issue was found in favor of the wife and the petition to revoke was dismissed. The husband appeals.

The question is whether the rejection of the Nevada decree, as ground to revoke the order, is consistent with the full faith and credit requirement of the federal Constitution and the Act of Congress.

There is no doubt of the power of the courts below to inquire into the jurisdictional facts necessary to confer jurisdiction on the Nevada court.

35 A.2d 336

Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804; Streitwolf v. Streitwolf, 181 U.S. 179, 21 S.Ct. 553, 45 L.Ed. 807; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366; German Savings & Loan Society v. Dormitzer, 192 U.S. 125, 24 S.Ct. 221, 48 L.Ed. 373; Com. ex rel. v. Yarnell, 313 Pa. 244, 251, 169 A. 370; Beale, Conflict of Laws (1935) §§ 111.1 and 111.2.

In making that inquiry the material to be examined is the record presented; it consists of the support order 1 concededly valid; the husband's petition to revoke, the wife's answer, the evidence, which included the Nevada proceeding and decree, produced at the hearing in the County Court. We must also take into consideration the facts formally admitted at the argument before the Superior Court. 2

If Esenwein had presented nothing to the County Court but the duly certified divorce decree, he would have shown himself entitled to a revocation of the order unless his wife then produced evidence overcoming the prima facie effect of the decree. But he did not rest on the decree alone; he put in evidence the entire record of the Nevada proceeding leading up to the decree thus affording his wife opportunity to make from it any inferences of fact relevant in the inquiry whether the jurisdictional fact of bona fide domicil existed. These inferences, with the admitted facts stated in the opinion of the Superior Court, clearly show that the jurisdictional fact of a Nevada domicil was lacking.

Appellant went to Nevada about the end of June, 1941, lived in a hotel, was divorced September 8, 1941, and left Nevada immediately afterward and established a residence in Ohio. His wife was not served in Nevada and did not appear, though notified in accord with Nevada law. In the Nevada proceeding he testified:

‘Q. When you came to Nevada you came with the intention of making Clark County, Nevada, your permanent place of residence? A. Yes, sir.

‘Q. Have you retained that intention ever since? A. Yes, sir.

‘Q. And you have it now? A. Yes, sir.’

He gave that testimony on September 8th, received the decree on the same day and left Nevada immediately. His acts spoke louder than his words. If his testimony that on September 8th he had the ‘intention’ of residing in Nevada had been supplemented by the fact that he would leave the state immediately afterward, the court would have been justified in declining to make a finding that his Nevada domicil was bona fide. The court might very well have said, had it known the additional fact, that while the six-weeks' residence required by the Nevada statute was established, his intention to leave immediately afterward prevented a finding that his domicil was in good faith. The prima facie inference is, and the Superior Court was authorized to make it, that, notwithstanding his testimony, he had no intention of making his domicil in Nevada. His Nevada case is no different in legal effect from what it would have been if he had never been in that state but had arranged to have someone falsely impersonate him at the hearing. In our inquiry into the legal effect of the record, a more difficult factual question might have been presented if Mr. Esenwein had given evidence in the County Court to the effect that notwithstanding his testimony in Nevada on September 8th, conditions developed immediately afterward which made it desirable that he should again change his domicil from Nevada to some other state. But he gave no such evidence; though he was the moving party, he produced nothing to rebut the facts clearly inferable against him on the whole case. The Superior Court was therefore justified in adopting the natural or normal inference that appellant's proceeding in Nevada was a sham and fraud for the purpose of evading the order of the County Court of Allegheny County.

‘The essential fact that raises a change of abode to a change of domicil is the absence of any intention to live elsewhere, Story on Conflict of Laws, § 43-or, as Mr. Dicey puts it in his admirable book ‘the absence of any present intention of not residing permanently or indefinitely in’ the new abode. Conflict of Laws, 2d ed. 111.'

35 A.2d 337

Williamson v. Osenton, 232 U.S. 619, 624, 34 S.Ct. 442, 58 L.Ed. 758. ‘The intention required for the acquisition of domicil of choice is an intention to make a home in fact, * * *’ Restatement, Conflict of Laws, § 19. In re Dorrance's Estate, 309 Pa. 151, 163 A. 303. The essentials of a change of domicil from Pennsylvania or elsewhere to Nevada are not satisfied by the short sojourn in a Nevada hotel. For the purposes for which he now offers the divorce decree, it is not enough that on September 8, 1941, his word was accepted in Nevada, considering that the prima facie inference from his subsequent conduct is that, while testifying, he was misleading that court as to his domiciliary intent. Our conclusion is not inconsistent with the decision in Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 143 A.L.R. 1273, on page 302 of 317 U.S., page 215 of 63 S.Ct., it was said, ‘In the first place, we repeat that in this case we must assume that petitioners had a bona fide domicil in Nevada, not that the Nevada domicil was a sham. We thus have no question on the present record whether a divorce decree granted by the courts of one state to a resident as distinguished from a domiciliary is entitled to full faith and credit in another state. Nor do we reach here the question as to the power of North Carolina to refuse full faith and credit to Nevada divorce decrees because, contrary to the findings of the Nevada court, North Carolina finds that no bona fide domicil was acquired in Nevada.’ The question thus reserved in the Williams case is the one decided by the courts below against the appellant.

Judgment affirmed at appellant's costs.

MAXEY, C. J., and DREW, J., dissent.

DREW, Justice (dissenting).

The CHIEF JUSTICE and myself thoroughly disagree with the opinion and decision of the majority, because, in our best judgment, the record in this case is absolutely void of anything better than conjecture and suspicion to support the finding that appellant lacked a bona fide domicil in the State of Nevada at the time he instituted his action for divorce and obtained a decree there. If the judgment of a sovereign state can be lightly set aside, as appears to have been done here, then the full faith and credit clause of the National Constitution and the decision of the Supreme Court of the United States, in Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 143 A.L.R. 1273,...

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