Commonwealth ex rel. Esenwein v. Esenwein

• Citation: 33 A.2d 675,153 Pa.Super. 69
• Decision Date: 16 July 1943
• Docket Number: 235-1943,234-1943,233-1943
• Parties: Commonwealth ex rel. Esenwein v. Esenwein, Appellant
• Court: Superior Court of Pennsylvania

33 A.2d 675

153 Pa.Super. 69

Commonwealth ex rel. Esenwein v. Esenwein, Appellant

Nos. 233-1943, 234-1943, 235-1943

Superior Court of Pennsylvania

July 16, 1943

May 3 1943, Argued

Appeals from orders of County Court, Allegheny Co., 1922, No 287, in case of Commonwealth ex rel. May H. Esenwein v William F. Esenwein.

Proceeding upon petitions for opening and for revocation of order for support of wife.

Orders entered dismissing petitions, opinion by Gunther, J. Defendant appealed.

Orders affirmed.

Sidney J. Watts, of Baker & Watts, with him Louis F. Silhol and Fred C. Houston, for appellant.

Jacob Seligsohn, with him N. J. Lippard, for appellee.

Before Keller, P. J., Baldrige, Stadtfeld, Rhodes, Hirt, Kenworthey and Reno, JJ.

OPINION

Kenworthey, J.

In 1901, the Supreme Court of the United States held that the jurisdiction of a state court granting a divorce may be inquired into and, if it appear that neither of the parties had acquired a bona fide domicil in that state at the time of instituting proceedings the decree is open to collateral attack and a recital in the proceedings that such domicil existed may be contradicted. Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366.

In 1906, it held that a state court, even of the plaintiff's domicil, could not render a judgment in divorce that would be entitled to enforcement in other states against a non-resident who did not appear and was not personally served of the process. ^[1] Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867.

On December 21, 1942, it overruled Haddock v. Haddock ( Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279); it held that if plaintiff in a divorce proceeding acquires a bona fide domicil in the state which grants him a divorce, the decree is entitled to full faith and credit. This did not in the least impair the authority of the earlier decision in Bell v. Bell that domicil, not merely the residence, of one of the parties (there the plaintiff) must be established to support a binding decree where there is substituted service.

Were it not for the misleading press notices and the generally confused discussion of the Williams Case emanating, perhaps, from the somewhat extravagant language in the dissenting opinion of Mr. Justice Jackson, ^[2] it would scarcely be necessary to point out the limited effect of this decision. We shall discuss it briefly.

Mr. Williams and Mrs. Hendricks had long been domiciled in the State of North Carolina; they were both married to others. In 1940, they went to Las Vegas, Nevada, and after remaining the few weeks required by Nevada law, were granted divorces, intermarried and returned to North Carolina where they set up housekeeping as husband and wife. They were promptly indicted and convicted of bigamy. They defended by offering in evidence the Nevada decrees. The jury were instructed to find them guilty if either (1) they had not acquired a bona fide domicil in Nevada, or (2) if their matrimonial domicil was in North Carolina and the Nevada divorces had been procured without personal service in Nevada or without an appearance by the defendant-spouse. When the case was argued in the Supreme Court, the state did not seek to sustain the judgment on the ground the domicil was a sham. As said by Mr. Justice Douglas, ".... it [the state] admits that there probably is enough evidence in the record to require the petitioners to be considered 'to have been actually domiciled in Nevada.'" (317 U.S. 287, 63 S.Ct. 207, 210, 87 L.Ed. 279, 14 A.L.R. 1273). He painstakingly pointed out that the court was not over-ruling Bell v. Bell. "If the case had been tried and submitted on that issue [validity of the domicil] only, we would have quite a different problem, as Bell v. Bell indicates." (Page 210). "Domicil of the plaintiff, immaterial to jurisdiction in a personal action is recognized in the Haddock case and elsewhere (Beale, Conflict of Laws, § 110.1) as essential in order to give the court jurisdiction which will entitle the divorce decree to extraterritorial effect, at least when the defendant has neither been personally served nor entered an appearance. The findings made in the divorce decrees in the instant case must be treated on the issue before us as meeting those requirements. For it seems clear that the provisions of the Nevada statute that a plaintiff in this type of case must 'reside' in the State for the required period requires him to have a domicil as distinguished from a mere residence in the state. Latterner v. Latterner, 51 Nev. 285, 274 P. 194; Lamb v. Lamb, 57 Nev. 421, 65 P.2d 872. Hence the decrees in this case like other divorce decrees are more than in personam judgments. They involve the marital status of the parties. Domicil creates a relationship to the state which is adequate for numerous exercises of state power." (Page 213). "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." (Page 215).

The case was sent back, presumably for the very purpose of retrial on the issue whether the Nevada domicils were bona fide. Not only do we think the language of the majority opinion reaffirms Bell v. Bell, but if the court had been of opinion that a mere residence for the required period would support a valid decree it would have directed that defendants be discharged.

We now come to a consideration of the facts of the present case.

The parties were married in 1899. They have not lived together since 1919. In 1920, the husband instituted divorce proceedings in Allegheny County and obtained a decree of divorce in 1932 on the ground of indignities. On appeal, this court reversed and dismissed the libel (105 Pa.Super. 261, 161 A. 425); the order was affirmed by the Supreme Court (312 Pa. 77, 167 A. 350). In 1939, the husband again instituted divorce proceedings in Allegheny County, charging desertion; the lower court again granted a divorce which was reversed by this court (141 Pa.Super. 604, 15 A.2d 735).

In June 1941, the husband went to Las Vegas, Nevada, and on September 8, 1941, was granted a divorce on the ground that the parties "had lived separate and apart for more than three consecutive years last past and immediately preceding the commencement of this action, without cohabitation," a ground not recognized by our divorce laws. The wife was not served in Nevada and she did not enter an appearance although she was served in Pennsylvania.

The present petition is for the revocation of an order for support made in March 1922 and subsequently modified several times. The basis of the petition for revocation is the Nevada divorce decree. Com. ex rel. v. Parker, 59 Pa.Super. 74. In her answer, the wife contended that the Nevada decree is invalid for two reasons: (1) The court had no jurisdiction because the husband did not establish a bona fide domicil, ^[3] and (2) res adjudicata. The lower court refused to revoke the order. The husband appealed.

The Nevada decree is prima facie valid and the burden of proving the contrary was on appellee. Com. ex rel. Cronhardt v Cronhardt, 127 Pa.Super. 501, 193 A. 484. The evidence reveals that appellant had been domiciled in Allegheny County for many years, but that since October 1941 has been living in Cleveland, Ohio. Although the record does not reveal it, we were told at the oral argument that during his brief stay in Nevada he stayed at a hotel. We were also told at the oral argument that we could assume he left Nevada immediately after obtaining his divorce. Under the circumstances, we...