Davidsen v. Davidsen

• Decision Date: 16 March 1954
• Citation: 175 Pa.Super. 123,103 A.2d 296
• Parties: DAVIDSEN v. DAVIDSEN.
• Court: Pennsylvania Superior Court

103 A.2d 296

175 Pa.Super. 123

DAVIDSEN v. DAVIDSEN.

Superior Court of Pennsylvania.

March 16, 1954

Equitable proceeding by wife to obtain her support from husband.The Court of Common Pleas of County of Wayne as of April Term1949, No. 1, Clarence E. Bodie, P. J., entered decree for wife, and husband appealed.The Superior Court, No. 9 February Term, 1953, Rhodes, P. J., held that, where husband had not obtained legal domicile in Nevada at time he purportedly obtained a divorce in such state, was full faith and credit need not be given to purported Nevada divorce decree, and, therefore, such decree did not constitute defense on behalf of husband to support order.

Decree affirmed.

Robert A. Detweiler, Philadelphia, David Davidsen, in pro. per., for appellant.

James Rutherford, Honesdale, for appellee.

Before RHODES, P. J., and HIRY, RENO, ROSS, GUNTHER, WRIGHT and WOODSIDE, JJ.

RHODES, President Judge.

This is a proceeding in equity brought by the wife on May 2, 1949 for her support under the Act of May 23, 1907, P.L. 227, as amended, 48 P.S. § § 131, 132.

The plaintiff in her bill averred that she resided in Hawley Wayne County, Pennsylvania; that defendant without justification or excuse there deserted her and their two minor children; that defendant was residing in Brooklyn, New York; that he had failed, refused, and neglected to provide support for plaintiff and their children since the time of the desertion; that defendant had property within the jurisdiction of the court consisting of certain real estate at 205 Welwood Avenue, Hawley, Wayne County, having a value of approximately $5,000.The prayer of the bill was that defendant be declared liable for the support and maintenance of claimant and their children; that the court fix the amount to which plaintiff was entitled for past and future maintenance; and that from said property plaintiff be paid a monthly allowance for maintenance or defendant be required to convey the same to plaintiff.

Defendant filed an answer to plaintiff's bill.Ownership of the property by defendant was admitted.Defendant's defense was that since October 26, 1946, he was under no duty to support plaintiff as he had been divorced from her by decree of the Court of the Second Judicial District of the State of Nevada, which was filed and recorded on that date; and that prior thereto he had provided her with support.

A decree nisi of October 3, 1951, which was made final as of May 7, 1952, directed defendant to pay plaintiff for her support $20 per week, recoverable from defendant's real estate within the Commonwealth if such payments were not otherwise made by him.SeeCivera v. Civera,174 Pa.Super. 43, 45, 98 A.2d 432.Exceptions to the court's findings of fact and conclusions of law were dismissed.Defendant has appealed to this Court.

The jurisdiction of the court below has not been questioned.Defendant relies on the Nevada divorce to justify his refusal to support plaintiff.There are two questions presented to us for decision: (1) Was the Nevada divorce a defense to the support order; (2) was the evidence sufficient to sustain a support order of $20 per week against defendant.

The decisions of our courts have uniformly held that domicile in good faith in a state granting the divorce decree is an essential jurisdictional fact, and if that ingredient is lacking the decree need not be enforced outside the state where it was secured.Commonwealth ex rel. Achter v. Achter,167 Pa.Super. 603, 605, 76 A.2d 469;Commonwealth ex rel. Harmon v. Harmon,172 Pa.Super. 459, 94 A.2d 181.When a party leaves the matrimonial domicile his conduct in obtaining a divorce by allegedly establishing a domicile in another state is properly subject to careful scrutiny; and the determination of whether an asserted acquisition of another domicile has actually occurred depends on whether the totality of the facts indicates the establishment of a permanent residence or merely a temporary sojourn for the purpose of divorce or to evade an order of support.Commonwealth ex rel. Meth v. Meth,156 Pa.Super. 632, 41 A.2d 752.

The court below found that the primary purpose of defendant in going to Reno, Nevada, was to obtain a quick divorce, and that he never gained a bona fide residence in that state.The court thereupon held that, plaintiff not being subject to the jurisdiction of the Nevada court, the divorce decree obtained by defendant was no defense to the support order in this Commonwealth.

The findings and determination of the court below were based on and supported by the evidence adduced before it.

The parties were married on May 29, 1916, and they lived in Rowlands, Pike County, Pennsylvania, from 1923 to 1929.They then moved to Hawley, Wayne County, where they resided together until September, 1934, when defendant left plaintiff and their children.Plaintiff has...