Harrison v. Harrison

• Decision Date: 11 June 1957
• Parties: Sarah Elizabeth HARRISON v. Elmer J. HARRISON, Appellant. Elmer J. HARRISON, Appellant, v. Sarah Elizabeth HARRISON.
• Court: Pennsylvania Superior Court

Page 870

133 A.2d 870

183 Pa.Super. 562

Sarah Elizabeth HARRISON v. Elmer J. HARRISON, Appellant.

Elmer J. HARRISON, Appellant, v. Sarah Elizabeth HARRISON.

Superior Court of Pennsylvania.

June 11, 1957.

Application for Allocatur Denied Oct. 10, 1957.

William Wallace Booth, James R. Orr, Kenneth P. Simon, Reed, Smith, Shaw & McClay, Pittsburgh, for appellant.

John G. Masick, Pittsburgh, for appellee.

Before HIRT, Acting P. J., and GUNTHER, WRIGHT, WOODSIDE and CARR, JJ.

WOODSIDE, Judge.

This case involves an order of the court below (1) dismissing appellant's rules to show cause why an order granting appellee alimony pendente lite should not be vacated and the divorce actions of both parties should not be dismissed, and (2) granting alimony pendente lite, costs and counsel fees to appellee.

The case was heard in the court below on appellant's petition praying that an order of the court below entered on February 1, 1954, should be vacated; and appellee's answer thereto; appellant's petition praying that his divorce action be dismissed at his cost, and appellee's answer thereto; appellee's petition for arrearages of alimony pendente lite, additional counsel fees and expenses and, appellant's answer thereto.

Sarah Elizabeth Harrison, appellee, and Elmer J. Harrison, appellant, were married on February 20, 1939. After their marriage, the parties resided in Pittsburgh, Pennsylvania, until January 11, 1952, when appellant moved to Florida, where he has since continued to reside.

On June 29, 1946, appellee filed a libel in divorce from bed and board against appellant in the Court of Common Pleas of Allegheny County. On September 12, 1946, appellant filed a libel for absolute divorce from appellee in the same court.

Judge Weiss, by order of February 1, 1954, required appellant to pay alimony pendente lite and counsel fees. Appellant complied with this order until September of 1954, at which time a Florida court entered a decree of permanent alimony, with the provisions of which appellant has fully complied. Neither of the Pennsylvania divorce actions has been heard on the merits.

On March 12, 1953, the appellant who then resided at Ft. Lauderdale, Florida for over a year, instituted an action for absolute divorce from appellee in the Circuit Court of the Eleventh Judicial District of Florida. Appellee was given notice by publication and registered mail of the Florida action. After consultation with her Pittsburgh counsel, appellee retained Florida counsel to represent her in the Florida proceedings, and a motion was filed in Florida by her counsel to stay or dismiss that proceeding because of appellant's pending Pennsylvania divorce action. After hearing the testimony of appellant and his Pittsburgh counsel, both of whom were crossexamined by appellee's Florida counsel, the Florida Circuit Court made an order denying the motion to stay and gave appellee 20 days within which to file an answer to the complaint. An answer to the complaint on the merits was filed by appellee's Florida counsel on June 18, 1953, appellee praying, inter alia, that if the court finds the equities to be with appellant, it would adjust the property rights of the parties and give her permanent alimony, costs and attorneys' fees. Appellee also filed a petition for writ of certiorari on the decision of her motion to stay with the Supreme Court of Florida, 71 So.2d 730, which court denied the petition.

On January 7, 1954, appellee filed a motion for temporary alimony, suit money, and attorneys' fees in the Florida proceedings which motion appellee supported by her affidavit. That court refused temporary alimony and suit money, but awarded appellee attorneys' fees. Upon appeal, the Florida Supreme Court ordered the denial of suit money reversed and directed the Circuit Court to set the amount reasonably required by appellee to present her defense. The Circuit Court thereafter awarded her suit money of $550.

On July 1, 1954, appellee's Florida counsel notified appellant that the depositions of eight witnesses for appellee would be taken in Pittsburgh, Pennsylvania, on July 14, 1954, for use in the Florida proceedings. The depositions were never taken because of the failure of appellee to cooperate with her counsel.

The Special Master appointed by the Florida Court, filed his report recommending the granting of a divorce, and the awarding of appellant's home in Pittsburgh and the sum of $150 a month permanent alimony to appellee. On September 2, 1954, the Circuit Court filed a final decree, inter alia, confirming the Special Master's report, granting appellant a divorce a vinculo matrimonii, and giving appellee permanent alimony. This final decree was not appealed. Appellant has complied with such decree by tendering appellee a deed to the property and sending her monthly checks of $150, which she has held but not cashed.

On September 23, 1954, appellant filed a petition in the Pennsylvania divorce action of appellee against him, setting forth the Florida decree and praying that the order of the Pennsylvania court requiring the payment of future alimony pendente lite be vacated and that appellee's divorce action be dismissed; the court issued a rule to show cause why the prayer of the petition should not be granted. At the same time, appellant filed a petition praying that his divorce action against appellee filed in Pennsylvania be dismissed at his cost for the same reason, and the court granted an appropriate rule to show cause. On November 29, 1954, appellee filed answers to the petitions, denying that the Florida divorce decree is a valid and enforceable decree entitled to full faith and credit in Pennsylvania, for the reason that the Florida court did not have jurisdiction of the parties or the subject matter.

Appellant no longer having complied with the lower court's order allowing alimony pendente lite after the Florida decree, the appellee filed, at both Pennsylvania divorce actions, a petition for arrearage of alimony pendente lite, additional counsel fees and expenses. Appellant filed an answer to the petition denying that he is in arrears in his alimony payments and submitting to the court's discretion the propriety and amount of additional counsel fees and expenses sought by appellee.

When the petitions of appellant and that of appellee were heard by the court below, it took the testimony of appellee, her Florida counsel and her Pittsburgh counsel, and it received other evidence, including an exemplified copy of the Florida divorce proceedings. On February 17, 1956, the court dismissed appellant's petitions and directed appellant to pay appellee the sum of $4,250 as arrearages, the sum of $250 a month from March 1, 1956, until the Pennsylvania divorce litigation is terminated, the total of $110.80 for expenses and the sum of $15,000, less the sum of $1,500 previously paid, or a balance of $13,500 to appellee's counsel. The appeals to this Court are taken from this order.

'A decree of divorce of a sister state is prima facie valid and the burden is on the person attacking it to overcome the presumption of validity:' Wallace v. Wallace, 1952, 371 Pa. 404, 89 A.2d 769.

Where a spouse appears in a divorce proceeding in a sister state, the spouse is barred from collaterally attacking the decree entered in that proceeding. As the Supreme Court of the United States said in Cook v. Cook, 1951, 342 U.S. 126, 72 S.Ct. 157, 159, 96 L.Ed. 146, at page 149:

'If the defendant spouse appeared in the Florida proceedings and contested the issue of the wife's domicile, Sherrer v. Sherrer 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, or appeared and admitted her Florida domicile, Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, or was personally served in the divorce state, Johnson v. Muelberger, 340 U.S. 581, 587, 71 S.Ct. 474, 477, 95 L.Ed. 552, he would be barred from attacking the decree collaterally; * * *

'But the burden of undermining the decree of a sister state 'rests heavily upon the assailant.' Williams v. State of North Carolina, supra, 325 U.S. at page 234, 65 S.Ct. [1092] at page 1097 [89 L.Ed. 1577, 1584, 157 A.L.R. 1366]; Esenwein v. Commonwealth, 325 U.S. 279, 280-281, 65 S.Ct. 1118, 1119, 89 L.Ed. 1608. A judgment presumes jurisdiction over the subject matter and over the persons.'

This principle was recognized by this Court in Collins v. Collins, 1954, 175 Pa.Super. 214, 103 A.2d 494.

The appellee's contention that she did not enter a general appearance in the Florida divorce case is not borne out by the record before us. She first filed a motion to stay and dismiss the Florida divorce action against her on the ground that there was a divorce action pending against her in Pennsylvania. This point she pursued through the Supreme Court of Florida. When she failed in this contention, she filed an answer to the divorce action on the merits, and, as she said in her pleadings, 'having fully answered the complaint' (emphasis supplied), she prayed the Florida Court that her husband's complaint in divorce be dismissed, that the court award her temporary alimony, suit money, and attorneys' fees, and that if the divorce were to be granted, the property rights of the parties be adjusted, and she be awarded permanent alimony.

Now having been awarded permanent alimony and part of the appellant's property, she argues that she was not in court in Florida. The Florida record, which was admitted into the record by the court below on the matter now before us, proves she was in court.

Unless a party strictly limits himself to the issue of the jurisdiction of the court, which the appellee did not do, the decree of the court is binding on him in all respects. In Aquilina v. Doan, 1953, 374 Pa. 405, 409, 97 A.2d 520, 522, Justice Chidsey said, 'Defendants chose not to confine themselves strictly to the issue of the jurisdiction of the court, and in addition set up a defense on the merits. Under such...