Lowenschuss v. Lowenschuss

• Decision Date: 11 September 1990
• Citation: 396 Pa.Super. 531,579 A.2d 377
• Court: Pennsylvania Superior Court
• Parties: Beverly LOWENSCHUSS, Appellant, v. Fred LOWENSCHUSS, Appellee. Beverly LOWENSCHUSS, Appellee, v. Fred LOWENSCHUSS, Appellant.

Page 377

579 A.2d 377

396 Pa.Super. 531

Beverly LOWENSCHUSS, Appellant, v. Fred LOWENSCHUSS, Appellee.

Beverly LOWENSCHUSS, Appellee, v. Fred LOWENSCHUSS, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 18, 1990.

Filed July 9, 1990.

Reargument Denied Sept. 11, 1990.

Albert Momjian, Philadelphia, for appellant (at 1001) and for appellee (at 1195).

Arthur Lefkoe, Norristown, for appellant (at 1195) and for appellee (at 1001).

Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.

BECK, Judge:

This case requires us to decide the circumstances under which a spouse may be estopped from asserting the invalidity of the other spouse's prior foreign divorce. Appellant wife argues that husband is estopped from asserting the invalidity of her 1964 Alabama divorce. We agree.

The parties entered a ceremonial marriage in 1965. At the time of the marriage husband, an experienced attorney, knew that wife had obtained an Alabama divorce from her previous spouse even though she had never lived there. For at least nine and possibly for as long as seventeen years the parties cohabited as man and wife. They had four children. In 1974, husband contends he first became fully aware of the invalidity of wife's Alabama divorce. In 1981, wife instituted an action in divorce. Husband defended the action on the ground that no valid marriage between the parties exists because of the invalidity of wife's prior divorce. The trial court agreed and dismissed the action.

We begin our analysis with a detailed recitation of the facts as they emerge from the voluminous record in this action. In 1959, appellant Beverly Lowenschuss ("wife") married Elliot Bender. The marriage was not successful. In June 1964, wife travelled to Alabama to procure a divorce from Mr. Bender. She did so with Mr. Bender's consent. Alabama was chosen as the forum for the divorce pursuant to advice from wife's then attorney, Mr. Edelstein, who put her in touch with an Alabama attorney. Wife spent at most two days in Alabama and does not dispute the fact that she has never been a bona fide resident of Alabama. Wife concedes that she misrepresented that she was a resident of that state in the documents she filed to procure the divorce. The day after wife returned from Alabama, the Circuit Court of Winston County, Alabama entered a divorce decree divorcing her from Elliot Bender.

The trial court made no specific finding as to what wife knew concerning the validity of her divorce from Mr. Bender or the effect of the divorce on her marriage to husband. Wife testified as follows on this subject:

I went to Alabama to obtain a divorce on the instructions of my attorneys, reputable and ethical people, who told me that this is the way one obtains a divorce. My husband at that time was also represented by [an] ethical, respected member of the Bar. If those people told me that this is the way I obtain a divorce, then it was--I was not an attorney at the time. I was 25 years of age, not totally sophisticated, although I was an English teacher. I signed this [the false statement of residency] because that's--those were the instructions both from my husband's lawyer and the lawyer whom I met in Alabama. I had never been in a Courtroom in my life up until then. I had never been before a Judge in my life before then. I had never met with lawyers before then and I was quite unsophisticated in the way of the law.

The trial court found only that wife had misrepresented her residency in the documents filed to obtain the Alabama divorce, that Mr. Edelstein did not counsel her to do so and that wife now concedes the resulting invalidity of that divorce. The court made no finding as to whether at the time of the divorce wife knew that the result of her false oath of residency would be that the divorce would not receive recognition in this Commonwealth and that it would be an impediment to her later marriage to husband.

Five months later wife met appellee Fred Lowenschuss ("husband") and they began dating. Husband knew that wife was divorced, but denies knowing any of the details concerning how the divorce was procured. However, husband does admit to having seen the Alabama divorce decree prior to marrying wife and also admits that, prior to the marriage, he knew that wife had never resided in Alabama. Wife and Mr. Edelstein, the attorney who helped her procure the Alabama divorce, both testified that husband had also discussed the divorce with Mr. Edelstein prior to marrying wife and questioned Mr. Edelstein as to the validity of the divorce. Mr. Edelstein testified that he assured husband at that time that the divorce was proper. ¹

The parties were married in December 1965. Within two years they started a family and eventually had four children. However, the marriage was unhappy and, in 1974, husband commenced a divorce action. Shortly after commencing this action, husband withdrew it. Husband testified and the trial court found that his reason for withdrawing the action was that after he had filed it he discovered that wife's divorce from Mr. Bender was void because the Alabama court had never had jurisdiction to grant the divorce. Thus, husband testified that he withdrew the divorce action because as a member of the bar of this Commonwealth he did not feel he could ethically continue with it. However, husband also admitted that the parties had reconciled their differences at that time. Both wife and the attorney who represented her in the 1974 action testified that to their knowledge, husband withdrew the action solely because the parties had reconciled.

Husband also testified that in 1974 he informed wife that they were not married because her prior divorce was invalid and that although they could continue to live together, he did not consider them married. Wife denied this assertion. The trial court, however, accepted husband's testimony on this point. The trial court found further support for the conclusion that husband did not consider himself married after 1974 in the fact that after that time, husband filed his tax returns as a single head of household instead of filing a joint return with wife as he had previously done. Finally, the trial court found that after 1974, husband did not introduce or refer to wife as "his wife".

The trial court did not specifically find any other facts concerning husband's conduct toward wife following his withdrawal of his 1974 divorce action. However, we note that the testimony of husband concerning this reveals the following:

[Wife's counsel]: Now, after you, as you testified, decided to withdraw your complaint for divorce in October of 1974 and do the best you could to keep the family together, did you thereafter hold yourself out, nonetheless, to people in the community as husband and wife?

[Husband]: We continued to live the same as we did previously.

[Wife's counsel]: Did you, Mr. Lowenschuss--

[Court]: Can we answer the question?

[Husband]: Well, Your Honor, that's the answer. I mean, I didn't tell anybody we weren't married other than maybe a close friend of mine. We continued to live the same way as we did before, Your Honor.

[Court]: That doesn't answer the question. I don't know whether before you held yourself out to be husband and wife.

[Husband]: We did hold ourselves out as husband and wife before, Your Honor.

[Court]: Before. Okay. Then you did hold yourself out as husband and wife afterward.

[Husband]: We, we continued the same way. I didn't tell anybody that, by the way, she's the legal wife of Elliot Bender other than maybe a close friend or two and my associate in the office and so on. It's not the kind of thing that you brag about.

. . . . .

[Wife's counsel]: Mr. Lowenschuss, in the transcript of custody proceedings before His Honor, Judge Tredinnick, on June 28, 1983, at Page 244, you admitted that you held Beverly out as your wife after 1974, did you not?

[Husband]: I explained to you I did the same thing afterwards as before.

[Wife's counsel]: So can I get it with a little more clarity? You held her out as your wife before 1974?

[Husband]: Yes.

[Wife's counsel]: And is it not, then, correct that you held her out as your wife after October, 1974?

[Husband]: We continued to live the same way as before.

Husband further testified that after 1974 he continued to want to have more children with wife and did not wish to seek an annulment because he wanted to keep the family unit together.

Wife countered husband's evidence concerning whether he considered them married and conducted himself as a married man after 1974 with evidence consisting of various greeting cards exchanged between the parties as married persons, testimony about various trips they took as married persons and the testimony of friends who considered them married.

The trial court's analysis of the legal ramifications of this situation was straightforward. The court found that wife's Alabama divorce was void because the Alabama court lacked jurisdiction to grant the divorce. The court further found that the parties did not cure this defect by consenting to the jurisdiction of the Alabama court since Alabama law did not permit divorce by consent. Reasoning from this conclusion, the court found that husband and wife's Pennsylvania marriage was void under Section 204(a) of the Divorce Code, which states:

(a) Where there has been no confirmation by cohabitation following the removal of an impediment, the supposed or alleged marriage of any person shall be deemed void in the following cases:

(1) Where either party at the time of such marriage had an existing spouse and the former marriage had not been annulled nor had there been a divorce, except where such person had obtained a decree of presumed death of the former spouse.

Pa.Stat.Ann. tit. 23, § 204(a)(1) (Purdon Supp.1989).

Thus, the court concluded that since there was no marriage res the court had no subject matter jurisdiction to grant a divorce to wife and, therefore, her...