March's Estate, In re

• Decision Date: 30 June 1967
• Citation: 426 Pa. 364,231 A.2d 168
• Parties: In re ESTATE of Howard R. MARCH, Sr., Deceased. Appeal of Charles MARCH, Janet L. Anstine, Gladys E. Neiman, Executors andLegatees, Appellants.
• Court: Pennsylvania Supreme Court

Page 168

231 A.2d 168

426 Pa. 364

In re ESTATE of Howard R. MARCH, Sr., Deceased Appeal of Charles MARCH, Janet L. Anstine, Gladys E. Neiman Executors andLegatees, Appellants.

Supreme Court of Pennsylvania.

June 30, 1967.

Gibson Smith, Jr., York, for appellants

W. Burg Anstine, Anstine & Anstine, York, for appellee.

OPINION OF THE COURT

BELL, Chief Justice.

This case arose in the Orphans' Court of York County sur a petition to vacate a widow's election to take against her (divorced?) husband's will. The sole issue on appeal is whether the Court below was correct in holding that the Full Faith and Credit Clause of the Federal Constitution, Art. IV, § 1, did not require it to honor this Nevada divorce decree. That decree granted to March in June 1962, purported to dissolve the marriage upon which the election of the present appellee is based.

March was born and lived most of his life in York County, Pennsylvania, where he conducted a real estate business as a duly licensed real estate broker. March's first marriage resulted in the birth of seven children, who under his will dated May 26, 1964, are his sole legatees. After the termination of this marriage, ¹ he married appellee on June 30, 1955, and established a marital domicile in York County, where he and appellee cohabited as husband and wife until June 1956, when they separated.

In February 1962, March leased his house in York County, and in March 1962 he voluntarily surrendered his real estate broker's license and requested that it be held as 'inactive.' In April 1962, he moved to Nevada and resided at a motel.

On June 1, 1962, March instituted an action in divorce against the appellee in the District Court of Ormsby County, Nevada. March's complaint in divorce was served on appellee in York, Pennsylvania, by mail, (in accordance with the law of Nevada,) and she was also given notice of the divorce suit by publication in Nevada, in accordance with the law of Nevada; however, she was never served with any process in Nevada, nor did she enter an appearance, nor was she represented in the divorce suit.

On June 11, 1962, appellee filed a bill in equity in York County seeking an injunction against March to enjoin him from proceeding with the Nevada divorce action. The York County Court of Common Pleas granted a preliminary injunction. March was not personally served in the injunction proceedings, but service of the bill in equity was made on the York County attorney who had been previously employed at various times by March. March received notice in Nevada of this York County injunction before his Nevada divorce decree became final on June 29, 1962, but he was never served with any papers within the Commonwealth of Pennsylvania.

The facts are somewhat unusual and therefore will be recited at some length. March, after obtaining the Nevada divorce, continued to reside in Nevada until April 1963. During this time he did not own real estate, nor did he operate any business in Nevada or in York, Pennsylvania. From April 1963 until May 1965 March lived in various other states, including Florida and Arkansas. March returned to York County on two occasions during this period--in June 1963 and May 1964--for very short periods of time. When he executed his will on May 26, 1964, he described himself as a resident of York County. In June 1964, March filed a personal property tax return in York County, describing himself as a resident of Orlando, Florida; in November 1965, he filed a similar return in York County in which he described himself as a resident of Hot Springs, Arkansas. On May 26, 1965, March entered a nursing home located in York County, where he died November 14, 1965.

On October 10, 1956, March had instituted a divorce proceeding in the Court of Common Pleas of York County, which was never prosecuted by him and was still pending at his death.

The early leading cases concerning the validity of foreign divorce decrees held that 'A decree of divorce entered by the court of a state in which the parties husband and wife had never lived together, where there is no personal service on the respondent within the forum (or entry of appearance by or for the respondent in the divorce action) and where the respondent has not recognized the validity of the divorce at any time, is of no validity in this State: Duncan v. Duncan, 265 Pa. 464, 109 A. 220; Grossman's Est(ate) (No. 1), 263 Pa. 139, 106 A. 86; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1.' Radinovitz's Estate, 299 Pa. 264, 267, 149 A. 317, Accord: Grossman's Estate No. 1, 263 Pa. 139, 106 A. 86; Fyock's Estate, 135 Pa. 522, 19 A. 1056.

However, in 1942 a radical change in this area of the law occurred. Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, 325 U.S. 266, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366, Expressly overruled the Haddock case's concept of matrimonial domicile and held that if a plaintiff was actually domiciled in a state granting the divorce decree, such decree was prima facie entitled to full faith and credit in every State. The Williams case does not require Pennsylvania Courts to blindly and unquestioningly grant such faith and credit; it permits Pennsylvania Courts to investigate the Jurisdiction of the foreign Court which granted the divorce decree to ascertain Whether that Court had jurisdiction over the subject matter of the litigation and whether the plaintiff was actually domiciled in that state when the decree was granted.

Appellant relies principally upon Commonwealth ex rel. Esenwein v. Esenwein, 348 Pa. 455, 35 A.2d 335, which was affirmed in 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608, 157 A.L.R. 1396, and Commonwealth ex rel. McVay v. McVay, 383 Pa. 70, 118 A.2d 144. In the Esenwein case, the Court refused to revoke an Order made by the County Court of Allegheny County for the support of Esenwein's wife. The support Order was made in 1922. In 1932, Esenwein sued for a divorce on the ground of indignities, but failed; in 1939, he sued again for a divorce on the ground of desertion, but failed. On November 12, 1942, the County Court, on his application, reduced the support Order. On February 1, 1943, he filed a petition to revoke the support Order, relying on Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273. This Court distinguished Williams v. State of North Carolina and refused to recognize the Nevada divorce decree and refused to revoke the support Order. In this last case, in which Esenwein sought a revocation of the support Order, he admitted that he left Nevada immediately after obtaining his divorce and the Court found that the divorce proceedings in Nevada were merely a sham and a fraud (a) on the Nevada Court and (b) on the Allegheny County Court, because the facts showed that he had no intention of making his domicile in Nevada. The Court pertinently said (348 Pa. pages 457--458, 35 A.2d page 335--336):

'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. 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 and Loan Society v. Dormitzer, 192 U.S. 125, 24 S.Ct. 221, 48 L.Ed. 373; Com. ex rel. (Thompson) 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 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.

'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.'

The record and the additional admitted facts show that Esenwein went to Nevada about the end of June 1941, lived in a hotel, was divorced September 8, 1941 and left Nevada immediately afterwards and went to Ohio to live. He testified that he intended to make Nevada his permanent place of residence, but the same day he gave that testimony and received the divorce decree, he left Nevada immediately and never returned. His wife was not served in Nevada and did not appear personally or by attorney, although notified in accordance with Nevada Law. This Court said that 'His acts spoke louder than his words,' and that while testifying in the divorce case as to his intention to make Nevada his permanent residence 'he...