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SMITH v. SMITH (01/16/50)

January 16, 1950

SMITH, APPELLANT,
v.
SMITH



Appeal, No. 203, Jan. T., 1949, from decree of Court of Common Pleas of Cumberland County, June T., 1946, in Equity, No. 3, in case of Bernice G. Smith v. Luther B. Smith. Decree affirmed.

COUNSEL

Philip S. Moyer, with him Joseph P. McKeehan, for appellant.

Robert V. Smith, with him John H. Fertig, David Dunlap, Robert L, Myers, Jr., Robert P. Smith, Fertig & Dunlap, Myers & Myers and Smith, Ristig & Smith, for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Drew

[ 364 Pa. Page 3]

OPINION BY MR. JUSTICE DREW

Bernice G. Smith, plaintiff and her husband, Luther B. Smith, defendant, have been litigating their marital difficulties for over three years in the courts of both Florida and Pennsylvania, he seeking a Florida divorce and she attempting in Pennsylvania to enjoin the Florida proceedings. Her bill in equity having been dismissed by the Court of Common Pleas of Cumberland County, Pennsylvania on the ground that defendant is no longer domiciled in this Commonwealth, plaintiff brings this appeal.

Plaintiff and defendant were married on December 26, 1916, and lived together at various places in York and Cumberland Counties until May 24, 1945, their last mutual address being 28 North 23rd Street, Camp Hill, Cumberland County where plaintiff still resides. On August 22, 1946, defendant instituted a divorce action in Dade County, Florida. On September 9, 1946, plaintiff filed a bill in equity in Cumberland County to enjoin the Florida action and on that bill a preliminary injunction was granted the same day. Defendant then moved the Florida court to dismiss the divorce action on November 9, 1946, and ten days later sought to have the preliminary injunction dissolved and that bill dismissed. The learned court below dissolved the injunction but retained jurisdiction of the bill. Thereafter, on May 2, 1947, defendant sought a Florida declaratory judgment that he was a resident of and domiciled in Florida. Plaintiff in turn filed a supplemental bill in Cumberland County to enjoin that proceeding and a preliminary injunction to that effect was granted on

[ 364 Pa. Page 4]

June 24, 1947. On July 3, 1948, defendant again began divorce proceedings in Dade County, Florida and again a preliminary injunction was granted restraining defendant from further prosecution of that divorce action. The injunction was continued until final hearing after which the bill was dismissed and this appeal followed.

Under Williams v. North Carolina (No. 1), 317 U.S. 287, a divorce granted by a court of the bona fide domicile of either spouse is valid and must be given full faith and credit. The only ground upon which a divorce decree of another jurisdiction may be attacked is that it was not the bona fide domicile of either spouse: Williams v. North Carolina, 325 U.S. 226; Commonwealth ex rel. v. Esenwein, 348 Pa. 455, 35 A.2d 335. Since equity has no power to restrain a person from obtaining a lawful divorce, it follows that an injunction may only be granted where the spouse has not established a bona fide domicile in the state in which the divorce is sought. Thus the sole issue here is whether defendant has established such a domicile in Florida.

It is not disputed that defendant was for some years a Pennsylvania domiciliary. That domicile having been shown to exist, it is presumed to continue until another domicile is affirmatively proven: Pusey's Estate, 321 Pa. 248, 184 A. 844; Price v. Price, 156 Pa. 617, 27 A. 291. The burden is on the one alleging a change of domicile to prove residence in a new locality and the intention to make that his permanent home: Barclay's Estate, 259 Pa. 401, 404, 103 A. 274; Chidester v. Chidester, 163 Pa. Superior Ct. 194, 196, 60 A.2d 574; Reimer v. Reimer, 160 Pa. Superior Ct. 509, 513, 52 A.2d 357; Alburger v. Alburger, 138 Pa. Superior Ct. 339, 10 A.2d 888.

Plaintiff argues that in view of those rules the chancellor could not dismiss the bill unless he found defendant to be domiciled in ...


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