Appeal, No. 170, Jan. T., 1951, from decree of Court of Common Pleas No. 2 of Philadelphia County, March T., 1946, No. 3685, in case of Gweneth Betty Dulles v. Leib Harrison Dulles and Fidelity-Philadelphia Trust Company. Decree affirmed.
Edwin P. Rome, with him Gray, Anderson, Schaffer & Rome, for appellant.
Henry A. Craig, with him Edward J. Kirchner and Kirchner & Strassner, for appellee.
Before Drew, C.j., Stern, Stearne, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
In 1946 plaintiff, Gweneth Betty Dulles, filed a bill in equity against defendant, Leib Harrison Dulles, in which she averred that she, a British subject, and he, a citizen of the United States, but both of them residents of and domiciled in France, were united in marriage in Paris in 1932; that because of their matrimonial residence and domicile in France all the property of which either was possessed was, under French law, community property; that this community of property would be dissolved by divorce or judicial separation and the joint assets would then be divided between them; that some of this property consisted of securities held for defendant by the Fidelity-Philadelphia Trust Company of Philadelphia; that plaintiff and defendant had each filed a petition for divorce in the Civil Tribunal of the First Instance at Grasse, both of which proceedings were then pending; that she feared that defendant, unless restrained, would take possession of the property at the Trust Company and deal with it as his separate property without her consent. She therefore prayed that a decree be entered enjoining the Trust Company from transferring any of the assets of the fund in its possession until both of the divorce proceedings were finally terminated and until a distribution of the community property had been awarded by the French court.
Defendant filed an answer denying that under the facts alleged in the bill plaintiff had any community rights in the property held by the Trust Company. By the time the case came on for hearing the Civil Tribunal of the First Instance at Grasse had granted plaintiff a limited divorce and at the same time had granted defendant an absolute divorce, the latter, of course, making the former unimportant; plaintiff had appealed from the judgment of absolute divorce to the
Court of Appeals in Aix-en-Provence, which appeal was then pending. At the hearing an expert in French law testified that the community system applied to the parties, and that, upon the termination of the divorce proceedings, their property would be divided between them by a notary as directed by the court. The impression was thus given, and counsel for both parties apparently were therefore of the belief, that the property rights of the parties would be determined in and by the divorce proceedings and that no other actions would be necessary, or in order, for that purpose. The result was that, under date of January 3, 1947, counsel agreed to a consent decree terminating the hearing. This decree provided for the issuance of an injunction restraining the Trust Company from transferring to defendant any of the assets it held for him. It further provided as follows: "This injunction shall continue until further order of this Court. Application for such Order may be made only after the plaintiff's action for a separation, and the defendant's action for a divorce..., together with all issues raised or to be raised in said actions which pertain to property and the property rights of the respective parties shall have been litigated and adjudicated beyond all appeal, review or revision, in France. Such Order of this Court shall either dissolve this Injunction or shall direct the Fidelity-Philadelphia Trust Company to distribute the property... in accordance with such determination of the property rights of the respective parties." (Italics supplied.)
In 1949 the present proceedings were instituted by the filing by defendant of a petition to dissolve the injunction of January 3, 1947. At a hearing held thereon it appeared that shortly after the consent decree had been entered the Court of Appeals in Aix-en-Provence had affirmed the judgment of absolute divorce in defendant's favor, that plaintiff had then appealed to
the Court of Cassation, the highest court in France, and that that court also had affirmed the judgment, whereby the divorce proceedings had been finally and irrevocably determined. It further appeared that, contrary to the impression obtained at the original hearing on the bill in equity, the controversy as to the property rights of the parties was not, and under French procedural law could not have been, adjudicated in the divorce proceedings, but that it was necessary for such purpose to resort to a separate action; that plaintiff had instituted such an action in the Civil Tribunal of the First Instance at Grasse, and that that tribunal had entered a judgment holding that the property status of the parties was that of separation of property and not community of property; that plaintiff had appealed this judgment to the Court of Appeals in Aix-en-Provence, which court had affirmed the judgment of the lower court; and that plaintiff had further appealed to the Court of Cassation, where the case was then pending. Defendant accordingly argued that, as the matter then stood, the courts in France had decided that plaintiff had no rights whatever in defendant's property, that plaintiff's appeal to the Court of Cassation did not carry with it any stay or supersedeas, that defendant was therefore entitled to have all his property released to him, and that all his assets in France had been freed of the attachments which plaintiff had levied thereon. Defendant produced testimony to the effect that, according to French procedure, an ...