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WALLACE v. WALLACE (06/24/52)

June 24, 1952


Appeal, No. 61, Jan. T., 1952, from decree of Court of Common Pleas of Montgomery County, Nov. T., 1945, No. 2, in case of Gwladys C. Wallace, a minor, by Olive R. Carter, her Guardian v. James Macaulay Wallace, Jr. Decree reversed; reargument refused July 24, 1952.


H. E. Potter, with him Frank A. Moorshead, Wm. H. Doerr, Jr., J. P. Hilferty and Roland Fleer, for appellant.

Wesley H. Caldwell, with him Roper & Caldwell and Wright, Mauch, Hawes & Spencer, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Drew

[ 371 Pa. Page 406]


The marital problems of Gwladys C. Wallace, plaintiff, and James Macauley Wallace, Jr., defendant, have been subjects of litigation since 1945. At the present time, defendant has obtained a decree of divorce in Florida, has remarried and is residing there, while plaintiff has obtained a decree from the Court of Common Pleas of Montgomery County in this Commonwealth, sitting in equity, declaring that defendant's divorce "is without legal force or effect and is not entitled to lawful recognition in the Commonwealth of Pennsylvania" and enjoining defendant from jeopardizing plaintiff's property rights as a result of the Florida divorce. It is this decree from which defendant has appealed.

The parties were married on August 12, 1944, in Philadelphia. Prior to that time both of them had resided in Montgomery County with their respective parents. Immediately after the wedding they went on a short honeymoon before taking up residence in Florida where defendant was assigned as an ensign in the U.S. Navy. They lived in various apartments there until August 26, 1945, when plaintiff left defendant and returned to Pennsylvania. On October 29, 1945, defendant started suit for divorce in Florida, notice of which was properly served on plaintiff. She did not appear there but instead filed this bill in equity to restrain defendant from prosecuting the divorce suit and to prevent his remarrying. At a hearing for a preliminary injunction, defendant appeared specially to question the jurisdiction of the court, asserting that he was domiciled in Florida. That petition was dismissed, and on November 29, 1945, a preliminary

[ 371 Pa. Page 407]

    injunction was granted which was, however, declared a nullity and dissolved on January 5, 1949, because plaintiff had failed to post a bond as required by the Act of May 6, 1844, P.L. 564 and Equity Rule 39. In the meantime a final decree of divorce was entered in Florida on March 6, 1946, as a result of plaintiff's failure to enter an appearance there.

With the record in that condition the bill in equity came on for final hearing before the learned court below. That court held that at the time defendant obtained his divorce in Florida he was domiciled in Pennsylvania and that as a result the divorce was of no effect here. It further held that since he had in fact obtained the divorce and remarried the specific relief prayed for could not be granted but that under the general prayer it could enjoin defendant from doing anything in Pennsylvania to affect plaintiff's marital status or her property rights incident to that relationship. A decree was then entered to that effect.

In Smith v. Smith, 364 Pa. 1, 70 A.2d 630, we enunciated the rule 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." Domicile in turn depends on residence plus the intent to make the place a permanent home: Dorrance's Estate, 309 Pa. 151, 165, 163 A. 303. Since there can be no question but that defendant has resided in Florida since August of 1944, the sole issue is whether he had the requisite intent to establish a domicile there.

The Chancellor, apparently relying on his opinion on the petition to dismiss for want of jurisdiction, made no findings of fact on this issue in his adjudication except that defendant was domiciled in Pennsylvania at the time he filed the divorce action in Florida. This, of course, was simply a deduction from the evidence and where the ultimate fact in question is purely

[ 371 Pa. Page 408]

    the result of reasoning, this Court is not bound by the finding but is competent to reach its own conclusions: Smith v. Smith, supra.

At the outset plaintiff is met with the principle that 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: Com. ex rel. Cronhardt v. Cronhardt, 127 Pa. Superior Ct. 501, 193 A. 484. A review of the record convinces us that plaintiff failed to meet that burden.

The evidence shows that defendant and plaintiff arrived in Florida in August, 1944, and lived in various apartments of their own choosing. From that date on his only residence has been maintained in Florida. Shortly after his arrival there he stated that he liked it there and began thinking of it as his permanent home. He made inquiries into the purchase of a house and the possibilities of obtaining employment there. On September 13, 1945, he filed a formal declaration of intent to make Florida his permanent home. On September 29, 1945, he registered to vote in Florida and ten days later he transferred his bank account there. Suit for divorce was filed October 29, 1945, and thereafter in February of 1946, he transferred his church membership to Florida, and his automobile operator's license in June 1946. Upon his discharge from the Navy he became a member of the Seventh Naval District Organized Reserve located in Florida. He is now a member of the Florida bar but at the present time has been recalled to active duty in the Navy. He still keeps only his Florida residence.

The only evidence which might be construed to support plaintiff's position is that she and defendant made inquiries about the purchase of a farm in Maryland and that his mother managed some of his ...

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