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COLLINS v. COLLINS (10/02/53)

October 2, 1953


Appeal, No. 84, April T., 1953, from order of Court of Common Pleas of Allegheney County, Oct. T., 1950, No. 661, in case of Louise Collins v. Edgar Q. Collins. Order Affirmed.


Joseph I. Lewis, with him Cooper, Hunter & Lewis, for appellant.

John A Metz, Jr., with him John A. Metz and Metz & Metz, for appellee.

Before Rhodes, P. J., Hirt, Reno, Ross, and Gunther, JJ.

Author: Rhodes

Opinion BY RHODES, P. J., March 16, 1954:

This appeal is from the refusal of the Court of Common Pleas of Allegheny County to vacate on order for alimony awarded for the support of the wife upon a divorce a mensa et thoro.

The appellant, Edgar Q. Collins, and the appellee, Louise Collins, were married on November 14, 1925, and they there after resided in Allegheny County. On February 16, 1951, a decree of divorce a mensa et thoro was obtained by appellee in the Court of Common Pleas of Allegheny County, and appellant was ordered to provide support for appellee in the amount of $400 per month.

Subsequent to the decree and order appellant went to the state of Florida. He there filed on March 1, 1952, in the County of Pinellas, a suit for divorce. On May 22, 1952, the Circuit Court of the Sixth Judicial Circuit of the State of Florida granted appellant an absolute divorce from his wife.

After returning to Pennsylvania appellant of December 8, 1952, filed in the Court of Common Pleas of Allegheny County, a petition for rule to show cause why that portion of the decree of February 16, 1951, ordering him to make monthly payments in the sum of $400 for the support of appellee should not be vacated by reason of divorce a vinculo matrimoni entered May 22, 1952, by the Florida Court. Rule was granted on the petition, and a writ of Ne Exeat was stayed pending disposition of the petitions to vacate and the rule issued thereon.

All the matters were considered by the court below, and, after hearing, the court found that appellant had not established or maintained a permanent residence in the state of Florida; but that on the contrary he continually maintained a room in a hotel at Bedford, Pennsylvania, and never discontinued or interrupted the operation of his several businesses in this Commonwealth. The court concluded that the divorce was granted in Florida had not been bona fide but was soley for the purpose of obtaining a divorce. Consequently, it was held that the Florida decree was not entitled to full faith and credit in this Commonwealth. The court below thereupon entered an order discharging the rule to show cause and made absolute the rule granted on appellee's petition for attachment in contempt; appellant was ordered to pay all alimony delinquencies and the writ of Ne Exeat was reinstated. This appeal was taken from that order.

Most of the evidence produced at the hearing on appellant's petition and rule has been omitted from the printed record. It has been stipulated, however, that the evidence omitted will support a finding that appellant was not legally domiciled in Florida at the time of the Florida decree; and that appellant's postiton is that no consideration may be given to that evidence because appellee had submitted herself to the jurisdiction of the Florida court.

The latter contention is predicated upon the following facts. Upon appellant's instituting his divorce action in Florida, a copy of the complaint in divorce, together with a notice requiring appellee to serve upon appellant's Florida attorney a copy of her written defense to the bill of complaint on or before April 3, 1952, was sent to appellee in Pennsylvania by registered mail. This was received by appellee on March 6, 1952. She thereupon wrote a letter dated March 25, 1952, to "President Judge of Circuit Court for Pinellas Co., Clearwater, Fla." This letter, after making reference to the number of the Florida action and the names of the parties thereto, states: "As I am financially unable to come to Florida to contest this suit I would like to state several reasons why my husband has no grounds for a divorce." The letter then recited various details about appellant's involvement with another woman, advises the Florida judge as to appellant's "bed and board" decree granted in Pennsylvania, and expressed appellee's doubts as to appellant's intention to make Florida his permanent residence. It concluded as follows: "I wanted the courts to know that my husband has no grounds for a divorce and was unable to obtain one in our own state and is only there for that purpose. I would be very thankful for a reply." Above appellee's signature were the words "Sincerely yours," and the salutation was "Dear Honorable Sir."

The judge did not reply to appellee's letter; instead he filed it of record in the Florida court. On May 9, 1952, appellant moved to strike the letter from the record for the following reasons: (1) It was merely for the purpose of influencing the court previous to the taking of testimony; (2) it did not comply with the Florida Equity Rules; (3) it did not set up any defense to the complaint filed in the cse; (4) and it was immaterial, irrelevant, and impertinent, and should not be permittted to remain in the court file as it was a sham. A notice of hearing upon the motion was mailed to the appellee. Thereafter, on May 15, 1952, the Florida court entered an order wherein it found: "That said letter does not ...

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