Appeal, No. 85, Oct. T., 1956, from order of Municipal Court of Philadelphia County, Dec. T., 1951, No. 3918, D.R. No. 175661, in case of Commonwealth ex rel. Leila Johnson v. David Johnson. Order affirmed.
David Freeman, with him Leonard J. DeNote, for appellant.
H. N. Fineman, with him Morris Passon, for appellee.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ. (rhodes, P.j., absent).
[ 181 Pa. Super. Page 173]
This is an appeal by David Johnson from the refusal of the court below to vacate an order of support in favor of Leila Johnson, the said order having been entered on the assumption that Leila was David's wife. Appellant's present contention is that, because his original union with Leila was bigamous, the prior support order is not res judicata so far as the issue of marriage is concerned and must now be vacated.
On December 19, 1951, there was a hearing on Leila's original petition for support. At that time both Leila and David appeared in open court. The
[ 181 Pa. Super. Page 174]
record reveals the following colloquy (italics supplied): "Q. I understand, Mr. Johnson, you are willing to support your wife, it is just a question of amount, is that correct? A. That is right. Q. Is there any reason why you should not contribute $18.00 per week for the support of your wife? A. Well, contributing $18.00 per week, Judge, I have to keep myself". The court thereupon made an order of $18.00 per week. Appellant became in arrears and a bench warrant was issued. The parties again appeared (September 22, 1952) in open court, at which time a conditional reconciliation was effected. Because of appellant's subsequent default, the support order was (October 23, 1953) reinstated, at which time the record of the court hearing discloses the following (italics again supplied): "Q. The only thing we want to know, it is a fact that in September 1952 your wife came into this court and said that you were going to be living together; and it is a fact you only stayed for several days and then left? A. That is true ... When my wife brought me here in this Court I was making enough money to give her some of what she asked for ... Q. Were the things you bought for the [other] woman for your wife? A. When I bought those things I wasn't with my wife. When I bought those things I wasn't living with my wife..."
At the hearing (November 18, 1955) on the petition to vacate, the following circumstances were disclosed. Appellant married one Ruby Gay in Florida on July 23, 1936. He married Leila Goshen in Louisiana on May 15, 1944. Leila testified, and the lower court believed her, that she did not know of appellant's prior marriage. Appellant and Leila thereafter set up housekeeping and lived together in Florida. On September 14, 1944, in a Florida proceeding, appellant's marriage to Ruby Gay was dissolved by a decree in divorce. Appellant and Leila continued to live together in Florida
[ 181 Pa. Super. Page 175]
for several months, and thereafter moved to Pennsylvania, where they continued to live together until the original separation in 1951. It was clearly established that, during all these years, appellant and Leila were known as husband and wife, and that appellant presented Leila to his and her friends as his wife. And as heretofore demonstrated, in the original support proceeding appellant not only ...