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HARRISON v. HARRISON. (06/11/57)

June 11, 1957

HARRISON, APPELLANT,
v.
HARRISON.



Appeals, Nos. 126 and 127, April T., 1956, from order of Court of Common Pleas of Allegheny County, July T., 1946, No. 3559, and Oct. T., 1946, No. 3092, in cases of Sarah Elizabeth Harrison v. Elmer J. Harrison, and Elmer J. Harrison v. Sarah Elizabeth Harrison. Order reversed.

COUNSEL

James R. Orr, with him William Wallace Booth, Kenneth P. Simon, and Reed, Smith, Shaw & McClay, for appellant.

John G. Masick, for appellee.

Before Hirt, Gunther, Wright, Woodside, and Carr, JJ. (rhodes, P.j., and Ervin, J., absent).

Author: Woodside

[ 183 Pa. Super. Page 564]

OPINION BY WOODSIDE, J.

This case involves an order of the court below (1) dismissing appellant's rules to show cause why an order granting appellee alimony pendente lite should not be vacated and the divorce actions of both parties should not be dismissed, and (2) granting alimony pendente lite, costs and counsel fees to appellee.

The case was heard in the court below on appellant's petition praying that an order of that court entered on February 1, 1954, should be vacated; and appellee's answer thereto; appellant's petition praying that his divorce action be dismissed at his cost, and appellee's answer thereto; appellee's petition for arrearages of alimony pendente lite, additional counsel fees and expenses and, appellant's answer thereto.

[ 183 Pa. Super. Page 565]

Sarah Elizabeth Harrison, appellee, and Elmer J. Harrison, appellant, were married on February 20, 1939. After their marriage, the parties resided in Pittsburgh, Pennsylvania, until January 11, 1952, when appellant moved to Florida, where he has since continued to reside.

On June 29, 1946, appellee filed a libel in divorce from bed and board against appellant in the Court of Common Pleas of Allegheny County. On September 12, 1946, appellant filed a libel for absolute divorce from appellee in the same court.

Judge WEISS, by order of February 1, 1954, required appellant to pay alimony pendente lite and counsel fees. Appellant complied with this order until September of 1954, at which time a Florida court entered a decree of permanent alimony, with the provisions of which appellant has fully complied. Neither of the Pennsylvania divorce actions has been heard on the merits.

On March 12, 1953, the appellant who then resided at Ft. Lauderdale, Florida for over a year, instituted an action for absolute divorce from appellee in the Circuit Court of the Eleventh Judicial District of Florida. Appellee was given notice by publication and registered mail of the Florida action. After consultation with her Pittsburgh counsel, appellee retained Florida counsel to represent her in the Florida proceedings, and a motion was filed in Florida by her counsel to stay or dismiss that proceeding because of appellant's pending Pennsylvania divorce action. After hearing the testimony of appellant and his Pittsburgh counsel, both of whom were cross-examined by appellee's Florida counsel, the Florida Circuit Court made an order denying the motion to stay and gave appellee 20 days within which to file an answer to the complaint. An answer to the complaint on the merits was filed by appellee's

[ 183 Pa. Super. Page 566]

Florida counsel on June 18, 1953, appellee praying, inter alia, that if the court finds the equities to be with appellant, it would adjust the property rights of the parties and give her permanent alimony, costs and attorneys' fees. Appellee also filed a petition for writ of certiorari on the decision of her motion to stay with the Supreme Court of Florida, which court denied the petition.

On January 7, 1954, appellee filed a motion for temporary alimony, suit money, and attorneys' fees in the Florida proceedings which motion appellee supported by her affidavit. That court refused temporary alimony and suit money, but awarded appellee attorneys' fees. Upon appeal, the Florida Supreme Court ordered the denial of suit money reversed and directed the Circuit Court to set the amount reasonably required by appellee to present her defense. The Circuit Court thereafter awarded her suit money of $550.

On July 1, 1954, appellee's Florida counsel notified appellant that the depositions of eight witnesses for appellee would be taken in Pittsburgh, Pennsylvania, on July 14, 1954, for use in the Florida proceedings. The depositions were never taken because of the failure of appellee to cooperate with her counsel.

The Special Master appointed by the Florida Court, filed his report recommending the granting of a divorce, and the awarding of appellant's home in Pittsburgh and the sum of $150 a month permanent alimony to appellee. On September 2, 1954, the Circuit Court filed a final decree, inter alia, confirming the Special Master's report, granting appellant a divorce a vinculo matrimonii, and giving appellee permanent alimony. This final decree was not appealed. Appellant has complied with such ...


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