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SCHAEFER v. SCHAFER. (03/18/59)

March 18, 1959

SCHAEFER, APPELLANT,
v.
SCHAFER.



Appeal, No. 2, Oct. T., 1959, from order of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1957, No. 1254, in case of Frederick John Schaefer, also known as John Schafer v. Fannie Schafer, also known as Fannie Alexander. Order affirmed.

COUNSEL

Daniel Marcu, with him Marcu, Marcu & Marcu, for appellant.

Joseph V. McEnery, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Hirt

[ 189 Pa. Super. Page 121]

OPINION BY HIRT, J.

Frederick John Schaefer and Fannie Alexander, the parties to this annulment proceeding, had entered into a formal ceremonial marriage in Elkton, Maryland, on June 29, 1957. He then was 68 and she 64 years of age. They were both residents and citizens of Pennsylvania and they went into Maryland to be married, and for that purpose alone. They returned to this State immediately after their marriage, but separated the same day after spending but a few hours in a seaside hotel. They have not lived together nor have they cohabited since their wedding day. Ever since the separation plaintiff has lived in a house owned by him in Philadelphia; and she in a home which she owns or in a rented apartment, in Chester. The defendant, on October 16, 1937 had married one Alexander Alexander and they lived together as husband and wife until October 1947 when he left this country to return to his native Armenia, in the Soviet Union. He arranged for his passage through the "Committee to Aid the Repatriation of Armenians" with offices in New York. He had sold his interest in a restaurant because of ill health, and in order to raise money for

[ 189 Pa. Super. Page 122]

    the trip. His purpose in going to Armenia was to visit his aged father, and it was his intention to return to this country and to his wife, the defendant, after a stay there of about three months. He never did return and the defendant has received no word from him either directly or indirectly since he boarded ship at New York in October 1947. Although the present parties were married in Maryland the question of the validity of their marriage contract may be questioned in an annulment proceeding in this State. Maurer v. Maurer, 163 Pa. Superior Ct. 264, 60 A.2d 440.

There is no dispute as to any of the facts in this case. The issue is directed wholly to the inferences of law to be drawn from admitted facts. Early in 1950 the defendant attempted to ascertain the whereabouts of her husband through our Department of State and particularly through the acting officer of the department in charge of U.S.S.R. affairs. The report of this officer for the department to her, dated June 29, 1950, stated that its investigation disclosed that Alexander had become a naturalized citizen of this country in 1943; that the records of the department show that "Alexander Alexander was issued an American passport on March 27, 1947 for the purpose of visiting his aged father in the Soviet Union"; and that in the application for the passport Alexander stated that he intended to return to the United States in three months. It was the judgment of the department as set forth in the report that the Soviet government attributed to Alexander the status of a repatriated Armenian and for that reason would not grant him the privilege of leaving the Soviet Union. The department reported further: "... the American Embassy in Moscow has informed the Department of State that it believes that for reasons of personal safety persons residing in the Soviet Union prefer to have no correspondence with

[ 189 Pa. Super. Page 123]

    their relatives in the United States or with the American Embassy in Moscow. This conclusion is based on the fact that many residents of the Soviet Union have ceased writing to their relatives in the United States and have, furthermore, failed to reply to the Embassy's letters requesting welfare information for transmittal to their relatives in the United States. In this connection consideration should be given to the indications that foreign mail and mail from foreign missions to persons residing in the Soviet Union is censored by the Soviet authorities and that coercive measures are being applied to discourage the continuance of correspondence with foreigners". The defendant, in depositions taken by the plaintiff as a part of his case, said that one Arnas Markain, a nephew of Alexander, came to her apartment in 1955 and said that he had a letter from Russia which he produced, in which it was stated that Alexander had died in 1954. The writer of the letter was not identified by Markain; it was in Russian and defendant said she could not read it. Markain died in 1955 and the letter, after his death, could not be located. The plaintiff had known the defendant for three years and prior to the marriage she had made a full disclosure to him of her marriage to Alexander; she then told him that Alexander was dead; and it was upon that assumption that the plaintiff married her in 1957.

Reference should be made to one other fact in this record. After defendant had been told by Markain of the report of Alexander's death in the letter above referred to, the defendant asked plaintiff for $250 for the purpose of prosecuting an action in divorce against Alexander. As to the significance of this testimony we agree with the master that contemplation of a divorce was not ...


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