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COMMONWEALTH EX REL. LORUSSO v. LORUSSO (04/16/59)

April 16, 1959

COMMONWEALTH EX REL. LORUSSO
v.
LORUSSO, APPELLANT.



Appeal, No. 31, Feb. T., 1959, from order of Court of Quarter Sessions of Luzerne County, Nov. T., 1953, No. 228, in case of Commonwealth ex rel. Marguerite Lorusso v. Dr. Nicholas Lorusso. Order refusing to vacate support order reversed; order refusing to remit arrearages affirmed in part.

COUNSEL

Solomon Lubin, for appellant.

James T. Shea, with him Shea & Shea, for appellee.

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

Author: Woodside

[ 189 Pa. Super. Page 405]

OPINION BY WOODSIDE, J.

This is an appeal from an order of the Court of Common Pleas of Luzerne County discharging a rule to show cause why an order of support should not be vacated, and the arrearages remitted.

It involves the validity of a Nevada divorce.

Dr. Nicholas Lorusso and his wife, Marguerite, were married July 20, 1946, and separated December 16, 1953. They resided in Wilkes-Barre, Pennsylvania. On March 11, 1954, the doctor was ordered by the Court of Quarter Sessions of Luzerne County to pay for the support of his wife the sum of $120 per month, which was increased in August of that year to $130 per month.

April 1, 1958, the defendant obtained the above rule upon a petition alleging that he was granted an absolute and final decree in divorce from his wife, Marguerite, in Nevada on April 2, 1957, and alleging further

[ 189 Pa. Super. Page 406]

    that for a time prior thereto he was not able to make all the payments due on the support order, because his earnings were insufficient. Marguerite filed an answer challenging the jurisdiction of the Nevada court to enter the decree in divorce. After a hearing before Judge FLANNERY the rule was discharged. This appeal followed.

It is well settled in Pennsylvania that a valid divorce decree terminates the duty of a husband to support his wife. Commonwealth v. Petrosky, 168 Pa. Superior Ct. 232, 77 A.2d 647 (1951); Commonwealth ex rel. McCormack v. McCormack, 164 Pa. Superior Ct. 553, 67 A.2d 603 (1949); Commonwealth ex rel. Parker v. Parker, 59 Pa. Superior Ct. 74 (1915). Accordingly, if the Nevada divorce in question is valid in Pennsylvania, the support order, together with any arrearages that accrued after the divorce was granted, must be vacated. On the other hand, if the Nevada divorce decree is not valid in Pennsylvania, there has been no legal termination of the duty to support.

Article IV, section 1 of the Federal Constitution, known as the full faith and credit clause, places the Pennsylvania courts under a duty to accord prima facia validity to the Nevada decree. Esenwein v. Commonwealth ex rel. Esenwein, 325 U.S. 279, 280, 65 S. Ct. 1118 (1945); Williams v. North Carolina, 317 U.S. 287, 63 S. Ct. 207 (1942). A decree of divorce is a conclusive adjudication of everything involved therein except the jurisdictional facts on which it is founded. Williams v. North Carolina, 325 U.S. 226, 232, 65 S. Ct. 1092 (1945); Commonwealth ex rel. McVay v. McVay, 383 Pa. 70, 73, 118 A.2d 144 (1955). Domicile is a jurisdictional fact. The bona fides of the domicile of a person granted a divorce in another state is subject to collateral attack in Pennsylvania by a spouse domiciled here who did not appear in the court of the

[ 189 Pa. Super. Page 407]

    other state. Esenwein v. Commonwealth ex rel. Esenwein, supra; Commonwealth ex rel. McVay v. McVay, supra. The full faith and credit clause requires us to assume that the appellant had a bona fide domicile in Nevada. Williams v. North Carolina, supra. The burden is on the party attacking the divorce of a sister state to show by a preponderance of the evidence that jurisdiction was in fact lacking. Commonwealth ex jurisdiction was in fact lacking. i2Commonwealth ex rel. Esenwein v. Esenwein, supra; Williams v. North Carolina, supra, 325 U.S. 226, 233, 65 S. Ct. 1092 (1945); Commonwealth v. Petrosky, supra; Commonwealth ex rel. Meth v. Meth, 156 Pa. Superior Ct. 632, 41 A.2d 752 (1945); Commonwealth ex rel. Cronhardt v. Cronhardt, 127 Pa. Superior Ct. 501, 193 A. 484 (1937); Loiacono v. Loiacono et al., 179 Pa. Superior Ct. 387, 391, 116 A.2d 881 (1955).

Domicile involves both the physical presence at a given place, and an intention to make a home there permanently or indefinitely. A change of residence with a present intention to live at the new place permanently or indefinitely constitutes the establishing of a new domicile. Commonwealth ex rel. Meth v. Meth, supra; Commonwealth ex rel. Esenwein v. Esenwein, 348 Pa. 455, 35 A.2d 335 (1944), affirmed in 325 U.S. 279, 65 S. Ct. 1118, supra; Melnick v. Melnick, 154 Pa. Superior Ct. ...


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