Appeal, No. 436, Oct. T., 1959, from order of Court of Quarter Sessions of Montgomery County, Nov. T., 1955, No. 2, in case of Commonwealth ex rel. Josephine M. Schultz v. Theodore L. Schultz. Order reversed.
Victor J. Roberts, with him High, Swartz, Childs & Roberts, for appellant.
Roland Fleer, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 191 Pa. Super. Page 620]
This appeal is from the order of the court below vacating a previous order of support. On January 12, 1955, Josephine M. Schultz, appellant, filed a complaint in the Court of Common Pleas of Montgomery County for a bed and board divorce on the ground of indignities, in which she alleged that she and the appellee, Theodore L. Schultz, were married on April 30, 1936 in New York. In October of the same year, she filed a complaint for support before a Justice of the Peace and appellee was held for court under bail. At a preliminary hearing on said charge before the Chief Desertion and Probation Officer on November 22, 1955, the parties amicably agreed that an order for support
[ 191 Pa. Super. Page 621]
should be entered in the amount of two hundred fifty dollars per month. At this hearing, appellant testified that she was married to appellee on April 29, 1938 and that she was the lawful wife of appellee. Appellee was present with counsel when these statements were made and admitted appellant to be his wife. He then entered into his own recognizance in the amount of five thousand dollars for the faithful performance of his duty to support his wife. The Court of Quarter Sessions of the Peace of Montgomery County entered its decree adjudging appellee guilty of non-support, and signed an order for support as amicably agreed to.
On October 9, 1957, the dormant complaint for divorce was activated when appellee petitioned the court for leave to amend his answer to deny his marriage to appellant and on November 4, 1957 filed an amended answer to this effect. On November 18, 1957, a master was appointed to hear the case. Also, on November 15, 1957, appellee presented a petition to the Court of Quarter Sessions of the Peace seeking to suspend the payments under the support order previously entered pending the outcome of the divorce action. An answer was filed to this petition and the issue raised was placed on the argument list but never disposed of. On November 22, 1957, appellant filed a petition in the Court of Common Pleas for leave to discontinue her divorce action. An answer was filed, argument had on the petition and answer, and on January 21, 1958, the rule for leave to discontinue was discharged, the court holding that the appellant having selected the forum, the appellee should be permitted to establish whether or not a valid marriage existed between them. The complaint in divorce was then amended to show the date and place of marriage to be April 30, 1957 in Philadelphia.
At the hearing of the divorce action appellant appeared but presented no evidence to sustain the indignities
[ 191 Pa. Super. Page 622]
charged. The master thereupon received evidence restricted to the question whether a valid marriage subsisted between the parties. At the conclusion of this hearing, the master recommended to the court that the divorce, on the ground of indignities, be refused because the charge was not sustained and, also, because the parties never entered into a valid marriage contract. Exceptions were filed to this report by appellant and, after argument, the court entered an order refusing the divorce for the reason ...