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COMMONWEALTH EX REL. WENZ v. WENZ (06/15/61)

June 15, 1961

COMMONWEALTH EX REL. WENZ
v.
WENZ, APPELLANT.



Appeal, No. 74, Oct. T., 1961, from order of Court of Quarter Sessions of Lehigh County, April T., 1959, No. 26-A, in case of Commonwealth ex rel. Juanita M. Wenz v. Earl Wenz. Order affirmed.

COUNSEL

Paul A. McGinley, with him Leonard Rapoport, and Groman & Rapoport, for appellant.

E. G. Scoblionko, with him Scoblionko, Frank & Malkames, for appellee.

Before Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., and Woodside, J., absent).

Author: Watkins

[ 195 Pa. Super. Page 594]

OPINION BY WATKINS, J.

This is an appeal from an order of the Court of Quarter Sessions of Lehigh County directing the defendant, Earl Wenz, to pay $25 per week for the support of his wife, the prosecutrix, Juanita M. Wenz, pursuant to a prosecution brought under § 733 of the Act of June 24, 1939, P.L. 872, 18 PS § 4733.

The defendant, Earl Wenz and Florentia Wenz, were married on June 30, 1921. He unsuccessfully brought a divorce action against her in Lehigh County

[ 195 Pa. Super. Page 595]

    in 1933. He obtained a divorce from her in Butler County, Ohio, on January 12, 1942. On November 7, 1942 he married the prosecutrix in Westminster, Maryland. They had been keeping company since 1932 and living together since 1938. They cohabited at various addresses in Berks and Lehigh Counties until March 18, 1959, at which time the prosecutrix was ejected from the common domicile at the direction of the defendant. Florentia Wenz obtained a decree of divorce from the defendant in the Court of Common Pleas of Lehigh County on August 12, 1958. Subsequent to the eviction, this prosecution was brought and after extensive hearings the order was made upon which the appeal is based. The defendant also filed a petition for a supersedeas which is herewith denied.

The defendant denies that he was her lawful husband and contends that he is not responsible for her support. He argues that the decree of divorce secured in Ohio is invalid in that he was never a resident of that state and his first wife, a resident of Allentown, was never served with any notice of the proceeding. Because of the invalidity of the divorce he was not legally competent to enter into the marriage with the prosecutrix in Maryland.

The relation of the parties to the proceeding was meretricious from its inception until the Maryland marriage. The prosecutrix, although she repeatedly requested the defendant to secure a divorce, claims she did not participate in securing the Ohio divorce and the record indicates that at the time of the marriage in November, 1942, both parties, and particularly the prosecutrix, were satisfied with the legality of the Ohio divorce and of the propriety of their marriage.

The defendant testified that he had not lived in Ohio at all; that he was only there three days prior to the commencement of the action; and that his residence was ...


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