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MCLAUGHLIN v. MCLAUGHLIN. (09/13/62)

September 13, 1962

MCLAUGHLIN, APPELLANT,
v.
MCLAUGHLIN.



Appeal, No. 418, Oct. T., 1961, from order of Court of Common Pleas of Warren County, March T., 1944, No. 14, in case of Victor W. McLaughlin v. Gertrude McLaughlin. Order reversed.

COUNSEL

Harold S. Hampson, for appellant.

J. F. Potter, with him Potter and Potter, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 199 Pa. Super. Page 55]

OPINION BY WOODSIDE, J.

This is an appeal from an order of the Court of Common Pleas of Warren County opinion a divorce decree which had been entered July 6, 1944, on an action brought by Voctor W. McLaughlin charging his wife, Gertrude, with indignities. At that time, the parties had been married twenty-seven years and had five children.

After the entry of the decree, Victor married "Doris", who divorced him February 26, 1947. Later, on July 5, 1954, he married Alma Decker. He died intestate February 21, 1958, and letters of administration were issued to Alma McLaughlin. Gertrude McLaughlin then filed a petition to vacate the divorce decree of July 6, 1944, alleging that it had been fraudulently obtained, particularly by her husband's withholding from the court the knowledge he had of her address, thus denying her notice of the action.

[ 199 Pa. Super. Page 56]

The petition was subsequently amended to ask for the opening of the decree. After a hearing, the court granted the prayer of the petitioner and opened the divorce decree. Alma, as administratrix of Victor's estate, then appealed to this Court.

The divorce decree was valid on its face. The record indicates service upon the respondent by publication made according to law, and the entry of the decree after the taking of testimony before the court. Service by publication is unobjectionable and constitutes due process in Pennsylvania. Nixon v. Nixon, 329 Pa. 256, 266, 198 A. 154 (1938); Knode v. Knode, 159 Pa. Superior Ct. 210, 48 A.2d 151 (1946).

It is well settled that a divorce decree can be vacated or stricken off only for a defect apparent on the face of the record. Where new evidence relating to the cause of action must be introduced in order to sustain the attack, the decree should not be vacated or set aside, but should be opened. Nixon v. Nixon, supra; Wisor v. Wisor, 175 Pa. Superior Ct. 233, 238, 103 A.2d 498 (1954); Freedman on Law of Marriage & Divorce in Pennsylvania (2d Ed.) Vol. III, ยง 718. As the divorce in this case is valid on its face, the court below properly considered the petition as one to open the judgment rather than to strike it, and properly allowed the amendment to the prayer of the petitioner.

The evidence presented by Gertrude and her witnesses attacked the truthfulness of the evidence relating to her alleged indignities. If the charge of indignities was based upon perjured testimony, as it appears to have been, the husband's false evidence constituted intrinsic fraud. Intrinsic fraud in obtaining a divorce decree cannot be raised after the expiration of the term in which the decree was entered. ...


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