Appeal from order of Court of Common Pleas of Allegheny County, Jan. T., 1926, No. 1421, in case of Nicholas Contakos v. Stamoula Contakos.
Ralph J. McAllister, with him McAllister & McAllister, for appellant.
Abraham Pervin, for appellee.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Woodside, J. Montgomery, J., would affirm on the opinion of Honorable J. Frank McKenna, Jr., for the court below.
[ 204 Pa. Super. Page 447]
This is an appeal from an order of the Court of Common Pleas of Allegheny County vacating a divorce decree which had been entered May 2, 1927, on an action brought by Nicholas Contakos charging his wife, Stamoula, with desertion.*fn1 Nicholas and Stamoula were married in Greece in 1907. Four children were born to them, two of whom are still living, James, born in 1911, and Pauline, born in 1914.
[ 204 Pa. Super. Page 448]
One month after the entry of the divorce decree, Nicholas married Margaret Shiffman. Nicholas and Margaret had three children: the first was stillborn on January 2, 1928, and the other two, Mary Louise, born in 1929, and Nancy, born in 1939, are still living.
Nicholas died on October 16, 1961. His will was probated and letters testamentary were issued to Margaret.*fn2 After the will was probated, Nicholas' son James had the petition to vacate the divorce decree prepared and sent to Greece for execution by his mother, Stamoula. The court below concluded that the 1927 divorce had been fraudulently obtained, and vacated the decree. Margaret, as executrix of Nicholas' estate, appealed to this Court.
The record before the court below and this Court consists of the divorce proceedings, the pleadings to vacate the divorce decree and depositions of Stamoula (who says her correct name is Stavroula), Margaret, Stamoula's brother, her children -- Pauline and James, and the clerk of the court where Nicholas filed his naturalization papers; and a copy of the marriage application and license issued to "Nick" Contakos and Margaret Shiffman. Since the testimony before the lower court was entirely by depositions, this Court is equally competent to determine the facts from the printed record, and to make its own inferences and deductions therefrom: Stanko v. Males, 390 Pa. 281, 283, 135 A.2d 392 (1957).
The divorce decree is valid on its face. The record indicates service upon the respondent by publication made pursuant to the Act of March 13, 1815, P. L. 150, 6 Smith L. 286, as amended, which was the applicable law when this action was begun in 1925.
[ 204 Pa. Super. Page 449]
In the divorce proceedings Nicholas filed three affidavits setting forth that the last known address of Stamoula was "Lovotsova, Greece." In the third affidavit, required before placing the case on the hearing list, Nicholas swore that "Respondent returned to Lovotsova, Greece, and has not come back to this country. Respondent's former address was 208 Fifth Avenue, McKeesport . . ." The respondent never lived in this country, but there was no effort on the part of Nicholas to misrepresent this fact to the court. At the divorce hearing he testified on direct ...