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COMMONWEALTH EX REL. BORTIN v. BORTIN (09/14/67)

decided: September 14, 1967.

COMMONWEALTH EX REL. BORTIN, APPELLANT,
v.
BORTIN, APPELLANT



Appeals from order of County Court of Philadelphia, Jan. T., 1965, No. 285 (DR No. 244683), in case of Commonwealth ex rel. Marika E. Bortin v. George Bortin.

COUNSEL

Leonard Sarner, with him Burton K. Stein, and Sarner, Cooper & Stein, for plaintiff.

Lawrence J. Richette, with him Paul A. Levy, and Frater, Green & Levy, for defendant.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J.

Author: Wright

[ 210 Pa. Super. Page 356]

We are here concerned with two appeals from an order of the County Court of Philadelphia in a proceeding for support instituted by Marika E. Bortin against George Bortin. The opinion of the hearing judge covers seventy-three printed pages. She concluded (1) that a decree of divorce obtained by Marika in Nevada was not entitled to full faith and credit in Pennsylvania; (2) that Marika was nevertheless estopped from asserting any right to support; and (3) that there was no common-law remarriage between the parties. Marika has appealed at No. 375 October Term 1967 concurring in the conclusion below that the Nevada decree did not dissolve the marriage, but contending that she was not estopped from asserting her right to support. She has raised no question regarding the conclusion below that there was no common-law remarriage. George has appealed at No. 387 October Term 1967 contending that the Nevada decree should have been accorded full faith and credit in this Commonwealth.

[ 210 Pa. Super. Page 357]

The hearing judge conducted seventeen hearings over a protracted period. The voluminous original record, of which we have made a painstaking review, contains sixteen hundred pages of testimony and sixty exhibits. Marika and George, respectively thirty-three and forty-three years of age, were married on August 14, 1959 in the City of Philadelphia, where both resided. It was the third marriage for Marika and the second for George. Marital difficulties began several months later, and it was decided that Marika should obtain a Nevada divorce. The parties entered into an oral agreement, eventually reduced to writing, which provided, inter alia, that George should pay Marika $15,000.00 at the time of final decree. Marika arrived in Reno on May 3, 1960. She instituted a divorce action in the Second Judicial District Court of Washoe County, in which action both Marika and George were represented by counsel. On September 7, 1960, a decree of divorce was entered. The record discloses that Marika appeared at the hearing, and that all material issues were raised and adjudicated.*fn1 After the divorce

[ 210 Pa. Super. Page 358]

Marika moved to the City of New York, where she presently resides.

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. Article IV, Section 1, of the Constitution of the United States provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State". In Johnson v. Muelberger, 340 U.S. 581, 95 L. Ed. 552, 71 S. Ct. 474, Mr. Justice Reed said: "The faith and credit given is not to be niggardly but generous and full". The most recent pronouncement of our own Supreme Court on the subject appears in March Estate, 426 Pa. 364, 231 A.2d 168. Mr. Chief Justice Bell therein reviewed the applicable decisions, both federal and state, and emphasized the burden of proof which is necessary to overcome the presumption of validity which attaches to a foreign divorce decree. In the March case the husband had obtained a divorce in Nevada. The wife was served both by mail and publication, but did not enter an appearance and was not represented by counsel. The holding of the court below that it was not required to honor the Nevada decree was reversed. The opinion contains the following pertinent statement: "Greatly as we desire to protect the citizens of Pennsylvania from foreign divorces, we cannot evade or circumvent

[ 210 Pa. Super. Page 359]

    the Constitution of the United States or alter the fact that appellee has failed ...


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