Appeal from order of Court of Common Pleas No. 7 of Philadelphia County, June T., 1964, No. 7064, in case of Serge Koolish v. Helen Koolish.
Ivan Michaelson Czap, for appellant.
Henry B. Fitzpatrick, Jr., with him Broderick, Schubert & Fitzpatrick, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.
[ 214 Pa. Super. Page 306]
This is an appeal by the plaintiff, Serge Koolish, from the refusal of the court below to grant him a divorce a.v.m. on the grounds of desertion and indignities to the person. The dispute centers on the ground of desertion as a cause for divorce. The appellant states in his brief that he does not appeal from the court's refusal of a divorce on the ground of indignities. Without discussing the testimony, we agree with the master and the court below that the evidence with regard to indignities failed to reveal a course of conduct sufficient to establish a cause of divorce.
The parties were married in Germany in 1947. They came to the United States in 1952 and lived in New York for ten years. On July 24, 1962, the husband left his home in New York and moved to Pennsylvania in connection with his employment as a mechanical engineer. The wife remained in New York and on January 7, 1963, instituted an action against her husband for judicial separation in the Supreme Court of Queens County, New York, on the grounds of cruelty and abandonment. The matter was tried on September 24, 1963, with the defendant husband present and represented by counsel. On December 9, 1963, the New York court entered a judgment of separation in favor of the wife, decreeing, inter alia, that she "is separated forever from the bed and board of the defendant . . . because of the abandonment of the plaintiff by the defendant."*fn* Mrs. Koolish has since maintained her residence in New York.
On September 16, 1964, the appellant husband brought this action in Pennsylvania for divorce a.v.m. averring that his wife had deserted him wilfully and maliciously on or about July 23, 1962, and had been
[ 214 Pa. Super. Page 307]
absent without reasonable cause for the statutory period of two years. The wife introduced a certified copy of the New York decree of judicial separation and alleged that the issues raised by her husband's complaint were res judicata by virtue of that judgment. The master, although gratuitously finding that the wife was unjustified in refusing to accompany her husband to Pennsylvania, concluded that the New York decree was entitled to full faith and credit and precluded the grant of a divorce for desertion because the matter was res judicata. The court below affirmed the master's recommendation and dismissed the complaint.
Initially, it is clear that a divorce or separation decree by a court of competent jurisdiction in a sister state in which the parties have appeared must be accorded full faith and credit under article IV, § 1 of the United States Constitution. See Harding v. Harding, 198 U.S. 317 (1905); Harrison v. Harrison, 183 Pa. Superior Ct. 562, 133 A.2d 870 (1957); Com. ex rel. DiPasquale v. DiPasquale, 162 Pa. Superior Ct. 29, 33, 56 A.2d 265 (1948). The question for decision is the effect of the New York decree on the husband's claim that his wife has committed wilful and malicious desertion for a period of two years from July 23, 1962.
It may be that the issue of the wife's desertion is res judicata because of the New York decree either as a bar or as estoppel by judgment. See, e.g., Harding v. Harding, supra; Foster v. Foster, 70 Pa. D. & C. 485 (C.P. Beaver 1949); Crawford v. Crawford, 47 Pa. County Ct. 56 (C.P. West. 1915); Downs v. Downs, No. 6150 Sept. Term, 1954 (C.P. No. 5 Phila. Co.); Freedman, Law of Marriage and Divorce in Pennsylvania §§ 363, 714 (2d ed. 1957); 24 Am. Jur. 2d Divorce and Separation § ...