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MONIHAN v. MONIHAN (04/22/70)

decided: April 22, 1970.

MONIHAN, APPELLANT,
v.
MONIHAN



Appeal from decree of Court of Common Pleas, Family Division, of Philadelphia, Dec. T., 1968, No. 355, in case of Richard Monihan v. Barbara C. Monihan.

COUNSEL

Edward J. Morris, for appellant.

Lewis Kates, with him Leonard B. Edelstein, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell concurs in the result. Concurring Opinion by Mr. Justice Roberts.

Author: O'brien

[ 438 Pa. Page 381]

Appellant, Dr. Richard Monihan, commenced an action of divorce against his wife, Barbara, the appellee, in Philadelphia County. After appellee had informed appellant of her intention to contest the divorce action which appellant had already commenced in Pennsylvania, appellant removed to the State of Nevada, and commenced another divorce action in that jurisdiction. At appellee's instance, the Court of Common Pleas of Philadelphia County granted an injunction restraining appellant from proceeding with the Nevada divorce action.*fn1

[ 438 Pa. Page 382]

Appellant calls upon this court to decide whether the injunction issued by the Court of Common Pleas of Philadelphia County was a proper exercise of that court's authority.

This Court has often held that lower courts may issue an anti-suit injunction against a spouse who is not a bona fide domiciliary of another state. See, e.g., Wallace v. Wallace, 371 Pa. 404, 89 A.2d 769 (1952); Smith v. Smith, 364 Pa. 1, 70 A.2d 630 (1950); Janney v. Janney, 350 Pa. 133, 38 A.2d 235 (1944).

The purpose of such an injunction is to prevent the migratory spouse from gaining a sham divorce where he (or she, as the case may be) is not actually domiciled. Although the nonmigratory spouse is entitled to attack collaterally the asserted jurisdiction of the state rendering the divorce, she has legitimate grounds for fearing the effect of a foreign divorce. "The bases for plaintiff's fear are the 'full faith and credit' and 'prima facie weight' holdings of Williams v. State of North Carolina, supra [317 U.S. 287, 63 S. Ct. 207]. If the husband be allowed to prosecute his foreign suit to judgment, the wife, to save her rights as wife, will have to bring a new suit to set aside the foreign decree and in that suit will have to bear the heavy burden of striking down the prima facie effect of the foreign court's finding of residence." Garvin v. Garvin, 302 N.Y. 96, 96 N.E. 2d 721 (1951). A clearer case than the instant one for the issuance of an injunction to prevent a sham divorce can hardly be imagined. The facts are set forth in the opinion of the court below:

"The basic question of the domicile of the respondent, Richard Monihan, was resolved beyond any doubt.

[ 438 Pa. Page 383]

"Dr. Peter V. Moulder, the director of surgery at Pennsylvania Hospital, Philadelphia, testified that Richard Monihan was a physician who held a residency in surgery at the Pennsylvania Hospital, and was under his personal supervision since October 1, 1968; that he obtained a leave of absence four or five weeks before the date of the hearing and is still on the staff of the Pennsylvania Hospital. He testified that Dr. Monihan told him he would be coming back and that he was expected to return the week following the hearing.

"Dr. Herman Lipshutz testified that he is head of the section of plastic surgery at the Pennsylvania Hospital and that Dr. Monihan had applied for and had been accepted for a residency in plastic ...


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