Appeal from order of Court of Common Pleas, Family Court Division, of Philadelphia, June T., 1970, No. 2213, in case of Commonwealth ex rel. Barbara Keith v. Julius Keith.
Herbert Karasin, for appellant.
No oral argument was made nor brief submitted for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Concurring Opinion by Cercone, J.
[ 218 Pa. Super. Page 135]
Appellee and appellant were married in 1969. The parties separated soon after their baby was born, and appellee filed a petition for support on behalf of herself and the child. At the hearing, appellant attempted to prove that he had no obligation to support appellee because the marriage in question was void, since he had been married before and that first marriage had never been terminated. The lower court rejected this offer of proof and entered an order of twenty dollars per week as support for the wife and child. The appellant is appealing from this order.
The judge below held that appellant should have instituted annulment proceedings before he could successfully defend a support action on the basis of an alleged subsisting prior marriage. In support of this position, he cited Commonwealth ex rel. DiDonato v. DiDonato, 156 Pa. Superior Ct. 385, 40 A.2d 892 (1945). In that case a support order was originally entered by agreement of the husband and wife. At the time of the entry of the original support order, the husband affirmed the validity of the marriage. Later, the husband began annulment proceedings and secured a final decree. He then filed a petition to vacate the support order, which was denied by the lower court. On appeal, this Court reversed, holding that the "annulment establishes the invalidity of a marriage finally and certainly." Id. at 390, 40 A.2d at 894.
DiDonato is clearly distinguishable from the case at bar. In DiDonato the husband admitted the validity of the marriage relationship at the original support hearing, while in the instant case, the appellant denied that a valid marriage existed and attempted to prove the invalidity of the marriage. In addition, this
[ 218 Pa. Super. Page 136]
Court in DiDonato stated as dicta that at the original hearing the husband ". . . might have offered testimony of his prior subsisting marriage as a defense to his liability for support of relatrix." Id. at 387, 40 A.2d at 894. Thus DiDonato actually stands for the proposition that a husband may use the invalidity of a marriage as a defense without the prior institution of annulment proceedings. See also Watt Estate, 409 Pa. 44, 185 A.2d 781 (1962) (Jones, J.).
This view of the scope of a support hearing is consistent with the more recently expressed views of this Court. In Commonwealth ex rel. Alexander v. Alexander, 212 Pa. Superior Ct. 543, 244 A.2d 441 (1968), we faced a situation directly analogous to the instant case. In Alexander, the defendant attempted to prove that his marriage was void because both parties were lawfully married to other spouses on the date of their wedding. This Court allowed the plaintiff to contest the support order at the hearing without first beginning annulment proceedings. We found, however, that on the record the case could not be disposed of without further findings of fact, and remanded the record for that purpose. Alexander is directly on point. The lower court should have considered whether the marriage in question was valid.
The order of the court below is vacated and the record is remanded for further proceedings at which appellant may present evidence to prove the marriage void. During the pendency of this hearing, we believe that appellant should be required to support his child. Therefore, without making a final determination of the ...