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STAMBAUGH v. STAMBAUGH (09/15/72)

decided: September 15, 1972.

STAMBAUGH
v.
STAMBAUGH, APPELLANT



Appeal from decree of Court of Common Pleas of Delaware County, No. 12855 of 1966, in case of Esther S. Stambaugh v. J. H. William Stambaugh.

COUNSEL

Harold Cramer, with him Richard B. Schiro, and Mesirov, Gelman, Jaffe & Levin, for appellant.

Garland D. Cherry, with him John W. Nilon, Jr., and Kassab, Cherry, Curran & Archbold, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone and Packel, JJ. Opinion by Packel, J. Dissenting Opinion by Hoffman, J. Jacobs and Cercone, JJ., join in this opinion.

Author: PACKEL

[ 222 Pa. Super. Page 361]

This is an appeal from a decree dated March 21, 1972, awarding appellant's wife alimony pendente lite of $450 per week and permanent alimony of $375 per week pursuant to a decree for divorce a mensa et thoro. The proceedings had been commenced on October 18, 1966. On March 14, 1969, the court enjoined the appellant from commencing or proceeding with a divorce in another jurisdiction, but on June 26, 1969, the appellant was granted a divorce in a proceeding in Florida which he had commenced in February of 1969.

The court below reached its conclusion on the alternative grounds that: (1) full faith and credit did not have to be given to the Florida divorce because the appellant was not a Florida domiciliary; and (2) the doctrine of divisible divorce was applicable.*fn1 It becomes necessary, therefore, to consider both grounds.

I.

The Validity of the Florida Divorce

Full faith and credit must be given to a divorce decree of a sister state which is the domicile of either spouse. Williams v. North Carolina, 317 U.S. 287 (1942). Presumptive validity attaches to a final judgment or decree of a sister state. Adam v. Saenger, 303 U.S. 59 (1938). The burden of overcoming the presumption in a divorce case "rests heavily upon the assailant." Williams v. North Carolina, 325 U.S. 226, 234 (1945). Our Supreme Court has held in Commonwealth ex rel. McVay v. McVay, 383 Pa. 70, 73, 118 A.2d 144, 146 (1955) that: "The full faith and credit

[ 222 Pa. Super. Page 362]

    clause of the Constitution requires that prima facie validity be accorded the divorce decree of a sister State, but the presumption of the existence of the jurisdictional prerequisite of domicile is rebuttable, the burden of proof to overcome it resting on the party attacking the decree."

The record in this case is replete with indicia that the appellant's domicile might be that of Florida or of Pennsylvania. Appellant emphasizes his move to Florida in 1966; a purchase of a home there in 1967; a severance of ties to Pennsylvania with reference to bank accounts, club memberships and public positions; and Florida activities including voting registration, church and club affiliations, registry of car, driver's license and bank and charge accounts. Appellee emphasizes their life in Pennsylvania for more than three decades and the presumption of continuance of domicile; the expressed intent to maneuver in order to defeat the wife's rights;*fn2 the retention in Pennsylvania of very substantial business interests, a personal checking and charge account and club memberships; substantial ...


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