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decided: September 15, 1972.


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.


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.


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 time spent in Pennsylvania and the return a few days after the Florida divorce to live in a Philadelphia apartment; and the violation of a Pennsylvania injunction not to proceed with the Florida divorce.*fn3

[ 222 Pa. Super. Page 363]

Normally, we would not disturb the fact-finder's conclusion as to domicile when there is a hodge podge of conflicting intangibles, even though that is a matter within our province.*fn4 In view of the presumptive validity of a sister state divorce, however, we conclude from the facts as to domicile that the appellee did not establish a lack of jurisdiction in Florida. Accordingly, that divorce decree must be given full faith and credit.


Does the Florida Divorce Terminate the Right to Support?

The purpose of an action in divorce a.m.e.t. is not only to enable a plaintiff to live separately but also to obtain support. "The characteristic feature of divorce a mensa et thoro is the support or permanent alimony awarded to the wife." 2 Freedman, Law of Marriage and Divorce in Pennsylvania 809 (2d ed. 1957). The specific issue here involved is whether an ex parte divorce a.v.m., validly granted in a sister state, terminates a right to support under Pennsylvania law. By statute courts of common pleas of the Commonwealth are given jurisdiction to dissolve a marriage.*fn5

[ 222 Pa. Super. Page 364]

The Divorce Act provides that such a dissolution terminates a right to support: ". . . After a sentence nullifying or dissolving a marriage, all and every the duties, rights, and claims accruing to either of the said parties, at any time heretofore, in pursuance of the said marriage shall cease and determine . . ."*fn6

The question resolves itself into whether the termination of rights by virtue of a Pennsylvania divorce means that there must be a termination by virtue of a non-Pennsylvania divorce. Compulsion, to the extent that it does exist, comes from the full faith and credit clause of the federal constitution. Time and again the Supreme Court of the United States has held that there is no compulsion to terminate a right of support because of an ex parte divorce granted by a sister state. Estin v. Estin, 334 U.S. 541, 549 (1948) concluded: "The result in this situation is to make the divorce divisible -- to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern." In accord are Kreiger v. Kreiger, 334 U.S. 555 (1948); Armstrong v. Armstrong, 350 U.S. 568 (1956); Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957) (support order issued after ex parte divorce).

Pennsylvania courts with great frequency have concluded that a right to support was not terminated because of their determination that the extra-state divorce was invalid in that the husband had not acquired a domicile in that state. For a host of cases see Freedman, supra, at 1451. In Commonwealth ex rel. Lorusso v. Lorusso, 189 Pa. Superior Ct. 403, 150 A.2d 370 (1959), it was held that an ex parte divorce of a sister

[ 222 Pa. Super. Page 365]

    state terminated the duty to support but in that case neither the court's opinion nor the briefs of counsel referred to the doctrine of divisible divorce. In the instant case the court below did rely on this doctrine.

We believe, in accordance with views expressed by the Supreme Court of the United States, that a departure from a home to take up residency in another state, even though sufficient to obtain a divorce, cannot be utilized to defeat an existing valid right to support.

It is noted that the decree nisi, as made final, refers to the marriage of the appellant and appellee as remaining in effect. That should be corrected.

Decree, as modified, is affirmed.


Decree affirmed.

Dissenting Opinion by Hoffman, J.:

I agree with the majority that the Florida divorce decree must be given full faith and credit in Pennsylvania. It is the settled law in Pennsylvania, however, that a divorce a.v.m., validly granted in a sister state, terminates a wife's right to support.

In Estin v. Estin, 334 U.S. 541 (1948), the United States Supreme Court first announced the doctrine of "divisible divorce". In Estin, the Court was presented with the question of whether a valid New York support order could survive a valid Nevada ex parte divorce decree. The Supreme Court first determined if a support order could survive divorce under New York law: "We are given a detailed analysis of New York law to show that the New York courts have no power either by statute or by common law to compel a man to support his ex-wife, that alimony is payable only so long as the relation of husband and wife exists, and that in New York, as in some other states, see Esenwein v. Esenwein, [325 U.S. 279 (1945)], p. 280, a support order does not survive divorce.

[ 222 Pa. Super. Page 366]

"The difficulty with that argument is that the highest court in New York has held in this case that a support order can survive divorce and that this one has survived petitioner's divorce. That conclusion is binding on us, except as it conflicts with the Full Faith and Credit Clause. It is not for us to say whether that ruling squares with what the New York courts said on earlier occasions. It is enough that New York today says that such is her policy. The only question for us is whether New York is powerless to make such a ruling in view of the Nevada decree." Estin v. Estin, supra at 544.

While discussing the question of New York law in Estin, the Supreme Court referred specifically to the case of Esenwein v. Esenwein, 325 U.S. 279 (1945), which originally had been before the Supreme Court of Pennsylvania. Commonwealth ex rel. Esenwein v. Esenwein, 348 Pa. 455, 35 A.2d 335 (1944). In Commonwealth ex rel. Esenwein v. Esenwein, our Supreme Court refused to give full faith and credit to an ex parte Nevada divorce decree. The husband in the Esenwein case had filed an application before the County Court of Allegheny County for total relief from a support order, contending that his obligation to support his wife ceased as a result of his valid Nevada divorce. Our Supreme Court held that the husband had not secured a valid domicile in Nevada, and therefore, the Nevada decree would not be given full faith and credit. The United States Supreme Court upheld the Pennsylvania Supreme Court in Esenwein v. Esenwein, supra. Our Supreme Court and the United States Supreme Court specifically indicated that if the divorce decree was to be given full faith and credit, it would terminate the wife's right to support under Pennsylvania law. Commonwealth ex rel. Esenwein v. Esenwein, supra at 457; Esenwein v. Esenwein, supra at 280.

[ 222 Pa. Super. Page 367]

Following Estin v. Estin, supra, our courts have never attempted to impose a support order on an individual who has secured a valid divorce in a sister state. March Estate, 426 Pa. 364, 231 A.2d 168 (1967); Commonwealth ex rel. Messing v. Messing, 195 Pa. Superior Ct. 334, 171 A.2d 893 (1961); and Commonwealth ex rel. Lorusso v. Lorusso, 189 Pa. Superior Ct. 403, 150 A.2d 370 (1959).

In Lorusso, supra at 406, Judge Woodside stated: "It is well settled in Pennsylvania that a valid divorce decree terminates the duty of a husband to support his wife. [citations omitted]. Accordingly, if the Nevada divorce in question is valid in Pennsylvania, the support order, together with any arrearages that accrued after the divorce was granted, must be vacated. On the other hand, if the Nevada divorce decree is not valid in Pennsylvania, there has been no legal termination of the duty to support." See also Freedman's Law of Marriage and Divorce in Pennsylvania, where it is stated that "where the husband's domicil is bona fide, the decree which he obtains in the foreign state on constructive service and without the wife's appearance will effectively terminate her pre-existing order for support. It may be that the policy of Pennsylvania which forbids alimony after divorce a.v.m. is in harmony with this conclusion. If it is not, then legislative intervention is necessary to make effective orders of support after a foreign ex parte divorce a.v.m." (Footnotes omitted). 3 Freedman, Law of Marriage and Divorce in Pennsylvania, 1432 (2d Ed. 1957).

For the above reasons, I would reverse the order of the lower court.

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