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decided: April 4, 1973.


Appeal from order of Court of Common Pleas of York County, Jan. T., 1972, No. 231, in case of Marian Stottlemyer, a minor, by her mother and next friend, Daisy Whipperman v. Eugene F. Stottlemyer.


Alan N. Linder, for appellant.

Daniel L. Carn, for appellee.

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

Author: Per Curiam

[ 224 Pa. Super. Page 124]

Order affirmed.


Order affirmed.

Dissenting Opinion by Hoffman, J.:

In this appeal, appellant challenges the constitutionality of the one-year residency requirement for divorce actions, as provided for in the Pennsylvania Divorce Law, Act of May 29, 1929, P. L. 1237, Section 16, as amended, 23 P.S. § 16.*fn1

On November 16, 1971, appellant filed a Complaint in Divorce in this Commonwealth against her husband. The Complaint specifically alleged that neither party had resided within the Commonwealth for at least one year prior to commencing the divorce action. In fact, the Complaint stated that the parties resided in Illinois from September 1970 to August 1971, and that they did not become residents of Pennsylvania until August of

[ 224 Pa. Super. Page 1251971]

(three months prior to suit). The lower court sustained preliminary objections to the Complaint and ordered that appellant's Complaint be dismissed. Appellant contends that Section 16 of the Divorce Law is unconstitutional because it violates (1) the equal protection and (2) the due process clauses of the Fourteenth Amendment of the United States Constitution, as well as (3) the right to travel guaranteed by the Constitution. Appellee denied such violations, and further argues that we should dismiss the appeal as the parties are now residents of Pennsylvania for more than one full year, and that the issue is therefore moot.

I. The Question of Mootness

While it is true that the actual parties herein may now meet the "residence" requirements prescribed by statute, that fact does not compel this Court to dismiss the appeal. In the first place, it is probable that a party wishing to challenge the residency requirement would never be able to institute suit, have the lower court dispose of the case, file an appeal to this Court, and obtain an appellate decision within a year's time. Furthermore, the question presents, in my opinion, an issue of recurring public interest. Certainly, a judicial determination should be made to guide future litigants as to when suit may properly be brought. As a large number of persons will be affected by our decision, I believe a determination should be made to avoid future litigation on this point.

As the Supreme Court of the United States recently said, in an opinion by Justice Marshall: "The District Court properly rejected the State's position that the alleged invalidity of the three-month requirement had been rendered moot, and the State does not pursue any mootness argument here. Although appellee now can

[ 224 Pa. Super. Page 126]

    vote, the problem to voters posed by the Tennessee residency requirement is 'capable of repetition, yet evading review.' Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515 (1911)." Dunn v. Blumstein, 405 U.S. 330, 333 n.2, 92 S. Ct. 995, 998 n.2 (1972).

II. Durational Residence Requirement as Jurisdictional

Appellant has raised the question of whether the residency requirement in the Divorce Law is jurisdictional. In support of her argument that it is not, appellant calls attention to United States Supreme Court decisions which do not require any durational period of residence in upholding the validity of a divorce and its binding effect on sister states through the full faith and credit clause. In Williams v. North Carolina I and II, 317 U.S. 287 (1942); 325 U.S. 226 (1945), the Supreme Court held that domicile rather than durational residence is essential to the court's jurisdiction to entitle a divorce decree to full faith and credit. Our Court has followed this rule and has held that mere presence is insufficient to obtain jurisdiction; residence must be accompanied by objective signs of an intention to remain in this Commonwealth. Loiacono v. Loiacono, 179 Pa. Superior Ct. 387, 116 A.2d 881 (1955); Esenwein v. Commonwealth ex rel. Esenwein, 325 U.S. 279 (1945); Freedman, Law of Marriage and Divorce in Pennsylvania, § 119.

To say that a specific period of residence need not be shown to demonstrate "domiciliary intent" for constitutional purposes, does not mean that a state is precluded from setting a durational residence requirement in its divorce laws. Our legislature deemed it necessary

[ 224 Pa. Super. Page 127]

    to set such a minimum period of residency in the Divorce Act in order to insure that only bona fide residents of Pennsylvania could seek and obtain divorces. There is no question that a state has a valid interest in protecting against itinerants' "forum shopping" ...

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