Ambrose R. Campana, Campana & Campana, Williamsport, for appellant.
Richard T. Eisenbeis, John A. Felix, Fine, Eisenbeis & Felix, Williamsport, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case. Roberts, J., filed a concurring opinion. Manderino, J., filed a dissenting opinion.
This is a suit in equity for support and maintenance*fn1 brought on behalf of Betty J. Buck*fn2 against her alleged husband, Robert C. Buck. Concluding that Betty and Robert Buck were not married and that therefore Betty was not entitled to relief, the trial court dismissed the complaint. This appeal by Betty's guardian followed.*fn3 We affirm.
Betty J. Buck and Robert C. Buck, the appellee, were legally married in Pennsylvania in 1950, and in 1971 were purportedly divorced in Ohio at the suit of the husband by decree of the Court of Common Pleas of Knox County, Ohio. The question presented is whether or not that decree of divorce is entitled to full faith and credit in Pennsylvania.*fn4
The parties had moved to Ohio in 1954 and were there domiciled at the time of the divorce proceeding. Betty was served with process in that action, but did not appear or defend. The Ohio court found that she had been guilty of gross neglect of duty entitling her husband to a divorce, custody of the minor child of the parties and to division of marital property. It entered a decree accordingly. Subsequent to the divorce the parties separately returned to Pennsylvania, and were residents of this State at the time the present suit was brought.
There is no dispute that the Ohio court had jurisdiction over the parties and the cause of action and that its divorce decree has not been vacated or set aside. The appellant contends, however, that the divorce was fraudulently obtained in that Robert concealed from the Ohio court Betty's known mental incompetence, that this would serve to vitiate the decree in Ohio, and that therefore the decree is not entitled to full faith and credit. Robert responds that the issue of the validity of the divorce decree has been settled adversely to Betty by the same court that entered the divorce decree, and that its
reaffirmance of the decree is itself entitled to full faith and credit. To this contention appellant replies that the Ohio court's action in the latter proceeding was a nullity. The relevant facts as to this claim follow.
In January of 1973, about 13 months after the divorce decree had been entered, Betty Buck's guardian filed in the Knox County, Ohio, Court of Common Pleas a petition to set aside the divorce decree on the ground that her husband had fraudulently failed to disclose to the court that Betty was mentally incompetent when the divorce action was brought. A hearing upon this petition was fixed for February 16, 1973. On February 9, however, the lawyer for appellant mailed to the clerk of the Knox County court a praecipe to discontinue the action to set aside the divorce decree for the reason that Robert was then residing in Lycoming County, Pennsylvania. The record shows that this praecipe was received by the clerk of court and marked "filed" on February 15, 1973. The scheduled hearing was held ...