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decided: October 30, 1975.



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.

Author: Pomeroy

[ 464 Pa. Page 360]


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

[ 464 Pa. Page 361]

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

[ 464 Pa. Page 362]

    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 nevertheless on the next day, and, when the petitioner failed to appeal, the Knox County court granted Robert's motion for dismissal of the petition.*fn5 The text of the decree is reproduced in the margin.*fn6

[ 464 Pa. Page 363]

The decree of the Ohio court dismissing the petition to set aside the divorce decree, like the divorce decree itself, is entitled to full faith and credit in the courts of Pennsylvania, note 4, supra. That is, we must give it the same recognition and res judicata effect as it would receive in the courts of Ohio.*fn7 Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963); Johnson v. Muelburger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951); Lynne Carol Fashions, Inc. v. Cranston Print Works Co., 453 F.2d 1177 (3d Cir. 1972). In an effort to show that the order of dismissal is not entitled to recognition, appellant argues that her voluntary discontinuance of the action to set aside the divorce decree terminated that action on the date the praecipe to discontinue was filed (February 15, 1973); that the Ohio court either intentionally ignored the praecipe or was not made aware of it, but that in either event the parties to the proceeding were no longer properly before the Ohio court on February 16, 1973; and that the order of dismissal for want of prosecution entered that day was a nullity.*fn8

[ 464 Pa. Page 364]

This argument is based upon an Ohio rule of civil procedure which provides that normally a notice by a plaintiff of dismissal of an action is without prejudice.*fn9

In effect, appellant is contending that her voluntary dismissal before trial of the action to set aside the divorce decree "effectively ousted the court's jurisdiction" (appellant's brief at 7), and hence deprived it of the power to enter a decree on the merits. It is true that the full faith and credit clause does not require that we give recognition to a judgment rendered without jurisdiction or without notice and a fair opportunity to be heard; indeed, due process of law mandates that we not do so. See Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Restatement (Second) of Conflict of Laws ยง 104 and the comment thereto (1971). When, however, the court of another state has purported to act on the merits of a case, its jurisdiction to do so and the regularity of its proceedings are presumptively valid. See Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1944). In the case at bar appellant has failed to carry her burden of showing that the proceedings in connection with her petition to set aside the divorce were irregular in any manner. It is clear that appellant had notice of the February 16 hearing on the petition, and the opportunity to be present. As the court below observed, there is "no indication that plaintiff's praecipe [to discontinue] was not considered

[ 464 Pa. Page 365]

    by the Ohio court in issuing its order of February 16, 1973," nor has the appellant cited "authority or evidence indicating that the Court of Common Pleas of Knox County acted contrary to the Ohio law." No appeal was taken from that court's February 16 order, entitled "judgment decree", see note 6, supra, and it stands as a final judgment or decree of an Ohio court of record. As such, it must be accorded full faith and credit. It follows that under ordinary principles of res judicata*fn10 appellant may not again litigate in our courts the question of fraudulent procurement of the divorce decree.*fn11

Because the divorce decree stands unimpaired after challenge in the State of rendition,*fn12 Betty

[ 464 Pa. Page 366]

    and Robert Buck cannot be considered as husband and wife in Pennsylvania. There is thus no basis in law for the support action, and the trial court was correct in dismissing it.

Decree affirmed; costs to be equally divided between the parties.

ROBERTS, Justice (concurring).

I concur in the result because the full faith and credit clause of the Constitution does not require that Pennsylvania entertain in its courts a non-jurisdictional collateral attack on the Ohio judgment.

On this record appellant has failed to establish that her attack on the Ohio judgment rests on jurisdictional grounds. She is, therefore, properly denied relief in this proceeding.

MANDERINO, Justice (dissenting).

I dissent. Rule 41(a)(1) of the Ohio Rules of Civil Procedure allows a petitioner to voluntarily discontinue a case without prejudice, provided the case has not previously been discontinued. Since appellant filed on February

[ 464 Pa. Page 36715]

, 1973, a praecipe for discontinuance of her petition to set aside the Ohio divorce decree, the Court of Common Pleas of Knox County had no jurisdiction over the case on February 16, 1973. Therefore, its dismissal of appellant's petition for failure to prosecute was void.

I would, therefore, reverse the chancellor's decree and remand for a hearing to determine the validity of the Ohio divorce decree.

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