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DAWN A. WHITMER v. EDWARD H. WHITMER (11/22/76)

decided: November 22, 1976.

DAWN A. WHITMER, APPELLANT,
v.
EDWARD H. WHITMER, APPELLEE (TWO CASES)



COUNSEL

Robert J. Trageser, Pittsburgh, for appellant.

Richard C. Witt, Jones, Gregg, Creehan & Gerace, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Price, J., dissents.

Author: Van Der Voort

[ 243 Pa. Super. Page 464]

Appellant brings this action for partition of jointly owned personal property located in Pennsylvania. Her claim to the property rests upon a judgment awarding

[ 243 Pa. Super. Page 465]

    her this property interest as "lump sum alimony" in a Florida divorce action. Appellee's defense is a collateral attack on the Florida judgment as having been entered without due process of law and without jurisdiction over the Pennsylvania property.

The parties were married in Pennsylvania in 1946 and lived in this state until 1971 when appellant moved to Florida and established her domicile there. Appellee resides in Pennsylvania.

On December 11, 1972, appellant filed a complaint for dissolution of her marriage to appellee in the Twentieth Judicial Circuit Court in and for Lee County, Florida, demanding inter alia the adjudication of her rights in the stock and assets of Edward H. Whitmer Co., an unincorporated sole proprietorship owned by appellee, engaged in the rental of heavy equipment, principally cranes, and located in Pennsylvania.

Appellee was personally served with notice of the Florida suit, retained counsel who entered a general appearance on his behalf and entered into a contest of the merits of the case. Appellee's counsel accepted service of all pleadings filed thereafter.

On February 2, 1973, a motion was filed by appellant in the Florida court to appoint a receiver for appellee's interest in the business located in Pennsylvania. On March 5, 1973, a stipulation and trust agreement was signed by both parties and their counsel and filed with the Florida court wherein William Creehan, Esquire, of the Allegheny County Bar, was named as Trustee to sell the assets of the business and distribute the proceeds as the parties might further agree or as the court might order. The Florida court never acted upon this agreement nor did the Trustee ever take possession of the Pennsylvania assets.

On March 14, 1973, the Florida court ordered appellee to make certain payments to appellant as temporary alimony

[ 243 Pa. Super. Page 466]

    and child support. This order was ignored by appellee and on June 25, 1973, he was adjudged in contempt of court and an order entered for his commitment in jail for a period of 6 months unless he purged himself of his contempt. ...


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