No. 747 April Term, 1977, Appeal from the Order Entered May 4, 1977, of the Court of Common Pleas of Allegheny County, Pennsylvania, Family Division, at No. M-43 of 1977
Henry E. Rea, Jr., Pittsburgh, with him Brandt, Milnes, Rea & Malone, Pittsburgh, for appellant.
Maurice A. Nernberg, Jr., Pittsburgh, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, J., concurs in the result. Jacobs, President Judge, and Price, J., dissent. Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 523]
This is an appeal from an order of the Court of Common Pleas of Allegheny County, Family Division, granting judgment on the pleadings in favor of appellee in a suit in equity to partition certain marital real property. Specifically, the issue before us is whether appellant was precluded, by a former adjudication, from asserting a defense to appellee's suit to partition. Because we find appellant was not so precluded, we will reverse.
Appellant Marion Lebeau and appellee William Lebeau had been married for 25 years when, in 1972, appellee filed a complaint in divorce in Allegheny County. As the parties were by that time separated, appellant was successful in obtaining orders of support and maintenance for herself and her two children. While the divorce suit was pending in Allegheny County, appellee removed himself to Waco, Texas where he initiated a second petition for divorce. Appellant was served with notice by mail of the Texas proceedings, but did not enter an appearance or otherwise contest. Meanwhile, the divorce suit in Allegheny County was denied following a master's hearing thereon, and an appropriate order of court was filed on November 3, 1976. Thereafter, on December 23, 1976, the Texas court entered an order granting appellee's divorce complaint, the court therein finding appellee had proven the requisite statutory grounds under Texas law.
On February 1, 1977, appellee, back in Allegheny County, filed a petition to vacate and terminate the prior support order on the grounds the parties were no longer married. Counsel for both sides met in Chambers with the Hearing Judge where it appears appellant's counsel did not challenge the Texas divorce decree or otherwise contest the petition to terminate support. Accordingly, Judge Brosky entered an
[ 258 Pa. Super. Page 524]
order granting the petition on February 7, 1977.*fn1 In the order, the court found the divorce valid since no one had challenged it.
Appellee next filed his complaint in equity to partition certain property held by entireties, again averring the foreign divorce decree. Appellant filed an answer denying that the parties were divorced, and averred that the Texas court lacked jurisdiction over appellee and the marital relationship and therefore could not render a valid, binding decree in divorce. Appellee moved for judgment on the pleadings,*fn2 stating the prior order terminating support was "res judicata" on the issue of the validity of the Texas decree, thus precluding appellant from raising it as a defense to the instant petition. In its opinion of May 5, 1977, the court below agreed with appellee, finding the order of February 7, 1977 a definitive judgment on the issue of the validity of the divorce and concluded that appellant could not relitigate the matter anew. It is from that determination that appellant takes this appeal.*fn3
The binding and conclusive effects of a former adjudication are embraced by the two doctrines of res judicata and collateral estoppel. Although often confused and misapplied, these concepts were designed to meet two related but distinct situations where a former judgment or decree is sought to be invoked as a barrier in a subsequent action. The policies underlying both are the same: to minimize the judicial energy devoted to individual cases, establish certainty and respect for court judgments, and ...