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GERARD PAUL MCKENNA v. MELVA ROSENBERG MCKENNA (11/14/80)

filed: November 14, 1980.

GERARD PAUL MCKENNA, APPELLANT,
v.
MELVA ROSENBERG MCKENNA



No. 1684 October Term, 1979 Appeal from the Order of the Court of Common Pleas of Huntingdon County, dated July 10, 1979, at No. 79-1307.

COUNSEL

Charles A. Bierbach, Huntingdon, for appellant.

Melva Rosenberg McKenna, appellee, in pro. per.

Hester, Montgomery and Cirillo, JJ.*fn*

Author: Montgomery

[ 282 Pa. Super. Page 46]

This appeal raises the novel question of whether a New York resident who has been incarcerated in Huntingdon, Pennsylvania since October 26, 1975, can be considered a

[ 282 Pa. Super. Page 47]

    bona fide resident of this Commonwealth for the purpose of obtaining a divorce.

Prior to his capture and imprisonment, appellant was a resident of New York state. However, since 1974, he has been in continuous incarceration in Pennsylvania and is presently serving a life sentence. Seeking to divorce his wife, a resident of New Orleans, Louisiana, appellant filed a petition to proceed in forma pauperis in Huntingdon County. A hearing was held on October 5, 1978. The question of jurisdiction was raised by the court in an effort to determine whether appellant was a bona fide resident of Pennsylvania for the purpose of the divorce. While conceding that his original residency in Pennsylvania was created involuntarily, appellant asserted his intention to remain in this state if he is subsequently released from the correctional system. Appellant's wife was not present at the hearing, nor has she filed a brief in this appeal. Following the hearing, the lower court found that appellant failed to meet the residency requirement pursuant to 23 P.S. § 16, and denied the petition for want of jurisdiction.

The issue now before us is whether confinement in a correctional institution for more than a year, when coupled with domiciliary intent, constitutes jurisdictional residency. The residency requirement of the Divorce Law is found in Section 16, which provides:

"No spouse shall be entitled to commence proceedings for divorce by virtue of this act who shall not have been a bona fide resident in this Commonwealth at least one whole year immediately previous to the filing of his or her petition or libel . . . ." Act of May 2, 1929, P.L. 1237, 23 P.S. § 16, as amended September 27, 1955, P.L. 606, § 1, 23 P.S. § 16.

The purpose of this jurisdictional requirement is to prevent the Commonwealth from becoming a transitory resting place where parties can secure an annulment of the marriage contract on a divorce. See Dulin v. Dulin, ...


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