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HARRY J. DIAMOND v. DOLORES DIAMOND (07/01/83)

decided: July 1, 1983.

HARRY J. DIAMOND
v.
DOLORES DIAMOND, APPELLANT



No. 81-3-458, Appeal from Order of Superior Court entered on June 12, 1981, at No. 2947, Philadelphia Term, 1980, 293 Pa. Super. 608, 435 A.2d 647 (1981), affirming Order of Court of Common Pleas of Bucks County, Civil Action, Law, entered on November 18, 1980, at No. 73-11089-09-3

COUNSEL

Robert A. Rovner, Feasterville, for appellant.

Frank L. Newburger, III, Norristown, for appellee.

Roberts, C.j., and Nix, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen, J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 501 Pa. Page 419]

OPINION OF THE COURT

Appellant, Dolores Diamond, appeals from an order of the Superior Court, 293 Pa. Super. 608, 435 A.2d 647 affirming a decree of annulment which the Court of Common Pleas of Bucks County entered in favor of appellee, Harry Diamond. At issue is whether appellee was properly permitted to challenge the validity of his marriage to appellant on the basis of the purported invalidity of a decree of an Alabama court granting appellee a divorce from his former wife. As we agree with appellant that appellee was estopped from challenging their marriage on this basis, we vacate the order of the Superior Court and direct the dismissal of appellee's complaint seeking an annulment.

Appellee married Laura M. Berkey on December 9, 1961, in Stratford, New Jersey. They subsequently separated, and in early 1969, appellee, then a Pennsylvania resident, contacted an attorney in Alabama in order to obtain a divorce. The Alabama attorney sent appellee "consent forms," which appellee and Berkey executed. On July 25,

[ 501 Pa. Page 4201969]

, appellee flew to Birmingham, Alabama, delivered the forms and a check for $460.00 to an attorney named Edwards, and returned immediately to Pennsylvania, without ever appearing in court. A few weeks later, appellee and Berkey received in the mail a "Final Decree of Divorce," dated July 28, 1969.*fn1

Berkey remarried in February of 1970, and appellee married appellant in September of 1972, in Langhorne, Pennsylvania. On November 30, 1973, appellee filed a complaint in divorce against appellant, which alleged indignities to the person. The parties permanently separated at some time between 1975 and 1977.

On July 6, 1979, approximately six years after the complaint in divorce had been filed, appellee successfully petitioned the court of common pleas for permission to amend his complaint to request an annulment. Appellee's theory was that the Alabama divorce decree which he had obtained was invalid, that consequently he was still married to Berkey at the time of his marriage to appellant, and that, therefore, his marriage to appellant was void. See The Divorce Law, Act of May 2, 1929, P.L. 1237, § 12, as amended, 23 P.S. § 12 (1955).*fn2

On January 31, 1980, at a hearing before a master, appellee presented no evidence in support of his request for a divorce and proceeded solely on his request for an annulment. Appellee relied primarily upon a "Certificate of Search of Records" obtained by his attorney ...


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