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RITA THERESA BARONE SOHMER v. ROBERT SOHMER (09/09/83)

filed: September 9, 1983.

RITA THERESA BARONE SOHMER, APPELLANT,
v.
ROBERT SOHMER



No. 3232 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 80-6710.

COUNSEL

Francis Recchuiti, Norristown, for appellant.

Jeanne Cook, Norristown, for appellee.

Cavanaugh, Rowley and Hoffman, JJ. Rowley, J., concurs in result.

Author: Cavanaugh

[ 318 Pa. Super. Page 503]

This appeal involves a claim for alimony under the Divorce Code, Act of April 2, 1980, P.L. 63, 23 P.S. ยง 101, et seq. (hereinafter, "Divorce Code"). The relevant facts are as follows.

Mrs. Sohmer and her husband were married in 1951, lived their marital lives and currently own property in Montgomery County, Pennsylvania. Mrs. Sohmer, who continues to reside in Pennsylvania, filed a complaint in divorce in Montgomery County in April of 1980. Thereafter, in July of 1980, Mr. Sohmer filed a complaint in divorce in Fairfax County, Virginia, where he had established a separate residence. Notwithstanding the pendency of her Pennsylvania divorce action, Mrs. Sohmer appeared through counsel in the Virginia action, and in October of 1980 the Virginia court granted Mr. Sohmer a divorce a.v.m., leaving open, however, the question of alimony.*fn1

In June of 1981, ancillary to her Pennsylvania divorce action, Mrs. Sohmer petitioned the Montgomery County Court for alimony, to which Mr. Sohmer filed preliminary objections challenging subject matter jurisdiction. The lower court granted the preliminary objections, and ordered dismissal of the petition, from which order Mrs. Sohmer now appeals.

We are called upon to decide whether a defendant who appears in a foreign divorce proceeding, resulting in a divorce a.v.m. but reserving the question of alimony, may thereafter seek alimony in Pennsylvania. We conclude that such a defendant may not, and affirm.

With respect to the marital status of the parties in this case, the Virginia decree must be given full faith and credit. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942); Commonwealth v. Lorusso, 189 Pa. Super. 403, 150 A.2d 370 (1959). This is particularly so

[ 318 Pa. Super. Page 504]

    since the appellant appeared in the Virginia proceeding. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948); Whitmer v. Whitmer, 243 Pa. Super. 462, 365 A.2d 1316 (1976), cert. denied, 434 U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977). However, even though a foreign divorce decree, such as this, is accorded full faith and credit with respect to the marital status of the parties, it is not necessarily dispositive of the economic aspects of the divorce. Accordingly, it has been held that where a foreign decree of divorce has failed to address the economic questions, the divorce is "divisible," leaving those questions open for determination in other jurisdictions. Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948); Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957).

Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974), involved a divorce where the husband had established a Florida residence and, during the pendency of his wife's Pennsylvania divorce action, had obtained an ex parte Florida divorce. Our Supreme Court held that full faith and credit was to be accorded the Florida decree vis-a-vis the marital status of the ...


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