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MIRIAM BELL v. HENRY M. BELL (03/16/84)

filed: March 16, 1984.

MIRIAM BELL, APPELLANT
v.
HENRY M. BELL



No. 533 Philadelphia 1982, No. 534 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Chester County at Nos. 209 of 1980 and 218 March Term, 1981.

COUNSEL

Albert Momjian, Philadelphia, for appellant.

David W. Wood, Jr., West Chester, for appellee.

Spaeth, President Judge, and Montemuro and Popovich, JJ. Spaeth, President Judge, files a dissenting opinion.

Author: Popovich

[ 326 Pa. Super. Page 238]

This is an appeal from an Order of the Court of Common Pleas of Chester County sustaining appellee's, Henry M. Bell's, preliminary objections to appellant's, Miriam Bell's, Complaints in Equity and Declaratory Judgment. We affirm.

The court below denied appellant's request for the issuance of an injunction restraining the appellee from obtaining a divorce in Nevada. Therefore, the sole issue is

[ 326 Pa. Super. Page 239]

    whether appellee has established such a domicile in Nevada having once lived in Pennsylvania.

In making that inquiry the material to be examined is the record presented, which consists of appellee's preliminary objections and answer, briefs of counsel, a deposition and interrogatories. See Commonwealth ex rel. Esenwein v. Esenwein, 348 Pa. 455, 35 A.2d 335 (1944), cert. denied, 321 U.S. 782, 64 S.Ct. 639, 88 L.Ed. 1075 (1944). We also note that since the lower court's Order regarding appellee's domicile is premised upon record evidence, i.e., no credibility determination or weight to be attached to a witness' testimony was required inasmuch as no witnesses testified before the trier of fact. Therefore, since the finding of fact (domicile) was simply a deduction from other facts and the ultimate fact in question is purely a result of reasoning, this Court may draw its own inferences and arrive at its own conclusions from the facts as established. In re Estate of McKinley, 461 Pa. 731, 734 n. 1, 337 A.2d 851, 853 n. 1 (1975).

The facts are somewhat unusual, and, as a result, will be recited at some length.

Henry and Miriam Bell were married in December of 1935 in Pennsylvania and lived in various locations throughout the Commonwealth until 1950. Thereafter, between 1950 and 1970, Henry Bell, while on assignment for Gulf Oil Corporation as its oil refinery advisor, lived with his family in Venezuela. During this 20-year hiatus, the Bells retained a mailing address and home in Media, Pennsylvania, until it was sold sometime in 1956 and another was purchased (farmhouse and acreage) in 1959 in Landenberg, Pennsylvania.

It was customary for the Bells to return to Pennsylvania about once a year, for a period ranging from one to two months, to vacation at their home in Media and, later on, in the Landenberg farmhouse. The Bells also acquired two homes in Florida. The first was purchased in 1969 "as a hedge against inflation" and was being rented. The second was ordered built by Mrs. Bell and was "where [they] went

[ 326 Pa. Super. Page 240]

    when [Henry] took retirement in 1970" from Gulf. However, Henry did not stay retired for long. After two months of living in Florida, he asked for, and received, his former job with Gulf. This time, however, the assignment was in South Korea working for a Gulf subsidiary -- Korean Oil Company. Mrs. Bell did not join her husband in Korea until 1972. From 1972 to 1975, the Bell family lived overseas and made periodic visits to the United States by coming to Pennsylvania.

In 1975, Mrs. Bell "returned to the U.S. with [her] daughter to live in the Pennsylvania farm. That was [her] purpose. [Since the original house, a barn and a number of acres were sold, the two] took an apartment the first year while [another] house was being built [on the remaining portion of the farm property.]" Mr. Bell retired from Gulf on July 1, 1975 and joined his family thereafter. All of his belongings were also shipped to the Landenberg address and transferred into the new residence upon completion. Nonetheless, as with his prior trip to Florida, Mr. Bell's respite was short-lived. Aside from a note found on his daughter's pillow, Mr. Bell exited the premises "around November 17, 1975," without a word to his family and went to his former job in Korea.

The next time Mrs. Bell saw her husband "was in April -- spring vacation in 1977 . . . . He just came to the door." He remained for a month and discussed retiring to Pennsylvania in the Spring of 1978. When Mr. Bell returned in March of 1978, again on his vacation, he signed up for social security and gave his address as the farmhouse at P.O. Box 113, Landenberg, Pennsylvania. Thereafter, he left for Korea and returned in August of 1978 to retire.

Mr. Bell gave the appearance that he was serious this time. He moved into the Landenberg farmhouse, gave this address to Gulf, his bank (Provident National in Media) and the Pennsylvania Department of Transportation. However, when his attempt to secure a franchise from three fast-food chains proved unsuccessful, he came out of retirement after

[ 326 Pa. Super. Page 241]

    some 10 weeks and went back to work for Gulf's Korean subsidiary.

After Mr. Bell's forced retirement from Gulf on June 1, 1980, he returned to Pennsylvania. This time he stayed in a motel during his discussions with his wife concerning their "getting a divorce." To prove the seriousness of his intentions, Mr. Bell retained counsel. Notwithstanding this tactic, Mrs. Bell refused to acquiesce to "an overall property settlement and . . . an uncontested divorce." As characterized by counsel in his "Brief In Support of Defendant's Preliminary Objections Nunc Pro Tunc," "all efforts to settle the question were completely futile."

The Defendant explained to the Plaintiff his desire to divorce her under the Pennsylvania Divorce Code of 1980 and the Plaintiff replied that she would use every method in her power to prevent that from happening despite the fact that the marriage was obviously on the rocks.

Because the Plaintiff threatened to use the Defendant's return to Chester County for a three (3) week period during October of 1978 during which time he resided in the same home, albeit not in the same bedroom, with the Plaintiff to hold up the No-Fault Divorce if filed under Section 201(d) of the Divorce Code of 1980, and further because the Plaintiff refused to give her consent to the Divorce Action filed under Section 201(c), the Defendant decided to take up residency in the State of Nevada.

As counsel phrased it, Mr. Bell, "[i]n complete frustration, . . . moved to Nevada from the motel room in Chester County and resided in the State of Nevada for the requisite time, during which time he secured counsel in Nevada and filed suit under the laws of that State to terminate his marriage to Miriam Bell." In particular, Mr. Bell commenced divorce proceedings "at No. 80-8140 in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, seeking a dissolution of his marriage to Plaintiff alleging, inter alia, that he had resided in the State of Nevada for the requisite period of time, and,

[ 326 Pa. Super. Page 242]

    therefore, [was] entitled to a 'no-fault divorce'." (See Appellant's "Complaint in Divorce," Point 7)

At this stage of the discussion it is appropriate to remark that we have, intertwined into this scenario, documentation in the form of two letters written by Mr. Bell to his wife, copies of which were produced at Mrs. Bell's deposition and attached to a transcription thereof, casting some light on the husband's intention regarding his sojourn to Nevada.

Mrs. Bell found the first letter on her kitchen table at the Landenberg home on August 3, 1980 -- the date the husband left for Reno, Nevada. It reads:

Miriam.

Enclosed is a check for 780 dollars which is 60% of the money you have spent for ...


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