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filed: April 12, 1985.


No. 00064 Philadelphia, 1983, Appeal from the Order entered November 10, 1982 In the Court of Common Pleas of Delaware County, Civil No. 80-14135.


Pamela A. Falls, Muncy, for appellant.

James R. Flick, Media, for appellee.

Spaeth, President Judge, and McEwen and Tamilia, JJ. Spaeth, President Judge, files a concurring opinion. Tamilia, J., files a concurring and dissenting opinion.

Author: Mcewen

[ 341 Pa. Super. Page 442]

Appellant-wife, in this appeal from a final decree in divorce, contends that the trial court erred in finding that appellee-husband, a citizen of India, was a bona fide resident of Pennsylvania for purposes of divorce jurisdiction. Appellant also argues, as an alternative ground for vacating the decree of divorce, that she and her husband had not lived separate and apart for three years as required by Section 201(d) of the Divorce Code, 23 Pa.C.S. § 201(d). We affirm the final decree entered by the now deceased, distinguished jurist of cherished memory, Judge Joseph W. deFuria, following dismissal of appellant's exceptions to the report of the master.

The parties were married on March 11, 1974, in Patna Bihar, India. Appellee traveled to the United States in August of 1976 on a student visa to pursue a master's degree in city and regional planning at Rutgers University. Appellant was unable, due to her inability to obtain a visa, to visit or join her husband in the United States. The parties did, however, regularly correspond until mid-1979 when appellee instituted an action in divorce in New Jersey. This action was discontinued by appellee when he moved from New Jersey to Pennsylvania.

Appellee was offered employment with the Delaware County Planning Department and applied for an H-1 (temporary worker) classification*fn1 under the Immigration Laws.

[ 341 Pa. Super. Page 443]

The application was granted and the H-1 classification was issued on April 3, 1980. Six months later appellee instituted the present action in divorce in the Court of Common Pleas of Delaware County. Appellee alleged in his complaint that he had been a bona fide resident of Pennsylvania for more than six months, that the parties had been living separate and apart for a period in excess of three years and that the marriage was "irretrievably broken". See 23 Pa.C.S. § 201(d). A general master was appointed and evidence presented on the issue of the dissolution of the marriage as well as on the jurisdiction of the Pennsylvania courts. The master concluded (a) that the courts of Pennsylvania were possessed of jurisdiction to entertain the divorce action and (b) that appellee was entitled to a decree in divorce. Appellant's exceptions to the master's report were dismissed following a hearing and a final decree of divorce duly entered.

Appellant argues that since appellee was permitted to enter the United States pursuant to a temporary non-immigrant visa, his H-1 immigration classification required him to maintain, at all relevant times, a permanent residence abroad "which he has no intention of abandoning." Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H). Appellant asserts that appellee's permanent residence and domicile, as a matter of federal law, was India. Thus, she argues, the Court of Common Pleas of Delaware County, bound, under the Supremacy Clause, by the provisions of the Immigration and Naturalization Act, was without jurisdiction to entertain the action for divorce.

[ 341 Pa. Super. Page 444]

The Pennsylvania Divorce Code provides that an action in divorce may not be commenced unless one of the parties to the marriage has been a bona fide resident of the Commonwealth for at least six months prior to the institution of the action. 23 Pa.C.S. § 302. This residency requirement has been interpreted by this Court to require actual residence coupled with domiciliary intent. Zinn v. Zinn, 327 Pa. Super. 128, 475 A.2d 132 (1984). See also McKenna v. McKenna, 282 Pa. Super. 45, 422 A.2d 668 (1980); Smith v. Smith, 206 Pa. Super. 310, 213 A.2d 94 (1965). Appellant argues that appellee cannot satisfy both the domiciliary intent requirements of the federal immigration laws and the domiciliary intent requirements of the Pennsylvania Divorce Code, i.e., he cannot intend to maintain his permanent residence in India and also intend to be a permanent, bona fide resident of Pennsylvania. We are not persuaded by this argument. The status of appellee as a nonimmigrant alien with an H-1 classification is not necessarily inconsistent with an actual conditional intent to establish, if possible, permanent residency in the United States by the legal means provided by the "Adjustment of Status" section*fn2 of the Immigration and Naturalization Act

[ 341 Pa. Super. Page 445]

    of 1952, Ch. 477, § 245, 66 Stat. 217 (1952), as amended, 8 U.S.C. § 1255, a provision which permits aliens already in the United States to apply for permanent resident status. See Elkins v. Moreno, 435 U.S. 647, 667, 98 S.Ct. 1338, 1350, 55 L.Ed.2d 614, 629 (1978).*fn3 Bustamante v. Bustamante, 645 P.2d 40, 42 (Utah, 1982).

Even if appellant's alleged intent to establish permanent residency in Pennsylvania is inconsistent with the terms of his right of entry into the United States, he is not automatically precluded from becoming a domiciliary of the Commonwealth. As stated in Williams v. Williams, 328 F.Supp. 1380, 1383 (D.C.V.I., 1971):

Even assuming the least favorable situation, where an alien has misrepresented his true intent at the time he was granted entry to the country, the fact that he may be illegally in the country and deportable would not preclude him from forming an actual intent to make his home here. I see no reason to erect from the immigration laws an insuperable barrier of "constructive" intent in divorce litigation that cannot be overcome even by proof of a person's actual intent. The enforcement of immigration laws properly remains with those to whom it is entrusted by law and does not need in aid of enforcement the judicially created civil disability of exclusion from our divorce courts. There is no rational ground for intermingling

[ 341 Pa. Super. Page 446]

    these two distinct areas of law -- immigration and divorce.

Accord Nagaraja v. Commissioner of Revenue, 352 N.W.2d 373, 378 (Minn. 1984); Nicolas v. Nicolas, 444 So.2d 1118, 1120 (Fla. 3rd D.C.A. 1984); Bustamante v. Bustamante, supra at 42; Pirouzkar v. Pirouzkar, 51 Or.App. 519, 524-25, 626 P.2d 380, 383 (1981); Cocron v. Cocron, 84 Misc.2d 335, 343-44, 375 N.Y.S.2d 797, 809 (1975); Gosschalk v. Gosschalk, 48 N.J.Super. 566, 575-77, 138 A.2d 774, 780 (1958). "A visa is a document of entry required of aliens by the United States Government and is a matter under the control of the government. It has little relevance to the question of domicile." Alves v. Alves, 262 A.2d 111, 115 (D.C.App., 1970).

We conclude that federal law does not prevent the establishment of domicile for purposes of state court jurisdiction by a ...

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