Monihan v. Monihan

264 A.2d 653, 438 Pa. 380, 1970 Pa. LEXIS 794

• Court: Supreme Court of Pennsylvania
• Decided: April 22, 1970
• Docket: Appeal, 382
• Status: Published

Opinions

Opinion by

Mr. Justice O’Brien,

Appellant, Dr. Richard Monihan, commenced an action of divorce against his wife, Barbara, the appellee, in Philadelphia County. After appellee had informed appellant of her intention to contest the divorce action which appellant had already commenced in Pennsylvania, appellant removed to the State of Nevada, and commenced another divorce action in that jurisdiction. At appellee’s instance, the Court of Common Pleas of Philadelphia County granted an injunction restraining appellant from proceeding with the Nevada divorce action.¹ Appellant calls upon this court to decide whether the injunction issued by the Court of Common Pleas of Philadelphia County was a proper exercise of that court’s authority.

This Court has often held that lower courts may issue an anti-suit injunction against a spouse who is not a bona fide domiciliary of another state. See, e.g., Wallace v. Wallace, 371 Pa. 404, 89 A. 2d 769 (1952); Smith v. Smith, 364 Pa. 1, 70 A. 2d 630 (1950); Janney v. Janney, 350 Pa. 133, 38 A. 2d 235 (1944).

The purpose of such an injunction is to prevent the migratory spouse from gaining a sham divorce where he (or she, as the case may be) is not actually domiciled. Although the nonmigratory spouse is entitled to attack collaterally the asserted jurisdiction of the state rendering the divorce, she has legitimate grounds for fearing the effect of a foreign divorce. “The bases for plaintiff’s fear are the ‘full faith and credit’ and ‘prima facie weight’ holdings of Williams v. State of North Carolina, supra [317 U.S. 287, 63 S. Ct. 207], If the husband be allowed to prosecute his foreign suit to judgment, the wife, to save her rights as wife, will have to bring a new suit to set aside the foreign decree and in that suit will have to bear the heavy burden of striking down the prima facie effect of the foreign court’s finding of residence.” Garvin v. Garvin, 302 N.Y. 96, 96 N.E. 2d 721 (1951). A clearer case than the instant one for the issuance of an injunction to prevent a sham divorce can hardly be imagined. The facts are set forth in the opinion of the court below:

“The basic question of the domicile of the respondent, Eichard Monihan, was resolved beyond any doubt.

“Dr. Peter Y. Moulder, the director of surgery at Pennsylvania Hospital, Philadelphia, testified that Eichard Monihan was a physician who held a residency in surgery at the Pennsylvania Hospital, and was under his personal supervision since October 1, 1968; that he obtained a leave of absence four or five weeks before the date of the hearing and is still on the staff of the Pennsylvania Hospital. He testified that Dr. Monihan told him he would be coming back and that he was expected to return the week following the hearing.

“Dr. Herman Lipshutz testified that he is head of the section of plastic surgery at the Pennsylvania Hospital and that Dr. Monihan had applied for and had been accepted for a residency in plastic surgery under Dr. Lipshutz to commence July 1, 1969.

“Barbara C. Monihan testified on her own behalf. We found her to be a completely credible and very impressive witness. She testified that she was married to Dr. Monihan for nine years and has four children ranging in age from three to eight years. She and her husband have resided in Philadelphia all their lives, except during the period that he was in the service. Her husband left the family domicile in November, .1968, and started divorce proceedings shortly thereafter. He told her that, if she contested the divorce, he would go somewhere else and get a divorce. She produced a letter addressed to the Monihan family, received on March 28. In this letter, he expressed his deep love for the children and stated that, ‘Since I won’t be able to see you until the third week in April or so, please be extra good until then, O.K.’

“She also produced a letter from her husband dated February 27, 1969. In this letter he wrote, inter alia, ‘Tell them I love them very much and being away from them is worse than I ever imagined it could be. . . . Dr. Moulder has given me a leave of absence for as long as I want. . . . Dr. Lipsliutz concurs and is fully informed about my activities. . . .’

"In the instant case, there was not even a sham or a pretext for going to Nevada except for the sole and avowed purpose of obtaining a divorce. The intent of the defendant to return as soon as his purpose was accomplished is clearly established. He never intended to make his permanent residence in Nevada. His own letters, as well as the other evidence in the case, make manifest his intent to return to Philadelphia to be near his children and to pursue the professional advantages of a residency under Dr. Lipshutz.”

Thus, any number of precedents in Pennsylvania support the issuance of the instant injunction, where the migratory spouse did not have a bona fide domicile elsewhere.

Appellant contends that the injunction violates his right to travel. Such is not at all the case. The injunction does not purport to prevent- appellant from traveling wherever he pleases. All that it does is restrain him from prosecuting a divorce action elsewhere. The propriety of the instant injunction is clearly established by the evidence which shows conclusively that petitioner’s only purpose in attempting to establish a residence in Nevada was to obtain a divorce. That being the case, we have no reason to inquire into the propriety of the grant of an anti-suit injunction in those instances where the migratory spouse has established a bona fide domicile elsewhere.

Appellee urges us to hold appellant in contempt. The record indicates that the trial court withheld its decision on appellee’s petition to cite appellant for contempt pending the outcome of the instant appeal testing the propriety of the injunction. We think it only proper that the court which issued the injunction be the court to determine whether appellant is in contempt. We shall, therefore, remand this case to the trial court for its decision on appellee’s motion to hold appellant in contempt.

The decree of the Court of Common Pleas of Philadelphia County is affirmed and the case is remanded to that court for further proceedings consistent herewith. Costs to be borne by appellant.

Mr. Chief Justice Bell concurs in the result.

1 Two weeks after the hearing on the injunction the Nevada court issued a final decree of divorce. We are obviously not passing upon the validity of that divorce, nor do we intimate any view on this issue.