Stambaugh v. Stambaugh

329 A.2d 483, 458 Pa. 147, 1974 Pa. LEXIS 704

Opinions

Opinion by

Mr. Justice Manderino,

Esther S. Stambaugh and J. H. William Stambaugh were married in 1935 and resided in Delaware County, Pennsylvania, until they separated on July 13, 1966. About three months after the separation, on October 18, 1966, the wife commenced an action in Delaware County requesting a decree of divorce from bed and board. That action was still pending when the husband, who had moved to Florida in 1966, commenced an action in Florida on February 20, 1969, requesting a divorce from the bond of matrimony. On March 14, 1969, the Pennsylvania court in which the wife’s action was pending, entered an order enjoining the husband from proceeding with his action for divorce in Florida and further enjoined the husband from proceeding with any action in any other jurisdiction. The Florida action continued, nonetheless, and on June 26, 1969, a final decree of divorce was entered in Florida. Subsequently, the wife’s Pennsylvania action was concluded and on March 21, 1972, the Pennsylvania court entered a final decree (1) declaring that the marriage contract was not affected by the Florida divorce decree, (2) granting the wife a divorce from bed and board, (3) awarding alimony pendente lite of four hundred fifty dollars per week, effective March 6, 1970, and (4) awarding permanent alimony of three hundred seventy-five dollars per week effective at the termination of the award for alimony pendente lite.

Both parties appealed to the Superior Court. That court unanimously held that the husband’s Florida divorce decree was entitled to full faith and credit since the husband was domiciled in Florida. It therefore ordered a modification of that portion of the final decree declaring that the marriage contract was not affected by the Florida decree. The Superior Court, however, was divided on whether the wife was entitled to alimony. Stambaugh v. Stambaugh, 222 Pa. Superior Ct. 360, 294 A.2d 817 (1972) (Judge Hoffman dissenting, joined by Judges Jacobs and Cercone) . Both parties filed petitions for allowance of appeal which were granted by this Court.

The first issue raised in these appeals is whether Pennsylvania should give full faith and credit to the Florida divorce decree. We conclude that it must and, therefore, affirm the Superior Court order as to that issue.

It is well established that once Florida has granted a divorce decree that decree is presumptively valid in this jurisdiction. Esenwein v. Commonwealth ex rel. Esenwein, 325 U.S. 279, 89 L.Ed. 1608, 65 S. Ct. 1118 (1945); Williams v. North Carolina (II), 325 U.S. 226, 89 L.Ed 1577, 65 S. Ct. 1092 (1945). Such a decree is “a conclusive adjudication of everything involved therein except the jurisdictional facts on which it is founded . . .,” Commonwealth ex rel. McVay v. McVay, 383 Pa. 70, 73, 118 A.2d 144, 146 (1955), and bona fide domicile is the essential jurisdictional fact necessary to give any decree extraterritorial effect. See Williams v. North Carolina (I), 317 U.S. 287, 297-98, 87 L.Ed 279, 285-86, 63 S. Ct. 207, 212-13 (1942); Commonwealth ex rel. McVay v. McVay, supra; Commonwealth ex rel. Meth v. Meth, 156 Pa. Superior Ct. 632, 41 A.2d 752 (1945). Additionally “the burden rests heavily” upon the party attacking the decree to show that jurisdiction was in fact lacking. Williams v. North Carolina (II), 325 U.S. 226, 233, 89 L.Ed. 1577, 1584, 65 S. Ct. 1092, 1097 (1945). See Commonwealth ex rel. Lorusso v. Lorusso, 189 Pa. Superior Ct. 403, 150 A.2d 370 (1959); Commonwealth v. Petrosky, 168 Pa. Superior Ct. 232, 77 A.2d 647 (1951); Commonwealth ex rel. Meth v. Meth, 156 Pa. Superior Ct. 632, 41 A.2d 752 (1945).

Here the trial court found that the husband had not established a valid domicile in Florida and therefore his Florida decree was not entitled to full faith and credit. The Superior Court unanimously reversed that determination. The wife asserts that since the trial court found that her husband was not a Florida domiciliary, the Superior Court was powerless to alter that finding of fact. The issue of domicile, however, is a mixed question of law and fact reviewable by an appellate court. In Dorrance’s Estate, 309 Pa. 151, 156, 163 (1932), this Court held: “The determination of . . . domicile ... is a conclusion of law, based upon facts, most of which are undisputed. Furthermore . . . where a finding of fact is simply a deduction from other facts reported by the tribunal under review, and the ultimate fact in question is purely the result of reasoning, we are competent to judge of its correctness and will draw our own conclusions from the facts as reported.” Accord, Smith v. Smith, 364 Pa. 1, 70 A.2d 630 (1950).

The record establishes that the husband, upon moving to Florida, purchased a home there and resided in Florida for about two years before instituting his divorce action. He registered Ms automobile in Florida and enrolled Mmself as a voter there. He also opened a bank account in Florida, joined a church and several civic organizations, and paid Florida taxes. Apparently because Ms business remained in PMladelpMa the husband found it necessary to retain certain contacts in Pennsylvania. Consequently he maintained a personal checking account in PMladelpMa, filed Ms personal federal income tax return from PMladelpMa, and maintained various charge accounts and club membersMps in PMladelpMa. After securing Ms divorce decree in Florida and remarrying he immediately leased an apartment for a one year term in Philadelphia, wMch he occupied when not in Florida. The evidence adduced was inconclusive regarding exactly how much time he actually spent in Pennsylvania and how much time he spent in Florida. Upon this evidence the Superior Court determined that the wife had failed to meet her burden of establisMng that her husband was not a Florida domiliciary.

The wife argues, however, that because the evidence indicates her husband was living in Pennsylvania a “substantial” part of the period in question he was not actually a valid domiliciary of Florida. It is well settled, though, that a person may maintain business interests outside the state of his domicile and in fact live outside of his domiciliary state as long as he possesses the requisite intention to return to that state. Smith v. Smith, 364 Pa. 1, 70 A.2d 630 (1950). In Smith, this Court was presented with a similar factual situation where the husband had many business interests outside of Florida, his adopted domicile, including some interests in Pennsylvania. He also spent about half of his time living outside of Florida, There, this Court held that such facts did not preclude a finding that the husband was a bona fide Florida domiciliary. We therefore agree with the Superior Court’s determination that the husband was a bona fide domiciliary of Florida. Accordingly, the Florida divorce decree may not be denied full faith and credit because, here, valid domicile in the state rendering the decree, the essential jurisdictional prerequisite, was in fact present.

The wife also argues that Pennsylvania should deny full faith and credit to the Florida divorce decree since it was obtained by the husband after the issuance of an anti-suit injunction by the trial court which had personal jurisdiction over the husband. We cannot agree.

The only proper basis for denying full faith and credit to an out-of-state divorce decree is lack of jurisdiction. “A judgment in one State is conclusive upon the merits in every other State, ... if the court of the first State . . . had jurisdiction ... to render the judgment.” (Emphasis added.) Williams v. North Carolina, (II), 325 U.S. 226, 229, 89 L.Ed. 1577, 1581, 65 S. Ct. 1092, 1095 (1945); Commonwealth ex rel. McVay v. McVay, 383 Pa. 70, 73, 118 A.2d 144, 146 (1955). The jurisdiction of a state to enter a divorce decree is dependent solely upon the domicile of one spouse. Williams v. North Carolina (I), 317 U.S. 287, 87 L.Ed. 279, 63 S. Ct. 207 (1942); Williams v. North Carolina (II), supra; Commonwealth ex rel. McVay v. McVay, supra. Since the issuance of an anti-suit injunction cannot affect one’s domicile, it cannot affect a state’s obligation to give full faith and credit to an out-of-state divorce decree.

Moreover, we have consistently held that an anti-suit injunction may not properly issue where it is established that the enjoined spouse is a domiciliary of another state. In Smith v. Smith, 364 Pa. 1, 4, 70 A. 2d 630, 632 (1950), in affirming the dismissal of a bill in equity brought by one spouse seeking to enjoin a divorce proceeding in Florida by the other spouse, we said: “Under Williams v. North Carolina (No. 1), 317 U.S. 287, a divorce granted by a court of the bona fide domicile of either spouse is valid and must be given full faith and credit. The only ground upon which a divorce decree of another jurisdiction may be attacked is that it was not the bona fide domicile of either spouse: Williams v. North Carolina, 325 U.S. 226; Commonwealth ex rel. Esenwein v. Esenwein, 348 Pa. 455, 35 A.2d 335. Since equity has no power to restrain a person from obtaining a lawful divorce, it follows that an injunction may only be granted where the spouse has not established a bona fide domicile in the state in which the divorce is sought.” In March Estate, 426 Pa. 364, 231 A.2d 168 (1967), we reversed an anti-suit injunction prohibiting one spouse from continuing with a divorce proceeding in Nevada because it was established that the enjoined spouse was a domiciliary of Nevada. We gave full faith and credit to the divorce decree obtained in Nevada. In Monihan v. Monihan, 438 Pa. 380, 264 A.2d 653 1970), although we affirmed the grant of an anti-suit injunction prohibiting one spouse from continuing with a Nevada divorce proceeding, we did so only because it was established that the enjoined spouse was not a domiciliary of Nevada. In Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956), we reversed a contempt citation against a spouse who had proceeded with a divorce action and obtained a valid divorce decree in Arkansas after the issuance of a Pennsylvania anti-suit injunction. In Wallace v. Wallace, 371 Pa. 404, 411, 89 A.2d 769, 772 (1952), we reversed an injunction, and gave full faith and credit to a Florida divorce decree, saying: “The record shows that not only was defendant capable of establishing a domicile in Florida but also that he did in fact establish it there. The Florida divorce decree was, therefore, valid and this bill in equity must be dismissed.”

Although we have in some cases upheld the validity of anti-suit injunctions, we have done so only in cases where there was no claim before the Court that the enjoined spouse was an out-of-state domiciliary. See Wenz v. Wenz, 400 Pa. 397, 162 A.2d 376 (1960); Rothman v. Rothman, 425 Pa. 406, 228 A.2d 899 (1967); Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969). In the case before us, the enjoined husband was an out-of-state domiciliary. The anti-suit injunction, therefore, should not have been granted and its issuance is not a proper basis for denying full faith and credit to the Florida divorce decree.

The next issue is whether the wife is entitled to permanent alimony. Although the Florida decree is entitled to full faith and credit, and is effective as to the marital status of the parties because the husband was a domiciliary of Florida, it is not controlling on the alimony issue since Florida did not have in personam jurisdiction over the wife. “The result in this situation is to make the divorce divisible — to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accomomdates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.” Estin v. Estin, 334 U.S. 541, 549, 92 L.Ed. 1561, 1569, 68 S. Ct. 1213, 1218 (1948). Accord, Kreiger v. Kreiger, 334 U.S. 555, 92 L.Ed. 1572, 68 S. Ct. 1221 (1948); Armstrong v. Armstrong, 350 U.S. 568, 100 L.Ed. 705, 76 S. Ct. 629 (1956); Vanderbilt v. Vanderbilt, 354 U.S. 416, 1 L.Ed.2d 1456, 77 S. Ct. 1360 (1957).

The Florida decree is thus ineffective on the issue of permanent alimony. It does not follow, however, that the wife is entitled to such alimony. The Restatement of Conflicts Second §77, comment f. states: “Although full faith and credit does not bar a wife from seeking support from a husband who has previously obtained an ex parte divorce, she may nevertheless be unable to obtain such relief. This is because a valid divorce decree severs the marital relationship and the local law of some States makes no provision for requiring an ex-husband to support an ex-wife.” (Emphasis added.)

The law of Pennsylvania does not provide for an award of permanent alimony after a divorce from the bond of matrimony. Hooks v. Hooks, 123 Pa. Superior Ct. 507, 187 A. 245 (1936); Commonwealth ex rel. Branch v. Branch, 175 Pa. Superior Ct. 373, 104 A.2d 183 (1954); Commonwealth ex rel. McCormack v. McCormack, 164 Pa. Superior Ct. 553, 67 A.2d 603 (1949); Commonwealth v. Kurniker, 96 Pa. Superior Ct. 553 (1929); Commonwealth v. Parker, 59 Pa. Superior Ct. 74 (1915); see, The Divorce Law, Act of May 2, 1929, P. L. 1237, §10 et seq., as amended, 23 P.S. §10 et seq. See also, Gershman v. Finck, 454 F.2d 229 (4th Cir. 1971).

In Commonwealth ex rel. Esenwein v. Esenwein, 348 Pa. 455, 35 A.2d 335 (1944), this Court said that a husband was entitled to a revocation of a Pennsylvania alimony award if he had obtained a valid Nevada divorce. More recently, in Commonwealth ex rel. McVay v. McVay, 383 Pa. 70, 72, 118 A.2d 144, 146 (1955), we said that if the full faith and credit clause “requires that the Nevada divorce be recognized in this Commonwealth [the husband’s] obligation to support his wife ceased automatically when the divorce was granted. . . Although in both Esenwein and MeVay, we held that the Nevada decrees were invalid on jurisdictional grounds, we recognized and restated the long-established law of Pennsylvania that a permanent alimony award is improper following a divorce from the bond of matrimony. Even in cases involving a spouse’s property rights, other than alimony, we have held that a valid divorce decree of another state has the same effect as a valid Pennsylvania divorce decree on the property rights of a spouse. In March Estate, 426 Pa. 364, 231 A.2d 168 (1967), a Pennsylvania widow filed an election to take against her husband’s will. The issue was whether the widow’s property rights had been terminated following a valid ex parte Nevada divorce decree. We held, citing our decisions in McVay and Esenwein, that the widow’s property rights were terminated under Pennsylvania law.

Estin v. Estin, supra, permitted the State of New York to award permanent alimony even though another state had validly granted an ex parte divorce. Estin, however, did so only after finding that the substantive law of New York provided for permanent alimony after a divorce from the bond of matrimony. Estin did not sanction a state policy on permanent alimony which treats out-of-state ex parte divorces differently from divorces granted in-state. Estin said “. . . it will be time enough to consider the effect of any discrimination shown to out-of-state ex parte divorces when a State makes that its policy.” 334 U.S. 541, 549, 92 L.Ed. 1561, 1569, 68 S. Ct. 1213, 1219 (1948). Pennsylvania, which permits in-state ex parte divorces, has not adopted any policy of discrimination against out-of-state ex parte divorces. Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938). Pa. R. C. P. 1124. The Pennsylvania divorce law does not provide for alimony following any divorce from the bond of matrimony, except in cases of insanity. The Divorce Law, Act of May 2, 1929, P. L. 1237, §45, as amended, 23 P.S. §45. If any changes are to be made in Pennsylvania’s divorce law, such change must be made by the legislature.

Although the decree in this case erroneously awarded permanent alimony, the decree properly permitted alimony pendente lite. Such alimony is permitted in Pennsylvania. The Divorce Law, Act of May 2, 1929, P. L. 1237, §46, as amended 23 P.S. §46. The trial court’s award of alimony pendente lite is therefore affirmed. Commonwealth v. Callen, 165 Pa. Superior Ct. 163, 67 A.2d 610 (1949). Scholl v. Scholl, 154 Pa. Superior Ct. 57, 35 A.2d 528 (1944); Foust v. Foust, 144 Pa. Superior Ct. 513, 19 A.2d 517 (1941); White v. White, 106 Pa. Superior Ct. 85, 161 A. 464 (1932).

That portion of the order of the Superior Court modifying the trial court’s decree as to the termination of the marriage contract is affirmed. That portion of the Superior Court’s order affirming the trial court’s grant of alimony pendente lite is also affirmed. In all other respects the order of the Superior Court is reversed.

Mr. Justice Nix took no part in the consideration or decision of this case.