Summary
In Commonwealth ex rel.Knode v. Knode, 145 Pa. Super. 1, 20 A.2d 896, the husband presented a petition to vacate a support order alleging that the wife had been incompetent to contract the ceremonial marriage because she had a prior husband still living at the time.
Summary of this case from Com. ex rel. Johnson v. JohnsonOpinion
May 8, 1941.
June 30, 1941.
Husband and wife — Support — Order — Conclusiveness — Marriage — Competency of wife to marry — Reports of investigators — Evidence.
1. Where, at the hearing in a non-support proceeding, the defendant did not deny marriage with the relator and did not appeal from the order of support entered, he could not subsequently, in a proceeding upon a petition to vacate the order of support, deny that he married the prosecutrix as testified to by her.
2. In such case, however, the defendant was entitled, under the circumstances, to show that at the date of the marriage with the prosecutrix she was incompetent to marry him because of her then having a lawful husband living, from whom she had not been divorced, and that her incompetency to marry existed during the entire time the parties lived together as husband and wife.
3. The reports of investigators or agents of the court in such matters are not admissible or usable as evidence; the witnesses themselves must be produced, sworn and examined, and be subject to cross-examination, just as all other witnesses.
Appeals — Record — Evidence — Non-support case — Certification of record — Act of April 18, 1919, P.L. 72.
4. Testimony taken in court on a hearing relative to an order for support is a part of the record, to be sent up on appeal with the rest of the court papers: Act of April 18, 1919, P.L. 72.
5. The certification of the testimony as part of the record in such a case is not a matter of grace or favor.
Appeal, No. 162, April T., 1941, from order of County Court, Allegheny Co., 1938, No. C1721, in case of Commonwealth ex rel. Adeline Knode v. John T. Knode.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, HIRT and KENWORTHEY, JJ. Orders opened and record remitted.
Petition and rule to vacate order for support of wife. Before McKIM, P.J.
The facts are stated in the opinion of the Superior Court.
Rule discharged. Petitioner, defendant, appealed.
Error assigned, among others, was the action of the court below in dismissing the petition to vacate order.
John S. Van Kirk, with him William Black, for appellant.
Samuel G. Wagner, of Wagner Wagner, with him Harry Shapera, for appellee.
Argued May 8, 1941.
Testimony taken in court on a hearing relative to an order for support is a part of the record, to be sent up on appeal with the rest of the court papers: Act of April 18, 1919, P.L. 72. It is not taken for the convenience or accommodation of the judge, and its certification as part of the record is not a matter of grace or favor.
On January 25, 1939, pursuant to a complaint made by Adeline Knode against John T. Knode, her husband, for non-support, the County Court of Allegheny County entered its decree adjudging the defendant guilty of non-support as charged in the information and ordering him to pay to the desertion probation officer appointed by the court the sum of $80 per month for the support of his wife.
On July 25, 1940, he filed his petition asking that the order of support be vacated on the ground that the prosecutrix was not his lawful wife. A rule was granted which came on for a hearing on September 18, 1940, and was dismissed. A motion by defendant for a rehearing and reconsideration of the case was refused on October 9, 1940 and this appeal was taken by him on October 25, 1940.
The court below was entirely right in holding that, for the purposes of these proceedings, the fact of the defendant's marriage to the prosecutrix had been adjudicated by the order for support entered January 25, 1939. At the hearing held that day the prosecutrix testified that she married the defendant on September 29, 1918 and that they had lived together as man and wife until May 20, 1938. He did not deny the marriage nor appeal from that order. He cannot now, for the purposes of this case, deny that he married the prosecutrix as testified to by her: Com. ex rel. May v. May, 77 Pa. Super. 40; Com. v. Knobloch, 89 Pa. Super. 216; Com. ex rel. Iacovella v. Iacovella, 121 Pa. Super. 139, 182 A. 727; Com. ex rel. Isaacs v. Isaacs, 124 Pa. Super. 450, 188 A. 551. But if at the date of that marriage the prosecutrix was incompetent to marry him, or anybody else, because of her then having a lawful husband living, from whom she had not been divorced, and her incompetency to marry existed during the entire time the parties lived together as husband and wife, the defendant should be permitted to prove it and be relieved of the duty of supporting some other man's wife. The incompetency to marry in such case resulted from her own act and was not caused by any act of the defendant. It differs in this respect from at least some of the cases cited above.
The presiding judge refused to permit any inquiry into the alleged marriage of the prosecutrix to another man or men, unless the defendant first heard or learned of it after January 25, 1939. In this we think he went too far. Until defendant had such proof of the fact as would be admissible as evidence in a court of law, he would not be justified in raising the question, and he should not be precluded by his earlier failure to do so. We do not mean to hold or even suggest that the defendant produced such proof at the hearing on September 18, 1940. But he was not allowed to go into the matter. Mere proof of a marriage between Adeline Landis and George Shoop or Lewis Charles Siegler prior to September 29, 1918, when she married defendant, would not prove her incapacity to marry him on that date; and even if such incapacity existed then, it might have been removed by the death or divorce of her legal husband during the period she and defendant lived together as man and wife, and the marriage confirmed after her incapacity was removed.
We hold only that defendant should have been given an opportunity to prove his case and not have had it foreclosed before he even began.
The burden of proof resting on him is not a light one, but he is entitled to a chance to fulfill it if he can.
We may further add — what is sometimes overlooked — that reports of investigators or agents of the court in such matters are not admissible or usable as evidence. The witnesses themselves must be produced, sworn and examined, and be subject to cross-examination, just as all other witnesses: Com. ex rel. Ritter v. Ritter, 91 Pa. Super. 563, 565; Com. v. Varner, 103 Pa. Super. 149, 153, 156 A. 545; Com. ex rel. Mark v. Mark, 115 Pa. Super. 181, 182, 175 A. 289; Com. ex rel. McClenen v. McClenen, 127 Pa. Super. 471, 476, 193 A. 83.
The orders of September 18, 1940 and October 9, 1940, so far as they relate to the matters now under consideration, are opened and the record is remitted for further hearing and consideration along the lines above referred to.