Opinion
December 10, 1962.
March 19, 1963.
Husband and Wife — Support — Divorces from prior respective spouses fraudulently obtained in Alabama — Estoppel of defendant to deny validity of own divorce — Estoppel to deny validity of divorce of relatrix — Decrees prohibiting remarriage within specified period — Amount of support order — Evidence.
1. In a support proceeding, in which it appeared that defendant and his wife, in accordance with defendant's idea, went together to Alabama and obtained divorces from their respective spouses; that the divorce decrees were fraudulently obtained in that neither defendant nor his present wife were residents in good faith in Alabama; that both the divorce decrees contained a provision prohibiting each party thereto from remarrying, except to each other, for a period of sixty days; that after the decrees of divorce were obtained relatrix and defendant married each other in Pennsylvania within the sixty days; and that the court below, holding that (a) under Alabama law a spouse may not attack a collusive divorce where he himself participated in the collusion, and, therefore, defendant could not attack the validity of his own divorce decree in the instant proceeding, since the full faith and credit clause bars a defendant from attacking a divorce on jurisdictional grounds in the courts of a sister state where both spouses have submitted themselves to the personal jurisdiction of the courts of the rendering state and the decree is not subject to such attack in the courts of that state, (b) defendant was precluded from attacking the validity of the decree obtained by his present wife, since third-party attack on a divorce decree in a sister state is dependent on its availability in the rendering state, and under Alabama law one in privity with a person who by fraudulent conduct procedures a divorce is estopped to question its validity, (c) in the circumstances, the court should not of its own motion declare the Alabama divorce invalid, and (d) the marriage in Pennsylvania, the domicile of the parties, within the prohibited period of sixty days specified by their decrees, was not invalid, concluded that defendant was liable to support his wife; it was Held that the court below properly entered an order of support.
2. Where it appeared that relatrix resided in a home entitled in the names of both parties as tenants by the entireties; that defendant was obliged to pay his first wife $7,200 per year by virtue of property settlement agreement entered into with her upon the dissolution of their marriage (of which obligation of defendant relatrix had knowledge prior to the time that she married him); that defendant owned a half interest in and was an officer of a manufacturing corporation, and received by way of salary and bonus $25,000 per year, that he received income on shares of stock owned by him and interest on savings accounts, and that he reported a gross income of $25,983; that he had income from products of the corporation in excess of the amount returned for income tax purposes; and that the trial judge, after determining defendant's gross income to be $34,823 and his net income, after taxes and the payments to his first wife, to be $19,123, entered an order directing defendant to pay for the support of his wife $120 per week, and to pay the taxes and mortgage installments on the entireties property; it was Held that the order of the court below should be affirmed.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 376, Oct. T., 1962, from order of Court of Quarter Sessions of the Peace of Bucks County, Jan. T., 1962, No. 39, in case of Commonwealth of Pennsylvania v. Russell J. Case. Order affirmed; reargument refused April 18, 1963.
Same case in court below: 29 Pa. D. C. 2d 405.
Nonsupport. Before MONROE, J.
Order entered directing defendant to pay stated weekly sum and to pay specified bills. Defendant appealed.
George T. Kelton, with him William J. Carlin, and Begley, Carlin, Mandio, Kelton Popkin, for appellant.
T. Sidney Cadwallader, 2d, with him Cadwallader, Darlington Clarke, for appellee.
WOODSIDE, J., filed an opinion concurring in part and dissenting in part, in which MONTGOMERY and FLOOD, JJ., joined.
Argued December 10, 1962.
The order of the court below is affirmed on the opinion of Judge MONROE of the Court of Quarter Sessions of Bucks County, as reported in 29 Pa. D. C. 2d 405.
I concur with this court's conclusion that an order for the support of the defendant's wife was properly made for the reasons set forth in Judge MONROE'S scholarly opinion, but I think under the circumstances the amount of the order was exorbitant.
Orders for the support of a wife are limited to one-third of the husband's income or earning power. This is the maximum allowed to the most worthy wife — one who has spent her life sacrificing to help an ungrateful husband accumulate his capital, develop his earning capacity and rear his children only to be cast aside when she has become needy, ill and old.
In the case before us, the relatrix owned and operated a dress shop for 12 years, going out of business after she left the defendant. At the hearing a few months later, she first denied, and then reluctantly admitted, that she had leased a storeroom to go back into the business. She lived with the defendant — in luxury — for less than a year. In order to marry him, she left and divorced her former husband after many years of married life, cooperated with the defendant in his leaving and divorcing his wife after many years of married life, and committed a fraud upon the courts of Alabama to get her divorce. Certainly, this relatrix is not entitled to the most liberal order possible. Nevertheless, her desertion and fraud proved to be a good investment for her. The defendant is ordered to pay $120 a week, plus taxes and mortgage installments, making a total of $8280 a year.
Assuming half of the payment on the mortgage and taxes on the real estate held by entireties, and in which the wife resides, inures to the defendant's benefit, the relatrix is receiving $7260 a year.
The defendant's income tax return shows gross income of $25,983 in the last reported year. He pays his first wife $7200 a year under an agreement entered into with the relatrix's knowledge, and undoubtedly with her consent and for a purpose which she then thought was for her benefit. (The defendant paid both his wife and the relatrix's husband, who thereupon entered no objections to the fraudulently obtained divorce.) The trial judge concluded that the defendant had income in excess of the amount he returned for income tax purposes, and set his gross income at $34,823 and his net income, after taxes and the payments to his first wife, at $19,123.
A sound argument might be made that the order exceeds one-third of the defendant's earning capacity, but whether or not it does, I think it is excessive. I would reduce the weekly order to $75, which, added to the mortgage and real estate tax payments, would constitute an order of $5940 a year.
MONTGOMERY and FLOOD, JJ., join in this opinion.