Wallace v. Wallace

Appellant filed his divorce action in Florida on October 29, 1945. A preliminary injunction was issued by the Court of Common Pleas of Montgomery County, sitting in equity on November 29, 1945. This preliminary injunction enjoined appellant from: "(a) Prosecuting and proceeding with the conduct and prosecution of the said alleged divorce action instituted by him against plaintiff in the Circuit Court of the Eleventh Judicial Circuit of the State of Florida, in and for Monroe County, In Chancery, Case No. 10-447, or in any other court in said State or any other State. . . (b) Permitting or causing to be permitted by his attorney in his said suit or any other attorney, servant or agent, *Page 412 any act, conduct or proceeding whatsoever in furtherance or performance of said divorce action . . . (c) Contracting any marriage with any person upon the authority or alleged or pretended authority of any order, adjudication or decree now or hereto issued or granted in said proceeding, or in any other state or jurisdiction, or from doing any act, matter or thing in any foreign State or jurisdiction whatsoever by which the marital status or rights of plaintiff may be questioned, jeopardized, changed, altered or affected in any manner whatsoever. . .".

In absolute and unmitigated defiance of this order, the appellant proceeded with and obtained a Florida divorce on March 6, 1946. More than two and one-half years later, on October 20, 1948, appellant attacked the entry of the preliminary injunction on the ground that no bond had been filed to protect him against the preliminary injunctionwhich he had already arbitrarily and contemptuously refused toobey. The chancellor granted such petition to dissolve on January 5, 1949, then, with commendable judicial restraint, allowed appellant to strike off an order taking the bill proconfesso and later allowed further latitude to the appellant by permitting him to file an answer to the merits beyond the time ordinarily given.

With this procedural background the chancellor filed an adjudication which was confirmed by the court en banc. In his opinion for the court en banc he said, "We remain convinced that he [appellant] was not sincere in his intentions to establish a Florida domicile (after his military service was terminated) and what he did was to lend color to his right to a Florida divorce."1 I am equally convinced that the so-called *Page 413 objective evidence produced to convey to the chancellor the impression that it was appellant's bona fide intention to establish a domicile in Florida was merely a conglomeration of planned self-serving declarations designed for the two-fold purpose of lending support to the Florida proceeding and defeating the plaintiff in this action.

What was the evidence on the question of the domicile of the appellant? At the time of the marriage in August, 1944, plaintiff and defendant were domiciled in Pennsylvania. They were married in Pennsylvania. After the honeymoon to New Jersey they returned to Montgomery County for a few days before they went to Florida. It is also undoubtedly true that defendant went to Florida under compulsion of orders from the United States Navy.2 They lived there together in various apartments, his personal belongings remaining at the residence of his mother in Pennsylvania. Plaintiff left defendant in August, 1945 and as the chancellor found, was "justified in leaving him." Except for some attempted proof of declarations by the defendant that he wanted to make Florida his residence, he did nothing to effectuate that desire. Although he gave some testimony about looking for a permanent home, he wrote his mother, " `. . . We almost bought a house but decided the cost too high and the value ready for a sudden drop with the conclusion of the war.'. . .". The *Page 414 appellee here, who was regarded as credible by the chancellor, testified that as a "last resort" for a place to live they decided they might have to buy and stated her husband said they ". . . couldn't buy the place, because the real estate values would go down and that we would be stuck with property on our hands which we didn't want, because we weren't going to staythere." (Emphasis supplied).

After appellee left appellant in August, 1945, in the month previous to filing his suit for divorce he filed a formal declaration to make Florida his home3 which was necessary for him to register there, and twenty days before filing suit for divorce he transferred his bank account to Florida. It is extremely significant that appellant did nothing more to support his allegation of domicile in the State of Florida until February, 1946 (when he transferred his church membership) after the preliminary injunction was issued on November 29, 1945. From that time on it must be admitted appellant in chronological order secured his divorce in Florida on March 6, 1946, remarried on April 19, 1946, transferred *Page 415 his automobile license to Florida in June, 1946, and joined the Naval Reserve there.4

On the other hand, the plaintiff testified that the defendant complained of the pollen in Key West affecting his sinus condition, did not want to buy a permanent home in Florida because he didn't want to stay there, made numerous inquiries about farms in Maryland and his mother managed his securities which were in Pennsylvania, under a power of attorney given by defendant. Plaintiff also testified that while they were in Florida appellant never spoke about a permanent residence there, never got a driver's license in Florida, never opened a bank account there and belonged to a church in Pennsylvania.

It is true as the majority states that a person in the military service if he is allowed to live with his familycan acquire a domicile. But the question is whether the appellant did acquire a new domicile and the test of this is intent.

To my mind no sufficient evidence appears to sustain appellant's contention that he established a domicile in Florida prior to the institution of the divorce action on October 29, 1945. The majority seems to concede this for it relies heavily on the acts of the appellant after that date and long after he acquired his divorce and justifies such reliance with the statement that "All of defendant's acts are consistent with his declarations and with nothing else." With this statement I take issue. Defendant's acts were consistent with something else. They were consistent with a plan to avoid the effect of the injunction. Under such circumstances I would not upset the chancellor's finding *Page 416 that ". . . what he did was merely to lend color to his right to a Florida divorce."

Counterbalancing the presumption of the validity of a divorce decree of a sister state (Commonwealth ex rel. Cronhardt v.Cronhardt, 127 Pa. Super. 501, 193 A. 484) there is present in this case the presumption that domicile persists in law, and once established (in Pennsylvania), is presumed to continue until a new one is acquired: Pusey's Estate, 321 Pa. 248,184 A. 844; Barclay's Estate, 259 Pa. 401, 103 A. 274. In addition, defendant did go to Florida initially under orders of the United States Navy and despite the fact that this is not conclusive on his intent it is certainly a factor which should be considered.

The effects of a final decree in divorce are far-reaching. Aside from the social aspects, plaintiff is deprived of her right to support and her rights in her husband's property are extinguished. These rights of a Pennsylvania domiciliary are as much the concern of a court of this state as the domestic difficulties of the defendant apparently were to the State of Florida. The court in this Commonwealth attempted to protect these rights but under the majority opinion failed because appellant disregarded the injunction and after the divorce was granted acted so as to lend color to such divorce which, when instituted, lacked any semblance of the jurisdictional touchstone — domicile.

It is impossible for any person to determine at the institution of a divorce suit in another state whether the spouse who filed such action will be willing to stay in such state and perform acts lending color to his or her declared domicile there. But under the majority opinion if the spouse initiating the action in a foreign state is not domiciled there at the time such suit is commenced, he or she may by acts done subsequently to the granting of the divorce support its validity so that *Page 417 it will be recognized extraterritorily. Thus the defending spouse is forced to appear in the foreign jurisdiction and contest the divorce in order to protect his or her rights. For even an injunction obtained in the state where both spouses are domiciled according to the evidence existing at the time the foreign divorce action is commenced, is of no avail under the majority opinion. Such result should not be given legal sanction.

In a very analogous case, absent the very persuasive factor of the injunction present herein, the Supreme Court of Errors of Connecticut upheld the setting aside of a Nevada divorce:Rice v. Rice, 134 Conn. 440, 58 A.2d 523. There, as here, the controversy concerned a divorce rendered in a foreign state where a husband remarried shortly after obtaining the divorce, opened a joint bank account with his new wife in Nevada, told others he intended to make it his home and applied for a voter's registration. He never returned to Connecticut. The Connecticut court found that he had not obtained a bona fide domicile in Nevada which it would recognize. This decision was upheld by the Supreme Court in Rice v. Rice, 336 U.S. 674.

I would affirm the decree of the lower court and thus thwart the obvious attempt of this appellant to evade an injunction and establish a domicile in another state by acts done subsequent to his contempt of the injunction and the granting of his divorce.

1 Even if this finding be regarded as a deduction by the lower court, it should not be set aside unless erroneous: (Andrekanics v. Andrekanics, 371 Pa. 222, 89 A.2d 792) and should be declared erroneous only where relevant evidence compels a contrary view. I find this statement of the lower court a true appraisal of the actual situation.

2 The majority dismisses the effect of this compulsion by stating that the rule is not inflexible. I agree that the rule is not rigid, for other types of compulsion are expressly excluded: e.g. economic compulsion: Restatement, Conflict of Laws, § 21, comment e. But it certainly is a factor to be taken into consideration: See Commonwealth ex rel. Hoffman v.Hoffman, 162 Pa. Super. 22, 56 A.2d 362.

3 The record shows that this declaration contains the following: "I was formerly a legal resident of Merion Station, Pennsylvania and I resided at 521 Greystone Road. However, I have changed my domicile to and am and have been a bona fide resident of the State of Florida since 22nd day of August, 1944, and I reside at 1203 Newton Street, Key West, Monroe County, Florida, and this statement is to be taken as my declaration of citizenship, actual legal residence and domicile in the State of Florida. (Insert here any pertinent facts, such as sale of property or business, or relinquishment of employment at former domicile, removal of family to new domicile, purchase of home, etc.) Like warm climate, the frienlyness (sic) to Key Westers and enjoy the pace (sic) and quiet here, therefore intend to make Key West my home." It is significant that the only pertinent facts which appellant inserted were being pleased with the climate, friendliness and peace and quiet of Key West.

4 Nowhere in the record testimony does it appear that appellant is a member of the Florida Bar. Under the view I take of the case, however, this is immaterial.