Smith v. Smith
Smith v. Smith
Opinion of the Court
Opinion by
Bernice G. Smith, plaintiff and her husband, Luther B. Smith, defendant, have been litigating their marital difficulties for over three years in the courts of botli Florida and Pennsylvania, he seeking a Florida divorce and she attempting in Pennsylvania to enjoin the Florida proceedings. Her bill in equity having been dismissed by the Court of Common Pleas of Cumberland County, Pennsylvania on the ground that defendant is no longer domiciled in this Commonwealth, plaintiff brings this appeal.
Plaintiff and defendant were married bn December 26, 1916, and lived together at various places in York and Cumberland Counties until May 24, 1945, their last mutual address being 28 North 23rd Street, Camp Hill, Cumberland County where plaintiff still resides. On August 22, 1946, defendant instituted a divorce action in Dade County, Florida. On September 9, 1946, plaintiff filed a bill in equity in Cumberland County to enjoin the Florida action and on that bill a preliminary injunction was granted the same day. Defendant then moved the Florida court to dismiss the divorce action on November 9, 1946, and ten days later sought to have the preliminary injunction dissolved and that bill dismissed. The learned court below dissolved the injunction but retained jurisdiction of the bill. Thereafter, on May 2,1947, defendant sought a Florida declaratory judgment that he was a resident of and domiciled in Florida. Plaintiff in turn filed a supplemental bill in Cumberland County to enjoin that proceeding and a preliminary injunction to that effect was granted on
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. 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. Thus the sole issue here is whether defendant has established such a domicile in Florida.
It is not disputed that defendant was for some years a Pennsylvania domiciliary. That domicile having been shown to exist, it is presumed to continue until another domicile is affirmatively proven: Pusey’s Estate, 321 Pa. 248, 184 A. 844; Price v. Price, 156 Pa. 617, 27 A. 291. The burden is on the one alleging a change of domicile to prove residence in a new locality and the intention to make that his permanent home: Barclay’s Estate, 259 Pa. 401, 404, 103 A. 274; Chidester v. Chidester, 163 Pa. Superior Ct. 194, 196, 60 A. 2d 574; Reimer v. Reimer, 160 Pa. Superior Ct. 509, 513, 52 A. 2d 357; Alburger v. Alburger, 138 Pa. Superior Ct. 339, 10 A. 2d 888.
Plaintiff argues that in view of those rules the chancellor could not dismiss the bill unless he found defendant to be domiciled in Florida and since the only finding
The evidence amply supports the chancellor’s findings and those findings make it clear that defendant is a Florida domiciliary. As early as May 24,1945, defendant stated that he intended to spend less and less time at Camp Hill, Pennsylvania. Thereafter, he went to Florida and declared that he would make his home there. In June 1946, he rented a house in the Village of North Bay Island where he lived until July, 1947, at which time he purchased a large home for $82,500 in Miami Beach. Since 1947 he has been listed on the tax rolls in Camp Hill as a non-resident taxpayer and has paid Florida personal and real property taxes as a resident of that State. Since 1946 defendant has filed his federal income tax return with the Collector of Internal Kevenue in Florida in compliance with 26 U. S. C. A., Section 53(b) which requires that those returns be filed at the legal residence of the taxpayer. Defendant also had his name removed from the voting registry in Camp Hill in January of 1947, and a short time later registered as a voter in Dade County, Florida. His automobile driver’s license, passport and student pilot certificate have all shown his Florida address to be his home.
In addition he has resigned from the West Shore Country Club at Camp Hill, a Shrine Organization in
In view of that evidence it is impossible to conceive; of what more defendant could have done to establish himself as a Florida domiciliary. He has severed all Pennsylvania ties and established himself anew in Florida. His written statements on official documents, his oral declarations and his acts all clearly show that his Florida residence is his legal domicile. His residence and intent having been overwhelmingly established, he lias rebutted the presumption of continuing domicile in Pennsylvania.
Plaintiff contends that defendant, in moving to Florida was motivated solely by the desire to obtain a divorce and bases that contention on the undisputed evidence of his adultery. It is true that continuous adultery with one woman tends to show that he wanted a divorce in order to marry that woman: Com. ex rel. Barker v. Barker, 160 Pa. Superior Ct. 263, 50 A. 2d 739. And since motive may reflect on a person’s intent to change domicile (Commonwealth ex rel. Meth v. Meth, 156 Pa. Superior Ct. 632, 41 A. 2d 752), his evidence of that intent must be subjected to close and careful scrutiny. Even after such an examination we have no difficulty in finding that whatever may have been defendant’s motive in moving to Florida he has, on this record, established his intent to make that State his domicile.
Plaintiff also urges that a divorce will work great hardships on her by depriving her of her right to support and her dower interests and for that reason the injunction should be granted. To so hold, Avould require us to overlook the decisions of the United States Supreme Court, As Ave stated above, the two Williams cases limit our inquiry to the issue of domicile. By no stretch of the imagination can defendant’s domicile be said to depend on any equities which may exist in favor of plaintiff. Furthermore, plaintiff’s oavu witness testified that defendant offered plaintiff a settlement of $400,000 to be paid over a period of twenty years. That sum represented one-lialf of their accumulated wealth. It was
A further contention made by plaintiff is that the court en banc violated Equity Rule 71
Plaintiff’s last objection is to the testimony of defendant’s personal pilot as to the amount of time defendant spent in Florida. This objection is based on the theory that the pilot’s personal log book Avould be the best evidence. The log to which the pilot referred was not an official flight log but merely his OAvn personal memorandum and as such, could only have been used to refresh his recollection (See Henry on Pennsylvania Trial Evidence, Section 491). It is apparent from reading his testimony that he Avas testifying to matters Avithin his personal knoAvledge based on his OAvn observation of defendant’s habits. He did not purport to state the contents of the writing.
Defendant having established the fact that he is a bona fide Florida domiciliary, the courts of this CommonAvealth have no right to enjoin his obtaining a divorce there. The bill Avas, therefore, properly dismissed.
Decree affirmed. Costs.to be paid by appellant.
The pertinent part of that Rule reads as follows : “. . . exceptions which aver that the chancellor’s adjudication fails to make substantial disposition of requests for findings of fact must be answered specifically by findings, refusing to find or qualifying the facts alleged, and not by a simple refusal of the request.”
Dissenting Opinion
Dissenting Opinion by
I do not concede that “defendant established the fact that he is a bona fide Florida domiciliary”. Curiously
Of course, I do not dispute that a decree of divorce granted by a State where the complaining party has recently acquired a domicile, if procedurally valid according to the law of the jurisdiction, must be given full faith and credit throughout the other forty-seven States: Williams v. North Carolina, 317 U. S. 287; Williams v. North Carolina, 325 U. S. 226; Esenwein v. Commonwealth, 325 U. S. 279. The Williams cases and others of like import are not germane to the point on Which this Pennsylvania equity suit should turn. To
I would reverse for want of competent evidence to support any finding of the defendant’s bona fide change of his established Pennsylvania domicile.
Mr. Justice Jones joins in this dissent.
Reference
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- Smith, Appellant, v. Smith
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