OPINION BY ROSS, J., January 12, 1951:
This is a prosecution for a violation of section 731 of The Penal Code of 1939, P.L. 872, 18 PS 4731.
The following facts are pertinent: Defendant, his wife and son resided together as a family in the city of Philadelphia for a number of years, the last nine of which were spent at the same address, 3518 Wellington Street, a rented dwelling. Mrs. Petrosky has never left the Wellington Street address. In May of 1945, the defendant's employer, the Greyhound Bus Company, offered him a job in Indianapolis, Indiana. The new job involved a promotion and a considerable increase in salary. Defendant accepted the new position and, leaving his wife and son in Philadelphia, went to Indianapolis where he secured living accommodations at the
The defendant sent his wife $100 per month until September 1946. In June of 1948, the defendant gave her $1,000 to put in their joint bank account, extracting from her a promise that she would return it to him upon request. Defendant asked for this money in July of 1948, and Mrs. Petrosky sent him $800 and seven $25 war savings bonds. Defendant has made no contribution to his wife's support since that time.
On March 17, 1949, Mrs. Petrosky filed a petition for support under section 733 of The Penal Code of 1939, and written notice of this proceeding was received by the defendant in Indianapolis on March 19, 1949. On April 6, 1949, the defendant filed a complaint in divorce in Indianapolis, and in an ex parte proceeding following service by publication in accordance with Indiana law, a final decree of divorce was entered in favor of the defendant by the Indiana court on June 15, 1949.
Two basic questions are raised by this appeal: (1) Was the defendant properly convicted of a violation of section 731 of The Penal Code of 1939; and if so, (2) was it within the power of the court below to enter an order directing defendant to support his alleged wife.
A husband who separates himself from his wife without reasonable cause or who wilfully neglects to
In its opinion the court below stated: ". . . the burden was on this defendant to prove affirmatively the change of domicile to Indiana . . ." In support of its holding the court below cites Smith v. Smith, supra, 364 Pa. 1, 70 A.2d 630, and the cases cited therein. It is to be noted that neither Smith v. Smith nor any of the cases cited therein in connection with the burden of proving domicile dealt with a situation involving a decree of a sister state. The factor absent in those cases and present in the instant one is the Full Faith and Credit clause of the Federal Constitution, which makes it the duty of a state in which extra-territorial recognition is sought for the decree of a
In view of the above authorities, we are of the opinion that the court below was in error in placing upon the defendant herein the burden of proving domicile in Indiana. On the contrary, we hold that the burden was upon the Commonwealth, as the party attacking the validity of the Indiana decree, to show by a preponderance of the evidence that defendant was not domiciled in Indiana when he applied for a divorce there, or that there were other facts negativing
The burden of showing by a preponderance of the evidence that jurisdiction was in fact lacking — that defendant was not a bona fide domiciliary of the divorcing state — can be met by showing that the libellant seeking recognition of an out-of-state divorce decree went to the divorcing state not to establish a domicile but to set up a residence so that he might secure a divorce. Com. ex rel. Esenwein v. Esenwein, supra, 348 Pa. 455, 35 A.2d 335; Com. ex rel. Phelps v. Phelps, 154 Pa.Super. 270, 35 A.2d 530; Com. ex rel. Meth v. Meth, supra, 156 Pa.Super. 632, 41 A.2d 752; Com. ex rel. Barker v. Barker, 160 Pa.Super. 263, 50 A.2d 739; Com. v. Berfield, 160 Pa.Super. 438, 51 A.2d 523; Com ex rel. De Gosz v. De Gosz, 161 Pa.Super. 286, 54 A.2d 55; Com. ex rel. Bowser v. Bowser, 163 Pa.Super. 494, 63 A.2d 117. Without significant deviation these cases fit into the following factual groove: An unsuccessful attempt to secure a divorce in Pennsylvania, or at least an outstanding support order in favor of the wife; a trip to another state; a suit for divorce brought immediately after residence requirements had been met; a prompt departure from the divorcing state following the granting of the decree. To be sure, the libellants in the later cases in this group made more or less elaborate attempts to avoid the doctrine of the previous cases, but in each of those cases the attempt was so patently flimsy as to be without significance. We think it clear that the Commonwealth has failed to present evidence which would justify placing the instant case alongside the above group of cases. It is not disputed that the defendant's reason for going to Indiana originally and for returning
It would seem that the only avenue of attack open to the Commonwealth lies in showing that the defendant did not intend to reside in Indiana permanently or for an indefinite period. To constitute the new domicile two things are indispensable: first, residence in the new locality, and second, the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. Barclay's Estate, 259 Pa. 401, 405, 103 A. 274; Alburger v. Alburger, 138 Pa.Super. 339, 343, 10 A.2d 888; Huston v. Huston, 130 Pa.Super. 501, 197 A. 774. The requisite animus is the present intention of permanent or indefinite residence in a given place or country, or, negatively expressed, the absence of any present intention of not residing there permanently or indefinitely. Price v. Price, 156 Pa. 617, 626, 27 A. 291. The evidence tending to show that defendant did not intend to reside in Indiana permanently or for an indefinite period may be summarized as follows: First, defendant returned to Philadelphia periodically where he "lived" with his wife; second, defendant procured a Pennsylvania automobile operator's license in 1948; third, Mrs. Petrosky's testimony to the effect that defendant told her that he expected to be transferred back to Philadelphia. In Hood's Estate, 21 Pa. 106, the question was whether the decedent's domicile was Pennsylvania or Cuba, where he had resided for some
It is our conclusion that the Commonwealth has failed to show by a preponderance of the evidence that the defendant was not domiciled in Indiana. We are of the opinion that, taken in its most favorable light, the Commonwealth's evidence did no more than raise a doubt as to where defendant's domicile really was. Such a showing is not sufficient to rebut the presumption arising from the rendition of the Indiana decree (Com. ex rel. Cronhardt v. Cronhardt, supra, 127 Pa.Super. 501, 509, 193 A. 484) and, consequently, the Indiana divorce decree is entitled to full faith and credit in this Commonwealth. From this conclusion it follows that the defendant is not liable for the support of Mrs. Petrosky, his divorced wife, because in Pennsylvania it is well settled that a decree of absolute divorce terminates the husband's obligation to support a former spouse. Com. v. Parker, 59 Pa.Super. 74; Com. ex rel. Kurniker v. Kurniker, 96 Pa.Super. 553; Com. ex rel. Di Donato v. Di Donato, 156 Pa.Super. 385, 40 A.2d 892.
Order of the court below for the support of defendant's former wife is reversed.
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