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HomeMy WebLinkAbout99-2166 civilAGNES IRENE PAASU V· MATT I TARMO PA3ISU · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · · NO. 99-2166 CIVIL TERM · · IN RE: PETITION FOR DECLARATORY RELIEF ORDER OF COURT AND NOW, this day of AUGUST, 1999, the Plaintiff's request for annulment of her marriage to Defendant is DENIED. Provided, however, that nothing herein shall prevent her from pursuing her action in divorce. By Edward E. Guido, J. R. Mark Thomas, Esquire For the Petitioner Matti Tarmo Paasu P.O. Box 716 Deland, Florida 32721 -sld AGNES IRENE PAASU V, MATT I TARMO PAASU · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · : · · NO. 99-2166 CIVIL TERM · : IN RE- PETITION FOR DECLARATORY RELIEF OPINION AND ORDER OF COURT BEFORE GUIDO, J._ _ Plaintiff commenced this action in annulment and divorce by complaint filed on April 13, 1999. On May 24, 1999 the Plaintiff filed a Petition for Declaratory Relief in connection with the annulment portion of the cause of action. We scheduled a hearing on the Petition for Declaratory Relief for July 9, 1999. Defendant received a copy of the Petition for Declaratory Relief as well as notice of the scheduled hearing by certified mail on June 8, 1999. The hearing on the Petition was held as scheduled. Plaintiff appeared and was represented by R. Mark Thomas, Esquire. The Defendant did not appear, either in person or through counsel. 99-2166 CIVIL TERM _FINDINGS OF FACT 1) Plaintiff is Agnes Irene Paasu, an adult individual who currently resides at 2302 Warren Way, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2) Plaintiff has been a bona fide resident of the Commonwealth of Pennsylvania for more than six (6) months prior to the filing of the complaint. 3) Defendant is Matti Tarmo Paasu who currently resides in Deland, Florida. His mailing address is P.O. Box 716 Deland, Florida 32721. 4) Plaintiff is a citizen of the United States. 5) Defendant is a citizen of Finland. He is a resident alien in the United States. 6) The parties first met on a church missionary trip to Germany in the early 1990's. At that time, Plaintiff was a resident of Mechanicsburg, Cumberland County Pennsylvania and Defendant resided in New York. 7) When they returned to the United States the parties began a relationship, she living in Mechanicsburg, he in New York. 8) This long distance relationship continued for several years until the Defendant returned to Finland in the Summer of 1997. - 2 - 99-2166 CIVIL TERM 9) During the course of their relationship the parties never engaged in sexual intercourse because of Defendant's impotency. Plaintiff was aware of his problem. 10) When Defendant returned to Finland, Plaintiff lost track of his whereabouts for about a year. 11) In June of 1998 Defendant called Plaintiff and asked her to come to Finland to marry him. 12) Plaintiff immediately went to Finland. 13) The parties attempted to get married on June 27, 1998. 14) As they attempted to complete the documentation, Plaintiff was advised that her papers from a prior divorce were not in order. Since Plaintiff did not speak the language, she had to rely upon Defendant to translate for her. 15) When it became apparent that the parties could not marry in Finland, Defendant advised Plaintiff that they would have to leave for America immediately. Under the terms of his green card, he could not be out of the country past July 1, 1998. 16) Plaintiff and Defendant returned to the United States on June 28, 1998. 17) The parties were married in Harrisburg on July 6, 1998. - 3 - 99-2166 CIVIL TERM 18) Prior to the marriage, Defendant had advised Plaintiff that his impotency problem could be cured by medication injected into his penis. 19) After the marriage it became apparent that the injections for impotency did not work. 20) In late July of 1998 the parties went to Plaintiff's doctor in order to obtain a prescription for Viagra. The Viagra did not alleviate Defendant's impotency. 21) The parties attempted several times to have sexual intercourse. However, penetration was not possible because Defendant could not achieve an erection. 22) Immediately after the marriage, both parties went to New York and lived together for several weeks in Defendant's residence. 23) Plaintiff eventually returned to Mechanicsburg in order to take care of personal business. She lived in the apartment for which she had a long term lease. 24) Defendant lived and worked in New York until October 1998 at which time he came to Mechanicsburg to live with Plaintiff. 25) The parties lived together in Mechanicsburg until February 1, 1999. - 4 - 99-2166 CIVIL TERM 26) At that time the Defendant left the marital residence stating that he was going to Florida and then on to work in Arizona. 27) Defendant has lived in Florida with his ex-wife, her husband and son since the time of separation. DISCUSSION Plaintiff is requesting that we annul her marriage pursuant to Section 3305(a) (4) and/or 3305(a) (5)of the Divorce Code, which provide as follows- 3305. Grounds for annulment of voidable marriages (a) General rule.-The marriage of a person shall be deemed voidable and subject to annulment in the following cases- (4) Where either party to the marriage was at the time of the marriage and still is naturally and incurably impotent unless the condition was known to the other party prior to the marriage. (5) Where one party was induced to enter into the marriage due to fraud, duress, coercion or force attributable to the other party and there has been no subsequent voluntary cohabitation after knowledge of the fraud or release from the effects of fraud, duress, coercion or force. Based upon the facts set forth above, we cannot imagine what "fraud, duress, coercion or force" Plaintiff felt was used to induce her into the marriage. Furthermore, the parties voluntarily cohabited for several months after the marriage. - 5 - 99-2166 CIVIL TERM Therefore, Plaintiff's request for annulment, if it is to be granted, must rest upon the impotency grounds. Plaintiff has the burden of proving that the Defendant was not only impotent, but that he was "incurably impotent." We note at the outset that there is little appellate case law in Pennsylvania that deals with the subject of male impotence in the context of a proceeding for divorce or annulment. Our Superior Court has held that impotency in a divorce setting means the incapacity for sexual intercourse. Wilson v. Wilson, 126 Pa.Super. 423, 191 A. 666 (1937) . This definition includes the inability to accomplish vaginal intercourse, whether based on physical, psychological, or emotional factors. Manbeck v. Manbeck, 339 Pa. Super. 493, 489 A.2d 748(1985) . We are satisfied that Plaintiff has met her burden of proving that Defendant is impotent. She testified that, despite repeated attempts, the parties were unable to accomplish vaginal intercourse because of Defendant's inability to achieve an erection. However, we are equally satisfied that she has failed to sustain her burden of proving that Defendant's condition is incurable. She did not present any medical testimony regarding the nature of Defendant's condition or his - 6 - 99-2166 CIVIL TERM prognosis. We recognize that medical testimony is not always necessary to prove incurable impotency. In certain cases, it can be inferred from the facts and circumstances. ~ Manbeck v, Manb¢ck, supra, in which the court held that the failure to achieve intercourse throughout a twenty-four 1 (24) year marriage was such a case. In the instant case, the Plaintiff testified that the parties were unable to achieve intercourse during the seven months after marriage and before separation. However, she further testified that Defendant obtained medical attention in Finland prior to the marriage, which he, at least, felt cured his problem. While it became apparent after marriage that the prescribed treatment did not work, there is no evidence that the failure was permanent. Furthermore, Plaintiff and Defendant obtained a Viagra prescription from Plaintiff's local family doctor. However, we heard no evidence about Defendant's condition or his prognosis. We simply cannot conclude that a seven month inability to achieve intercourse, without more, is sufficient to ~ The M~nbeck Court specifically refused to adopt the New Jersey rule that provides for a presumption of incurable impotence if the wife remains a virgin for three (3) years during which time the parties cohabit. - 7 - 99-2166 CIVIL TERM establish that Defendant is incurably impotent.2 Therefore, we must deny Plaintiff's request for annulment. ORDER OF COURT AND NOW, this 4T___~H day of AUGUST, 1999, the Plaintiff's request for annulment of her marriage to Defendant is DENIED. Provided, however, that nothing herein shall prevent her from pursuing her action in divorce. By the Court, /s/Edward E. Gui do Edward E. Guido, J. R. Mark Thomas, Esquire For the Petitioner Matti Tarmo Paasu P.O. Box 716 Deland, Florida 32721 :sld 2 we are mindful that Plaintiff testified that she knew Defendant since the early 1990's and that they did not have intercourse because of his impotence. However, there is no evidence that the parties ever attempted premarital intercourse, nor are we prepared to assume that they did. Interestingly, if they did attempt premarital intercourse, Plaintiff's request for annulment would still fail because she could no longer argue that she did not know of his condition prior to marriage. Nor could she credibly maintain that she relied upon his assurances that his condition was cured. - 8 -