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HomeMy WebLinkAbout01-4927 CIVILRICHARD BASOM, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EDITH BASOM, DEFENDANT 01-4927 CIVIL TERM IN RE: PETITION TO DISMISS DIVORCE ACTION OPINION AND ORDER OF COURT Bayley, J., January 31, 2002:-- Plaintiff, Richard Basom, and defendant, Edith Basom, were married in Durham, North Carolina, on November 9, 1990. They moved to New York in December, 1998. Plaintiff separated from defendant in June, 1999, when he moved to Pennsylvania. Plaintiff has lived in Pennsylvania since June, 1999. Defendant has continued to reside in New York. On August 9, 2001, wife instituted a divorce action against husband in the Supreme Court of the County of Nassau in New York. That divorce action was personally served on husband on August 21, 2001, at 3:35 p.m.~ Ironically, husband had just initiated this Cumberland County divorce action on August 21, 2001, by filing a complaint in the Office of the Prothonotary at 2:52 p.m. Wife has entered a limited appearance by filing a petition seeking dismissal ~ Wife had previously instituted a divorce action against husband on April 11, 2000, in the Supreme Court of the County of Nassau in New York. That action was discontinued on January 9, 2001. 01-4927 CIVIL TERM based on her pending divorce action in Nassau County, New York, that was filed twelve days before husband filed this divorce action. In the New York action, wife seeks, inter alia, the equitable distribution of marital property. In this Cumberland County action, husband has made no collateral claims. He seeks a decree in divorce under the Divorce Code at 23 Pa.C.S. § 3301 (c) and 3301 (d). Section 3104 of the Divorce Code provides: (a) Jurisdiction.--The courts shall have original jurisdiction in cases of divorce and for the annulment of void or voidable marriages and shall determine, in conjunction with any decree granting a divorce or annulment, the following matters, if raised in the pleadings, and issue appropriate decrees or orders with reference thereto, and may retain continuing jurisdiction thereof: (1) The determination and disposition of property rights and interests between spouses, including any rights created by any antenuptial, postnuptial or separation agreement and including the partition of property held as tenants by the entireties or otherwise and any accounting between them, and the order of any spousal support, alimony, alimony pendente lite, counsel fees or costs authorized by law. (2) The future care, custody and visitation rights as to children of the marriage or purported marriage. (3) Any support or assistance which shall be paid for the benefit of any children of the marriage or purported marriage. (4) Any property settlement involving any of the matters set forth in paragraphs (1), (2) and (3) as submitted by the parties. (5) Any other matters pertaining to the marriage and divorce or annulment authorized by law and which fairly and expeditiously may be determined and disposed of in such action. (b) Residence and domicile of parties.--No spouse is entitled to commence an action for divorce or annulment under this part unless at least one of the parties has been a bona fide resident in this Commonwealth for at least six months immediately previous to the commencement of the action. Both parties shall be competent witnesses to prove their respective residence, and proof of actual residence within this Commonwealth for six months shall create a -2- 01-4927 CIVIL TERM presumption of domicile within this Commonwealth. (c) Power of court.--The court has authority to entertain an action under this part notwithstanding the fact that the marriage of the parties and the cause for divorce occurred outside of this Commonwealth and that both parties were at the time of the occurrence domiciled outside this Commonwealth .... (d) Foreign forum.--After the dissolution or annulment of a marriage in a foreign forum where a matter under subsection (a) has not been decided, a court of this Commonwealth shall have jurisdiction to determine a matter under subsection (a) to the fullest extent allowed under the Constitution of the United States. (e) Venue.~A proceeding for divorce or annulment may be brought in the county: (1) where the defendant resides; (2) if the defendant resides outside of this Commonwealth, where the plaintiff resides; (3) of matrimonial domicile, if the plaintiff has continuously resided in the county; (4) prior to six months after the date of final separation and with agreement of the defendant, where the plaintiff resides or, if neither party continues to reside in the county of matrimonial domicile, where either party resides; or (5) after six months after the dare of final separation, where either party resides. (Emphasis added.) In Betz v. Betz, 103 Pa. Super. 306 (1931), the Superior Court of Pennsylvania held that a county in Pennsylvania may assume "jurisdiction" in a divorce suit brought by one spouse even though a divorce suit between the same parties is pending in another county. The Court concluded that the spouse in the second suit may not be deprived of the right to secure a divorce unless a final decree in divorce is entered in the prior suit. The Court stated: The fear that there may be conflict of jurisdiction between courts is more fanciful than real. Neither court in any event would attempt to set aside the judgment entered by the order. When either case is finally decided, the other court can take cognizance of it and govern itself accordingly. -3- 01-4927 CIVIL TERM In Gantz v. Gantz, 338 Pa. Super. 528 (1985), the Superior Court of Pennsylvania, noting that Betz v. Betz, supra, was decided when counterclaims were not permitted in divorce, held that Divorce law must be interpreted to require consolidation of all issues in divorce so as to counter the "monumental waste of judicial time and litigant's money." The Court stated, "[w]e would urge that with all deliberate speed, the Pennsylvania Supreme Court Civil Rules Committee promulgate rules which provide guidance to the Bench and Bar as to appropriate considerations of venue consolidation, certification and bifurcation." Now, Pa. Rule of Civil Procedure 1920.6 covers venue when a divorce action is filed in a county of Pennsylvania after an initial divorce action has been filed in another county of Pennsylvania. However, neither the Rules of Civil Procedure nor the Divorce Code specifically address jurisdiction where a divorce action has been filed in Pennsylvania by one spouse after the other spouse has filed a divorce action in another state.: In Watson v. Watson, 243 Pa. Super. 23 (1976), the Superior Court of Pennsylvania stated: Our Supreme Court has recently set forth the standards for determining the validity of a sister state's divorce decree: "It is well established that once [a sister state] has granted a divorce decree that decree is presumptively valid in this jurisdiction. £senwien v. Commonwealth ex rel. Esenwien, 325 U.S. 279, 65 S. Ct. 1118, 89 L. Ed. 1608 (1945); Williams v. North Carolina (11), 325 U.S. 226, 65 S.Ct. 1092, : In contrast, in custody litigation, Pennsylvania, at 23 Pa.C.S. §§ 5341 to 5366, and New York, at McKinney's Domestic Relations Law §§ 75-a to 75-z, have adopted the Uniform Child Custody Jurisdiction Act. -4- 01-4927 CIVIL TERM 89 L.Ed. 1577 (1945). Such a decree is 'a conclusive adjudication of everything involved therein except the jurisdictional facts on which it is founded...,' Commonwealth ex re/. McVay v. McVay, 383 Pa. 70, 73, 118 A.2d 144, 146 (1955), and bona fide domicile is the essential jurisdictional fact necessary to give any decree extraterritorial effect. See Williams v. North Carolina (I), 317 U.S. 287, 297-98, 63 S.Ct. 207, 212-13, 87 L.Ed. 279, 285-86 (1942); Commonwealth ex re/. McVay v. McVay, supra; Commonwealth ex re/. Meth v. Meth, 156 Pa. Super. 632, 41 A.2d 752 (1945). In the case sub judice, husband, who has continually lived in Pennsylvania since June, 1999, and lives in Cumberland County, has jurisdiction in this divorce action under Section 3104(b) of the Divorce Code (he has been a bona fide resident of the Commonwealth for at least six months immediately previous to the commencement of this action), and has venue in Cumberland County under Section 3104(e)(2) (defendant resides outside of the Commonwealth and plaintiff resides in Cumberland County). Some state courts have held that the forum in which a divorce action is first initiated and where jurisdiction of the defendant is obtained will be permitted on principles of comity to complete its proceeding, and the forum in which the subsequent divorce is brought will stay the second suit on principles of comity. Simmons v. Superior Court, 96 Cal. App.2d 119, 214 P.2d 844 (1950); Evans v. Evans, 186 S.W.2d 277 (Tex. Cv. App. 1945). See Friedland v. Friedland, 295 F.Supp. 237 (D.C. Virgin Islands 1968). In New York, a statue at CPLR 3211(a)(4) allows for dismissal "on the ground that.., there is another action pending between the same parties for the same cause of action in the court of any state." Dismissal is discretionary, and in determining whether such discretion should be exercised the court looks to the greater -5- 01-4927 CIVIL TERM interest in and contacts with the litigation as between New York and the other state. Guccione v. Guccione, 417 N.Y.S.2d 633 (1979). We have not found a similar statute in Pennsylvania that would be applicable to a divorce action. In Federici v. Federici, 44 D. & C.3d 591 (Eric Co. 1986), the issue was whether a resident of Pennsylvania may maintain a divorce action in Pennsylvania after an action resulting in legal separation has been maintained in New York, but before the New York action has been converted into a divorce action. The trial court held that the action in Pennsylvania could be maintained where the spouse's action in New York was based on different grounds than the other spouse's action in Pennsylvania. The court stated, This does not mean that Pennsylvania is the proper jurisdiction to determine the related marital claims. This court will not consider any marital claims and leaves those related matters to the New York court to address in the pending New York action pursuant to the divisible divorce doctrine espoused in Starnbaugh v. Starnbaugh, 458 Pa. 147, 329 A.2d 483 (1974) .... This court also believes it should not entertain any marital matters aside from the divorce issue itself based upon the legal principle of comity. The legal separation action in New York has already resulted in at least a temporary order regarding economic issues, including support, maintenance and custody. In the case sub judice, we are of the view that husband, who has jurisdiction in Pennsylvania and venue in Cumberland County, should not be deprived of litigating this divorce action unless a final decree in divorce has been entered in the New York suit. Husband has made no collateral claims in this action so there is no issue of whether such claims should be stayed on the principle of comity. Accordingly, the -6- 01-4927 CIVIL TERM following order is entered. AND NOW, this dismiss this action for a divorce, IS DENIED. ORDER OF COURT day of January, 2002, the petition of defendant to By the Court, Carol J. Lindsay, Esquire For Plaintiff Edith Basom, Pro se P.O. Box 256 Huntington, NY 11743 :saa Edgar B. Bayley, J. -7-