Horne v. Horne , 191 Pa. Super. 627 ( 1960 )

Dissenting Opinion by

Weight, J.:

I simply cannot go along with the conclusion that this plaintiff acquired a Pennsylvania domicile. Our courts have been vigilant to protect Pennsylvania wives from attempts by their husbands to evade support orders by obtaining divorces out of the state. See Davidsen v. Davidsen, 175 Pa. Superior Ct. 123, 103 A. 2d 296; Commonwealth ex rel. McVay v. McVay, 177 Pa. Superior Ct. 623, 112 A. 2d 649; affirmed 383 Pa. 70, 118 A. 2d 144. Conversely, we should he just as vigilant to protect this appellant, who has secured an order of support in the State of New York, from the attempt of her husband to impose upon our jurisdiction. I am not so naive as to overlook the inference which necessarily arises from the fact that plaintiff, together with the purported landlady in whose New York home he continues to reside, took title to real estate in Philadelphia in the name of husband and wife. It is significant that plaintiff did not call the real estate agent as a witness. See Orsuto v. Orsuto, 171 Pa. Superior Ct. 532, 91 A. 2d 284; Abrams v. Crown, 178 Pa. Superior Ct. 407, 116 A. 2d 331.

In a divorce proceeding it must affirmatively appear that there has been a clear intention on the part of the plaintiff to abandon a former residence and to make Pennsylvania his permanent domicile, coupled with an actual bona fide residence for one year within this Commonwealth: Gearing v. Gearing, 83 Pa. Superior Ct. 423; Alburger v. Alburger, 138 Pa. Superior Ct. 339, 10 A. 2d 888. Far from establishing plaintiff’s domicile in Pennsylvania, the record clearly discloses that plaintiff is still a resident of the State of New York, which is his place of employment. He is lieénsed to drive in New York, where his automobile is registered. He continues to engage extensively in social, community and fraternal activities in New York, whereas he belongs to no organizations whatever in Philadelphia. He does not vote in Philadelphia, and he pays no Philadelphia wage tax. In fact the master found that plaintiff’s residence here was of a “transient character”, and reached the conclusion that domicile was éstablished “after much hesitation”.

I would reverse the decree below for want of jurisdiction. Of. Chidester v. Chidester, 163 Pa. Superior Ct. 194, 60 A. 2d 574.

Rhodes, P. J., joins in this dissenting opinion.