Commonwealth ex rel. Alexander v. Alexander , 445 Pa. 406 ( 1971 )

Concurring Opinion bx

Mr. Justice Jones:

I concur in order to reveal an error committed by the trial court and to amplify the Majority’s alternative reason for affirming the support order.

In light of the well-established presumption that a valid marriage continues until the death of one of the parties or a divorce is proven, e.g., Schaefer v. Schafer, 189 Pa. Superior Ct. 120, 149 A. 2d 578 (1959), proof of appellant’s prior marriage to Loretta Vicks on July 5, 1952, in Pelham, Georgia, would normally carry great weight. Indeed, the Georgia marriage certificate, to which we are required to give full faith and credit, certainly evidences appellant’s prior marriage. Nonetheless, the trial court concluded, “[t]here is no testimony but a perjurer’s testimony that this respondent was actually married in 1952.” In my view, to ignore this document constitutes a clear abuse of discretion and an error of law.

However, in light of the conflicting presumptions of innocence in contracting a second marriage and validity of the second marriage, we have stated that, “[t]he real thrust of the several presumptions is to place the burden of proving the invalidity of the second marriage upon the person who claims such invalidity and to require proof of some nature that the first marriage was not dissolved by death or divorce at the time of the second marriage.” (Emphasis original) Watt Estate, 409 Pa. 44, 54, 185 A. 2d 781, 786 (1962). Although the Majority, unlike the trial judge, has recognized the Georgia marriage certificate, the Majority opinion turns upon appellant’s failure to sustain his burden of proving Loretta Vicks’ death or a divorce before appellant’s second marriage. Since appellant instituted and received a divorce a.v.m. from Loretta Vicks on August 9, 1967, it might be argued that appellant’s decision to obtain this divorce decree from the Philadelphia Court of Common Pleas, an unnecessary step if appellant was previously divorced from Loretta Vicks, constitutes “proof of some nature that the first marriage was not dissolved by . . . divorce at the time of the second marriage.” Insofar as appellant seeks to avoid support payments due to his allegedly bigamous behavior, I do not believe that this colorable argument is entitled to great weight.

For these reasons I am able to concur in the order of affirmance.

Mr. Chief Justice Belt joins in this concurring opinion.