Cunningham v. Cunningham

• Decision Date: 10 March 1964
• Docket Number: No. 130106J,130106J
• Court: Connecticut Superior Court
• Parties: Janice CUNNINGHAM v. Edward CUNNINGHAM et al. . Hartford County

Page 734

200 A.2d 734

25 Conn.Supp. 221

Janice CUNNINGHAM v. Edward CUNNINGHAM et al.

No. 130106J.

Superior Court of Connecticut. Hartford County.

March 10, 1964.

Sidney L. Rosenblatt, Hartford, for plaintiff.

James N. Egan and Peter Nichols, Hartford, for defendant.

COTTER, Judge.

The question presented is whether or not this court should proceed with a divorce action which the defendant husband has been restrained and enjoined from prosecuting by an order of the District Court of the state of Nevada.

On May 24, 1962, Mrs. Cunningham brought an action for divorce against her husband in this court in Connecticut. He entered his appearance on June 7, 1962. On June 22, 1962, the Connecticut court ordered that custody pendente lite of the minor child be awarded to Mrs. Cunningham with reasonable visitation to the defendant and that he pay her $15 a week for the care, maintenance and support of the minor child and $150 as counsel fees. New counsel appeared for Mrs. Cunningham on May 1, 1963, and on May 24, 1963, at the request of Mrs. Cunningham's counsel, the orders were modified so that support for the minor child pendente lite was increased to $17.50 a week and the right of reasonable visitation was changed. On September 20, 1963, the defendant filed his answer and cross complaint. The matter was claimed for the uncontested list on September 13, 1963, and on January 22, 1964, new counsel appeared for Mrs. Cunningham. On June 25, 1963, counsel for the parties, at their request, agreed in writing as follows: " * * * the Plaintiff is permitted to leave the state for a period of two weeks with the minor child; and in turn, the Defendant will have this same privilege should he so desire during this summer vacation period." Thereafter, counsel for the plaintiff filed an answer to the cross complaint and the matter was set down on the contested divorce trial list and was assigned for trial approximately two weeks ago.

Mrs. Cunningham, in accordance with the agreement, left the state of Connecticut with her child and has not returned. On October 24, 1963, Mrs. Cunningham, who was evidently then residing in the state of Nevada, instituted suit for divorce against her husband in Nevada. On December 3, 1963, in accordance with instructions of counsel whom he had retained in Nevada, the defendant answered the complaint and counterclaimed against the plaintiff there. Thereafter, Mrs. Cunningham filed an affidavit with the Nevada court together with a motion asking that a temporary order and injunction issue prohibiting and restraining the defendant pendente lite from instituting any further proceeding and from all further appearances in the Connecticut case. This motion was granted ex parte based upon the affidavit of Mrs. Cunningham filed with the court. Mrs. Cunningham's counsel now seeks to "enforce restraining order" of the Nevada court. In support of this motion to enforce the restraining order issued by the Nevada court, plaintiff's counsel asks that the court "give full faith and credit to the Nevada Court restraining order dated February 12, 1964 and that this court restrain and enjoin Edward Cunningham and his agents or attorneys from further proceedings in this Connecticut divorce action."

Usually, in matters involving foreign divorces, the question is one of full faith and credit if it concerns the decree of a sister state. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; see Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577; Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (wherein the decree is recognized and enforced by virtue of article 4, § 1, of the United States constitution, and this applies even though the recognition of the decree would offend the public policy of the local sovereign); Nappe v. Nappe, 20 N.J. 337, 120 A.2d 31. In the case of a foreign nation the question generally is one of comity. Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95; Adamsen v. Adamsen, 151 Conn. 172, 178, 195 A.2d 418; see 27B C.J.S. Divorce, §§ 327-329. In the case where a decree has been entered, it would make no difference as to which case was brought first. The first divorce decree would be entitled to full faith and credit. Atkins v. Atkins, 386 Ill. 345, 358, 54 N.E.2d 488. So that, at this stage in the proceeding, the effect to be given to the injunction is of greater significance.

Connecticut, having first obtained jurisdiction of the parties and the res, should retain control in a proper case without interference from another tribunal except in unusual circumstances. Harkin v. Brundage, 276 U.S. 36, 48 S.Ct. 268, 72 L.Ed. 457; see 14 Am.Jur. 438, Courts, § 245. The injunction is only as to the parties and not the court. This court may proceed despite the injunction and render a valid decree. Kleinschmidt v. Kleinschmidt, 343 Ill.App. 539, 99 N.E.2d 623. While this court may in its discretion recognize the injunction as a matter of comity, the equities appear to be in favor of the defendant husband in this court. Kahn v. Kahn, 325 Ill.App. 137, 59 N.E.2d 874; see 17A Am.Jur., Divorce and Separation, § 1004. The equities of the situation do not demand that this court relinquish its authority where there is no question of jurisdiction or of natural justice. James v. Grand Trunk Western R. Co., 14 Ill.2d 356, 152 N.E.2d 858; note, 74 A.L.R.2d 828. Even though an injunction may issue against a suit in another state or country for divorce or separation; Rosenbaum v. Rosenbaum, 309 N.Y. 371, 130 N.E.2d 902, 54 A.L.R.2d 1232; annotated in 54 A.L.R.2d 1240; Usen v. Usen, 136 Me. 480, 13 A.2d 738, annotated in ...