Dominick v. Dominick

• Decision Date: 22 August 1960
• Citation: 26 Misc.2d 344,205 N.Y.S.2d 503
• Parties: Mary DOMINICK, Plaintiff, v. Nicholas DOMINICK, Defendant.
• Court: New York Supreme Court

Page 503

205 N.Y.S.2d 503

26 Misc.2d 344

Mary DOMINICK, Plaintiff, v. Nicholas DOMINICK, Defendant.

Supreme Court, Special Term, Nassau County, Part I.

Aug. 22, 1960.

Harris Birnbaum, Brooklyn, for plaintiff.

Nathaniel Taylor, Mineola, for defendant.

BERNARD S. MEYER, Justice.

To protect the interests of the child of the marriage of the parties to this separation action, this decision will be published under the above fictitious names and, pursuant to Rules of Civil Procedure, Rule 278, the file will be ordered sealed, to be exhibited only to the parties to the action or someone interested on order of the Court.

Plaintiff wife prior to December 16, 1950 was an unmarried American civilian employed in Germany; defendant husband, an unmarried Army officer stationed there. Having met in 1949, they had thereafter attended various social functions together, and had had sexual relations a number of times before, in August 1950, plaintiff discovered that she was pregnant. Soon thereafter plaintiff resigned her job and went to live with friends in another city in Germany. Confronted with plaintiff's situation, defendant refused to marry her, and only after the intervention of an Army chaplain and after having made clear that he would not live with plaintiff and that he was marrying her only for the sake of the child and to spare plaintiff disgrace did he consent to do so. On December 16, 1950, the parties were married in the presence of the friends with whom plaintiff was living, went with those friends to a hotel for dinner and then parted. Never after the marriage did they live together or have sexual relations; in fact only once thereafter, on the day plaintiff left with her friends to live in France, did they see each other. On March 3, 1951, the child was born in France. In February 1951, an Army allotment of $105 per month to plaintiff was begun. The allotment was increased in October 1951 to $225 per month and continued at that figure until increased in 1956 after the order, hereafter referred to, made by Mr. Justice Christ. Plaintiff remained in France until her return, on Army travel orders issued to her as the wife of defendant, to New York on March 3, 1952. The orders showed as the address to which she was returning a Nassau County address at which plaintiff had resided for 33 years before she went to Germany. In returning to her former home she was simply returning home; she never asked that defendant live with her after the ceremony and he never asked her to do so.

In May 1956, plaintiff received in the mail a copy of a complaint reciting that defendant resided in Kentucky, that plaintiff was a non-resident, that the parties had resided apart continuously for more than five years, and praying for an absolute divorce. By summons and complaint dated June 1, 1956 and served on defendant within the state of New York on June 4, 1956, plaintiff began this action for a separation based on abandonment and non-support, and for a permanent injunction against defendant proceeding with his Kentucky action, plaintiff alleging that he was in fact a resident of Nassau County. Defendant who had resided with his parents in Nassau County prior to his entry into military service in 1941, was present in New York at the time he was served, on leave because of the recent death of his father. Plaintiff never appeared in the Kentucky action. Defendant, through a mail submission by his Kentucky attorney, contested the jurisdiction of this Court to entertain plaintiff's action, and pleaded the prior action pending in Kentucky. Mr. Justice Christ, finding 'that the plaintiff has shown sufficient to entitle her to the relief sought by way of temporary injunction' and noting that 'The final determination of this question will have to await a trial' entered an order on July 5, 1956, enjoining defendant from proceeding in his Kentucky action, awarding plaintiff temporary alimony of $250 per month and a counsel fee of $400. The order was brought to defendant's attention both by attempted service upon him by a Deputy Sheriff in Kentucky and through Army channels, and in September 1956, the monthly allotment to plaintiff was increased to $250, where it remained until terminated in October 1958.

Notwithstanding the temporary injunction, defendant proceeded with the Kentucky action and on October 11, 1958, was awarded an absolute divorce by the Kentucky court. Defendant's answer sets up the Kentucky decree as an affirmative defense. Plaintiff argues, however, that the Kentucky court was obliged to give full faith and credit to the July 5, 1956 temporary injunction order, and that the Kentucky decree having been obtained in violation of that order may not be received in this action. The argument does not withstand analysis, however.

The Full Faith and Credit Clause, U.S.Const. art. 4, § 1, requires that a state give to the decree or judgment of another state only such force and effect as it has in the state in which it was rendered, Matter of Kelly's Estate, 285 N.Y. 139, 145, 33 N.E.2d 62, 65; Langerman v. Langerman, 303 N.Y. 465, 473, 104 N.E.2d 857, 860; Parker v. Hoefer, 2 N.Y.2d 612, 616, 162 N.Y.S.2d 13, 16, certiorari denied 355 U.S. 833, 78 S.Ct. 51, 2 L.Ed.2d 45; 28 U.S.C. § 1738. It has long been the settled law of New York that the 'granting or refusal of a temporary injunction does not constitute the law of the case or an adjudication on the merits, and the issues must be tried to the same extent as though no temporary injunction had been applied for,' Walker Memorial Baptist Church v. Saunders, 285 N.Y. 462, 474, 35 N.E.2d 42, 47; Federal Waste Paper Corp. v. Garment Center Capitol, 268 App.Div. 230, 51 N.Y.S.2d 26, affirmed 294 N.Y. 714, 61 N.E.2d 451; Bond Stores, Inc. v. Turner, 262 App.Div. 417, 29 N.Y.S.2d 82; 10 Carmody-Wait, Cyclopedia of New York Practice, 558, Injunction § 25. Further an order restraining defendant pendente lite from instituting or continuing with a foreign action does not restrain the foreign court, but acts solely on the defendant. McKendry v. McKendry, 280 App.Div. 440, 114 N.Y.S.2d 101. It follows that the Full Faith and Credit Clause can never be a bar to the trial in a foreign court of the facts on which a New York temporary injunction is based. Restatement, Conflict of Laws § 450, Comment b; James v. Grand Trunk Western Railroad Company, 14 Ill.2d 356, 152 N.E.2d 858, certiorari denied 358 U.S. 915, 79 S.Ct. 288, 3 L.Ed.2d 239.

Nor does defendant's violation of the injunction order render the Kentucky decree ineffectual, if his Kentucky domicile was bona fide. The consequence of a violation of a restraining order was deliberately left open in Edell v. Edell, 284 App.Div. 758, 134 N.Y.S.2d 758 and McKendry v. McKendry, supra. While Palmer v. Palmer, 184 Misc. 291, 53 N.Y.S.2d 784, 785, refused to permit defendant to serve a supplemental answer setting up a foreign divorce obtained in violation of a restraining order and Edell v. Edell, 6 Misc.2d 631, 159 N.Y.S.2d 855, refused to permit plaintiff husband to discontinue a New York action after he obtained a foreign divorce in violation of the order which the Appellate Division had previously upheld, both can be distinguished from the present case, the Palmer case on the Court's finding that 'defendant herein was a resident of this State when the action was commenced' and the Edell case because plaintiff, having initiated the New York divorce action, thereafter went to Florida. If the domicile of a defendant has actually been removed to a foreign state, our Courts may not interfere with his prosecution of a divorce action there, Hammer v. Hammer, 278 App.Div. 396, 399, 105 N.Y.S.2d 812, 815, affirmed 303 N.Y. 481, 104 N.E.2d 864; McDonald v. McDonald, 182 Misc. 1006, 52 N.Y.S.2d 385; Bauer v. Bauer, 16 Misc.2d 560, 182 N.Y.S.2d 59; 54 A.L.R.2d 1250, and case cited in that annotation, and consequently will not issue a judgment restraining defendant from ever thereafter prosecuting an action for divorce in any state other than New York, Sivakoff v. Sivakoff, 280 App.Div. 106, 111 N.Y.S.2d 864; Sandhouse v. Sandhouse, 12 Misc.2d 308, 172 N.Y.S.2d 413. That being so, a temporary injunction order granted to 'maintain the status quo until the bona fides of the husband's alleged [foreign] domicile is determined,' Hammer v. Hammer, 278 App.Div. at page 399, 105 N.Y.S.2d at page 815, must fall when the domicile is shown to be bona fide. See Weisman v. Weisman, Sup., 133 N.Y.S.2d 701, n. o. r.

But, it is argued, solicitude for the protection of martial rights of New York citizens and particularly the desire to guard the non-appearing spouse against 'the heavy burden of striking down the prima facie effect of the foreign court's finding of residence,' Garvin v. Garvin, 302 N.Y. 96, 102, 96 N.E.2d 721, 723; see Rosenbaum v. Rosenbaum, 309 N.Y. 371, 130 N.E.2d 902, 54 A.L.R.2d 1232, mandate that, at very least, a defendant who violates a temporary restraining order bear the burden of proving his foreign domicile. It is doubtful that the reasoning of the Special Term and Trial Term Justices in Palmer v. Palmer, supra; Edell v. Edell, 6 Misc.2d 631, 159 N.Y.S.2d 855, and McKendry v. McKendry, 202 Misc. 312, 318-319, 108 N.Y.S.2d 297, 303-304, reversed on another ground 280 App.Div. 440, 114 N.Y.S.2d 101, if accepted by the Appellate Courts, will be extended to include reversal of the procedural rule which normally imposes on plaintiff the burden of proving the elements of an action for a permanent injunction (see dissent of Chief Judge Conway in Rosenbaum v. Rosenbaum, supra). If not, the instant plaintiff's failure to introduce on her direct case any proof concerning defendant's domicile requires dismissal of the action for a permanent injunction, Moscowitz v. Moscowitz, 256 App.Div. 955, 10 N.Y.S.2d 147, and that dismissal carries with it the temporary injunction.

Whatever may have been the procedural result had plaintiff, having...