Rosenstiel v. Rosenstiel
| Decision Date | 06 March 1962 |
| Citation | 15 A.D.2d 880,225 N.Y.S.2d 912 |
| Parties | Susan L. ROSENSTIEL, Plaintiff-Appellant, v. Lewis S. ROSENSTIEL, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Louis Nizer, New York City, of counsel (Walter S. Beck, New York City, on the brief; Phillips, Nizer, Benjamin, Krim & Ballon, New York City, attorneys), for plaintiff-appellant.
Sol. A. Rosenblatt, New York City, of counsel (Benjamin A. Javits and Julian B. Rosenthal, New York City, on the brief; Javits & Javits, New York City, attorneys), for defendant-respondent.
Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and EAGER, JJ.
Plaintiff wife in this action for a permanent injunction seeks to enjoin, pendente lite, the prosecution by defendant husband of a divorce action in Connecticut, the husband's alleged domicile since 1936. Special Term in a well-reasoned opinion detailed the applicable law and relevant facts. The wife's motion was denied and she appealed.
The husband, a wealthy man, is 70 years of age and this, his fourth marriage, occurred when he was 65 years old. The wife is thirty years younger, and had been divorced in Mexico, two years before the present marriage in 1956. They physically separated in 1960. There are no children.
For the most part, it suffices to rest upon the opinion of Mr. Justice Greenberg at Special Term. 32 Misc.2d 542, 225 N.Y.S.2d 905.
It may be added, however, since the granting of a temporary injunction is discretionary, that discretion should not be exercised in a complex of facts where the indicators support the fact of Connecticut domicile as strongly as they do here. That there is a case for foreign domicile is not ground for enjoining litigation there. On the contrary, it is the absence of foreign domicile that is the basis for enjoining a New York domiciliary. Domicile is a matter of intention and if the intention is real and not falsified, the coexisting fact of other residences is immaterial (Restatement, Conflict of Laws, §§ 18, 24; 17 N.Y.Jur. Domicil and Residence, § 6). Nor is the motive for intentional fixing of domicile significant so long as the intended domicile is genuinely implemented (Matter of Newcomb's Estate, 192 N.Y. 238, 250-251, 84 N.E. 950, 954; Restatement, Conflict of Laws, § 22.) The husband concededly claimed Connecticut as his domicile for voting, taxation, licensing and other purposes for 20 years prior to the instant marriage.
Moreover, the neighboring state of Connecticut in this case is not a choice of domicile newly made for purposes of matrimonial litigation--often an occasion for enjoining the husband who leaves the state and all his affairs solely for the purpose of avoiding his matrimonial obligations. Here, throughout the marriage, before separating, each of the parties used the Connecticut estate as the marital residence for occupancy and as the home of record. It is therefore no inordinate burden for the wife to defend the action in Connecticut. To top it off, the wife is quite free to dispute the fact of domicile in the Connecticut courts, and those courts are, prima facie, the proper ones to determine the issue, Connecticut being the husband's domicile of record for a quarter of a century and the wife's domicile of record all during the marriage.
In exercising its discretion the court should recognize that in cases like this the wife's litigation in New York is often not so much to protect her matrimonial status as to strengthen her money demands as the bargaining table.
Accordingly, the order denying plaintiff's motion for a temporary injunction should be affirmed in all respects with costs to defendant-respondent.
Order, entered on January 5, 1962, affirmed with $20 costs and disbursements to the respondent.
All concur except McNALLY, J., who dissents in a dissenting opinion.
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Rosenstiel v. Rosenstiel
...for a permanent injunction was denied. Rosenstiel v. Rosenstiel, 32 Misc.2d 542, 225 N.Y.S.2d 905 (Sup.Ct.N.Y.Co.), aff'd, 15 A.D.2d 880, 225 N.Y.S.2d 912 (1st Dep't), appeal denied, 15 A.D.2d 904, 225 N.Y.S.2d 915, motion denied, 11 N.Y.2d 882, 227 N.Y.S.2d 919, 182 N.E.2d 407 (1962). Ther......
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...192 N.Y. 238, 250--252, 84 N.E. 950, 954--955; see, also, Matter of Chrisman, 43 A.D.2d 771, 350 N.Y.S.2d 468; Rosenstiel v. Rosenstiel, 15 A.D.2d 880, 881, 225 N.Y.S.2d 912, 913, mot. den., 11 N.Y.2d 882, 227 N.Y.S.2d 919, 182 N.E.2d Residence for purposes of the Social Services Law, then,......
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...of the parties and the plaintiff is using our courts to 'strengthen her money demands at the bargaining table' (see Rosenstiel v. Rosenstiel, 15 A.D.2d 880, 225 N.Y.S.2d 912). This is a marriage in which New York courts have a vital interest. To enjoin the defendant from proceeding with his......
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Browne v. Browne
...of the parties and the plaintiff is using our courts to 'strengthen her money demands at the bargaining table' (see Rosenstiel v. Rosenstiel, 15 A.D.2d 880, 225 N.Y.S.2d 912). This is a marriage in which New York courts have a vital interest. To enjoin the defendant from proceeding with his......