Rosenstiel v. Rosenstiel

Per Curiam. 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 30 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 543). 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 ease for foreign domicile is no 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 [881] 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, 192 N. Y. 238, 250-251; 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 at 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.