Miles, James R.

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INJUNCTION TO RESTRAIN HUSBAND FROM PROCEED-ING WITH FOREIGN DIVORCE ACTION DENIEDArpels v. Arpels9 App. Div. 2d 336, 193 N.Y.S.2d 754 (1959)This was an action by a wife to restrain her husband, a French citizen,from proceeding with a French divorce action in which personal jurisdictionover her had been obtained while she was visiting friends in France. Thewife had obtained in an earlier separation action in New York, a consentdecree incorporating a separation agreement entitling her to $18,000 a yearalimony and a $10,000 life insurance policy on her husband; however, thelatter provision would terminate if he obtained an absolute divorce in anyjurisdiction on grounds recognized in New York. The trial court issued atemporary restraining order against the husband upon the wife's allegationthat her husband was not domiciled in France, stressing the possible injusticeand hardship to the wife.' Defendant in fact kept in France a year roundresidence, staying in a hotel when in New York. The Appellate Division re-versed, dismissed the complaint and denied the wife's motion for a temporaryinjunction2 on the ground that any possible injury to the wife could beprevented when the decree was sought to be recognized in New York; point-ing out that it would be an extraordinary insinuation of domestic power intothe judicial action of a foreign nation to restrain citizens of a foreign nationfrom prosecuting actions in their own courts against parties who are notUnited States citizens.3The court relied on the different results which follow from refusing toenjoin a divorce action in a foreign country and the same action in a statecourt, where both actions are based on fraudulent domicile.4 A decree ofdivorce of a sister state must be accorded full faith and credit in anotherstate if the sister state had jurisdiction of the subject matter, meaning theplaintiff was domiciled there, in fact.3 The determination of domicile bythe sister state will be prima facie evidence of the fact of domicile.6 However,"the basis of recognition of judgments of foreign nations is comity; and thisis a recognition which depends, when the last word is said, upon the policyand sense of justice of the domestic court." 71 Arpels v. Arpels, 17 Misc. 2d 471, 187 N.Y.S.2d 100 (1959).2 Arpels v. Arpels, 9 App. Div. 2d 336, 193 N.Y.S.2d 754 (1959). The hardshipsand injustices include the necessity for her to go abroad to defend the action; the find-ing of her fault without her being able to defend herself except with difficulty; andthe use of her name by the second wife along with other marital rights.3 Supra note 2, at 758. The court emphasized the close connection between thehusband and France, noting that he probably was not domiciled in New York, thelack of any showing that her alimony rights would be harmed and that the separationagreement itself anticipated a possible later divorce action in any other jurisdiction.4 Supra note 2, at 757.5 Williams v. North Carolina, 317 U.S. 287 (1942); Williams v. North Carolina,325 U.S. 226 (1945).6 Supra note 5.7 Arpels v. Arpels, supra note 2, at 757. Accord Gould v. Gould 235 N.Y. 14, 138OHIO STATt LAW JOURNALNew York courts have continually enjoined a spouse who attempts adivorce action in a sister state whenever they feel that the domicile was asham.8 The reason being that a court has the power to restrain a personadmittedly within their jurisdiction from proceeding with a divorce based onfraudulent domicile in another jurisdiction. 9In the recent case of Rosenbaum v. Rosenbaum0 which involved ahusband who had gone to Mexico for one day to prosecute a divorce there,the court denied an injunction restraining the husband from proceeding withhis divorce action. The language of the decision is susceptible of interpreta-tion on either of two grounds; first, the distinction between recognition ofdecrees of a sister state and a foreign nation, ". .. Thus, under comity-as contrasted with full faith and credit-our courts have power to denyeven prima facie validity to the judgments of foreign countries for policyreasons, despite whatever allegations of jurisdiction may appear onthe face of such foreign judgments."'1 Another view of the Rosenbaumdecision relies on the conceded invalidity of the Mexican divorce and therationale that it was worthless and hence could not harm the wife at all.This latter view of Rosenbaum, which the dissent in the principal caseadopts,' 2 is illustrated by the following: "The issue . . . is, simply whetherthe drastic remedy of injunction may be employed to restrain . . . a con-cededly invalid divorce action in a foreign country . . . ... ; ' and that thedecree was "of no more validity than a so-called mail-order divorce .... ,14The court reached a proper result in the principal case by refusing toenjoin even temporarily a French citizen from proceeding with a Frenchdivorce action against his wife, a foreign citizen, even though the Frenchcourt had obtained personal jurisdiction over her. The distinction betweendecrees of sister states under the full faith and credit clause and foreignnation decrees can not be pushed too far, however. A court will refuseN.E. 490 (1923). For a general discussion of when state courts will refuse to recognizeforeign divorce decrees, see I Rabel, The Conflict of Laws, A Comparitive Study, 500et seq. (2d ed. 1958).8 Hammer v. Hammer, 303 N.Y. 481, 104 N.E.2d 864 (1951); Garvin v. Garvin,302 N.Y. 96, 96 N.E.2d 721 (1951).9 Restatement, Conflict of Laws § 96 (Tentative draft no. 4, 1957) "A state canforbid a person, who is subject to its jurisdiction, to do an act in another state"; Clark,Equity § 13 (1954); McClntock, Equity § 172 (2d ed. 1948); See Annot., 54 A.L.R.2d1240 (1957); Annot., 128 A.L.R. 1467 (1940).10 309 N.Y. 371, 130 N.E.2d 902 (1955). Noted in 42 Iowa L. Rev. 326 (1957);69 Harv. L. Rev. 1327 (1956); 7 Syracuse L. Rev. 335 (1956); 30 St. John's L. Rev.290 (1956) ; 41 Cornell L.Q. 728 (1956). Speculation in these notes included the ques-tion as to the result in a case like the principal one where it was unclear whether therewas a valid domicile; see e.g., 26 Fordham L. Rev. 327 (1957). The Rosenbaum casewas followed in New York in Vesci v. Vesci, 15 Misc. 2d 791, 181 N.Y.S.2d 221 (1958);Simone v. Simone, 11 Misc. 2d 255, 173 N.Y.S.2d 890 (1958).11 Rosenbaum, supra note 10, at 903.12 Arpels, supra note 2, at 762.13 Rosenbaum, supra note 10, at 903.14 Rosenbaum, supra note 10, at 904.[Vol. 21RECENT DEVELOPMENTSrecognition of a foreign nation decree when the decree is obnoxious to thepublic policy of the state. 15 However, in a state where divorce is permitted,the public policy argument reduces itself simply to the question of whetherthere was due notice and a valid domicile in the other jurisdiction.There is no valid point in relying as a distinction upon the name ofan inquiry, either jurisdiction in other state decrees or public policy inforeign nation decrees, when the same question must be answered; was thespouse domiciled in the other jurisdiction? This is so because the foreigndecrees are in fact nearly always recognized unless the wife can come for-ward and show her spouse was not domiciled in the other jurisdiction, as inMexican mail-order divorces.' 6 In fact, the wife has not been allowed to at-tack the jurisdiction of the foreign court when she appeared there and failedto contest the action.17Both Rosenbaum and the principal case indicate that the New Yorkcourts are quite aware of their obligation to foreign nations not to interfereprematurely in foreign nation divorce actions. The court in Rosenbaum hasshown they will not interfere when the domicile is a sham, nor will theyinterfere, as in the principal case, when domicile is in dispute. The loss ofcertain matrimonial rights which result from a divorce abroad such as theuse of her name by a second wife and the loss of her husband's companion-ship as well as the hardship of defending the action abroad are, in thecourt's view, not as important considerations as respect and trust of foreigncourts and countries. The New York courts will in the future, regardlessof domicile, simply refuse to enjoin a foreign nation divorce. The decisionwas a sound one because of the admirable restraint of the court in refusingto interfere in a foreign tribunal unless clear injury of a substantial natureis shown. Clear injury of a substantial nature is not likely to be shown inthe future either, because property rights can be protected by refusing recog-nition of the decree in so far as alimony rights are concerned. A state'smatrimonial and divorce policy, while important in that state, should notstray beyond that state's borders or legitimate interests-especially on theinternational scene-where respect and trust for each nation's courts shouldbe paramount.James R. Miles15 Schnieder v. Schnieder, 232 App. Div. 71, 248 N.Y. Supp. 802 (1931); Gould v.Gould, 235 N.Y. 14, 138 N.E. 490 (1923). cf. Martens v. Martens, 284 N.Y. 363, 31N.E.2d 489 (1940).16 See cases collected in Grossman, New York Law of Domestic Relations § 967et seq. (1947 plus 1959 supp.).17 Schnieder v. Schnieder, supra note 15.

Injunction to Restrain Husband from Proceeding with Foreign Divorce Action Denied

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Injunction to Restrain Husband from Proceeding with Foreign Divorce Action Denied

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