Fenaughty v. Fenaughty

Kane, J. P., and Weiss, J.,

dissent and vote to affirm in the following memorandum by Weiss, J. Weiss, J. (dissenting). We respectfully dissent. While not unmindful of the reluctance of our courts to enjoin the prosecution of a divorce action in a sister State (Arpels v Arpels, 8 NY2d 339, 341), in our view, the circumstances of this case warrant the granting of plaintiff’s cross motion for temporary relief (see Gersten v Gersten, 61 AD2d 745; Browne v Browne, 53 AD2d 134, app dsmd 40 NY2d 917). This clearly is not an instance where plaintiff has sought recourse to our courts merely to “strengthen her money demands at the bargaining table” (Rosenstiel v Rosenstiel, 15 AD2d 880, 881). Plaintiff was born and educated in New York. The parties were married in New York and, except for the five months spent together in Arkansas and certain periods of informal separation, lived here as husband and wife. Plaintiff has further indicated that the move to Arkansas was never intended to be permanent, but only for the two years necessary to fulfill defendant’s contractual obligations with the Federal Department of Public Health Services (see Garvin v Garvin, 302 NY 96, 103). Moreover, to enjoin the defendant from proceeding with his Arkansas action during the pretrial residency hearing would work no great hardship upon him (see Browne v Browne, supra, p 139; Howes v Howes, 108 Misc 2d 146, 147-148). In our view, Special Term properly exercised its discretion in granting the requested injunctive relief.