Rosenbaum v. Rosenbaum

Froessel, J.

This is an action solely for an injunction. It was brought by plaintiff to enjoin defendant, and all others acting on his behalf, from proceeding with the prosecution of an action for divorce commenced by him against plaintiff herein in the First Civil Court, Juarez, Mexico. The Supreme Court at Special Term denied plaintiff’s motion for a temporary injunction and, upon defendant’s motion under rule 106 of the Rules of Civil Practice, dismissed the complaint. The Appellate Division has reversed the orders of Special Term, and in granting leave to appeal has certified the following question: “ Does the complaint herein state facts sufficient to constitute a cause of action for injunctive relief? ”

From the allegations of the complaint herein, which we must assume are true, the parties are husband and wife, they have resided continuously in New York, and were separated by a decree of the Supreme Court, New York County, which awarded plaintiff $9,000 a year for her support as well as for the support of the two infant children of the marriage. We must further treat as fact that defendant appeared in Mexico on November 5, 1954, solely for the purpose of signing divorce papers and not for the purpose of residing there, remaining at all times a resident and domiciliary of New York State, wherein he continues to reside and practice his profession, and that he has been physically present here since November 7, 1954. In the concluding paragraph plaintiff alleges that she “has no adequate remedy at law ’ ’.

The issue thus raised is, simply, whether the drastic remedy of injunction may be employed to restrain the prosecution of a concededly invalid divorce action in a foreign country, namely, Mexico. Insofar as sister State divorces are concerned, we have held in Hammer v. Hammer (303 N. Y. 481 [Florida divorce]) and in Garvin v. Garvin (302 N. Y. 96 [Virgin Islands divorce]) that upon the facts there presented an injunction may issue.

The rationale upon which such injunctions have been allowed is as follows: Since the Supreme Court of the United States, in 1942, decided Williams v. North Carolina (317 U. S. 287; see, also, 325 U. S. 226), and there overruled Haddock v. Haddock (76 App. Div. 620, affd. 178 N. Y. 557, affd. 201 U. S. 562), such sister State divorces granted to plaintiffs domiciled in such States — provided “ the requirements of procedural due process ” are met (317 U. S. 303) —are entitled to a presumption of validity under the “ full faith and credit ” provision of the Federal Constitution (art. IV, § 1). Moreover, in the Hammer case (supra), the husband submitted “ numerous facts tending to show that he has transferred his domicile to that [sister] State ” (278 App. Div. 399), and in the Garvin case (supra), which was an action for separation, there was an opposing affidavit by the husband’s attorney attempting to show that the Virgin Islands residence was not sham — factors lending added strength to the presumption of validity under the “ full faith and credit ” doctrine which would attach to resulting decrees. Each such divorce, therefore, has the semblance of being something other than a complete nullity, such as we have here, where defendant does not even deny plaintiff’s clear allegations. Hence in the Garvin case we held that an injunction may issue to save the rights of the nonappearing spouse and guard her against “ the heavy burden of striking down the prima facie effect of the foreign [sister State’s] court’s finding of residence ” (302 N. Y. 102).

However, we have never held that any such presumptive legality and validity must be accorded Mexican divorces — which are, of course, beyond the scope of ‘ ‘ full faith and credit ’ ’ (see Caldwell v. Caldwell, 298 N. Y. 146, 149; Gaskell v. Gaskell, 189 Misc. 504). Judgments of courts of foreign countries, we said in Martens v. Martens (284 N. Y. 363, 365), “ differ from judgments of courts of our sister States to which, by constitutional mandate, full faith and credit must be given. They must not contravene our public policy ”. Thus, under comity — as contrasted with full faith and credit — our courts have power to deny even prima facie validity to the judgments of foreign countries for policy reasons, despite whatever allegations of jurisdiction may appear on the face of such foreign judgments.

Our Legislature has expressly declined, in section 397 of the Civil Practice Act, to declare the “ effect ” of a judgment of a foreign country beyond authorizing our courts to receive such judgment as ‘1 evidence ’ ’ under section 395 of the Civil Practice Act — obviously because it recognized that the full faith and credit clause of our Federal Constitution was inapplicable to such judgments. It is therefore clear that the recognition of a foreign country judgment is far less certain, the judgment itself is far more assailable and vulnerable, than sister State judgments, and is subject to a test of policy. There is thus no significant basis for treating sister State and foreign country divorce judgments as identical in legal effect within this State.

In our opinion, the question as to whether an injunction may issue to restrain defendant from prosecuting this Mexican divorce action — a clear legal nullity under the allegations of plaintiff’s complaint, and of no more validity than a so-called mail-order divorce, from which we said ‘ ‘ no rights of any kind ' may spring” (Caldwell v. Caldwell, supra, p. 151) — is controlled by valid precedent in our court. Prior to the first Williams case (supra) (1942), when Haddock v. Haddock (supra) was still good law with respect to foreign decrees in general, a Florida divorce suffered virtually the same fate in New York State as does a Mexican decree of the type sought by defendant here. In 1940, we denied an injunction to a wife who sought to restrain her husband from proceeding with such a Florida divorce and whose allegations of nonresidence, as here, were not denied by the husband (Goldstein v. Goldstein, 283 N. Y. 146).

Virtually the same arguments which are presently raised by plaintiff concerning the alleged practical effects or annoyance which would be caused her by a legally invalid Mexican decree had theretofore been argued successfully before the Appellate Division, First Department, in Greenberg v. Greenberg (218 App. Div. 104 [1926]) and were submitted to this court by the plaintiff in the Goldstein case (supra) fourteen years later (see 283 N. Y. 147). However, we there rejected the reasoning of the Greenberg case (supra) and denied the injunction (283 N. Y. 148).

On the facts pleaded here, defendant is attempting to prosecute a divorcé in a foreign country which would not be entitled to “ full faith and credit ” in this State — precisely the sitúatian we faced with respect to sister State divorces as they were regarded prior to the Williams case (supra). What we decided under those circumstances is controlling here.

Plaintiff need not go to any foreign jurisdiction. If, in fact, defendant obtains a Mexican divorce and thereupon enters into a subsequent marriage, plaintiff need have no fear for her property rights and marital status under New York law (Imbrioscia v. Quayle, 278 App. Div. 144, affd. 303 N. Y. 841; Goldstein v. Goldstein, supra). A simple action for declaratory judgment, when all the facts may be fully developed, is at all times available to her (see Baumann v. Baumann, 250 N. Y. 382; Lowe v. Lowe, 265 N. Y. 197), the expenses of which may be assessed against defendant (Civ. Prac. Act, § 1169-a). As we said in the Baumann case (supra, p. 389), “ Under such circumstances the acts enjoined do not constitute legal wrongs, which invade substantial legal rights of the plaintiff that can be recognized in law and protected by injunction.” Since plaintiff thus has an adequate remedy under section 473 of the Civil Practice Act, equity should refrain from granting the drastic relief of injunction.

The orders of the Appellate Division should be reversed and those of Special Term reinstated, without costs. The question certified should be answered in the negative.