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ROSENSTIEL v. ROSENSTIEL

December 14, 1967

Susan L. ROSENSTIEL, Plaintiff,
v.
Lewis S. ROSENSTIEL, Defendant


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

On May 12, 1967, at 4:25 P.M., a judge of this court signed ex parte an Order to Show Cause in the within matter which provided inter alia :

 
[That] pending the hearing and determination of plaintiff's motion for a temporary injunction herein, the defendant LEWIS S. ROSENSTIEL, and his attorneys, agents and all other persons acting for or on his behalf, be and they hereby are - pursuant to Rule 65(b) of the Federal Rules of Civil Procedure - restrained from prosecuting, going forward or otherwise taking or procuring to be taken or entered - by default - any Judgment or Decree of Divorce against the plaintiff herein, in the defendant's pending action for a divorce instituted by him in the Circuit Court of the 11th Judicial Circuit of Florida, in and for Dade County, Florida, on or about March 24, 1967 * * *

 This temporary relief was sought in conjunction with plaintiff's motion for a preliminary injunction seeking the same relief. At the foot of the order, it was stated that no notice to defendant or his counsel was given

 
because of the danger that after notice defendant might enter [a] final decree in the Florida action. The injury is that entry of the Judgment in Florida before hearing the motion to this Court would render academic the prayer for injunctive relief in the complaint here and for the same reason the injury would be irreparable.

 However, unbeknownst to the Court (and obviously without plaintiff's knowledge as well), a Final Judgment of Divorce was obtained by defendant against plaintiff in the Florida action at 11:28 A.M. on Friday, May 12, 1967, approximately five hours before the temporary restraining order was granted. This Judgment, while filed on the date rendered, was not "entered" or "recorded" in the Circuit Court Minute Book until the following Monday, May 15, 1967.

 The aforementioned order to show cause, originally scheduled to be heard on May 16, 1967, was adjourned from time to time at the request of the parties until oral argument was eventually heard by this Court on June 13, 1967. Accordingly, by the time this case came on to be heard before me, plaintiff's original motion for a preliminary injunction had become moot. However, at oral argument and in plaintiff's papers submitted in support of the motion, plaintiff seeks to convert the original prohibitory injunction into a mandatory one requiring defendant to undo the acts admittedly completed and to punish defendant and/or his attorneys, agents or others acting in his behalf for non-compliance with the temporary restraining order. In conjunction with the latter issue, plaintiff served a notice to take the depositions of defendant's New York and Florida counsel and of the Honorable E. B. Leatherman, Clerk of the Circuit Court of the 11th Judicial Circuit, Dade County, Florida, and Fern E. Golding, Deputy Clerk of the same court. These depositions having been completed, the parties have, with the permission of the Court, filed further extensive evidentiary briefs and papers in support of their respective positions herein.

 The questions presented involve circumstances surrounding the Florida proceedings and, perforce, the jurisdiction of this Court to issue the temporary restraining order or entertain the underlying action instituted herein by plaintiff. Said action was commenced contemporaneously with the original motion of May 12, 1967 and seeks a declaratory judgment pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1964) to determine plaintiff's rights under a certain ante-nuptial agreement entered into on the eve of their marriage and later amended. Additionally, plaintiff seeks a permanent injunction similar to the preliminary injunction requested in her original motion papers herein, and attorney's fees of $100,000.

 Although the Rosenstiel marital discord has received an extensive airing in the public press and in legal proceedings and periodicals, a brief review of the pertinent facts may serve as a useful backdrop to the present dispute.

 Plaintiff wife and defendant husband were married in New York City on November 30, 1956. This was plaintiff's second marriage, her prior marriage having been dissolved by a decree of absolute divorce in Mexico on October 2, 1954. The ante-nuptial agreement, as amended, provided that it should be interpreted and governed by New York law, and further provided that plaintiff's right to receive any benefits thereunder was subject to defeasance in the event she predeceased the defendant or in the event that they were "divorced or separated by decree of a court of competent jurisdiction or separated by written agreement * * *." prior to the death of defendant. (Exh. A to Complt. at 10.)

 By October of 1961, the marital relationship appears to have cooled considerably and defendant allegedly demanded that plaintiff agree to a divorce on his terms, which she refused to do, whereupon she claims he abandoned her. On November 9, 1961, defendant instituted an action in Connecticut against her (a) for an annulment on the ground that he was fraudulently induced to marry her, and (b) for a divorce on the grounds of her cruel and inhuman treatment of him. Thereafter, on January 3, 1962, defendant amended his complaint in the Connecticut action to include an additional annulment count contending that plaintiff's prior Mexican divorce decree was void in that the Mexican court was without jurisdiction. *fn1" Plaintiff appeared specially in this Connecticut action, claiming that her husband was not a domiciliary of that State and that the marital res was not located there. Defendant discontinued the action on April 26, 1962, and on that same day instituted an action for an annulment in the Supreme Court of the State of New York for New York County.

 Upon trial of the New York action, defendant husband was granted an annulment on the ground that the Mexican divorce decree dated October 2, 1954, entered upon the personal appearance of plaintiff's then-husband and the appearance of plaintiff by Mexican counsel, was void. Rosenstiel v. Rosenstiel, 43 Misc.2d 462, 251 N.Y.S.2d 565 (Sup.Ct.1964). The judgment of the New York court expressly reserved for determination plaintiff's right to support and maintenance and to attorney's fees. This New York decision was reversed, 21 App.Div.2d 635, 253 N.Y.S.2d 206 (1st Dep't 1964), the Appellate Division vacating the annulment, and the New York Court of Appeals affirmed this decision in 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709 (1965). The Supreme Court then denied defendant husband's writ of certiorari. 384 U.S. 971, 86 S. Ct. 1861, 16 L. Ed. 2d 682 (1966).

 Shortly prior to denial of the writ of certiorari, plaintiff moved in the New York Supreme Court, pursuant both to the reservation in the judgment in the annulment action and N.Y. Domestic Relations Law, McKinney's Consol. Laws, c. 14, §§ 236, 237, for a determination of her right to and the amount of her support and maintenance, and attorney's fees. Her motion was granted and the trial was resumed for such purpose during the period September 13 to October 20, 1966 before Mr. Justice Helman. At that trial, defendant asserted as a defense to plaintiff's claim the charge that plaintiff had been guilty of cruel and inhuman treatment and abandonment, and the testimony of witnesses was submitted in support of this charge. Section 236 of the Domestic Relations Law expressly authorizes the Court to require a husband to provide suitably for the support of his wife, notwithstanding her misconduct "unless such misconduct would itself constitute grounds for separation or divorce." By decision dated November 30, 1966, the trial court found that plaintiff had not been guilty of conduct sufficient to sustain an action for divorce or separation against her and accordingly awarded her support and maintenance and attorney's fees. Rosenstiel v. Rosenstiel, N.Y.L.J., Dec. 1, 1966, p. 17, col. 7 (Sup.Ct.1966). On June 6, 1967, the Appellate Division modified the award but expressly affirmed the trial court's finding with respect to the wife's misconduct. 28 App.Div.2d 651, 280 N.Y.S.2d 624 (1st Dep't 1967) (per curiam). On November 29, 1967, this Appellate Division Order was affirmed without opinion by the New York Court of Appeals. N.Y.L.J., Dec. 1, 1967, p. 16, col. 1.

 On or about March 24, 1967, and while this appeal of the support decree was pending, defendant instituted the Florida divorce action alleging that his wife had "been guilty of extreme cruelty" to him and had "also been guilty of habitually indulging in a violent and ungovernable temper." (Exh. H-1 to Complt. P5.) Plaintiff claims that these grounds are identical to those tried and determined in her favor in the New York action. However, after she was served by publication in the Florida action, she did not appear and defaulted therein rather than risk modification of the support award granted in New York. See Lynn v. Lynn, 302 N.Y. 193, 97 N.E.2d 748, cert. denied, 342 U.S. 849, 72 S. Ct. 72, 96 L. Ed. 640 (1951). Plaintiff claims that because of this risk she is precluded from exercising ...


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