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December 17, 1973

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

Robert J. Ward, District Judge.

The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

This is an action to determine the continued validity of an antenuptial agreement executed by the parties to this action in light of the subsequent divorce obtained by defendant Lewis S. Rosenstiel in an ex parte Florida proceeding. Plaintiff Susan L. Rosenstiel seeks to enforce a provision of the agreement, as amended, which made certain financial provision for her in lieu of her statutory right of inheritance. She also seeks to impose a constructive trust on the cash proceeds of a sale of stock by defendant which she contends form the property she will be entitled to under the agreement. She also seeks damages for defendant's allegedly tortious course of conduct as well as counsel fees. In order to place this dispute in context, a review of pertinent facts and prior legal proceedings will be useful.

 Susan and Lewis Rosenstiel 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 day before their marriage plaintiff and defendant entered into the aforementioned antenuptial agreement which, as later amended, provided that it should be interpreted and governed by the laws of New York and 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.

 After a period of extreme acrimony, the parties separated in October, 1961. Plaintiff remained in their home in New York; defendant went to their home in Greenwich, Connecticut. On November 9, 1961, defendant instituted an action against plaintiff in Connecticut (a) for an annulment on the ground that he was fraudulently induced to marry her, and (b) for a divorce on the grounds of plaintiff's cruel and inhuman treatment of defendant. Thereafter, on January 3, 1962, defendant amended his complaint in the Connecticut action to include as an additional ground for annulment that plaintiff's prior Mexican divorce from her first husband was void in that the Mexican court was without jurisdiction. 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.

 On or about November 15, 1961, plaintiff brought an action in the Supreme Court of the State of New York for New York County seeking to enjoin defendant from prosecuting his Connecticut action on the ground that defendant's claim to be a domiciliary of the State of Connnecticut was false and fraudulent. Plaintiff's motion in the New York action for a temporary injunction pending determination of her action for a permanent injunction was denied. Rosenstiel v. Rosenstiel, 32 Misc. 2d 542, 225 N.Y.S. 2d 905 (Sup. Ct. N.Y. Co.), aff'd, 15 A.D. 2d 880, 225 N.Y.S. 2d 912 (1st Dep't), appeal denied, 15 A.D. 2d 904, 225 N.Y.S. 2d 915, motion denied, 11 N.Y. 2d 882, 227 N.Y.S. 2d 919, 182 N.E. 2d 407 (1962). Thereafter, on April 26, 1962, defendant discontinued the Connecticut action; and on that same day instituted an action for annulment in the Supreme Court of New York for New York County alleging as the basis of that court's jurisdiction that Mrs. Rosenstiel was a resident of New York, as claimed in her New York injunction action.

 Defendant herein was granted an annulment after trial on the ground that plaintiff's 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. N.Y. Co. 1964). The judgment of the New York court expressly reserved for determination plaintiff's right to support and maintenance and to counsel fees. The annulment was vacated by the Appellate Division, 21 A.D. 2d 635, 253 N.Y.S. 2d 206 (1st Dep't 1964); the New York Court of Appeals affirmed, 16 N.Y. 2d 64, 262 N.Y.S. 2d 86, 209 N.E. 2d 709 (1965); and a petition for a writ of certiorari to the Supreme Court was denied, 384 U.S. 971, 86 S. Ct. 1861, 16 L. Ed. 2d 682 (1966).

 Shortly prior to denial of certiorari, plaintiff moved in the New York Supreme Court, pursuant to both the reservation in the judgment in the annulment action and N.Y. Domestic Relations Law §§ 236 and 237 (McKinney's Consol. Laws, c. 19, 1964), for a determination of her right to and the amount of her support and maintenance and for counsel 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 N.Y. Domestic Relations Law (McKinney 1964) 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 of November 30, 1966, the trial court found that plaintiff had not been guilty of misconduct sufficient to sustain an action for divorce or separation against her and accordingly awarded her support and maintenance and counsel fees. Rosenstiel v. Rosenstiel, N.Y.L.J., Dec. 1, 1966, p. 17, col. 7 (Sup. Ct. N.Y. Co. 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 A.D. 2d 651, 280 N.Y.S. 2d 624 (1st Dep't 1967). On November 29, 1967, the Appellate Division's Order was affirmed without opinion by the New York Court of Appeals. 20 N.Y. 2d 925, 286 N.Y.S. 2d 278, 233 N.E. 2d 292 (1967).

 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." Jurisdiction was based on defendant's assertion of his domicile in Florida. Plaintiff claims that the grounds raised in this divorce proceeding were identical to those previously tried and determined in her favor in the New York action. However, after she was constructively served by publication in the Florida action, plaintiff did not appear and defaulted therein. She offers this Court two reasons for her default in the Florida proceeding. The first is that if she appeared in the Florida action, she would 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). The second reason advanced by plaintiff is that she was afraid that if she went to Florida her husband would utilize his alleged "vast underworld connections," concerning the existence of which plaintiff is totally convinced, to cause her physical harm. This aspect of plaintiff's testimony is so unsubstantiated and so totally incredible that the Court gives it no weight. Plaintiff claims that the risks precluded her from exercising her right to invoke the Full Faith and Credit Clause of the United States Constitution, Art. 4, § 1, in the Florida action.

 Plaintiff, not wanting to appear in the Florida action, returned to the New York Supreme Court seeking an injunction against defendant's prosecution of the Florida action. The injunction was denied for lack of jurisdiction. Rosenstiel v. Rosenstiel, 30758/1962 and 31198/1961 (Sup. Ct. N.Y. Co. April 21, 1967). She appealed to the Appellate Division and moved for an order restraining defendant from prosecuting the Florida divorce action pending the hearing and determination of her appeal, but the application for a stay was denied on May 4, 1967. See Rosenstiel v. Rosenstiel, 278 F. Supp. 794, 798 (S.D.N.Y. 1967). On the afternoon of that date, defendant's Florida counsel filed a Praecipe for Default or Decree Con Professo and a default against plaintiff was entered. On May 5, 1967, after consultation with the Florida trial judge, the morning of May 12, 1967, was set down as the date for a final divorce hearing. A Final Judgment of Divorce was obtained by defendant against plaintiff in the Florida action at 11:28 A.M. on that date. 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.

 In the meantime, at 4:25 P.M. on May 12, 1967, the day defendant obtained the Final Judgment of Divorce, a judge of this Court who was unaware of the Florida Judgment signed an ex parte order to show cause brought by plaintiff in this action which provided that defendant and all those acting on his behalf be "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. . . ."

 At the hearing on the order to show cause and in plaintiff's supporting papers, plaintiff sought to convert the original motion for a prohibitory injunction, which had become moot, into a motion for a mandatory injunction requiring defendant to undo the acts already completed; plaintiff also moved to punish defendant and/or his attorneys, agents, or others acting on his behalf, for noncompliance with the temporary restraining order. Both motions were denied. Rosenstiel v. Rosenstiel, 278 F. Supp. 794 (S.D.N.Y. 1967) (Tenney, J.).

 The Court turns first to the issue of the validity of defendant's ex parte Florida divorce. Plaintiff contends that defendant was not a bona fide domiciliary of Florida and that, therefore, the Florida court was without jurisdiction to grant defendant a divorce. She further contends that the decree was procured by fraud in that defendant did not apprise the Florida court of the prior proceedings in New York before Mr. Justice Helman.

 The Supreme Court has held:

"Under our system of law, judicial power to grant a divorce -- jurisdiction, strictly speaking -- is founded on domicil. Bell v. Bell, 181 U.S. 175, 21 S. Ct. 551, 45 L. Ed. 804; Andrews v. Andrews, 188 U.S. 14 . . ., 23 S. Ct. 237, 47 L. Ed. 366. The domicil of one spouse within a State gives power to that State, we have held, to dissolve a marriage wheresoever contracted. In view of Williams v. North Carolina, supra [317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942)], the jurisdictional requirement of domicil is freed from confusing refinements about 'matrimonial domicil, ' see Davis v. Davis, 305 U.S. 32, 41, 59 S. Ct. 3, 6, 83 L. Ed. 26 and the like. . . ."
Williams v. North Carolina (II), 325 U.S. 226, 229-230, 65 S. Ct. 1092, 1095, 89 L. Ed. 1577 (1945).

 But where domicile is lacking, the courts of a state are without jurisdiction to grant a divorce. Alton v. Alton, 207 F.2d 667 (3d Cir. 1953), cert. granted and then dismissed as moot, 347 U.S. 610, 74 S. Ct. 736, 98 L. Ed. 987 (1954). Furthermore, Williams (II) holds that the question of domicile in an ex parte divorce proceeding is open to collateral attack in a sister state; and upon a finding that domicile was lacking, the decree of divorce is not entitled to full faith and credit.

 The creation and changing of one's domicile is a question of fact. Williams v. North Carolina (II), 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577 (1945); Matter of Newcomb, 192 N.Y. 238, 250, 84 N.E. 950, 954 (1908). Under the law of both Florida and New York, domicile consists of actual residence within a state with the intention of making that state one's permanent home or one's home for an indefinite period. E.g., Wade v. Wade, 93 Fla. 1004, 113 So. 374 (1927); Perez v. Perez, 164 So. 2d 561 (Fla. D.C. of App., 1964); Carter v. Carter, 19 A.D. 2d 513, 240 N.Y.S. 2d 141 (1st Dep't 1963). Where a previous finding of domicile is subjected to collateral attack, "[the] burden of undermining the verity which the [prior] [decrees] import rests heavily upon the assailant." Williams v. North Carolina (II), supra, 325 U.S. at 233-234, 65 S. Ct. at 1097.

 In the ordinary case, a finding of a change of domicile is readily apparent. A person gives up his old home and establishes a new one so that he has only one place of abode at any one time. But where, as here, a person maintains several households in different states, the determination is rendered more difficult. Obviously, those wealthy enough to have multiple residences have an equal right along with those less fortunate to change their domiciles. The effect of their wealth simply renders the factual determination that much more difficult. "In such circumstances the determination of domicile involves a comparison of the weight of the evidence, of the actual facts as to residence and defendant's real attitude and intention as disclosed by his entire course of conduct." Rosenstiel v. Rosenstiel, 32 Misc. 2d 542, 546, 225 N.Y.S. 2d 905, 910 (Sup. Ct. N.Y. Co.), aff'd, 15 A.D. 2d 880, 225 N.Y.S. 2d 912 (1st Dep't), appeal denied, 15 A.D. 2d 904, 225 N.Y.S. 2d 915 (1st Dep't 1962).

 The Court finds, on balance, that defendant has established that he effected a bona fide change of domicile to Florida in January, 1965, although he retained ownership of his New York townhouse until 1968 and still owns the Connecticut property. As early as 1964, defendant told friends that he wanted to sell his business and move to Florida where he would have time to sail and fish. He expressed dissatisfaction with zoning decisions in Connecticut, unhappiness about his relationship with his family, and a general desire to get away from New York and Connecticut. In various ...

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