Citation Numbers: 31 Misc. 2d 349
Judges: Nathan
Filed Date: 10/20/1961
Status: Precedential
Modified Date: 2/5/2022
Defendant moves for a temporary injunction and for alimony and counsel fee. Plaintiff, a nonresident of this State, instituted a separation action against defendant in August, 1961. After defendant’s answer containing a counterclaim for separation was served, plaintiff commenced a divorce proceeding against defendant in the State of Rhode Island. One of the children is living with defendant, and the other child resides with plaintiff, who, it appears, had previously obtained temporary custody of both children pursuant to an order of the Probate Court of Massachusetts. Plaintiff’s attorney in opposing the motion states that his client has instructed him to discontinue the separation action since plaintiff intended to rely on the Rhode Island and Massachusetts proceedings. Unquestionably, defendant who has not appeared in the Rhode Island action would be seriously prejudiced by a discontinuance, especially where plaintiff seeks to discontinue for the purpose of defeating defendant’s right to an injunction and alimony and counsel fee. Having instituted the separation action in this court, plaintiff is subject to its jurisdiction and may not by his action in commencing a matrimonial proceeding in Rhode Island compel defendant to contest the issues in two jurisdictions.
While defendant does not divulge her weekly income, she still bears the expense of supporting one of the children. Considering this fact as well as plaintiff’s earnings and the necessity