Fernandez v. Fernandez

Francis X. Conlon, J.

This is an application to restrain the defendant from proceeding with a Mexican divorce. The facts are not contested. There is an action pending in this court for a separation. It is on the Reserve Calendar awaiting trial. On May 15, 1963, plaintiff was served with papers in a divorce proceeding commenced in Mexico. The defendant relies heavily on the case of Rosenbaum v. Rosenbaum (309 N. Y. 371). In that case after a separation decree, an injunction proceeding was brought, and a temporary injunction was requested. It was refused, the court holding that as the threatened divorce was not entitled to full faith and credit, it would be a nullity and 'such proceeding was unnecessary. However, in the present proceeding no separation has as yet been decreed. No case has been submitted to the court wherein an appellate tribunal has refused to issue an injunction in such case. Nor has independent research of the court disclosed such decision. The defendant, if not enjoined, may get a divorce in Mexico, and then among other actions, may move to amend his answer to plead the divorce as a defense. The action pending here should not he complicated in this fashion. Therefore, in order to maintain the status quo the injunction will be granted to the extent that the defendant will be enjoined pending the determination of the separation action pending here. After entry of a decree therein, the injunction will be dissolved and the defendant will be precisely within the ambit of Rosenbaum v. Rosenbaum (supra) and can pursue such action, as he is advised.