# Monihan v. Monihan

> Supreme Court of Pennsylvania · April 22, 1970 · 438 Pa. 380

URL: https://www.frixlaw.com/law-library/cases/9718291

## Case

- **Full name:** Monihan, Appellant, v. Monihan
- **Court:** Supreme Court of Pennsylvania
- **Decided:** April 22, 1970
- **Citations:** 438 Pa. 380; 264 A.2d 653; 1970 Pa. LEXIS 794
- **Precedential status:** Published
- **Opinion:** Concurrence by Roberts
- **Judges:** Bell, Jones, Cohen, Eagen, O'Brien, Roberts, Pomeroy
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Concurring Opinion by
Mr. Justice Roberts :
I fully agree with the majority that the injunction was properly issued in this case. But I cannot agree with the majority’s theory that the propriety of granting the instant injunction turns on whether Dr. Monihan was seeking a “sham divorce.” 1 I take a different view of the function of anti-suit injunctions, one that leads me to the conclusion that an anti-suit injunction may be proper even where the enjoined spouse is a bona fide domiciliary of another state.
I first note that it is constitutionally permissible for one state to enjoin a litigant from proceeding with litigation in another state, even where that other state has jurisdiction to proceed with the litigation. Anti-suit injunctions are hardly novel; as long ago as 1890 the United States Supreme Court upheld such injunctions against a claim that they violated the full faith and credit clause and the privileges and immunities clause. See Cole v. Cunningham, 133 U.S. 107 , 10 S. Ct. 269 (1890). The holding in Cole retains its vitality *386 today and later cases do not even bother to question the constitutional validity of such injunctions. 2 See, e.g., Pope v. Atlantic Coast Line R. Co., 345 U.S. 379 , 73 S. Ct. 749 (1952); Miles v. Ill. Cent. R. Co., 315 U.S. 698 , 62 S. Ct. 827 (1942); Baltimore & O. R, Co. v. Kepner, 314 U.S. 44 , 62 S. Ct. 6 (1941).
Anti-suit injunctions are frequently resorted to in divorce litigation since the temptation to forum shop is great. The “liberality” of the several states’ divorce laws varies greatly and no choice of law rules have developed whereby the forum state would take into account the fact that the marriage is “multi-jurisdictional.” Each forum will apply its own divorce laws and so long as one of the parties is a bona fide domiciliary, the final decree of the rendering state will be binding in all other states. See Williams v. North Carolina (I), 317 U.S. 287, 63 S. Ct. 207 (1942).
It must be recognized, however, that an injunction can only deter this forum shopping. It probably can neither preclude the rendering court from applying its own divorce laws, 3 nor soften the impact of the full *387 faith and credit clause. If a litigant decides to risk contempt of court and violate the injunction, it is possible that he will be able to secure a valid, binding decree in the more hospitable state. And there is always the danger that an anti-suit injunction in one state may lead to a similar injunction in the other state. See James v. Grand Trunk Railroad Co., 14 Ill. 2d 356 , 152 N.E. 2d 858 , cert. denied, 358 U.S. 915 , 79 S. Ct. 288 (1958). Needless to say, this type of conflict is to be avoided if we want our multi-jurisdictional system to function smoothly.
Despite these drawbacks, anti-suit injunctions can be used to further important interests of the state which issues the injunction. In a sense, such injunctions help fill the need for adequate choice of law rules in divorce litigation. For when a court is called upon to issue an anti-suit injunction, it has a chance to weigh the interests of each jurisdiction, issuing the injunction if it feels its interests predominate. For example, if the issuing court’s jurisdiction has been invoked first, the injunction is a way to insure a normal course of adjudication. See Wenz v. Wenz, 400 Pa. 397 , 162 A. 2d 376 (1960). While sister states will normally defer to the court which first acquires jurisdiction, the principle of comity does not work very well in the divorce area. Also, anti-suit injunctions can prevent harassment of one of the parties; 4 in the divorce area, such harassment may take the form of going to an inconvenient forum to which the other spouse either cannot, or will not, go. Most importantly, an anti-suit injunction helps insure that the issuing court’s law will be applied. In the *388 normal suit where more than one state may constitutionally exercise jurisdiction, courts are prone to weigh the respective interests of all the concerned jurisdictions, and an anti-suit injunction may not be very necessary. In a divorce action, however, each state will apply only its own divorce law; an anti-suit injunction proceeding gives the issuing court an opportunity to examine its contacts with the marriage relationship and to decide whether it is essential that its law apply. 5
On balance, I believe that while anti-suit injunctions should not be issued lightly, they can do more good than harm, particularly in the divorce area. But when such injunctions are issued we should be careful to evaluate the extent of our interests in the litigation. We should consider whether our jurisdiction was invoked prior to another court’s. We should also consider whether the litigation in the other court is unduly vexatious, although in the divorce area this may *389 not be an important factor. 6 The key factor in the divorce area, however, should be whether our contacts with the marriage relationship so outweigh the other state’s contacts as to make it vital that our divorce law should govern.
In past eases this Court has held that it was proper to issue an anti-suit injunction where neither spouse was a bona fide domiciliary of another state. See Wallace v. Wallace, 371 Pa. 404 , 83 A. 2d 769 (1952) ; Smith v. Smith, 364 Pa. 1 , 70 A. 2d 630 (1950) ; Janney v. Janney, 350 Pa. 133 , 38 A. 2d 235 (1944); cf. Rothman v. Rothman, 425 Pa. 406 , 228 A. 2d 899 (1967) (issue of domicile apparently not raised). Such a finding would, obviously, indicate that the other jurisdiction has no contacts with the marriage relationship, and therefore no concern with applying its own law. We have also stated, however, that we will refuse to issue an anti-suit injunction where one spouse is a bona fide domiciliary of another state, apparently basing our refusal on the United States Supreme Court’s holding in Williams v. North Carolina (I), supra. See Smith v. Smith, 364 Pa. at 4 , 70 A. 2d at 632 . Williams , however, only set forth the rule that the state in which one spouse is a bona fide domiciliary has constitutional jurisdiction to enter a decree of divorce. But this does not mean that we are constitutionally barred from enjoining that spouse from proceeding in the other state. New York, for example, has issued anti-suit injunctions where the enjoined spouse may have had a bona fide *390 domicile in another state. 7 In fact anti-snit injunctions have often been employed in cases where some other forum can constitutionally exercise jurisdiction and issue a final decree binding under the full faith and credit clause. 8 See, e.g., Pope, Miles, Kepner, supra.
*391 In my judgment the determination of whether an anti-suit injunction should be granted ought not turn on the issue of bona fide domicile elsewhere. Rather, it should turn on the factors articulated above, the most important being whether Pennsylvania contacts with the marriage relationship so outweigh the other state’s contacts as to make it vital that our divorce law should govern.
Applying these principles to the instant case, it first appears that the divorce action was originally commenced in Pennsylvania, and thus an injunction can help us proceed with our normal course of adjudication. Further, the hearing court found that the Monihans have been married for nine years, have four children ranging in age from three to eight years, and have resided in Philadelphia all their lives, except during the period that Dr. Monihan was in the military service. The contact with Nevada, on the other hand, consists only of a short residence there by Dr. Monihan, such residence commencing after Mrs. Monihan informed her husband that she would contest the divorce he had already begun in Pennsylvania. Thus it is clear that Pennsylvania’s interests in the marriage relationship— the length of residence in Pennsylvania and the domicile of the four young children in Pennsylvania—plus our interest in the orderly adjudication of a divorce action originally begun here, far outweigh Nevada’s very slight interests in the relationship. Hence I agree with the majority that the injunction was properly issued in this case.
While the majority states it is not passing on the validity of Dr. Monihan’s divorce, the majority’s decision that Dr. Monihan’s residence was not bona fide, and his purpose was to “gain a sham divorce,” is in fact a decision on the validity of the divorce. But I question the effect of the majority’s decision on domicile now that Nevada has rendered a presumptively valid decree under Williams v. North Carolina (II), 325 U.S. 226 , 65 S. Ct. 1092 (1945).
Appellant’s contention that the injunction violates his right to travel is clearly without merit. Appellant is perfectly free to go to Nevada; he is merely being restrained from prosecuting this divorce there. He cannot seriously contend that the injunction is intended, as were the welfare statutes declared unconstitutional in Shapiro v. Thompson, 394 U.S. 618 , 89 S. Ct. 1322 (1969), to inhibit the freedom to “migrate, resettle, find a new job, [and] start a new life.” Shapiro, 394 U.S. at 629 , 89 S. Ct. at 1328 . Of course, if his only reason to go to Nevada were to secure a divorce, the injunction would, in a sense, “hinder” the mission of his travel. But he surely is not arguing that he wished to go to Nevada solely for the purpose of obtaining a divorce, since this contention would cast grave doubts on the bona fides of his domicile there.
“As an original question it would be arguable that the full faith and credit clause should compel the other state to accept the injunction as an adjudication of the impropriety of the forum for suit, but the authorities are all the other way.” Leflar, American Conflicts Law 118-19 (1968) (footnote omitted).
See Baltimore & O. R. Co. v. Kepner, 314 U.S. 44, 55 , 62 S. Ct. 6, 11 (1941) (Frankfurter, J„ dissenting) (citing cases to support “the historic power of courts of equity to prevent a misuse of litigation by enjoining resort to vexatious and oppressive foreign suits”) ; 3 Freedman, Law of Marriage and Divorce in Pennsylvania 1483 (1957) (citing authorities).
“Absent injunctive relief, . -. . choice-of-law rules will decide whose law will govern. Contemporary thinking sees, choice of law primarily as identifying underlying policies of conflicting laws and áscertaining the state with a dominant interest in applying its policies to the facts and parties before the court. Problems arise when . . . one of the states refuses to recognize the relative insignificance of its own interests. ... In such situations the interested state may be tempted to determine the choice of law by enjoining the litigation and thereby forcing the case to be litigated in its own forum. ...
■ “The need for injunctive relief in such situations should be somewhat reduced as rational choice-of-law rules achieve widespread acceptance. Yet . . . certain cases have traditionally been excluded from the operation of choice-of-law rules; in cases brought under . . . divorce laws, for example, the law of the forum is always applied. Disagreement and friction between states are likely to persist in these areas and the anti-suit injunction may continue to play an active role.”
Developments in the Law; Injunctions, 78 Harv. L. Rev. 994 , 1038-40 (1965) (footnotes omitted).
“Deprived of an injunction, the remaining spouse . . . could contest the litigation, which may be inconvenient and which, in practice, may be futile in view of the attitude of ‘quickie’ divorce states toward providing easy divorces. . . .”
Developments in the Law: Injunctions, 78 Harv. L. Rev. 994 , 1040 (1965).
See Hammer v. Hammer, 303 N.Y. 481 , 104 N.E. 2d 864 (1952) ; Garvin v. Garvin, 302 N.Y. 96 , 96 N.E. 2d 721 (1951). I note that the majority evidently places some reliance on Garvin . The holding in Garvin was later explained in Rosenbaum v. Rosenbaum, 309 N.Y. 371 , 130 N.E. 2d 902, 903 (1955) : “[I]n the Hammer case, supra, the husband submitted ‘numerous facts tending to show that he has transferred his domicile to that (sister) state’ . . . and in the Garvin case, supra, . . . 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. . . . Each such divorce, therefore, has the semblance of being something other than a complete nullity. . . .” In both Garvin and Hammer the court held the anti-suit injunction proper. But adopting the approach that injunctions will issue only where there is a possibiUty that the divorce will be binding, New York will not issue such injunctions where one spouse is seeking a eoneededly invalid divorce in a foreign country. See Rosenbaum v. Rosenbaum, supra; but cf. Arpels v. Arpels, 8 N.Y. 2d 339 , 170 N.E. 2d 670 (1960).
In support of limiting anti-suit injunctions to only those cases where the foreign domicile was not bona fide, it has been argued that “[tjhis result is not as bizarre as it seems; the enjoining state may be in a better position to judge the intent of the divorce plaintiff to remain permanently in the divorcing state. More importantly, because ‘quickie’ divorce states have little, if any, interest in determining whether the plaintiff is, in fact, domiciled there, the state of the marital domicile may alone have an interest in enforcing the requirement of domicile.” Developments in the Law: Injunctions, 78 Harv. L. Rev. 994 , 1041 (1965) (footnotes omitted).
On the other hand, there are factors which militate against our adjudicating, before the other state enters its decree, whether that other state constitutionally has jurisdiction. Eor one, we may make this adjudication too quickly; the spouse may not have had time to fully establish the manifestations of his “absence of any intention to live elsewhere.” Williamson v. Osenton, 232 U.S. 619, *391 624 , 34 S. Ct. 442 (1914) (Holmes, J.). And even if we do find a lack of bona fide domicile, tbe other state might still render a decree entitled to “presumptive validity” under Williams v. North Carolina (II), 325 U.S. 226 , 65 S. Ct. 1092 (1945).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9718291. Public record. Not legal advice.