lowy-v-lowy-12-11
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NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEYAPPELLATE DIVISION
DOCKET NO. A-0472-10T4RONA LOWY,
Plaintiff-Respondent,
v.
MARC LOWY,
Defendant-Appellant.________________________________________________________________
Submitted December 6, 2011 - Decided
Before Judges Carchman and Baxter.
On appeal from the Superior Court of NewJersey, Chancery Division, Family Part,Passaic County, Docket No. FM-16-1420-04.
Marc D. Lowy, appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Defendant Marc Lowy appeals from an August 27, 2010 Family
Part order that required him to provide his ex-wife, plaintiff
Rona Lowy, with a Jewish divorce, known as a Get.1 We agree with
defendant's contention that the judge exceeded his authority
when he so ordered. We reverse.
1 The Jewish faith specifies that a Get cannot be issued without the cooperation of the husband. Minkin v. Minkin, 180N.J. Super. 260, 261-62 (Ch. Div. 1981) (citing 6 EncyclopediaJudaica 132 (1971)).
December 21, 2011
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I.
The parties were divorced on September 20, 2004 when the
Family Part issued a dual final judgment of divorce, which, by
agreement of the parties, incorporated the August 4, 2004
decision of a Bais Din (rabbinical court) located in Monsey, New
York. The August 4, 2004 decision of the Bais Din addressed an
array of issues including child custody, visitation, the
children's education, the children's religious instruction,
child support and distribution of marital assets.
Moreover, the August 2004 decree issued by the Bais Din
addressed the issue of obtaining a Get. A portion of Section 6
contained the following provision:
If the arrangements for a Get will be madebetween Plaintiff and Defendant [sic],Plaintiff shall pay for Get fees incurred.2
As is evident, the Bais Din did not require defendant to provide
plaintiff with a Get. Instead, the decree issued by the Bais
Din specified that if such a religious dissolution of the
marriage were to be obtained, plaintiff would be responsible for
paying for it.
We note that there were other references to a Get in
Section 6 of the Bais Din decree; however, none went so far as
requiring a Get, or requiring defendant to cooperate with
2 Rona Lowy was the plaintiff before the Bais Din.
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obtaining one. The other references to a Get were these:
"Until the issuance of [a] Get, plaintiff and defendant have no
halachic3 or otherwise monetary obligations [sic] to one
another"; "Upon the issuance of [a] Get, defendant is not
obligated to pay Kesuba4 (Jewish marriage contract)5 to the
plaintiff"; "After the issuance of a Get, the plaintiff and
defendant are halachically not allowed to live in the same
house."
The relationship between the parties after the issuance of
the August 2004 Bais Din decree was acrimonious, with numerous
motions being filed in the Family Part to enforce various
provisions of the Bais Din decree. Among those motions was an
application filed by plaintiff in the latter part of 2005
seeking to compel defendant to cooperate with providing her a
Get. That motion resulted in a February 8, 2006 order which
provided in relevant part:
Defendant shall cooperate with regardto providing a Get in accordance with thedecision of the Bais Din.
The Get was not obtained, causing plaintiff to file the
motion that is the subject of this appeal, this time asking the
3 The term "halachic" refers to the Jewish texts that interpretthe biblical obligations of Jewish people to each other and toGod.4 This term is also spelled Ketuba or Ketubah.5 The parenthetical language is part of the Bais Din decree.
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judge to "[f]ind[] defendant in violation of litigant's rights
for failing to provide [her] with a Get in violation of the
February 8, 2006 order." Plaintiff further sought an order
imposing a monetary sanction for each day after July 1, 2010
that defendant persisted in his refusal to cooperate. In the
certification plaintiff filed in support of her motion, she
asserted that defendant refused to grant a Get, unless she paid
him money. Expressing her "frustration and aggravation over the
refusal of [defendant] to grant a Get over the last 6 (six)
years," plaintiff urged the court "for the sake of equity and
justice" to compel defendant to cooperate in removing "this
barrier to her right to continue her life."
During the August 27, 2010 oral argument on plaintiff's
motion to compel defendant to provide a Get, plaintiff advised
the judge that defendant had identified a rabbi in Brooklyn,
Rabbi Bluth, who was willing to assist the parties in obtaining
a Get, whereupon the judge stated:
[Defendant's] going to do it, whether helikes it or not. . . . Whether it's throughthis rabbi or somebody else he will do it.He's not going to tell me what I can order
in this courtroom.
The judge signed a confirming order at the conclusion of oral
argument on August 27, 2010, stating in relevant part that
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"defendant shall provide plaintiff with a Get, without
conditions, within 45 days of the date of this Order."
On appeal, defendant argues:
I. [THE] TRIAL COURT ABUSED ITS DISCRETIONBY ORDERING DEFENDANT TO PERFORM A RELIGIOUSGET PROCEDURE OVER HIS OBJECTIONS INVIOLATION OF DEFENDANT'S CONSTITUTIONALRIGHT OF FREE EXERCISE OF RELIGION.
II. [THE] TRIAL COURT ERRED BY ORDERINGDEFENDANT TO PROVIDE A "GET" WHEN ANY "GET"ORDERED BY A COURT IS INVALID UNDERDEFENDANT'S RELIGIOUS LAW, AND WHEN THE
"GET" IS NOT UNDER DEFENDANT'S CONTROL.
III. [THE] TRIAL COURT ABUSED ITS DISCRETIONIN ORDERING DEFENDANT TO PERFORM A RELIGIOUS"GET" PROCEDURE, AS [THE] "GET" PROCEDUREWAS NEVER ORDERED BY ANY RABBINICARBITRATION PANEL.
IV. [THE] TRIAL COURT ABUSED ITS DISCRETIONBY UNCONSTITUTIONALLY ENTANGLING ITSELF IN ARELIGIOUS MATTER, AND BY DISPLAYING ANIMUS
TOWARDS DEFENDANT'S DEEPLY HELD RELIGIOUSCONVICTIONS.
II.
We turn first to the claim defendant advances in Point III,
in which defendant asserts that the judge abused his discretion
in ordering him to provide plaintiff with a Get. He maintains
the judge's reliance on the Bais Din decree was error, as the
Bais Din never issued such an order.
In support of that argument, defendant notes, correctly,
that the August 2004 decision of the Bais Din stopped far short
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of requiring defendant to provide plaintiff with a Get.
Instead, the Bais Din decree addressed but one subject: which
of the two parties would pay for the Get. The Bais Din resolved
that issue by requiring plaintiff to pay all costs. We
emphasize that the Bais Din did not, however, require defendant
to provide his ex-wife with a Jewish divorce. For that reason,
we agree with the claim advanced by defendant in Point III, as
the Get was never ordered by the Bais Din rabbinic panel.
III.
We now address Points I and IV in tandem. In those two
points, defendant maintains that the court lacked the authority
to require him, in the absence of the Bais Din decision, to
cooperate with a Get. He maintains that by doing so the court
unconstitutionally involved itself in a matter of religious
doctrine and faith in violation of the First Amendment
prohibition on courts becoming entangled in religious affairs.
Our research has disclosed only one reported Appellate
Division or Supreme Court opinion on the subject of requiring a
husband to cooperate with a Get, Mayer-Kolker v. Kolker, 359
N.J. Super. 98 (App. Div.), certif. denied, 177 N.J. 495 (2003).
In Kolker, we refrained from squarely deciding the question of
whether the husband could be required to provide his wife with a
Get. Id. at 103. Instead, we held that the terms of the
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parties' marriage contract, or "Ketubah," were not sufficiently
clear to justify a conclusion that the husband had agreed, at
the time of the parties' marriage, that he would consent to a
Get in the event of the parties' divorce. Id. at 103-04. We
expressed considerable uncertainty about whether, in
circumstances where a husband did not so agree in the Ketubah,
courts have the authority to order a husband to provide a Get.
Id. at 103.
The judge's reliance here on the purported decision of the
Bais Din was flawed, because, as we have already noted, the Bais
Din stopped short of requiring defendant to cooperate with a
Get. For that reason, the judge erred by enforcing the decree
of a religious tribunal, even though the parties had submitted
their dispute to the Bais Din's jurisdiction. Once the Bais Din
decree is eliminated as a source of authority for the judge's
August 27, 2010 enforcement order -- as it must be -- the order
cannot be sustained because it constitutes impermissible
judicial involvement in a matter of religious practice. See
Abdelhak v. Jewish Press, Inc., 411 N.J. Super. 211, 235 (App
Div. 2009) (holding that courts must refrain from becoming
entangled in issues of religious faith and doctrine). Simply
stated, the judge lacked the authority to compel defendant to
"give the Get" where, under the facts presented here, defendant
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was not bound by any contractual agreement to do so.
Mayer-Kolker, supra, 359 N.J. Super. at 103-04.
Reversed.6
6 In light of our disposition, we need not address the claimdefendant advances in Point II.
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