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NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISION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.