December 21, 2011
RONA LOWY, PLAINTIFF-RESPONDENT,
MARC LOWY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1420-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2011
Before Judges Carchman and Baxter.
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.*fn1 We agree with defendant's contention that the judge exceeded his authority when he so ordered. We reverse.
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 made between Plaintiff and Defendant [sic], Plaintiff shall pay for Get fees incurred.*fn2
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 obtaining one. The other references to a Get were these: "Until the issuance of [a] Get, plaintiff and defendant have no halachic*fn3 or otherwise monetary obligations [sic] to one another"; "Upon the issuance of [a] Get, defendant is not obligated to pay Kesuba*fn4 (Jewish marriage contract)*fn5 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 regard to providing a Get in accordance with the decision 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 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 he likes it or not. . . . Whether it's through this 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 "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 DISCRETION BY ORDERING DEFENDANT TO PERFORM A RELIGIOUS GET PROCEDURE OVER HIS OBJECTIONS IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT OF FREE EXERCISE OF RELIGION.
II. [THE] TRIAL COURT ERRED BY ORDERING DEFENDANT TO PROVIDE A "GET" WHEN ANY "GET" ORDERED BY A COURT IS INVALID UNDER DEFENDANT'S RELIGIOUS LAW, AND WHEN THE "GET" IS NOT UNDER DEFENDANT'S CONTROL.
III. [THE] TRIAL COURT ABUSED ITS DISCRETION IN ORDERING DEFENDANT TO PERFORM A RELIGIOUS "GET" PROCEDURE, AS [THE] "GET" PROCEDURE WAS NEVER ORDERED BY ANY RABBINIC ARBITRATION PANEL.
IV. [THE] TRIAL COURT ABUSED ITS DISCRETION BY UNCONSTITUTIONALLY ENTANGLING ITSELF IN A RELIGIOUS MATTER, AND BY DISPLAYING ANIMUS TOWARDS DEFENDANT'S DEEPLY HELD RELIGIOUS CONVICTIONS.
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 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.
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 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 was not bound by any contractual agreement to do so. Mayer-Kolker, supra, 359 N.J. Super. at 103-04.