Avitzur v. Avitzur

• Decision Date: 08 April 1982
• Citation: Avitzur v. Avitzur, 449 N.Y.S.2d 83, 86 A.D.2d 133 (N.Y. App. Div. 1982)
• Parties: Susan Roe AVITZUR, Respondent, v. Boaz AVITZUR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 83

449 N.Y.S.2d 83

86 A.D.2d 133

Susan Roe AVITZUR, Respondent, v. Boaz AVITZUR, Appellant.

Supreme Court, Appellate Division Third Department.

April 8, 1982.

Louis-Jack Pozner, Albany, for appellant.

Lee, LeForestier, Malone, Smith & Hanft, Troy (Richard A. Hanft, Troy, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, KANE, WEISS and LEVINE, JJ.

MAHONEY, Presiding Justice.

Married in a Jewish religious ceremony on May 22, 1966, plaintiff and defendant signed a written agreement known as a "Ketubah" that same day as part of the religious ceremony. On May 17, 1978, defendant obtained a civil divorce in the State Supreme Court on the ground of plaintiff's cruel and inhuman treatment. Desirous of obtaining a Jewish religious divorce, known as a "Get", plaintiff commenced this action in February of 1980 for specific performance of the Ketubah's requirement that defendant appear before a Jewish religious tribunal known as the "Beth Din", which is necessary in order to obtain a Get. Defendant moved to dismiss the complaint pursuant to CPLR 3211 on the grounds that plaintiff lacked capacity to sue, that the complaint failed to state a cause of action and failed to name certain necessary parties. Plaintiff cross-moved for summary judgment. Special Term denied both motions and this appeal by defendant ensued.

Defendant argues that this lawsuit involves matters which are religious in nature and that it would require an unconstitutional entanglement between church and State for the Supreme Court to assume jurisdiction over the action. Special Term, in rejecting this argument, found no such entanglement. Instead, it viewed the real object of the lawsuit as seeking "a command upon the individual defendant to do what is alleged he agreed to do in advance." We cannot agree. The agreement which plaintiff is attempting to specifically enforce was entered into as part of a religious ceremony and, by its own terms, was "executed and witnessed * * * in accordance with Jewish law and tradition." The State, having already granted the parties a civil divorce, has no further interest in their marital status. It would thus be a dangerous precedent to allow State courts to enforce liturgical agreements concerning matters about which the State has no remaining concern. Viewed in this manner, the cases cited by Special Term in support of its jurisdiction to enforce a Ketubah are inapposite since those cases involved situations where the Ketubah's terms had been incorporated in a subsequent civil agreement (Margulies v. Margulies, 42 A.D.2d 517, 344 N.Y.S.2d 482, app. dsmd. 33 N.Y.2d 894, 352 N.Y.S.2d 447, 307 N.E.2d 562 Waxstein v. Waxstein, 90 Misc.2d 784, 395 N.Y.S.2d 877, affd. 57 A.D.2d 863, 394 N.Y.S.2d 253 Matter of "Rubin" v. "Rubin", 75 Misc.2d 776, 348 N.Y.S.2d 61 Koeppel v. Koeppel, 138 N.Y.S.2d 366, affd. 3 A.D.2d 853, 161 N.Y.S.2d 694 ). Only the unreported case of Stern v. Stern (Supreme Ct., Kings County, August 8, 1979, HELD, J.) has granted specific performance of the Ketubah itself, as distinguished from the subsequent ratification of its provisions. We decline to follow this decision.

Moreover, assuming arguendo that this matter involved a civil contract over which State courts could properly exercise jurisdiction, it is our view that defendant's motion to dismiss for failure to state a cause of action should have been granted. The parties to this action have already been civilly divorced. By commencing this action for specific performance of the Ketubah, plaintiff is asking the State court system to act as the enforcement mechanism whereby defendant will be compelled to appear before the Beth Din. The sole purpose behind compelling this appearance is to enable plaintiff to obtain a religious divorce so that she may at some time in the future marry in accordance with her religious beliefs.

A person seeking to invoke the court's equitable power of compelling specific performance should come before the court with clean hands (Weiss v. Mayflower Doughnut Corp., 1 N.Y.2d 310, 316, 152 N.Y.S.2d 471, 135 N.E.2d 208; 20 N.Y.Jur., Equity, §§ 102-111). Plaintiff in the instant case has already been judicially found to have breached her marriage vows and had a divorce on fault grounds granted against her. Under these circumstances, plaintiff's complaint fails to state a cause of action for the relief being sought.

Accordingly, Special Term erred in failing to grant defendant's motion to dismiss the complaint.

The order should be modified, on the law, by reversing so much thereof as denied defendant's motion to dismiss the complaint, and the motion granted, and, as so modified, affirmed, with costs.

Order modified, on the law, by reversing so much thereof as denied defendant's motion to dismiss the complaint, and motion granted, and, as so modified, affirmed, with costs.

SWEENEY, KANE and WEISS, JJ., concur.

LEVINE, J., dissents and votes to affirm in a separate opinion.

LEVINE, Justice (dissenting).

Of course, for purposes of this motion to dismiss the complaint, plaintiff's pleadings and supporting papers must be accepted as true and are entitled to every legitimate inference to be drawn therefrom. We must, therefore, accept as established (1) that there was an actual meeting of the minds between the parties as to the portion of the Ketubah in which they mutually undertook to obtain a Get in the event of a civil divorce, and that their promises were supported by consideration; (2) that defendant's involvement in obtaining the Get could be as minimal as merely appearing before a rabbi to disclose the relevant information and to execute the Get document, and thus, enforcement of this portion of the Ketubah does not entail any religious observance, performance of ritual, or invasion of...