Margulies v. Margulies

• Decision Date: 05 June 1973
• Citation: 42 A.D.2d 517,344 N.Y.S.2d 482
• Parties: Selma MARGULIES, Plaintiff-Respondent, v. Myron L. MARGULIES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 482

344 N.Y.S.2d 482

42 A.D.2d 517

Selma MARGULIES, Plaintiff-Respondent, v. Myron L. MARGULIES, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 5, 1973.

L. Epstein, New York City, for defendant-appellant.

Before STEVENS, P.J., and MARKEWICH, NUNEZ, KUPFERMAN and TILZER, JJ.

PER CURIAM.

Order, Supreme Court, New York County, entered March 12, 1973 is modified on the law, the facts and in the exercise of discretion to strike therefrom those provisions directing defendant's civil commitment for contempt of court and to substitute therefor a provision that defendant may purge himself of the contempt by paying a sum of $450, representing the fines previously imposed by court orders or, in the alternative, by appearing in and participating in a Jewish ritual divorce, and as so modified the order is affirmed, without costs or disbursements.

The parties were divorced in June 1970. Thereafter, certain further disputes developed which were ostensibly settled when the parties stipulated in open court with respect to child visitation rights and the division of certain items of personal property. As part of that stipulation, defendant voluntarily agreed to 'appear before a Rabbi to be designated for the purposes of a Jewish religious divorce.' Prior to the order appealed from defendant was on two occasions held in contempt and fined therefor, (orders dated June 23, 1972 and October 2, 1972) subject to the provision that he could purge himself of the contempt upon payment of the fines and by appearing before a Jewish court for the purpose of obtaining the divorce. When defendant continued in his refusal to comply with the court's orders, a further motion for contempt was brought. This time defendant was committed to jail for a period of 15 days, again with the opportunity to purge himself of the contempt if he appeared and participated in a Jewish ritual divorce.

It is argued that the court was without power to direct defendant to participate in a religious divorce, as such is a matter of one's personal convictions and is not subject to the court's interference. We are told further, that since a Jewish divorce can only be granted upon the representation that it is sought by the husband of his own free will, any such divorce, if obtained under compulsion by the court, would in any event be a nullity.

We agree with the defendant may not, under these circumstances, be incarcerated for his failure to honor the stipulation (incorporated into a court order) and accordingly, vacate that portion of the order directing his commitment. However, we believe that the fines imposed upon defendant by the prior orders should stand. Defendant failed to perfect any appeals from the prior orders fining him for his contempt nor did he obtain a stay of the provisions contained in those orders. The initial order was entered upon the parties' open court stipulation concerning the disputes arising after the judgment of divorce, and defendant voluntarily agreed to perform certain acts. The court had jurisdiction over the parties and the subject matter, and even if the orders were erroneous, the defendant was obligated, in the absence of a stay, to obey the court's mandate until vacated or reversed. (See Burchell v. Cimenti, 38 A.D.2d 897, 329 N.Y.S.2d 347, 9 N.Y...