Pal v. Pal

• Decision Date: 17 June 1974
• Parties: Sidney PAL, Appellant, v. Cipora PAL, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 672

356 N.Y.S.2d 672

45 A.D.2d 738

Sidney PAL, Appellant, v. Cipora PAL, Respondent.

Supreme Court, Appellate Division, Second Department.

June 17, 1974.

Before GULOTTA, P.J., and SHAPIRO, BENJAMIN, MUNDER and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In this action in which plaintiff was granted a judgment of divorce by the Supreme Court, Kings County, on January 11, 1973, he appeals from an order of the same court, dated August 8, 1973. The judgment awarded defendant custody of the parties' four infant children, with visitation rights to plaintiff, directed the parties to submit themselves to a rabbinical tribunal as to whether plaintiff should be directed to take the necessary steps to grant a Jewish divorce (a 'get') and included provisions with respect to the selection of rabbis to constitute the rabbinical tribunal. The order (1) on defendant's cross motion (a) appointed a certain rabbi as plaintiff's designee, (b) directed that rabbi and the rabbi who had been designated by defendant to select the third rabbi to serve on the rabbinical tribunal and (c) directed that that tribunal furnish the court with a written translation of its decision; and (2) provided that plaintiff's motion to punish defendant for contempt for alleged violation of the provision in the judgment concerning visitation be held in abeyance pending the hearing and determination of the rabbinical tribunal.

Order reversed, without costs, and plaintiff's motion and defendant's cross motion denied.

Special Term had no authority to, in effect, convene a rabbinical tribunal (cf. Margulies v. Margulies, 42 A.D.2d 517, 344 N.Y.S.2d 482). However, plaintiff's motion to punish defendant for contempt should have been denied, as one who seeks such relief must come into court with clean hands. Plaintiff's conduct in not complying with the terms of a stipulation incorporated into the judgment of divorce was such as to preclude the granting of his motion.

GULOTTA, P.J., and SHAPIRO, BENJAMIN and MUNDER, JJ., concur.

MARTUSCELLO, J., dissents and votes (1) to modify the order by striking therefrom the fifth ordering paragraph, which directed that plaintiff's motion to punish defendant for contempt be held in abeyance, and substituting therefor a provision setting said motion down for a hearing and (2) to affirm the order as so modified, with the following memorandum:

Plaintiff and defendant were formerly husband and wife and both are of the Jewish faith. Plaintiff obtained a divorce on January 11, 1973, when defendant withdrew her answer and counterclaim in reliance upon a stipulation of the parties, made in open court and later carried into the judgment of divorce, so far as pertinent, as follows: 'each of the parties hereto hereby submit themselves to a Rabbinical Tribunal on the question of whether the Plaintiff shall be directed to take all steps necessary to grant a Jewish divorce (Get) and the parties shall be bound by the decision of said Rabbinical Tribunal in accordance with Article 75 of the CPLR' and additionally that 'in the event that either of the parties fails to choose a Rabbi * * * within one week or in the event that the two Rabbis chosen by the parties * * * shall fail to select a third Rabbi, then this Court shall * * * select any competent Rabbi for the one that failed to so choose a third Rabbi'.

While the proceeding was pending before the rabbinical tribunal, plaintiff, in April 1973, moved to punish defendant for contempt, alleging that she had deprived him of visitation rights. When plaintiff's designated rabbi withdrew from the tribunal, on May 18, 1973, defendant cross-moved in part to have the court designate a replacement for the withdrawn rabbi. In opposition to defendant's cross motion, plaintiff did not challenge the court's power to select a rabbi for him, but merely claimed he was making diligent efforts to obtain the services of another rabbi and that defendant should not be permitted to enforce the judgment of divorce with respect to the rabbinical tribunal until she shall have complied with the visitation provisions of the judgment. Special Term granted the above-stated part of defendant's cross motion and designated Rabbi Benjamin Scharfman, who had theretofore been designated as the third rabbi, to serve as plaintiff's designee on the rabbinical tribunal.

The majority of this court is holding that Special Term had no authority to, in effect, convene a rabbinical tribunal, citing Margulies v. Margulies, 42 A.D.2d 517, 344 N.Y.S.2d 482. I disagree. Special Term did not convene a rabbinical tribunal, or impose any religious discipline upon plaintiff, or inquire into any ecclesiastical or doctrinal questions (cf. Rector, Churchwardens & Vestrymen of Church of Holy Trinity v. Melish, 4 A.D.2d 256, 164 N.Y.S.2d 843, affd. 3 N.Y.2d 476, 168 N.Y.S. 952, 146 N.E.2d 685), but was merely giving effect to the express language of the stipulation, agreed to by both parties and later included in the judgment of divorce, by appointing a replacement for plaintiff's rabbi, who, with defendant's rabbi, would select a third rabbi to form the rabbinical tribunal.

Nor is Margulies apposite to the case at bar. In Margulies the parties were civilly divorced, but appeared in court to resolve subsequent matrimonial disputes. As part of the resolution of the dispute between them the husband stipulated in open court that he would 'appear before a Rabbi to be designated for the purposes of a Jewish religious divorce'. The husband failed to comply with the stipulation and was twice held in contempt and fined therefor, subject to the provision that he could purge himself by paying the fines and appearing before a Jewish court for the purpose of obtaining a divorce. The husband refused to comply with the contempt orders and was therefore, by a third order, committed to jail for a period of 15 days, with the same opportunity to purge himself. On appeal from the third order, the Appellate Division, First Department, struck from that order the provision relating to the husband's civil commitment and substituted therefor a provision that he could purge himself of the contempt by paying the fines previously imposed or, alternatively, by appearing and participating in a Jewish divorce. The First Department refused to let stand the Special Term's exercise of its power in order to compel the husband to perform his agreement, i.e., to participate in a Jewish divorce.

Margulies is at once distinguishable from the instant case in that there the purpose of the stipulation was to compel the granting of a Get, while in the case at bar, court intervention was sought to compel the husband to designate an arbitrator (a rabbi) and merely appear before a rabbinical tribunal, pursuant to the parties' stipulation (see CPLR 7504).

Accordingly, this court should not...