Perl v. Perl

• Decision Date: 03 March 1987
• Citation: 512 N.Y.S.2d 372,126 A.D.2d 91
• Parties: Charles PERL, Plaintiff-Respondent, v. Chana PERL, Famous Chains, Inc., and Charles Rosner, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 372

512 N.Y.S.2d 372

126 A.D.2d 91

Charles PERL, Plaintiff-Respondent, v. Chana PERL, Famous Chains, Inc., and Charles Rosner Defendants-Appellants.

Supreme Court, Appellate Division First Department.

March 3, 1987.

A. David Stern, Brooklyn, for defendants-appellants.

Richard J. Kurtz, of counsel (D'Addario & Kurtz, New York City), for plaintiff-respondent.

Before KUPFERMAN, J.P., and SULLIVAN, ROSENBERGER, ELLERIN and WALLACH, JJ.

WALLACH, Justice.

This case calls upon us to confront the constitutional requirement of separation of church and state in the context of the orthodox Jewish faith, which grants the male partner to the marital union a virtual veto over a religious divorce. The appropriate division of religious and secular power has long been a matter of concern to civilized communities, at least since the ancient advice provided to the perplexed Judean taxpayers to render unto Caesar the things that are Caesar's and unto God the things that are God's. During the next two millennia considerable blood has been spilled over which things belonged where. For the reasons stated below we hold that where either spouse has invoked the power of the state to effect a civil dissolution of a marriage, an oppressive misuse of the religious veto power by one of the spouses subjects the economic bargain which follows between them to review and potential revision. But that same conduct does not expose the overreaching party to additional liability in tort.

Plaintiff Charles Perl ("husband") and defendant Chana Perl ("wife") were married in an orthodox Jewish marriage ceremony in November, 1967. After a childless union of some twelve years they separated, and eventually were issued mutual judgments of divorce in Kings County Supreme Court on June 22, 1982, with all financial matters pertaining to equitable distribution of the couple's marital property being deferred for future disposition. To that end proceedings were held before Hon. Salvatore DeMatteo as special referee in early July, 1982, which culminated in a stipulation of settlement in open court upon the record on July 8, 1982, with an amendment thereto executed by the parties four days later.

According to the pleadings and affidavits of the wife on this motion for summary judgment, the distribution of the marital property before the referee constituted nothing less than a total surrender of her rights brought about by the husband's duress and destruction of her independent will power. The stipulated terms required her to deliver to the husband (1) all of the remaining securities jointly owned by the parties; (2) payment of $35,000 to compensate the husband for jointly owned securities she had previously sold; (3) an additional sum of $30,000 payable in monthly installments of $2,000 with acceleration of the balance due in the event of default, this obligation being guaranteed by promissory notes executed and delivered by Charles Rosner, the wife's uncle who is the other individual defendant herein; (4) a deed conveying her one-half interest in the marital home; (5) title to her automobile; and to cap it all off (6) her engagement ring and other personal jewelry. The only economic consideration received by the wife was the husband's quitclaim of any interest in two corporations, C.P. Jewelry, Inc. and Famous Chains, Inc. However, she further alleges that these concessions were wholly illusory, C.P. Jewelry, Inc. being defunct and valueless by reason of the husband's stealthy raid in 1980 on the corporate safe when he looted it of approximately $170,000 in cash and gold, and Famous Chains, Inc. (the corporate defendant herein) being an enterprise entirely created and owned by her as separate property after the separation of the parties. To be sure, the husband vigorously disputes these assertions of the wife, contending, inter alia, that the marital home was a gift from his parents, and that he relinquished a valuable interest in Famous Chains, Inc. as his quid pro quo. This aspect of the controversy simply poses a triable issue. What appears clear from the structure of the stipulation is the central importance to the wife of a Jewish religious divorce ("a Get"); indeed the husband's obligation to furnish it is described as "the prerequisite for the settlement reached herein," and his attorney is required to hold everything delivered by the wife in escrow, to be returned to her "if a Jewish divorce is not given within ten days." The husband made timely delivery of the Get, and the stipulated property, including the post-dated checks and promissory notes, was released to him.

When the wife and her uncle-guarantor dishonored both the post-dated checks issued by Famous Chains, Inc. and the escrowed promissory notes the husband commenced this action in New York County, his first cause of action seeking a $34,000 judgment against the wife on the stipulation, against the corporation on the checks, and against the uncle upon the notes. By way of defense to the husband's motion for summary judgment on his first cause of action, in their second affirmative defense and three counterclaims, defendants sought to defeat this liability by allegations of coercion and duress--namely that the husband, knowing that his wife was of the Orthodox Jewish faith and could never remarry or bear children without a Get, and aware that only he, under Jewish law, could permit such an instrument to issue, used this knowledge to crush the wife's resistance to his extortionate financial demands and that she, because of her desperation to be free to remarry, bear children, and live a normal life, simply capitulated.

Special Term granted the husband's motion for summary judgment against all three defendants and directed judgment against them in the sum of $34,000, striking the first affirmative defense based upon the Statute of Frauds, the second defense based upon duress and overreaching, and dismissed the first three counterclaims for, respectively, (1) tort damages based upon the intentional infliction of severe emotional distress; (2) vacatur of the stipulation and the underlying judgment of divorce in Kings County; and (3) imposition upon the husband of a constructive trust with respect to the property delivered to him under the stipulation, and a declaratory judgment that the checks and notes are void, and other related relief. We affirm the dismissal of the first counterclaim but reverse Special Term's award of summary judgment to the husband and its dismissal of the second and third counterclaim. The Statute of Frauds defense is no longer pressed.

Special Term found the wife's contentions with respect to duress and overreaching to be precluded as a matter of law by the following recital in open court by the husband's counsel who dictated the entire stipulation into the record:

... each of the parties has had the opportunity to reflect upon the terms of the settlement dictated upon this record, having discussed it with their respective counsel, their accountants, family and friends and do enter into this stipulation of settlement voluntarily without any duress, fraud or coercion.

The unequal allocation of power between spouses to terminate a religious marriage--particularly where the partners are of the Jewish faith--has received the attention of the courts (Avitzur v. Avitzur, 58 N.Y.2d 108, 459 N.Y.S.2d 572, 446 N.E.2d 136; "Rubin" v. "Rubin", 75 Misc.2d 776, 348 N.Y.S.2d 61; Chambers v. Chambers, 122 Misc.2d 671, 471 N.Y.S.2d 671); the Legislature (Domestic Relations Law § 253), and the Executive, from which it is...