Scholl v. Scholl, G-1609

• Decision Date: 14 April 1992
• Docket Number: No. G-1609,G-1609
• Citation: 621 A.2d 808
• Parties: In the Matter of * Kenneth M. SCHOLL (Husband), Petitioner, v. Barbara SCHOLL (Wife), Respondent. . Submitted:
• Court: Delaware Family Court

Page 808

621 A.2d 808

In the Matter of ^* Kenneth M. SCHOLL (Husband), Petitioner, v. Barbara SCHOLL (Wife), Respondent.

No. G-1609.

Family Court of Delaware New Castle County.

Submitted: April 14, 1992.

Decided: May 20, 1992.

Henry A. Heiman, Wilmington, for petitioner.

Joseph J. Longobardi, III, Wilmington, guardian ad litem for petitioner.

Gerald Z. Berkowitz, Wilmington, for respondent.

OPINION

GALLAGHER, Judge.

The above parties have been involved in extensive legal proceedings and negotiations which finally led to a Stipulation of Settlement entered with this Court on June 28, 1990, for the settlement of ancillary matters. Four issues remain unresolved from that settlement agreement including: 1) Husband's cooperation with Wife in obtaining a GET, 2) Medical bills, 3) Responsibility for foreclosure costs, and 4) Counsel fees for Wife's legal costs. I am prepared to make final rulings on these remaining four issues.

I.

In June of 1990, Husband and Wife entered into a Stipulation of Settlement which provided that all matters as to ancillary jurisdiction were dismissed subject only to the Stipulation. Paragraph 10 of the Stipulation provides; "Husband shall forthwith cooperate with Wife in allowing her to obtain a Jewish Divorce known as a GET." ¹

Husband did obtain a GET on August 8, 1990, from the Rabbinical Court of Philadelphia. However, Wife contends that this GET is insufficient because it was issued by a conservative rather than an orthodox Rabbinical Court. The significance of this contention is that, because Wife is of the Orthodox Jewish Faith, the issuance of a Conservative GET will not allow her to be considered free and able to remarry under the Orthodox Faith. This situation really hinges on three pertinent issues. 1) Whether the parties have entered into a contract enforceable by this Court, and 2) Whether a ruling requiring Husband to obtain an Orthodox GET would be constitutionally infirm, and 3) Assuming this Court has the authority to require Husband to obtain a GET, whether Husband's actions have complied with his contractual duties under the Stipulation.

II.

Jurisdiction of the Family Court with regards to the enforcement of the Stipulation of Settlement is provided for in 13 Del.C. § 507(a), which states in relevant part:

"(a) The Family Court of this state should have exclusive original jurisdiction over all actions arising under this Chapter. The Court shall have exclusive jurisdiction over the construction, reformation, enforcement and recission of agreements made between future spouses, spouses and former spouses concerning the payment of support or alimony, the payment of child support, the division and distribution of marital property and marital debts and any other matters incident to a marriage, separation or divorce.

The Court shall have jurisdiction to resolve any issues resulting from the construction, reformation, enforcement or recission of an agreement...."

Therefore, Family Court does have jurisdiction and the Stipulation of Settlement entered into by these parties is enforceable by this Court.

III.

It appears that no Court in this state has been asked before to determine the constitutionality of a requirement that a party obtain an orthodox GET. Husband contends that both the United States Constitution and First Amendment and the Delaware Constitution of 1897 in Article I § 1 provide for freedom of religion, and that for this Court to determine that the relief sought by Wife is appropriate, it must of necessity, make a decision regarding religious teaching and must conclude that the decision of Husband in obtaining a GET does not meet the religious standard desired by Wife. Husband further argues that a Civil Court should not compel specific performance of a form of religious worship.

While the question of whether an Order of this Court for specific performance of the Stipulation of Settlement would constitute a violation of Husband's first amendment rights remains to be determined in Delaware, authority to permit such an order appears when applying general principles of constitutional law and the approaches taken in nearby states. It is clear that judicial involvement in matters touching upon religious concerns has been constitutionally limited in analogous situations, and Courts should not resolve such controversies in a manner requiring the consideration of religious doctrine. Presbyterian Church v. Hull Church, 393 U.S. 440, 449, 89 S.Ct. 601, 606, 21 L.Ed.2d 658 (1969). In a recent pronouncement on this issue, the Supreme Court, in holding that a state may adopt any approach to resolving religious disputes which does not entail consideration of doctrinal matters, specifically approved the use of a "neutral principles of law" approach as consistent with constitutional limitations. This approach contemplates the application of objective, well-established principles of secular law to the dispute, thus permitting judicial involvement to the extent that it can be accomplished in purely secular terms. Jones v. Wolf, 443 U.S. 595, 602, 99 S.Ct. 3020, 3025, 61 L.Ed.2d 775 (1979).

The New York Court system has had numerous opportunities to decide the issue before this Court and has consistently determined that the judiciary has the authority to require a Husband to obtain a GET. In the case of Avitzur v. Avitzur, 58 N.Y.2d 108, 446 N.E.2d 136, 459 N.Y.S.2d 572, 29 ALR 4th 736, cert. den., 464 U.S. 817, 104 S.Ct. 76, 78 L.Ed.2d 88 (1983), the Court held that a provision in a marriage contract entered into as part of a religious marriage ceremony, providing in part, that the parties agreed to arbitrate any post-marital religious obligations before a specified rabbinical tribunal, known as a "Beth Din ²," was enforceable and subject to specific performance. Although recognizing the religious character of the marital contract, the court said that it did not necessarily follow that any enforcement of its obligations was foreclosed to the Courts, reasoning that a state may adopt any approach to resolving religious disputes which does not entail consideration of doctrinal matters. The Court determined that the present case could be decided solely upon the application of neutral principles of contract law, without reference to any religious principle, and consequently, that Husband's objections to enforcement of his promise to appear before the "Beth Din," based as they were upon the religious origin of the agreement, posed no constitutional barrier to the relief sought.

In Koeppel v. Koeppel, 138 N.Y.S.2d 366 (1954, Sup), the Court specifically enforced a provision in a preannulment agreement providing, in pertinent part, that upon the successful prosecution of Wife's action for the dissolution of the marriage, Husband and Wife agreed to appear before a Rabbi and execute any and all papers and documents required to effectuate a dissolution of their marriage in accordance with the ecclesiastical laws of the faith and church of the parties. The Court rejected Husband's contention that the provision was illegal and contrary to public policy in that its purpose was to procure a dissolution of the marriage, stating that not all agreements conditioned on divorce are illegal, and that not every agreement which is to become effective upon the termination of a marriage necessarily is promotive of divorce.

The Court added that a decree of specific performance would not interfere with Husband's freedom of religion under the constitution, on the basis that compliance with the agreement would not compel Husband to practice any religion, not even the Jewish faith to which he still admitted adherence, and that his appearance before a Rabbi to answer questions and give evidence was not a profession of faith. The Court concluded that specific performance would merely require Husband to do that which he voluntarily agreed to do.

A New York Court granted specific performance of a separation agreement which provided, in pertinent part, that prior to Wife vacating the premises, the parties should obtain a GET from a "duly constituted rabbinical Court." Waxstein v. Waxstein, 90 Misc.2d 784, 395 N.Y.S.2d 877 (1976), aff'd, 57 A.D.2d 863, 394 N.Y.S.2d 253 (2d Dept.1977). The Court rejected Husband's argument that to enforce a contractual provision requiring a spouse to obtain a GET would be an improper involvement of the Court in religious affairs. The Court pointed out that the validity of an agreement to obtain a GET had been recognized in this state, and thus the Court could grant specific performance of the provision in the separation agreement requiring the parties to obtain the GET, although it was precluded from enforcing the provision by means of imprisonment, or the convening of the actual rabbinical tribunal. Accordingly, the Court directed Husband to take whatever steps were necessary to secure the GET for Wife and it also conditioned enforcement of the other provisions in the separation agreement upon Husband's cooperation in securing the GET.

The State of New Jersey also recently determined that it was proper to compel Husband to secure the GET in accordance with the terms of the marriage contract. Minkin v. Minkin, 180 N.J.Super. 260, 434 A.2d 665 (1981). The Court went on to state that a contract between a husband and wife will be enforced if it is not unconscionable and if the performance to be compelled is not contrary to public policy.

Rejecting Husband's argument that the relief sought by Wife would infringe upon his First Amendment right of religious freedom, the Court relied upon expert testimony that the acquisition of a GET did not constitute a religious act, but was rather a severance of a contractual relationship between two parties, and that the GET did not affect a person's religious feelings, but was concerned only with Wife's right to remarry under Jewish law. The Court determined that the entry of an order compelling Husband to secure a GET would...