Tal v. Tal

• Citation: 158 Misc.2d 703,601 N.Y.S.2d 530
• Parties: Shahin TAL, Plaintiff, v. Herzel TAL, Defendant. /IAS, Part 23
• Decision Date: 08 February 1993
• Court: United States State Supreme Court (New York)

Page 530

601 N.Y.S.2d 530

158 Misc.2d 703

Shahin TAL, Plaintiff, v. Herzel TAL, Defendant.

Supreme Court, Nassau County,

Trial/IAS, Part 23.

Feb. 8, 1993.

Pearlman, Apat & Futterman, Kew Gardens, for plaintiff.

Carb, Luria, Glassner, Cook & Kufeld, Manhattan, for defendant.

MARVIN E. SEGAL, Justice.

FINDINGS OF FACT

The parties were married in Iran on February 19, 1977 in an orthodox religious ceremony. After the marriage, the parties moved to Israel. The parties have four children, to wit: Ronit, born December 16, 1977; Yair, born December 6, 1981; Raphael, born January 17, 1986 and Ariel, born October 30, 1987. The wife and Ronit and Yair moved to the United States in or about October, 1985; the husband moved here on or about December 20, 1985. The two younger children were born in this country. The parties lived in an apartment in Queens County for approximately two years. In or about September, 1988, they rented a house which is the present residence of the wife and children. The monthly rental expense, exclusive of utilities, totals $2,750.00.

The wife is 38 years old. She is not fluent in the English language and has never been employed. The husband is 42 years old. He owns and operates clothing stores in Manhattan. He also earns rental income from leases he holds on various commercial properties in Manhattan. The husband alleges that the parties began to experience marital difficulties in December 1990. He accuses the wife of "having an affair" with his best friend and remaining away from home. On or about March 7, 1991 the parties executed and acknowledged a document entitled "Separation Agreement". The agreement provides that the husband shall have custody of the children, subject to the wife's right of visitation. It requires that the husband support the children without contribution from the wife, and that he pay the wife maintenance of $1000.00 per month for a period of six years. The agreement further contains a waiver of inheritance rights and sets forth that all assets have been divided to the parties' mutual satisfaction. On or about April 24, 1991, the husband obtained a religious divorce, "a Get", from the Rabbinical Court of the Rabbinical Alliance of America. The husband alleges that during the religious divorce proceedings, the parties executed a second matrimonial agreement. This agreement requires that the husband In or about September, 1991, the wife returned to the marital home and the husband moved out and purchased a home for himself nearby. He alleges that the wife's return to the home was predicated upon the termination of her "relationship with her boyfriend". The husband alleges that since September, 1991, he has fully complied with the terms of the parties' separation agreement; that he paid the wife $126,000.00, and has paid child support in compliance with the agreement.

                pay the wife a lump sum of $125,000.00 in lieu of maintenance.   It also provides that in the event custody of the children is transferred to the wife, the husband would pay the sum of $6000.00 per month for the support of the children.   The husband retained counsel in Israel and contends that he obtained a formal decree of divorce from the Tel Aviv Jaffa Rabbinical Court in Israel on or about February 11, 1992
                

In or about July, 1992, the wife commenced an action for divorce in this State. Thereafter, she moved for omnibus pendente lite relief. She acknowledges that the husband paid her the sum of $126,000.00 and further states that he has paid expenses of $9500.00 per month for the support of herself and the children. She alleges, however, that the husband earns $850,000.00 per year and that based upon his income, the voluntary support paid to the wife is insufficient to meet her needs and those of the children. The husband contends that as Israeli citizens, the parties were validly divorced by the State of Israel on February 11, 1992. Based upon the Israeli Decree of Divorce he seeks an order dismissing the wife's complaint for divorce. In the alternative, the husband argues that the parties executed two valid and binding separation agreements; that he has fully complied with his obligations under said agreements and that the wife is therefore precluded from seeking pendente lite relief unless and until said separation agreements are set aside.

The wife denies the husband's allegations that she committed adultery. She responds that she left the marital home and sought refuge with relatives because the husband threatened her life. The wife alleges that the separation agreements and the "Get" were achieved through "fraud, diversion of assets, brutalization, duress and threats". She asserts that the separation agreement dated March 7, 1991 was executed by her as a "blank" piece of paper; that she had no counsel to represent her and no disclosure of the husband's assets or income. The wife further asserts that the agreement is unconscionable on its face; that the husband's affidavit of net worth sets forth assets of over $500,000.00 and the distribution to her of one-fifth of the disclosed marital assets is inequitable. She has amended her complaint so as to set forth a cause of action seeking judgment rescinding the separation agreements and declaring the Israeli Decree of Divorce to be a nullity.

CONCLUSIONS OF LAW

The courts of this state will generally accord recognition to bilateral foreign judgments of divorce, including the terms and provisions of any agreements incorporated therein, under the doctrine of comity. Greschler v. Greschler, 51 N.Y.2d 368, 434 N.Y.S.2d 194, 414 N.E.2d 694; Schoenbrod v. Siegler, 20 N.Y.2d 403, 283 N.Y.S.2d 881, 230 N.E.2d 638; Rabbani v. Rabbani, 178 A.D.2d 637, 578 N.Y.S.2d 213; see, generally, Restatement, Conflict of Laws 2d, Section 84, pp. 169-171. Absent some showing of fraud in the procurement of the foreign country judgment (Feinberg v. Feinberg, 40 N.Y.2d 124, 386 N.Y.S.2d 77, 351 N.E.2d 725) or that recognition of the judgment would do violence to some strong public policy of this state (see, e.g., Greschler v. Greschler, 51 N.Y.2d 368, 377, 434 N.Y.S.2d 194, 414 N.E.2d 694; Intercontinental Hotels Corp. v. Golden, 15 N.Y.2d 9, 13, 254 N.Y.S.2d 527, 203 N.E.2d 210; Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597), a party who properly appeared in the action is precluded from attacking the validity of a foreign country judgment in a collateral proceeding brought in the courts of this state. Greschler v. Greschler, supra, 51 N.Y.2d at 376, 434 N.Y.S.2d 194, 414 N.E.2d 694. A separation agreement incorporated in a valid foreign divorce judgment is also immune from challenge under the doctrine of comity, because such a challenge would essentially constitute an impermissible collateral attack on the foreign judgment. Greschler v. Greschler, supra at 378, 434 N.Y.S.2d 194, 414 N.E.2d 694; see also, McFarland v. McFarland, 70 N.Y.2d 916, 524 N.Y.S.2d 392, 519 N.E.2d 303; Galyn v. Schwartz, 56 N.Y.2d 969, 453 N.Y.S.2d 624, 439 N.E.2d 340; Rabbani v. Rabbani, supra; Robinson v. Robinson, 120 A.D.2d 415, 501 N.Y.S.2d 874.

In the instant action, the husband contends that the Tel Aviv Jaffa Rabbinical Court of the State of Israel had subject matter and personal jurisdiction over the parties herein such that this court should recognize the decree under the principle of comity. He contends that the divorce proceeding in the State of Israel was a bilateral proceeding based upon the wife's participation in and submission to the Rabbinical Court in the State of New York. He concedes, however, that the wife was never afforded notice of the commencement of any divorce action in Israel.

The decree issued by the Rabbinical Court of the Rabbinical Alliance of America on April 24, 1991, states that the husband herein "divorced his wife in accordance with Jewish Religious Law. In accordance with Jewish Religious Law he is free to remarry provided he is also civilly divorced. This certificate applies only to the above-mentioned and is not to be taken as evidence regarding the status of the wife." The Decree issued by the Tel Aviv Jaffa Rabbinical Court merely recites that the husband "who is abroad, has appeared before us, presenting us with the divorce certificate stating that (he) has divorced his wife Shahin. The divorce was arranged abroad, in America. We hereby confirm that (he) has divorced his above named wife....". The Decree issued by the Tel Aviv Jaffa Rabbinical Court of the State of Israel does not set forth that the wife appeared before said court, nor does the Decree incorporate by reference the terms of any separation agreement. While the parties herein did execute a purported separation agreement in the context of the proceeding conducted by the Rabbinical Court in this State, the decree resulting from that proceeding does not incorporate the agreement by reference and further specifically provides that the decree is not to be taken as evidence regarding the status of the wife.

The law is clear that judicial involvement in matters touching upon religious concerns has been constitutionally limited, and courts should not resolve controversies touching upon religious concerns in a manner requiring consideration of religious doctrine. Avitzur v. Avitzur, 58 N.Y.2d 108, 114, 459 N.Y.S.2d 572, 446 N.E.2d 136; Presbyterian Church v. Hull Church, 393 U.S. 440, 449, 89 S.Ct. 601, 606, 21 L.Ed.2d 658; Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 96 S.Ct. 2372, 2380, 49 L.Ed.2d 151; Jones v. Wolf, 443 U.S. 595, 603, 99 S.Ct. 3020, 3025, 61 L.Ed.2d 775. Thus, the issue as to whether or not the proceedings conducted herein, in the Rabbinical Courts in this country and in the State of Israel, resulted in the religious divorce of the parties according to Jewish Law is beyond the purview of this court. This court is not, however, without jurisdiction to adjudicate the enforceability of a separation agreement executed within the context of a religious...