Waxstein v. Waxstein

Decision Date28 July 1976
Citation90 Misc.2d 784,395 N.Y.S.2d 877
PartiesLillian WAXSTEIN v. Arthur WAXSTEIN.
CourtNew York Supreme Court

Baratta & Goldstein, New York City, for plaintiff.

Holtzman & Hoffman, New York City, for defendant.


In this action for divorce the complaint sets forth seven causes of action wherein the plaintiff seeks the following relief;

1. A judgment of absolute divorce upon the ground of a prior written agreement of separation.

7. An injunction requiring defendant to commence proceedings for a "Get", i. e., a Jewish religious divorce.

The matter was tried before me without a jury. While both parties were in agreement that the divorce should be granted on the ground of the separation agreement, I reserved decision on the entire case to examine and decide on the basis of factual and legal interpretations of the various provisions of the separation agreement. The parties were given an opportunity to submit memoranda of law, affidavits and an agreed statements of facts.

On the basis of the papers submitted, the court finds the following relevant facts as not being in dispute: The plaintiff and defendant were married on June 7, 1953. They have three children of this marriage, currently ages 18, 19 and 22. On May 29, 1973 the parties duly executed a separation agreement prepared by the plaintiff's attorney. Pursuant to this agreement plaintiff moved out of their marital residence before April 30, 1974 as provided in paragraph Tenth, and the deed transferring her interest in the property to the defendant is held in escrow by her attorneys under the terms of paragraph Thirty-First. Defendant still resides at the former marital home.

The defendant has failed to comply with the separation agreement. He refuses to give the plaintiff a "Get" in accordance with paragraph Seventh. It is appropriate to recite a few general principles concerning separation agreements.

A separation agreement is a contract and if lawful when made will be enforced by the courts like any other contract unless impeached or challenged for some cause recognized by law (Goldman v. Goldman, 282 N.Y. 296, 300, 26 N.E.2d 265, 267; Schmelzel v. Schmelzel, 287 N.Y. 21, 26, 38 N.E.2d 114, 115). And like other contracts the provisions of a separation agreement may be enforced by specific performance if the remedy at law is inadequate (Lottridge v. Lottridge, 73 Misc.2d 614, 617, 342 N.Y.S.2d 251, 255; 2 Foster-Freed, Law and the Family, § 28:35). But the court may not modify or alter its provisions so long as the agreement remains unimpeached (Stoddard v. Stoddard, 227 N.Y. 13, 20-21, 124 N.E. 91, 93-94; Goldman v. Goldman, supra, 282 N.Y. p. 300, 26 N.E.2d p. 267; Stillman v. Stillman, 20 A.D.2d 723, 724, 247 N.Y.S.2d 569, 571 (2d Dept.)). Where the terms of the agreement are clear and unambiguous the intent of the parties must be found therein (Matter of Wosnitzer, 47 A.D.2d 402, 404-405, 366 N.Y.S.2d 653, 655-656); any ambiguities will, however, be construed against the party who drafted the contract (Mars Associates Inc. v. Health & Mental Hygiene Fac. Impr. Corp., 47 A.D.2d 5, 6, 364 N.Y.S.2d 67, 69).

The burden of establishing an affirmative defense as to the agreement rests with the party asserting such defense and the burden must be met by a fair preponderance of the evidence (Birnbaum v. Birnbaum, 70 Misc.2d 462, 464-465, 333 N.Y.S.2d 890, 893-894, affd. 76 Misc.2d 1087, 352 N.Y.S.2d 600). In this connection, the court finds unavailing defendant's affirmative defense that the separation agreement is void under section 5-311 of the General Obligations Law as embracing a provision (viz., paragraph Seventh) which purports to dissolve the marriage between the parties. This paragraph should not be equated to or regarded as "an express provision requiring the dissolution of the marriage" (General Obligations Law § 5-311; Rosen v. Goldberg, 28 A.D.2d 1051, 283 N.Y.S.2d 804, affd. 23 N.Y.2d 791, 297 N.Y.S.2d 298, 244 N.E.2d 869), nor does the paragraph have a direct tendency to promote a divorce (Matter of Fleischmann, 64 Misc.2d 924, 926, 316 N.Y.S.2d 272, 274, affd. 37 A.D.2d 1044, 326 N.Y.S.2d 376).

1. Judgment of Divorce.

Plaintiff is entitled to a judgment of absolute divorce pursuant to subdivision 6 of section 170 of the Domestic Relations Law as the court finds that the parties "have lived separate and apart pursuant to a written agreement of separation * * * for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that she has substantially performed all the terms and conditions of such agreement".

In accordance with the terms of the separation agreement the entire agreement is to be incorporated, but not merged, into the judgment of divorce.

7. Injunction Requiring Defendant to Furnish a "Get" to Plaintiff.

In her last cause of action plaintiff demands judgment enjoining the defendant to institute a proceeding for a "Get", a Jewish religious divorce. In essence plaintiff seeks specific performance of paragraph Seventh of the separation agreement which provides that:

"Prior to the Wife vacating the premises as hereinbefore set forth, the parties shall obtain a Get from a duly constituted Rabbinical court. The Wife shall, directly or indirectly pay for the Get, and the Husband agrees to the Get provided it is done within the sixty day period prior to the vacation of the marital premises by the Wife."

Defendant urges as an affirmative defense that plaintiff violated this paragraph by vacating the marital premises without obtaining a "Get", thus waiving her right to the "Get". The court rejects this argument. It is the defendant who refuses to give the plaintiff a "Get" in violation of the agreement. Defendant should not thereby benefit because the plaintiff chose to comply with another provision of the agreement requiring her to vacate the marital premises on or before April 1, 1974.

Defendant's second argument is that the court may not enforce a contractual provision requiring a spouse to obtain a "Get". This court does not agree.

The validity of an agreement to obtain a "Get" has been recognized in this state (Koeppel v. Koeppel, Sup., 138 N.Y.S.2d 366, 373, affd. 3 A.D.2d 853, 161 N.Y.S.2d 694 (2d Dept.); Margulies v. Margulies, 42 A.D.2d 517, 344 N.Y.S.2d 482, appeal dismissed 33 N.Y.2d 894, 352 N.Y.S.2d 447, 307 N.E.2d 562; Rubin v. Rubin, 75 Misc.2d 776, 782, 348 N.Y.S.2d 61, 67).

In Koeppel v. Koeppel, supra, the wife brought an action to obtain specific performance of defendant's covenant, pursuant to a separation agreement, to comply with the necessary procedure to effectuate a Jewish religious dissolution of their marriage. Defendant refused to appear before a rabbi or rabbinate to execute the papers necessary to effectuate a religious dissolution in accordance with the laws of the Jewish faith. In denying defendant's cross-motion for summary judgment the court stated:

"Defendant has also contended that a decree of specific performance would interfere with his freedom of religion under the Constitution. Complying with his agreement would not compel the defendant to practice any religion, not even the Jewish faith to which he still admits adherence (paragraph Second of the complaint not denied in the answer). His appearance before the Rabbinate to answer questions...

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