In the case below in Kings County Supreme Court, Judge Sunshine decides that an Israeli religious divorce is not valid under the laws of New York, because it was a religious proceeding.


20542/06
SUPREME COURT OF NEW YORK, KINGS COUNTY
2008 NY Slip Op 50981U; 19 Misc. 3d 1132A; 866 N.Y.S.2d 96; 2008 N.Y. Misc. LEXIS 2809

May 14, 2008, Decided
Jeffrey S. Sunshine, J.

The seminal issue before this court is whether or not the deliverance of an Orthodox Jewish divorce ( a "Get") to a wife which was obtained from a religious tribunal in Brooklyn, New York can be registered in the State of Israel and then act as a bar to litigating a divorce in the State of New York. Defendant Alla Tsirlin moves for an order, pursuant to CPLR 3211 and the doctrines of comity and judicial estoppel, directing that a judgment be entered dismissing the complaint of plaintiff Alexander Tsirlin, in which he seeks a judgment of divorce, and affirming the judgment of divorce obtained from an Israeli court.

Procedural Background

Plaintiff husband commenced this action on July 11, 2006, seeking to obtain a judgment of divorce on the ground of abandonment and an order granting the parties joint custody of their son, Jonathan, with physical custody to the wife; setting a visitation schedule; and awarding child support in accordance with the Child Support Standards Act. In her answer, the wife denies that she abandoned the husband and interposes an affirmative defense in which she claims that the parties were already divorced at the time that the instant action was commenced.

Facts

Plaintiff and defendant were married on September 5, 1995, in Jerusalem, Israel, in a Jewish ceremony, at a time when both were Israeli citizens. On February 23, 1996, a son was born in Jerusalem.

Sometime in 1998, defendant's father, who was a United States citizen, filed a petition to bring his daughter and her family to the United States. The petition was approved and thereafter, an immigration interview was scheduled for August 2003 at the United States Consulate in Jerusalem; the family accordingly left the United States to attend. At the interview, the wife and the parties son were approved for green cards, but the husband was not, allegedly because his fingerprints had not yet cleared. The couple then returned to the United States, with the husband's stay being limited to one month. Accordingly, in October 2003, the husband left the United States to await the issuance of a green card.

On December 9, 2003, the husband delivered to his wife a "Get", or a Jewish divorce, in Kings County. As is relevant herein, the "Get" provides that the husband divorced his wife and:

"In accordance with Jewish Religious Law, he is free to remarry provided he is also civilly divorced.

"This certificate applies only to [the husband] and is not to be taken as evidence regarding the status of his wife."

On the same day, the wife received a similar document that additionally provided that she is free to remarry "provided she waits 3 months until doing so".

Thereafter nearly two years later, on November 30, 2005, the Rabbinical Court, Jerusalem District, issued a decision stating that "[w]e herewith endorse that the applicants divorced on legal ground on December 9, 2003, and the Ministry of Internal Affairs is instructed to insert amendments into the Identity certificates of the applicants and to register them as divorced' instead of married'" (the Decision). The December 9, 2003 date refers to the "Get" plaintiff commenced this action for divorce in Kings County Supreme Court on July 11, 2006.

During oral argument of the motion on January 9, 2008, the parties represented that this Decision was in Israel obtained after the husband's father presented the "Get" received from the Brooklyn Rabbis to the court in Israel to be "endorsed." Both parties also denied ever appearing before the Israeli court in connection with the issuance of the endorsement.

The Parties' Contentions

In support of her motion, defendant argues that the Decision of the Rabbinical Court in Israel establishes that the parties were divorced there as of November 30, 2005. Defendant further relies upon a registration extract from the Population Registry issued on July 1, 2007 by the Israeli Minister of the Interior, which indicates that her status is "divorced." She also relies upon a reference issued by the Consulate General of the State of Israel in New York that indicates that she is divorced.

In opposition, plaintiff argues that in December 2003, he received a telephone call from his wife, during which she demanded that he grant her a "Get", or she would never allow him to see his son. He accordingly returned to the United States. Prior to appearing before the Rabbinate, however, the husband alleges that he consulted with an attorney, who advised him that the issuance of a "Get" would "not amount to a valid civil divorce." The husband accordingly gave the wife a "Get".

The husband further avers that thereafter, he returned to Israel to await his second interview with the American Consulate, which was held sometime in August 2004. As part of the process, the wife called the Consulate to confirm that she was his wife, or his papers would not be approved. The husband then returned to the United States with Jonathan, who had spent the summer with his grandparents in Israel. The parties separated sometime after the husband arrived in New York and have lived in separate residences since.

The Law

Clearly, "[t]his divorce action may lie in New York only if the parties are still married" (Gotlib v Ratsutsky, 83 NY2d 696, 699, 635 N.E.2d 289, 613 N.Y.S.2d 120 [1994]). Hence, if the decision issued by the Rabbinical Court in Israel is given effect, the husband cannot maintain the instant action for divorce. In deciding whether that decision should be given recognized by the courts of this State, it must be noted that:

"It is well settled that [a]lthough not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States' (Greschler v Greschler, 51 NY2d 368, 376, 414 N.E.2d 694, 434 N.Y.S.2d 194). However, in order for a divorce decree of a foreign court to be accorded recognition in this State, the foreign court must have had in personam jurisdiction over both spouses (see, Greschler v Greschler, supra, at 376)."

(Aranoff v Aranoff, 226 AD2d 657, 658, 642 N.Y.S.2d 49 [1996]; see also Azim v Saidazimova, 280 AD2d 566, 567, 720 N.Y.S.2d 561 [2001] [comity should be extended to uphold the validity of a foreign divorce decree absent some showing of fraud in the procurement or that recognition of the judgment would do violence to some strong public policy of the State]; In re Estate of Lovick, 201 AD2d 736, 737, 608 N.Y.S.2d 310 [1994] [New York courts will generally accord recognition to bilateral foreign judgments of divorce under the doctrine of comity]). Further, the court is not obligated to extend comity to a judgment of divorce that is the result of the fraud, duress, and deceit (see e.g. Schaeffer v Schaeffer, 294 AD2d 420, 421, 741 N.Y.S.2d 895 [2002]).

As is also relevant to the resolution of the dispute now before the court, CPLR 4511(b) provides that:

"Every court may take judicial notice without request of private acts and resolutions of the congress of the United States and of the legislature of the state; ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States; and the laws of foreign countries or their political subdivisions. Judicial notice shall be taken of matters specified in this subdivision if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. Notice shall be given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice."

As is also relevant, CPLR 3016(e) provides that "[w]here a cause of action or defense is based upon the law of a foreign country or its political subdivision, the substance of the foreign law relied upon shall be stated." "Where, as here, the record reveals a total failure' to prove foreign law, the parties have consented that the forum law be applied to the controversy'" (Bank of New York v Nickel, 14 AD3d 140, 149, 789 N.Y.S.2d 95 [2004], lv dismissed 4 NY3d 846, 830 N.E.2d 322, 797 N.Y.S.2d 423 [2005], quoting Watts v Swiss Bank, 27 NY2d 270, 276, 265 N.E.2d 739, 317 N.Y.S.2d 315 [1970]; see also Storozynski v Storozynski, 10 AD3d 419, 420, 781 N.Y.S.2d 141 [2004] [since the parties neither invoked Polish law nor supplied applicable citations to it as is required pursuant to CPLR 4511(b), they were presumed to agree that the law of New York controlled the interpretation of the agreement at issue]).

Finally, the court notes that in the case of Chertok v Chertok (208 A.D. 161, 203 N.Y.S. 163 [1 Dept., 1924]), which the court addressed the issue of whether a rabbinical divorce procured in New York in accordance with Jewish law, that was then consummated in Russia, according to the rabbinical laws recognized by Russia, was binding in this State. After noting that the Constitution of the State of New York provides at Article 1, Section 9, that no divorce shall be granted otherwise than by due judicial proceedings, the First Department held that:

"In view of this and of the inhibition contained in section 1450 of the Penal Law, we must hold that the writing, purporting to be a divorce obtained from a rabbi in Brooklyn cannot be recognized as having any effect in this State or as having been validated by what was done in Russia. . . .

"The rabbinical divorce must be regarded as having had its inception in the paper issued by the Brooklyn rabbi, and although the Russian government may recognize it, the divorce is void in its inception under our law."

(id. at 162-163).

Discussion

Herein, both the husband and wife allege that they obtained a "Get" from a Rabbinical court in New York City on December 9, 2003. The parties represent that neither of them appeared before the Israeli court and that the Decision from the Israeli court that the wife relies upon to argue that the parties are already divorced "endorsed" the "Get" granted by the Rabbis in New York. No evidentiary proof of the proceedings underlying the issuance of the Decision was ever presented to this court.

Accordingly, applying the holding of Chertok to the facts of this case, although the Israeli government may recognize the divorce granted in New York City, it is void in its inception under our law (id.). Moreover, the court cannot reach any other decision by applying the laws of Israel, since the wife's failure to prove that the laws of Israel would require a contrary result compels the conclusion that the laws of New York be applied to the instant dispute (Bank of New York, 14 AD3d at 149).

In New York State, the legislature in 1983 enacted Domestic Relations Law section 253, which addresses the removal of barriers to remarriage, which provides, in pertinent part, that:

"2. Any party to a marriage defined in subdivision one of this section who commences a proceeding to annul the marriage or for a divorce must allege, in his or her verified complaint: (i) that, to the best of his or her knowledge, that he or she has taken or that he or she will take, prior to the entry of final judgment, all steps solely within his or her power to remove any barrier to the defendant's remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision.

"3. No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement: (i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant's remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision.

. . .

"8. Any person who knowingly submits a false sworn statement under this section shall be guilty of making an apparently sworn false statement in the first degree and shall be punished in accordance with section 210.40 of the penal law.

"9. Nothing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue. The truth of any statement submitted pursuant to this section shall not be the subject of any judicial inquiry, except as provided in subdivision eight of this section."

 In approving the bill enacting Domestic Relations Law 253, the Governor wrote:

"The requirement of a get is used by unscrupulous spouses who avail themselves of our civil courts and simultaneously use their denial of a get vindictively or as a form of economic coercion.

"Conceitedly this use of our civil courts unfairly imposes upon one spouse, usually the wife, enormous anguish. (McKinney's Session Laws 1983 ch. 979, 2818, 2819; emphasis added.)"

If this court were to sanction the utilization of a "Get" to circumvent the constitutional requirement that only the Supreme Court can grant a civil divorce, then a party who obtains a "Get" in New York could register it in a foreign jurisdiction and potentially, later on, rely on the "Get" to obtain a civil divorce in New York thereby rendering New York State's Constitutional scheme as to a civil divorce ineffectual (New York State Constitution, Article 1 Section 9 . . . nor shall any divorce be granted otherwise by judicial proceedings). It would have the practical affect of amending the Domestic Relations Law section 170 to provide a new grounds for divorce.

As a matter of public policy the State of New York requires a party seeking a divorce to remove all barriers to remarriage prior to the entry of the judgement. Here the plaintiff removed the barriers immediately upon the wife's request. To now allow a party to deny a spouse their day in court on the issue of divorce based upon compliance with New York's Statutory scheme (Domestic Relations Law section 253) would act as a deterrence for spouses who find themselves in a similar situation from voluntarily removing barriers to a spouse's remarriage

Conclusion

For the above stated reasons, the divorce obtained by the parties in an Israeli court which was predicated on a religious divorce ("Get") is void under the laws of New York and will not be recognized in New York. Accordingly, since the parties are still married, the instant action in which the husband seeks to obtain a judgment of divorce is properly instituted and the wife's motion to dismiss is denied.

The foregoing constitutes the order and decision of this court.

ENTER

JEFFREY S. SUNSHINE

J.S.C.