NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-0472-10T4

RONA LOWY, Plaintiff-Respondent, v. MARC LOWY,

Defendant-Appellant. ________________________________________________________________ Submitted December 6, 2011 - Decided December 21, 2011 Before Judges Carchman and Baxter. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1420-04. Marc D. Lowy, appellant pro se. Respondent has not filed a brief. PER CURIAM Defendant Marc Lowy appeals from an August 27, 2010 Family Part order that required him to provide his ex-wife, plaintiff Rona Lowy, with a Jewish divorce, known as a Get.1 defendant's contention that the judge exceeded We agree with his authority

when he so ordered.
1

We reverse.

The Jewish faith specifies that a Get cannot be issued without the cooperation of the husband. Minkin v. Minkin, 180 N.J. Super. 260, 261-62 (Ch. Div. 1981) (citing 6 Encyclopedia Judaica 132 (1971)).

I. The parties were divorced on September 20, 2004 when the Family Part issued a dual final judgment of divorce, which, by agreement of the parties, incorporated the August 4, 2004

decision of a Bais Din (rabbinical court) located in Monsey, New York. array The August 4, 2004 decision of the Bais Din addressed an of issues including the child custody, visitation, the

children's

education,

children's

religious

instruction,

child support and distribution of marital assets. Moreover, the August 2004 decree issued by the Bais Din addressed the issue of obtaining a Get. contained the following provision: If the arrangements for a Get will be made between Plaintiff and Defendant [sic], Plaintiff shall pay for Get fees incurred.2 As is evident, the Bais Din did not require defendant to provide plaintiff with a Get. Din specified that if Instead, the decree issued by the Bais such a religious dissolution of the A portion of Section 6

marriage were to be obtained, plaintiff would be responsible for paying for it. We note that there were other references to a Get in

Section 6 of the Bais Din decree; however, none went so far as requiring
2

Get,

or

requiring

defendant

to

cooperate

with

Rona Lowy was the plaintiff before the Bais Din.

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obtaining

one.

The

other

references

to

Get

were

these:

"Until the issuance of [a] Get, plaintiff and defendant have no halachic3 another"; obligated or otherwise the monetary of obligations [a] Get, [sic] to is to one not the

"Upon to pay

issuance

defendant contract)5

Kesuba4

(Jewish

marriage

plaintiff"; "After the issuance of a Get, the plaintiff and defendant house." The relationship between the parties after the issuance of the August 2004 Bais Din decree was acrimonious, with numerous motions being filed in the Family Part to enforce various are halachically not allowed to live in the same

provisions of the Bais Din decree. application filed by plaintiff in

Among those motions was an the latter part of 2005

seeking to compel defendant to cooperate with providing her a Get. That motion resulted in a February 8, 2006 order which

provided in relevant part: Defendant shall cooperate with regard to providing a Get in accordance with the decision of the Bais Din. The Get was not obtained, causing plaintiff to file the motion that is the subject of this appeal, this time asking the The term "halachic" refers to the Jewish texts that interpret the biblical obligations of Jewish people to each other and to God. 4 This term is also spelled Ketuba or Ketubah. 5 The parenthetical language is part of the Bais Din decree.
3

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judge to "[f]ind[] defendant in violation of litigant's rights for failing to provide [her] with a Get in violation of the February 8, 2006 order." Plaintiff further sought an order

imposing a monetary sanction for each day after July 1, 2010 that defendant persisted in his refusal to cooperate. certification plaintiff filed in support of her In the she

motion,

asserted that defendant refused to grant a Get, unless she paid him money. Expressing her "frustration and aggravation over the

refusal of [defendant] to grant a Get over the last 6 (six) years," plaintiff urged the court "for the sake of equity and justice" to compel defendant to cooperate in removing "this

barrier to her right to continue her life." During the August 27, 2010 oral argument on plaintiff's motion to compel defendant to provide a Get, plaintiff advised the judge that defendant had identified a rabbi in Brooklyn, Rabbi Bluth, who was willing to assist the parties in obtaining a Get, whereupon the judge stated: [Defendant's] going to do it, whether he likes it or not. . . . Whether it's through this rabbi or somebody else he will do it. He's not going to tell me what I can order in this courtroom. The judge signed a confirming order at the conclusion of oral argument on August 27, 2010, stating in relevant part that

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"defendant

shall

provide

plaintiff

with

Get,

without

conditions, within 45 days of the date of this Order." On appeal, defendant argues: I. [THE] TRIAL COURT ABUSED ITS DISCRETION BY ORDERING DEFENDANT TO PERFORM A RELIGIOUS GET PROCEDURE OVER HIS OBJECTIONS IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT OF FREE EXERCISE OF RELIGION. II. [THE] TRIAL COURT ERRED BY ORDERING DEFENDANT TO PROVIDE A "GET" WHEN ANY "GET" ORDERED BY A COURT IS INVALID UNDER DEFENDANT'S RELIGIOUS LAW, AND WHEN THE "GET" IS NOT UNDER DEFENDANT'S CONTROL. III. [THE] TRIAL COURT ABUSED ITS DISCRETION IN ORDERING DEFENDANT TO PERFORM A RELIGIOUS "GET" PROCEDURE, AS [THE] "GET" PROCEDURE WAS NEVER ORDERED BY ANY RABBINIC ARBITRATION PANEL. IV. [THE] TRIAL COURT ABUSED ITS DISCRETION BY UNCONSTITUTIONALLY ENTANGLING ITSELF IN A RELIGIOUS MATTER, AND BY DISPLAYING ANIMUS TOWARDS DEFENDANT'S DEEPLY HELD RELIGIOUS CONVICTIONS. II. We turn first to the claim defendant advances in Point III, in which defendant asserts that the judge abused his discretion in ordering him to provide plaintiff with a Get. He maintains

the judge's reliance on the Bais Din decree was error, as the Bais Din never issued such an order. In support of that argument, defendant notes, correctly, that the August 2004 decision of the Bais Din stopped far short

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of

requiring

defendant

to

provide

plaintiff

with

Get. which

Instead, the Bais Din decree addressed but one subject: of the two parties would pay for the Get. that issue by requiring plaintiff to

The Bais Din resolved pay all costs. We

emphasize that the Bais Din did not, however, require defendant to provide his ex-wife with a Jewish divorce. For that reason,

we agree with the claim advanced by defendant in Point III, as the Get was never ordered by the Bais Din rabbinic panel. III. We now address Points I and IV in tandem. In those two

points, defendant maintains that the court lacked the authority to require him, in the absence of the Bais Din decision, to cooperate with a Get. unconstitutionally doctrine and He maintains that by doing so the court itself in of a matter the of religious Amendment

involved in

faith

violation

First

prohibition on courts becoming entangled in religious affairs. Our research has disclosed only one reported Appellate

Division or Supreme Court opinion on the subject of requiring a husband to cooperate with a Get, Mayer-Kolker v. Kolker, 359 N.J. Super. 98 (App. Div.), certif. denied, 177 N.J. 495 (2003). In Kolker, we refrained from squarely deciding the question of whether the husband could be required to provide his wife with a Get. Id. at 103. Instead, we held that the terms of the

A-0472-10T4

parties' marriage contract, or "Ketubah," were not sufficiently clear to justify a conclusion that the husband had agreed, at the time of the parties' marriage, that he would consent to a Get in the event of the parties' divorce. expressed considerable uncertainty Id. at 103-04. whether, We in

about

circumstances where a husband did not so agree in the Ketubah, courts have the authority to order a husband to provide a Get. Id. at 103. The judge's reliance here on the purported decision of the Bais Din was flawed, because, as we have already noted, the Bais Din stopped short of requiring defendant to cooperate with a Get. For that reason, the judge erred by enforcing the decree

of a religious tribunal, even though the parties had submitted their dispute to the Bais Din's jurisdiction. Once the Bais Din

decree is eliminated as a source of authority for the judge's August 27, 2010 enforcement order -- as it must be -- the order cannot be sustained because it constitutes impermissible See

judicial involvement in a matter of religious practice.

Abdelhak v. Jewish Press, Inc., 411 N.J. Super. 211, 235 (App Div. 2009) (holding that courts must refrain from becoming Simply

entangled in issues of religious faith and doctrine).

stated, the judge lacked the authority to compel defendant to "give the Get" where, under the facts presented here, defendant

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was not bound

by

any

contractual

agreement

to

do

so.

Mayer-Kolker, supra, 359 N.J. Super. at 103-04. Reversed.6

In light of our disposition, we need not address the claim defendant advances in Point II.

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