Schwartz v. SchwartzSchwartz v. Schwartz
Ordered that on the Court‘s own motion, the defendant‘s notice of appeal from so much of the order as, sua sponte, struck the action from the active trial calendar is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see
Ordered that the order is modified, on the law, the facts, and in the exercise of discretion, (1) by deleting the provision thereof denying that branch of the defendant‘s motion which was, in ef
The plaintiff David Schwartz (hereinaftеr the husband) and the defendant Melanie Schwartz (hereinafter the wife) are Orthodox Jews who were married in a civil ceremony in May 2006 and, thereafter, married in a religious ceremony in August 2007. In November 2007 the husband commenced this action for a divorce and ancillary relief.
On March 20, 2008, the parties appeared before the Supreme Court, and the husband advised the court that he was not asking for maintenance, had taken every step within his power to remove any barrier to the wife‘s remarriage, and would take any other steps necessary to remove any barrier to the wife‘s remarriage. On that date, the parties entered into a written stipulation (hereinafter the stipulation), “so-ordered” by the court, which provided, inter alia, that the husband would be granted a divorce on the ground of constructive abandonment and that there would be no claims by either party for maintenance or equitable distribution. The stipulation also provided that, prior to the wife‘s return to England оn March 31, 2008, the parties would appear at the Beth Din Beth Joseph in Brooklyn (hereinafter the Beth Din) “for the purpose of a ‘Get‘” and that “the parties may opt for a Zabla” (a “Get” is a Jewish divorce decree, without which the wife may nоt remarry within her faith, and a Beth Din is “a rabbinical tribunal having authority to advise and pass upon matters of traditional Jewish law” [Avitzur v Avitzur, 58 NY2d 108, 112 (1983), cert denied 464 US 817 (1983); see Fischer v Fischer, 237 AD2d 559, 560 (1997)]).
The husband failed to appear at the Beth Din by March 31, 2008, and the wife moved to hold him in contempt of court for his failure to comply with the stipulation and for an award of
The husband appealed from the November 2008 order and, on or about December 10, 2008, made an unsuccessful motion in this Court to stay its enforcement. Ultimately, the husband‘s appeal from the November 2008 order was dismissed by decision and order on motion of this Court for failure to perfect in aсcordance with the rules of this Court (see
The husband appeared before the Beth Din on December 14, 2008. However, by letter dated December 15, 2008, the Beth Din declined his “request” that it “supervise the execution of the [G]et” based upon its conclusion that the husband would be executing the Get under duress resulting from the terms of the November 2008 order. Thereafter, in a demand for arbitration dated January 1, 2009, the husband demanded, “pursuant to the Stipulation executed on March 20, 2008,” that the wife present herself for arbitration before the Beth Din.
In January 2009 the wife moved, inter alia, in effect, to hold the husband in contempt of court for failure to comply with the stipulation and the November 2008 order and for an award of attorney‘s fees related to both the instant motion and her motion determined by the November 2008 order. Separately, she moved to permanently stay the husband‘s demand for arbitration. In an order dated July 20, 2009, the Supreme Court, among other things, in effect, denied those branches of the wife‘s motion which were to hold the husbаnd in contempt of court and for an award of attorney‘s fees, but granted her separate motion to permanently stay the husband‘s demand for arbitration. Additionally, the court, sua sponte, struck the action from the active trial calendar “until the parties have resolved their
The Supreme Court improvidently exercised its discretion in denying that branch of the wife‘s motion which was, in effect, to hold the husband in contempt of court for failure to comply with the Stipulation and the November 2008 order. We note that this matter can be decided solely upon the application of neutral principles of law, without reference to any religious principles or doctrine (see Jones v Wolf, 443 US 595, 602-603 [1979]; Avitzur v Avitzur, 58 NY2d at 114-115). “A so-ordered stipulation is a contract between the parties thereto and as such, is binding on them and will be construed in accordance with contract principles and the parties’ intеnt” (Tutt v Tutt, 61 AD3d 967, 968 [2009], quoting Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446, 447 [2006]; see Orra Realty Corp. v Gillen, 76 AD3d 1056, 1058 [2010]). With regard to that branch of the wife‘s motion which was to hold the husband in contempt of court, “the relief sought by [the wife] . . . is simply to compel [the husband] to perform a secular obligation to which he contractually bound himself” (Avitzur v Avitzur, 58 NY2d at 115), and “[t]he New York courts have enforced precisely the type of stipulation which the parties entered into in the present case, by compelling the breaching party to comply by use of fines or by the withholding of сivil economic relief” (Fischer v Fischer, 237 AD2d at 560; see Kaplinsky v Kaplinsky, 198 AD2d 212, 212-213 [1993]; Margulies v Margulies, 42 AD2d 517 [1973]).
A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court (see Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944, 946 [2009]). To sustain a finding of civil contempt based upon a violation of a court order, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in effect and the person alleged to have violated the order had actual knowledge of its terms (see
Here, the record demonstrates, by clear and convincing evidence, that the husband knowingly and willfully disobeyed both the clear and unequivocal provisions of thе stipulation which required him, inter alia, to appear at the Beth Din prior to March 31, 2008, “for the purpose of a ‘Get‘,” and the clear and unequivocal provisions of the November 2008 order, which
Moreover, the Supreme Court should have granted that branch of the wife‘s motiоn which was for an award of attorney‘s fees. ”
The trial court has the inherent authority to manage its calendar in balancing the litigants’ rights against the demands of the calendar (see Tirado v Miller, 75 AD3d 153, 161 [2010]; Zeitlin v Greenberg, Margolis, Ziegler, Schwartz, Dratch, Fishman, Franzblau & Falkin, 262 AD2d 406 [1999]). Nevertheless,
Finally, the Supreme Court properly granted the wife‘s separate motion to permanently stay the husband‘s demand for arbitration before the Beth Din. “An agreement to arbitrate must be clear, explicit and unequivocal, and must not depend upon implication or subtlety” (Messiah‘s Covenant Community Church v Weinbaum, 74 AD3d 916, 918 [2010]; see God‘s Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374 [2006]; Matter of Waldron [Goddess], 61 NY2d 181, 183-184 [1984]). Here, contrary to the husband‘s contention, the stipulation does not contain a clear, explicit and unequivocal agreement or mandate to arbitrate (see Messiah‘s Covenant Community Church v Weinbaum, 74 AD3d at 918; Sieger v Sieger, 297 AD2d 33, 36-37 [2002]).
The wife‘s remaining contentions either are without merit or need not be reached in light of our determination. Covello, J.P., Angiolillo, Dickerson and Belen, JJ., concur.