Ismailizadeh v Shirazi
Annotate this CaseDecided on September 2, 2009
Supreme Court, Nassau County
Hilda Ismailizadeh, Plaintiff
against
Behouz Harooni Shirazi a/k/a Ahroni-Shirazi Daniel, Defendant.
09-200121
Anthony Falanga, J.
This is a motion by the wife for omnibus pendente lite relief. The husband cross moves for an order 1) pursuant to CPLR 2201 staying the above captioned action; 2) denying the wife's motion; and 3) modifying the caption of the action to delete the name AROONISHIRAZI BEHZAD.
The name AROONISHIRAZI BEHZAD has been deleted from the caption of the action on consent.
According to the wife, the parties were married on May 2, 2001 in Israel. According to the husband, the parties were married in Israel on May 23, 2001. According to the husband, the parties registered their Israeli marriage with the State of New York on June 13, 2001. According to the wife, the parties were married in a civil ceremony in New York on June 13, 2001. The parties executed an "opting out" marital agreement in Israel on May 16, 2001 waiving inheritance rights and rights in the other spouse's separate property. There is one child of the marriage, Liraz, born in Israel in April, 2002.
On or about June 13, 2001, the wife, an Israeli citizen, moved to the United States with the husband. In or about November 2001, the parties traveled to Israel. The husband returned to the United States approximately two weeks later. On or about December 27, 2001, the wife caused a Summons to be issued by the Regional Rabbinical Court of Jerusalem, case number 017705567-22-1. The face of the Summons, according to a translation provided by the husband, prepared by "AAA Translations," reads as follows: "Summons to the Rabbinical Court in the Matter of a Claim for Support." The Summons states that both parties reside at the same address in Jerusalem. The Summons requires the appearance of the parties and the production of identification cards and pay stubs on January 30, 2002.
The Regional Rabbinical Court of Jerusalem issued a temporary ruling on January 30, 2002. The ruling states as follows: that it is regarding a claim for support; that the husband is directed to pay the wife support of 3000 NIS ($750.00 a month) [according to the husband this [*2]sum was slightly reduced by a later order issued after the birth of the parties' daughter, but no copy of such order was produced]; the award was linked to the cost of living index payable to hired workers; the husband did not appear before said Court on January 30, 2002; the wife was directed to fax and mail a copy of the ruling to the husband abroad; the husband was given notice that he had 30 days to file an appeal; a hearing will be scheduled in four months; the Court will deliberate anew with regard to the issue of support at said hearing.
The parties daughter was born in April, 2002. The husband has never seen his daughter.
On October 23, 2002, the husband obtained a judgment of divorce against the wife from the Supreme Court of the State of New York, Queens County. Pursuant to said Judgment the husband was required to pay child support to the wife of $319.92 a month. Said judgment was vacated pursuant to an order of the Supreme Court, Queens County dated August 30, 2004.
According to the wife, the husband has not paid any support to her, to date, except for $351.18. As a result of the husband's failure to pay the 3000 NIS a month as ordered by the Regional Rabbinical Court of Jerusalem, the wife has received 209,330 NIS, between January 30, 2002 and March 2009, from an agency in Israel, (the Jerusalem Branch of the Alimony Unit of the Israeli National Insurance Institute), that pays court-ordered support in the first instance to a payee and then seeks reimbursement from the payor. According to the husband, he paid support to the wife of $319.92 a month from April 2002 through March 2005 and is obligated to reimburse the National Insurance Institute. He states that he also deposited $12,500.00 with "an Israeli Court" pursuant to certain unsuccessful settlement negotiations, to be paid to the wife upon the parties' divorce.
On November 21, 2004, a Rabbinical Court of Queens County in the State of New York made an offer on behalf of the husband, to settle the proceeding pending in Israel by purchasing an apartment in the name of the parties' daughter for $15,000.00 cash plus a mortgage. The offer stated the husband would not pay alimony.
The Regional Rabbinical Court of Jerusalem and an appellate court, the High Rabbinical Court of the State of Israel have issued various rulings and decisions concerning the parties since January 30, 2002. The parties have provided translations thereof. This Court notes that each party provided only translations of portions of rulings or decisions that each believed supported his or her contentions. The submission of only selected rulings and decisions impaired this Court's ability to accurately ascertain the nature of the proceedings conducted in Israel.
On December 21, 2005, after hearing words from the wife and the husband's brother, the Regional Rabbinical Court of Jerusalem adopted the promises of the brother to purchase a three room apartment in the name of the parties' daughter up to the sum of $80,000.00 and to pay support of 2000 NIS a month when the divorce becomes a reality; said Court stated that the wife was delaying the Get as a bargaining chip; said Court directed the wife to divorce, otherwise said Court would deliberate on issuing a Permission to Marry to the husband. [*3]
On February 27, 2006, the High Rabbinical Court of the State of Israel issued a decision stating that the husband does not reside in Israel and there is no possibility of enforcing on him financial liability of any kind. ... There is no possibility to make the brother liable without his consent. The brother agreed that his liabilities would be backed by two guarantors. Said Court recommended that the divorce be expedited.
On March 1,2006, the Regional Rabbinical Court of Jerusalem denied the wife's request for reconciliation, finding her application was a bargaining chip, and again directed that the Get be arranged.
On April 23, 2006, the Regional Rabbinical Court of Jerusalem once again denied the wife's request for reconciliation, finding the request to be insincere, and informed the husband that if he sought permission to marry he would have to open a file and send a power of attorney to represent him in such request.
On October 30, 2006, the Regional Rabbinical Court of Jerusalem ruled that mediation had failed and the Court would schedule a hearing, at which both sides could appear by a representative, on the issue of whether the husband should be granted permission to remarry.
On March 21, 2007, the High Rabbinical Court of the State of Israel issued a decision denying the wife's request to enforce the brother's proposal to purchase an apartment, stating that the brother had never been part of the case and that no obligations were imposed on him.
On December 16, 2008, the Regional Rabbinical Court of Jerusalem issued a decision stating it was considering closing the wife's case.
On May 5, 2009, the Regional Rabbinical Court of Jerusalem issued a decision stating that it strongly advises the wife to accept the Writ of Divorce that has been filed with the Court.
The husband's attorney contends that this Court should stay the above captioned action for divorce "until the conclusion of the matter before the Regional Rabbinical Court of Jerusalem." Said counsel states that the Regional Rabbinical Court of Jerusalem is a court of competent jurisdiction; that the Regional Rabbinical Court of Jerusalem is intimately involved in this matter; that the Regional Rabbinical Court of Jerusalem has attempted to facilitate multiple settlement discussions; and that the wife's contention that the said Court does not have jurisdiction over the husband is completely illogical.
The wife's attorney contends that the application for a stay should be denied on the grounds that 1) the Regional Rabbinical Court of Jerusalem never acquired personal jurisdiction over the husband; 2) the proceeding before the Regional Rabbinical Court of Jerusalem involves only support for the wife and not child support as the proceeding was commenced prior to the birth of the child; 3) the Regional Rabbinical Court of Jerusalem lacks jurisdiction to enforce its support order; and 4) the parties' opting out agreement states that it is to be governed by the laws of the State of New York. [*4]
The Court notes that counsel for both parties have made bald, conclusory contentions unsupported by any authority. Neither party has submitted an affidavit from an expert on Israeli law setting forth the issues over which the Regional Rabbinical Court of Jerusalem has subject matter jurisdiction. Neither attorney has presented any relevant law on the issue of personal jurisdiction and comity with regard to any financial provisions of any decree or judgment (ruling or decision) that might eventually be rendered by the Regional Rabbinical Court of Jerusalem.
The parties were married in Israel. The wife is a citizen of Israel and has resided there prior to June 2001 and continuously subsequent to November or December 2001. It would appear that the Regional Rabbinical Court of Jerusalem would have subject matter jurisdiction to terminate the parties' marriage. However, the husband has not persuaded this Court that either he or the wife has, to date, taken the steps necessary in the State of Israel to commence proceedings that could result in a divorce entitled to comity in the United States. The portions of decisions presented set forth herein above appear to do nothing more than advise the wife to obtain a Get.
Further, notably absent from the papers submitted herein, is any statement by the husband acknowledging that he has submitted to the jurisdiction of the Regional Rabbinical Court of Jerusalem. His contention that his brother's appearance before said tribunal creates grounds to stay the within divorce action is devoid of merit.
Clearly, the wife could withdraw the matter pending in Israel. The Court surmises that the wife has not terminated the "support claim" pending since December 2001 before the Regional Rabbinical Court of Jerusalem because as a result of a temporary order issued in said proceeding, she receives 3000 NIS a month from the Alimony Unit of the Israeli National Insurance Institute.
Based upon all of the foregoing, the motions are decided as follows:
1. The husband's application for a stay pursuant to CPLR 2201 is denied.
2. The wife is awarded temporary residential custody of the child.
3. The husband shall maintain existing insurance on his life, if any, in the face
amount of $200,000.00. In the event he is not presently maintaining such coverage, he shall take
all steps necessary to procure same within 45 days of the date of this order. The wife shall be
named a 50% beneficiary and the child shall be named a 50% beneficiary with the wife named as
trustee.
Term coverage for such insurance is within the husband's means. Although is he 58
years old, he reports that his health is "good."
4. As the wife is the beneficiary of a temporary support order in Israel, her
application for an interim award of maintenance and child support is denied without prejudice to
seek an award of same at trial retroactive to the commencement of the action.
5. The husband, his attorneys, agents and assigns are enjoined, during the pendency
of the [*5]action, from making any disposition of marital assets
except in the ordinary course of business or living.
6. The husband owns an unencumbered home in Rosyln. His affidavit of net worth
states that he owns 100% of "Metro All Car Sales" and 10% of D & B Realty. The wife alleges
that he also owns the following: an interest in a car wash in Brooklyn; Bushwick Gardens Realty
Corp.; 494 Bushwick Avenue Corp.; 15 Potters Land, Great Neck; 190-15 Centerville Street,
South Ozone Park; Superior Brokerage, Inc.; and 550 Bushwick. According to the husband's
2008 tax return he reported wages of $12,000.00 and a business loss of $28,227.00. He reported
K-1 income from only D & B and Metro. His financial circumstance cannot be fully gleaned
from his net worth affidavit or his tax return. The wife is not employed. The husband paid a
retainer to his attorney of $7500.00. The wife paid her attorney a retainer of $3000.00. Her
attorney states that the wife incurred legal fees in this action through June 4, 2009 of $8873.85.
The wife is awarded interim counsel fees of $7500.00. Said sum shall be paid by the husband to the wife's attorney on or before October 5, 2009.
This constitutes the decision and order of the Court. The husband and counsel for both
parties shall appear for a preliminary conference on October 7, 2009 at 9:30a.m. The wife shall
be available by phone on that date and time and shall provide her attorney with a fax number
where she can receive documents.
Dated: September 2, 2009
Mineola, NY
ENTER:
Anthony J. Falanga, Justice
Supreme Court, Nassau County
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