Marilyn B. Lewittes v David I. Lewittes

Lewittes v Lewittes 2004 NY Slip Op 08148 [12 AD3d 221] November 16, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Marilyn B. Lewittes, Respondent,
v
David I. Lewittes, Appellant.

—[*1]

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered on or about October 17, 2003, which, inter alia, denied defendant husband's motion to compel plaintiff wife to raise the parties' children "in the Jewish faith at the minimum standard set forth in the Stipulation of Settlement," and to enroll the children at The Ramaz School, unanimously affirmed, without costs.

The motion court properly refused to entertain argument with respect to so much of defendant's motion as seeks to compel the children's enrollment in The Ramaz School. Such relief was precluded by the prior order of this Court holding that while "the stipulation provides for prior consultation between the parties on matters concerning the children and for submission of parental disputes over such matters to a law guardian, [such] does not detract from plaintiff's authority under the stipulation as the ultimate decision maker" (2 AD3d 295, 295 [2003], lv dismissed 2 NY3d 823 [2004]). We would add that there is absolutely no language in the stipulation of settlement evincing an intent that the children attend Ramaz or indeed any Jewish day school. The foregoing is without prejudice to whatever rights defendant may have to compel consultation and mediation with respect to the children's education.

So much of defendant's motion as seeks to compel plaintiff to raise the children as Conservative Jews is based on a clause in the parties' settlement that, insofar as pertinent, provides "that the Children shall be raised in the Jewish faith in accordance with Jewish Law which shall be defined, at a minimum, as the Conservative teachings, recommendations and traditions of the current Rabbi at the Synagogue at which the Mother belongs." Plaintiff contends that she does maintain a lifestyle consistent with a Conservative Jewish upbringing of the children, and, on this record, it cannot be said otherwise. The affidavit of the rabbi identified [*2]in the stipulation, answering questions concerning Jewish law posed by defendant, does not clarify the level of observance required by the stipulation. Concur—Buckley, P.J., Tom, Andrias, Saxe and Marlow, JJ.