Taub v Taub

[*1] Taub v Taub 2013 NY Slip Op 51983(U) Decided on December 3, 2013 Supreme Court, Kings County D'Emic, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2013
Supreme Court, Kings County

Chana Taub, Plaintiff,

against

Simon Taub, Defendant.



26534-2007



Attorney for the Plaintiff:

The Law Offices of Wendy G. Sonneborn

12335 82nd Road, Suite 2L

Kew Gardens, NY 11415

by Mark I. Schreck

#718-761-7222

Attorney for the Defendant:

Mallow, Konstam, Mazur, Bocketti & Nisinoff, P.C.

321 Broadway

New York, NY 10007

by Abe M. Konstam and Madeline Nisonoff

#212-964-7990

Matthew J. D'Emic, J.

In this post-judgment petition, plaintiff moves, by order to show cause, for an increase in maintenance to $50,000.00 per month and counsel fees on the ground that the defendant has refused to grant her a Jewish divorce or Get. The defendant opposes on the ground of res judicata and additionally, on the ground that statutorily, in a contested divorce, only the plaintiff is obligated to remove barriers to the defendant's remarriage. The defendant also affirms that he is willing to deliver the Get.

The motion is denied.

In this action, a judgment of divorce on the ground of constructive abandonment was granted on March 7, 2008 after an inquest and the matter transferred to this court for trial of all [*2]other issues in October 2010. A judgment was entered on July 27, 2011 to be enforced in the Bankruptcy Court for the Eastern District of New York pursuant to order of that court dated August 14, 2009. Most recently, a settlement was agreed to between the parties and approved and entered in the bankruptcy court.

In considering the defendant's res judicata and statutory opposition to the petition, these arguments must fail. First, although the doctrine of res judicata bars relitigation of previously adjudicated disputes (Lomaglio v Lomaglio, 104 AD3d 1182); in this case, the issue of the Get was raised as early as the inquest but was not adjudicated. In fact, since the divorce was granted after an inquest, the issue of a removal of religious barriers to remarriage by the defendant could not have been litigated. The fact that the defendant always told the court that he is willing to deliver a Get to the plaintiff, affirming that he has summoned the plaintiff to a rabbinical court for that purpose is a clear indication that res judicata does not apply.

Additionally, the parties bankruptcy court settlement provides that "those parties rights and claims under religious law and the right to compel compliance therewith, subject to the other parties right to oppose any such asserted right," further indicates that both parties recognize the court's continued jurisdiction over this issue.

Second, with request to the statute, although the language of Domestic Relations Law §253 only requires a plaintiff to affirm removal of barriers to remarriage, courts have used their equitable powers to equalize the parties' positions regardless of who commenced the action under Domestic Relations Law §236 (B)(5)(h); (Pinto v Pinto, 260 AD2d 622; S.A. v. K.F., 22 Misc 3d 1115 [A]).

However, despite the court's rejection of defendant's arguments, the motion must fail. First, the plaintiff recently agreed to a settlement in bankruptcy court which has provided her with protection of her maintenance and distributive award, enhancing those provided in the judgment of divorce. In order for the terms of the settlement to come to fruition, it is necessary for the plaintiff to release a lis pendens she filed against certain properties to be sold as agreed to by the parties. As of the last hearing before this court, this had not been done, causing the closings to be delayed. This apparent failure to live up to the bankruptcy court settlement prevents this court from awarding any equitable relief at this point in time. In any event, the defendant affirms he will deliver a Get.

The plaintiff counters that the defendant's summoning her to the rabbinical court is a sham and that his offer to "resolve all our religious issues" is some sort of code for extracting financial concessions from her. Since the parties and the Bankruptcy Court have only recently agreed to what they termed "a global settlement," detailing the financial obligations of all, this seems purely conjectural. It also asks the court to review and interpret religious doctrine as to the rabbinical court which issued the summons to the plaintiff. The court has no jurisdiction to consider this issue both under the entanglement doctrine of the First Amendment and Domestic Relations Law §253 (9); (Madireddy v Madireddy, 66 AD3d 647; Sieger v Sieger, 37 AD3d 585; Pal v Pal, 45 AD2d 738).

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic [*3]

J.S.C.