Petition — Avitzur v. Avitzur

Office-Supreme Court, U.S.

82-1854 FILES

No. 82- MAY 13 1983

ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the Ynited States

OCTOBER TERM, 1982

BOAZ AVITZUR,

Petitioner,

V .

SUSAN ROE AVITZUR,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

Eric M. LizserMan

Counsel of Record

JupitH LEVIN

Raxsrnow!tz, Boupin, STANDARD,

Krinsky & LirserMan, P.C.

30 East 42nd Street

New York, New York 10017

(212) OX 7-8640

Lovis-Jack PozNER

11 North Pear! Street

Suite 1705

Albany, New York 12207

(518) 463-4808

Attorneys for Petitioner

May 1983

QUESTION PRESENTED

Whether the First and Fourteenth

Amendments prohibit a civil court from

adjudicating the complaint of an ex-wife

who is seeking an order to compel her

former husband to submit to the juris-

diction of an ecclesiastical court and

participate in a religious proceeding.

TABLE OF CONTENTS

OCUBGTILOM FRocmmiee « « + t+ 6 ee tt le

Thee OF AUieeeereee «lst ltl we we hel hE

Pec GER Gh hl lth lll lel kt lt le le

merece 6k A a ee ek 8 8

CONSTITUTIONAL PROVISIONS INVOLVED .. 3

Srmemeeme Ue tee CASE «ew tt th tll tlt le

REASONS FOR GRANTING THE WRIT .... 417

ee ga

1i

TABLE OF AUTHORITIES

Cases : Page

Abington School District v.

wememmm, 374 U.S. 203 (1963) ...18

Everson v. Board of Education,

330 U.S. 2 (33966) to. See a ae UY ee

JOnG@s Vs Welt, €43 U.S. 595 (1979). . 24

Koeppel v. Koeppel, 138 N.Y.S.2ad

eee, Coup. Ce. 1954) aff'd 3 A.D.2a

853, 161 N.Y.S.2d 694 (2d Dep't

We ek kc eS

Lemon v. Kurtzman, 403 U.S. 602

Ce gg kg ie ee ee 2

Margulies v. Margulies, 42 A.D.2da

917, 344 N.Y.S.2d 482 (lst Dep't),

appeal dismissed, 33 N.Y.2d 894,

352 N.Y.S.2d 447, 307 N.E.2da 562

(1973) ~ * * ° . . . ° 7 . 2 = 45

Matter of "Rubin" v. "Rubin",

fo waee. 26 776, 782, 348

N.Y¥.S.2d 61, 67 (Family Ct. 1973) 25

Minkin v. Minkin, 180 N.J. Super. 260,

Soe Biae Gee Ce. Oiv. 1981)... 25

S33

N.L.R.B. v. Catholic Bishop of Chicago

wee eee Sew REGIO) 6 8 oe wt ww st 29

Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696 (1976) 23

Shapiro v. Shapiro, 110 Misc. 2d 726,

S64 4.%.5.2¢ 931 (Sup. Ct. 19861)

aff*dad 88 A.D.2d 592, 449 N.Y.S.2a

mee cee ee 290t) wk lt eS

Stern v. Stern, N.Y.L.J., Aug. 8,

1979 p. 13 col. 5 (Sup. Ct., Kings

Ce Pee 8 i ol kt kk

Waxstein v. Waxstein, 90 Misc. 2d 784,

707, 393 N.¥.8.2da 877 (Sup. Ct.

koeG), O@£f'°C S? A.D.24 863, 394

Meviouee @02 (20 Dep*t 1977) ... 25

Welsh v. United States, 398 U.S. 333

(1970) ° . * * ° 7 ° * e. ° o ° e * 18

zorach v. Clausen, 343 U.S. 306

oS

Constitutional Provisions

ce ee passim

POUrtCe@encn Amencment ...se4e. passim

iv

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1982

No. 82 -

BOAZ AVITZUR,

Petitioner,

V.

SUSAN ROE AVITZUR,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE

STATE OF NEW YORK

Boaz Avitzur petitions that a writ

of certiorari issue to review the judg-

ment of the Court of Appeals of the State

Of New York which reinstated the respon-

dent's complaint for injunctive relief to

compel petitioner to appear before a

Jewish religious court for the purpose of

a religious determination of their mari-

tal status.

OPINIONS BELOW

The opinion and judgment of the

Court of Appeals of the State of New York

(App. A, Al-Al4) is reported at 58 N.Y.24

108. The opinion of the New York State

Supreme Court, Appellate Division, Third

Department (App. B, B1-B5) is reported at

86 A.D.2d 133. The opinion of the New

York State Supreme Court, Special Term

(App. C, C1-C8) is not reported.

JURISDICTION

The judgment of the Court of Appeals

of the State of New York was entered on

February 15, 1983 (Al). The petition is

being filed within ninety days of that

date.

invoked pursuant to 28 U.S.c. § 1257(3).

The jurisdiction of the Court is

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the Consti-

tution of the United States provides:

Congress shall make no

law respecting an

establishment of re-

ligion, or prohibiting

the free exercise

thereof; or abridging

the freedom of speech,

or of the press; or the

right of the people

peaceably to assemble,

and to petition the

Government for a redress

of grievances.

The Fourteenth Amendment provides,

in relevant part:

- + « No State shall make

or enforce any law which

Shall abridge the privi-

leges or immunities of

citizens of the United

States; ner shall any

State deprive any person

of life, liberty, or

Property, without due

- 3-

process of law; nor deny

to any person within its

jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

This case involves an attempt to

obtain a civil court order requiring a

party to appear before a religious tri-

bunal for a purely religious purpose.

1. Petitioner and respondent were

married by a rabbi on May 22, 1966 in a

conservative Jewish religious ceremony

(A4).

As part of the ceremony, the parties

Signed both an Aramic and an English

language version of a religious document

called a "Ketubah" (App. E), which set

forth various mutual promises of the

parties to "live in accordance with the

Jewish law of marriage throughout [their]

lifetime". For example, the petitioner

promised to cherish and Provide for his

wife as "required to do by our religious

law and tradition" (El), and the res-

pondent agreed to take on the respon-

Sibilities of a Jewish wife "as Jewish

law and tradition prescribe" (Id.). The

parties further agreed as follows:

- « « AS evidence of

Our desire to live in

accordance with the

Jewish law of marriage

throughout our life-

time, we, the bride and

bridegroom... hereby

agree to recognize the

Beth Din of the Rab-

binical Assembly and

the Jewish Theological

Seminary of America, or

its duly appointed

representatives, as

having authority to

counsel us in the light

of Jewish tradition

which requires husband

and wife to give each

other complete love and

devotion, and to summon

either party at the

request of the other,

in order to enable the

- 5 -

party so requesting to

live in accordance with

the standards of the

Jewish law of marriage

throughout his or her

lifetime. We authorize

the Beth Din to impose

such terms of compen-

sation as it may see

fit for failure to

respond to its summons

OF to carry out its

decision.

(E2-E3).

On May 16, 1978, petitioner was

granted a civil "fault" divorce upon the

ground of cruel and inhuman treatment.

The divorce decree makes no reference to

a religious divorce or an agreement to

Submit to a religious tribunal for the

Purpose of obtaining a religious divorce.

After petitioner was granted the

Civil divorce, respondent attempted to

summon the petitioner to appear before

the Beth Din of the Rabbinical Assembly

and the Jewish Theological Assembly of

America, for the purpose of obtaining a

Jewish divorce decree, known as a "Get".

The appearance of both parties to a

marriage before the Beth Din is a pre-

requisite to the issuance by that body of

a Get. Petitioner declined to appear

before the Beth Din.

2. Respondent then filed a civil

complaint (App. D) against petitioner in

New York State Supreme Court, Albany

County, setting forth the above facts and

further alleging that "([pJursuant to the

terms of the Ketubah, the plaintiff and

defendant agreed that in the event of any

Civil divorce decree that the husband

grant and the wife accept a Jewish

divorce in accordance with the authority

vested in the Beth Din for the Rabbinical

Assembly" (D5-D6). The complaint re-

quested that the court "declare the

rights and other legal relation of the

plaintiff and defendant in the marriage

contract (Ketubah)" and that the court

require the petitioner to appear before

the Beth Din (D8-D9).

Petitioner moved to dismiss the

complaint on the grounds that the relief

sought violated the First Amendment’ to

the Constitution of the United States in

that it would require petitioner to par-

ticipate against his will in a wholly

religious ceremony having no relationship

whatsoever to any legal issue cognizable

by the civil courts. Petitioner further

argued in support of his motion to dis-

miss that the very process of hearing and

deciding respondent's complaint would

require the court to interpret and con-

strue religious documents and questions

of religious law, thereby entangling the

court in religious controversies in vio-

lation of the First Amendment.

Respondent filed a cross-motion for

Summary judgment. In support of her

motion respondent submitted an affidavit

from Rabbi Mordecai Kieffer, in which

Rabbi Kieffer set forth his allegedly

expert opinion of the proper translation

and construction of the Ketubah under

Jewish law, as well as other matters of

Jewish law and religious practice. Res-

pondent argued that on the basis of Rabbi

Kieffer's purported expert analysis of

Jewish law and documents, Summary judg-

ment should be granted.

Supreme Court Justice Aaron E. Klein

denied petitioner's motion to dismiss the

complaint and respondent's cross-motion

for summary judgment (App C). The Court

held that the relief sought by the com-

plaint would not violate the First

Amendment because "if the alleged con-

tract is in fact found to be an enforce-

able one, [it] would merely require a

decree of this court of specific perfor-

mance which would relegate the party so

ordered to submit himself for a deter-

mination of religious law to a religious

tribunal as purportedly agreed to by him

on the basis of premarital papers" (C3).

Justice Klein further held that resolu-

tion of the case required a plenary

trial:

- » » the court is con-

fronted with varying and

inconsistent contentions

by the parties to this

lawsuit as to the

translation, meaning and

effect of the [Ketubah],

as well as the intent of

the parties in executing

the same. This is more

properly treated ina

plenary trial in which

- 10 -

the respective claims

may be weighed by the

trial court after a full

exposition of the sub-

ject matter. Thus the

construction of the

Claimed agreement _

underlying this lawsuit

would be an issue of

fact to be resolved at

such plenary trial.

(C7) (emphasis added).

4. The Appellate Division reversed.

In an opinion for the court, Presiding

Justice Mahoney with three Justices con-

curring, held that the Ketubah was

essentially a religious document, entered

into as part of a religious ceremony.

The State, having

already granted the par-

ties a civil divorce,

has no further interest

in their marital status.

It would thus be a

dangerous precedent to

allow State courts to

enforce liturgical

agreements concerning

matters about which the

State has no remaining

concern.

(B2). The Court also held that respon-

dent was barred from equitable relief by

the "clean hands" doctrine. Justice

Levine dissented from the court's opinion

on the grounds that the facts alleged in

the complaint, "if established at a trial

could justify some appropriate exercise

of the powers of the New York State

Supreme Court, sitting as a court of

equity, to enforce plaintiff's contrac-

tual rights, albeit with circumspection

because of the freedom of religion and

separation of church and State overtones

to the case."

(B4).

5. Respondent appealed to the Court

of Appeals of the State of New York. The

Court of Appeals, in a 4-3 decision,

reversed the judgment of the Appellate

Division and remanded the case for trial

- 12 -

to the Supreme Court. Writing for the

Court, Judge Wachtler held that respond-

ent was merely seeking:

»_ « « £O Sntorce an

agreement made by

[petitioner] to appear

before and accept the

decision of a designated

tribunal.

Viewed in this manner

the provisions of the

Ketubah relied upon by

[respondent] constitute

nothing more than an

agreement to refer the

matter of a religious

divorce to a non-

judicial forum. Thus,

the contractual obliga-

tion [respondent] seeks

to enforce is closely

analogous to an ante-

nuptial agreement to

arbitrate a dispute in

accordance with the law

and tradition chosen by

che parties. ... This

agreement - the Ketubah

- should ordinarily be

entitled to no less

dignity than any other

civil contract to submit

a dispute to a non-

judicial forum so long

as its enforcement vio-

“ 22 =

lates neither the law

nor the public policy of

this state.

(A6-A7).

The Court went on to hold that

judicial enforcement of the Ketubah upon

a party to such an agreement would not be

contrary to the First Amendment because

the complaint merely sought "simply to

compel [petitioner] to perform a secular

obligation to which he contractually

bound himself" (A8).

Judge Jones wrote a dissenting

opinion on behalf of three judges. The

dissent sought to demonstrate in great

detail the extent to which judicial con-

Sideration and resolution of the com-

plaint in this case would require "in-

quiry into and resolution of questions of

Jewish law and tradition" (Al2). Judge

Jones pointed to the respondent's motion

~ 2.

(Al4).

REASONS FOR GRANTING THE WRIT

1. This case raises substantial

questions under the First and Fourteenth

Amendments as to whether the Civil courts

may require a person to attend and par-

ticipate ina convening of a religious

court or proceeding having no legal sig-

nificance under civil law. The Court of

Appeals decision that respondent may seek

and obtain a court order requiring the

petitioner to submit to the ecclesias-

tical authority of the Beth Din marshals

the power of the State in Support of a

religion Conservative Judaism, seeking to

impose its will against the wishes of an

individual who no longer recognizes the

authority of that religious body. The

Court of Appeals holding undermines the

"wall of separation between Church and

- 17 -

State" Everson v. Board of Education, 330

U.S. i, 16 (1946), which this Court has

recognized for over a century.

No principal is more firmly estab-

lished under the First Amendment than

that state power must be completely

separate and impartial in the realm of

religious belief and practice. Not only

must the State remain "neutral when it

comes to competition between sects",

Zorace v. Clausen, 343 U.S. 306, 314

(1952), but also it must take no steps

which would "aid one religion", Everson,

330 U.S. at 18, or which would have the

effect of fostering or encouraging

religion generally. Abington School

District v. Schempp, 374 U.S. 203 (1963).

Welsh v. United States, 398 U.S. 333, 356

(1970) (Harlan, J., concurring).

The majority opinicn of the Court of

Appeals seeks to explain away the coer-

Cive impact upon petitioner Of a court

order requiring him to appear before the

Beth Din by relying on the fact that

petitioner apparently agreed to do so at

the time of his marriage. That agree-

ment, the Court of Appeals holds, is

nothing more than an Ordinary contract to

submit a civil dispute to arbitration,

and therefore may be enforced by the

Civil courts.

The fallacy in the Court of Appeals

analysis is that it ignores the sole

purpose for which respondent brought this

lawsuit. The complaint in this case

acknowledges the exclusive reason for

seeking to compel petitioner's attendance

at the Beth Din is so that respondent

could obtain a religious divorce. Such a

- 19 -

divorce has no significance whatsoever

under civil law. Moreover, the Beth Din

has no power to decide any other issue

cognizable under civil law nor does res-

pondent seek to invoke its powers for any

such purpose. Thus, there is no civil

law issue to be arbitrated. The only

question before the Beth Din would be the

religious marital status of the parties.

The case is thus very different from

a hypothetical case involving a pre-

nuptial agreement to submit to an arbi-

trator future questions involving, for

example, property rights or child

custody. If such a dispute were submit-

ted by agreement of the parties to a

rabbi, priest or a clergyman for deter-

mination, no First Amendment problems

need arise. This would be so, however,

precisely because the rabbi, priest or

- 20 -

clergyman would be acting in a civil

capacity to decide a question which is

cognizable under civil law in civil

courts.

In the present case, on the other

hand, the Beth Din would be serving no

Civil function. Tts only purpose is to

consider whether, under Jewish law, a

Jewish divorce should be granted.

Petitioner's earlier written promise

to recognize the Beth Din's authority to

Summon him at the request of his former

wife for religious purposes is thus un-

enforceable by the civil courts, which

cannot require a person to recognize or

Submit to ecclesiastical authority no

matter what promises such person may have

made in the past.

2. This case also raises a second

Critical issue under the First Amendment.

As recognized by the dissenting opinion

of Judge Jones in the Court of Appeals,

the mere process of adjudicating respond-

ent's complaint will require the court to

become impermissably entangled in ques-

tions of religious belief, doctrine and

practice. For example, according to the

respondent herself, the trial court will

be required to hear expert testimony from

rabbis and other religious officials on

the meaning and construction of the

Ketubah under Jewish law, and upon the

procedures by which a person may be sum-

moned to appear before the Beth Din. In

order to resolve the complaint, the civil

courts will have to decide what is, Or is

not, Jewish law. Indeed, respondent's

very complaint requests that "the court

- 22 -

declare the rights and other legal rela-

tion of the plaintiff and defendant in

the marriage contract (Ketubah)."

The Court of Appeals opinion thus

requires unconstitutional entanglement

between Church and State. Lemon v.

Kurtzman, 403 U.S. 602, 619 (1971). This

Court has emphasized that civil courts

may not inquire at all into "matters of

discipline, faith, internal organization,

or ecclesiastical rule, custom, or law."

Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696, 713 (1976).

Indeed, it is "not only the conclusions

that may be reached by the [courts] which

may impinge on rights guaranteed by the

Religion Clauses, but also the very pro-

cess of inquiry leading to findings and

conclusions." NLRB v. Catholic Bishop of

Chicago, “40 U.S. 496, 502 (1979). Ree-

- 23 -

pondent's complaint, simply cannot be

adjudicated without violating the prin-

Cipals so firmly established by this

Court's prior decisions.

This case does not, as the Court

of Appeals states, involve resolution of

a religious dispute according to neutral

principles of law. Jones v. Wolf, 443

U.S. 595 (1979). The marital dispute

between the parties was so resolved by a

Civil court when it entered the divorce

decree. Resolution of respondent's claim

here, on the other hand, will inevitably

entangle the courts in interpretation of

Jewish law and custom.

3. The problems presented by this

case are by no means unique. Numerous

courts in cases involving identical or

related issues, have acknowledged the

authority of the civil courts to compel

- 24 -

the cooperation of former spouses in

religious divorces. Under the decision

of the Court of Appeals in this case,

sanction will be given to additional

litigation of this nature, thereby

entangling the civil courts in religious

disputes and placing the power and

authority of the State on the side of

established religion. This Court should

*

Shapiro v. Shapiro, 110 Misc. 24

fe6, 442 8.%.S.20 931 (Sup. Ct. 1981),

errt’a 86 A.D.20 592, 449 H.¥.S.28 806 (24

Dep't 1982); Margulies v. Margulies, 42

A.D.2d 517, 344 N.Y.S.2d 482 (Ist Dep't),

appeal dismissed, 33 N.Y.2d 894, 352

N.Y¥.S.2d 447, 307 N.E.2d 562 (1973);

Matter of “Rubin” v. “Rubin”, 75 Misc. 2d

716, 782, 348 N.Y.S.2d 61, 67 (Family Ct.

1973); Waxstein v. Waxstein, 90 Misc. 2a

708, 187, 393 4.Y.S.20 877, (sup. Ce.

1976), aff'd, S7 A.D.2d 863, 394 H.Y.s.

24 253 (20 Dep*t 1977); Koeppel v.

Koeppel, 138 N.Y.S.2d 366, 373 (Sup. Ct.

4798), @Ef*d 3 A.D.2a 853, 161 H.Y.S. 24

694 (2d Dep't 1957); Stern v. Stern,

Nateoted, AG. 8, 1979, 6. 13 eal. 5 (Sup.

Ct., Kings County 1979); Minkin v.

Minkin, i180 W.J. Super. 260, 434 A.2d 665

(on. Div. 1981).

- 25 -

grant certiorari to resolve the consti-

tutional issues raised and to correct the

serious constitutional errors of the

Court of Appeals.

CONCLUSION

For the reasons stated, the petition

for writ of certiorari should be granted.

RESPECTFULLY SUBMITTED,

ERIC M. LIEBERMAN

JUDITH LEVIN

Counsel of Record

RABINOWITZ, BOUDIN, STANDARD,

KRINSKY & LIEBERMAN, P.C.

30 East 42nd Street

New York, New York 10017

(212) OX 7-8640

LOUIS-JACK POZNER, Esq.

11 North Pearl Street

Suite 1705

Albany, New Zorn 12207

(518) 463-4808

Attorneys for Petitioner

pated : May 13, 1983

APPENDIX A

JUDGMENT AND OPINION OF THE

COURT OF APPEALS OF THE STATE

OF NEW YORK

Al

58 NEW YORK REPORTS, 2d SERIES

Statement of Case

i08

- SusaN R. AviTzur, Appellant, v Boaz Avitzur, Respon-

dent.

Argued January 3, 1983; decided February 15, 1983

SUMMARY

APPEAL from an order of the Appellate Division of the

Supreme Court in the Third Judicial Department, entered

April 21, 1982, which modified, on the law, and, as modi-

fied, affirmed an order of the Supreme Court at Special

Term (Aaron E. KLEIN, J.), entered in Albany County,

denying defendant’s motion to dismiss the complaint and

plaintiff’s cross motion for summary judgment. The modi-

fication consisted of reversing so much of the order as

denied defendant’s motion to dismiss the complaint and

granting the motion.

Plaintiff and defendant were married in 1966 in a cere-

mony conducted in accordance with Jewish tradition. Prior

to the marriage ceremony, the parties signed a document

known as a “Ketubah”, in which they both agreed to

recognize the “Beth Din”, a rabbinical tribunal, as having

authority to counsel the couple in matters concerning their

marriage. In 1978, the defendant husband was granted a

civil divorce upon the ground of cruel and inhuman treat-

ment, but, notwithstanding this civil divorce, the wife is

not considered divorced and may not remarry pursuant to

Jewish law, until such a time as a Jewish divorce decree,

known as a “Get”, is granted. A Get may be obtained only

after the husband and wife appear before the Beth Din, and

plaintiff sought to summon defendant before this tribunal

pursuant to the provisions of the Ketubah. After defendant

refused to appear, plaintiff brought this action seeking an

order compelling defendant's specific performance of the

Ketubah’s requirement that he appear before the Beth

Din. Defendant moved to dismiss upon the grounds that

the court lacked subject matter jurisdiction and the com-

plaint failed to state a cause of action. Special Term denied

defendant’s motion to dismiss and also denied plaintiff

summary judgment. The Appellate Division modified and

granted defendant’s motion to dismiss, concluding that the

document constituted a liturgical agreement, unenforce-

able where the State, having granted a civil divorce, has no

further interest in the parties’ marital status.

A 2

AVITZUR v AVITZUR [58 NY2d 108] 109

Points of Counsel

The Court of Appeals reversed and denied defendant's

motion to dismiss the complaint, holding, in an opinion by

Judge WACHTLER, that nothing in law or public policy

prevents judicial recognition and enforcement of the secu-

lar terms of a religious marriage agreement.

Avitzur v Avitzur, 86 AD2d 133, reversed.

| HEADNOTE

Husband and Wife — Divorce — Agreement to Secure Religious Dissolution of

Marriage

Nothing in law or public policy prevents judicial recognition and enforcement of the

secular terms of an agreement, known as a “Ketubah”, which was entered into as part of

a religious marriage ceremony. The provisions of the Ketubah, whereby. defendant

husband promised that he would appear before a religious tribunal known as a “Beth

Din” for the purpose of allowing that tribunal to advise and counsel the parties in

matters concerning their marriage, including the granting of a “Get”, a Jewish religious

divorce, constitute nothing more than an agreement to refer the matter of a religious

divorce to a nonjudicial forum, and are thus closely analogous to an antenuptial

agreement to arbitrate a dispute in accordance with the law and tradition chosen by the

parties. Nor would enforcement of the terms of the Ketubah by a civil court violate the

constitutional prohibition against excessive entanglement between church and State on

the ground that the court must necessarily intrude upon matters of religious doctrine

and practice, since this dispute can be decided solely upon the application of neutral

principles of contract law, without reference to any religious principle; the fact that all of

the Ketubah’s provisions may not be judicially recognized does not prevent the court

from enforcing that portion of the agreement by which the parties promised to refer their

disputes to a nonjudicial forum.

POINTS OF COUNSEL

Richard A. Hanft for appellant. I. Execution and enforce-

ment of the marriage contract does not constitute en-

tanglement in a religious question. (Matter of “Rubin” v

“Rubin”, 75 Misc 2d 776; Matter of Blum Folding Paper

Box Co. [Raften — Friedlander], 27 NY2d 35; Board of

Educ. [Auburn Teachers Assn.], 49 AD2d 35.) II. Appellant

has stated a cause of action warranting a plenary trial.

(Jones v Wolf, 443 US 595; Hurwitz v H urwitz, 216 App Div

362; Serbian Orthodox Diocese v Milivojevich, 426 US 696;

Beulah Wesleyan Methodist Church v Henry, 187 Misc 502;

Koeppel v Koeppel, 3 AD2d 853; Margulies v Margulies, 42

AD2d 517; Waxstein v Waxstein, 90 Misc 2d 784, 57 AD2d

863; Shapiro v Shapiro, 110 Misc 2d 726; Perlstein v

Perlstein, 76 AD2d 49.) III. Application of the doctrine of

“unclean hands” is properly a matter for a Trial J udge. (Da

Silva v Musso, 53 NY2d 043; Meyer v Nebraska, 262 US

390; Griswold v Connecticut, 381 US 479.)

A 3

110 58 NEW YORK REPORTS, 2d SERIES

Points of Counsel

Louis-Jack Pozner for respondent. I. New York civil

courts may not properly adjudicate religious issues.

(McCollum v Board of Educ., 333 US 203; Presbyterian

Church v Hull Church, 393 US 440; Jones v Wolf, 443 US

995; Sherbert v Verner, 374 US 398; Russian Church of Our

Lady of Kazan v Dunkel, 33 NY2d 456 ) IT. This action was

properly dismissed for failure of the complaint to state a

cause of action. (Sivakoff v Sivakoff, 280 App Div 106;

Weiss v Mayflower Doughnut Corp., 1 NY2d 310.) IIL.

Summary judgment was properly granted to respondent

dismissing the complaint. (Margulies v Margulies, 42

AD2d 517; Pal v Pal, 45 AD2d 738; Waxstein v Waxstein, 90

Misc 2d 784; Koeppel v Koeppel, 3 AD2d 853.) IV. Appel-

lant’s relief is barred by laches. (Sherbert v Verner, 374 US

398; Elrod v Burns, 427 US 347; Wisconsin v Yoder, 406 US

205.) V. New York State has pre-empted the field of divorce

by the statutory scheme of the Domestic Relations Law,

and the cause of action which appellant attempts to assert

herein is not properly cognizable by the courts of the State

of New York.

Nathan Lewin, Dennis Rapps, Daniel D. Chazin and Ivan

L. Tillem for National Jewish Commission on Law and

Public Affairs, amicus curiae. I. A prenuptial agreement to

submit to rabbinical arbitration any controversy between

husband and wife regarding “the standards of the Jewish

law of marriage” is enforceable under CPLR 7501. (Matter

of Grayson-Robinson Stores [Iris Constr. Corp.], 8 NY2d

133; Lawrence Co. v Devonshire Fabrics, 271 F2d 402;

Matter of Weinrott [Carp], 32 NY2d 190; Bowmer v Bow-

mer, 50 NY2d 288: Hirsch v Hirsch, 37 NY2d 312; Sheets v

Sheets, 22 AD2d 176: Grien y Grien, 51 AD2d 543; Siegel v

Ribak, 43 Misc 2d 7: Board of Educ. v Cracovia, 36 AD2d

851.) II. The parties in this case signed a binding prenup-

tial agreement to arbitrate any postmarital religious obli-

gations before a specified rabbinical tribunal. (Matter of

Hub Inds. [George Mfg. Co.], 183 Misc 767, 269 App Div

177, 294 NY 897.) III. Enforcement of the parties’ arbitra-

tion clause does not involve the court in religious entangle-

ment. (Hurwitz v Hurwitz, 216 App Div 362; Berman v

Shatnes Lab., 43 AD2d 736; Matter of Koslowski v Seville

Syndicate, 64 Misc 2d 109; Matter of Berk, 8 Misc 2d 732;

AL

AVITZUR v AVITZUR [58 NY2qd 108) 111

Opinion per WacuTLer. J.

Serbian Orthodox Diocese v Milivojevich, 426 US 696;

Jones v Wolf, 443 US 595: Maryland & Va. Churches v

Sharpsburg Church, 396 US 367: Margulies v Margulies,

42 AD2d 517, 33 NY2d 894: Matter of “Rubin” v “Rubin”,

75 Mise 2d 776; Waxstein v Waxstein, 90 Misc 2d 784, 57

AD2d 863.)

Robert J. Jossen and Stanley J. Friedman for Jewish

Theological Seminary of America, amicus curiae. As a

matter of law there is no proscription against specific

performance of the Ketubah to require defendant to submit

to the jurisdiction of a Beth Din. (Matter of Philips, 293 NY

483, 294 NY 662; Matter of Sunshine, 51 AD2d 326, 40

NY2d 875; Johnston v Spicer, 107 NY 185: Strebler v Wolf,

152 Misc 859; Hurwitz v Hurwitz, 216 App Div 362: Perl-

stein v Perlstein, 76 AD2d 49: Margulies v Margulies, 42

AD2d 517; Waxstein v Waxstein, 90 Misc 2d 784, 57 AD2d

863; Matter of “Rubin” v “Rubin”, 75 Misc 2d 776, Koeppel

vu Koeppel, 3 AD2d 853.)

OPINION OF THE COURT

WACHTLER, J.

This appeal presents for our consideration the question

of the proper role of the civil courts in deciding a matter

touching upon religious concerns. At issue is the enforce-

ability of the terms of a document, known as a Ketubah,

which was entered into as part of the religious marriage

ceremony in this case. The Appellate Division held this to

be a religious covenant beyond the jurisdiction of the civil

courts. However, we find nothing in law or public policy to

prevent judicial recognition and enforcement of the secular

terms of such an agreement. There should be a reversal.

Plaintiff and defendant were married on May 22, 1966 in

a ceremony conducted in accordance with Jewish tradition.

Prior to the marriage ceremony, the parties signed both a

Hebrew/Aramaic and an English version of the “Ketubah”.

According to the English translation, the Ketubah evi-

dences both the bridegroom’s intention to cherish and

provide for his wife as required by religious law and

tradition and the bride’s willingness to carry out her obli-

gations to her husband in faithfulness and affection ac-

cording to Jewish law and tradition. By signing the Ketu-

a.5

58 NEW YORK REPORTS, 2d SERIES

Opinion per WacuTLer, J.

112

bah, the parties declared their “desire to ** * live in

accordance with the Jewish law of marriage throughout

[their] lifetime” and further agreed as follows: “[Wle, the

bride and bridegroom * * * hereby agree to recognize the

Beth Din of the Rabbinical Assembly and the Jewish

Theological Seminary of America or its duly appointed

representatives, as having authority to counsel us in the

light of Jewish tradition which requires husband and wife

to give each other complete love and devotion, and to

summon either party at the request of the other, in order to

enable the party so requesting to live in accordance with

the standards of the Jewish law of marriage throughout his

or her lifetime. We authorize the Beth Din to impose such

terms of compensation as it may see fit for failure to

respond to its summons or to carry out its decision.”

Defendant husband was granted a civil divorce upon the

ground of cruel and inhuman treatment on May 16, 1978.

Notwithstanding this civil divorce, plaintiff wife is not

considered divorced and may not remarry pursuant to

Jewish law, until such time as a Jewish divorce decree,

known as a “Get”, is granted. In order that a Get may be

obtained plaintiff and defendant must appear before a

“Beth Din”, a rabbinical tribunal having authority to

advise and pass upon matters of traditional Jewish law.

Plaintiff sought to summon defendant before the Beth Din

pursuant to the provision of the Ketubah recognizing that

body as having authority to counsel! the couple in the

matters concerning their marriage.

Defendant has refused to appear before the Beth Din,

thus preventing plaintiff from obtaining a religious di-

vorce. Plaintiff brought this action, alleging that the Ketu-

bah constitutes a marital contract, which defendant has

breached by refusing to appear before the Beth Din, and

she seeks relief both in the form of a declaration to that

effect and an order compelling defendant’s specific perfor-

mance of the Ketubah’s requirement that he appear before

the Beth Din. Defendant moved to dismiss the complaint

upon the grounds that the court lacked subject matter

jurisdiction and the complaint failed to State a cause of

action, arguing that resolution of the dispute and any

grant of relief to plaintiff would involve the civil court in

A 6

AVITZUR v AVITZUR [58 NY2d 108] 113

Opinion per WACHTLER, J.

impermissible consideration of a purely religious matter.

Plaintiff, in addition to opposing the motion, cross-moved

for summary judgment.

Special Term denied defendant’s motic. to dismiss, not-

ing that plaintiff sought only to compel defendant to sub-

mit to the jurisdiction of the Beth Din, an act which

plaintiff had alleged defendant bound himself to do. That

being the only object of the lawsuit, Special Term was

apparently of the view that the relief sought could be

granted without impermissible judicial entanglement in

any doctrinal issue. The court also denied plaintiff’s mo-

tion for summary judgment, concluding that issues con-

cerning the translation, meaning and effect of the Ketubah

raised factual questions requiring a plenary trial.

The Appellate Division modified, granting defendant’s

motion to dismiss. Inasmuch as the Ketubah was entered

into as part of a religious ceremony and was executed, by

its own terms, in accordance with Jewish law, the court

concluded that the document constitutes a liturgical agree-

ment. The Appellate Division held such agreements to be

unenforceable where the State, having granted a civil

divorce to the parties, has no further interest in their

marital status.

Accepting plaintiff’s allegations as true, as we must in

the context of this motion to dismiss, it appears that

plaintiff and defendant, in signing the Ketubah, entered

into a contract which formed the basis for their marriage.

Plaintiff has alleged that, pursuant to the terms of this

marital contract, defendant promised that he would, at

plaintiff’s request, appear before the Beth Din for the

purpose of allowing that tribunal to advise and counsel the

parties in matters concerning their marriage, including

the granting of a Get. It should be noted that plaintiff is not

attempting to compel defendant to obtain a Get or to

enforce a religious practice arising solely out of principles

of religious law. She merely seeks to enforce an agreement

made by defendant to appear before and accept the decision

of a designated tribunal.

Viewed in this manner, the provisions of the Ketubah

relied upon by plaintiff constitute nothing more than an

agreement to refer the matter of a religious divorce to a

a7

114 58 NEW YORK REPORTS, 2d SERIES

Opinion per WacuTLer, J

nonjudicial forum. Thus, the contractual obligation plain-

tiff seeks to enforce is closely analogous to an antenuptial

agreement to arbitrate a dispute in accordance with the

law and tradition chosen by the parties. There can be little

doubt that a duly executed antenuptial agreement, by

which the parties agree in advance of the marriage to the

resolution of disputes that may arise after its termination.

is valid and enforceable (e.g., Matter of Sunshine, 40 NY2d

875, affg 51 AD2d 326; Matter of Davis, 20 NY2d 70).

Similarly, an agreement to refer a matter concerning mar-

riage to arbitration suffers no inherent invalidity (Hirsch v

Hirsch, 37 NY2d 312: see Bowmer v Bowmer, 50 NY2d 288,

293). This agreement — the Ketubah — should ordinarily

be entitled to no less dignity than any other civil contract

to submit a dispute to a nonjudicial forum, so long as its

enforcement violates neither the law nor the public policy

of this State (Hirsch v Hirsch, supra, at p 315).

Defendant argues, in this connection, that enforcement

of the terms of the Ketubah by a civil court would violate

the constitutional prohibition against excessive entangle-

ment between church and State. because the court must

necessarily intrude upon matters of religious doctrine and

practice. It is urged that the obligations imposed by the

Ketubah arise solely from Jewish religious law and can be

interpreted only with reference to religious dogma. Grant-

ing the religious character of the Ketubah, it does not

necessarily follow tha any recognition of its obligations is

foreclosed to the courts.

It is clear that judicial involvement in matters touching

upon religious concerns has been constitutionally limited

in analogous situations, and courts should not resolve such

controversies in a manner requiring consideration of reli-

gious doctrine (Presbyterian Church v Hull Church, 393 US

440, 449: Serbian Orthodox Diocese v Milivojevich, 426 US

696, 709; Jones v Wolf. 443 US 595, 603; see, e.g., Reardon

vu Lemoyne, __ NH __, __[Dec. 23, 1982]). In its most recent

pronouncement on this issue, however, the Supreme Court,

in holding that a State may adopt any approach to resolv-

ing religious disputes which does not entail consideration

of doctrinal matters. specifically approved the use of the

“neutral principles of law” approach as consistent with

A 8

AVITZUR v AVITZUR [58 NY2d 108] 115

Opinion per WaCcHTLER, J.

constitutional limitations (Jones v Wolf, supra, at p 602).

This approach contemplates the application of objective,

well-established principles of secular law to the dispute

(1d., at p 603), thus permitting judicial involvement to the

extent that it can be accomplished in purely secular terms.

The present case can be decided solely upon the applica-

tion of neutral principles of contract law, without reference

to any religious principle. Consequently, defendant’s objec-

tions to enforcement of his promise to appear before the

Beth Din, based as they are upon the religious origin of the

agreement, pose no constitutional barrier to the relief

sought by plaintiff. The fact that the agreement was en-

tered into as part of a religious ceremony does not render it

unenforceable. Solemnization of the marital relationship

often takes place in accordance with the religious beliefs of

the participants, and this State has long recognized this

religious aspect by permitting duly authorized pastors,

rectors, priests, rabbis and other religious officials to per-

form the ceremony (Domestic Relations Law, § 11, subds i.

7). Similarly, that the obligations undertaken by the par-

ties to the Ketubah are grounded in religious belief and

practice does not preclude enforcement of its secular terms.

Nor does the fact that all of the Ketubah’s provisions may

not be judicially recognized prevent the court from enforc-

ing that portion of the agreement by which the parties

promised to refer their disputes to a nonjudicial forum (see

Ferro v Bologna, 31 NY2d 30, 36). The courts may properly

enforce so much of this agreement as is not in contraven-

tion of law or public policy.

In short, the relief sought by plaintiff in this action is

simply to compel defendant to perform a secular obligation

to which he contractually bound himself. In this regard, no

doctrinal issue need be passed upon, no implementation of

a religious duty is contemplated, and no interference with

religious authority will result. Certainly nothing the Beth

Din can do would in any way affect the civil divorce. To the

extent that an enforceable promise can be found by the

application of neutral principles of contract law, plaintiff

will have demonstrated entitlement to the relief sought.

Consideration of other substantive issues bearing upon

plaintiff's entitlement to a religious divorce, however, is

A 9

116 58 NEW YORK REPORTS, 2d SERIES

Dissenting opinion per JONES, J.

appropriately left to the forum the parties chose for resoly-

ing the matter.

Accordingly, the order of the Appellate Division should

be reversed, with costs, and defendant’s motion to dismiss

the complaint denied.

JONES, J. (dissenting). We are of the opinion that to

grant the relief plaintiff seeks in this action, even to the

limited extent contemplated by the majority, would neces-

sarily violate the constitutiona] prohibition against en-

tanglement of our secular courts in matters of religious

and ecclesiastical content. Accordingly, we would affirm

the order of the Appellate Division.

We start on common ground. Judicial intervention in

disputes with respect to religious and ecclesiastical obliga-

tion is constitutionally proscribed, save with respect to a

narrow class of issues, as to which, under “neutral prin-

ciples of law”, the secular component of the religious and

ecclesiastical rights and obligations may be resolved with-

out impermissible trespass on or even reference to reli-

gious dogma and doctrine (pp 114-115). We depart from the

conclusion of the majority that in this case the courts may

discern one or more discretely secular obligations which

may be fractured out of the “Ketubah”, indisputably in its

essence a document prepared and executed under Jewish

law and tradition.

We are constrained, as is the majority, by the allegations

of the complaint. Plaintiff therein alleges: that the parties

were married on May 22, 1966 ina religious ceremony in

accordance with Jewish law and tradition; that pursuant to

the terms and conditions of the religious ceremony they

entered into a contract known as a “Ketubah”; that under

the Ketubah the husband declared and contracted with the

wife to be her husband according to the law of Moses and

Israel and to honor and support her, faithfully cherishing

her and providing for her needs as Jewish husbands are

required to do pursuant to Jewish religious law and tradi-

tion; that pursuant to the Ketubah the parties agreed to

recognize the Beth Din of the Rabbinical] Assembly and the

Jewish Theological Seminary of America as having au-

thority to summon either party at the request of the other

A 10

AVITZUR v AVITZUR [58 NY2d 108] 117

Dissenting opinion per Jones. J.

and further agreed that in the event of any civil divorce

decree the husband would grant and the wife accept a

Jewish divorce (“get”) in accordance with the authority

vested in the Beth Din; that under the law of Moses should

the husband arbitrarily refuse to give a “get” the wife, such

as plaintiff in this case, is known and referred to as an

“Aguna” which is a state of limbo wherein the wife is

considered neither married nor divorced; that a judgment

of civil divorce of the parties was entered on May 16, 1978

in the Albany county clerk’s office; that the wife has

requested and summoned the husband to appear before the

Beth Din of the Rabbinical Assembly pursuant to the

terms of the Ketubah but that he has willfully and inten-

tionally refused to appear before the assembly in violation

of his contractual obligations; that in consequence the wife

1s consigned to the status of “Aguna” and is barred from

remarrying within the context of a Jewish religious cere-

mony. The wife demands judgment against the husband:

declaring “the rights and other legal relation of the plain-

tiff and defendant in the marriage contract (Ketubah),

created by reason of the written instrument”: declaring

that the husband specifically perform pursuant to the

terms and conditions of the Ketubah in that he appear

before the Beth Din of the Rabbinical Assembly and the

Jewish Theological Seminary of America or its duly ap-

pointed representatives pursuant to the wife’s request;

declaring that failure of the husband so to appear consti-

tutes a breach of contract; and for other incidental relief.

Determination whether judicial relief may be granted

the wife without constitutionally impermissible interjec-

tion of the court into matters of religious and ecclesiastical

content requires examination of the English translation of

the Ketubah in the context of the wife’s allegation that this

document was made and entered into as part of the reli-

gious ceremony in accordance with Jewish law and tradi-

tion:

“On the First Day of the Week, the 3rd Day of the Month

Sivan, 5726, corresponding to the 22nd Day of May, 1966,

Boaz Avitzur, the bridegroom, and Susan Rose Wieder, the

bride, were united in marriage in Old Westbury, N.Y. The

bridegroom made the following declaration to his bride: ‘Be

A ii

118 58 NEW YORK REPORTS, 2d SERIES

Dissenting opinion per Jones, J.

thou my wife according to the law of Moses and Israel. I

shall honor and support thee, faithfully I shall cherish thee

and provide for thy needs, even as Jewish husbands are

required to do by our religious law and tradition.’

“In turn, the bride took upon herself the duties of a

Jewish wife, to honor and cherish her husband, and to

carry out all her obligations to him in faithfulness and

affection as Jewish law and tradition prescribe.

“And in solemn assent to their mutual responsibilities

and love, the bridegroom and bride have declared: As

evidence of our desire to enable each other to live in

accordance with the Jewish law of marriage throughout

our lifetime, we, the bride and bridegroom, attach our

signatures to this Ketubah, and hereby agree to recognize

the Beth Din of the Rabbinica] Assembly and the Jewish

Theological Seminary of America, or its duly appointed

representatives, as having authority to counsel us in the

light of Jewish tradition which requires husband and wife

to give each other complete love and devotion, and to

summon either party at the request of the other, in order to

enable the party so requesting to live in accordance with

the standards of the Jewish law of marriage throughout his

or her lifetime. We authorize the Beth Din to impose such

terms of compensation as it may see fit for failure to

respond to its summons or to carry out its decision.

“This Ketubah was executed and witnessed this day in

accordance with Jewish law and tradition.

“Boaz Avitzur bridegroom Susan Wieder bride Melvin

Kieffer rabbi Abraham Weisman witness Melvin Kieffer

witness.”

At the outset we observe that the complaint contains no

allegation that the parties intended that the Ketubah

should manifest secular promises or have any civil or

secular status or any legal significance independent of the

religious ceremony between them of which it was an inte-

gral part. Nor is any such assertion advanced in the papers

submitted by the wife in support of her cross motion for

summary judgment.

Moreover, it appears evident to us that any determina-

tion of the content and particulars of the rights of the wife

A 12

AVITZUR v AVITZUR [58 NY2d 108} 119

Dissenting opinion per Jones, J.

or the obligations of the husband under this document

cannot be made without inquiry into and resolution of

questions of Jewish religious law and tradition. We think

it inaccurate to identify the relief sought by plaintiff, as

does the majority, as “simply to compel defendant to per-

form a secular obligation to which he contractually bound

himself.” (At p 115.)

The complaint’s first request for relief paints with a

broad brush, asking that the court “declare the rights and

other legal relation of the plaintiff and defendant in the

marriage contract” created by reason of the Ketubah. That

such an all-encompassing declaration of rights exceeds the

authority of the civil court seems to be implicitly conceded

by the majority’s attempt to limit its consideration to

enforcement of an obligation characterized as “secular” —

the alleged obligation of the husband to appear before the

Beth Din.

The wife’s pleading itself, however, not to mention the

affidavits submitted by her, makes it clear that even a

definition of the purported “secular obligation” requires an

examination into the principles and practice of the Jewish

religion. Although the English translation of the Ketubah

attached to the complaint recites that the parties “recog-

nize the Beth Din * * * as having authority * * * to summon

either party at the request of the other”, the complaint

seeks a declaration that the husband specifically perform

“in that he appear before the Beth Din * * * pursuant to the

request of the plaintiff”. Thus, the wife tenders her con-

struction of the document, which in turn presumably is

predicated on what she contends is tradition in the faith,

l.e., that there is an obligation imposed by the agreement

to appear before the Beth Din at the summons alone of the

other party to the marriage despite the facial reference to a

summons by the Beth Din. The husband, tendering his own

construction of the document, denies that he is under any

obligation to appear before the Beth Din because an earlier

request by him for convocation of such a body was refused.

Thus, it appears evident that any judicial determination

whether the husband is obligated to appear before the Beth

Din, or what nature of summons is required to call such

120 58 NEW YORK REPORTS, 2d SERIES

Dissenting opinion per Jones. J

obligation into play, necessarily involves reference to sub-

stantive religious and ecclesiastical law.’

The unsoundness of the position espoused by the major-

ity to justify judicial action to compel the huSband to

appear before the Beth Din, is revealed by projection of the

course the continuing litigation will take in this case. The

motion to dismiss and the cross motion for summary judg-

ment having both been denied, the case will be set down for

trial. The evidence which the wife may be expected to

introduce is revealed by examination of the affidavits she

submitted in opposition to the motion to dismiss and in

support of her cross motion for summary judgment. Her

affidavit conveys information furnished her by Rabbi Mor-

decai Kieffer who in his accompanying affidavit describes

himself as “qualified to render an expert opinion concern-

ing matters of Jewish laws and custom”. She relies on his

affidavit to support her claim that there was “good and

legal consideration” for the Ketubah and that the Beth Din

presently has no authority to compel the husband to sub-

mit to its jurisdiction. The rabbi, predicated on what he

offers as a more accurate translation of the Ketubah into

English, expresses the opinion that “good and legal consid-

eration” is to be found in the document itself. Then, de-

scribing in detail the procedures incident to the issuance of

a “get”, the rabbi concludes that the husband was obligated

to submit to the jurisdiction of the Beth Din without the

issuance of ahy summons by it. Accordingly, it is evident

that the wife and her counsel are themselves of the view

that substantiation of her position will depend on expert

opinion with respect to Jewish law and tradition.

The majority’s reference to the fact that marriage rela-

tionships solemnized within a religious context are recog-

nized by the civil law is not determinative of the question

here presented where what is sought to be enforced is an

aspect of the relationship peculiar to the religion within

which the ceremony creating it took place. No authority is

cited in which a civil court has enforced a concomitant

undertaking required by the ecclesiastical authority under

which the marriage ceremony was solemnized. That no

* The recital in the testimonium clause itself jis indicative — “this Ketubah was

executed and witnessed this day in accordance with Jewish law and tradition.”

A 14

AVITZUR v AVITZUR [58 NY2d 108] 121

Dissenting opinion per Jones. J.

such civil enforcement of the obligation to appear before

the Beth Din was contemplated either by the drafter of the

Ketubah or by the parties as its signatories is evident from

the inclusion of explicit authorization to the Beth Din “to

impose such terms of compensation as it may see fit for

failure to respond to its summons or to carry out its

decision”. Nothing in the record suggests that it was the

intention of the parties when they signed this religious

document that the civil courts of the State of New York

were to have jurisdiction to determine the substantive

rights created thereby or to invoke civil procedures and

remedies for the enforcement of such rights. Indeed, any

conclusion on the part of our courts that this express

provision was not intended by the parties as the exclusive

remedy available to them for any breach of their obliga-

tions under the Ketubah would itself necessarily entail

examination of Jewish law and tradition.

Finally, the evident objective of the present action — as

recognized by the majority and irrefutably demonstrated

by the complaint — even if procedural jurisdiction were to

be assumed, is to obtain a religious divorce, a matter well

beyond the authority of any civil court. (Again supplying

her own interpretation of the Ketubah, the wife alleges:

“That pursuant to the terms of the Ketubah, the plaintiff

and defendant agreed that in the event of any civil divorce

decree that the husband grant and the wife accept a Jewish

divorce decree in accordance with the authority vested in

the Beth Din of the Rabbinical Assembly”.) As was noted

at the Appellate Division, the interest of the civil authori-

ties of the State of New York in the status of the marriage

between these parties was concluded when the final judg-

ment of divorce was entered in 1978.

Chief Judge CooKE and Judges FucHSBERG and MEYER

concur with Judge WACHTLER; Judge JongEs dissents and

votes to affirm in a separate opinion in which Judges

JASEN and SIMONS concur.

Order reversed, etc.

APPENDIX B

OPINION OF THE NEW YORK STATE

SUPREME COURT, APPELLATE

DIVISION, THIRD DEPARTMENT

Bl

AVITZUR v AVITZUR [86 AD2d 133] 133

SusAN R. Avitzur, Respondent, v Boaz Avitzur, Appel-

lant.

Third Department, April 8, 1982

SUMMARY

APPEAL from an order of the Supreme Court at Special

Term (Aaron E. Kern, J.), entered January 8, 1981 in

Albany County, which denied defendant’s motion to dis-

miss the complaint.

HEADNOTE

Husband and Wife — Divorce — Agreement to Secure Religious Dissolution of

Marriage

Plaintiff and defendant, who had been married in a Jewish religious ceremony and

signed a written agreement known as a “Ketubah” as part of the ceremony, were

subsequently divorced, and plaintiff, desirous of obtaining a Jewish religious divorce,

known as a “Get”, commenced an action for specific performance of the Ketubah’s

requirement that defendant appear before a Jewish religious tribunal known as the

“Beth Din”, which is necessary in order to obtain a Get; defendant's motion to dismiss

the complaint is granted, since the State, having already granted the parties a civil

divorce, has no further interest in their marital status and a court will not enforce

liturgical agreements concerning matters about which the State has no remaining

concern. Moreover, a person seeking to invoke the court’s equitable power of compelling

specific performance should come before the court with clean hands, and plaintiff, who

has had a civil divorce on fault grounds granted against her, has failed to state a cause of

action for the relief sought.

APPEARANCES OF COUNSEL

Louis-Jack Pozner for appellant.

Lee, LeForestier, Malone, Smith & Hanft (Richard A.

Hanft of counsel), for respondent.

OPINION OF THE COURT

MAHONEY, P. J.

Married in a Jewish religious ceremony on May 22,

1966, plaintiff and defendant signed a written agreement

known as a “Ketubah” that same day as part of the

religious ceremony. On May 17, 1978, defendant obtained

a civil divorce in the State Supreme Court on the ground of

Piaintiff’s cruel and inhuman treatment. Desirous of ob-

taining a Jewish religious divorce, known as a “Get”,

plaintiff commenced this action in February of 1980 for

Specific performance of the Ketubah’s requirement that

defendant appear before a Jewish religious tribunal known

as the “Beth Din”, which is necessary in order to obtain a

a __

B 2

134 86 APPELLATE DIVISION REPORTS, 2d SERIES

Get. Defendant moved to dismiss the complaint pursuant

to CPLR 3211 on the grounds that plaintiff lacked capacity

to sue, that the complaint failed to state a cause of action

and failed to name certain necessary parties. Plaintiff

cross-moved for summary judgment. Special Term denied

both motions and this appeal by defendant ensued.

Defendant argues that this lawsuit involves matters

which are religious in nature and that it would require an

unconstitutional entanglement between church and State

for the Supreme Court to assume jurisdiction over the

action. Special Term, in rejecting this argument, found no

such entanglement. Instead, it viewed the real object of the

lawsuit as seeking “a command upon the individual defen-

dant to do what is alleged he agreed to do in advance.” We

cannot agree. The agreement which plaintiff is attempting

to specifically enforce was entered into as part of a reli-

gious ceremony and, by its own terms, was “executed and

witnessed * ** in accordance with Jewish law and tradi-

tion.” The State, having already granted the parties a civil

divorce, has no further interest in their marital status. It

would thus be a dangerous precedent to allow State courts

to enforce liturgical agreements concerning matters about

which the State has no remaining concern. Viewed in this

manner, the cases cited by Special Term in support of its

jurisdiction to enforce a Ketubah are inapposite since those

cases involved situations where the Ketubah’s terms had

been incorporated in a subsequent civil agreement (Mar-

gules v Margulies, 42 AD2d 517, app dsmd 33 NY2d 894

[stipulation in open court]; Waxstein v Waxstein, 90 Misc 2d

784, affd 57 AD2d 863 [separation agreement]; Matter of

“Rubin” v “Rubin”, 75 Misc 2d 776 (written stipulation of

settlement]; Koeppel v Koeppel, 1388 NYS2d 366, affd 3

AD2d 853 [separation agreement]). Only the unreported

case of Stern v Stern (Supreme Ct, Kings County, Aug. 8,

1979, HELp, J.) has granted specific performance of the

Ketubah itself, as distinguished from the subsequent rati-

fication of its provisions. We decline to follow this decision.

Moreover, assuming, arguendo, that this matter in-

volved a civil contract over which State courts could prop-

erly exercise jurisdiction, it is our view that defendant’s

motion to dismiss for failure to State a cause of action

B 3

AVITZUR v AVITZUR [86 AD2d 133] 135

should have been granted. The parties to this action have

already been civilly divorced. By commencing this action

for specific performance of the Ketubah, plaintiff is asking

the State court system to act as the enforcement mecha-

nism whereby defendant will be compelled to appear before

the Beth Din. The sole purpose behind compelling this

appearance is to enable plaintiff to obtain a religious

divorce so that she may at some time in the future marry in

accordance with her religious beliefs.

A person seeking to invoke the court’s equitable power of

compelling specific performance should come before the

court with clean hands (Weiss v Mayflower Doughnut

Corp., 1 NY2d 310, 316; 20 NY Jurtrev ed], Equity, §§ 102-

111). Plaintiff in the instant case has already been judicial-

ly found to have breached her marriage vows and had a

divorce on fault grounds granted against her. Under these

circumstances, plaintiff’s complaint fails to state a cause of

action for the relief being sought.

Accordingly, Special Term erred in failing to grant de-

fendant’s motion to dismiss the complaint.

The order should be modified, on the law, by reversing so

much thereof as denied defendant’s motion to dismiss the

complaint, and the motion granted, and, as so modified,

affirmed, with costs.

LevINE, J. (dissenting). Of course, for purposes of this

motion to dismiss the complaint, plaintift’s pleadings and

Supporting papers must be accepted as true and are enti-

tled to every legitimate inference to be drawn therefrom.

We must, therefore, accept as established (1) that there

was an actual meeting of the minds between the parties as

to the portion of the Ketubah in which they mutually

undertook to obtain a Get in the event of a civil divorce,

and that their promises were supported by consideration;

(2) that defendant’s involvement in obtaining the Get could

be as minimal as merely appearing before a rabbi to

disclose the relevant information and to execute the Get

document, and thus, enforcement of this portion of the

Ketubah does not entail any religious observance, perfor-

mance of ritual, or invasion of personal convictions by or on

the part of defendant; and (3) that defendant’s refusal to

B4

136 86 APPELLATE DIVISION REPORTS, 2d SERIES

submit to the Get prevents plaintiff from the free exercise

of her religion in becoming remarried in a Jewish religious

ceremony.

In my view, these facts, if established at a trial, could

justify some appropriate exercise of the powers of the New

York State Supreme Court, sitting as a court of equity, to

enforce plaintiff’s contractual rights, albeit with circum-

spection because of the freedom of religion and separation

of church and State overtones to the case.

The majority’s reasoning is that because the parties have

been divorced civilly and the Ketubah was entered into as

part of a religious marriage ceremony, the State has no

further interest in the parties’ marital status and, there-

fore, should not “enforce liturgical agreements concerning

matters about which the State has no remaining concern”.

That the agreement was made as part of a religious

ceremony and was executed “in accordance with Jewish

law and tradition” does not render it illegal and unenforce-

able, and indeed to so hold would pose the same First

Amendment problems the majority seeks to avoid by its

decision. The direct enforcement of provisions of a Ketu-

bah, without reaffirmation in a subsequent or separate

nonliturgical agreement, was upheld in Hurwitz'v Hurwitz

(216 App Div 362). Hurwitz’ rejection of absolute invalidity

of the Ketubah asa contract, at least at the pleading stage,

is equally applicable here (p 366): “All that we have before

us in the present case is a simple agreement, made be-

tween a man and a woman in contemplation of marriage,

and the sole questions are, what was the agreement and

whether the agreement is legal. If it is, then it should be

enforced according to the intent of the parties who united

in making it. If it is not legal, then the courts should so

declare. But I do not see how any court can render intelli-

gent judgment in the premises until there has been a

proper judicial investigation by a trial of the issues raised

in the pleadings.” True, Hurwitz involved enforcement of a

portion of a Ketubah dealing with property rights during

widowhood, but I should think that plaintiff’s right to have

her marriage finally disposed of through a religious di-

vorce and her right to remarry in a religious ceremony are

entitled to no less legal consideration. Similar interests

B 5

AVITZUR v AVITZUR [86 AD2d 133] 137

have been recognized as legally cognizable in other con-

texts (Brillis uv Brillis, 4 NY2d 125; Aufiero v Aufiero, 222

App Div 479; Rutstein v Rutstein, 221 App Div 70).

Likewise, the fact that the parties are already civilly

divorced does not preclude enforcement of the promise to

submit to a Get under a valid antenuptial agreement.

which the Ketubah must be deemed to constitute at this

state of the litigation. As to this basis for the majority’s

holding, the instant case is indistinguishable from Margu-

lies v Margulies (42 AD2d 017, app dsmd 33 NY2d 894) and

Waxstein v Waxstein (90 Misc 2d 784, affd 57 AD2d 863). In

both these cases, the absence of any State interest in the

marital status of the parties following civil divorce did not

prevent judicial enforcement of the promise subsequently

to obtain a Jewish divorce. The State's interest in enforcing

agreements exists no less in the case of an antenuptial

agreement, 1.e., the Ketubah, than in the separation agree-

ments involved in these cases.

It is also inappropriate to dispose of plaintiff’s action at

the pleading stage on the basis of the clean hands doctrine,

the majority’s alternative ground for dismissing the com-

plaint. We ignore the realities of modern divorce litigation

by holding that the granting of an uncontested divorce to

defendant, after protracted negotiations, establishes in and

of itself such misconduct on plaintiff’s part as to result ina

total forfeiture of her contractua] rights. This, too, is an

issue that should only be resolved after full exploration of

the relative equities of the parties at a trial.

For all of the foregoing reasons, Special Term’s denial of

the motion to dismiss should be affirmed.

SWEENEY, KANE and WEIss, JJ., concur with MAHONEY,

P.J.; LEVINE, J., dissents and votes to affirm in a separate

Opinion.

Order modified, on the law, by reversing so much thereof

as denied defendant’s motion to dismiss the complaint, and

motion granted, and, as so modified, affirmed, with costs.

APPENDIX C

OPINION OF SUPREME COURT OF

THE STATE OF NEW YORK,

ALBANY COUNTY

STATE OF NEW YORK

SUPREME COURT:COUNTY OF ALBANY

SUSAN ROE AVITZUR,

Plaintiff,

- against -

BOAZ AVITZUR,

Defendant

Sullivan County Special Term, October

lOth, 1980

Motion No. 25

RLEIN. J.

Defendant's motion under CPLR §321]1

seeks to dismiss this action for four

Stated reasons, V1z, lack of Capacity of

the plaintiff to Sue; failure to Join ali

necessary parties in the Sulit; lack of

Jurisdiction over the subject matter by

the court, and the failure of the com-

Pplaint to set forth a cause of action.

There is a Cross~-motion by which the

Plaintiff seeks under CPLR §3212 (b)

cS 2

three forms of affirmative relief for

herself, as well as denial of the relief

sought by the original moving party. The

relief sought by the plaintiff is partial

Summary judgment in the following forms:

Specific performance by the defendant of

the terms of a document dated May 22nd,

1966; partial summary judgment in the

form of a declaratory judgment holding

that the defendant has breached the terms

of the said document claimed to be a

contract between the parties to this

action; and finally, partial Summary

judgment defining the relationship of the

plaintiff to the action, vis-a-vis, the

document so claimed to be a contractual

undertaking on their parts.

The court first considers the issue

raised of the jurisdiction by this court

over the subject matter of the lawsuit.

Defendant's contention that no such

S 2

jurisdiction exists, rests upon the claim

that the lawsuit is so intertwined with

religious matters that historically,

beginning with the First Amendment of the

Constitution of the United States and of

Article I, §3 of the Constitution of the

State of New York, both of which guaran-

tee religious freedom, the courts of the

State will take a hands off policy. This

court takes the opposite view, that the

relief sought in this suit, if the

alleged contract is in fact found to be

an enforceable one, would merely require

a decree of this court of specific per-

formance which would relegate the party

so ordered to submit himself for a

determination of religious law to a

religious tribunal as purportedly agreed

to by him in the basic premarital papers.

By virtue of this reasoning, the court

reaches the conclusion that for purposes

C 4

of establishing the legality and viabil-

ity of the alleged premarital agreement,

plaintiff clearly has standing before

this court. Through the same stream of

reasoning, the court reaches the conclu-

Sion that to require the dismissal of the

complaint for failure of joinder of cer-

tain "necessary" parties, to wit, the

Beth Din of the Rabbinical Assembly and

the Jewish Theological Seminary of

America, would in itself trespass upon

the doctrine of separation of church and

State since it inevitably suggests that a

Civil court of law might order and com-

mand a religious tribunal to subject

itself to the directions of this court.

Rather, the court considers the real

object of this lawsuit to be a command

upon the individual defendant to do what

is alleged he agreed to do in advance,

namely, to submit himself to the juris-

os

diction of those institutions so named.

It 1s clear that no decree of this court

Should have the effect of interfering in

Or with the religious functioning of such

bodies. The view thus taken is in har-

mony with a line of cases decided through

the years, beginning with Koeppel v.

Koeppel, 138 NYS 2d 366 aff'd 3 A.D.2¢

853; Margulies v. Margulies, 42 A.D.2d;

~i?, @pp. dsmd. 33 N.Y.2d 694: “Rubin” v.

"Rubin", 75 Misc. 24 776: Waxstein v.

Waxstein, 90 Misc. 2d 784, and probably

most recently, Stern v. Stern, NYLJ,

August 8, 1979, opinion by Hon. Gerald S.

Held.

While the complaint, in some of its

allegations, appears to go beyond the

scope of the foregoing reasoning of sub-

ject matter jurisdiction by this court,

there are sufficient alternative allega-

tions in the complaint which can basic-

C 6G

ally be described as the charges of

failure and refusal on the part of the

individual defendant to Carry out his

alleged agreement through his resistance

to appear before those religious bodies

which support the Viability of the com-

plaint. Underlying those allegations is

the request that the court review the

claimed contract to see if the plain-

tiff's contentions are borne out by the

documents executed, admittedly, by both

parties. Of course, on a motion to dis-

miss the complaint for failure to state a

cause of action, it must be very clear

that no relief can be granted under the

facts alleged in the complaint (see

Richardson v. Richardson, 58 AD2d 861) to

Support its dismissal. Here, the plain-

tiff has alleged a legally sufficient

complaint for declaratory judgment of the

rights between these parties.

ae

Turning now to the defendant's and

plaintiff's motions for summary judgment,

the court is confronted with varying and

inconsistent contentions by the parties

to this lawsuit as to the translation,

meaning and effect of the document

aforedescribed, as well as the intent of

the parties in executing the same. fThis

1s more properly treated in a plenary

trial in which the respective claims may

be weighed by the trial court after a

full exposition of the subject matter.

Thus the construction of the claimed

agreement underlying this lawsuit would

be an issue of fact to be resolved at

such plenary trial. (Cf. Meathe v. State

University Construction Fund, 65 AD 49,

52.) Since summary judgment has been

described as the procedural equivalent to

a trial, (Crowley's Milk Company v.

Klein, 24 AD2d 920) it would be inappro-

Cc a

priate at this juncture to resolve the

controversy before this court on mere

Submissions.

Accordingly, the motion and cross-

motion for summary judgment must be

denied.

(Attorneys for plaintiff to submit

one order in accordance herewith. )

Dated: Kingston, New York

December 3rd, 1980

APPENDIX D

COMPLAINT

D> I

STATE OF NEW YORK

SUPREME COURT COUNTY OF ALBANY

eh ae a a a a ee

SUSAN ROE AVITZUR, :

Plaintiff, :

- against - -

BOAZ AVITZUR, :

Defendant. :

re me ee ee ee ee

COMPLAINT

Plaintiff, for a Complaint by her

attorneys, Lee, LeForestier, Malone,

Smith & Hanft, P.C., herein alleges as

follows:

1. Plaintiff now resides and at all

times hereinafter mentioned did reside in

the City of Albany, County of Albany and

State of New York.

2. That the plaintiff and defendant

were married in the Village of Westbury,

County of Nassau, State of New York on

the 22nd day of May, 1966.

D 2

3. That there is an issue of said

marriage, to wit, Michael David, born

October 17, 1968.

4. Upon information and belief

defendant was at all times herein men-

tioned and still is a resident and domi-

cil of the County of Albany, State of New

York.

5. That a Judgment of Divorce was

granted to the defendant on the 16th day

of May, 1978 which was duly filed in the

office of the Clerk of the County of

Albany, State of New York.

6. On the 22nd day of May, 1966,

the plaintiff and defendant were married

in a religious ceremony in accordance

with Jewish law and tradition.

7. Pursuant to the terms and con-

ditions of the religious ceremony the

parties willingly and voluntarily entered

into a contract which constituted the

D3

basis for the marriage and said marriage

was and is and did constitute a contrac-

tual relationship.

8. That the aforementioned contract

entered into by the plaintiff and de-

fendant is hereinafter known as a

"Ketubah", a copy of which is in Hebrew

and a copy of its English translation and

are annexed hereto and made a part hereof

as Exhibit "A" and "A-1" which provides

that defendant will respect and support

his wife in accordance with his means.

9. That the aforementioned Ketubah

constructually provides that plaintiff

take upon herself the duties of a Jewish

wife, to honor and cherish her husband,

the defendant, and to carry out all her

obligations to him in faithfulness and

affection as Jewish law and tradition

prescribe.

D 4

10. That pursuant to the terms and

conditions of the Ketubah, the defendant

declared and contracted with the plain-

tiff to be her husband according to the

law of Moses and Israel and further con-

tracted to honor and support the plain-

Cift faithfully cherishing her and pro-

viding for her needs as Jewish husbands

are required to do pursuant to Jewish

religious law and tradition.

ll. Pursuant to the terms of the

Ketubah, the plaintiff and defendant

agreed to recognize the Beth Din of the

Rabbinical Assembly and the Jewish Theo-

logical Seminary of America or its duly

appointed representatives having

authority to counsel to plaintiff and

defendant in the light of Jewish

tradition which requires husband and wife

to give each other complete love and

devotion and to summon either party at

5 3

the request of the other in order to

enable the party so requesting to live in

accordance with the standards of the

Jewish law of marriage throughout the

lifetime of both the plaintiff and

defendant.

12. That on the 22nd day of May,

1966, pursuant to execution of the

Ketubah, the plaintiff and defendant

conducted a ceremony whereby the defend-

ant vowed to the plaintiff in the

presence of the officiating clergymen

duly authorized by the law of the State

of New York to engage such a matrimonial

ceremony to wit "Behold thou art

betrothed onto me with this ring in

accordance with the law of Moses and

Israel."

13. That pursuant to the terms of

the Ketubah, the plaintiff and defendant

agreed that in the event of any civil

divorce decree that the husband grant and

D 6

the wife accept a Jewish divorce in ac-

cordance with the authority vested in the

Beth Din of the Rabbinical Assembly.

14. That obtaining a divorce pur-

Suant to the law of Moses is hereafter

known as obtaining a "Get".

15. That pursuant to the law of

Moses should the husband arbitrarily

refuse to give a divorce, the wife, such

as plaintiff, is hereinafter known as and

referred to as an “Aguna" which is a

state of limbo wherein the wife is con-

sidered neither married or divorced.

16. Pursuant to Jewish Law and the

terms of the Ketubah entered into between

plaintiff and defendant, plaintiff is not

considered divorced nor is she permitted

to remarry despite the fact that a civil

tribunal granted to the wife the right to

remarry.

D7

17. That since on or about the 16th

day of May, 1978, and continuing to date,

plaintiff has requested and summoned to

defendant to appear before the Beth Din

of the Rabbinical Assembly pursuant to

the terms of the annexed Ketubah but

defendant willfully and intentionally

refuses to appear before said Assembly in

violation of his contractual obligations.

18. That failure on the part of the

husband, such as defendant, to appear

before the Beth Din consigns plaintiff to

the status of "Aguna" and unable to

remarry within a religious ceremony since

Judaism considers the wife, such as

plaintiff, remarried (sic) until such

time as defendant fulfills his

contractual obligations.

19. That defendant willfully

refuses to appear before the Beth Din of

the Rabbinical Assembly and the Jewish

D 8

Theological Seminary of America in vio-

lation of his contractual obligation to

appear has resulted in the inability of

plaintiff to obtain a Jewish divorce

(Get) and the plaintiff is further barred

from remarrying within the contexts of a

Jewish religious ceremony.

21. That there is a present

jJusticiable controversy which exists and

the plaintiff does not have an adequate

remedy at law.

22. That plaintiff has been obli-

gated to make expenditures of sums of

money to enforce her legal rights pur-

Suant to the Domestic Relations Law of

the State of New York.

WHEREFORE, plaintiff demands judg-

ment against the defendant as follows:

1. The Court declare the rights and

other legal relation of the plaintiff and

defendant in the marriage contract

D9

(Ketubah) created by reason on the

written instrument dated May 22, 1966 and

annexed to the Complaint herein as

Bxnibit A.

2. Declare that the defendant

specifically perform pursuant to the

terms and conditions of said contract in

that he appear before the Beth Din of the

Rabbinical Assembly and the Jewish

Theological Seminary of America or its

duly appointed representatives pursuant

to the request of the plaintiff.

3. That the failure of defendant to

appear for the Beth Din of the Rabbinical

Assembly and the Jewish Theological

Seminary of America or its duly appointed

representatives constitutes a breach of

contract.

4. A reasonable provision be made

providing for reasonable counsel fees for

counsel to plaintiff.

D 10

5. The plaintiff have such other

and further relief as the Court may seem

just and proper on the premises.

Lee, LeForestier, Malone,

Smith 6 Hanftt, P.C.

Attorneys for Plaintiff

33 Second Avenue

Troy, New York 12180

Tei. No.: (518) 274-1700

APPENDIX E

ENGLISH LANGUAGE TRANSLATION

OF THE KETUBAH

EXHIBIT A-1l TO THE

COMPLAINT

ae |

ON THE FIRST DAY OF THE WEEK, THE 3rd DAY

OF THE MONTH SIVAN, 5726, CORRESPONDING

TO THE 22nd DAY OF May, 1966, BOAZ

AVITZUR, THE BRIDEGROOM, AND SUSAN ROSE

WIEDER, THE BRIDE, WERE UNITED IN

MARRIAGE IN OLD WESTBURY, N.Y., THE

BRIDEGROOM MADE THE FOLLOWING DECLARATION

TO HIS BRIDE: "BE THOU MY WIFE ACCORDING

TO THE LAW OF MOSES AND ISRAEL. I SHALL

HONOR AND SUPPORT THEE, FAITHFULLY I

SHALL CHERISH THEE AND PROVIDE FOR THY

NEEDS, EVEN AS JEWISH HUSBANDS ARE

REQUIRED TO DO BY OUR RELIGIOUS LAW AND

TRADITION."

IN TURN, THE BRIDE TOOK UPON HERSELF THE

DUTIES OF A JEWISH WIFE, TO HONOR AND

CHERISH HER HUSBAND, AND TO CARRY OUT ALL

HER OBLIGATIONS TO HIM IN FAITHFULNESS

AND AFFECTION AS JEWISH LAW AND TRADITION

PRESCRIBE.

ec «

AND IN SOLEMN ASSENT TO THEIR MUTUAL

RESPONSIBILITIES AND LOVE, THE BRIDEGROOM

AND BRIDE HAVE DECLARED: AS EVIDENCE OF

OUR DESIRE TO ENABLE EACH OTHER TO LIVE

IN ACCORDANCE WITH THE JEWISH LAW OF

MARRIAGE THROUGHOUT OUR LIFETIME, WE, THE

BRIDE AND BRIDEGROOM, ATTACH OUR SIGNA-

TURES TO THIS KETUBAH, AND HEREBY AGREE

TO RECOGNIZE THE BETH DIN OF THE RABBI-

NICAL ASSEMBLY AND THE JEWISH THEOLOGICAL

SEMINARY OF AMERICA, OR ITS DULY

APPOINTED REPRESENTATIVES, AS HAVING

AUTHORITY TO COUNSEL US IN THE LIGHT OF

JEWISH TRADITION WHICH REQUIRES HUSBAND

AND WIFE TO GIVE EACH OTHER COMPLETE LOVE

AND DEVOTION, AND TO SUMMON EITHER PARTY

AT THE REQUEST OF THE OTHER, IN ORDER TO

ENABLE THE PARTY SO REQUESTING TO LIVE IN

ACCORDANCE WITH THE STANDARDS OF THE

JEWISH LAW OF MARRIAGE THROUGHOUT HIS OR

HER LIFETIME. WE AUTHORIZE THE BETH DIN

S 3

TO IMPOSE SUCH TERMS OF COMPENSATION AS

IT MAY SEE FIT FOR FAILURE TO RESPOND TO

ITS SUMMONS OR TO CARRY OUT ITS DECISION.

THIS KETUBAH WAS EXECUTED AND WITNESSED

THIS DAY IN ACCORDANCE WITH JEWISH LAW

AND TRADITION.

S/ Boaz Avitzur BRIDEGROOM

s/ Susan Wieder BRIDE

s/ Melvin Kieffer RABBI

S/ Abraham Weisman WITNESS s

S/ Melvin Kieffer WITNESS