“Judges and officers shall you appoint in all your cities -which Hashem, your G-d, gives you-for your tribes; and they shall judge the people with righteous judgment.”
Devarim (Deuteronomy) 16:18
It often occurs that parties involved with the secular courts prefer to have aspects of their case determined outside of court through arbitration. A recent case entitled Matter of Silberman v. Farkas, concerns the interplay between litigation and arbitration.
In Silberman, the parties were business partners. Their partnership agreement provided that any disputes arising between them would be arbitrated “before a Rabbinical Court within the Jewish community.” One party filed a motion with the secular court requesting an order to compel the parties to proceed to arbitration before a Beth Din. The motion to compel arbitration was granted however, the court directed the parties to proceed to arbitration before the American Arbitration Association (“AAA”) rather than a Rabbinical tribunal. An appeal ensued.
The appellate court determined that the Supreme Court improvidently exercised its discretion in appointing the AAA as the arbitrator of the parties’ dispute. The parties’ intent, as set forth in their agreement, was to submit any disputes which arose to a Rabbinical Court in the Jewish community. The matter was referred back to the Supreme Court for the appointment of an appropriate Rabbinical Court as arbitrator of the parties’ dispute.
In a Nassau County divorce entitled Zar v. Yaghoobzar, the parties arbitrated
financial matters before a Beth Din. The wife was unhappy with the decision of the Rabbinical court and commenced a divorce proceeding in Supreme Court. The husband asked the Supreme Court to confirm the arbitration award. The wife sought to have the arbitration award vacated. The Supreme Court denied the husband’s request and granted the wife’s motion to vacate the arbitration award. This decision was reversed on appeal, and the Rabbinical Court’s arbitration award was reinstated. The appellate court noted that review of arbitration awards is limited. Here the wife failed to establish that the award was irrational, unconscionable or in violation of public policy.
In another group of cases, the issue was whether litigants would be required to proceed to the Beth Din for arbitration rather than proceeding in the secular courts to for enforcement or adjudication of their rights. In Yeger v. Yeger. The husband and wife agreed to arbitrate all of their marital disputes before a Beth Din. The wife applied for temporary relief in the secular court and received an interim award from that court. On appeal, the temporary award to the wife was vacated, as the parties had agreed that all of their claims would be handled by the Beth Din.
A 2013 appellate decision emanating from Orange County is consistent with the above rulings. That case is named Wieder v. Wieder. The parties had settled their divorce by written agreement. The agreement provided that any future disputes, related to matters within the agreement, would be arbitrated in the Rabbinical court. When a dispute arose, the wife sought to proceed with arbitration and the husband was opposed to arbitration. One argument raised by the husband was that the parties’ agreement was unconscionable and unfair to him. In ruling in favor of the wife, the court directed the parties to proceed with arbitration and noted that the issue of the fairness of the agreement was a matter that the Beth Din could rule on.
Various cases have discussed the issue of the power of the arbitrators to decide issues in divorce cases, primarily centered around issues impacting children. In the Kings County divorce known as Berg v. Berg, the court distinguished the authority of an arbitration body over matters of custody as opposed to matters of child support. In a comprehensive opinion, the court indicated that disputes concerning child custody and visitation issues are not subject to arbitration as the secular court retains its role as the legal protector of children within its jurisdiction (known more commonly as the legal doctrine of parens patrie). Conversely, issues of child support are subject to arbitration. However the arbitrator(s) must comply with New York state child support laws and render a decision which is in the children’s best interest. This reasoning was followed in a 2015 appellate decision in the case known as Goldberg v. Goldberg. Here the court noted that, although the parties had consented to arbitration of custody matters, they had no power to do so. Such matters needed to be decided in a court hearing. However, the Beth Din’s ruling with regard to child support was appropriate because it complied with applicable New York law.
In Frieden v. Frieden, a Queens County divorce, the parties entered into an agreement that any disputes over child support would be subject to arbitration. After the husband lost his job, he sought a reduction in child support. The parties could not agree on an amount and the husband requested arbitration. The wife refused to arbitrate the issue of child support and the Supreme Court ruled that she need not proceed to arbitration. This decision was reversed on appeal. The appellate court ruled that child support matters are subject to arbitration and the rulings of arbitrators will be affirmed as long as they do not violate the objectives of New York state child support laws.
An interesting case which illustrates the interplay between secular and religious tribunals is a Nassau County case by the name of Tal Tours v. Goldstein. This case concerned a commercial dispute involving individuals involved in a joint business venture. The principal litigants were Mr. Katz and Mr. Goldstein. Each party advised the secular court that they wished to arbitrate before the Beth Din. However, they did not agree as to the manner in which the arbitration would take place.
Mr. Katz had the Beth Din of America (“BDA”) issue a Hazmana (invitation) for Mr. Goldstein to appear before that body. It was Mr. Katz’s desire to arbitrate before a three-person panel assigned by the BDA. Mr. Goldstein responded by requesting that the parties proceed by means of a Zabla. Under that procedure, each party would choose one Dayin (arbitrator) who would then jointly choose a third arbitrator to complete the panel. Mr. Katz did not agree to the latter procedure and the parties returned to the Supreme Court for a ruling.
In a detailed opinion, the Supreme Court ruled that Mr. Goldstein’s choice to proceed with a Zabla was an available option under the rules of the BDA. Mr. Katz was now bound by his adversary’s election to proceed in the manner chosen and the parties were directed to engage in arbitration by use of Mr. Goldstein’s preferred procedure. In fact, the court noted that when Mr. Katz initiated a proceeding in the Rabbinical court he knew, or should have known, that Mr. Goldstein could avail himself of an alternate type of procedure. Since Goldstein’s response to the Hazmana was made in accord with the rules of the BDA, Katz was bound by the election.
These are just a few of the many legal matters where secular and religious issues overlap.
By Mark I. Plaine, Esq.