Palmieri.jpgResolving the rights and obligations of a couple incident to their divorce often involves the delicate balancing of property rights, spousal and child support, and custody and parenting issues. Attempting an orderly resolution in different forums simultaneously may be impossible.

The July 26, 2012 decision of Nassau County Supreme Court Justice Daniel Palmieri in Loike v. Kletenik, shows just how messy things can get. That decision resolved a husband’s application to vacate the award of a Jewish tribunal, a “Beth Din,” and to downwardly modify a Consent Order of support entered October 25, 2010 before Nassau County Family Court Support Magistrate Neil Miller. That order directed the husband to pay bi-weekly support for the three minor children of the marriage.

In the subsequently commenced Supreme Court divorce action, Justice Jeffrey S. Brown issued a pendente lite order that denied a request for temporary child support because the Consent Order was in place. This, Justice Palmieri opined, lent additional judicial force to the terms of the Consent Order and effectively adopted it in lieu of a separate order for temporary child support.

The wife thereafter moved to hold her husband in contempt for his failure to comply with the temporary support order.  However, that contempt motion was withdrawn on March 7, 2011 when the parties entered into a written agreement to arbitrate their financial and other issues before the Beth Din.

After the parties entered that agreement, the Family Court on June 7, 2011 issued a Final Order of Custody and Parenting Time (Stacey D. Bennett, FCJ). However, even though the parties had earlier entered their agreement to arbitrate, the Beth Din arbitrators were not empowered to make final and enforceable decisions about custody and visitation. New York’s public policy requires that such decisions only be made by the secular courts.

On that basis, Justice Palmieri vacated that portion of the Beth Din award that provided that unresolved disputes concerning the children would be referred to a named Rabbi.

A party gives up substantial rights under both substantive law and procedure when electing to arbitrate. Appellate review is all but completely absent.

Here, having participated in the Beth Din arbitration and failing to raise objections to the panel, the husband waived any claim that the process was tainted or was biased against him. Quoting the  of Appeals in Matter of Silverman (Benmore Coats), 61 N.Y.2d 299 (1984), Justice Palmieri held:

The only basis upon which an award can be vacated at the behest of a party who participated in the arbitration. . . Is that the rights of that party were prejudiced by corruption, fraud or misconduct in procuring the award, partiality of an arbitrator, that the arbitrator exceeded his power or failed to make a final and definite award, or a procedural failure that was not waived.

The husband’s claims that the arbitrators exceeded their powers must rest on the fact that the award violated a strong public policy, was irrational, or clearly exceeded a specific limitation on the arbitrators’ powers.

The husband first claimed that the Beth Din failed to make a determination with regard to child support and child support add-ons. However, as the parties already had their Consent Order in place, and neither party challenged that Consent Order before the Beth Din, the absence of a ruling was not a basis to invalidate the award. It simply left the Consent Order unaffected.

The husband also complained about various issues of proof concerning payment of camp expenses for the children, payment for children’s health insurance, the equitable distribution of his wife’s future earnings, and other matters.

Unless the agreement to arbitrate provides to the contrary . . . , arbitrators are not bound by principles of substantive law or by the rules of evidence, but may do justice as they see it, applying their own sense of law and equity to the facts as they find them to be.

Here, the arbitrators’ award was not so irrational that vacatur must result. Moreover, to the extent that the husband raised procedural objections, his participation in the arbitration without protest constituted a waiver of those objections.

One basis for setting aside arbitration award is that the arbitrators failed to make a final and definite award. This, for Justice Palmieri, was the most problematic aspect of the case. The award letter stated that “we require additional time to amend and clarify our ruling which contained some, but not all, of our determinations. We require this additional time and need to submit a further writing so that the final determination of this tribunal is not misinterpreted and misapplied by the New York courts.”

Justice Palmieri upheld the award as it was “final and definite with respect to the financial matters addressed therein.”

The Court cannot allow the civil justice system and the litigants who come to that system for relief to be held hostage to this kind of open-ended statement that the decision was to be amended.

In the event the Beth Din ever did review or modified its own decision, the Court would entertain an appropriate application to confirm or vacate whatever additional directions were made.

Finally, as the Beth Din was apparently silent on a permanent order of support, leaving the matter open and the Family Court Consent Order intact, Justice Palmieri agreed to conduct a trial on the issue of the correct permanent child support and add-ons to be paid by the husband.

Substantive rulings by Support Magistrate Miller, Family Court Judge Bennett, Supreme Court Justices Brown and Palmieri, and the Beth Din, and the parties must still goo trial.

The husband was represented by Aliza Goldring, Esq., of Schonfeld & Goldring, LLP, of Cedarhurst. The wife was represented by the Weisman Law Group, P.C., of Cedarhurst.