Resolving 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 However, that contempt motion was withdrawn on March 7, 2011 when the parties entered into a written agreement to arbitrate their financial and other issues before the Beth Din.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.