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Recent Developments Giahn v. Giahn
Sup. Ct. NY
(April 2000)

Giahn v. Giahn (Sup. Ct. NY) (April 2000)
New York Supreme Court judge awards woman damages in case where husband had withheld her get.

GIAHN v. GIAHN New York Law Journal
April 13, 2000
SUPREME COURT
---------------------

Part J.H.O.
J.H.O. Gartenstein

GIAHN v. GIAHN QDS:52702359

The State of New York has made painfully clear that it will not tolerate perversion of the Jewish Get process into an unconscionable instrument of coercion by husbands who have the sole power to cause delivery thereof, a situation putting wives at the mercy of unscrupulous, often sadistic husbands.

The Legislature has enunciated this policy in terms which leave no room for doubt (cf., DRL 253 and 236B[5](13)(h)). Governor Mario Cuomo in approving this remedial legislation, endorsed this initiative in the strongest possible terms:
"This bill was overwhelmingly adopted by the State legislature because it deals with a tragically unfair condition that is almost universally acknowledged. The requirement of a Get is used by unscrupulous spouses who avail themselves of our Civil Courts and simultaneously use their denial of a Get vindictively or as a form of economic coercion."
[Governor's Memorandum approving DRL 253].

The courts, charged with implementation of this public policy, have held refusal of a husband to deliver a Get to be conduct so egregious as to warrant award of all marital assets to an aggrieved wife (Schwartz v. Schwartz, 153 Misc2d 789).

But Ishak Giahn still doesn't get it. Not content to use the awesome coercive power he possesses as the male in this process to jam an unfair "agreement" down his wife's throat even after she prevailed at the trial of this action, Mr. Giahn has gone even further. For good measure, and with no further economic goodies to extract from her since the coerced "agreement" took away virtually everything from her, he has tortured his wife for an additional eight years simply out of spite by persisting in his refusal to deliver the Get even after agreeing to do so in exchange for this "agreement".

Faced with an outrage of this magnitude, the Court appropriately reaches out to do equity as it must (cf., Langdon v. Langdon, 138 AD2d 358). In doing so, it is our expectation that this action will also reaffirm respect for the judicial process and the public policy it implements.

We hold that when confronted by the dual outrages of greed and spite, the Court will apply Schwartz v. Schwartz, 153 Misc2d 789 (and DRL 236B[5](13)(h) which codified it) retroactively to amend an existing divorce judgment nunc pro tunc by awarding all the marital assets to the aggrieved wife.

This judicial imperative establishes a legal framework within which to compensate an innocent former wife in small measure for years stolen from her life. It also hopefully sends word out to unscrupulous husbands who torture their former wives in this manner that the courts have reached zero tolerance for this sadistic practice.

The Facts

Both parties are observant Orthodox Jews.

On May 29, 1992, following a contested trial before the Honorable Alfred D. Lerner, (then) Administrative Judge of Queens County, judgment of divorce was granted in favor of plaintiff-wife against defendant-husband on the grounds of cruelty. This judgment directed sale of the income producing marital domicile and division of the net proceeds equally between the parties. In his trial decision, Justice Lerner declined to grant plaintiff's application for a direction that defendant cooperate in obtaining a religious divorce because the wording of DRL 253 limited its applicability to the party who commences an action for divorce.

Almost before the ink was dry on the divorce decree, the parties entered an "agreement" on August 27, 1992 by virtue of which the husband undertook to deliver a Get valid according to Orthodox Jewish law "simultaneous with the execution of agreement". In consideration, again "simultaneous with the execution of this agreement," the wife would execute a deed to her interest in the former marital domicile to be held by an escrow agent until the "agreement shall have been satisfied ..." As "payment" for the wife's half-interest in this income producing property assessed at $220,000, the husband contracted to deliver a series of 24 postdated checks totaling $19,159.00. The husband continued to collect rents subject to a later accounting.

Notwithstanding this lopsided "agreement", the husband, while pocketing rents for eight years subsequent to its execution without taking the trouble to render an accounting, still refused to give his wife the Get. To add further insult to injury, he is now in default even in the nominal payments he undertook, apparently content with the reality that every day which passes in which, by Orthodox practice, his wife is unable to re-marry, date socially or even be alone with an unrelated male, only serves to make her more desperate.

Finally, apparently realizing that in a blackmail situation, the first payment is the smallest, plaintiff has turned to this Court and now moves that the Court disregard the "agreement", appoint a receiver to sell the property and divide the net proceeds equally. She further seeks an accounting by defendant of all sums collected by him in the interim. Defendant opposes this relief and invokes a clause in the "agreement" by virtue of which he seeks to relegate plaintiff to an ineffectual religious arbitration procedure called for therein.

The wife's motion first came before the Honorable Phyllis Orlikoff Flug who issued a decision dated August 23, 1999 directing in no uncertain terms that unless defendant delivered the "Get" before a hearing of the issues raised by the motion, she would grant all applications pending before her.

Defendant finally "got it" and delivered the "Get" prior to the scheduled hearing. The parties then stipulated on the record to refer all issues to the undersigned to hear and determine. On the date set for hearing, a further stipulation was entered on record waiving a hearing and consenting that the papers submitted on this application be deemed the complete record without the necessity of testimony.

Discussion

It is inescapable that the "agreement" which purported to supersede the judgment herein is null and void on either of two grounds. Assuming its initial validity arguendo, and disregarding temporarily the coercive nature of its execution and patently overreaching provisions, the document in question is clear and unambiguous. Accordingly, its construction is a matter of law for the Court. (Cf., In re: Brown's Estate, 153 Misc 282). From its unambiguous language calling for performance of the Get provisions "simultaneous with the execution of this agreement," its clear import was to free the plaintiff forthwith by establishing a condition precedent, failure of which was to be fatal to the very existence of the agreement. This urgency is painfully apparent. It was the single most crucial provision therein and must be held to constitute a condition precedent to validity of the entire contract.

But it is unnecessary to get this far. As a matter of law, the facially unconscionable terms of this "agreement" standing alone in a Get situation, are sufficient to void it ab initio. In Golding v. Golding, 176 AD2d 20 (1st Dept 1992) the Appellate Division, First Department affirmed the trial court's voiding an "agreement" at stake there. The trial court held (quoted by the Appellate Division at 22) that:
"by exploiting the power differential between the parties, so as to completely dominate a process which should have entailed honest negotiating, the defendant engaged in 'inequitable conduct which vitiates the execution of the agreement (Christian v. Christian (42 NY2d 63, 72)). In light of the circumstances surrounding plaintiff's signing of the agreement, it can be regarded as nothing other than a document born and subsisting in inequity'."

In affirming, the Appellate Division stated (supra at 22, 23):
"Applying the standard of equity, it is evident that plaintiff did not freely and voluntarily enter into the subject agreement but was compelled to do so by her husband's invocation of his power to refuse to give her a Jewish divorce."

The facts here are more compelling. This plaintiff had already proceeded to trial successfully. She had been awarded every right possible other than the Get. The conclusion is inescapable that her execution of this lopsided "agreement" giving up most of what she was already entitled to by the judgment tainted the very birth of the "agreement" and was attributable solely to defendant's immoral and coercive refusal to deliver the Get.

It is, therefore, immaterial whether we void the agreement as coerced, unconscionable and overreaching, or whether we hold it to have actually come into de jure existence only to fall immediately thereafter because of failure of its crucial condition precedent. At the very minimum, on either theory, the "agreement" is declared null and void and proceedings are rolled back to the terms of the judgment itself thus entitling plaintiff to all the relief she requests.

But her request, standing alone, does not begin to do true equity. And the conceptualization of true equity is the positive mandate to a matrimonial court which requires us to go forward affirmatively and sua sponte to achieve it. As the Court held in Schwartz v. Schwartz, 153 Misc2d 789, a decision later codified by the Legislature in DRL 236B[5](13)(h), at 793:
"Further, there is no real dispute that the enactment of the Equitable Distribution law (Domestic Relations Law 236[B]) did nothing to circumvent the traditional equity powers of the matrimonial bench. In fact, if anything, the statute granted more equity power to the court (the court could now look behind title to divide property). The very name of the statute implies the purpose of the statute, to do equity (see, e.g., , Majauskas v. Majauskas, 61 NY2d 481, 489).

The courts in equitably dividing the marital property must consider 13 factors (Domestic Relations Law 236[B][5][d]). Most of these factors include determinations in the realm of equity. Most importantly, factor number 13 requires that the Court consider "any other factor which the court shall expressly find to be just and proper." Obviously, this factor permits the court to review all the equities in the case when dividing marital property. The Appellate Division, Second Department, determined as much in Langdon v. Langdon (138 AD2d 358, lv. denied 73 NY2d 702), in which the court held: "The trial court properly denied equitable distributive relief to the defendant husband under the clean hands doctrine, since Domestic Relations Law 236(B)(5)(d)(13) requires the court to do equity by considering 'any other factor which the court shall expressly find to be just and proper' (cf., Scheinkman, Practice Commentary, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law C236B:14, at 236)." (See also, Cappiello v. Cappiello, 110 AD2d 608, affd 66 NY2d 107; Wilson v. Wilson, 101 AD2d 536, appeal dismissed 63 NY2d 768.")

We respectfully believe that these wide sweeping powers are best applied by our granting retroactive effect to DRL 236B[5](13)(h) which codified Schwartz. This is achieved by amending the original judgment nunc pro tunc to recognize the ravaging of plaintiff committed by her husband first by coercing this grossly unfair "agreement" and then, after reaping its benefits, by depriving her of eight years of her life simply out of spite.

It has been held that:
"The tort of intentional infliction of emotional distress predicates liability on the basis of extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society" (Freihofer v. Hearst Corp., 65 NY2d 135, 143)."

Liability for this tort has been held to exist in a situation where a husband unconscionably withholds a Get from his wife. (Weiss v. Goldfeder, NYLJ, Oct. 26, 1990, at page 3).

It thus appears that plaintiff is entitled to at least something by way of compensatory and punitive damages for the shabby treatment she has received at the hands of her husband. It is duplicative and wasteful of judicial resources to require her to file a separate plenary lawsuit for damages when this Court is already in possession of actionable facts as well as plenary jurisdiction. Her suffering may be appropriately compensated for by awarding her the entire property at issue, coupled with total extinguishing of the husband's equity, a judicial act which also serves to foreclose any opportunity defendant may wish to seize upon to place his assets beyond plaintiff's reach when, as and if she chooses to hold him liable for this intentional tortious behavior. (Cf., Schwartz v. Schwartz, supra and DRL 236B[5](13)(h)). Notwithstanding that the facts appear to be beyond dispute, a reality evidenced by the stipulation on record waiving a hearing and dispensing with the requirement of testimony, judicial prudence would appear to mandate that a hearing be ordered on the Court's own motion (cf., Schwartz v. Schwartz, supra) based upon the possibility that defendant will yet come forward with some plausible justification for his actions.

Defendant is therefore ordered to show cause before the undersigned on May 15, 2000 at 9:30 A.M. why an order should not be entered amending the judgment herein nunc pro tunc to award plaintiff all the marital assets. He is further ordered to serve and file a detailed accounting no later than May 1, 2000 of all income from this property realized during the interim and to place the sum so realized in escrow with plaintiff's counsel prior to the hearing date subject to order of this Court. The Clerk is directed not to calendar this hearing unless proof of compliance with this direction or a plausible excuse for failure to do so is presented. Failing performance by defendant of the condition specified, the Court will reluctantly conclude that defendant does not wish to avail himself of a hearing. In this event plaintiff's counsel is granted leave to submit a proposed order on notice amending the final judgment nunc pro tunc to award all the marital assets to plaintiff. Should this transpire, it would not, in any event, relieve defendant of his obligation to render an accounting and make restitution for all monies pocketed by him in the interim.

Plaintiff's application for counsel fees is held in abeyance pending submission of appropriate affidavits by her counsel and opposing affidavits if defendant opposes this application no later than one week prior to the hearing.

The foregoing constitutes the decision and order of this Court.


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