SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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AARON KOST I HA , Plaintiff

- Appellant,

v. C HAYA GREENSPAN, Defendant

- Respondent.

_____________________________

Submitted February 12, 2019

– Decided Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM

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- 17. Aaron Kostiha, appellant pro se. Snyder Sarno D'Aniello Maceri & da Costa LLC, attorneys for respondent (Angelo Sarno and Lydia S. LaTona, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

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March 14, 20192 A

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Plaintiff appeals from orders entered by the Family Part on January 19, 2018, and February 13, 2018, which required defendant to appear before the Beis Din of America (Beis Din) and comply with its procedures for providing defendant a Jewish divorce known as a "get

. " Plaintiff also appeals from an order dated March 21, 2018, which awarded defendant attorney's fees and costs

. For the reasons that follow, we dismiss the appeal from the January 19, 2018 and Februar y 13, 2018 orders, and reverse the order of March 21, 2018.
I. We briefly summarize the relevant facts and proced ural history of this dispute. In December 2014, the parties were married i n a Jewish ceremony in New York, during which the parties en tered into a marriage agreement known as a "ketubah." The agreement states in part that defendant agrees to be plaintiff's wife "according to the Law of Moses and Israel." The parties separated shortly after the marriage and on May 14, 2015, plaintiff filed a c omplaint in the Supreme Court of the State of New York , Kings County, seeking an annulment of the marriage

. In May 2015, the parties executed a stipulation of settlement, in which they agreed to the equitable distribution of certain property and waived any claims they might have for spousal support. The stipulation also stated that "there are no children of the3 A

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ma rriage and none are expected." It appears, however, that defen dant was seven month s p regnant at the time the parties signed the stipulation. In May 2015, defendant obtained a " g et" from a rabbinical c ourt. In a certification filed in the trial court, defendant assert ed that she is an observant Orthodox Jew and ad heres to the principles of Orthodox Judaism. Defendant
stated that under Jewish law, a civil divorce or annulment does not automatically sever the marital relationship between two individuals. Defendant asserted that Jewish law requires a husband to pro vide his spouse with a " g et," obtained from a rabbinical c ourt

. Defendant stated that
until the " g et" is issued , the couple is still considered married and neither will be permitted to remarry in the Jewish faith. She said the procedure for obtaining

a "g et" is not complicated and " takes no time at all." In July 2015, defendant gave birth to a child

. I t appears that defendant was residing in New Jersey at that time

. On August 4, 2015, plaintiff filed a

c omplaint in the Family Part of our Superior Cou rt seeking parenting time with the child. Defendant opposed the motion and filed a counterclaim seeking , among other relief, custody of the child

. On January 8, 2016, the New York court entered a judgment, which annulled the parties' marriage.4 A

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On May 5 , 2016, the Family Part entered an order awarding defendant temporary legal a nd residential custo dy of the child , with plaintiff allowed supervised parenting time. Thereafter, difficulties arose between the parties over parenting time and other issues, wh ich resulted in the issuance of certain orders by the Family Part and a New York court. In December 2016, plaintiff contacted the Beis Din , which is a rabbinical court that assists persons of the Jewish faith to obtain Jewish divorces.
A ccording to defen dant , plaintiff attempted to call into question the validity of the " g et" the parties had obtained in May 2015. Plaintiff allegedly informed Rabbi Shlomo Weissman of the Beis Din that after the "get" was issued , he continued to reside with defendant

. Rabbi Weissman informed plaintiff that if this were true, the couple would have to appear before a rabbinical court to obtain another "g et." Rabbi Weissman later testified in the trial court that another " g et " was required because the act of living togeth er constituted a "remarriage" in the Orthodox Jewish religion. After his conversation with plaintiff, Rabbi Weissman contacted defendant and she asked him to arrange for the issuance of another " g et." In March 2017, the Beis Din issued two letters to p laintiff directing him to appear5 A

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so that the second " g et" could be issue d

. Plain tiff did not appear. On April 6,
2 017, the Beis Din sent plaintiff another letter, which stated that Jewish law required that he comply with its summons. The April 6, 2017 l etter also stated that if plaintiff did not respond, he could be subject to a contempt order of the Beis Din "and its consequences." On April 26, 2017, the Beis Din wrote to plaintiff and informed him that a contempt order could be issued if he did not c omply with its summonses . On May 4, 2017, t he Beis Din issued a formal order of contempt to plaintif f based

o n his failure to comply with the previously

- issued summonses. Thereafter, the Beis Din granted defendant permission "to pursue any remedies permitted by secular law." On September 19, 2017, defendant filed a motion in the Family Part which sought, among other relief, an order compel ling plaintiff to appear before the Beis Din and assist her in securing a second " g et." Defendant also sought sanctions if plaintiff did not comply with the directives of the Beis Din, and an award of attorney's fees and costs . Plaintiff opposed the motion and filed a

cross - motion seeking, among other relief, an order requiring defendant t o cooperate with a paternity t est.6 A

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By order dated January 19, 2018, the Family Part judge granted defendant's motion and ordered plaintiff to appear before the Beis Din within fourteen days and to comply with its procedures if the Beis Din "recommended" a second " g et." The judge denied defendant's motion for sanctions and reserved decision on defendant's application for attorney's fees. The judge also granted plaintiff's motion and ordered the parties to cooperate in obtaining a paternity

test. On Feb ruary 13, 2018, the parties again appeared before the trial court. The judge noted that plai ntiff had not complied with the court's January 19, 2018 order . Plaintiff told the judge he did not intend to go " to any Jewish ceremony of any kind with my ex

- wi fe in New York. " Plaintiff stated that he would not go before the r abbis because he had " religious objections to what they represent

. " The judge placed his decision on the record. The judge stated : [It is] clear that

. . . Jewish law . . . says that until a woman obtains a [g] et from her husband . . . she is still considered married to her husband and has no ability to remarry nor to have children from another relationship if she violates this law. She is considered an ad ulteress and the child born to such married woman from that subsequent relationship is deemed to be a mamzer. And a mamzer is forbidden to marry another Jew and the mamzer may also not7 A

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- 17T2 marry a gentile. As he or she is still deemed to be a Jew a mamzer is permitted to m arry only another mamzer.

. . . . Thus traditi onal observant Jewish women cann ot and will not remarry or even date without first obtaining a [g] et from their husband

.

. . . . Because the [g] et is the only lifeline for a married wom an who wants out of her marriage and because . . . only the husband . . . is authorized to give it to her [,] the [g] et becomes a tool used by many men to either extort huge sums of the money, . . . or to give up all civilly authorized property, . . . [or] to give the husband custody of the children. The judge stated that he believed plaintiff was using his religious beliefs "as a means" to get back at defendant as a result of their disputes concerning their
child. The judge entered an order , which requir ed plaintiff "to appear before the Beis Din and participate in and comply with [its] procedures in order to provide [d]efendant with a Jewish Divorce, i.e., a [g] et if recommended by the Beis Din ." In addition, the order stated that plaintiff's parenting time was suspended indefinitely "pending [p]laintiff's appearance, participation, and compliance with the Beis Din."8 A

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On February 20, 2018, plaintiff filed a motion for leave to appeal from the trial court's orders of January 19 , 2018, and February 13, 20 18. Plaintiff also sought a stay of the orders pending appeal, a change of venue, and certain other relief. Defendant opposed the motion s . While th e motion s were pending , the Family P art issued an order dated March 21, 2018, which awarded defendant $19,353.02 in attorney's fees and costs. On March 29, 2018, we granted in part plaintiff's motion for leave to appeal and summarily reversed the provision of the February 13, 2018 order that suspended plaintiff's parenting time. In our order, w e stated that there was an

" insufficient basis in the record to establish that [the suspension of parenting time] will further the best interests of the child." We denied the other relief requested. On April 20, 2018, plaintiff filed a notice of appeal from the trial court's orders of January 19, 2018, February 13, 2018, and March 29, 2018. Thereafter , defendant filed a motion to dismi ss plaintiff's appeal as moot. In a supporting certification, d efendant's attorney stated that, after plaintiff filed hi s appeal, "circumstances changed such that [d]efendant no longer needed [p]laintiff to provide her a [g] et and [d]efendant withdrew an application pending in the trial [c]ourt to enforce the January 19, 2018 and9 A

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February 13, 2018 [o] rders." Counsel also s tated that defendant had "proposed [to the trial court] that an [o] rder be entered to vacate the provisions of the [o] rders dated January 19, 2018 and February 13, 2018, relative to the issue."
We denied defendant's motion to dismiss the appeal , but tem porarily remanded the matter "to the trial court for the limited purpose of permitting defendant to file a motion to vacate those parts of the trial court's orders compelling plaintiff to cooperate with defendant in securing a 'g et.'" By order dated July 26, 2018, the trial court entered an order, which vacated "all prior [c]ourt [o] rders as they relate to [d]efendant's application to compel [p]lain tiff to obtain a Jewish [g] et."
II. On appeal, plaintiff argues that the trial court's order compelling him to appear before a Jewish rabbinical c ourt violates his rights under the First Amendment to the United States Constitution. In res ponse, defendant argues that in view of the trial court's order of July 26, 2018, this issue is moot.
A lternatively , defendant argues that the trial court's order s requiring plaintiff to appear before the rabbinical court did not violate plaintiff's First Amendment rights.10 A

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"It is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed." Cinque v. N.J. Dep't of Corrections , 261 N.J. Super. 242, 243 (App. Div. 1993) (citing Oxfeld v. N.J. State Bd. of Educ. , 68 N.J. 301, 303

- 04 (1975) ). "A n issue is 'moot' when the decision sought in a matter, whe n rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corrections , 382 N.J. Super. 254, 257

- 58 (App. Div. 2006) (quoting N.Y. S. & W.R. Corp. v. State Dep't of Treasury, Div. of Taxation , 6 N.J. Tax 575, 582 (Ta x Ct. 1984), aff'd , 204 N.J. Super. 630 (App. Div. 1985)).
As noted , plaintiff argues that the trial court's orders re quiring him to appear before a rabbinical court violate his rights under the Fir st Amendment. However, as we have explained , after thos e orders were entered, defendant advised the court she no longer requires pla intiff's appearance before the rabbinical court . Consequently, the trial court entered the order dated July 26, 2018, which vacated the provisions of the orders requiring his app earance before
the rabbinical court and his compliance with its procedures

. Therefore, the issue of whether the relevant provisions of the trial court's order s of January 19, 2018, and February 13, 2018, violate plaintiff's First
Amendment rights is moot

. Any decision on that issue will have no practical11 A

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effect. Accordingly, we dismiss plaintiff's appeal from the trial court's order s of January 19, 2018, and February 13, 2018.
III.
P laintiff further argues that the trial court abused its discretion b y granting defendant's motion for attorney's fees. We review a trial court order awarding
counsel fees under an abuse of discretion standard. Strahan v. Strahan , 402 N.J. Super. 298, 317 (App. Div. 2008) (citing Rendine v. Pantzer , 141 N.J. 292, 317 (1995) )

. N.J.S.A. 2A:34

- 23 authorizes the Family Part to award counsel fees in a matrimonial action after a judge considers "the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good faith or bad f aith of either party." Chestone v. Chestone , 322 N.J. Super. 250, 255

- 56 (App. Div. 1999) (quoting N.J.S.A. 2A:34

- 23). Rule 4:42

- 9 (a)(1) provides that, in family actions, a "fee allowance both pendent e lite and on final determination may be made pursuant to [ Rule ] 5:3

- 5(c)." Rule 5:3

- 5(c) states in pertinent part that when determining a fee award, the court should consider:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions12 A

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- 17T2 advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award. In this case , defendant sought an award of attorney's fees for her motion s to compel plaintiff to appear before the rabbinical court

. Defendant also sought fees she incurred in respon ding to plaintiff's earlier appeal. The judge granted the motion for reasons stated in a written opinion dated Mar ch 21, 2018

. In the opinion, the judge addressed the factors enumerated in Rule 5

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. The judge noted that defendant had incurred $19,951.02 in counsel fees in the trial court proceedings, and $4402 .00 in fees related to plaintiff's appeal, for a tot al of $24,353.02. It appears that defendant's counsel agreed to reduce
his total fee by $5000, as a "courtesy," thereby resulting in a request for the award of $19,353.02.
T he judge pointed out that plaintiff was self

- represented and did not incur
any attorney's fees. The judge also observe d that defendant had prevailed o n her motions, and the relief plaintiff sought in his cross - motion had been "largely" denied. The judge determined that the fees sought were reasonable.13 A

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The judge found plaintiff ha d acted in bad faith by unreasonably refusing

to appear before the Beis Din so that defendant could secure the second " g et, " if recommended by the Beis Din. The judge stated that plaintiff "made his bad faith apparent" by asserting that he wou ld not assis t defendant obtain the second

" g et" unless the agreements for custody and parenting time were renegotiated in his favor. The judge found that plaintiff's position was unreasonable and

contr ary to the best interests of the child. The judge further found that plaintiff had displayed bad faith by giving conflicting testimony in court regarding his refusal to appear before the Beis
Din

. Plaintiff had testified that he was no longer Jewish and had returned to the Catholic faith , but he later stated that a r abbi told him not to cooperate. The judge observed t hat plaintiff had remarried, but he had willfully and unreasonably withheld the " g et , " thereby preventing defendant from remarrying in th e Jewish faith. The judge found this was " an attempt to gain an a dvantage in the unrelated, custody dispute." As stated previously, i n addition to the attorney's fees for the trial court proceedings, defendant sought fees of $4402 .00 for responding to plaintiff's earlier appeal. Rule 2:11

- 4 provides , however, that fees for legal services on appeal must be sought in this court, not the trial division. Moreover, as we have14 A

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explained , plaintiff succeeded in part in his earlier appeal. We recognize that d efendant's counsel agreed to reduce his overall fee by $50 00

. However, the fees for the appeal were included in the overall fee from which the reduction was made. In any event, we are convinced the trial court erred by awarding defendant attorney's fees. That decision was based primarily on the court's findin g that plaintiff's op position to defendant's motions was unreasonable and advanced in bad faith. The record does not support that conclusion. P laintiff had a good faith basis under the law for arguing that the trial court did not have authority to compel him to appear before a religious tribunal and comply with its divorce procedures. It is well

- established that "civil courts may resolve controversies involving religious groups if resolution can be achieved by reference to neutral principles of law, but that they may not resolve such controversies if resolution requires the interpretation of religious doctrine." Ran

- Dav's County Kosher,
Inc. v. State , 129 N.J. 141, 162 (1992) (citations omitted). Our Supreme Court has not addressed the issue of wheth er the New Jersey courts may or der a party to appear before a rabbinical c ourt and comply with its procedures for issuing a "get." Moreover , this court has not addressed that issue15 A

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in a pr ecedential, published opinion. The issue has, however, been addres sed by the Chancery Division in three published opinions

. In Minkin v. Minkin , 180 N.J. Super. 260, 26 1 (Ch. Div. 1981), the plaintiff sought an order requiring the defendant to obtain a "get." T he court noted that the parties had been married in a Jewish ceremony, and they entere d
into a "ketuba" i n which they agreed to abide by the laws of Moses and Israel. Id. at 262. The court found that those laws required the husband to give his wife a "ge t" if he claims she engaged in adultery. Ibid. Because the defendant had filed a counterclaim in the divorce action alleging adultery, the plaintiff
demanded that the defendant provide her with a "get." Ibid. The court con ducted a plenary hearing, dur ing which a r abbi testified that issuance of a "get" is not a rel igious act, but the severance of the contractual relationship between the parties. Id. at 265. Another r abbi testified that an ord er requiring a husband to provide a "get" would not be an i nterference with religion because the "get" is "only concerned with the right of the wife to remarry" and "does not affect the religious feelings of people." Ibid. Another r abbi testified that a "get" is "civi l and not religious in nature." Id. at 265. Based on testimony presented at the hearing which the judge found credible, the judge decided that acquisition of a "get" is not a religious act and16 A

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an order compelling the defendant to secure the Jewish divorce would "have the clear secular pur pose of completing a dissolution of the marriage." Ibid. The judge found that the primary effect of the order would neither advance nor inhibit religion , and it would not constitute an excessive entanglement with religion. Ibid. A similar result was rea ched i n Burns v. Burns , 223 N.J. Super. 219 (Ch. Div. 1987) . In that case, the parties were divorced and the plaintiff re married, but chose not to obtain a "get" before the second marriage

. Id. at 222. The defendant planned to remarry but believed she w as bound by Jewish law and
needed a "get" before she remarried

. Ibid. The plaintiff took the position that a "get" was not required, but he stated that he would secure the religious divorce if the defendant invested $25,000 in an irrevocable trust for th eir daughter. Ibid.
The Chancery Division judge found that the defendant's offer of compromise showed his refusal to secure the "get" was not based on his religious beliefs, but was instead "an issue of monetary gain." Id . at 223. The judge then
addres sed the question of whether an order requiring the defendant to obtain the "get" would violate the First Amendment. Id. at 224

- 26. The judge noted that he had reviewed certain "learned treatises" on the laws of Moses and Israel, and17 A

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determined "there are various circumstances which would require the husband to secure a 'get' from his wife." I d. at 225. The judge held that t he court had the authority to order the defendant to

s ubmit to the jurisdiction of the Jewish ecclesiastical court and require that t he defendant initiate the procedure s to secure a "get " for his spouse. Id. at 226. The judge wrote that the defendant divorced his wife and remarried, but under Jewish law, th e plaintiff and the defendant were still considered to be married. Ibid. The judge stated, "The plaintiff must release the defendant from the [ketubah] and put an end to that relationship." Ibid. However, i n Aflalo v. Aflalo , 295 N.J. Super. 527 (Ch. Div. 1996), the

court reached a different result. There , the plaintiff filed an action for divorce, and the defendant took the position he would not consent to a Jewish divorce regardle ss of w hat happened in the civil divorce action

. Id. at 530

- 31. The Chancery Division judge stated that the court in Minkin erred by considering the issue against the backdrop of the Establishment Clause, rather than the Free Exercise Clause of the First Amendment. Id. at 537. The Chancery Division judge also disag reed with the Minkin Court's

statement that an order requiring a husband to provide a "get" is not a religious

act

. Id. at 538. The judge found that such an order is not concerned solely with18 A

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civil issues, and compelling a party to obtain a "get" would n ot have the desired effect because under Jewish law, the husband must take that action willingly.
Id. at 538

- 40. T he judge in Aflalo refused to order the husband to obtain the "get." Id. at 542. The judge stated that this may seem unfair, but any unfairness was due to the fact that the wife had "sincerely

- held religious beliefs." Ibid. The judge observed that w hen the wife was married in the Jewish ceremony, she had agreed she would abide by the laws of Moses and Israel, and under those laws, she may not remarry unless her husband provides a "get." Ibid. The judge wrote that t he

court had no autho rity to choose for the parties " which aspects of their religion may be embraced and which must be rejected." Ibid. Thus, in this case , Minkin pr ovided support for defendant's motions to compel plaintiff to appear before the B eis Din and comply with its procedures so that defe ndant could obtain the "get " if recommended by the Beis Din. Moreover, Burns provided support for defendant's application s to the extent plaintiff was refusing to participate in the process in order to coerce defendant to agree to a change in the established custody and parenting arrangements , as defendant claimed

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However, Aflalo provided a sound legal basis for plaintiff t o oppose t he relief defendant was seeking

. We are therefore convinced that there is insufficient evidence in the record to support the court's finding that plaintiff acted unreasonably and in bad faith by opposing defendant's motion s and refusing to appea r before the Beis Din

. Since that finding was the principal reason the court awarded defendant attorney's fees, the award must be set aside. In summary, because the issue is now moot , we express no view as to whether the trial court's order s requiring plaintiff to appear before the Beis Din and comply with its procedures violated plaintiff's rights under the First Amendment. We hold only that plaintiff had a reasonable basis to object to the relief defendant was seeking and the award of atto rney's fees to defendant was a mistaken exercise of discretion. Accordingly, we reverse the trial court's order of March 21, 2018, awarding defendant attorney's fees. The appeal from the trial court's orders dated January 19, 2018, and February 13 , 2018, is dismissed as moot; and the order dated March 21, 2018, is reversed.