SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3697-17T2

AARON KOSTIHA,

Plaintiff-Appellant,

v.

CHAYA 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-02-1718-17.

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NOT FOR PUBLICATION WITHOUT THE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. 1:36-3.

March 14, 2019
2

A-3697-17T2

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 February 13, 2018 orders, and reverse the order of March 21, 2018. 

I.

We briefly summarize the relevant facts and procedural history of this 

dispute. In December 2014, the parties were married in a Jewish ceremony in 

New York, during which the parties entered 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 complaint 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 the 
3

A-3697-17T2

marriage and none are expected." It appears, however, that defendant was seven 

months pregnant at the time the parties signed the stipulation. 

In May 2015, defendant obtained a "get" from a rabbinical court. In a 

certification filed in the trial court, defendant asserted that she is an observant 

Orthodox Jew and adheres 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 provide his

spouse with a "get," obtained from a rabbinical court. Defendant stated that 

until the "get" 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 "get" is not complicated and "takes no time at all." 

In July 2015, defendant gave birth to a child. It appears that defendant 

was residing in New Jersey at that time. On August 4, 2015, plaintiff filed a 

complaint in the Family Part of our Superior Court 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-3697-17T2

On May 5, 2016, the Family Part entered an order awarding defendant 

temporary legal and residential custody of the child, with plaintiff allowed 

supervised parenting time. Thereafter, difficulties arose between the parties

over parenting time and other issues, which 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.

According to defendant, plaintiff attempted to call into question the validity of 

the "get" 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 "get." Rabbi 

Weissman later testified in the trial court that another "get" was required because 

the act of living together 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 "get." In 

March 2017, the Beis Din issued two letters to plaintiff directing him to appear 
5

A-3697-17T2

so that the second "get" could be issued. Plaintiff did not appear. On April 6, 

2017, the Beis Din sent plaintiff another letter, which stated that Jewish law 

required that he comply with its summons. The April 6, 2017 letter 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 comply with its summonses. On 

May 4, 2017, the Beis Din issued a formal order of contempt to plaintiff based 

on 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 compelling plaintiff to appear before the 

Beis Din and assist her in securing a second "get." 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 to 

cooperate with a paternity test. 
6

A-3697-17T2

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 "get." 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 February 13, 2018, the parties again appeared before the trial court. 

The judge noted that plaintiff 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-wife in New York." Plaintiff stated that he would not 

go before the rabbis 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 adulteress 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 not 
7

A-3697-17T2

marry a gentile. As he or she is still deemed to be a Jew 

a mamzer is permitted to marry only another mamzer. 

. . . . 

Thus traditional observant Jewish women cannot 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 

woman 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 required 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-3697-17T2

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, 2018. Plaintiff also 

sought a stay of the orders pending appeal, a change of venue, and certain other 

relief. Defendant opposed the motions. While the motions were pending, the 

Family Part 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, we 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 dismiss plaintiff's appeal as moot.

In a supporting certification, defendant's attorney stated that, after 

plaintiff filed his 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 and 
9

A-3697-17T2

February 13, 2018 [o]rders." Counsel also stated 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 temporarily

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 'get.'" 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]laintiff 

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 court violates his rights under the First 

Amendment to the United States Constitution. In response, defendant argues 

that in view of the trial court's order of July 26, 2018, this issue is moot. 

Alternatively, defendant argues that the trial court's orders requiring plaintiff to 

appear before the rabbinical court did not violate plaintiff's First Amendment 

rights. 
10 A-3697-17T2

"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)). "An issue is 

'moot' when the decision sought in a matter, when 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 

(Tax Ct. 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985)). 

As noted, plaintiff argues that the trial court's orders requiring him to 

appear before a rabbinical court violate his rights under the First Amendment. 

However, as we have explained, after those orders were entered, defendant 

advised the court she no longer requires plaintiff'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 appearance before 

the rabbinical court and his compliance with its procedures. 

Therefore, the issue of whether the relevant provisions of the trial court's 

orders of January 19, 2018, and February 13, 2018, violate plaintiff's First 

Amendment rights is moot. Any decision on that issue will have no practical 
11 A-3697-17T2

effect. Accordingly, we dismiss plaintiff's appeal from the trial court's orders

of January 19, 2018, and February 13, 2018. 

III.

Plaintiff further argues that the trial court abused its discretion by 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 faith 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 pendente 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 positions 
12 A-3697-17T2

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 motions

to compel plaintiff to appear before the rabbinical court. Defendant also sought 

fees she incurred in responding to plaintiff's earlier appeal. The judge granted 

the motion for reasons stated in a written opinion dated March 21, 2018.

In the opinion, the judge addressed the factors enumerated in Rule 5-3-

5(c). 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 total 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. 

The judge pointed out that plaintiff was self-represented and did not incur 

any attorney's fees. The judge also observed that defendant had prevailed on 

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-3697-17T2

The judge found plaintiff had acted in bad faith by unreasonably refusing 

to appear before the Beis Din so that defendant could secure the second "get," if 

recommended by the Beis Din. The judge stated that plaintiff "made his bad 

faith apparent" by asserting that he would not assist defendant obtain the second

"get" unless the agreements for custody and parenting time were renegotiated in 

his favor. The judge found that plaintiff's position was unreasonable and 

contrary 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 rabbi told him not to cooperate. The 

judge observed that plaintiff had remarried, but he had willfully and 

unreasonably withheld the "get," thereby preventing defendant from remarrying 

in the Jewish faith. The judge found this was "an attempt to gain an advantage 

in the unrelated, custody dispute." 

As stated previously, in 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 have 
14 A-3697-17T2

explained, plaintiff succeeded in part in his earlier appeal. We recognize that 

defendant's counsel agreed to reduce his overall fee by $5000. 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 finding that 

plaintiff's opposition to defendant's motions was unreasonable and advanced in 

bad faith. The record does not support that conclusion. Plaintiff 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 whether the New Jersey 

courts may order a party to appear before a rabbinical court and comply with its 

procedures for issuing a "get." Moreover, this court has not addressed that issue 
15 A-3697-17T2

in a precedential, published opinion. The issue has, however, been addressed 

by the Chancery Division in three published opinions. 

In Minkin v. Minkin, 180 N.J. Super. 260, 261 (Ch. Div. 1981), the 

plaintiff sought an order requiring the defendant to obtain a "get." The court 

noted that the parties had been married in a Jewish ceremony, and they entered 

into a "ketuba" in 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 "get" 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 conducted a plenary hearing, during which a rabbi testified that 

issuance of a "get" is not a religious act, but the severance of the contractual 

relationship between the parties. Id. at 265. Another rabbi testified that an order 

requiring a husband to provide a "get" would not be an interference 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 rabbi testified 

that a "get" is "civil 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 and 
16 A-3697-17T2

an order compelling the defendant to secure the Jewish divorce would "have the 

clear secular purpose 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 reached in Burns v. Burns, 223 N.J. Super. 219 (Ch. 

Div. 1987). In that case, the parties were divorced and the plaintiff remarried, 

but chose not to obtain a "get" before the second marriage. Id. at 222. The 

defendant planned to remarry but believed she was 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 their 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 

addressed 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, and 
17 A-3697-17T2

determined "there are various circumstances which would require the husband 

to secure a 'get' from his wife." Id. at 225. 

The judge held that the court had the authority to order the defendant to 

submit to the jurisdiction of the Jewish ecclesiastical court and require that the

defendant initiate the procedures 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, the 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, in 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 

regardless of what 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 disagreed 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 with 
18 A-3697-17T2

civil issues, and compelling a party to obtain a "get" would not have the desired 

effect because under Jewish law, the husband must take that action willingly.

Id. at 538-40. The 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 when 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 the

court had no authority to choose for the parties "which aspects of their religion 

may be embraced and which must be rejected." Ibid.

Thus, in this case, Minkin provided support for defendant's motions to 

compel plaintiff to appear before the Beis Din and comply with its procedures 

so that defendant could obtain the "get" if recommended by the Beis Din.

Moreover, Burns provided support for defendant's applications 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. 
19 A-3697-17T2

However, Aflalo provided a sound legal basis for plaintiff to oppose the 

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 motions and 

refusing to appear 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 orders 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 attorney'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.