The recent Appellate Division decision of Litton v. Litton presents an extreme case of what happens when a litigant agrees to submit his or her dispute to arbitration in Rabbinical Court, Bais Din, but then decides not to accept the outcome.
To describe this case as a long road of litigation would be a profound understatement. The case was litigated for a period of almost 15 years, and involved a full arbitration hearing, several motions and multiple appeals.
The parties in the case were married for about 26 years and had one child. Following the entry of a Final Judgment of Divorce, the parties agreed to arbitrate before the Bais Din, the rabbinical court, to have their financial issues resolved in that forum.
The Bais Din entered an award on December 7, 2008 instructing the husband, Yehuda Ben Litton, to pay the wife, Linda Litton, the sum of $5,000 per month until Yehuda provides her with a get, and then $3,500 per month thereafter.
In 2009, the award was confirmed and Linda moved to enforce the $5,000 per month child support obligation, and Yehuda filed a separate motion to modify that amount. The judge entered an order on July 27, 2009 providing for Yehuda’s continued payment in a reduced amount based following an ability-to-pay hearing.
Ultimately, a bench warrant was issued for Yehuda’s non-compliance with the ongoing support obligation. In 2013, however, the judge vacated that award and modified Yehuda’s child support obligation of $2,300 per month. It appears, based upon a reading of the case, that Yehuda did not comply with that amount either.
By the time Yehuda’s child support obligation concluded in 2017, his arrears balance was a staggering $188,537.86.
Yehuda subsequently filed an application to vacate his arrears, positing that the 2013 order modifying Yehuda’s support obligation constituted a finding by the Court that the arbitration award was inequitable (although it did not address Yehuda’s arrears balance).
In making this argument, Yehuda referenced that one of his Dayanim, arbitrators, in Bais Din was Rabbi Mendel Epstein, who was convicted of kidnapping and torturing men who refused to give their wives a Get. It does not appear that Rabbi Epstein tortured Yehuda to do so, and the Appellate Division noted that it had already made that determination in Litton I, years prior.
In June of 2021, Yehuda then filed a motion to vacate his arrears; this time, based upon what he characterized as documented errors of the Probation Department – which is the entity responsible for the collection of support. This motion was also denied and Yehuda sought reconsideration, which was denied as well on August 31, 2021.
Then, in December of 2021, Yehuda filed yet another motion seeking relief from the order under a subsection different Court rule, 4:50-1 – which carries a one-year time requirements from the date of the order from which relief is sought – arguing that newly discovered evidence showed that the 2009 proceeding was a modification hearing, rather than an ability to pay hearing, and that Probation should have updated its records to reflect said modified amount.
The Court denied that motion as well, reasoning that although Yehuda requested modification of the August 2021 Order, he was truly seeking to retroactively modify all prior orders which denied his motion to modify child support after the July, 2009 Order. As a result, the Court determined that the application was time-barred under the applicable rule.
Yehuda set forth many arguments on appeal, including: the motion court did not give weight to the July 2009 order; the court erred in failing to address “accounting errors”; probation failed to account for the July 2009 order; he was denied due process because he was never informed the July 2009 order was terminated; the court’s failure to vacate his arrears enforced a religious penalty in violation of established case law; the trial court should have granted his unopposed motions; and he should have been granted a plenary hearing and discovery.
All of the above arguments were premised on one critical and material fact: that the July, 2009 Order modified his support obligation.
However, just like the numerous orders from the trial court preceding Yehuda’s appeal, the Appellate Division’s decision rejected Yehuda’s argument, finding that his motion under Rule 4:50-1 was time barred as it truly requested a review and relief from all orders post-July, 2009.
In issuing its decision, the Appellate Division detailed a very important distinction between a modification of support based upon a changed circumstances – the process governed by the seminal case Lepis v. Lepis – and an ability to pay hearing pursuant to Court Rule 1:10-3 which
is not a plenary hearing to decide the appropriate amount of support an obligor should pay. That amount has been determined, either by the court following a trial or post-judgment motion, or by the parties themselves. The hearing is also not a substitute for an appeal or a motion to modify the obligation based on changed circumstances. The hearing comes about because an obligor has failed to comply with an order. The objective of the hearing is simply to determine whether that failure was excusable or willful, i.e., the obligor was able to pay and did not. It does not establish the future obligation of the party paying support.
The Court, thus, found that the 2009 Order addressed only Yehuda’s ability to pay, and whether he should be incarcerated as a result of his failure to pay. The judge found in 2009 that Yehuda was unable to pay the $5,000 per month and should not be incarcerated as a result. Regardless of what Yehuda thought, this process was monumentally different from a modification proceeding.
Yehuda also brought up again before the Appellate Division his belief that the Bais Din’s decision was the product of impropriety and must be vacated. However, the Appellate Division noted that it had already affirmed the decision twice, once in Litton I and then again in Litton II.
While this was a very technical blog, full of process, procedure, and minute distinctions of fact and law, it is illustrative of the types of twists and turns litigation can take when it is pervaded by years of challenges to prior Orders.
The elemental fact is that the parties agreed to Bais Din where child support awards tend to be higher than in civil court for myriad reasons under Jewish law. This is particularly so, as here, where a party refuses to provide a Get and, therefore, remains bound to certain support obligations set forth in the Ketubah, as long as the marriage remains unsevered.
As a result, parties entering the Bais Din arbitration process must go in with a clear picture of their rights, obligations, and possible outcomes because, as Litton demonstrates, awards flowing from arbitrations can be quite difficult to modify or vacate.
If you have questions concerning the Bais Din process, possible outcomes, and financial implications, consult with an attorney well-versed in both civil and Rabbinical Courts prior to signing any Agreement to Arbitrate.
Eliana T. Baer is a partner in the Family Law Practice Group of Fox Rothschild LLP. Eliana focuses her state-wide practice on representing clients on issues relating to divorce, asset distribution, support, custody, domestic violence, premarital agreements and Appellate Practice. She appears in both civil and rabbinical court. You can reach Eliana at (609) 895-3344, or firstname.lastname@example.org.
To listen to Eliana’s podcast, Jewish Divorce Talk, follow this link: https://www.foxrothschild.com/publications/jewish-divorce-talk-podcast-series