Papers Submitted: Plaintiff’s Order to Show Cause, Affidavit and Affirmation in Support x Defendant’s Affidavit/Affirmation and Memorandum of Law in Opposition x Plaintiff’s Memorandum of Law in Reply x DECISION AND ORDER The Plaintiff/ex-husband (hereinafter “ex-husband”) moves by Order to Show Cause (Motion Sequence 001) for an order prohibiting the Defendant/ex-wife (hereinafter “ex-wife”) from appealing the Declaration of Nullity of the Roman Catholic Church and taking any further steps to oppose or appeal the ex-husband’s petition seeking a religious annulment of the parties’ marriage by the Roman Catholic Church and directing that the ex-wife withdraw any pending appeals with the Roman Catholic Church. The parties were married in a Roman Catholic religious ceremony on September 17, 1988. The ex-husband commenced an action for divorce on September 1, 2020 pursuant to DRL Section 170(7). A Judgment of Divorce was issued on March 29, 2021 and entered in the Office of the Nassau County Clerk on April 5, 2021. The Judgment of Divorce provides that the ex-wife withdraws her Verified Answer with Counterclaims and the divorce was granted in favor of the ex-husband. The Judgment of Divorce incorporated but did not merge the terms of the parties’ Stipulation of Settlement dated December 21, 2020. The Stipulation of Settlement provides at Article XXVII as follows: “Upon the request of either party, the parties shall cooperate, as required by statute, to obtain a religious divorce, including but not limited to, signing any and all documents necessary to effectuate the same.” The ex-husband states that on August 2, 2022, he began the process of obtaining a religious annulment from the Roman Catholic Diocese of Rockville Centre. The ex-husband states that he learned in November, 2022, that the ex-wife was “opposed to the granting of nullity” and, in or about that time, his attorney’s corresponded with the ex-wife’s counsel. The ex-husband states that on May 22, 2023, he had an opportunity to review the submissions of the ex-wife relative to her objection to the annulment. The ex-husband states that following the submissions of both the parties to the Roman Catholic Diocese of Rockville Centre, on June 1, 2023, a letter was issued from the Diocese granting him a religious annulment. The ex-husband states that pursuant to the rules of the church, an appeal to the annulment must be submitted within fifteen days of the letter and that if such an appeal is filed, it could take “up to eight (8) years to decide.” The ex-husband states that the ex-wife is “adamant” about opposing the annulment out of “spite.” The ex-husband states that he needs the annulment to be remarried in the Catholic Church and that without the annulment he would be considered an adulterer if he were to be married in a civil ceremony. The ex-husband states that he is not requesting that the ex-wife engage in any affirmative acts to assist him in securing the annulment but, rather, that she be prohibited from “acting in a manner that would try to reverse and nullify the determination of the Tribunal.” Counsel for the ex-husband acknowledges that DRL Section 253 “does not specifically require the Defendant to cooperate in the removal of all barriers to remarriage” but suggests that the ex-wife’s filing of a counterclaim seeking a divorce constrains her “pursuant to statute” to agree to remove all barriers to the ex-husband’s remarriage. The Court notes that the counterclaims filed by the ex-wife were withdrawn as referenced within the Stipulation of Settlement and Judgment of Divorce. The ex-wife opposes the application of the ex-husband in its entirety. The ex-wife provides this Court with the Notice of Appeal sent to the Sacred Roman Rota dated June 5, 2023. The ex-wife submits an Affidavit completed by Kelly E. O’Donnell (hereinafter “O’Donnell”), a practicing canon lawyer. O’Donnell states that there is no such thing as a “religious divorce” in the Catholic Church as an annulment is a declaration that a marriage “thought to be valid…actually fell short of at least one of the essential elements required for a binding union.” The ex-wife further submits a Memorandum of Law arguing that she was only obligated to cooperate in obtaining a “religious divorce” “as required by statute” and that in the Catholic Church there is no such thing as a “religious divorce.” The ex-wife notes that “not one reported case litigated under DRL Section 253 concerned a ‘religious divorce’ among Catholics because a “religious divorce” does not exist in Catholicism. The ex-wife submits that “annulment declares the marriage invalid and void, while a divorce dissolves a valid civil union.” The ex-wife further submits that DRL Section 253(6) specifically excludes from its scope a Catholic annulment in providing that ‘”all steps solely within his or her power’ shall not be construed to include applications to a marriage tribunal or other similar organization or agency of a religious denomination which has authority to annul or dissolve a marriage under the rules of such denomination.” The ex-husband submitted a Reply Memorandum of Law wherein he concedes that “this matter is unique as it…seeks to prevent a party from actively creating, rather than removing, a barrier to a religious remarriage.” The ex-husband further states that “it is submitted that the consideration of this matter must be whether the action of the party creates a “barrier” to the other party’s ability to remarry in his or her religious faith. The ex-husband argues that while the “genesis” of Domestic Relations Section 253 pertains to the providing of a Get in the Jewish religion, the statute does not “pertain merely to individuals of the Jewish faith.” The ex-husband argues that the ex-wife’s interference in the ex-husband’s securing of a “DN” (a term utilized by the ex-husband throughout his Memorandum in lieu of the term “annulment”) deprives him of his constitutional right to practice his religion and his constitutional right to marry. The ex-husband advises this Court that without a directive from this Court that the ex-wife remain silent relative to her pending appeal of the annulment, he will “never be able to seek reconciliation for his sins” and he would be “denied the right to receive Holy Communion” if he remarries civilly. The ex-husband argues that as a result of the foregoing, he would be irreparably harmed whereas, if the ex-wife were prohibited from pursuing her appeal, she would suffer no harm. The Stipulation of Settlement The Stipulation of Settlement, at Article XXVII entitled “RELIGIOUS DIVORCE” provides as follows: Upon the request of either party, the parties shall cooperate, as required by statute, to obtain a religious divorce, including but not limited to, signing any and all documents necessary to effectuate the same. Any costs attendant to obtaining such religious divorce shall be paid by the party requesting the religious divorce. Article XV of the Stipulation of Settlement entitled “MODIFICATION AND WAIVER” provides as follows: Neither this Stipulation nor any provision hereof (including, without limitation, this Article) shall be amended, waived, or modified or deemed amended, waived or modified except by a stipulation on the record of a Court of Competent Jurisdiction or an agreement in writing, identifying each particular provision amended, waived or modified and duly subscribed and acknowledged by both parties with the same formality as this Stipulation. No other asserted amendment, waiver or modification shall constitute an amendment, waiver or modification even if substantially detrimentally relied upon… Article XVI of the Stipulation of Settlement entitled “MATRIMONIAL ACTIONS AND DECREES” provides as follows: This Stipulation shall not be invalidated or otherwise affected by any decree or judgment of separation, annulment or divorce made by a court in any action for separation, annulment, or divorce. This Stipulation shall (to the extent permitted by law) be incorporated in and shall survive any decree or judgment of separation or divorce and shall not merge therein. Each party agrees that he or she shall seek no relief from any court or other tribunal in this jurisdiction or any other jurisdiction in any proceeding different from that provided herein. This Stipulation shall remain in full force and effect notwithstanding any reconciliation of the parties unless abrogated by an instrument subscribed by both parties and executed with the formality of this Stipulation. Domestic Relations Law 253 Domestic Relations Law Section 253 entitled “Removal of barriers to remarriage” provides as follows: 1. This section applies only to a marriage solemnized in this state or in any other jurisdiction by a person specified in subdivision one of section eleven of this chapter. 2. Any party to a marriage defined in subdivision one of this section who commences a proceeding to annul the marriage or for a divorce must allege, in his or her verified complaint: (i) that, to the best of his or her knowledge, that he or she has taken or that he or she will take, prior to the entry of final judgment, all steps solely within his or her power to remove any barrier to the defendant’s remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision. 3. No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement: (i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision. 4. In any action for divorce based on subdivisions five and six of section one hundred seventy of this chapter in which the defendant enters a general appearance and does not contest the requested relief, no final judgment of annulment or divorce shall be entered unless both parties shall have filed and served sworn statements: (i) that he or she has, to the best of his or her knowledge, taken all steps solely within his or her power to remove all barriers to the other party’s remarriage following the annulment or divorce; or (ii) that the other party has waived in writing the requirements of this subdivision. 5. The writing attesting to any waiver of the requirements of subdivision two, three or four of this section shall be filed with the court prior to the entry of a final judgment of annulment or divorce. 6. As used in the sworn statements prescribed by this section “barrier to remarriage” includes, without limitation, any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party’s commission or withholding of any voluntary act. Nothing in this section shall be construed to require any party to consult with any clergyman or minister to determine whether there exists any such religious or conscientious restraint or inhibition. It shall not be deemed a “barrier to remarriage” within the meaning of this section if the restraint or inhibition cannot be removed by the party’s voluntary act. Nor shall it be deemed a “barrier to remarriage” if the party must incur expenses in connection with removal of the restraint or inhibition and the other party refuses to provide reasonable reimbursement for such expenses. “All steps solely within his or her power” shall not be construed to include application to a marriage tribunal or other similar organization or agency of a religious denomination which has authority to annul or dissolve a marriage under the rules of such denomination. 7. No final judgment of annulment or divorce shall be entered, notwithstanding the filing of the plaintiff’s sworn statement prescribed by this section, if the clergyman or minister who has solemnized the marriage certifies, in a sworn statement, that he or she has solemnized the marriage and that, to his or her knowledge, the plaintiff has failed to take all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce, provided that the said clergyman or minister is alive and available and competent to testify at the time when final judgment would be entered. 8. Any person who knowingly submits a false sworn statement under this section shall be guilty of making an apparently sworn false statement in the first degree and shall be punished in accordance with section 210.40 of the penal law. 9. Nothing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue. The truth of any statement submitted pursuant to this section shall not be the subject of any judicial inquiry, except as provided in subdivision eight of this section. Discussion This is a post-judgment application seeking the issuance of injunctive relief in the form of a directive that the Defendant-ex-wife be restrained from appealing the “Declaration of Nullity” — a religious annulment — issued by the Diocese of Rockville Centre. The Court notes that the application by the Plaintiff-ex-husband was not a request that this Court enforce the terms of the parties’ Stipulation of Settlement dated December 21, 2020 or the subsequent Judgment of Divorce dated March 29, 2021 and neither of the foregoing documents are referenced within the Order to Show Cause. It is of particular note that the ex-husband does not assert that the ex-wife is in violation of the parties’ Stipulation of Settlement in as much as the document references a “religious divorce” a concession on the part of the ex-husband that a “religious annulment” is not synonymous with a “religious divorce.” Moreover, aside from the conspicuous absence of any request by the ex-husband for enforcement of the Stipulation of Settlement which resolved all issues relative to the parties’ marriage, the ex-husband has not requested that this Court set aside, vacate or modify the parties’ agreement. The Judgment of Divorce clearly provides that “the Supreme Court shall retain jurisdiction to hear any applications to enforce the provisions of said Stipulation of Settlement or to enforce or modify the provisions of this Judgment…” The ex-husband does not seek any of the foregoing relief which would fall within this Court’s purview as it relates to post-judgment matrimonial proceedings. Rather, the ex-husband is requesting an Order prohibiting the ex-wife from following the protocols established by the Roman Catholic Church following the granting of a religious annulment. The ex-wife filed her appeal from the Declaration of Nullity of the Roman Catholic Church and such appeal was filed prior to the ex-husband’s instant application. The appeal is now before the Roman Catholic Church to decide. DRL Section 253(9) clearly provides that “nothing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue.” The ex-wife’s submissions to the Roman Catholic Church as proscribed by the church in and of itself constitute a “religious issue.” To require that the ex-wife refrain from opposing a religious annulment, as it is her right to do within the Roman Catholic Church, would be for this Court to act in contravention of DRL 253(9) and in violation of the ex-wife’s constitutional right to freedom of religion. The religious annulment which the ex-wife seeks to appeal is precisely a “religious issue” and directing any restrictions relative to the religious annulment is tantamount to determining the religious issue. Based upon the language within the Stipulation of Settlement, this Court’s review is limited to whether there has been compliance with the terms of the Judgment of Divorce which incorporates the terms of the parties’ Stipulation, and not the ex-husband’s ability to remarry within the Catholic Church. There is no statutory authority that mandates an Order directing that the ex-wife be restrained from appealing a religious annulment of her marriage. It is acknowledged that the ex-wife is restrained from taking any acts to interfere with the ex-husband’s right to a “religious divorce” but the ex-husband does not allege that she is engaging in such behavior. Rather, he argues that she is interfering with his right to a religious annulment. The ex-husband further does not dispute that a “divorce” and an “annulment” are entirely different in that one acknowledges the existence of a marriage but terminates same and one invalidates a marriage. The parties, both attorneys, executed a comprehensive Stipulation of Settlement with the assistance of their respective counsel. The Stipulation of Settlement resolved all issues arising out of the parties’ marital union. With no less than four (4) attorneys participating in the drafting of the Stipulation of Settlement, there was no reference whatsoever to a “religious annulment” or the “removal” of any barrier to remarriage. The ex-husband states “there is no dispute that the Plaintiff and Defendant are both practicing Roman Catholics” at page 11 of his memorandum. As practicing Catholics, they were well aware of the procedure — or at the very least had the ability to familiarize themselves with same prior to the execution of the Stipulation — but the Stipulation the parties signed does not provide for a “religious annulment” and contains no restriction relative to either party’s right to appeal a Declaration of Nullity issued by the Roman Catholic Church, as they are entitled to do by virtue of the protocols followed by the Roman Catholic Church. A failure to include language specific to the Roman Catholic Church’s annulment process cannot be remedied at this juncture as the Court has no jurisdiction to do so. The ex-husband argues that his constitutional rights to marriage and exercise his religion would be violated if the ex-wife was permitted to proceed with her appeal. This Court does not agree. The ex-husband asks this Court to direct that the ex-wife refrain from filing or proceeding with her appeal to the Roman Catholic Church, something she is entitled to do within her religion as there is a specific procedure relative to same outlined within her faith. This Court respects the right to freedom of religion which is precisely why this Court will not interfere with the process of securing or appealing a religious annulment. The ex-husband would like to freely practice his faith by remarrying within the Catholic Church in order to receive all his sacraments and ensuring that he is not considered an “adulterer” within the eyes of the church. The ex-husband requests that this Court honor his right to a religious remarriage by subverting the ex-wife’s right to exercise the appellate procedure of the Roman Catholic Church which provides oversight regarding religious annulments. Whether the Declaration of Nullity issued by the Diocese of Rockville Centre withstands the scrutiny of the Roman Catholic Church is not within this Court’s jurisdiction nor should it be. The parties signed an agreement which agreement is incorporated into the Judgment of Divorce. The agreement provided that it would not be modified absent agreement by the parties. There is no agreement to modifying the agreement to include additional language relative to the barriers to remarriage. The agreement provided that the parties waived claims against each other and agreed to seek no relief against one another different than that which is set forth in the Agreement. The agreement provided for a “religious divorce” consistent with DRL 253 and did not include any additional language restricting either party’s rights to appeal an annulment. The appeal is in the hands of the Roman Catholic Church and this Court will not interfere with the process. Indeed, DRL Section 253(9) specifically provides that “Nothing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue.” Based upon the foregoing, the ex-husband’s application is DENIED. The Court notes that by virtue of this decision this Court has made no decision as to whether the religious annulment obtained by the ex-husband is viable nor has this Court determined whether the ex-wife will be successful with respect to her appeal to the Roman Catholic Church. The ex-husband’s expressed concerns that without a judicial prohibition against the ex-wife’s appeal to the Roman Catholic Church, he will “never be able to seek reconciliation for his sins” and he would be “denied the right to receive Holy Communion” should he remarry civilly, are not determined as a result of this Decision and Order but rather the religious tribunal considering the appeal. All matters not decided herein are hereby denied. This constitutes the decision and order of this court. Dated: September 11, 2023
