This Motion was submitted on Monday afternoon, August 23, 2004.  It included an affidavit from a canon law expert, and copy of the pre-marriage book used by the parties.

 MEMORANDUM
 I.  FACTS

1.  On August 17, 1990, the parties became engaged. Their mutual understanding and intent was that the marriage would be performed in the Catholic Church, and regulated by the  rules and regulations of marriage in the Catholic Church. (See Exhibit A.)
2.  The parties proceeded to prepare for their marriage by pre-Cana preparations, i.e., extensive study of the Catholic Church’s rules regarding marriage, family, divorce and separation, among other important Catholic teachings.
3.  Part of the preparation and “pre-Cana” preparation included study over several weeks of a booklet (“Together for Life”), which extensively discussed the various rules and regulations of the Catholic Church relative to marriage and family, separation and divorce. Those rules included, pursuant to pre-Cana preparation, the teachings and doctrines of the Church and the canon laws surrounding the Church teachings on separation.
4.  The parties agreed by words chosen by them and spoken at the ceremony itself that they would abide by the Church teachings, doctrines, and canon law regarding marriage and the family, divorce and separation.
5.  The teachings of the canon law of the Church, specifically Canon 1153 and Canon 1692, states the following regarding separation:
Can. 1153 [more Catholic commentary (transcriber's note)]--- §1. A spouse who occasions grave danger of soul or body to the other or to the children, or otherwise makes the common life unduly difficult, provides the other spouse with a lawful reason to leave, either by a decree of the local Ordinary or, if there is danger in delay, even on his or her own  authority.  §2. In all cases, when the reason for separation ceases, the common conjugal life is to be restored unless otherwise provided by ecclesiastical authority

Can. 1692 -- § 1. Unless lawfully provided otherwise in particular places, the personal separation of baptized spouses can be decided by a decree of the diocesan Bishop or by the judgement of a judge in accordance with the following canons. §2. Where the ecclesiastical decision does not provide civil effects, or if it is foreseen that there will be a civil judgement not contrary to the divine law, the Bishop of the diocese in which the spouses are living can, in the light of their particular circumstances, give them permission to approach the civil courts. § 3. If the case is also concerned with the merely civil effects of marriage, the judge is to endeavor, without prejudice to the provision of § 2, to have the case brought before the civil court from the very beginning.

6.  On July 17, 2003, the plaintiff physically separated from the marriage domicile, in violation of his pre-Cana and antenuptial agreement relative to Canon 1153. (Parenthetically, the intent of the plaintiff on this date of separation is in dispute.) In summary, said separation was done without reference to the local Catholic authorities nor referenced to any diocesan tribunal, as is required per the antenuptial agreement memorialized by exhibits attached hereto (see exhibits A and B).
7.  The facts above constitute an antenuptial agreement under Ohio law (memorialized in present case by documentation, and reinforced by part performance of defendant), in which the parties agreed to separate only according to Catholic Canon law. See discussion below.

 II.  DISCUSSION OF THE LAW
1.  All jurisdictions of the United States recognize antenuptial agreements, including the voluntary promise to follow the church law of a particular denomination (e.g., the law of the Ketubah in Jewish law).
2.  Likewise Ohio law of antenuptial agreements permits, in the manner of binding arbitration, the agreed intervention of church authorities prior to civil litigation. Most notably, see  In re Weber, 170 Ohio St. 567, 167 NE 2d 98 (1960); Kelm vs. Kelm, 2004 Ohio 1004; 2004 Ohio App. Lexis 862, Tenth Appellate District (2004). These cases maintain that an antenuptial agreement, religious or otherwise, is binding upon the parties and requires the court to follow the voluntary promises found in the antenuptial agreement.
 This Honorable Court’s attention is kindly referenced to In re Weber, supra, in which a verbal antenuptial agreement was upheld when there was written “memorandum or notes” pursuant to the Ohio Statute of Frauds (ORC 1335.05). That case stated that the memorandum or note “was made for the purpose of setting forth in writing an oral antenuptial agreement between the parties ...” As in present case, the exhibit attached hereto (Exhibit A) references the written memorandum of the Macfarlanes which indicates the contractual intent of the parties to be bound by the Catholic rules of separation and divorce (see Exhibits A and B, attached hereto).
 Also relevant is the case of Kelm vs. Kelm, supra, in which an antenuptial agreement was upheld as to support issues. The idea that a separate arbitration board would hear the case is similar to present facts, in which the “board” is in fact the local church ordinary or the tribunal of the church.
 The concept of the antenuptial contract in the pre-Cana context is similar to the Jewish ketubah, the Jewish marriage contract. For example an important case out of New York State was the Koeppel case (138 NYS 2d 366; Supreme Court, 1954) which was eventually decided by the United States Supreme Court. The importance of the holding in Koeppel was that the plaintiff’s complaint for enforcement of her husband’s “religious” promise to obtain a get (Jewish divorce), was upheld. The New York case of Avitzur vs. Avitzur (446 NE 2d 136; N.Y.1983) stated the following:
Defendant’s objections to enforcement of his promise to appear before the Beth Din based as they are upon the religious origin of the agreement, posed no constitutional barrier to the relief sought by plaintiff. The fact that the agreement was entered into as part of the religious ceremony does not render it unenforceable (Avitzur at 139) (emphasis added).

Additionally, Avitzur stated something that is applicable to present facts, to wit:
The relief sought by plaintiff in this action is simply to compel defendant to perform a secular obligation to which he contractually bound himself... (Avitzur at page 139).

 Soon after Avitzur was the case of Aziz vs. Aziz, 488 NY S2d 123 (NY USP. CT., 1985). The Aziz case held that the secular terms of a religious document (called a “mahre”) entered into as part of an Islamic religious ceremony, could be enforced by a secular court in a divorce proceeding. See Aziz at page 123-24. This supports present facts where the Macfarlane pre-Cana document (the pamphlet known as “Together for Life,” exhibit A), is equivalent to the Islamic “mahre.” This reinforces the position of plaintiff as to a vacation of present proceedings and rulings and a compelling “arbitration” before the Catholic Church tribunal. In the words of the Columbia Journal of Law and Social Problems:
Under this last understanding of accommodation, certain judicial actions ? even if they enforce an agreement to appear before a rabbinic court ? should not constitute compelled specific performance of a religious obligation ... Thus, even if the granting of a get is found to be a “religious act” and traditional involvement unconstitutional, a court could be able to enforce a prenuptial agreement to effect a degree of relief for the party that wishes a get under the theory of reasonable accommodation. (Civil Enforceablility of Religious Prenuptial Agreements, 32 Columbia Journal of Law and Social Problems, 359, at page 389, citing Rubin vs. Rubin, 348 NYS 2d 61 (Family Court, 1973).

 III.  APPLICABLE OHIO CASE LAW
 This Honorable Court is respectfully referenced to the fact that there is a scarcity of Ohio case law directly on point. Nevertheless Ohio law of arbitration clearly supports the defendant’s position. Therefore, this Honorable Court is referenced to Ohio law relative to both antenuptial agreements and to binding arbitration.
 Ohio law has consistently supported binding arbitration as an important tool in Ohio litigation. See the cases of Findley City School District Board of Education vs. Findley Educational Association (1990, 49 Ohio St. 3d 129, 551 NE 2d 186). However, the applicability of the concept of arbitration in domestic relations cases is relatively new. See the case of Kelm vs. Kelm (1992), 783 Ohio App 3d 395, 597 NE 2d 535. The Kelm case strongly supported the use of arbitration provisions in antenuptial agreements.
 Under the facts of present case, the “arbitration” is sought by defendant to be deferred to an objective “board,” i.e., the diocesan church tribunal. The designation of which particular panel is inconsequential to the concept of arbitration and found strongly endorsed in Ohio law. See Mahoning County Board of Mental Retardation vs. Mahoning County TMR Educational Association (1986), 22 Ohio St. 3d 80, 488 NE 2d 872.
 In Kelm, the decision by the Ohio Supreme Court firmly supported arbitration relative to issues of support and alimony. (See Kelm, at page 42-43.) Additionally Kelm cited language directly on point in the New Jersey case of Faherty vs. Faherty (1984), 97 NJ99, 477 A2d 1257, to wit:
Detractors notwithstanding, there has been a growing tendency to recognize arbitration in child support cases. ... We see no valid reason why the arbitration process should not be available in the area of child support; the advantages of arbitration in domestic disputes outweigh any disadvantages. (emphasis added) (Faherty, 97 NJ at 108-109, 477 A2d at 1262-1263)

The Kelm case dealt procedurally with a motion to stay proceedings and a motion to compel arbitration, similar to the pleadings plaintiff has asserted in the present matter. The present case simply involves what panel will receive or what jurisdiction controls the contract “arbitration” which is contemplated by the parties’ verbal antenuptial agreement as to Catholic rules of marriage and separation (as memorialized in Exhibit A, “Together for Life” booklet examined by the parties during pre-Cana activity.)
 A case seemingly on point in the State of Ohio is Steinberg vs. Steinberg (1982), Eighth Dist., Cuyahoga County, unreported, 1982 Ohio App Lexis 12314. However, Steinberg is totally inapposite to the Macfarlane fact pattern of a pre-marital promise to do a particular act. The Steinberg ruling that “the provision therein [the separation agreement] which obligates appellee to perform a religious act is judicially unenforceable” (Steinberg at page 12) is arguably no longer the law in the State of Ohio or the Eighth District. Steinberg’s ruling is very narrow in its rationale and also in its geographic jurisdiction. The law of Steinberg has effectively been replaced by the law of Kelm, supra. In fact it is probable it would not be found likewise in other Ohio appellate districts. In fact, as indicated in Anderson’s Ohio Domestic Relations Law:
  “Despite the decision of Steinberg the incorporation of a clause which evidences the parties’ commitment to a Get is of inestimable value. It may be of great moral value and could support a contempt citation outside of Cuyahoga County. Finally, it could alert the parties and their counsel to the need for immediate action, contemporaneously, with the agreement to participate in get proceedings, without relying on a post-judgment judicial enforcer (emphasis added). Anderson’s Ohio Domestic Relations Law, at page 727.
 

 IV.  THE STATUTE OF FRAUDS DOES NOT APPLY TO FACTS OF PRESENT CASE

 The Ohio Revised Code 1335.05 states that a contract must be in writing if it is “upon consideration of marriage.” However, the rule of part performance applies regarding such a marriage contract, where one of the other parties in fact substantially performs her end of the bargain. See Hodges vs. Ettinger, 127 Ohio St. 460, 187 NE 113 (1934); Dynasty Apparel Industries vs. Rentz, 206 FRD 603 (SD Ohio 2002); 30 ALR 2d 1419. In fact, American Jurisprudence 2d at Statute of Frauds ¶191 states that complete performance by one party in a marriage contract means that the rule of the Statute of Frauds does not apply.
 The “part performance” under present facts is literally all the activities of a spouse who willingly gave of herself as housewife, homemaker, children’s chauffeur, and even the marital bed. These are among the things that were “performed” by defendant under the agreed condition that the terms of the oral antenuptial agreement were to be respected by both parties.
 Under present facts, the Macfarlanes, as an engaged couple, took home and studies a “memorandum” in the form of the pre-Cana pamphlet, “Together for Life.” (Exhibit A). Such a memo takes the oral prenuptial agreement out of the rule of the Statute of Frauds. See the case of Landskroner vs. Landskroner, 154 OApp 3d 471, 797 NE 2d 1002 (Eighth Dist., Cuyahoga County, 2003); and Hotze & Kuntzler vs. Erskine, 99 OApp 19, 130 NE 2d 720 (First Dist., Hamilton County 1954).
 Thus, the applicable law of Statute of Frauds does not apply to the Macfarlane oral prenuptial contract, and such a contract should be enforced by this Honorable Court.

 V.  CHURCH STATE ISSUES
 This Honorable Court is respectfully directed to the Steinberg case, supra, which is the only case found in Ohio that directly relates to an agreement relative to a Jewish get (as was strongly litigated in New York case law cited above). It is respectfully suggested to this Honorable Court that a “religious” separation agreement or antenuptial agreement can be enforced where a party is simply ordered by a secular court to do what he or she promised to do:
“The contractual obligation plaintiff seeks to enforce is closely analogous to an antenuptial agreement to arbitrate a dispute in accordance with the law and tradition chosen by the parties. There can be little doubt that a duly executed antenuptial agreement, by which the parties agree in advance of the marriage to the resolution of dispute that may arise after its termination, is valid and enforceable. Avitzur, supra, at page 574 (emphasis added).

The conduct in the New York case of Avitzur, discussed above, passes what is known as the Lemon test, found in Lemon vs. Kurtzman, 403 US 602 (1971). The Lemon test in brief requires that any governmental action, including any judicial action must have the following:
1. Have a secular purpose;
2. The primary effect that neither advances nor inhibits religion;
3. Avoids creating an “excessive government entanglement with religion.”
   (See Lemon at page 611)

The courts of New York and other states have continued to follow Avitzur, and justified such holdings in terms of Lemon. For example, an Illinois Court of Appeals enforced a prenuptial agreement that required children of the marriage to be raised as Jewish (Gottlieb vs. Gottlieb, 175 NE 2d 619 (Illinois, 1961).  This simply is the recognition of a secular purpose, i.e., enforcement of a contract. The “secular purpose” rule could be enforced by any court in this manner, including under facts of present case. The Steinberg case from the Eighth District seems to adopt, although erroneously so, the argument found in Lee vs. Weismann, 505 U.S. 577 (1992) in which the Supreme Court held that a clergyman reciting an invocation at a public high school violated the establishment clause because of “excessive entanglement” with religion. However, in the case of a contract (as in Steinberg, a separation agreement), the courts could fairly and equitably enforce an agreement to which the parties have freely bargained. In fact, many scholars have argued that granting a Jewish Get is not “religious” but rather a contractual activity. See the case of Minkin vs. Minkin, 434 A. 2d 665 (N.J. Superior, 1981) at 667-69. In Minkin, the Jewish experts/rabbis testified that “the get does not involve a religious ceremony or require a rabbi’s presence, and although the husband is required to take the initiative, he does not have to be a believer, state any doctrine or creed, or even acknowledge his Jewishness” (Minkin at 667).
 Similarly, as noted in Exhibit B, affidavit of Chancellor Benedict T. Nguyen, the religious vows in a Catholic marriage ceremony are contractual as likewise are the promises in a prenuptial contract. Thus, the parties’ mutual intent is part of the legally binding agreement in the Catholic sacramental marriage. (See Exhibit B, Affidavit of Benedict T. Nguyen; and exhibit A, the pamphlet “Together for Life.”)
 Applying the constitutional church-state rulings of the U.S. Supreme Court, and likewise applying the Ohio law of contracts, the “arbitration” by a church tribunal or ordinary should be ordered by this Honorable Court. There should likewise be a vacation of all temporary orders made by the Court to this point.

 VI.  OHIO CASE LAW SUPPORTING COURT-ORDERED RELIGIOUS EDUCATION

 This Honorable Court is respectfully referenced to a very strong line of Ohio precedent supporting court-ordered payments for religious education over the First Amendment religious liberty objections of a parent. This line of cases includes fact patterns involving both separation agreements in which the parties voluntarily contracted to permit payment for religious education; and divorce decrees in which a court order was made specifically to make payments to a religious institution. See the cases of Rand vs. Rand (1985), 18 Ohio St. 3d 356, 481 NE 2d 609; In re Landis (1982), 5 Ohio App 3d 22, 448 NE 2d 845.
 In Rand, the strongest statements regarding the religious liberty/establishment clause precedent was made by Chief Justice Celebrese in his concurring opinion:
“[Schooling did] not amount to a forced religious donation in violation of the establishment clause” [but rather was] “an acceptable form of financial child support designed to partially reimburse the custodial parent for expenses incurred in rearing the child.” Rand at page 360-61.

Furthermore, the later case of Chmko vs. Chmko out of the Eighth District Court of Appeals (May 7, 1987; Cuyahoga County Court of Appeals, No. 52103), made a direct order to the non-custodial husband to make payments to support the religion that he did not approve of. Although the establishment clause argument was made by the husband pursuant to Lemon vs. Kurtzman, supra, nonetheless the court stated that the child had attended religious school prior to the divorce and there was an implicit agreement to continue with that practice. Under facts of the Macfarlane case, there was not only an implicit but an explicit promise (pursuant to Exhibit A,  the pre-Cana pamphlet “Together for Life”) to continue the rules of marriage pursuant to the laws of the Catholic Church. No Lemon argument can apply to the Macfarlane matter.
 In the Fourth District there is an important case of Smith vs. Null (January 29, 2001), Lawrence App. No. 00CA21. The Null case relied on Rand and Chmko, and concluded that the Ohio constitution’s freedom of exercise clause was not violated by forcing payment to a religious institution despite First Amendment objections by the non-custodial parent:
“Appellant correctly notes that Rand is not directly on point because in this [Null] case, appellant never agreed to pay for parochial education. However, in Chief Justice Celebrese’s concurrence, he noted that requiring a parent to pay for religious education does not violate the establishment clause; it is a permissible form of financial child support...” (Null at page 5, quoting Rand at page 360).

 Lastly, this Honorable Court is referenced to Lawson vs. Lawson (St. Lawrence County, Appeal No. 01CA25; December 21, 2001). In Lawson, there was an explicit agreement envisioned by the parties that the child would attend the parochial school:
“... notions of fundamental fairness allowed the trial court to enforce a stipulation that parents have made regarding their child’s schooling” (Lawson at page 6).

This Honorable Court is respectfully asked to recognize the “fundamental fairness” of enforcing the agreement the Macfarlanes made both at pre-Cana and later ceremonially to follow the rules of marriage and separation in the Catholic Church.
 Perhaps most persuasive of the position of the defendant is the fact that the Eighth District Court of Appeals remains consistent in overruling First Amendment objections by a party subsequent to a contractual agreement regarding a religious issue. This consistency is found as late as June 17, 2004, at which time was decided the case of Mencini vs. Mencini (June 17, 2004; Eight Dist. Court of Appeals Nos. 83638 and 83820). The Mencini court stated that even where there was a separation agreement mandating tuition payments, nonetheless the Eighth District court case of Kaiser vs. Kaiser (December 6, 2001; Cuyahoga County Appeal No. 78550) applied:
[Courts have held that] “requiring a parent to pay for a religious education does not violate the establishment clause; it is a permissible form of financial child support which is designed to partially reimburse the custodial parent for expense she incurred in rearing their child.” (Mencini at ¶13, citing Kaiser)

Thus, the Eighth District has not changed its position that compelling payment for a religious activity does not violate the First Amendment of the party who disagrees with such activity. Under present facts, Mr. Macfarlane must be compelled to keep the promise he voluntarily made, i.e., to go to the Catholic marriage tribunal/ordinary before recourse to the civil courts.
 This Honorable Court is also referenced to the case of Shariff vs. Rahman (Eighth District Court of Appeals, case no. 80745, no. CV-423014, decided on 3-20-03). In Shariff, the court dealt with the issue of jurisdiction over specific rules and regulations of a religious organization:
“The First Amendment prohibits courts from exercising subject matter jurisdiction over “ecclesiastical questions” and matters involving religious governance are cognizable in only limited circumstances.” (Shariff at ¶11).

This case is directly on point to the idea that the secular courts have no authority to make ecclesiastical decisions, especially where there has been a previous agreement by the parties to be bound by the ecclesiastic authorities:
“A judge cannot review the bylaws, however if the inquiry will lead to an examination of whether the mosque’s board of trustees ‘met the standards of the congregation and would therefore involve an inquiry into ecclesiastical concerns.’” (Shariff at ¶13).

Shariff mandates the parties first go to the church authorities:
“Whatever the differences between hierarchal and congregational organizations, the ultimate arbiter of the bylaws is the highest authority within the organization, and our role is only to identify that authority, not to review its decisions. ... Nothing in the complaint suggests that the three took their grievances to the congregation or that Rahman or the board acted in contravention of the congregation’s express wishes. Therefore, the judge correctly ruled that he lacked subject matter jurisdiction over this claim.” (Shariff at ¶15) (emphasis added).

Shariff applies in the same manner to the jurisdictional argument in the Macfarlane matter, i.e., the domestic relations court has no jurisdiction over church matters where the explicit agreement by the parties contracted for jurisdiction with the church tribunal or ordinary.
 

      Respectfully Submitted,

      ___________________________
      Robert Troll Lynch, Esq. (0039944)
      Lynch Legal Services
      2900 Fairmount Blvd.
      Cleveland Heights, Ohio 44118
      (216) 771-0999
 

 CERTIFICATE OF SERVICE
This is to certify that the foregoing Defendant’s Motion to Vacate Prior Temporary Orders and Motion to Transfer Jurisdiction to Church Tribunal and Compel Arbitration was served via regular U.S. Post upon Thomas LaFond, Attorney for Plaintiff, Eaton Center Building, 1111 Superior Avenue, Suite 1000, Cleveland, Ohio 44114; and GAL John Ready, 500 Courthouse Square, 310 Lakeside Avenue, Cleveland, Ohio 44113 this 23rd day of August 2004.
 

       ____________________________
       Robert Troll Lynch, Esq.