ELWIRA LEWANDOWSKI VS. MIROSLAW LEWANDOWSKI (FM-19-0427-15, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3888-17T4

ELWIRA LEWANDOWSKI,

Plaintiff- Respondent,

v.

MIROSLAW LEWANDOWSKI,

Defendant-Appellant.
_______________________________

Submitted November 19, 2019 - Decided September 4, 2020

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FM-19-0427-15.

Miroslaw Lewandowski, appellant pro se (Mariann C.
Murphy, on the brief).

Pescatore & Sauter, attorneys for respondent (Amy
Lynn Sauter, on the brief).

PER CURIAM
 Following a twelve-day trial, Judge Franzblau entered a judgment of

divorce ending plaintiff Elwira Lewandowski and defendant Miroslaw

Lewandowski's nineteen-year marriage and bitter divorce and awarding

plaintiff sole legal and physical custody of the parties' three children.

Defendant appeals, contending the court erred in that custody decision and by

unreasonably restricting his parenting time. He also argues the court erred in

denying him the opportunity to obtain an employability evaluation of plaintiff,

imputing only minimum wage income to her, omitting the adoption subsidies

she receives for the children in calculating his child support obligation,

ordering the sale of the marital home, and awarding plaintiff attorneys' fees.

Because the adoption subsidies should have been included as income to

plaintiff when calculating defendant's child support obligation, we remand for

recalculation of the support obligation. We otherwise affirm, substantially for

the reasons expressed in Judge Franzblau's thorough and thoughtful eighty-six-

page written opinion.

The facts are meticulously detailed in Judge Franzblau's opinion and we

do not repeat them here. We note only that the parties married in Poland in

1997 and emigrated to the United States the following year. Together they

became devout Christians, deciding "to live their lives in strict adherence to

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their Christian religious beliefs and biblical teachings." Following their

marriage, "the parties agreed that they would observe traditional biblical roles,

wherein the husband would provide for the family and the wife would serve

and submit to her husband." Although plaintiff completed medical school in

Poland, she never obtained a license here and has never worked as a doctor.

Other than a year spent as a sales clerk at Nordstrom's at the start of their

marriage, plaintiff has never worked outside the home. Defendant is an

architect with his own business.

When the parties learned they couldn't have children, they became

resource parents, fostering several special needs children. They eventually

adopted three of those children, two girls and a boy, twelve, nine and eight

when the judgment was entered. During the marriage, plaintiff home schooled

the children, and defendant moved his office to the parties' home to spend

more time with his family. Their marital discord was born over disagreements

about living their faith, particularly as it related to raising their children.

Matters came to a head over the issue of corporal punishment. Although

both parents were initially committed to physically disciplining their children,

"because that was the Bible," plaintiff believed defendant hit the children in

anger as they got older and their behavior became more of a challenge. When

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defendant did not accept plaintiff's entreaties to "not discipline [the] children

in anger," and to "be gentle and not hurt them," she decided she would no

longer "be a part of this" and refused to spank the children. As she explained

at trial, she believed defendant was breaking the promise they made to the

children that they would not be disciplined in "anger and harshness." Plaintiff

testified she "didn't want them to associate this with God at all because I

thought that was misrepresenting God because . . . whatever He does is out of

love and kindness and goodness."

Defendant responded by telling the children "that the parent that doesn't

spank the child hates the child," and that their mother was "sending them to

hell" because she wouldn't discipline them. He had his pastor and a Christian

counselor read to them from the bible "that the parent who doesn't discipline,

spank the child, hates them." Plaintiff also claimed defendant told the children

that she was like Vashti, a biblical woman mocked as a rebellious wife for

disobeying her husband. Defendant admitted only that he acknowledged their

children's comparing plaintiff to Vashti when he was studying the bible with

them. He explained the bible says women should submit to their husbands and

Vashti did not and was punished as an example to all of the women in the

kingdom. He claimed one of their children, probably their son, asked him if

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plaintiff was like Vashti. Defendant admitted the comparison "was negative,"

but defended himself, saying, "[b]ut they asked me. I couldn't say, no, . . .

your mommy is not like Vashti."

The children continued to be a flash point during the pendency of the

divorce. The parties continued to clash over the issue of corporal punishment,

as well as public school, counseling for the children, and what extra-curricular

activities they should participate in. Exacerbating their continued conflict was

that the parties were both living in the marital home after plaintiff filed for

divorce, with plaintiff in the master bedroom and defendant in the in -law suite

where he maintained his office. Orders were eventually entered confining the

parties to their own portion of the marital home and forbidding each from

interfering in the other's time with the children. The court appointed a joint

custody/parenting evaluator and a guardian ad litem for the children, both of

whom were recommended by defendant's counsel.

The court eventually granted plaintiff's motions pendente lite to permit

the children to participate in certain sports, to allow her to engage the children

in non-Christian counseling and to enroll them in public school in order to take

advantage of the enhanced services available. Defendant was adamantly

opposed to both counseling and enrolling the children in public school because

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they contravened his religious convictions, notwithstanding that he had once

considered sending the children to public school himself in light of the

difficulties of home schooling them. As to counseling, the court noted that

both the guardian and the parties' joint custody evaluator, as well as the

Division of Child Protection and Permanency, had all recommended the

children receive counseling. The court determined the children needed

professional counseling, and that it was required to "intervene to protect a

child where the religious beliefs of the parent threaten the well-being of the

child." In addition, it reasoned that the "rights of one parent who opposes

counseling on the basis of his religious beliefs should not contravene the rights

of the other parent who believes counseling is in the best interest of the child ."

All three children, although unrelated, were born to mothers with

psychological or substance abuse issues. Their younger daughter was born

drug addicted, spending over a month in the hospital at birth being weaned off

drugs. She had a great deal of difficulty sometimes regulating her emotions.

Described as a sweet and engaging child, she could, without much warning,

turn violent and aggressive, injuring her siblings and destroying property.

Both parties had difficulty restraining her at such times. Plaintiff claimed

defendant viewed the child's "fits" as a challenge to him and his authority and

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disciplined her harshly. Defendant denied the charge. He sometimes

acknowledged that the children had "certain needs," but he averred in a

certification that "it is clear that many of their problematic behaviors

(disobedience, anger, lying, etc.) developed or increased after filing for

divorce, by children observing, learning and repeating hatred, manipulation,

unforgiveness, anger, hypocrisy exemplified by the plaintiff toward me,

despite my continuous calls for forgiveness and reconciliation."

Although both the custody evaluator and the guardian initially

recommended that the parties share legal and physical custody of the children,

both changed their recommendations following a concerning medical episode

involving the parties' older daughter. The girl, then ten years old, reported

experiencing visual and auditory hallucinations. Her birth mother suffered

from bipolar disorder. Plaintiff wanted to take the child to a psychiatrist, but

defendant refused consent. When the problem persisted, plaintiff took the

child to the emergency room. Doctors recommended follow-up with her

pediatrician and a neurologist. The child's pediatrician recommended a

psychiatric evaluation. The child was evaluated, diagnosed with a psychosis,

not otherwise specified and prescribed medication. Defendant refused the

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medication and plaintiff moved for emergent sole custody to permit her to

address the child's needs.

Judge Franzblau granted the relief, noting defendant's failure to consent

to prescribed medication for his daughter pending a second opinion, which he

then "failed to obtain for more than five weeks." The judge also took into

account defendant's certification in opposition to the motion in which he

insisted the behavior of the parties' older daughter was "completely normal for

a ten-year-old girl who goes through terrible divorce" and that the child was

currently "doing very well, she is energetic, enthusiastic and joyful." The

judge, unable "to reconcile defendant's belief that [the ten-year-old] is 'doing

very well' and that she is 'enthusiastic and joyful' with [her] recent note that

reflects self-loathing and suicidal ideations," found an immediate need to

temporarily remove all three children "from the legal and physical custody of

the defendant due to serious and imminent safety concerns, including, but not

limited to defendant's failure to tend to the acute and daily medical and

emotional needs of his children, especially [his older daughter]." The judge

continued emergent sole custody in plaintiff pending trial.

At trial, both the guardian and the parties' joint custody evaluator

testified that shared custody would not be in the children's best interests

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because of their parents' inability to communicate or agree on anything. Both

expressed concern about defendant's use of excessive physical discipline and

recommended that plaintiff, who was more proactive and attuned to the

children's needs, should have sole legal and physical custody. Both also

recommended against defendant having overnight parenting time for the

foreseeable future. The custody evaluator testified that she believed plaintiff

would place the children's best interests "above anything else in her life ,"

whereas defendant "places his religious beliefs before anything and everything

else." The guardian noted that defendant did not accept that his older

daughter's auditory and visual hallucinations were a sign of mental illness and

instead attributed it to the "evil" brought into their home by plaintiff filing for

divorce. The parties' joint custody expert opined that defendant's "religious

convictions [were] fine for [him]," but could "impact the children in ways that

may detract from their well-being." He believed the depth of defendant's

religious convictions, "contribute[d] to an inability to reach consensus" on

decisions affecting the children.

After hearing the testimony, Judge Franzblau found both the guardian

and the parties' joint custody expert credible, rejecting defendant's claims that

they were biased against him because of his religious faith. The judge found

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defendant offered no proof of religious bias, and that their recommendations

were based on the best interests of the children "without regard to defendant's

religious practices."

The judge found that plaintiff was "credible in all respects," and that

defendant was not credible, for reasons fully explained in his written opinion

and documented in defendant's own submissions. Considering the custody

factors set forth in N.J.S.A. 9:2-4, the judge concluded it was in the children's

best interests to award sole legal and physical custody to plaintiff. The judge

was persuaded by "defendant's lack of credibility, the parties' inability to agree

on issues regarding the children, defendant's strong desire to institute corporal

punishment and . . . defendant's general lack of fitness," including his "deep

bitterness and expresse[d] disdain for persons who do not see the world in the

same way that he does." The court also refused to award defendant overnight

parenting time relying on the recommendations of the guardian and the joint

custody expert and its concerns for the children's safety and "their inability to

protect themselves." The court qualified that overnight visits could be

permitted if plaintiff consented or pursuant to further court order "when the

children are old enough to protect themselves."

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 The court found defendant loved his children, that they obviously loved

him, and that maintaining a relationship with defendant was in the children's

best interests. The judge expressed confidence that plaintiff would work to

facilitate the children's relationship with their father in their best interests. It

granted parenting time to defendant every Saturday and Sunday from 10:00

a.m. to 7:00 p.m., and on Tuesdays and Thursdays from after school until 7:00

p.m. The court also established a parenting time schedule for holidays,

birthdays, and vacation but provided no overnight visitation for defendant.

The court ordered defendant to vacate the marital residence within forty-

five days and that the home be listed for sale on May 15, 2019, or sooner at

plaintiff's discretion. The net proceeds from the sale were to be divided

equally between the parties, with any amounts owed by one party to the other

satisfied from the proceeds. The court ordered defendant to pay plaintiff

$23,822.67 resulting from the equitable distribution of the parties' other assets.

The court awarded plaintiff alimony of $760 per week for fifteen years.

After imputing minimum wage income to plaintiff, it calculated defendant's

child support obligation at $271 per week. The court excluded from the child

support calculation the adoption subsidies received by plaintiff for the children

of $2300 per month.

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 The court also awarded attorneys' fees of $30,000 to plaintiff. It noted

that, according to counsel's certification of services, plaintiff had incurred total

fees and costs of $167,772.42. Of that amount, $88,574.47 had been paid by

plaintiff and $9596.50 by defendant pursuant to previous court orders, leaving

an outstanding balance of $69,601.45.

The court considered the factors in Rule 5:3-5(c), and found that

defendant was better able to pay counsel fees due to his remaining assets and

earning capacity. Further, because defendant was self-represented during most

of the litigation, he did not incur substantial fees and was, therefore, able to

contribute to plaintiff's fees. The court found both parties pursued custody of

the children in good faith, but defendant's position that plaintiff should not be

awarded custody because she abandoned his religious practices was

unreasonable. In addition, "material portions" of plaintiff's counsel fees were

incurred defending motions brought by defendant that were denied or to

compel discovery.

The court found that plaintiff was successful in obtaining custody,

alimony, child support, and an equitable distribution. Other factors it

considered were defendant's lack of transparency and truthfulness with the

court and his conduct during litigation, which the court found "contributed

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greatly" to its cost. The court found that the fees charged by plaintiff's counsel

were reasonable, but because many tasks performed by counsel would have

been required regardless of defendant's conduct and because both parties

pursued custody of the children in good faith, the court awarded only $30,000

in fees to plaintiff.

We reject defendant's arguments that the court erred in awarding

plaintiff sole legal and physical custody and denying him overnight parenting

time. We also reject that the court erred in denying defendant the opportunity

to obtain an employability evaluation of plaintiff and imputing only minimum

wage income to her, in ordering the sale of the marital home, and in awarding

plaintiff attorneys' fees.

Because it is important that the parties understand our limited role in

reviewing Family Part judgments, we begin by explaining the well-established

principles that guide us. We give considerable deference to the discretionary

decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117,

127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App.

Div. 2006)). When a Family Part judge has made findings of fact after

considering the testimony and documents the parties have presented during a

non-jury trial, the judge's findings are generally "binding on appeal when

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supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154

N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co.

of Am., 65 N.J. 474, 484 (1979)).

That is so because of "the family courts' special jurisdiction and

expertise in family matters." Id. at 413. Just as important, the trial judge is in

the best position to make judgments as to whether witnesses are believable.

Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). For those reasons, we

will not reverse a trial judge's findings of fact unless they are "'so manifestly

unsupported by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice.'" Id. at 70 (quoting Rova

Farms Resort, Inc., 65 N.J. at 484).

Unlike a trial judge's fact and credibility findings, the judge's

"'interpretation of the law and the legal consequences that flow from

established facts are not entitled to any special deference.'" Crespo v. Crespo,

395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). A trial judge "is in no

better position than we are when interpreting a statute or divining the meaning

of the law." D.W. v. R.W., 212 N.J. 232, 245 (2012). Thus, we review the

legal issues anew. Id. at 245-46.

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 Applying those standards here, defendant has provided us no basis on

which to overturn Judge Franzblau's decision on custody and parenting time.

That decision not only has substantial support in the credible evidence in the

record, it was recommended by the guardian ad litem and joint custody

evaluator defendant urged the court to appoint, as well as the psychiatrist who

evaluated both parties and provided a report to the court, whom defendant

chose not to cross-examine.

We have considered defendant's claims that his religious beliefs were

held against him. Having reviewed the entire record, we find no support for

that claim. Because defendant believes that all of his actions toward his

children are in keeping with God's direction to him and done for His glory, it

logically follows, for him, that any criticism of those actions or conclusion that

they are not in the best interests of the children impugns his religious beliefs.

But that is not the same thing as objectively demonstrating bias.

There is no question but that disputes over child rearing based on the

parents' sincerely held religious beliefs present difficult and delicate issues for

family courts required to make decisions about a child's custody and parenting

time. In making decisions guided by the child's best interests, our "courts do

not choose between religions and entertain no view in that regard. We do no

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more than seek to establish secular rules to minimize the conflicting pressures

placed on the children and permit them to steer a course between the

conflicting views and beliefs of their parents." McCown v. McCown, 277 N.J.

Super. 213, 219 (App. Div. 1994) (citing Asch v. Asch, 164 N.J. Super. 499,

505 (App. Div.1978)).

Here, of course, the parties are not of different faiths, their

disagreements arise out of interpreting the demands of their religious beliefs in

the context of the needs of their three children. Plaintiff has remained a

member of the same church the family belonged to for many years. That the

parties' pastor supported plaintiff's parenting style and values and was critical

of defendant's "excessive corporal punishment," terming his rules for the

family, "extreme, improper and far from the biblical standard" apparently

impelled defendant to leave the family's church. Defendant objected to their

older daughter's singing in a Christmas concert there as part of a choir as

against his religious beliefs. Our review of the record convinces us that the

trial judge asked questions and earnestly tried to understand and be respectful

of defendant's religious beliefs and his perspective on events. We detect no

hint of bias.

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 Defendant's remaining arguments require only brief comment. The trial

judge ordered reports from employability experts to be submitted by January

31, 2016. Defendant did not file his motion seeking to hire a vocational expert

until approximately July 2017, long after the expiration of the discovery period

and only weeks before the August 7, 2017 trial date. Defendant has not

alleged any circumstances beyond his control that prevented him from

engaging a vocational expert sooner, nor explained any efforts he undertook to

comply with the court's order, or why he didn't timely seek an extension of

discovery before the January 31, 2016, deadline. That defendant was

representing himself for some period of time, provides him no excuse for

noncompliance with court orders and discovery schedules. See Rosenblum v.

Borough of Closter, 285 N.J. Super. 230, 24-42 (App. Div. 1995). We find no

abuse of discretion. See Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424

N.J. Super. 448, 478 (App. Div. 2012).

The court's decision regarding the amount of income to impute to

plaintiff, see Storey v. Storey, 373 N.J. Super. 464, 474-75 (App. Div. 2004),

and its decision to order the sale of the marital home, Steneken v. Steneken,

367 N.J. Super. 427, 434-35 (App. Div. 2004), aff’d as modified, 183 N.J. 290

(2005), were both well within the judge's considerable discretion. We likewise

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find no error in the court's award of counsel fees, as the court fully explained

its reasons for the award in the context of the factors listed in Rule 5:3-5(c),

which are supported by the record. See Strahan v. Strahan, 402 N.J. Super.

298, 317 (App. Div. 2008).

Plaintiff concedes that the adoption subsidies should have been included

in her income for purposes of calculating defendant's child support obligation .

See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules,

Appendix IX-A to R. 5:6A, www.gannlaw.com (2020) (noting adoption

subsidies "are counted as income for the parent who actually receives the

benefits (usually the custodial parent))." She argues, however, that another

error, the allocation of tax deductions, essentially nets out the amount of the

subsidies. We express no opinion on plaintiff's position, and remand for

recalculation of child support in accordance with the Guidelines.

In sum, we affirm the judgment, with the exception of the calculation of

child support, substantially for the reasons expressed in Judge Franzblau's

cogent and comprehensive opinion accompanying the judgment. We remand

for recalculation of child support in accordance with the Guidelines, and do

not retain jurisdiction.

Affirmed in part and remanded in part.

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