MICHELLE DILISI VS. GIOACCHINO DILISI (FM-02-0134-13, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5360-17T3
MICHELE DILISI,
Plaintiff-Respondent,
v.
GIOACCHINO DILISI,
a/k/a JACK,
Defendant-Appellant.
____________________________
Submitted March 26, 2019 – Decided May 10, 2019
Before Judges Hoffman and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0314-13.
Gioacchino Dilisi, appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Defendant Gioacchino Dilisi appeals from two Family Part orders
precluding him from taking his daughters to church services at a non-Roman
Catholic Church during his parenting time. We reverse.
I
Plaintiff and defendant divorced in August 2014. In their property
settlement agreement (PSA), the parties agreed to "share joint legal custody" of
their two daughters (then ages eleven and ten), with plaintiff "designated the
Parent of Primary Residence" and defendant "designated the Parent of Alternate
Residence." In addition to weekday parenting time with the children on
Thursdays, and alternating Mondays or Fridays, the PSA provided defendant
"shall have both . . . children every other weekend." The PSA also incorporated
terms from a court order dated December 4, 2013, which provided, "The parties
acknowledge that the children shall be raised in the Roman Catholic faith."
In accordance with this provision, the parties' daughters received their
Roman Catholic sacraments. They were baptized, and received their First
Penance and First Communion. When the motion judge issued the orders now
under appeal, the older daughter was preparing for her Confirmation. The
daughters also attend a private Catholic school, with defendant providing one-
half of their tuition. However, for several months prior to the motions under
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review, during his parenting time, defendant had both daughters accompany him
for Sunday services at Emergence Church, a nondenominational Christian
Church in Totowa.
In January 2018, defendant emailed plaintiff multiple times, seeking her
permission to take the daughters on vacation during their winter break from
school. After plaintiff did not respond to his request, defendant filed a motion
to enforce litigant's rights. In response, plaintiff filed a cross-motion containing
twenty-one requests for relief, including an order precluding defendant "from
taking the girls to a non-Roman Catholic Church." Defendant then filed a
motion opposing plaintiff's cross-motion.
On May 2, 2018, the motion judge issued two orders: one granting
plaintiff's cross-motion to preclude defendant from taking the daughters to a
non-Roman Catholic Church, and the second denying defendant's motion to
order plaintiff to refrain from obstructing or criticizing defendant's efforts to
take the daughters to the non-denominational church. The second order further
stated, "Defendant shall only take the children to a Roman Catholic Church."
The judge interpreted the PSA provision "that the children shall be raised in the
Roman Catholic faith," as meaning "if anyone's going to take them to church[,]
that's the church they have to go to." Defendant now appeals from the May 2
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orders, arguing that taking his daughters to a nondenominational Christian
church did not violate his acknowledgement "that the children shall be raised in
the Roman Catholic faith," and that the orders are otherwise "constitutionally
impermissible."
II
In recognition of their expertise in family members, we accord "great
deference to discretionary decisions of Family Part judges." Milne v.
Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citing Cesare v. Cesare,
154 N.J. 394, 413 (1998)). The trial court's findings "are binding on appeal
when supported by adequate, substantial, [and] credible evidence." Cesare, 154
N.J. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474,
484 (1974)). However, "[a] trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
Absent a contractual mandate, the custodial parent has the right to
determine the religious upbringing of his or her children. Feldman v. Feldman,
378 N.J. Super. 83, 91 (App. Div. 2005); Brown v. Szakal, 212 N.J. Super. 136,
140 (Ch. Div. 1986). "[I]t is in the best interest and welfare of the children . . .
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that the custodial parent be the one to control their religious upbringing. "
Feldman, 378 N.J. Super. at 92 (quoting Brown, 212 N.J. Super at 140-41).
However, this rule does not prohibit non-custodial parents from taking
their children to other religious services or exposing their children to other
cultural practices during that parent's visitation time. Feldman, 378 N.J. Super.
at 96. In fact, we noted that such a prohibition would violate the constitutional
rights of non-custodial parents. Ibid.In Feldman, the non-custodial mother sought to compel the custodial
father, who had been raising their children in the Jewish faith, to enroll their
children in Catholic Confraternity of Christian Doctrine (CCD) classes. Id. at
87. The trial court denied this request, concluding it would interfere with the
father's right, as the custodial parent, to determine the religious upbringing of
the parties' children. Id. at 90. The non-custodial parent appealed and we
affirmed, because permitting "the non-custodial parent to formally educate the
children in a second religion . . . runs contrary to the right that the primary
caretaker has to educate the children in the religion of [that parent's] choice."
Id. at 96. However, we clarified that our "decision does not prohibit the mother
from taking her children to religious services of her choice during her visitation,
which is her constitutional right." Ibid.A-5360-17T3
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In Brown, a divorced couple's PSA designated the Jewish mother the
custodial parent and made her responsible for the religious upbringing of the
parties' children. 212 N.J. Super. at 138. The mother successfully obtained a
trial court order precluding her Catholic ex-husband from feeding the children
non-Kosher foods and from violating the Sabbath during his visitation time. Id.
at 139. The father appealed and we remanded the case to the Family Part, which
vacated its previous order, concluding it could not constitutionally "impose upon
the father the affirmative obligation of observing the laws of his children's
religion when he visits with the children" absent "evidence that non-observance
of Jewish law during visits with the father would endanger the children's
physical, temporal or religious welfare." Id. at 144.
The Family Part in Brown emphasized that a "judicial decision which
compels or prohibits an act is 'state action'" and "[s]uch state action by a court
cannot transgress constitutional protections." Id. at 139. Accordingly, "the
decisions of [the Family Part] must neither violate the mother's or the children's
constitutional right to religious freedom nor permit the imposition upon the
father of the mother's religion which . . . would violate the father's constitutional
right of freedom of religion." Id. at 139-40. While the custodial parent's right
to control the religious upbringing of her children takes precedence, we cannot
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issue an order that unduly limits the secondary caretaker's religious freedom. Id.
at 139-40.
Thus, we must determine whether defendant interferes with plaintiff's
right as the custodial parent to raise the parties' children in the Roman Catholic
faith, when he takes his daughters to a nondenominational Christian Church
during his visitation time. If not, the motion judge's order barring defendant
from doing so unconstitutionally impinges upon his religious freedom.
The record shows the daughters were baptized, received their First
Penance and First Holy Communion, and now attend Catholic school. One year
ago, defendant's elder daughter prepared for her Confirmation. The record
contains no evidence indicating defendant taking his daughters to a
nondenominational Christian Church interfered with plaintiff's right to raise the
daughters in the Roman Catholic faith. It is clear that plaintiff is raising the
parties' daughters in the Catholic faith and attending non-Catholic Church
services with defendant every other Sunday did not hinder plaintiff's ability to
determine the daughter's religious upbringing. Therefore, the motion judge's
orders unduly restricted defendant's religious freedom without adequate,
substantial, or credible evidence to justify such a restriction.
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Our reversal here is consistent with Feldman and Brown. Defendant
sought to take his children to a nondenominational Christian church every other
weekend. He did not attempt to provide his daughters with formal religious
instruction in another faith or to disrupt their Catholic education. The trial
court's orders essentially imposed upon defendant an affirmative obligation to
practice plaintiff's religion because the order left defendant with a Hobson's
choice: take the daughters to a Catholic Church or to no church at all. Because
no evidence indicates defendant's bi-weekly non-Catholic churchgoing with his
daughters interfered with plaintiff's rights as the custodial parent, such an
imposition on defendant's religious freedom is impermissible.
As we noted in McCown, "The courts do not choose between religions."
277 N.J. Super. at 219. Nor do we "prevent exposure to competing and pulling
religious ideas and rituals." Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div.
1978). We instead "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" to effectuate "the legitimate expectations of
each of the parents with respect to their children's upbringing" and to ensure the
best interest of the children. McCown, 277 N.J. Super. at 219; Asch, 164 N.J.
Super. at 505. Furthermore, children should "have the opportunity to participate
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in the cultural household routine and religious practices of both parents."
McCown, 277 N.J. Super. at 220.
We conclude the orders under review interpreted the language of the
parties' PSA too broadly, impermissibly impinging on defendant's religious
freedom and unreasonably denying the parties' daughters the opportunity to
participate in their father's religious practice.
Reversed.
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