Helentjaris v. Sudano

476 A.2d 828, 194 N.J. Super. 220
CourtNew Jersey Superior Court Appellate Division
DecidedMay 29, 1984
StatusPublished
Cited by25 cases

This text of 476 A.2d 828 (Helentjaris v. Sudano) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Helentjaris v. Sudano, 476 A.2d 828, 194 N.J. Super. 220 (N.J. Ct. App. 1984).

Opinion

194 N.J. Super. 220 (1984)
476 A.2d 828

DIANA HELENTJARIS (SUDANO), PLAINTIFF-APPELLANT,
v.
JOHN SUDANO, DEFENDANT-RESPONDENT.

Superior Court of New Jersey, Appellate Division.

Argued May 8, 1984.
Decided May 29, 1984.

*222 Before Judges BOTTER, PRESSLER and O'BRIEN.

Phillip Lewis Paley argued the cause for appellant (Kirsten, Friedman & Cherin, attorneys; Phillip Lewis Paley and Lionel J. Frank on the brief).

Herbert M. Korn argued the cause for respondent.

The opinion of the court was delivered by PRESSLER, J.A.D.

Plaintiff Diana Helentjaris appeals from that provision of a judgment of divorce which conditions her right to continued custody of the child of the marriage upon her return to New Jersey from Ohio, where she is presently practicing medicine, *223 and which requires her to establish her residence within a 40-mile radius of defendant's present residence in Passaic County. We stayed that directive pending appeal, and we now reverse.

The parties were married in August 1980. At that time they were both in their early 30's. Plaintiff was a practicing physician with a specialty in emergency medicine, and defendant had earned a Ph.D. degree in physics and was engaged in corporate employment as an engineer. Plaintiff is a native of Ohio and took up residence in New Jersey upon her marriage, obtaining employment as an emergency care physician at Valley Hospital in Ridgewood. Defendant was born in Italy, his family emigrating to the United States when he was 8 years old. He has been a resident of Passaic County since that time.

Plaintiff learned that she was pregnant in August 1981, approximately one year after the marriage. Defendant, however, denied paternity, claiming that since he kept a record of their sexual activity he could state positively that he was not the father. This circumstance, the troubled history of the brief marriage, and the fact that defendant had struck her after she became pregnant resulted in plaintiff's decision to separate from defendant. This she did in August 1981. She continued to work at Valley Hospital but moved to an apartment in Edgewater, New Jersey, in Bergen County. She had no contact whatsoever with defendant after the first several weeks of the separation. Defendant claims that he did not know where she was living. Her explanation was based on her belief that he lacked interest in her and in the unborn child whose paternity he doubted. It is, however, clear that since defendant knew where plaintiff worked, it would not have been difficult for him to communicate with her. At the least, he could have written to her at her place of employment if he were really concerned about her future or the future of the unborn child.

The child, a boy, was born in February 1982, some 6 to 7 months after the separation. Plaintiff gave the child her own *224 surname of Helentjaris, convinced, as she testified, that raising him would be her exclusive responsibility since the defendant had shown no apparent interest. Following the child's birth, however, the defendant did make claim to paternal rights and obtained an order from the court granting him visitation once each week on 48 hours' notice to plaintiff. He did in fact avail himself of this opportunity to see the child but apparently not on a regular weekly basis. He made no offer of financial support for the child.

In the summer of 1982 when the child was 5 or 6 months old, plaintiff left New Jersey and obtained employment in her medical specialty in the Cincinnati area of which she was a native. While she did not give prior notice to defendant of her precise location, she did provide him with her mother's telephone number and a post office box address to which correspondence could be mailed.

She testified to various reasons for her decision to leave New Jersey. Foremost among them was her desire to arrange a work schedule which would provide her with sufficient income to raise the child while at the same time enabling her to spend maximum time with him. At Valley Hospital she was required to work 12-hour shifts, either from 7 a.m. to 7 p.m. or from 7 p.m. to 7 a.m. The schedule was arduous, and the child was left in the care of an employed caretaker. She attempted to revise her working hours at Valley Hospital but was unsuccessful in doing so. She sought employment at various other New Jersey hospitals and applied to several agencies which place physicians. In July 1982 she was offered employment in the Cincinnati area at an emergency care facility at which she had the opportunity of working only 3 days a week for 11-hour shifts each, leaving her free to spend 4 days a week with the child.

This offer was also attractive to her because it permitted her to pursue her medical specialty, it provided her with virtually the same income of approximately $42,000 a year which she *225 was earning in New Jersey, and it afforded her the opportunity of having the child cared for during her working hours by family members, namely, a sister and a great aunt. The Ohio position was also financially advantageous, she testified, since the cost of living in southwest Ohio is less than that in northeastern New Jersey. As an example, she testified that her automobile insurance premium in Ohio is only half of what it was in New Jersey and that, as a condition of her Ohio employment, she is afforded malpractice insurance. In her New Jersey employment she was required to obtain malpractice insurance at her own expense at an annual cost of approximately $3,000. In addition to these advantages, she testified that most of her close family resided in the Cincinnati area and that she had many friends there on whom she could rely for emotional support and assistance. These circumstances are to be contrasted with her residence in New Jersey to which she came as a stranger upon her marriage, and where she had lived for one year with her husband and for one year as a single parent. Of concern to her as well was her belief that the relatively rural environment of her residence in Ohio was healthier for the child than the urban environment of New Jersey and that the educational opportunities in Ohio were also superior.

During the time between plaintiff's move to Ohio in the summer of 1982 and the commencement of this trial in the summer of 1983, defendant obtained a court order permitting him to visit the child in Ohio. He went twice, once in March with his father and once in May with his mother and sister. On both occasions he chose to drive, although there is regular airplane service between Newark and Cincinnati. The flight is about an hour and a half in duration, and plaintiff's home is 25 minutes by car from the airport.

Although defendant had originally claimed custody of the child, his position at trial was modified to demand only that if plaintiff were to be the custodial parent, an arrangement to which he did not object, she should be required to return with the child to New Jersey so that he could develop and maintain a *226 paternal relationship with the infant. Joint custody was clearly out of the question because of the inability of the parents to cooperate, and the trial judge so recognized. See Beck v. Beck, 86 N.J. 480 (1981). Defendant at trial testified to his absolute belief in his paternity of the child, although he admitted that he did initially believe that he was not the father.

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Bluebook (online)
476 A.2d 828, 194 N.J. Super. 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/helentjaris-v-sudano-njsuperctappdiv-1984.