Kavrakis v. Kavrakis

• Decision Date: 31 August 1984
• Parties: Sophia KAVRAKIS, Plaintiff, v. John KAVRAKIS, Defendant.
• Court: New Jersey Superior Court

Page 385

196 N.J.Super. 385

482 A.2d 958

Sophia KAVRAKIS, Plaintiff, v. John KAVRAKIS, Defendant.

Superior Court of New Jersey, Chancery Division Family Part, Bergen County.

Decided Aug. 31, 1984.

Richard Greenberg, Newark, for plaintiff.

Louis Serterides, Jersey City, for defendant.

KRAFTE, J.S.C.

If a child is of suitable age to signify consent to residential removal from the State of New Jersey with one "divorced or separated" parent, and does in fact signify such consent, does this Court have the authority to prohibit such removal at the behest of the remaining parent? No reported cases have been found in New Jersey, nor in any other jurisdiction which have addressed this particular aspect of the so-called "Anti-Removal" statute, N.J.S.A. 9:2-2.

In custody matters, courts are faced with the task of achieving the proper balance between the competing interests of the children, mother and father. To insure such a balance, and among other things, New Jersey's policy concerning the removal of minor children of divorced or separated parents from this State is provided in N.J.S.A. 9:2-2, which reads as follows:

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without consent of both parents, unless the court, upon cause shown, shall otherwise order.

The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes are shall be deemed proper to effect the purposes of this section. [Emphasis supplied].

In the case at bar, the issue presented deals specifically with the emphasized language, "... they (the children) shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same...."

The facts presented are as follows:

Plaintiff-wife filed a motion for pendente lite support and maintenance for herself and the two minor children born of the marriage, Emmanuel, 15, and George, 14. Plaintiff claimed that on or about February 12, 1984, she was forced to leave the State of New Jersey because of the continual mental and physical abuse received from defendant. Since the plaintiff has no family in New Jersey, she claims it was necessary for her and the children to move to Salt Lake City, Utah, where she moved into her parents' two family home. This was a unilateral action, done without defendant's consent or court order. Plaintiff, subsequently, made application for pendente lite relief and by order dated May 29, 1984, this Court concluded that plaintiff had, at first blush, apparently violated the provisions of N.J.S.A. 9:2-2 in such unilateral removal of the children from this jurisdiction. Plaintiff's request for alimony was denied. Child support was ordered at $30.00 per week per child, said payment to be made through the Bergen County Probation Department in a "hold account" subject to further order of this Court. See Daly v. Daly, 21 N.J. 599, 123 A.2d 3 (1956); Parivash v. Yousef, 89 N.J.Super. 133, 214 A.2d 314 (Ch.Div.1965).

Plaintiff has now filed a second motion returnable June 15, 1984, requesting that all child support payments be released and disbursed directly to plaintiff.

On June 29, 1984, by virtue of a telephone conference call between this Court and the parties' attorneys, it was agreed that the child support payments would be released without prejudice and disbursed to plaintiff until the matter was argued orally, and until the further order of this Court. Such oral argument was held.

In considering the removal of children from this jurisdiction, the court usually is obligated to apply the principles set forth in D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 365 A.2d 27 (Ch.Div.1976), affirmed o.b. 144 N.J.Super. 352, 365 A.2d 716 (App.Div.1976); Middlekauff v. Middlekauff, 161 N.J.Super. 84, 390 A.2d 1202 (App.Div.1978); and Helentjaris v. Sudano, 194 N.J.Super. 220, 476 A.2d 828 (App.Div.1984). However, in the cited cases, the presenting problem was, basically, whether court permission should be afforded to the "removing" parents, with no court considering the quoted language of N.J.S.A. 9:2-2 above.

Plaintiff submits two notarized affidavits from the children. Both affidavits are identical and read as follows:

I, ____________, age __, willfully and freelingly left New Jersey to go out of state on my own accord with my Mother due to the violence and extreme cruelty between my parents.

S/___

Also forwarded to the Court were copies of the children's recent report cards, which illustrated how well the children are doing and how they have adjusted to a different lifestyle. Plaintiff claims that the children's grades have greatly improved and that the oldest child made the scholarship honor roll for the last quarter.

This Court is now called upon to interpret the said quoted section and to determine legislative intent. As an aid in determining what constitutes "suitable age", legislative history was sought but, unfortunately, none exists. The Court in Meredith v. Mercer Cty. Freeholder Bd., 117 N.J.Super. 379, 285 A.2d 27 (Law Div.1970), affirmed 117 N.J.Super. 368, 285 A.2d 21 (App.Div.1971), affirmed 59 N.J. 530, 284 A.2d 529 (1971) held that:

When the Court does not have available to it reasons or intentions of the Legislature when adopting a specific piece of legislation, the Court must derive the intent of Legislature from a view of the whole and of every part of the statute to make sense out of the legislation.

In reviewing N.J.S.A. 9:2-2, as a whole, this Court must initially determine whether the language used by the Legislature "... of suitable age to signify consent" ..., is clear on its face or whether this Court must interpret it.

A studied examination of the statute leads to the inescapable conclusion that the legislative language is perfectly clear. It means exactly what it says.

The words "of sufficient age to signify same" (consent to removal) clearly and unequivocally contemplate a child with the maturity and capacity to reason and to arrive at an intelligent decision; a child who has attained such age coupled with such emotional and mental development as to appreciate the attendant circumstances and the full consequences of such move.

When a statute is...