Yannas v. Frondistou-Yannas

• Decision Date: 20 August 1985
• Docket Number: FRONDISTOU-YANNAS
• Citation: 481 N.E.2d 1153,395 Mass. 704
• Parties: Ioannis V. YANNAS v. Stamatia(and a companion case). 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1153

481 N.E.2d 1153

395 Mass. 704

Ioannis V. YANNAS v. Stamatia FRONDISTOU-YANNAS (and a companion case).¹

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued May 7, 1985.

Decided Aug. 20, 1985.

Edward Mahlowitz, Cambridge (Philip S. Shaw, Cambridge, with him), for Ioannis V. Yannas.

Monroe L. Inker, Boston (Margot A. Clower, Boston, with him), for Stamatia Frondistou-Yannas.

Before WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

WILKINS, Justice.

Each party to these cross-actions for divorce has appealed, challenging aspects of the divorce judgment but not the dissolution of the marriage. The most significant issue is whether the judge, having awarded physical custody of the parties' two minor children to the wife, properly authorized her to take the children to Greece to live. The judge's task was to assess the effect of such a move on the children in circumstances in which the move would clearly benefit the wife but would adversely affect the father's right to visit his children regularly.

On October 16, 1984, substantively identical judgments were entered granting a divorce nisi in the cross-actions for divorce on the ground of the irretrievable breakdown of the marriage (G.L. c. 208, § 1B [1984 ed.] ). The judge granted each parent "joint legal custody" of the minor children and the wife "physical possession of the minor children." He further allowed her to remove the children to the Republic of Greece. He gave the husband the right to take the children for six weeks each summer, for one week at Christmas time, and for one week each spring, with the cost of transportation to be shared equally. He awarded the wife $300 a week as alimony and child support. He also made rulings concerning the distribution and division of property. Each party has appealed. We allowed the husband's application for direct appellate review. The husband challenges the custody award, the authorization of the wife to take the children to Greece, and the award of alimony. The wife challenges the property division. There was no error. We affirm the judgments.

In findings, carefully documented by references to the transcript and exhibits, the trial judge made findings of fact concerning custody, the wife's request to remove the children to Greece, and the division of property. The husband and wife were married in Athens, Greece, in 1968. A daughter Tania was born in Massachusetts in September, 1973, and a son Alexis was born here in May, 1977. The husband was born in Greece, came to this country as a student in 1953, and became a citizen of the United States in 1976. The wife was also born in Greece. She came to this country in 1969, following their marriage, and also became a citizen of this country in 1976. Following his graduation from Harvard College in 1957, the husband studied at the Massachusetts Institute of Technology (M.I.T.) and at Princeton University, from which he received a Ph.D. degree in physical chemistry in 1966. He became an assistant professor at M.I.T. in 1966, received tenure in 1973, and became a full professor at M.I.T. in 1978. He is a world renowned scientist and is the coinventor of an artificial skin designed for the treatment of severe burn victims.

The wife, after studies in Greece, received a degree in civil engineering from M.I.T. in 1970 and in 1973 received a master's degree from M.I.T.'s Sloan School of Industrial Management and a doctoral degree in civil engineering from M.I.T. She was the first woman to become an assistant professor of civil engineering at M.I.T., but in 1978 her appointment was not renewed. She is an internationally recognized expert on the properties of concrete and construction economics.

The parties' continued association with Greece and their Greek heritage is substantial. The children (as well as the parents) are fluent in both English and Greek. The live-in babysitters the family hired to help with the children were Greek and spoke Greek almost exclusively. The children receive five hours of Greek instruction each week and have Greek and American books and records. From 1975 to 1981, inclusive, the family traveled to Greece each summer, except for the year in which Alexis was born. The husband has maintained close association with Greece. He traveled to Greece every summer between 1969 and 1981. He has an interest in an apartment and a cemetery tomb in Athens and has lectured there often.

The family of each parent holds high social status in Greece. The wife is the only child of an illustrious Greek couple. Her father was a hero in the war against the Nazis and later against the Communists. He served as chairman of the Joint Chiefs of Staff in the Greek Military, as a member of Parliament, and as Secretary of Transportation. Her mother was one of the first women to earn a law degree in Greece. The wife has been an officer in the Greek National Science Foundation and a consultant to the Greek Secretary of Public Works. She is a licensed engineer in Greece, but not in this country. She was the first woman to be a member of the board of directors of the largest corporation in Greece. She has been offered employment in Greece that will provide her with opportunities for professional growth and with greater financial security than she could obtain in this country. Her search for employment in Massachusetts has been in vain. If she lives in Greece, she will be entitled to a pension from the Greek government and will be able to use real estate and personal property she owns there. There was evidence that Greek courts would enforce custody orders entered in this country.

The children have been accepted at an outstanding school in Greece, which their father attended. Tania attended that school and performed well when the family was in Athens during one of her father's sabbatical years (1979-1980). Each child makes friends easily and is an excellent student. They are acquainted with Greek culture. Both grandmothers live in Greece, as do various cousins, aunts, and uncles. The children have expressed a wish to continue to live in Newton and vacation in Greece in the summer. With permission of counsel, the judge visited the children in their home and talked with them at length. He made no findings as to what the children told him.

From his basic findings and from his consideration of the evidence, the judge arrived at several more general conclusions. If the wife is unemployed, the parties' standard of living will fall when they attempt to set up two households. The husband and wife are responsible and can communicate in regard to the children. The wife feels an increased sense of personal security in her native land. A move to Greece will enhance the children's exposure to their Greek heritage and language. The children will not encounter a language barrier or "culture shock" from such a move. The continual stress on the wife and her unhappiness if she must stay here will probably have an adverse effect on the children. The wife has stated that she will make every effort to see that the children continue to be close to their father.

The judge concluded that the wife is a very nurturing and loving mother, and was the parent who took care of most of the daily housework and the children's physical needs. He found, therefore, that the wife had assumed primary responsibility for the children's care. He also found that both parents love their children, and that the husband has taken an active interest in them, particularly since the parties filed for divorce.

1. The husband argues that there should be a presumption in favor of joint custody of minor children and that the trial judge failed to recognize that presumption. There is no such presumption in the broad terms asserted. The judge did award joint or shared legal custody, which G.L. c. 208, § 31 (1984 ed.), defines as "a continued mutual responsibility and involvement by both parents in decisions regarding the child's welfare in matters of education, medical care, emotional, moral and religious development." As we have said, he awarded physical custody, or possession of the children, to the wife.

We reject the husband's assertion that the law of the Commonwealth favors or should presumptively favor joint physical custody. Nothing in G.L. c. 208, § 31, supports such a view. Indeed the reference in § 31 to shared legal, as opposed to physical, custody suggests an intention to make a distinction between the two forms of custody. A 1983 proposal that § 31 be amended to provide that "[t]here shall be a presumption that an award of joint custody is in the best interests of the minor child" (1983 Senate Bill No. 2080) was not incorporated that year in the most recent amendment of § 31. St.1983, c. 695. No State to our knowledge has adopted by judicial decision a presumption in favor of joint physical custody. There is, however, a tendency in this country in favor of joint legal custody. See Folberg, Joint Custody Law--The Second Wave, 23 J.Fam.L. 1, 3-4 (1984).

There is no apparent reason to believe that joint physical custody is presumptively preferable in all child custody disputes. The matter of physical custody is appropriately left to the judge for determination unfettered by any presumption in favor of joint physical custody. There is also no reason to conclude, as the husband suggests, that joint physical custody is required by constitutional principles of right-to-privacy or due process of law or that a "clear and convincing" standard of proof should be imposed on anyone seeking custody other than joint physical custody.

The judge was warranted in concluding that physical custody in the wife was in the best interests of each child. There was extensive evidence concerning the children's relations with their parents. The judge addressed the needs of the children and considered the physical care that each parent gave to each child. The fact that the evidence might have warranted a different...