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Devita v. Devita

Decided: November 19, 1976.

MARIE DEVITA, PLAINTIFF-RESPONDENT,
v.
MICHAEL DEVITA, DEFENDANT-APPELLANT



Lynch, Milmed and Antell. The opinion of the court was delivered by Lynch, P.J.A.D. Antell, J.A.D. (dissenting).

Lynch

[145 NJSuper Page 122] On appeal defendant challenges two provisions of the judgment of divorce between the parties. First he contends that the trial judge erred in the monetary arrangements it made for the children. Defendant maintains that a support order for $350 a week for seven infant children and an order to pay $100 a week into an educational trust fund are improper. Secondly, he argues that the court's order that he not have a female companion staying overnight

in his home when the children of the marriage are visiting him on alternate weekends is arbitrary and constitutes an impingement upon his constitutional right to privacy.

An award of support is within the discretion of the trial judge. Jacobs v. Jacobs , 109 N.J. Super. 287, 297 (App. Div. 1970). It will not be disturbed unless it is manifestly unreasonable, arbitrary or clearly contrary to reason or to the evidence, or the result of whim or caprice. We have examined the proofs with respect to the financial capacity of the parties and we conclude that the award of support, as well as the requirement that $100 a week be contributed to an educational fund are amply supported by the record.

We also conclude that the restriction on defendant's weekend visitations with his children (that his female companion may not spend the night when his children do) was an exercise of discretion and not an abuse thereof. In our review of an issue of custody the conclusions of a trial judge are entitled to great weight and will not be lightly disturbed on appeal. Sheehan v. Sheehan , 51 N.J. Super. 276, 295 (App. Div. 1951). See also Schwartz v. Schwartz , 68 N.J. Super. 223 (App. Div. 1961).

The proofs indicate that defendant has a female friend who, on two occasions at least, has taken weekend trips with defendant, the children of this marriage and her own children. It is true that on those occasions the evidence indicates that both appellant and his companion slept in separate bedrooms with their respective children. There is no evidence that there has been any harmful psychological effect upon the children of the marriage by reason of the frequent presence of the female friend in defendant's household. However, there was testimony that there is at times discord between the defendant's children and those of his companion.

In support of his contention that the imposition of this restriction on his rights of visitation constitutes an impingement on his constitutional right to privacy, defendant cites Feldman v. Feldman , 45 A.D. 2d 320, 358 N.Y.S.

2d 507 (App. Div. 1974), and CC v. CC , 37 A.D. 2d 657, 322 N.Y.S. 2d 388 (App. Div. 1971).

The cited cases are inapposite. They did not involve mere conditions attached to rights of visitation as here. Rather, each involved the more traumatic issue as to whether the mother was to be deprived of custody of the children because of asserted sexual aberrations on her part. When dealing with custody the burden of proof required to show that a mother is guilty of gross sexual misconduct to the detriment of her children is a heavy one. In Feldman and CC v. CC , there was no showing that the mothers' activities adversely affected the welfare of the children; therefore, it was held that the mothers were not so "unfit" as to deprive them of the custody of the children.

It is true that in Feldman Justice Benjamin asserted that the right of a divorced woman to engage in private sexual activities "is within the penumbra of that yet ill-defined area of privacy mandated by the specific guarantees of the Bill of Rights (cf. Griswold v. Connecticut , 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510)." 358 N.Y.S. 2d at 511. But this extension of Griswold is questionable. Griswold , holding that a statute which made the use of contraceptives a criminal offense was an unconstitutional invasion of the right of privacy of married persons, can hardly be said to be relevant to a custody case in which the welfare of the children is paramount. See In re B , 85 Misc. 2d 515, 380 N.Y.S. 2d 848, 857 (Sup. Ct. 1976). Additionally, Judge Christ whose concurrence provided the third vote in the majority of Feldman (the decision was 3 to 2 with three separate majority opinions) did not base his concurrence on any issue of the mother's right to privacy. He said simply: "I do not condone the mother's conduct and believe it to be contrary to good morals. However, the question before us is deeper than this. It is to determine where the children will be best located." And because of "the uncertainty of the accommodations provided by the father" he would not approve the

transfer of custody from the mother to the father. 358 N.Y.S. 2d at 518. In CC v. CC there was no reference to the right to privacy which is here asserted by the father.

We are concerned here solely with a condition attached to visitation rights of the father. More analogous to this issue than Feldman and CC v. CC , are the decisions in People ex rel. Repetti v. Repetti , 50 A.D. 2d 913, 377 N.Y.S. 2d 571 (App. Div. 1975); Fulwiler v. Fulwiler , 538 P. 2d 958 (Ore. App. 1975); In re B, supra.

In Repetti the court (also by a vote of 3 to 2) held (377 N.Y.S. 2d at 573) that the children's visitation to the father's home from 9 A.M. to 9 P.M. on Saturday and Sunday should not be conditioned upon the absence of "another woman to whom [the father] is not related." In the instant case the judge has also not forbidden the presence of defendant's female companion when the children are visiting during the daytime. But it is certainly not unreasonable to see different implications when the woman remains overnight in the father's home in the presence of the children. That is the situation here and it is a more than satisfactory distinction on which to base the restriction.

Fulwiler v. Fulwiler, supra , is pertinent although it lacks exposition of its reasoning. The decision upheld a condition attached to the father's right of visitation which would prohibit him from taking his five year old son "to or with the woman he lives with now unless or until they are married." 538 P. 2d at 960.

Of greater significance to defendant's contentions concerning the violation of his alleged constitutional right of privacy is the opinion in In re B, supra. In that case the court ordered that the custody of a ten-year-old child be changed from the mother to the father. It is true that there was specific proof of the mother's aberrant sexual activities (she was a lesbian) and there was some evidence that the child was emotionally insecure. Concededly there is no such evidence in this case. Nevertheless, the mother there, as the father here, contended that her constitutional rights of freedom

of speech and actions and her right to live her own life style were involved. The ...


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