Turney v. NooneyTurney v. Nooney
The issues herein decided arise from a lengthy and complicated litigation now taking the form of a
The question of custody and visitation by the plaintiff has been before this court on a number of occasions since 1945. Over the years and until September, 1948, the plaintiff‘s right to partial custody and visitation was being gradually enlarged. About that time, plaintiff complained that the rights accorded to him under the order of this court were being denied to him by the defendant and her present husband, John R. Nooney. A contempt proceeding was instituted against the defendant and, at the same time, plaintiff sought the permanent custody of the child. Testimony was taken and the court visited the homes of the defendant and the plaintiff in order to observe at first hand the actions of the child when he was to be given over to the plaintiff for the week-end visit.
On June 30, 1949, this court filed its conclusions, after hearing testimony offered by both sides, wherein it was determined that all orders, heretofore made in this cause, wherein the right of visitation and partial custody of the infant child, Cortlandt R. Turney, Jr., is granted to the plaintiff, be vacated and set aside and that henceforth and until further order of this court, the father, plaintiff in this proceeding, be denied further right of visitation and partial custody of the child. (Emphasis supplied.) An order embracing the terms of the conclusions was signed on July 22, 1949. Thereafter plaintiff appealed the order of July 22, 1949, and the Superior Court of New Jersey, Appellate Division, Jacobs, S.J.A.D., 5 N.J. Super. 392, 398 (November 21, 1949), reversed the order appealed from and the matter was remanded to the Chancery Division for further proceedings in accordance with the opinion filed in the cause. The court observed (p. 398): “(3, 4) Our study of the record has led us to infer that, although the plaintiff has unswervingly endeavored to act as a good father to his son, the defendant has not fully discharged her responsibility and has not sufficiently extended her efforts to the end that the son visit with his father, willingly and happily. We
On December 12, 1949, this court, “Ordered, that pending the further order of this court, that Plaintiff, Cortlandt R. Turney, be and is hereby granted the right of visitation and bi-weekly partial custody of the infant child, Cortlandt R. Turney, Jr., from the close of the school session on Friday until the resumption of school sessions on Monday; the school holidays at Christmas and Easter times of each year and for a period of two weeks in July and two weeks in August of each year until further order of court;” (emphasis added).
“And it is further ordered that defendant be and is hereby required, pursuant to said opinion of the Appellate Division, to extend her efforts and discharge the responsibility and duty required of her to properly prepare said child for said visitation, to the end that said child visits with his said father, willingly and happily.”
By the time the Superior Court, Appellate Division, had announced its findings in the cause (November 21, 1949), the defendant and the infant child had been out of the limits of the State of New Jersey for more than two months. When the order of December 12, 1949, was signed, the plaintiff then
On December 22, 1949, plaintiff filed his verified petition and order to show cause issued thereon directing the defendant to show cause on January 6, 1950, why all orders heretofore made whereunder permanent custody of Cortlandt R. Turney, Jr., was awarded to defendant, should not be revoked, and why permanent custody of said child should not be awarded to plaintiff, and why security should not be required of defendant within the provisions of
On January 6, 1950, plaintiff in Superior Court, Chancery Division, Somerset County, Docket No. C869-49, commenced an action to set aside a conveyance by defendant‘s attorney-in-fact to an employee in his office. The plaintiff‘s cause of action sets up as claims against the defendant the non-payment of
On January 31, 1950, the defendant, through the general appearance of her attorneys, McCarter, English & Studer, sought affirmative relief in this court praying for a stay of all proceedings in execution for costs until a pending motion in connection therewith, before the Superior Court of New Jersey, Appellate Division, was decided, and until the further order of this court. The plaintiff had been awarded costs against the defendant in amount of $1,195.65, and a writ of execution was issued on December 29, 1949. A levy was made on the bank account in the Somerset Hills National Bank, Bernardsville Branch, Bernardsville, New Jersey, standing in the joint names of the defendant, and her husband, John R. Nooney. A notice of an execution sale was advertised in the Bernardsville News, by the Somerset County Sheriff. The sale was to be held on February 6, 1950, at 2:00 P.M., of certain lands and premises in the Township of Bernards, County of Somerset, and State of New Jersey, formerly owned by the defendant — the same property in the challenged conveyance made by defendant‘s attorney-in-fact to his employee. It might be noted here that defendant‘s pending motion in the Superior Court of New Jersey, Appellate Division, 5 N.J. Super. 392, sought to have that court recall its mandate and to set aside the provision for costs therein. The Appellate Division on February 8, 1950, refused to recall its mandate and vacate or retax the costs and this court on February 28, 1950, refused to set aside the said writ of execution. Subsequently the costs were paid, and summary judgment as to this portion of the action to set aside the conveyance was granted by the Superior Court, Chancery Division, Somerset County, Judge Vincent S. Haneman, and the remainder of the cause was ordered consolidated with the custody case pending in this court.
On March 16, 1950, on application of the plaintiff this court issued its further order directing the defendant to have the child in court on May 12, 1950, the return date of the order to show cause. Defendant has objected to this order as being in effect a writ of habeas corpus not served personally. I conclude that since the operative date of the order has passed and since it is not material to a determination of the primary issue of custody, the order has become moot.
Argument has been heard on the order to show cause of March 3, 1950, centering around the desirability of retaining the status quo. My conclusions are, as stated within, that there should be a modification of the order of custody.
Defendant has moved for summary judgment as to the action to set aside the alleged fraudulent conveyance. Plaintiff has moved for the appointment of a sequestrator.
From the above it clearly appears that this court has the power to grant the relief presently sought by the plaintiff. The court has continuing jurisdiction from its previous orders. Moreover the defendant has appeared generally and therefore the court has personal jurisdiction over her.
By the order of December 12, 1949, partial custody was awarded to the plaintiff in accordance with the opinion of the Appellate Division. Since the parents are now separated by 12,000 miles, the only feasible method of awarding custody of a child of tender years is to grant full custody to one or the other. The plaintiff has not seen the child in nearly a year. The defendant‘s affidavits do not state when, if ever, she is returning to the United States or to New Jersey. Some vindication of the father‘s rights and some conclusion to this litigation must be found. Therefore the order of December
In view of the foregoing it would be inappropriate at this time to grant summary judgment as to the action to set aside the conveyance. If security is not furnished as directed it would seem that the plaintiff as beneficiary of an order requiring security may continue the action in that respect so that the sequestration might cover the realty in question.
Appropriate orders in keeping with these findings may be submitted after the same have first been presented to counsel for approval.