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Turney v. Nooney

Decided: November 21, 1949.

CORTLANDT R. TURNEY, PLAINTIFF-APPELLANT,
v.
DINANDA HANSEN TURNEY NOONEY, DEFENDANT-RESPONDENT



Jacobs, Donges and Bigelow. The opinion of the court was delivered by Jacobs, S.j.a.d.

Jacobs

This is an appeal from an order entered in the Chancery Division denying to the plaintiff the further right of visitation and partial custody of his son, Cortlandt Roland Turney, Jr.

The plaintiff and defendant were married in January, 1942, and their son was born in June, 1943. The parties separated in 1944, the mother retaining custody of the child. In 1945, upon the plaintiff's petition, an order was entered granting to him the right of visitation on Sundays upon condition that he pay the sum of $36 per month for the support of his son. In 1946 the plaintiff obtained a decree of divorce in a Florida proceeding in which his wife participated. In 1947, upon the plaintiff's application for permanent custody of his son, the court directed that he have partial custody from every Saturday morning until every Sunday morning. In June, 1948, upon plaintiff's further application for permanent custody, the court ordered that, in addition to the partial custody theretofore allowed, the plaintiff should have his son for a period of two weeks in July and two weeks in August of each year. The views of the Advisory Master, as expressed in conclusions filed in September, 1948, were that there seemed to be little doubt that the plaintiff's visits were not welcomed by the defendant or her present husband; that the son was entitled to the affection, association, and companionship of his father; and that the son's welfare "can best be fostered by a gradual enlargement of the period of custody by the father as the child advances in years."

In November, 1948, a petition was filed by plaintiff alleging that he had not been permitted custody of his son on Saturday, October 9th, and on Saturdays thereafter and seeking to have the defendant adjudged in contempt. In January, 1949, plaintiff filed a supplemental petition setting forth that

on January 7, 1949, he had married Dorothy Treene, a widow, who had been a school teacher and was the mother of two daughters aged fourteen and twelve, that he and his present wife and daughters were living in a residential area of Madison with adequate facilities for his son and seeking an order awarding to him permanent custody of his son. After taking testimony and visiting the homes of plaintiff and defendant the Advisory Master, by order dated March 17, 1949, denied the plaintiff's applications for contempt and permanent custody and directed that the plaintiff's right of visitation be continued for a period of two months "at which time it will be determined by the court whether or not the visitation rights should be enlarged or diminished." Further testimony was taken on May 23rd, June 7th and June 23rd; on July 6th the Advisory Master determined that the previous orders be vacated and that thereafter and until further order of the court, the father be "denied further right of visitation and partial custody" of his son.

The plaintiff is a statistician employed by the Home Life Insurance Company. He is a graduate of Andover and Harvard University. His present wife is a graduate of Pennsylvania State Teachers College. He has at all time been a loving father, has continually evidenced a vital interest in the well being of his son and an awareness of the effects upon his son of the divided custody. His present wife testified that she was very fond of his son and that they "get along very nicely." The Advisory Master found that no essential distinctions could be drawn between the present homes of plaintiff and defendant and that both can provide the child with healthful surroundings and presumably with an intelligent upbringing. He, nevertheless, concluded that the defendant should have exclusive custody without any right of visitation to the plaintiff because of evidence that when the father came for his son the child resisted, screamed and became emotionally upset. These occurrences are not disputed, although there was adequate evidence indicating that they lasted for but a few moments and that, after leaving defendant's home and during plaintiff's custody, the child acted normally, playfully

and appeared to be entirely happy with his father and with Mrs. Turney and her two daughters.

Plaintiff testified that he had no difficulty before October, 1948; that the defendant had denied him any custody between October, 1948, and March, 1949, and that, although he had difficulty thereafter, it has decreased. In his testimony before the Advisory Master on June 7th, 1949, he stated that on Saturday, May 21st, the child did not cry but was smiling when he left with him; that on May 28th there was no unpleasantness and that his son played on that day with Mrs. Turney's daughters at the Beard School where they attend; and that, likewise, on June 4th there were no untoward actions and his son rode his bike, played baseball and attended a birthday party. The plaintiff places responsibility for whatever difficulties have arisen upon the defendant charging that, since October, 1948, she has not only failed to encourage his visits and prepare his boy for them, but has actively resisted them with the consequent influence upon the child. On the other hand, the defendant denies this and suggests that the boy developed a feeling of insecurity with his father in October, 1948, after he had moved from Rumson and had taken his son on overnight trips and, on one occasion, to a hotel in New York City. Plaintiff testified that on these occasions the boy "had a wonderful time."

In April, 1949, the defendant requested Dr. Kinley, a physician specializing in neurology and psychiatry, to witness a visit by the plaintiff. He did so and testified that the child clung to his mother, screamed, and did not want to accompany his father. The doctor expressed the opinion that such weekly occurrences would be detrimental to the child's emotional health and, if continued, would lead to the child being "a nervous and insecure human being." He stated that, although he arrived fifteen minutes before the plaintiff did, the defendant did not, in his presence, mention plaintiff's name or advise the child that his father was coming or make any other preparations for the father's visit. He acknowledged that the boy was open to suggestions as "any five year old youngster" would be. He testified affirmatively when

asked whether the father was quiet and gentlemanly and expressed the view that the situation may be improved if, in lieu of weekly visits, the child remains in each parent's custody for a ...


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