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Turney v. Nooney

Decided: May 22, 1950.


Hegarty, A.m.


[9 NJSuper Page 334] The issues herein decided arise from a lengthy and complicated litigation now taking the form of a

consolidated action for custody and to set aside an alleged fraudulent conveyance, and for its understanding the history below is set forth.

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

recognize that the described incidents, if continued, may be harmful to the child and steps should be taken to avoid them, but we do not agree with the Advisory Master's drastic conclusion that the solution lies with complete termination of the father's right of visitation. With the expiration of time, this expedient will completely estrange father and son. We believe that, rather than decreasing the father's right of visitation, the proper direction may well be toward increasing it. Perhaps he should have custody of his son during the forthcoming holiday periods when school is not in session. Perhaps bi-weekly visitation over the entire week-end will be more effective. In any event, it is not our purpose to fix the precise times of visits or partial custody; that should be left to the Advisory Master whose intimate supervisory control will continue and permit, if necessary, frequent changes designed to insure the result that the child will have the love and consortium of both parents."

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

learned that the child was in India or on his way to India with the defendant.

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 R.S. 9:2-2. The order provided the manner in which service on defendant might be made, i.e. , by serving a copy of the order to show cause and of the verified petition upon Anna Simpson in charge of the defendant's home at Basking Ridge, Somerset County, New Jersey, or her attorney, William Botzow, Esq., 50 Broadway, New York City, New York. The defendant, appearing specially and solely by her attorneys, McCarter, English & Studer -- for the purpose of making the motion -- moved to set aside the service thus made on Mrs. Simpson and William Botzow, and to dismiss the plaintiff's petition and the order to show cause issued thereon. The motion was granted in part when it appeared that neither Anna Simpson, nor William Botzow, had authority to accept for the defendant the service of the said petition and order to show cause. Plaintiff's petition and order to show cause were not dismissed to the end that plaintiff, pursuant to ...

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