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Scheuplein v. Scheuplein

Decided: April 16, 1952.

BERTHA ELIZABETH SCHEUPLEIN, GUARDIAN AD LITEM OF EDWARD JOSEPH SCHEUPLEIN, AN INFANT, AND BERTHA ELIZABETH SCHEUPLEIN, PLAINTIFFS,
v.
ERNEST GEORGE SCHEUPLEIN AND MARY M. SCHEUPLEIN, DEFENDANTS



Goldmann, J.s.c.

Goldmann

Defendant Mary M. Scheuplein (hereinafter referred to as "Mary") moves to dismiss the complaint filed by Bertha Elizabeth Scheuplein (hereinafter referred to as "Bertha"), individually and as guardian ad litem of her son, Edward Joseph Scheuplein ("Edward"), now over 18 years old. Plaintiffs are Connecticut residents. The defendants are the moving party and her husband, Ernest George Scheuplein ("Ernest"). The following facts appear from the complaint and affidavits:

Plaintiff Bertha married defendant Ernest on May 17, 1932. Edward, born soon after, is the only son of the marriage. Bertha and Ernest moved to Florida in 1940; Ernest continued to reside there until August, 1942, and Bertha until June, 1943. In January, 1943, Bertha instituted proceedings in Florida against her husband Ernest for an absolute divorce. The final decree in her favor was entered April 12, 1943. It made no provision for payment of alimony, or for the support, maintenance or custody of the infant, Edward. The final decree provided that the Florida court "retains jurisdiction insofar as custody of said minor child may arise." The decree has never been appealed, no further action has ever been taken thereunder by plaintiff, and it remains in all respects unimpeached.

In January, 1946, Bertha filed her bill in our former Court of Chancery seeking support for her son Edward, security therefor, counsel fees and suit money. Docket 155/115. Defendant Ernest was personally served in this State. The action was dismissed on plaintiff's motion on March 18, 1946, without prejudice. She claims the dismissal was induced by defendant Ernest, who persuaded her to enter into an agreement, executed February 18, 1946, by whose terms custody of Edward was to remain with the

mother, with certain visitation rights in the father; the father was to pay $50 on the first of each and every month, beginning February 1, 1946, for the child's support, together with a counsel fee and costs; and plaintiff was to discontinue the pending Chancery action.

The complaint alleges that defendant Ernest made payments under the agreement until February 15, 1950, and that as of April 1, 1951, arrearages totaled $1,337.50. (Plaintiff's affidavit states the arrearages first began in 1947, allegedly due to defendant's illness, and continued for some 13 months; the last payment was March 31, 1950.)

The complaint further alleges that on May 8, 1946, defendant Ernest bought a property at 1703 Lawrenceville Road, near Trenton, title being taken in both defendants' names. (It would appear that Ernest married Mary soon after the Florida final decree was granted.) On January 3, 1951, Ernest transferred all his interest in this property to Mary for $10 -- the affidavit attached to the complaint shows that $5.50 in federal stamps were attached to the deed -- allegedly in order to defraud plaintiff Bertha. Her affidavit explains this more fully by stating that the conveyance was to make impossible any judgment she or her son might recover against defendant Ernest. The complaint also alleges that the grantee Mary knew that such was the purpose of the conveyance.

There are two counts to the complaint. By the first, Bertha individually demands judgment for $1,337.50 arrearages under the agreement; reimbursement for $195 she spent for her son's medical and hospital bills; the setting aside of the conveyance and imposition of a lien; suitable support, both for herself and her son; discovery; issuance of a writ of sequestration against the Lawrenceville Road property and the rents and profits therefrom, and custody of Edward. By the second count, Edward, by his guardian ad litem , demands judgment for the stated arrears, the setting aside of the conveyance, a writ of sequestration, and discovery.

The writ of sequestration was allowed by order entered March 30, 1951, and was executed and returned by the Sheriff of Mercer County. Certified copies of the writ, summons and complaint were mailed to each defendant, registered mail, pursuant to the order. Defendant Mary then moved to quash the writ, and this was done by order entered May 16, 1951. Attached to the motion papers was Mary's affidavit stating she had married Ernest on September 26, 1943; that they bought the Lawrenceville Road property in May, 1946, and there were two mortgages thereon, requiring monthly payments of $80 and $68.17; that she and her husband moved to Florida in May, 1947, because of his poor health (the complaint gives this date as January, 1946, but counsel in his memorandum opposing the motion to dismiss uses the date January, 1947); that they then bought a house in Miami, title being in both names; that marital differences arose, so that on January 3, 1951, they made a community property settlement, she conveying all her interest in the Florida property to him in exchange for the conveyance of all his interest in the Lawrenceville Road property to her, the respective interests being valued at $5,000; that the transfers were made without intent to defraud; that she owes no legal obligation to plaintiffs, and that defendants are Florida residents.

Defendants were personally served in Miami, Florida, with the complaint, affidavits and summons by a Florida attorney on June 27, 1951, allegedly pursuant to Rule 3:4-5(b). Defendant Bertha has appeared; defendant Ernest has not, and default was taken against him August 16, 1951.

This action, then, is one by plaintiffs who have never been, or claim to have been, residents of this State, against defendants who are admittedly Florida residents. It is equally clear that the marital res (as between Bertha and her former husband, the defendant Ernest) was never in New Jersey; that the divorce was obtained in Florida, whose courts retain jurisdiction over the final ...


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