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Eberhardt v. Eberhardt

Decided: September 17, 1952.

ELSIE E. EBERHARDT, PLAINTIFF-RESPONDENT,
v.
JOHN F. EBERHARDT, DEFENDANT-APPELLANT



McGeehan, Bigelow and Smalley. The opinion of the court was delivered by Smalley, J.s.c.

Smalley

This is an appeal from an order of the Juvenile and Domestic Relations Court of the County of Bergen entered on January 22, 1952, holding the defendant-appellant in contempt. The record leading to the adjudication complained of and the non-appearance by the plaintiff-respondent, perhaps contribute in making the understanding of just what took place in the court below not a simple task.

It would appear, however, that plaintiff and defendant were married on June 20, 1925 and separated in the month of September 1946. On October 6, 1947 plaintiff filed a petition in the Bergen County Juvenile and Domestic Relations Court claiming desertion and non-support, which resulted in an order by that court on October 23, 1947 requiring defendant to pay $60 per week "without prejudice."

In May 1948 defendant went to live in Florida and obtained a divorce and remarried in the latter part of December 1948 in New York City. On February 7, 1951 plaintiff filed another or new complaint in the Bergen County Juvenile and Domestic Relations Court for desertion and non-support, which resulted in an order under date of March 29, 1951 which recites that defendant consented to pay $1,000 to the plaintiff and "Mr. Eberhardt is purged of contempt in the amount in arrears and the defendant shall pay the sum of $10.00 per week starting today, March 29, 1951."

On October 11, 1951 defendant was again in the Bergen

County Juvenile and Domestic Relations Court in response, we believe, to a notice requiring his presence to answer a complaint for desertion and non-support. This hearing was continued to October 25, 1951 and the defendant moved to vacate the order of the court below dated October 23, 1947, as modified by the order of March 29, 1951, relying at least, in part, on the fact that the defendant had obtained a divorce from the plaintiff in the State of Florida on December 7, 1948 and thereby questioned the jurisdiction of the Domestic Relations Court.

The Bergen County Juvenile and Domestic Relations Court, by written opinion filed December 13, 1951, denied the motion, was critical, and properly so, that the Florida decree had not been brought to the court's attention by former counsel, and ordered the defendant to pay the sum of $200 to the plaintiff on or before December 27, 1951.

On January 22, 1952 the following order was entered

"This matter being opened to the Court in the presence of Edward A. MacDonald, Esquire, Attorney for the Plaintiff herein, and George L. Losche, Esquire, Attorney for the defendant, and the court having heard the arguments of counsel and having studied the brief filed herein on behalf of the defendant;

It is on this 22nd day of January, 1952, ordered that the Motion of the defendant to vacate an order of this court, dated October 23rd, 1947, as modified by an order of this court dated March 29th, 1951, be and is hereby dismissed.

It is further ordered that the motion of the plaintiff to hold the defendant in contempt of court for failing to carry out the terms of the order of this court of October 23rd, 1947 as modified by an order of March 29th, 1951, is hereby granted.

It is further ordered that the defendant pay to the plaintiff the sum of $240.00 on or before the 31st day of January 1952 and further that the defendant pay to the plaintiff the sum of ...


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