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White v. White

Decided: May 12, 1954.


Tomasulo, J.s.c.


Plaintiff and defendant were married in 1935 and lived together as man and wife until the defendant's first physical separation of the plaintiff in 1951, just prior to the birth of their second child. On this occasion he withdrew himself from their bedroom because as plaintiff testified, defendant "found me distasteful, and he was going to sleep in the back." Defendant continued to support his family while residing with them until March 7, 1953 when he deserted the plaintiff and their two children while she was out for the day, leaving a note for the plaintiff which reads as follows:

"(1) Joint checking account has been closed out.

(2) All store 'charge accounts' have been closed out.

(3) Have arranged for all necessary household bills to be sent to 47 Worth Street, New York. Taxes, water, gas, electric, soft water service, telephone, trash removal, Farragut.

(4) I can be reached at office.

(5) Check will be sent to you for the baby.

Check will be sent for you and house, (separate). Bud is taken care of at school."

Exhibit P-2. Defendant, in his leave-taking, had removed all his belongings including his bed, a coffee table, cocktail shakers, liquor glasses, tools, lawn mower and other miscellaneous items. Subsequently, when defendant failed to support [32 NJSuper Page 385] his family, plaintiff instituted the instant maintenance action and the ancillary attachment proceeding. In the latter phase of the proceeding, the sheriff attached the interest of the defendant in premises known as 209 Holly Street, Cranford, New Jersey, title to which was vested in the name of Wrifford White, a brother of the defendant. The attachment embraced, inter alia , the defendant's interest in 209 Holly Street as well as the rents thereof. Originally, title to these premises purchased in 1935 was vested in the names of both plaintiff and defendant and the rents thereof totaling approximately $295 a month, were collected by the defendant and deposited in their joint account up until the time of his desertion. Subsequent to the acquisition of 209 Holly Street and in anticipation of purchasing another home in Cranford on Hampton Road, the defendant suggested to the plaintiff, that in the interest of tax savings, that it would be desirable to take title to the Hampton Road property in his mother's name, and that this being done, that an "even swap" would be effected by the medium of which they, the plaintiff and the defendant, would convey the Holly Street premises for the Hampton Road premises, thus obviating a tax problem. Accordingly, plaintiff joined in a deed to the Holly Street property to defendant's mother. The latter did not pay any consideration for the transfer or toward the purchase price of the Hampton Road property. The deed to her was executed early in 1951 and was dated February 23, 1951 and recorded on June 8, 1951. Exhibit D-1. At the time of the execution of the deed to her, the defendant's mother executed a deed back to plaintiff and defendant which never became effective. Defendant's mother retained title to the Holly Street property until she conveyed it to the claimant Wrifford White by deed dated January 9, 1953 and recorded January 21, 1953. Exhibit D-2. During all this time, the defendant received the benefits of the rentals from this property. Upon the institution of the attachment proceeding, the claimant, having been noticed of the pendency of the proceeding by mail and through newspaper advertisement, retained counsel and filed a claim of property in these proceedings,

challenging the propriety of the attachment. An ad interim motion by claimant to quash the attachment as well as a counter-motion to dismiss the claim of property were denied pending an inquiry into the merits of the respective contentions of the plaintiff and the claimant. The hearing developed the facts which I have found, supra.

At the conclusion of the hearing, I was of the opinion that the defendant, Edward V. White, IV, had already conceived the idea and had already made up his mind to thereafter desert his wife and family, and that the transfer of the title to his mother comprised a part of his scheme to divest himself of his assets and to place them beyond the reach of his wife in the event of any attempt by her to claim the same subsequent to his planned desertion. That a deed was re-executed by his mother to both plaintiff and defendant, indicates to me that his mother was but a straw person, lacking any beneficial interest in the premises in question. The effect of this gesture was to disarm the plaintiff and to lull her into a sense of security, soon to be lost to her by reason of defendant's desertion. While it is true that defendant did not actually leave the bed and home of the plaintiff until March 7, 1953, the separation, in effect, had its onset just before July 14, 1951, about the time of the birth of their daughter, Nancy Ann. It will be seen therefore, that the deed to defendant's mother preceded the separation only by a few months -- February 1951 -- and in my judgment was preconceived and planned by defendant as I have indicated. The further devolution of the title to the claimant by the defendant's mother on January 9, 1953, was calculated by the defendant to further enmesh the Holly Street property in a web and, by additional circumstances, calculated to lend to the series of ...

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