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In re Schuler

Decided: July 13, 1972.

IN THE MATTER OF LAWRENCE J. SCHULER CHARGED WITH CONTEMPT OF COURT


Labrecque, Kolovsky and Allcorn.

Per Curiam

Pursuant to leave granted defendant Lawrence J. Schuler appeals from the denial of his motion to vacate and set aside his arrest for failure to comply with an order of the Essex County Juvenile and Domestic Relations Court.

To the extent here pertinent the facts briefly are as follows. Plaintiff and defendant were husband and wife. On January 16, 1971 plaintiff filed a complaint in the Essex County Juvenile and Domestic Relations Court seeking support for herself and her three children. On February 13, 1971 defendant, reciting New Jersey as his residence, instituted an action in the Chancery Division for divorce. His wife filed an answer and counterclaim.

On August 1, 1971 defendant took his three children to Florida, ostensibly to visit his mother. When defendant returned to New Jersey some three weeks later without the children a warrant for his arrest awaited him for his failure to appear at a hearing in the Juvenile and Domestic Relations Court scheduled for August 19, 1971. Eventually an order dated September 3, 1971 was entered in that court (consented to by him) which required him to return the children to his wife by September 6, 1971 and to make certain payments toward support. The order fixed September 13, 1971 as the (peremptory) hearing date and he was paroled in the custody of his attorney until that date.

When defendant failed either to return the children to New Jersey or to appear on September 13, 1971, an order was issued for his arrest for contempt of court.

The divorce action instituted by defendant was scheduled for trial on October 27, 1971. Prior to the commencement of the trial and while defendant was in attendance at court with his attorney the arrest warrant was served. He was held in $1,000 bail for a hearing on November 1, 1971.

At the November 1 hearing defendant urged that he had become a resident of Florida and was immune from arrest. The court was not impressed and fixed bail in the sum of $500 pending a hearing before another judge pursuant to R. 1:10, on the merits of the contempt charge.

Defendant raises two points: (1) a person who comes into this State voluntarily in obedience to a subpoena is exempt from arrest, (2) a nonresident who comes into the State as a litigant in a civil action is likewise exempt.

In support of his first point defendant relies upon N.J.S.A. 2A:81-21 which provides, in pertinent part:

If a person comes into this state in obedience to a summons directing him to attend and testify in this state he shall not, while in this state pursuant to such summons, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

The cited provision was first enacted as a portion of L. 1941, c. 88 entitled a "Uniform Act to secure the attendance of witnesses from within or without the state in criminal proceedings." See R.S. 2:97-27 to 33. That act is now embodied in N.J.S.A. 2A:81-18 through 2A:81-23. These six sections are to be construed together. N.J.S.A. 2A:81-20 provides the mechanism for summoning out-of-State witnesses to testify in criminal prosecutions or grand jury investigations in this State. Florida, of which defendant now claims to be a resident, has enacted a similar uniform act. F.S.A. ยงยง 942.01-942.06. The general procedure to be followed should a state seek to procure the attendance of an out-of-state witness under the authority of ...


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