White v. White
| Decision Date | 12 May 1954 |
| Docket Number | No. M--4455,M--4455 |
| Citation | 32 N.J.Super. 382,108 A.2d 308 |
| Parties | Nancy B. WHITE, Plaintiff, v. Edward WHITE, IV, Defendant. . Chancery Division |
| Court | New Jersey Superior Court |
Ervin S. Fulop, Union, for plaintiff.
Nathan Reibel, Elizabeth, for claimant, Wrifford White.
Plaintiff and defendant were married in 1935 and lived together as man and wife until the defendant's first physical separation from 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.
'(4) I can be reached at office.
'(5) Check will be sent to you for the baby.
Exhibit P--2. Defendant, in his leavetaking, 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 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 transactions an atmosphere of validity--which was theretofore lacking--through the advancement of the mother's claim and her contentions that this conveyance was made by her to the claimant in order to augment his income. Designed to ferret out the truth, the hearings elicited the fact that even after the execution of the deed to the claimant, the defendant continued to receive the income from the Holly Street property. It is difficult to reconcile this with any theory other than that the defendant was still the beneficial owner of the property and that the respective transfers culminating in the vesting of the title in the claimant, comprised a fraud in toto ab initio and I so find and determine. Consequently, the property and its income should be made available to the plaintiff in the discharge of defendant's obligation of support for the plaintiff and their children.
Wrifford White claims that a writ of attachment may not issue in an action for separate maintenance. With this I do not agree. An attachment is authorized under N.J.S. 2A:34--26, N.J.S.A., which reads as follows:
'When a husband cannot be found within this state to be served with process, his estate, property and effects within this state and the rents and profits thereof, may be attached to compel his appearance and performance of any judgment or order which may be made in the action.
'Where the proceedings are by process of attachment and the defendant does not appear, the judgment shall be enforceable only out of and against the property attached.'
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White v. White
...Court, Chancery Division, entered judgment for the plaintiff in attachment, Nancy B. White, defendant-respondent, herein, 32 N.J.Super. 382, 108 A.2d 308. The claimant, Wrifford White, appealed to the Superior Court, Appellate Division. Prior to hearing there we certified the appeal on our ......
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