Opinion
Argued October 29th, 1947.
Decided January 29th, 1948.
1. The appellant husband's presence in New Jersey, where the respondent wife and child of the marriage reside, was of his own choosing. The wife did not practice fraud upon the husband and entice him into the jurisdiction so that service of the writ of ne exeat could be effected. Order denying application to vacate the writ, affirmed.
2. Ultcht v. Ultcht, 96 N.J. Eq. 583, distinguished.
On appeal from the Court of Chancery.
Mr. Harry Green, for the appellant.
Mr. Benjamin S. Appel, for the respondent.
This appeal brings up an order of the Chancellor denying an application to vacate a writ of ne exeat.
The parties to this proceeding were married in 1946 and have one child. The wife and child reside in New Jersey. The husband resides in Efland, North Carolina. He has never provided a home for his family and his contributions toward support have been meager. From the affidavits filed in this cause the advisory master could find, as he did, that the wife did not practice fraud upon the husband and entice him into the jurisdiction so that service of the writ of ne exeat could be effected. The husband admits that he "came up voluntarily to discuss the situation with her." His presence in New Jersey was of his own choosing and we think the present case clearly distinguishable from Ultcht v. Ultcht, 96 N.J. Eq. 583, in which there was an agreement that the conference was to be for the purpose of discussing their affairs. The instant case is devoid of evidence of such agreement.
There is pending a motion to stay the present appeal which is denied and the order under review is affirmed, with costs.
For affirmance — THE CHIEF-JUSTICE, BODINE, DONGES, HEHER, COLIE, WACHENFELD, BURLING, WELLS, DILL, FREUND, McLEAN, SCHETTINO, JJ. 12.
For reversal — None.