SUPREME COURT

Nelson Evening Mail, Volume LXIV, 4 August 1931, Page 6

SUPREME COURT

DEFENDED DIVORCE CASE DESERTION ALLEGED At the Supreme Court yesterday afternoon before his Honour Mr Justice McGregor, a defended divorce action James Jabez Allen v. Ellen Allen was concluded. The ground for the application was desertion. fill- Fletcher appeared for the petitioner and Mr Moynagh for the respondent. Mr Fletcher said the respondent had filed an answer alleging persistent cruelty, and also praying that her marriage with petitioner be dissolved. Petitioner denied persistent cruelty, and prayed that the petition be rejected. After cross-examination by Mr Moynaglu petitioner in reply to Dir Fletcher, said that when respondent came to his bedroom window she had a knife in her hand. He had cut himself while taking it away. He did not know why she had the knife. He had arranged for the savings from the money he had given to his wife to be banked half for himself and half for his wife. In the first year £35 was placed to each of their credits. When he went on his holiday he invited his wife to accompany him, but she refused.

Robert C. Freeman, baker, residing at Brightwater, said he had known petitioner for about six years, living alongside of him. He had known respondent for about five '"ears. So far as witness knew petitioner had always acted towards his wife as a husband should ; but bis wife passed rude remarks about him.

This was the evidence for the petitioner, counsel reserving the right to call rebuttal evidence if necessary.

RESPONDENT’S EVIDENCE

' Dir Moynagh said he intended to call evidence to show that the treatment of respondent was such that it made her position in the house absolutely untenable.

Respondent said that when slje married petitioner she was a widow, with j three children. She knew petitioner only ! a short time before she married him. She I was a lady’s maid in England. Un- j pleasantness started about a week after marriage owing to petitioner insisting: on sleeping in his working underclothing. When they went to Kohatu she found the house in a very dirty state, and there was insufficient bed linen un- J til her own arrived. She asked her hus-j band for money to buy ordinary do- ’ mestic requirements; but petitioner said he would soon be transferred to Brightwater and it would not be worth while purchasing additional furniture. She, had to ask her husband for what she wanted, and she had to enter the ex- i penditure in a diary every day. He did not hand over all his wages; she had to render an account for every penny she spent. There was trouble over giving religious instruction to petitioner’s daughter; also over Sunday school and church. She objected to taking a two-year-old girl to church at night, and her husband made trouble. Every time she went to town she had to ask for money, which was always spent on household ■ necessities. She never banked any savings from her household money. On one I occasion, when witness came home from town and showed petitioner a bunch of flowers he had knocked them ost of her hand. Describing an incident on the following’night, witness said her husband after some words had pushed her through the door while she was in her dressing gown. She went round to the window, and while doing so she picked up a little knife with the hope of forcing the latch. Petitioner thew up the window, and cut his hand on the knife, at the same time witness receiving a blow on the head from the window. She screamed out and the neighbours came. Afterwards her husband apologised and took her to her room. Petitioner was always warning her about the mental hospital; and on one occasion without her consent had brought Dr. Washbourn.to examine her. Petitioner had also on two occasions without her consent, consulted Dr. Washbourn about her condition. Witness had become run down as the result of the happenings, and she consulted a doctor, as the result of which she was sent to the Public Hospital, where she remained for seven weeks, her husband visiting her about four times. While there she asked her husband for 5s lor clothing, but he refused. He also made trouble over the doctor’s bill. On returning home the state of unhappiness continued. The papei 1 was stopped, and her husband never gave her money. She had a little of her own. In 1928 petitioner sent his daughter away against her (respondent’s) will. She loved the child, and had always cared for it. This caused further trouble. When petitioner went for a holiday he did' not invite her to accompany him. After he came back, he told her one morning that now they were alone he could do what- he liked and say what he liked. He thumped the table. Witness said she could not stand any more, and eventually went into a sort of swoon. Later she sent for Dr. Caselberg, her husband being very much annoyed at him coming. The doctor said to her husband that she was in a nervous and low state i and ordered him to keep right away from her for a full week. On Dr. Uaselberg’s representations Mrs Schroder came to look after her. The doctor made about half-a-dozen visits. When she recovered she consulted Pitt and Moore. Her husband was on his holidays at the time, and left her 15s, saying that would be enough for the fortnight. When he came back she and her husband discussed the fosition of affairs, and went together to itt and Moore’s, where a reconciliation took place. Petitioner said he would try and make things different; but he did not keep his promise and was more cantankerous. Dr. Caselberg had ordered her brandy and wine, but her husband refused point blank to get it; but eventually Mrs Schroder obtained it for her. As she could not stand the insufferable life any longer she decided to leave her husband, taking with her a few per sonal articles. Her health was being very much affected by her treatment, .n October, 1928, she wrote to her husband, in order to let him know where she was living, but received no reply ; she also received no reply to her birthday greetings. She had met him in town one evening and had spoken to him, but he did not respond. In reply to further questions, witness said one day her husband threw two tomatoes at her, one hitting her. When she asked for money to buy a coat her husband told her to sell her fur one. She attributed her husband’s attitude owing to him being moody, hasty tempered and mean. He was always making nasty insinuations. She had done her level best for him, but he did not appreciate it. To Mr Fletcher: When she left her husband she took a flat, in Anstice s buildings, where she remained for about a month.

Jeffrey Bate, telegraph messenger, aged 18 years, said respondent was his mother. Describing the incident on the night his mother was put oul, lie said she appeared to lie very frightened. The home life between his mother and his stepfather was not pleasant, hut the row in question was tin* only one lv' saw. llis mother looked after the house well and so far as he could see never gave any cause for complaint. Cross-examined by Mr Fletcher: He lived with Mr and Mrs Allen until about, three years ago. Petitioner had always been very good to him. Tie had never known him to threaten to strike his mother or to abuse her except by lock-

ing her out one night. Petitioner had said to witness on that occasion, “You can go out, but stie (respondent) is not coming in.” lie bad received 2s a week pocket money, sometimes from his mother and at others from petitioner, 110 had never heard his mother swear at petitioner. To Mr Moynagh: As soon as his mother came to live in Nelson her health improved. Mary Schroder, formerly residing next door to the parties at Brightwater, stated that on the night, of the incident previously referred to she arid her husband went over. Respondent was in her night attire, and was standing outside. She j was very excited. Witness and her husband went into the kitchen along with Mrs Allen staying for about 20 minutes. Witness did not know respondent had been locked out. Witness heard respondent call to her to come over as she got near the house. On another occasion witness was at- the house when Dr. Washbourn called. He just had a conversation with her and did not examino her as to her mental condition so iar as witness was aware. She had iormed the conclusion that Mr and Mrs Allen were not getting on very well together. Cross-examined by Dir Fletcher: So far as she could judge from occasional visits petitioner treated his wife all right. She had never heard him utter a bad word, but had beard Mrs Allen use bad words towards Dir Allen. She had look-, ed after Mrs Allen on two occasions when she was ill. She had seen Mrs Allen drinking port wine at a party; Dir .-.1-len len was not present. Mrs Allen was excitable, when she swore. To Dir Dloynagh: She could not say whether Dir Allen had a narrow outl x.k on life. She knew he xvas a local P 1 Reginald Schroder, husband of the last witness, said when lie went over on the night in question he found Dire Allen clinging to the top sash of a window; her husband was inside. 9he window was open. He lifted her down, and with his wife took her into the kitchen. He did not remember whether Dlrs Allen had an injury to her head Cross-examined by Dir Fletcher: He had never seen Dir Allen act in any otliei way towards Dlrs Allen than as a husband should. This was all the evidence. Dir Dloynagh briefly addressed the Court, submitting that respondent- was entitled to a- decree. , ... . His Honour said it hail been admit Led that respondent had deserted the petitioner. Respondent (jenied that she wilfully deserted him, but safe! it was petitioner’s persistent cruelty that compelled the desertion to take place in fact, the burden of proof of desertion was on respondent, and it seemed to Ins Honour that she had wholly failed to discharge that burden of proof. Referring to the evidence of the respondent, his Honour said she had stated that unhappiness had commenced soon after marriage; but his Honour commented on a letter which respondent had written to her husband saying that they were very happy during their first twelve months of married life. In face of that evidence how was he to believe the rest of the respondent’s story? There had been no coiroboration ' of persistent cruelty, or cruelty at all. The woman was temperamental and became excited, and no doubt exaggerated her story. There may have been faults on both sides, and he did not wonder at it, as it was a foolish marriage from the start. Petitioner was entitled to a decree. ~ A decree nisi xvas then granted petitioner, to be made absolute after the expiration of three months. Costs on the lower scale were ordered to be paid by petitioner to respondent.