SUPREME COURT.

Otago Daily Times, Issue 20644, 16 February 1929, Page 7

SUPREME COURT.

IN DIVORCE. Friday, February 15. (Before his Honor Mr Justice MacGregor), STUKELEY v. STUKELEY. Motion for dissolution of marriage on the ground of desertion. Mr H. Brasch appeared for the petitioner, Margaret Rosemary Stukelty. There was no appearance of the respondent, Alastair Peter St. Ledger Stukeley. . In laying the facts before the ■jourt. Mr Brasch said the petitioner was resident in England, and the whereabouts of the respondent were unknown. Leave Lad been obtained from the court to serve by means of advertisement, and to hear the application on affidavit in New Zealand without the appearance of the parties ■ His Honor raised the question of the place of birth of thd respondent. In me affidavit it was given as Derby (England) and in another it was stated to be in Ireland. Mr Brasch said that it was Derby in England. The respondent, he added, was a man whose mentality was peculiar. He was inacapable of telling the truth. At one time he got into trouble with the authorities at Home and was allowed to go free on the condition that he left the country. The affidavit of the father who was a clergyman, showed that the man came to New Zealand to settle. In discussing the question of respondent’s domicile, which Mr Brasch contended was New Zealand, he quoted from the wife’s affidavit, in which she said:- “ In discussing plans for our future life, the respondent informs me he is desirous of making our home, in New Zealand.” Shortly after the marriage, which took place in Auckland, the couple left for Sydney, and it was there that the respondent disappeared. The wife further said: “The respondent admitted to me in Sydney, before I left for England, that he had not other plans than to keep up the appearance of being possessed of ample means, so that I should remain ignorant of his deception.” The petitioner had been Informed of the criminal offence of which the respondent had been guilty, and she resolved to return to England. There was also an affidavit by Mr Greenwood, of Taranaki, who said: " I know the respondent. He was employed by me as a clerk in Taranaki in 1923, and remained in my employ until April, 1924. I gathered from him that he had left England in 1922 intending to take up farming and make his home in New Zealand. While the ie«pondent was with me he was working un a scheme to promote the emigration to New Zealand of English public school boys, and he had correspondence with his father to advance that end,” These facts showed that the respondent had plans to remain in New Zealand. Counsel submitted ihat

the evidence showed that the respondent , came to New Zealand with the ‘object of ' settling here, and that when he left for Sydney his_ only intention was to continue the deception he had been practising on his wife for at least two years prior to that time. His Honor: I suppose the fact ig that the young woman wants to get freed from the marriage and cannot do it in England, and is sent out here for that purpose. Mr Brasch: Yes, and I submit she is

entitled to it. The presumption one would draw from the facts, apart from the affidavits, is that the man grossly deceived the woman. His Honor: There is no doubt about it. Mr Brasch; And that he had no inten-

tion of doing anything but to keep ip the deception. Continuing, counsel said, no doubt, if the man had been able to find people to finance him in Sydney, as he did in Auckland, he would have kent up the deception. Hia Honor remarked that the evidence was that the man went to Australia, and never came back to New Zealand. Mr Brasch: He went to Austral’a on the representation of his wife, but I submit his domicile was still New Zealand.

His Honor: But the fact is that he r>aa not returned to New Zealand.

Mr Brasch repeated his contention that the man's domicile was still New Zealand. “ The respondent is one of those unfortunate men who debase themselves in order to arouse their own self-pity,” added counsel. “If he had been able to swindle people sufficiently no doubt' he would have gone on living in New Zealand.” His Honor: What were the facts of his disappearance in Sydney? i Mr Brasch; He-was to join his wife in England three months after she left Sydney. She left in June, and he promised to be in England in September, and I snuggest that he had no intention of going to England. He may have intended to come back to New Zealand. I submit that your Honor will find that he acquired a domicile here. His Honor: And the facts show that he has abandoned it. Mr Brasch; He was here for nearly two years. His Honor: No ( doubt, he had a domicile in that time, but New Zealand has ceased to be his place of residence. I cannot say that the residence is New Zealand; it would be a travesty of the facts. Mr Brasch: He left New Zealand for a holiday only, and that is all that is known of him. His Honor: Oh, no; there is more than that. _ The couple left New Zealand for a holiday, and when the facts of his deception came out they parted, and she went Home, and he has never been seen in New Zealand since. After advising Mr Brasch to look further into the case, his Honor said that unless some authority that was conclusive one way or the other were found it might be advisable to refer the question of domicile to the Full Court. It was difficult to decide on the facts before him. The matter could be mentioned again on his return from Invercargill next week.

BROAD v. BROAD. - Motion for permanent maintenance. Mr A. C. Hanlon appeared for the wife, Daisy Broad, in support of the motion; Mr W. G. Hay for the husband, Wilfred Lawson Broad. , Mr Hay said he had a preliminary question to raise. Subsequent to the granting of a decree nisi Mrs Broad agreed to accept £750 in lieu of her claim for alimony, but she had now changed her attitude. In her affidavit she said: “I agreed to accept £750, but I was subsequently informed that tha value of. my husband’s assets had increased in value. I understand that his interest in the Otago Brush Company was a certain amount, and I have since ascertained that shares in the company have increased in value.” Counsel submitted that the agreement to accept £750 was binding, and that the court had no power to go behind it. Unless the payment had been ; arranged the husband would not have taken out the decree nisi. Mr Hanlon: Unless there had been a decree nisi he could not have the other lady. If he wanted to marry another woman he had to take out the decree.

t¥ r i? CoTl tinuing, said that Broad naa sold 325 shares in the company to pay the sum agreed upon. His Honor: And why was the money not paid?

Mr Hay: The lady will not accept it. hue has gone back on the agreement. His Honor: When did you know she would not accept the money? Mr Hay said it was some time in November. The lady agreed to take £750, the man obtained the money by selling shares at a sacrifice; he had taken out a decree nisi; he had made a valid agreement with his wife, and now he held her *° ij If ~k e did not hold her to it, ho would suffer an injustice, because he had sacrificed shares in order to get the money. b

°n behalf of Mrs Broad, Mr Hanlon admitted that the lady, like all her sex, felt she had a right to change her mind, one had made an agreement, built on what her husband had frequently told ner that he was earning £8 a week and ,V e to come and 8° on. But after sne had made the agreement she ascertained that he had a very much larger interest in the business than she had

understood. She had been misled about the facts on which the agreement was made, because he was getting £lO a week instead of £B, and, in addition to having 300 shares, which he said he had disposed of to raise the £750, he had a life interest in a large number of shares that were very valuable, and instead of being worth a couple of thousand pounds his interests were worth about £7OOO or £BOOO. At the time the agreement was made Mrs Broad thought that £750 ■was a fair thing. For Mr Hay to ‘‘say that Broad would not have taken out the decree if he had not arranged the matter beforehand was moonshine, because the man had another lady in view, and he had since married. At any rate, he had a higher salary than he had told his wife, and he had a large interest in the estate; he also had a house and furniture worthy a lot of money, and he had a motor car. The sum of £750 was an absurdly small amount for the woman to take. He admitted she ought not to be allowed to go back on the agreement, but the question was, was there a valid agreement, seeing the woman had been mistaken on the facts on which the agreement was founded?

Mr Hay: She was not mistaken through any fault of ours. Mr Hanlon: She certainly believed he was getting £8 a week, and he was getting £lO, and he never mentioned his life interest in the shares. As his position is better than he made out, she thinks she ought to get more maintenance.

His Honor: Where is the child? Mr Hanlon: In the custody of Broad and the wife. His Honor: Who is asking for it now? Mr Hay: The husband is asking for it. Mr Hanlon said that bis client was also asking for custody of the child. The parties entered into an agreement under which the custody of the child was given to the wife, with access to the husband to see the child at certain times, and when the wife left New Zealand for Italy, the husband took the child. Mr Hay said the husband had had the child since 1925, and the woman had been back in New Zealand since September. 1927, but had not worried about it—indeed, she had only seen it twice. Under an agreement the child went to the busband .when the mother went away—as a matter of fact, she went to Italy to take singing lessons—and when she came back she never asked for it. His Honor said the first question to settle was who was to have the child. Evidence was then called. Wilfred Lawson Broad said he wished the custody of the girl, who was eight years of age. He kept the girl when her mother went to Italy. His wife was away for three years, and returned in September, 1927. SJic had seen the child twice since. She might also have seen the child at school. Witness was not addicted to drink. He might have been more addicted to drink at one time than now. Witness gave evidence as to his means. In order to pay his wife £750 he sold some shares to his brother at £3 per share. There was no understanding witli his brother that he would get the shares back. The value of the shares to-day was £4 15s. He had a life interest in the company, but bis father’s will had not yet been ’fixed up. He had hopes Miat it would be all right.

To Mr Hay; Witness had married again and had a very comfortable home for the girl. It was not true to say that witness had ever been addicted' to drink. On one occasion his wife wanted to take the girt with her on a singing tour, but witness would not agree to it. He regarded his wife as a professional singer. If his wife had the custody of the girl she would not have a settled home for her. She was in the habit of travelling about singing. His father’s will had been challenged, because his sisters were applying for maintenance. He had little equity in the house in which he lived. He had never misled his wife in regard to his circumstances. His wife was more of a touring singer than a housekeeper, and that was the cause of the trouble.

Daisy Broad, in evidence, said she did not intend to tour as a singer in the future. She was sure the girl would be very happy with her. She was not keen to be a professional singer, because there

was nothing in it. She had not been well, and for that reason she had not seen the child as often as she would have liked.

To Mr Hanlon: Witness was willing at one time to take £750, but went back on the agreement because she received information that her husband’s shares had increased in value to nearly three times as much. At present witness was living with her father. Considering her 'husband’s conduct for years past she considered he was not capable of looking after the girl, with the assistance of his wife. One knew what a stepmother was. As to her hue-, ban I’s behaviour, one had only to go round the cafes at night to hear of it. Ho was a jazz Artist. His Honour, in giving judgment, said it seemed to him the child would be better off with the father. The'mother was apparently devoted to an artistic career, which was not altogether suitable for n mother who was looking after a young and delicate girl. On the question of maintenance, any order he might make should be subject to review The husbamj might find himself in a better position in a year or two, on account of the shares he held, and the wife would be entitled to share in the- improved state of things i* or that reason he would not tie the hands ot the court in the future. An order was accordingly made by his Honour that the custody of the child be given to the petitioner, and the petitioner ivas ordered to pay to the respondent as permanent maintenace the sum of £2 10s 5n r l non ’ tO , commence as from November ,5U ' 102 S; hhd to continue until the further order of the court. Costs 20 guineas, ‘and disbursements to be paid to the respond-