INCREASE REFUSED.

Otago Witness, Issue 3993, 23 September 1930, Page 67

INCREASE REFUSED.

A QUESTION OF ALIMONY.

Mr Justice Kennedy gave judgment on I’riday in the case in which Daisy Broad, the divorced wife of Wilfred Lawsofi Broad, applied for an increase in her maintenance allowance of £2 10s a week At the hearing Mr W. G. Hay appeared for the petitioner and Mr A. C. Hanlon, K.C., and Mr L. R. Simpson for the respondent. i 1S an aPPAcation, said his Honor, by a divorced wife for an increase in the weekly allowance ordered I P K ld to he J by her former tenant Mu Way of , P f erm anent maintenance. lhe ground for the divorce was that the petitioner and the respondent Hnn e pa a tl ¥ an agreement for separate? f?? d . eu j 1 separation was in I J t?, rCe ?n d had so con tinued for not the wi£“ y T l r S - The respondent, the wife, petitioned for an order for permanent maintenance, and on February 15 if h an ord er was made by Mr Justice MacGregor t lat Petitioner, the husband should pay the respondent by way of permanent maintenance during their joint hve s the sum of £2 10s per week S payments to continue until the farther order of the court. The husband was given the custody of the child “of the marnage-a sub-normal child. He had remarried when the above order ivas made m. d rri± rC £ rive nn IS i makln 8 Preparations to give up his employment in New Zealand hf^Rnv* 11 ? 6 a i nd to gO to En g la nd, where the fir he d^Slre3 to Place the child of marriage at a special school. the 1 tv a PPl lc ation now made is under Act ? 9 9q° rc s e e f and J Ia ‘™ ia l Causes Act, 1928, section 33 (2) (b) the onlv OI V a i risi ? g . is the means ?r;^ e .husband have increased since the should 1 h? rder ’ and .whether the court should, by reason thereof, increase the amount payable under the order. The court must now assume that, when the order for maintenance was made all the circumstances that had to be taken into account were considered, including the m n n° £ A'; e Woodf , W v 99 P ' and Hall v. Hall (1914), tha^’fh 30 ’ -f mu j st therefore be taken that the wifes conduct did not disentitle her to maintenance. One of the circumstances discussed be“j Was th ? Propriety of the former husband surrendering his employment and nhi?! 1 V* ? ng ! and ’ there to place the 6C ri oo K lt , a PP e aring that there was little likelihood of the child receiving better treatment there than is availfl J Pi New /ea'and. Apart, however, from the probability that the income in the future would be reduced by this course, this circumstance i 6 not sufficient to outweigh definite evidence that the means of the husband have not increased since the order made by Mr Justice MacGregor. There was before him both the inlormation as to an amalgamation affecting the value of the husband’s share in his late fathers estate and also the circumstance that claims were being made under the Family Protection Act, 1908. it must be taken that the learned judge who made the order paid such attention to these circumstances as was proper. A comparative statement of income then received and now received was produced, ami it appeared that the income received by the former husband has not increased, but rather has, if anything, slightly diminished. It has not been proved that the means of the husband have increased beyond what they were when the order was made, and a case has consequently not been made out for an increased weeklyallowance.

The terms of the original order entitle the court, apart from section 33 (2) (b) of the Divorce and Matrimonial Causes Act, 1928, to vary the order if the court thinks fit, havijig regard to the ascending or descending scales of the busband’s or wife’s fortune, and having regard to all the circumstances of the case in the same manner as if these circumstances existed at the date of the original order Hall v. Hal) (1915), p. 105. It was said that the learned judge who made the order gave as his reason for the form adopted by him that in a year or two the husband might find himself in a better position, and his wife might then apply for an increased allowance, ami this was the aspect of the matter relied upon by the wife. I have already found that increased means, has not been proved, and, taking the petitioner’s means to be substantially what they were when the order was made, I am of opinion that the order should not at present be varied. No order is therefore made on the. present application. There-will be no order as to costs.