HUSBAND’S APPEAL

Waikato Times, Volume 117, Issue 19565, 2 May 1935, Page 8

HUSBAND’S APPEAL

SEPARATION SUSTAINED.

WIFE'S CHARGES UPHELD.

MAINTENANCE ORDERS VARIED. Lengthy evidence concerning the behaviour of the parties and the financial position of the husband was heard in the case in the Supreme Court, Rami’lon, yesterday and to-day in which Dominico Richard Russo, rabbit dealer, of Cambridge, appealed against the decision of Mr S. L. Paterson, S.M. in making separation, miantenance and guardianship orders in favour of the wife, Alma Rachel Russo, last November. The magistrate’s decision was upheld by Mr Justice Fair with the exception that the maintenance orders were slightly varied in favour cf the appellant. Mr F. W. Schramm appeared for appellant and Mr W. J. King for respondent.

Following is the concluding evidence after we went to press yesterday: — Formal evidence concerning the proceedings involving the appellant and respondent was given by Michael McCormack, maintenance officer, of Hamilton. He had laid various informations against Russo for defaulting in maintenance.

Case for Respondent.

Mr Schramm contended that at the time the orders were made last November Russo was in a bankrupt position. He started the skin and hide business with £7O given him by his brother. He carried on the business during last year until December. When the orders were made he had an overdraft at the bank and was in a very shaky financial position. His Honour: Sometimes the larger the overdraft the better the bank client’s financial position. Mr Schramm said when the bank granted the overdraft it was thought the business would be successful. Russo’s brother Owned the horse Mia Stella in the 1933-34 season and Russo himself received no share whatever of the winnings. When the case came before the magistrate Russo was given no opportunity to obtain his pass-book and papers. He was of an excitable nature and had been described as a humbug without any justification. Russo was a sick man and unfit for heavy work. In the box, appellant, substantiated the evidence he gave in former proceedings. Appellant referred to his war disability and to the frequency with which he had been in hospital. In 1933 he was working for his brother in Cambridge for £2 a week and early. Jasi year he started in business on his own account with £7O given him by bis brother. In December, when lie £2O and the cheque sent to his wifo was not honoured because the bank tefui-ed him further credit. He was at present entirely without assets and he could not have paid his wife any mue than he had paid her.

Winnings of Mia Stella.

He had received nothing of the winnings of Mia Stella, totalling over C6t 0, in the 1933-34 period. It was true he trained the horse, but he had no inlerpst in it. He had three horses, a hack, a three-year-old and a thoroughbred. but could do nothing with them as he owed grazing fees. The newspaper descriptions of the skin business referred to his brother's business. He had applied lo the labour iHueau for relief work and was refused because he was In bad health and getting a war pension of £1 a week.

Ihe case was adjourned until tins tunning.

TO-DAY’S PROCEEDINGS. When the case resumed this morning appellant Russo, further cross-ex-amined, said ho had no reflection to make on his wife’s character since they separated. Replying to His Honour, appellant admitted that in October, 1932, be transferred all assets lie had, although heavily mortgaged, lo his brolher. He re< eived no share of Mia Stella’s winnings of £B3O although he trained the ill J sc.

Angelo Russo, rabbit dealer, of Olorohangn, appellant’s brother, said lie registered the gelding Mia Stella in his name in .1930. He gave details of the horse’s winnings. Since last season Hie horse had not won a race and the expenses had been heavy. He took his brolher into partnership In owning Mia Stella in August, 1931, and a year later the partnership was terminated as the horse was broken down and appellant had no money. He had assisted his brolher from time to lime with sums of money, including (he security to allow the present appeals to proceed. Witness said lie had never seen his brother drunk. He had seen Mrs Russo at the pictures with Hall about three times. Alfred Joseph Ryan, company manager, of Hamilton, said lie had had considerable business dealings with Russo. He had never seen him under I lie influence of liquor.

Wife’s Allegations Proved.

In giving judgment, His Honour observed that the evidence was largely the same as that before Mr justice Smith in the restitution proceedings in March, 1933. The wife’s evidence concerning the appellant’s drunken habits was largely uncontradicted and was substantiated by oilier witnesses. On Hie other hand there was little evidence that the wife was given to insobriety. He could not find that Mrs Russo and Hall were on more than friendly terms. While not so strong as the evidence of drunkenness, the evidence or persistent cruelty was a fair Inference.

His Honour expressed lhe opinion that when appellant transferred his business to his brother his conduct exposed him to the suspicion that lie v,as making it as difficult as possible la make his wife payments. Further, he believed Dial the transfer of'- the horse, Mia Stella, was also effected lo enable appellant to avoid maintenance. If a person placed himself in a position where lie could not pay maintenance that did not dispose of his liability for failure to maintain. Whiie His Honour found Hint appel;,:;ibrolher owned Ihe business he considered appellant was in a position lo earn something. 11 is Honour was not salislied that I lie appellant

(.Continuea in next euiumu.j

was able to pay past maintenance forthwith.

His Honour uphold the separation Order and varied the maintenance order respecting the wife to £1 5s per week and £25 past maintenance from the present dale lo be paid within 12 months. Regarding the children he was ordered to pay 12s Oil per week* respecting each child and £25 past 'maintenance from the present date within 12 months. Costs al nl witnesses’ expenses were also ordered to he paid by appellant.