Foster v Foster
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS,LORD JUSTICE DIPLOCK |
| Judgment Date | 04 February 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0204-1 |
| Court | Court of Appeal |
| Date | 04 February 1964 |
[1964] EWCA Civ J0204-1
In The Supreme Court of Judicature
Court of Appeal
(Interlocutory List)
From Mr. Justice Waranghm
Lord Justice Willimer
Lord Justice Danckwerts and
Lord Justice Diplock
MR J. T. MOYLAN (instructed by kessrs. Evan Davies & Co.) appeared on behalf of the Appellant (Petitioner).
MR N. TAYLOR (instructed by Messrs. E. P. Rugg &. Co., agents for Messrs. Bullen, Jeffries & Kenshole, Birmingham) appeared on behalf of the Respondent (Respondent).
LORD JUSTICE WILLMER: We need not trouble you, Mr Taylor.
This is an appeal from an Order made in Chambers by Mr Justice Wrangham on the 27th November, 1963, whereby he allowed a husband's appeal and dismissed the wife's appeal from an order previously made by Mr Registrar Long with regard to the maintenance of a deserted wife. Mr RegistraLong had made an order in favour of the wife for maintenance at the rate of £1,650 a year less tax, and at the same time had refused to alter a previous order in favour of the wife for a secured provision in the nominal sum of l/- per annum. On appeal Mr Justice Wrangham reduced the annual amount of maintenance to the sum of £1,175 a year less tax, but he also refused to interfere with the previous nominal order for secured provision.
The papers which have been placed before us in this case contain a mass of detail and a number of figures into which I do not think it is necessary to go. Let me, however, mention a few of the salient facts which have to be considered. The husband carries on a practice as a verteinary surgeon, and so far as I can follow the acounts, he is clearly in a substantial way or practice in the Birmingham area. He was married to the wife as long ago as 1926. They lived together until November, 1954, when it appears that the husband left the wife. There were subsequent proceedings by the wife for divorce on the ground of desertion, and they resulted int he wife obtaining a decree nisi on the 19th March, 1958, which was made absolute on the 25th June, 1958.
The decree absolute was followed shortly afterwards by maintanance proceedings, which were heard by Mr Registrar Forbes. The wife was then claiming, as she alsways has claimed, both an annual sum during the joint lives by way or maintenance and also a secured provision. The Order which was made by Mr Registrar Forbes (which was made on the 28th July, 1958) was for nominal sum 1/- a year in respect of the claim for secured provision and for mintenance for the joint lives int he sum of £1,000 a year less tax.
It appears that at the time of those proceedings the lerned Registrar had before him the accounts for the husband's practice for the years ending September 1955, 1956 and 1957; and he also had before him provisional figures in respect of the
from the accounts to be valued at something over £4,000.
The wife started fresh proceedings in November, 1960, with a view to varying the previous Order of Mr Registrar Forbes. But it appears that the matter went to sleep for something like two years, and only came to life again at the end of 1962. It must have been about that time, I think, that the wife made a move in relation to the assignment of the house to the new wife. She made an application early in 1963 to set aside that transfer under section 2 of the Liatriraonial Causes (Property and Maintenance) Act, 1958. It was, however, discovered that that amplication was already out of time, and the only question which remained to be dealt with in connection with that matter when the hearing came on was the question of the costs thereby incurred. That was the subject of appeal to Mr Justice Wrangham, but is not before us. In the event, the decision was that there should be no order as to costs.
The matter raised by the Summons to vary Mr Registrar Forbes' order for maintenance came before is Registrar Loo? on the 17th Kay, 1963. That was when he made the order for maintenance at the rate of £1,650 per year, but he refused to interfere with the previous order of Mr Registrar Forbes' in relation to secured maintenance. Both sides, as I have indicated, appealed to the learned Judge; the husband appealing against the quantum of the maintenance ordered and the wife appealing against the refusal to grant more than a nominal order for secured provision.
The learned Judge dealt with the matter, of course, in Chambers, so that there is no official record of any judgment which he gave. But, with commendable industry, Mr Moylan took a very full and clear note of what the learned Judge said on the appeal, and that has been placed before us. In substance, the attitude of the learned Judge was that it was for him to consider to what extent the situation had altered since the time of Mr Registrar Forbes' original Order.
He had before him, in addition to the figures of net profits for the earlier years to which I have already referred, corresponding figures for the years ending September 1959, 1960, 1961 and 1962. Those years showed an average rate of net profits of something like £4,100. In those circumstances, the learned Judge approached the matter on the basis that the husband's circumstances had improved to the extent of...
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