Eti v Tuimalealiifano [1993] WSSC 39 (15 November 1993)

IN THE SUPREME COURT OF WESTERN SAMOA
HELD AT APIA

DIV. 57/92

BETWEEN:

TUIMALEALIIFANO ATONIO VAALETOA ETI
also known as ATONIO VAALETOA ETI
of Motootua, Apia, Western Samoa, Public Trustee
PETITIONER

AND:

ESETA TUIMALEALIIFANO
of Fagagogo, Tafuna in American Samoa
RESPONDENT

Counsel: Mr P. Fepuleai for Petitioner
Mrs R. Drake for Respondent

Dates of Hearing: 15 & 30 March 1993
Date of Judgment: 15 November 1993

JUDGMENT OF SAPOLU, CJ

The petitioner filed a petition for divorce on the ground that he and the respondent had entered into a separation agreement on or about 24 August 1989 and that separation agreement has been in force for more than three (3) years. The respondent cross petitioned for divorce against the petitioner on the ground of adultery, namely that the petitioner had committed adultery with his present wife while still married to the respondent.

On 18 May 1993 I granted a decree for dissolution of the petitioner and the respondent's marriage but reserved my reasons. My reasons may now be briefly stated. On the evidence put before this Court, I am satisfied that the grounds for divorce advanced in the petition and cross petition have both been established. Accordingly the decree for dissolution of marriage issued on 18 May 1993 is founded on the three (3) years separation agreement between the parties as well as the adultery by the petitioner.

The respondent has also sought maintenance for the six(6) children of the marriage. The petitioner does not refuse to pay maintenance but says he can afford only $600 tala a month. The respondent claims US$600 a month for the children's maintenance. That is more than double the amount the petitioner agrees to pay. Evidence for the petitioner was adduced to show his means, financial obligations and liabilities. Evidence was also adduced to show the needs and expenses of the children. Having given careful consideration to the means, financial obligations and liabilities of the petitioner on one hand, and the needs and expenses of the children of the marriage on the other, I have come to the decision that $700 a month will be a reasonable sum in all the present circumstances of this case. The petitioner is therefore ordered to pay $700 a month for the maintenance of the children of the marriage. First payment to be made on 30 November 1993.

Custody of the children of the marriage is also awarded to the respondent with reasonable access being reserved to the petitioner.

The petitioner is also ordered to pay the respondent's costs for these proceedings which I fix at $300.

CHIEF JUSTICE