P v. P
Read the full judgment text of CACV 86/1983 on BabelCite. This Court of Appeal judgment.
1. This is an appeal from an order in a matrimonial cause made by Judge Roy on the 30th November 1982. He was in turn sitting upon an appeal from a Master.
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CACV000086/1983 IN THE COURT OF APPEAL
BETWEEN
Coram: Hon. Li, J.A., Cons & Silke, JJ.A. Date: 6th October 1983 ___________ JUDGMENT ___________ Silke, J A.: 1. This is an appeal from an order in a matrimonial cause made by Judge Roy on the 30th November 1982. He was in turn sitting upon an appeal from a Master. 2. It is brought by way of leave granted by this Court I.. L on the 24th June 1983. The appeal is limited to the quantum of "maintenance" ordered and in respect of the payment of a .lump sum. 3. While the appeal is limited it is necessary to make reference to the history of the matter leading to the order made by the Judge. 4. The parties were married in 1957. There are three children of the marriage: a girl now over 21, a boy now 16 and a girl now 13 - the last two "the minor children". 5. Differences arose between the parties in 1978 and 1979. A decree of Judicial separation was pronounced on the 18th January 1982. 6. The first move on the financial side of the matter was an injunction granted to the Petitioner wife - the "wife" - on the 28th October 1980 which basically prevented the Respondent husband - the "husband" - from dealing with his salary and gratuity. Upon the husband's undertaking to pay the wife the sum of $4,877 per month - exactly one third of his then salary; to pay the outstanding balance of school fees for the minor children; to pay gas, electricity and telephone accounts for a flat at Olympian Mansions, Hong Kong, and to pay: a. lump- sum of $19-;366 the injunction was discharged on the 4th November 1980. 7. On the 3rd September 1981 Master Wilson made an order, being a maintenance pending suit order: that the husband do pay $5,000 to the wife as reimbursement for the expenses for the minor children; that he do seek from his employer reimbursement of the children's air fares and of an air fare for the wife for the 9th September 1981; that the "wife's maintenance be reduced to $3,000 per month and that the husband undertake to pay the school fees for the minor children. 8. Before going on to the periodical payments order of the 25th May 1982 - from which the appeal to Judge Roy was made - a brief history of the couple is relevant. A house which we shall call "Swancombe" was sold in April 1980 and a house called "Clifton" was bought. A bridging loan of £12,000 was repaid and there remained in balance a sum of £6000 after "Clifton" had been fully paid for, and this sum was lodged in the wife's bank account in England and used by her. "Clifton" was an old house in need of some repair. The husband rewired it, put in gas heating and redecorated the basement. 9. The orders made by Master Wilson were: as to "Clifton" that the parties do have equal interests with a right of residence therein in the wife; that the husband do make the mortgage payments and pay the general and water rates of "Clifton"; that the husband pay "alimony" of $1,500 to the wife and $1,000 for each of the children per month; that he pay a $10,000 lump sum to the wife for the purposes of making payment of outstanding gas, electricity and telephone bills for "Clifton"; that the husband continue to pay the school fees for the children; that any increase in the husband's salary be reflected proportionately by an increase in the maintenance payments; and that the husband do pay 10% gross of any gratuity of which he may be in receipt to the wife. 10. On appeal to Judge Roy certain of those orders were varied. The husband was directed to transfer the whole of his interest in "Clifton" to the wife; the monthly maintenance for the children was reduced to $750 each; the husband was directed to pay the wife $2,000 per month maintenance and the Judge "declared" that this was for payment of the mortgage and rates on "Clifton"; that there was to be a further lump sum payment of £3,000 sterling to the wife to pay off the wife's debt, if any, to Citibank. 11. On this appeal it is contended that the trial judge failed to recognise the necessity for the wife to have periodical payments, that he failed to, acknowledge the necessity of the wife's repaying those who transported the household effects from Hong Kong to England because without such payment the wife and the children would be deprived of the use and benefit of those effect, and that the Judge failed to take. into account that "Clifton" was in considerable need of repair which the wife had no means of financing. 12. The only time, and this is understandable as the costs of bringing the wife to Hong Kong would be considerable, that the wife gave oral evidence was before Master Wilson. Numerous affidavits have been filed by both sides and the husband, who appeared before us in person, gave oral evidence both before Master Wilson and the Judge. He was cross-examined at each hearing. On the issue of the transportation casts 13. The wife, without telling the husband, packed up and left the Olympian Mansions flat. She took with her articles which filled 800 cubic feet of space. The cost of transportation was in the region of $34,000. The husband, being a Government Servant , had a baggage allowance at the end of his contract period of some 300 cubic feet. The wife demanded payment of the transport bill from the husband. After negotiations with the Civil Service Branch, who had not been consulted prior to the shipping of the effects to England, the husband was permitted to forfeit 90% of his space allowance and a sum of $12,000 odd was paid off the bill leaving a balance due of $21,000 odd. At no time has the wife produced a list of the articles packed nor, if the goods were really 3n store at Harwich since 1980, has she produced any bills for storage. As to the Citibank debt 14. At the hearing before Master Wilson in May of 1980 she had this to say of a debt of some $31,000 said then to be due to the Bank:
This is not contested. Then:
15. Mr. Rodway has, very properly, told us that the debt was repaid on the 30th April of that year by some person on behalf of the wife. The circumstances of and the reason for such repayment we know not. 16. The wife was clearly less than frank with the Court. and with her advisers for it was, in respect of this debt, that Judge Roy made the order in November 1982. That order, against which there has been no appeal, is clearly of no effect there being no debt at all due to Citibank at the time of that order. Outstanding debts 17. The balance of the. price as between. the sale of "Swancombe" and the purchase of "Clifton" lay to the use of the wife. At that time there were outstanding utility payments and the matter of the school fees for the children. It was not used for either purpose. There was also an outstanding debt to an estate agent of some ?00 and a debt due to Barclaycard for the wife's use of her card. 18. Of the $10,000 directed to be. paid by Master Wilson for the utilities debt but $6,000 was remitted to the wife - the Legal Aid Department retaining $4,000 of the-' sum. The sum received by the wife was not applied to the payment of the debts. The husband had since paid them off in the total extra sum of approximately $9,000. This did not include a telephone bill. 19. The foregoing suffices for the purpose of this appeal to set out the background though there were many other aspects canvassed before us. In particular that which is said to be the wife's lack of regard - Master Wilson described her as extravagant for finance. 20. We do not think Judge Roy to have been wrong when he made no order as to payment of the balance of the transportation costs. It is suggested that if they are left unpaid then the wife might have execution levied against her. There is, as we have said, no evidence of any demands from the packers nor is there evidence of any storage charges. We tend to doubt the reality, as did Judge Roy, of the existence of the debt. We imagine he would have doubted it even More had he been aware of the extinction of the Citibank debt. We are not prepared to vary his order in that respect. 21. It is said that "Clifton" is in disrepair. It undoubtedly needs an amount of redecoration. It may need a new roof, or one which is rendered sound by repairs. Again there has been no clear evidence, and we bear in mind the photographs, as to the extent of the necessary repairs. Local Authority Grants would be available to the wife to assist in making repairs. A modicum of painting, washing and tidying up could overcome the majority of the dilapidations of which there is evidence. We do not think the Judge to have been wrong when he made no order on those matters. It is hot suggested that the house, now to be in the sole ownership of the wife, is in such a state as to be uninhabitable or anything near it. It is doubtful, were the husband to make some payments-to the wife in respect of whatever is necessary to be done, that she would in fact use the money for those purposes. He would have no control, he being denied access, of either the repairs or of the expenditure upon them. 22. The major aspect of this appeal and we stress the word "appeal" - it is not an application for variation - is that part of the Judge's order whereby he reduced the amount of maintenance payable for the children and, by reason of his"declaration", effectively varied to nil the maintenance payments to the wife. 23. We do not fully understand the effect of the Judge's "declaration" that the $2,000 payable by the husband to the wife be for "the purpose of meeting mortgage and rates repayments" for "Clifton". If the wife chose to ignore it, and her financial history suggests that she well might, there appears to be no sanction available to enforce it. If the mortgage and rates payments are not made the wife might lose the home which would be quite wrong; for her interests and those of the minor children must be protected. The husband who, from all the available evidence, has met his obligations, might find himself being forced to pay a second time so as to keep the home going. 24. In our judgment the wife on being given a whole interest in the house in which she is likely to stay indefinitely should have or provision made, in the words of the Master of the Rolls in Wachtel v. Wachtel(1) "for the mortgage installments to be paid by the husband or guaranteed by him." 25. We think it much more satisfactory that the husband should be separately ordered to continue. to pay the mortgage, water and general rates in a sum sufficient to cover them and that this be done as a direct payment. 26. That leaves the question of what, if any, periodical payments should be provided for the wife and, if ordered the quantum. It is worth repeating that the husband now pays all the school fees for the minor children, pays a total sum of $1,500 per month for their maintenance, would be paying off the mortgage on "Clifton" together with the rates both general and water, pays the wife 10% of the gross of the gratuity which he will get once every three years while in the service of Government and will increase the maintenance payments to the children - and, if any, to the wife - proportionately to any increase in his salary which he may receive either by way of promotion or annual review. 27. The wife has sole ownership of the house, gets $1,500 per month for the welfare of the children,. is in receipt of various social service payments amounting to on the evidence some £60 peg month, receives children's allowances, has her mother, who is in receipt of the old age pension, living with her, is relieved of all payments for the school fees of the children who are at expensive schools, has had the outstanding electricity and gas bills paid for and will get the three yearly lump sum payment. 28. Any periodical payments ordered should be much less than they would otherwise have been in view of the order as to "Clifton". 29. Mr. Rodway has suggested that the future finances of the husband are such that he could easily borrow sufficient to make periodical payments. This however is not a case of a man without ready money but who haw substantial assets which could be pledged. The husband is on a fixed salary, he lives now in accommodation of which he is the joint owner with the lady who stays there with him. She put up most of the initial payment for the accommodation, on an island off Hong Kong. The mortgage is in effect being paid off by his employer. When those payments are soon concluded he and the lady will own the property jointly unincumbered except that it cannot be wold some time to come. It cost in the region of $300,000. What is value will be in the future is not something upon which we can or should hazard a guess. 30. It is true that the husband's general financial position is stronger now than it was at the time Judge Roy made his order - for one thing his obligation to pay the Citibank $30,000 no longer exists. But that having been said are must view his finances through the eyes of the Judge both as they actually were and as to their foreseeable and known future prospects at the date of the order. 31. In his affidavit, sworn immediately before the Roy hearing, the husband set out his monthly finance as follows:
32. His salary was $22,000. 33. It was known to the Judge that (b) would finish in July of 1983: that (c) might have to be raised depending on any increase in salary: that (f) would finish in September of 1983 - but provision would have to be made for further costs: that (h) would finish in September of 1983. So: the September position would show the outgoings reduced by some $5,000. 34. The Judge was aware of the normal increases in government salaries and of the prospect of promotion - the husband, who has acted in a senior position, might well be confirmed in it. While promotion would not materially affect his monthly salary it would have an impact upon the gratuity. At a gross sum of some $176,000 the gratuity would gross up at about $4,700 a month but that would have to be reduced by the incidence of tax and by the 10% payable to the wife. 35. The outgoings would increase by whatever provision is necessary for the payment of legal aid costs and for provision for salaries tax. At some time in the future it would be reduced by the completion of the husband's own legal costs - he has already paid $50,00 of which $40,000 is Counsel's fee. Any other debts he may have could be cleared by payment out of the September gratuity. 36. The husband was, at the time of the Judge's order and is now, in our view capable of paying a sum as periodical payments to the wife. We think he should be so ordered. 37. This is not a question of every divorced or separated wife being entitled to these payments as of right irrespective of what other provisions are made out of the finances of the husband. Nor, in our view, it is necessary for the Judge to have considered an order in futuro at the time that he made his own order. 38. The husband is, to some extent, supported by the lady who lives with him. She is a wage earner and her income, though not very large, is of some use in heir ordinary living. In respect of the sum we have in mind, it would not, we would have thought, over-stretch the husband's capabilities, in the light of the known future reduction of outgoings, to pay it. 39. We are concerned With the circumstances of the wife as we have set them out and without imputing fault to her. We think that it is right that she should be in receipt of some payment monthly from the husband to supplement that which appears to be her meagre income and to allow her to live in the house with some dignity. It should not be a. high sum in the light of the other provisions made and we think the sum of $600 per month to be correct. 40. We would therefore vary the order of Judge Roy in its second paragraph as follows:
41. We would insert a new paragraph immediately after that as follows:
42. If mechanical difficulties should arise in relation to this new paragraph that part of the Judge's order which gives liberty to apply should be sufficient to allow the parties to go before him for guidance. 43. For ease of reference the full effective order - incorporating that of Master Wilson and that of Judge Roy and the variations thereon now is that:
(1) [1973] 1 All E.R. at page 841 Representation: Gilbert Rodway, Esq., Q.C. instructed by Messrs. Hampton, Winter & Glynn for Petitioner. Respondent in person. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||