Chase v Chase
| Jurisdiction | Guyana |
| Judge | Kennard, C.,Perry, J.A.,Persaud, J.A.,Persaud, J. |
| Judgment Date | 14 April 1998 |
| Neutral Citation | GY 1998 CA 3 |
| Docket Number | Civil Appeal No. 66 of 1996 |
| Court | Court of Appeal (Guyana) |
| Date | 14 April 1998 |
Court of Appeal
Kennard, C. Perry, J.A. Persaud, J.A.
Civil Appeal No. 66 of 1996
R. Mckay, SC and R. Forde for the appellant
C.A. Hughes, SC for the respondent
Family law - Maintenance — Application for increased payment — Increase in means of husband — Whether established.
Statute - Interpretation — Matrimonial Causes Act, s.14 — Power of court to increase amount payable — Proof of increased means — Whether established — Increase ordered.
This is an application by the appellant under the provisions of sec. 14(2)(b) of the Matrimonial Causes Act, Cap. 45:02 of the Laws of Guyana for an increase of maintenance. That subsection provides:
“Where the court has made any order mentioned in this subsection and is satisfied that the means of the husband has increased the court, if it thinks fit, may increase the amount payable under the order.”
That sub-section is to be compared and contrasted with subsection 2(a) which states:
“If the husband afterwards from any cause becomes unable to make those payments, the court may discharge or modify the order or temporarily suspend it as to the whole or any part of the money so ordered to be paid, and again revive the order wholly or in part as the court thinks fit” (See Wood v. Wood (1891) P.D. 272.”
It is quite obvious that the court's powers under subsection 2(a) is much wider than that under subsection 2(b) for under the latter the court can only make an order for an increase in the amount previously ordered as maintenance if there has been proof of increase in means of the husband since the previous order, whereas under the former, the court may discharge or modify the order or temporarily suspend it if the husband from any cause becomes unable to make payments under it.
In Wood v. Wood (supra) Lindley, L.J. said at p. 276, 277:
“The least a man ought to do for the maintenance and support of his wife, when he so disregards his own duties to his wife as to drive her from her home without any fault on her part, and practically forces her to obtain a divorce, is to do what he can consistently with his means, to maintain her in reasonable comfort, having regard to her age, health and position in society.”
For the wife to succeed on an application for an increase of maintenance, it is necessary for there to be evidence of increase in the means of the husband since the making of the previous order, that is, the consent order in 1991 see Foster v. Foster [1964] 3 All E.R. 140 and Payne v. Payne [968] 1 All E.R. 1113. It is absolutely necessary for there to be proof of increase of means before a wife can succeed in her application for an increase in maintenance. He, who asserts must prove has or her case. No matter pitiful is the case of the wife there must be proof by her of increase in the means of the husband before the wife can succeed on her application. A court is not allowed to speculate or conjecture but can only properly act on evidence led in court.
In N v. N [1928] All E.R. (Rep) 462 where there was an application by the wife for an increase in the amount of maintenance payable to her Lord Merrivale said at p. 466H:
“What I have to ascertain is this: The wife applying for an order for payment of moneys periodically for her maintenance and support, has there been an increase of the husband's means since the prior order and what, having regard to her fortune and to his ability, and the conduct of the parties, the court deems reasonable by way of an increased order. (See also Ette v. Ette [1965] 1 All E.R. 341 and J. v. J. [1955] 2 All E.R. 85.).”
In Howard v. Howard [1945] 1 All E.R. 91 where there was an application by the husband for a reduction of the amount payable under a maintenance order, Lord Greene, M.R. said at p. 95:
“What has to be looked at is the means of the husband and “MEANS” means what he is in fact getting or can fairly be assumed to be likely to get.”
Where there is an application by the wife under sec. 14(1) of the Matrimonial Causes Act, Cap. 45:02 for an order for the payment of maintenance to her it was held in J. v. J. [1955] 2 All E.R. 85 that in determining what sum was reasonable for the husband to pay to his wife the court must take into account three factors, namely, the fortune, if any, of the wife, the ability of the husband and the conduct of the parties. (See also Chichester v. Chichester [1936] 1 All E.R. 271).
The parties were married on the 25th day of February, 1955 in England. On the 6th February, 1976 the appellant/wife obtained in Guyana a decree nisi of divorce on the grounds of the respondent/husband's malicious desertion. The said decree nisi was made absolute on the 26th April, 1976. On the 4th June, 1987 Bernard, J., as she then were, after hearing evidence in the matter, granted an order for permanent maintenance by which the respondent was ordered to pay to the appellant/wife the sum of $800.00 per month commencing on the 15th June, 1987. In February, 1989 the appellant applied to have the order varied upwards. The respondent consented to the variation and assented to pay the sum of $2,200.00 per month as permanent maintenance. This order was made by the then Chief Justice Harper in May, 1991. The present application was filed in June, 1994 for a further upward variation of the order. In other words the appellant is seeking a further increase in maintenance based on the increased means of the respondent and the inadequacy of the present amount to support her in light of the rise in the cost of living.
At the trial at the High Court the appellant gave evidence and called witnesses in support of her case but the respondent did not testify nor did he call any witness. I would say something about this later. Small, J., who had heard the matter in the High Court, concluded his judgment by stating inter alia:
“So in the instant case even though the professional charges payable to the respondent, the rental of one building and the increase valuation of the properties are not taken into account to calculate the increase in income since the prior order, yet the court took them into account to assess the potential earning power of the respondent which will free up the established increase to some extent for the purpose of making an increased order. In other words, the ability to pay an increase out of the additional income is increased by the fact that he continues to enjoy a reasonably fair earning capacity in other areas which could be used to meet living expenses, whatever the extent, and his moral and financial obligations, whatever they may happen to be. The respondent is apparently without any means apart from the $2,200, per month. This is the evidence I accepted. In the circumstances, I think it is fair to award an increase in maintenance to her. This amount of,$2,200 is much, much too small in light of the altered circumstances of the parties since the date of the prior order. From the perspective of the appellant, who is 69 years old, there is the constant rise in the cost of living; on the other hand the respondent has since acquired an increase in means and retains his earning capacity.
Counsel for the respondent during the course of his address intimated that the respondent was prepared to increase the amount by 75%. Well that will be too miniscule an increase in the circumstances of this case, bearing in mind the extent to which the positions of the parties have charged. The amount is varied upwards to $25,200.00 per month as estimated above. In my view taking into account all the circumstances, I deem it fit that he could reasonably afford to pay that sum for the maintenance and support of the applicant. This is the amount to be actually paid to the applicant as monthly maintenance with effect from 1st July, 1996.
The court did not make the order effective from 1994, as it was entitled to do ( McDonald v. McDonald [1963] 2 All E.R. 857) This was not done because as the court sees fit, the object of awarding a variation in maintenance is not to use it as a punitive measure against a respondent in an onerous manner but to encourage the former husband, based on his proven increase in means and all the rather circumstances of the case to make fair provision for his former wife. An order to back date the new provision at the rate of $25,200.00 per month to 1994 or beyond may place too onerous an obligation upon the respondent.”
Learned senior counsel appearing for the appellant/wife raised two issues concerning the conclusions of the trial judge in that it was his submissions that:
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(1) The award of the trial judge of $25,200.00 per month to the applicant as maintenance was unreasonable, unjust and unfair in the light of the uncontradicted evidence that the respondent is in receipt of the sum of $101,923.00 per month as Director's fees and allowances as Chairman of the N.B.I.C., in addition to his earnings from his legal practice as a senior counsel, plus real estate assets of over $40M(G) plus receipt of rent there from. The respondent husband seeking refuge in silence, did not appear or give or lead any evidence during the hearing.
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(2) The learned trial judge had exercised his discretion capriciously and not according to judicial principles and must have taken extraneous matters into consideration or failed to consider all the circumstances relating to the case when making his award as well as when fixing the date whence such payment should commence i.e. 1st July, 1996, the application for a variation of the maintenance order having been filed two years prior to judgment.
The evidence led at the trial reveals that the respondent owns two properties in Georgetown one being used by him as his residence and the other in South Road from which rental is being received from several attorneys-at-law, who appear to be occupying sections of the building as...
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