Action No. 2 of 2000

D. Barrow S.C. for Petitioner
H. Elrington for Respondent

J U D G M E N T

AWICH J:

An Application for Maintenance Order of a Divorced Woman

Angelica Dubon was married to Bernard Dubon on 28.11.1964. She petitioned the court for court order dissolving the marriage and on 3.3.2000 she obtained decree nisi which was made absolute on 10.4.2000, thereby dissolving the marriage.

On 12.4.2000 Angelica filed petition for court order for periodic maintenance sums to be paid by Bernard to her. The petition was served by Police Corporal George Avila, on Bernard personally. He did not enter appearance nor file answer. An attorney from the law firm of Barrow and Williams, attorneys for Angelica, reported the failure to the Registrar who then was asked to assign a date of hearing of the petition.

Notice of hearing on 12.12.2000 was sent out by the Registrar to Messrs Barrow and Williams. There is no indication on the file about what happened in Court on 12.12.2000, but subsequently notices were sent to Messrs Barrow and Williams and to Hubert E. Elrington Esq., Attorney for Bernard Dubon, advising that hearing had been adjourned to a date to be fixed by the Registrar. Another notice of hearing for 26.1.2001 was sent to attorneys for both parties. There is nothing on the file to show what happened, but again subsequently notice advising about adjournment was sent out to attorneys. The petition was finally heard on 10.5.2001. This is judgment in the trial.

Objection to Respondent Participating in the Hearing

At the hearing, learned counsel Mr. H. Elrington attended as well as his client Bernard. Learned Senior Counsel, Mr. D. Barrow took objection to Bernard being heard. Mr. Barrow submitted that Bernard did not enter appearance and did not deliver answer to the petition for maintenance, and had not entered appearance to the earlier petition for dissolution of the marriage; he had no right to be heard. Mr. Barrow asked the Court to hear the petition as unopposed matter.

Mr. Elrington admitted that appearance and answer to the petition for maintenance were not delivered to the petitioner or her attorney. He applied verbally that the respondent, notwithstanding, be allowed to take part in the trial. Mr. Elrington cited r 69 of the Matrimonial Causes Rules which states:

"69 - (1) Upon an application for maintenance of periodical payments, the pleadings when completed shall be referred to the Court and the Court shall investigate the averments therein contained, in the presence of the parties or their attorneys-at-Law, and for that purpose shall be at liberty to require any affidavits, the production of any document, and the attendance of the husband or wife for the purpose of being examined or cross-examined, and to take the oral evidence of any witnesses, and shall direct such order to issue as to the maintenance of either party to the marriage or the children of the marriage as the Court shall think fit."

I ruled against allowing the respondent and his attorney taking part in the hearing. Mr. Elrington, however, remained in the court room throughout the hearing. It was my view that the Rules read as a whole, preclude a respondent who did not enter appearance from participating in the hearing of a petition for dissolution of marriage and for alimony and maintenance, unless the respondent had obtained leave of court on his application by summons, giving full reasons for not having entered appearance. Of course, the petitioner would have had opportunity to respond to the summons application. More specific to excluding Bernard from the hearing of the maintenance petition is r 67 which is as follows:

"67. A party served with such petition may within fourteen days after service, after entering an appearance thereto, file an answer on oath and thereupon on the same day shall deliver a copy of such answer to the opposite party or his Attorney-at Law."

When r 67 is read with r 69, it becomes clear that the pleadings which must be referred to the Court after which, "the Court shall investigate the averments," are pleadings that include answer filed and a copy delivered to the petitioner. To allow the husband to participate in the investigation under r 69 when he has not entered appearance or delivered answer, makes no sense in having r 67 (and r 26 in the case of dissolution of marriage petition) in the Rules at all. I proceeded to hear evidence from Angelica without including Bernard in the hearing.

The Evidence of Income of the Respondent and the Needs of the Applicant

As to substance, the testimony of Angelica was elaborate. She produced a pay slip of Bernard's fortnightly salary for the fortnight ending 27.3.1999, which was $2,193.85 net. She also produced three letters from Bernard, offering to make periodic payments and in one of the letters, to pay $20,000 upon receipt of his pension due in two to three years' time. The offers for periodic maintenance sums included portions to induce Angelica to give up her claim to certain matrimonial properties. The highest offer of periodic sum was $1500 per month and the lowest $750 per month. Her testimony also included her earning of $100 per week or about $400 per month from the sale of pizza for profit.

Determination

I have considered the current income of Bernard and the fact that he has his own expenses to pay, against the current income of Angelica and her expenses. I excluded the expenses arising from her living with a daughter of age who has a baby; I do not think that should form part of the maintenance sum that Bernard should be compelled by court order to pay. I also excluded from consideration any element of compensation for matrimonial properties. The application in Court was about maintenance only. It was also my view that Angelica was able to earn more than $100 per week. She appeared to be a very intelligent woman; she could state figures to include decimal points although she said that her formal education was only upto year three at school. She appeared to be an energetic woman; she was the younger of the two.

The maintenance sum that I order is $1,000 per month. Mr. Bernard Dubon shall pay the sum of $1,000 per month to Angelica Dubon as maintenance. The sum is to be deposited in her bank account by the 30th day of the month except in the month of February in which payment will not be later than the 28th day. Alternatively Angelica may give notice to Bernard requiring the payment to be made in Court. Bernard is advised that on his retirement he may apply for variation of the order for maintenance. That of course will be without prejudice to his general right to apply for variation of the order made.

Matrimonial Property Excluded

I have to state that this order does not touch and concern any question of matrimonial properties. That was not the subject of the petition dated 11.4.2000 filed on 12.4.2000.

Costs

Costs of the petition will be paid by Bernard to Angelica. The documents produced as exhibits are to be returned to Angelica Dubon after the time to note appeal will have elapsed.

Delivered this Thursday the 17th day of May, 2001

At the Supreme Court, Belize City, Belize.

Sam Lungole Awich
Judge