IN THE SUPREME COURT OF BELIZE A.D. 1999

Action No. 7 of 1999

 

Between	(DANA DENISE VEGA	APPLICANT
	( ( ( And ( (
	(MARGARITO VEGA	RESPONDENT

D. Courtenay for Applicant
D. Barrow, S.C. for Respondent.

J U D G M E N T

AWICH J:

Notes:

Application for maintenance of minor children, parents divorced, Section 77 of Families and Children Act, No. 17 of 1998. Lifestyle of children before divorce, present income and commitment of father.

The Application

Dana Denise Vega applied to this Court for court order enjoining Margarito Gaspar Vega to pay $1,850 monthly for the maintenance of their two minor children, Diana Marrisa Vega and Leslie Ann Vega. The two are children of the couple's marriage which was dissolved on 10.6.1999. There is a third child, Andre Antonio Vega, 19 years old, and therefore a major, having passed the age of 18 years - See Section 2 of the Families and Children Act No. 17 of 1998. Andre still attends school, but no application has been made for his maintenance. I shall not in this judgment, concern myself with his maintenance. It should, however, not be taken that this judgment is a bar in any way to any application that maybe brought for his maintenance.

Background and Lifestyle Before Divorce

Denise and Margarito married on 19th October, 1981 in Los Angeles, U.S.A. In December, 1998 they separated. Margarito later petitioned the court and obtained decree nisi of divorce on 10th May, 1999 which was made absolute on 10th June, 1999. In the circumstances of the petition, Dana did not ask for and did not obtain court orders for payment of alimony by Margarito. The children continued to live with Margarito.

Before the separation the couple and their three children lived an affluent lifestyle in Orange Walk, Belize. The family went on holidays within and out of the country often and the children were excellently provided for. The wife put it this way: "We went everywhere, you name it we went. The children got whatever they asked for. They lacked for nothing." The husband confirmed it. He said that he did not even know how much they spent on maintenance and their lifestyle, the wife simply wrote cheques. Margarito even bought a luxury vehicle for use by Dana and adorned her with a ring worth USA $12,000 and other items of jewellery worth U.S. $50,000. Dana took the ring and the other items of jewellery with her upon separation. Margarito said that he had the means then, but things changed on their divorce and now he does not have as much income as before.

The Present Maintenance

After the separation in December, 1998, and during the early period of the divorce , the children lived with their father until a little short of two years, in August 2000, when they went to live with their mother in Belize City. The reason was that they had to go to high school in Belize City where their mother lived. The father continues to live in Orange Walk. The children go to stay with him during school holidays. On the day of hearing this application they were on school holidays and with their father in Orange Walk.

The position now is that the father gives the children $50.00 each per week, which is about $200.00 each per month. He says he gives it in the form of one cheque per week for the three children, he told the children to give the cheques to their mom. Margarito explained that Dana knows about it, he has seen the signature of her fiancé on the cheques.

The Issue in the Case

The issues to be decided have been reduced to one. Margarito accepts that he has responsibility to maintain the children even while they are with their mother and that the children's lifestyle was much higher before the divorce. He, however, adds that he would like to give more money to the children, but for his reduced income, he hopes his income will improve and he will provide better for the children. So the single issue is, does Margarito receive enough income now so as to be able to pay $1,850 per month applied for as maintenance for Diana Marrisa and Leslie Ann?

An Order for maintenance is not a penalty; it is for the purpose of providing for a child according to the ability to pay and could be to the extent that would meet the life-style the child has been accustomed to. The present means of the payer of the maintenance sum is an important consideration.

The law under which Dana has applied for the maintenance of the two children following divorce was not specified in her application. It must be the law in Section 77 (1) of the Families and Children Act, No. 17 of 1998, which states:

The tendency is to quickly turn to the Common Law of England which we have adopted. When the Common Law has been spelt out or reduced to writing in a legislation, we should first look at the legislation. Sometimes a legislation includes more than the English Common Law, and sometimes less, moreover, it may even replace the Common Law in certain aspects or completely.

The standard of living which the maintenance sum is to provide for a child is not stated in S: 77 of the Families and Children Act or S: 152 of the Supreme Court of Judicature Act. The lifestyle to which the child has been accustomed is not mentioned in the legislations. That is where the English Common Law adopted comes in, but subject to the provision of the legislation, that is, to "personal circumstances and ability to pay." Given ability to pay, maintenance sum should be such that is expected to provide for the lifestyle to which a child has been accustomed, which is the lifestyle, had the marriage not broken down.

According to the evidence, Dana's lifestyle has changed to a lower level, although she still travels to the USA about every 6 weeks on business. Margarito has not complained that Dana is not carrying out her part of the responsibility, as required by S:77 (1) of the Families and Children Act, so I shall take it that it is not an issue in this application.

Both the applicant and the respondent were extensively cross-examined by learned counsel, D. Courtenay for the applicant, and learned senior counsel, D. Barrow for the respondent, on the crucial point as to the present income of Margarito. The Court was left with the difficult task of assessing the credibility of, as is usual in these type of cases, souls once honest and generous, and now all too suspicious and mean towards each other.

Determination

My assessment of the two witnesses was that Dana Denise Vega exaggerated the present means and income of Margarito Gaspar Vega, and he, on the other hand understated his income; he was evasive about some details. Despite the exaggeration and understatement, I got some impression about the income of Margarito and therefore where to place Margarito's income. I do accept that his income has decreased to some extent and his family commitment has increased. The reasons for the decrease in income may be because he did not give his full attention to business during the emotional stress upto and immediately after the divorce, and because his new cable television business made losses. Whatever the reasons, his income has to some extent dropped.

Margarito says he has since remarried and has a six-month old daughter and his present wife does not have a vehicle of her own or for her own use. That has not been contradicted. If I match that with the fact that Dana Denise Vega during her marriage had a gold-notch vehicle to drive on her own, the inference, on balance of probability, is that Margarito's income has dropped. The second reason is that Margarito's main business, Vega's Import, has moved from larger to smaller premises shared with the cable television business. That too has not been contradicted. It points to a lower level of business.

Margarito has since acquired shares together with his brother, Ignatius, in GIV Ltd, a limited company. He says that the standing arrangement is to re-invest profit earned for now. I considered whether this should not be taken as a means of putting Margarito's income from the company out of the reach of his children and perhaps of Dana Denise. The possibility is there, but I have to take into account the legal position that the business, GIV Ltd., is an incorporated company and that decision taken by it must be by resolution of directors. That includes decision to declare dividend payable to shareholders. It is not in evidence what would be the attitude of Ignatius, the other shareholder, described as the president of the company. He is said to own 50% of the shares. Without his willingness, dividend for now may not be available.

Margarito told the Court that the children are aware of the fall in his income, and that they do not complain about their needs. He added that the children were aware of the Court sitting and that he told them that they could come to testify if they wished. I think courts have to be cautious when seeking the views or evidence from children. Many children would not like to take sides in argument or quarrel between mother and father and if pressurized a few who might testify may say things not necessarily true, rather as a matter of sympathy with one of the parents, and not because it is good for the welfare or other interests of the children.

A fair assessment of the evidence is that Margarito can pay a little more than $200.00 per child per month. The sum that I consider fair is $500.00 per child per month for Diana Marrisa Vega and Leslie Ann Vega. No Order is made in respect of Andre Antonio Vega. I believe that as Andre still attends school and is therefore dependant on his parents, both Dana and Margarito will continue to support him in the way they consider best for their son.

The application is allowed to the extent limited by my assessment of the maintenance sum.

Costs

It has been difficult to decide costs in view of the fact that Margarito did not contest most of the material facts, and has been voluntarily paying weekly sums of money for maintenance. He will pay one half of the applicant's costs.

Delivered this Monday the 30th Day of April, 2001

At the Supreme Court, Belize City, Belize.

Sam Lungole Awich
Judge