IN
THE SUPREME COURT OF BELIZE A.D., 2001
Action
No. 2 of 2000
| Between |
(ANGELICA
DUBON
|
PLAINTIFF |
| |
(
(
( And
(
(
|
|
| |
(BERNARD
DUBON SR. |
DEFENDANT
|
D.
Barrow S.C. for Petitioner
H. Elrington for Respondent
J
U D G M E N T
AWICH J:
| Notes: |
Petition for maintenance of divorced woman, income of
the respondent divorced husband. Appearance and answer
not filed. R69 of the matrimonial Causes Rules Cap.
82. |
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
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