Supreme Court
Action No. 77 of 1980
23rd November, 1982.
Moe, C.J.

Mr. G. Godfrey for the Petitioner.
Mr. O. Sabido with Mr. D. Lindo S.C. for the Respondent.

Maintenance following divorce - Assessment of gross annual income of Respondent - Lump sum payments and periodical installment payments - Power of court to order both payments - Section 169 of Supreme Court Ordinance - Meaning of "means" in maintenance applications.

J U D G M E N T

The Petitioner seeks from the Respondent a lump sum payment or such sums of maintenance for herself as may be just, and maintenance for her child Maya Meera. The parties were married in India on 12th December 1963 and there are two children of the marriage, Maya being born on 12th March 1967 and Umesh Murli born on 23rd October 1964. On 23rd October 1980 the Petitioner started divorce proceedings on grounds of the Respondent's desertion and his frequent adultery with two women. The Respondent did not defend the proceedings in any way. The Petitioner obtained a decree nisi on the 18th March 1981 and was granted custody of child Maya. The decree was made absolute on the 8th July 1981.

The parties after the marriage lived together in Belize from 1966 first at Craig Street where the Petitioner still resides. The Respondent left the Petitioner in 1973 and has not provided any maintenance to her for about 8 to 9 years. While still living with his wife, he lived with another woman with whom he had a child and whom he left about February 1974. He then lived with another woman with whom he had 5 children and to whom he presently provides $85.00 per week or $340 per month. She is living in a house that he owns. He is presently living with a woman from El Salvador. He pays $175.00 per month for rent of the premises where the Petitioner resides, $25.00 per week for the maintenance of the child Maya and her school fees and other school expenses amounting to about $105-$110.00 per month. The Respondent is a businessman and is concerned with the following business: -- (1) Maya's Belize City dealing in electronic equipment; (2) Casa Economica, Orange Walk, a general dry goods store; (3) Liberty Store, Belize City, a general dry goods store. He has three banking accounts, one with the Royal Bank of Canada, Orange Walk and one with the Bank of Nova Scotia, Orange Walk. He is the owner of four properties, one at Corozal Road, Orange Walk, and at Gravel Lane, Orange Walk, One at San Francisco Street, Orange Walk and one at Albert Street Belize City.

There was great divergence in the evidence of the parties as to the income of the Respondent. The Petitioner set out in her petition that to the best of her belief the income is $40,000 per month or more. In her evidence she explained that that figure represents takings or receipts from the businesses concerned. Of that, she estimated $7,000 to $8,000 per week was from Maya's or about $32,000 per month. She based this on her experience while working with the Respondent for about five years and managing Maya's store at which time the other stores were then being built up. The Respondent on the other hand sought to establish that his income was $833 per month or about $10,000 per annum. I did not accept this as a true picture of the Respondent's financial means. He put in evidence that the amount on which he was assessed for tax by the Income Tax Department for the years 1978, 1979 and 1980 was $20,000.00. That he has to pay $4,655.97, $4,123.67 and $3,300 tax in respect of the said years and invest $6,000 yearly back into his business under some agreement with his father.

I must state first that I was not satisfied that $6,000 for investment should be deducted from the assessable income for these purposes. If it is a genuine debt or business commitment that should have been taken into account in arriving at the assessable income. If it is not a binding commitment and something the Respondent wishes to do from year to year, that investment would have to be done after he maintains those whom he is obliged to maintain. Secondly the figure of $20,000 was a figure agreed on between the Respondent and the Income Tax Department. Not surprisingly there was difficulty in arriving at the true position because the Respondent keeps no books of account. The very documentation presented by the Respondent shows that the department originally assessed him for 1978 at $34,000 and for 1979 at $40,000; there was no mention of the original assessment for 1980 but the department agreed to assess for the three years as already mentioned.

Further, I related both the figures originally assessed and finally agreed upon other evidence before me. The Respondent has three mortgages, one on each of 2 properties in Orange Walk for $60,000 and $50,000, and one property at Albert Street for $30,000.00. A total of $140,000.00. No evidence was given as to the repayment schedule on these mortgages but calculating that the amount has been loaned to be repaid with interest at a rate of 10%per annum, in order to service those mortgages, the Respondent would repay about $641.00 per month if it is amortised over 20 years, $1,282 if it is 10 years. On the basis that the mortgagors acted with some business sense, they would have been satisfied that his income, allowing for his expenses, would enable him to repay which I assume is the lower figure of $641.00 per month. He also said his expenses on his overdrafts amounting to $115,000 are $2,000 in interest per month. Again I consider that the banks must have been satisfied about the Respondent having a large enough income to be able to manage $2,000 per month as interest. The Respondent also gets rent from two shops located in his buildings amounting to $600 per month. It further emerged that the house which he is building on Albert Street will cost $200,000.00 to finish, a sum which by itself suggests that the owner is a man of substantial income. The Respondent finally said that normally his three businesses Maya, Liberty and Casa Economica bring in sums which come to about $288,000 per annum. He also said his operating expenses on these businesses amount to about $127,000 per annum, leaving him with $161,000 per annum. Even allowing for further expenses and other permissible deductions including personal allowances, for income tax purposes, even the original assessment by Income Tax department at $34,000-$40,000 seems over generous. All this evidence is more consistent with the Petitioner's assertion that the Respondent has a large income than with the Respondent's contention that he earns only a small income. On the evidence before me I take the view that it would be reasonable to regard $50,000 per annum as the Respondent's gross average income.

While the Petitioner's prayer is couched in the alternative for a lump sum or maintenance, section 169 of the Supreme Court Ordinance Cap 5 empowers the Court to order both that the Respondent secure to the Petitioner a gross or annual sum and that he also pay maintenance. In determining what order it is fit to make and what sums would be reasonable I had to bear in mind the Petitioner's fortune, the ability of the Respondent and the conduct of the parties. As Sir Boyd Merrman pointed out in Chichester v. Chichester [1936] P. at page 134, in construing identical provisions of Supreme Court Judicature (Consolidated) Act, 1925 (U.K.) "One has got to take all the circumstances of the case into account and arrive at a proper solution having regard to the factors which are mentioned in the statute." Firstly I kept in mind the average income, which the evidence indicates that the Respondent earns and that he hides the true amount of his earnings. The Respondent has not been providing maintenance for his wife for some years in whose favor there is a presumption on the evidence that she is entirely blameless. He has been going from woman to woman, and has one living in a house that he owns. While he has a few properties most are mortgages but according to the evidence one is encumbered. That property at San Francisco Street, Orange Walk is worth $28,000.00. I followed the dictum of Hill J. in Shearn v. Shearn [1931] P. at page 5 "the interest of both wife and husband have to be considered. Regard must be paid (inter alia) to the ability of the husband. As regards the wife, the object of the whole procedure is to provide maintenance from the time she has divorced her husband. The court will naturally desire to make the maintenance as secure as possible, and in cases where it can properly be done the court will order a husband who is possessed of ample free capital to appropriate a sufficient part of it to secure the whole of the maintenance." The circumstances of this case in my view demands that a gross sum be secured to the Petitioner. I regard his San Francisco Street property as providing sufficient free resources by which the Respondent can secure a gross sum to his wife. The sum decided upon will be taken into account in determining any other sum for maintenance.

Secondly on the issue of quantum, I kept in mind the words of Lord Greene in Howard v Howard [1945] P. at page 4 "What was to be looked at is the means of the husband and by 'means' is meant what he is in fact getting or can be fairly assumed to be likely to get." The Court must, therefore, ascertain not only what money a husband has but what he can have if he likes. I have already set out what I regard as his gross average income and certain facilities at his disposal. The Petitioner said that when they lived together the Respondent contributed about $3,000 per month to the household and he paid the rent. From the overall evidence this figure didn't appear exaggerated. When she worked in his business she wasn't paid, had use of car, bought luxury items, spent on entertainment. She now earns from sewing about $200 per month and says that it takes about $1,500 per month to keep her and her child at the same level of living at which she lived with the Respondent but it has been hard to meet expenses. But I think that no reduction should be made on the amount to be awarded because of the fact that the Petitioner has been presently maintaining herself on less than she did when she lived with the Respondent. See Sampson v Sampson [1966] P. at page 53. What the court is really concerned with is the standard of living the Petitioner would have enjoyed had she remained married to the Respondent. See principle stated by Lord Merrivale in N v. N [1928] 44 T.L.R. at page 328. There is also no agreement or guarantee that the Respondent will continue to pay the house rent and the child's extra expenses of about $110.00 per month over and above normal maintenance. Payments of these amounts are to be ensured.

Application has been made by the Respondent for the condition of "dum sola et castar vixerit" to be attached to any order of maintenance made. I do not find any circumstances emerging from this evidence which justifies attaching such a condition to the award to be made. Taking everything in account I think the order should be as follows: -

(a) that the Respondent do secure to the Petitioner for her life as from December, 1982, the gross sum of $18,000 - manner of security to be settled before the Registrar. (This can produce an income of $150.00 per month); and in addition thereto,

(b) that the Respondent do pay or cause to be paid to the Petitioner (i) for the maintenance of herself the sum of $1,200 per month during their joint lives until further order; and (ii) for the maintenance and education of Maya Meera the sum of $200 per month until further order- each of the said sums to be paid on the 1st day of every calendar month, the first thereof to be on December 1st, 1982.

(c) that the Respondent pay the Petitioner her costs.

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