Marryshow v Marryshow

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Wooding, C.J.
• Judgment Date: 11 May 1963
• Neutral Citation: TT 1963 CA 29
• Docket Number: No. 4 of 1963
• Date: 11 May 1963

Court of Appeal

Wooding C.J, Hyatali, J.A.; McShine J.A

No. 4 of 1963

Marryshow

and

Marryshow

Family law - Husband and wife — Maintenance Order for security — Discretion of the Court —

Whether “ability to pay” distinguished from “potential capacity” in the sense of probable ability to pay at some future time

Facts: Appellant was ordered to pay the respondent $75 per month for her maintenance, and to secure to the respondent for her life until further order, the gross sum of $10,000. Appellant appealed against the order of security only

Held: Even though the appellant had appealed against the order for security only the court had power to review the whole of the order and it would proceed to do so since it would be unrealistic to review the one without reviewing them both. There was no warrant for interfering with the exercise of the judge's discretion in ordering the appellant to secure the gross sum of $10,000 to the wife for her life but as the court had no power to vary an order for security the words “until further order” should be deleted therefrom. Appeal dismissed.

The judge misdirected himself in law in misconstruing the appellant's “ability to pay” to mean “potential capacity” in the sense of probable ability at some future time. Since there was no evidence to show that the appellant had made no effort to find employment or chose to refuse to earn money, the order for the respondent's maintenance should in the light of all the relevant factors be reduced from $75 per month to $10 per month. Order therefore varied.

Wooding, C.J.

1 Julien Albert Marryshow, to whom I shall hereafter refer “the husband”, was a secretary to the Federal Minister of Communication when the Federation of the West Indies was dissolved in 1962. He had been married to Dorothy Edith Marryshow, to whom I shall hereafter refer as “the wife”, but by a decree absolute made on 3rd August 1961 his marriage, too, was dissolved — on petition by the wife. Upon her consequent application for an order for the maintenance of herself and Jeremy Andrew, only child of the marriage, Rees J. ordered -

• (a) that the husband do pay or cause to be paid to the wife.

  • i. for the maintenance of herself the sum of $75.00 per month during their joint lives until further order, and

  • ii. for the support and education of Jeremy Andrew the sum, which had been agreed between the parties, of $50.00 per month until further order,

  each of the said sum to be paid on the 1st day of every calendar month, the first thereof to be tan the 1st day of October 1962; and, in addition thereto,

• (b) that the husband do secure to the wife for her life until further order as from the 1st day of January 1963 the gross sum of $10,000.00.

2 The husband has appealed from so much only of the order as requires him to secure to the wife that having regard to the limited scope of the appeal it is not open to this court or, alternatively, this court ought not in any way to disturb or vary the order for periodic payments for her maintenance. But section 39(1)(a) of the Supreme Court of Judicature Act, 1962, invests the court with ample and unrestricted authority to make any order that the, justice of the case may require; and, since the periodic payments and the security ordered were intended cumulatively to provide for the wife's maintenance, it would in my opinion be quite unrealistic to review the one without reviewing them both. I shall proceed accordingly.

3 The evidence before the learned judge was very scant. It disclosed that the marriage had been dissolved in consequence of the husband's adultery, that the wife is employed with a firm of solicitors by whom she is paid $300.00 per month, that when the husband had been secretary to the Federal Minister he was in receipt of $640.00 per month but that at present he is unemployed and is paid a pension of approximately $80.00 per month, and that he became entitled to and had been paid compensation for loss of office in the sum of $35,000.00 of which $30,000.00 is lodged in a commercial bank “pending investment”. It was the husband's affidavit alone which furnished the evidence of his means, and this evidence was accepted, without contest by the wife. The learned judge accordingly based his order thereon. Before us, however, the husband sought leave to file a supplemental affidavit to depose that the compensation paid to him as aforesaid was, and is, subject to certain condition of refundability specified in section 12 of Part I of the Schedule to the West Indies (Retirement and Compensation) Order in Council, 1962, but no such point having been raised before the learned judge and no evidence having been tendered to suggest that the compensation to which he had sworn, without qualification, that he had become entitled was in any what circumstances or to any and what extent likely to become refundable by him, leave was refused.

4 The jurisdiction of the High Court in relation to matrimonial causes and matters is the jurisdiction which had been vested in and was exercisable by the High Court of Justice in England under the provisions of the Supreme Court of Judicature (Consolidation) Act, 1925, to which I shall hereafter refer as “the Act.” As regards the jurisdiction to secure a gross or annual sum to a wife and/or to direct the making of periodic payments to her, it is abundantly clear from section 190 sub-section (10 and (2) of the Act that it is for the judge hearing the application to say what order, if any, he thinks fit to make and what sums he deems reasonable to be secured and/or periodically paid. His, then, is a very wide discretion. Accordingly, in keeping with well- known and well-established principles, an appellate court should be slow to interfere with any individual exercise of this discretion. It is consequently not enough for the husband to show that this court would or might have made a different order. He must go further and established for insurance, either that the learned judge acted on a wrong principle, or that he took into account matters of fact or inducement of which he had no evidence, or, as Asquith L.J. said in Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All E.R. 343 at p. 345, that the decision exceeds the generous ambit within which reasonable disagreement is possible and is, in fact, plainly wrong.”

5 Section 190(1) of the Act obliges a judge, when exceeding his (if any), the ability of her husband and the conduct of the parties. This the learned judge purported to do. But it is contended that there was no evidence on which he could hold, as he did, that the wife was entirely blameless and that it was the husband's conduct which had led to the dissolution of the marriage. In my opinion, on a fair appreciation of his judgment, he took factually into account no more than the...