Ottley v Ottley

• Jurisdiction: Trinidad & Tobago
• Judge: Permanand, J.
• Judgment Date: 07 November 1983
• Neutral Citation: TT 1983 HC 110
• Docket Number: M 365 of 1983
• Court: High Court (Trinidad and Tobago)
• Date: 07 November 1983

High Court

Permanand, J.

M 365 of 1983

Ottley

and

Ottley

Appearances:

Miss A. Tiwary for petitioner/wife.

Mr. L.A. Forde for respondent/husband.

Family Law - Maintenance — Husband and wife — Applicant wife contended that there had been wilful neglect by the respondent husband in providing reasonable maintenance for herself and the children — Matrimonial Proceedings and Property Act, Chapter 45:51, s.28 — Finding of the court that the respondent husband had wilfully failed to provide reasonable maintenance — Court ordered that a lump sum be paid to be used for the payment of mortgage installments and monthly sums be paid for maintenance of the wife and children.

Permanand, J.

1 This is an application by summons dated April 27, 1983 by the applicant/wife against the respondent/husband under section 28 of the Matrimonial Proceedings and Property Act Chapter 45:51 for willful neglect to provide reasonable maintenance for the applicant/wife and the infant children of the marriage namely:–

Donna Michelle born on October 5, 1968

Dexter Arthur born on April 5, 1972

Giselle born on November 17, 1973

Derek born on April 10, 1980

2 And also for custody of the said children. The evidence in this matter consists of:–

• (1) Affidavits filed by the applicant/wife dated April 20, 1983; June 6, 1983 and July 26, 1983.

• (2) Affidavit of respondent dated July 1, 1983,

3 Both parties were cross-examined on their respective affidavits.

4 This court has to decide three issues:–

• (1) whether the evidence discloses that there is willful neglect to maintain the wife and children;

• (2) if so, the quantum of maintenance;

• (3) custody of the children.

5 I shall deal with the issue with respect to custody first as solicitor for the respondent/husband informed the court that the respondent/husband is not opposing the wife's application for custody of the children. Accordingly, it is by consent ordered that the custody of the children of the marriage namely:–

Donna born on October 5, 1968;

Dexter born on April 5, 1972;

Giselle born on November 17, 1973; and

Derek born on April 10, 1980;

6 be granted to the applicant/wife until further order.

7 I shall deal with the two other issues together. The evidence discloses that the husband left the matrimonial home on September 1, 1981 The husband testified that when the parties lived together, he wholly maintained the home as he stated that whatever monies the wife, obtained during her employment was kept by her for her sole use.

8 The evidence of the wife is that she is employed as a Sales Representative by Crown Life Caribbean and receives an advance monthly sum of $2,500.00. This is based on commission which she receives when policies are sold. At the time of giving evidence, this witness stated that she owed the company the sum of $8,000.00 as she had not sold policies in order to cover the commissions advanced to her. After tax, she receives $1,600.00 to $1,900.00 per month. She also owns one hundred and fifty shares in the National Commercial Bank; five hundred and fifty shares in the Bank of Commerce and a Dollar and Cents Savings Plan in Atlantic Investment Trust. The value of these assets are $7,000.00.

9 The wife is a graduate and was employed as a teacher. Counsel from the bar stated that she is unable to obtain employment which will prevent her from being in a position to look after their eldest child Donna who is now aged 15 and is retarded and needs constant supervision. For this purpose a maid is employed on a full-time basis who is paid a salary of $400.00 per month.

10 The expenses of the applicant are set out in her affidavit sworn to on April 20, 1983 and filed herein on April 29, 1983 and amount to $6, 377.95. To meet these expenses this applicant deposed her father has been lending her money.

11 The respondent/husband is employed at Kirplani's Limited (hereinafter referred to as the “Company”) since September 1, 1982 and receives $150,000.00 per annum as a salary. Prior to this he was employed at Peat Marwick Mitchell and Company as the Managing Partner. He tendered his resignation with effect from September 30, 1982 and received income there up to September 30, 1982. He received $137,000.00. His salary with that firm was $10,000.00 per month.

12 At the time of the hearing of this matter and when the respondent gave evidence, he lived in premises for which the company paid $3,500.00 per month. Although the respondent stated that the premises he occupies is not rent free, for the past year he has used same and paid no rent. He uses a Toyota Royal Saloon which the company purchased from his previous employee and paid $75, 000.00. He receives $450.00 per month for gas and maintenance of the car. He is a Director of Courtesy Travel Limited and as such is permitted to charge up to $5,000.00 per annum in traveling. While he does not get an entertainment allowance, the company pays the bills for entertainment and in the past year, the company paid $480.00.

13 The respondent owns the following properties:–

The matrimonial home which is owned jointly by the husband and the wife and is situate at Westmoorings and is valued half million.

The properties situate at:

• – Glencoe valued $180,000.00 to $200,000.00

• – Balandra valued $45,000.00

• – Tobago valued at $10,000.00

The respondent owns the following shares:–

Mc Enearney Alstons	1,100
Workers Bank	800
Scotia Bank	1,000
National Commercial Bank	400

14 He invested $40,000.00 to $50,000.00 TT in a company in Venezuela approximately five years ago, but does not know the present state of a company.

15 The respondent testified that he pays the following instalments monthly:–

(1) With respect to the matrimonial home there is a first mortgage to the National Commercial Bank in the sum of $270,000.00 $3,040.00

(2) Republic Bank — a loan of $85,000.00 – 2,900.00

(3) Trade Confirmers — $100,000.00 – 2,700.00

(4) Demand Loan at Trade Confirmers — $50,000.00 – 775.00

(5) Overdraft facility at National Commercial

Bank, Independence Square of $80,000.00 – 1,200.00 (6) Overdraft facility at Royal Bank in the sum of $75,000.00 – 1,200.00

– $11,815.00

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16 On August 4, 1983 the respondent received a letter from the National Commercial Bank stating that the arrears on the mortgage of the matrimonial home is $59,052.37. The bank demanded settlement of the said amount and failing this the property will be put up for sale. To date, this sum is still owing. The respondent has, however, testified that he is making efforts to obtain the finance and to pay off the mortgage. He testified, however, “I have a very serious cash flow problem.”

17 Under cross-examination the respondent admitted that all the instalments to the several banks and Trade Confirmers which amount to $8,775.00 were paid up to date or at least up to August, 1983 save and except the instalments to the National Commercial Bank with respect to matrimonial home which are outstanding for the past eighteen months.

18 His monthly expenses for groceries amount to $500.00. This witness gave no evidence of other expenses save and except the aforementioned instalments and also stated that he buys most of the clothing for the children during his trips to North America. In 1982 U.S.$250.00 was spent on their clothing and in 1983 U.S.$100.00 was spent. The respondent testified that he is willing to pay the sum of $4,000.00 per month — the said sum to include the instalment on the mortagae of the matrimonial home in the sum of $3,040.00 and the balance for maintenance and support of the four children of the family.

19 Solicitors for the respondent in his submissions stated that the husband is not opposing the wife's application for custody of the children, but the court has to determine whether there has been neglect to maintain and whether the neglect was wilful under Section 28 of the Matrimonial Proceeding and Property Act, and that having regard to all the evidence there has been no neglect and therefore the question of being wilful will not arise. The court should make no order for the maintenance of the wife. The husband's salary is $12,500.00 per month and tax is deducted in the sum of $1,200.00 and his monthly outgoings is $8,775.00 which does not include the mortgage instalment of $3,040.00. Counsel for the wife referred to Section 28 of the Matrimonial Proceedings and Property Act and submitted that the husband accepted under cross-examination that the sum of $2,500.00 is required for food for the family, yet he has been paying sums less than $1000.00. The payments, therefore, are not reasonable for the wife and children of the family including a child as retarded as their eldest child. Counsel referred to the various payments that the husband makes per month for the support of the children and submitted that having regard to the several instalments which the husband pays monthly it is a case of “misplaced priorities” moreso as the mortgage payments were outstanding for eighteen months.

20 Counsel submitted that the husbands income is over $200,000.00 per annum having regard to the overall perquisites including his salary $150,000.00. Counsel fixed their joint income per month as $16,000.00 (husband) and $2,600.00 (wife). Counsel referred to Rayden on Divorce 10 ^th Ed. 913 – 915 also 13th Ed. p. 864.

Le Roy Lewis v Le Roy Lewis (1955) Probate I.

Northrop v Northrop (1968) P. p. 74

Mullard v Mullard (1982) Fam. Law Vol. 12 No. 2 p. 63

Hillard v Hillard (1982) Fam. Law Vol. 12 No. 6 p. 176

Burridge v Burridge [1982] 3 A.E.R. 80

Ridley v Ridley (1953) P. p. 150 .

Bradley v Bradley [1956] 1 A.E.R. 543

Donaldson v Donaldson [1958] 2 A.E.R. 660

Ette v Ette [1965] 1 A.E.R. 341

Caras v Caras [1955] 1 A.E.R. 624

Section 27 of Matrimonial Causes Act 1973 as amended by Domestic...