J v G
| Jurisdiction | Bahamas |
| Judge | Barnett, C.J. |
| Judgment Date | 23 March 2010 |
| Docket Number | FAM/DIV No. 568 of 1993 |
| Court | Supreme Court (Bahamas) |
| Date | 23 March 2010 |
Supreme Court
Barnett, J.
FAM/DIV No. 568 of 1993
Ms. Pamela Brown for respondent/applicant.
Mrs. Stephanie Wells for the petitioner/respondent.
Family law - Divorce — Custody and maintenance of children of the marriage — Wife sought an order committing the husband to prison for failure to comply with the maintenance order — Evidence of the amount of arrears unreliable — Wife only sought leave after youngest child turned 18 — Inappropriate for party to allow arrears to accumulate for years and then ask the Court to enforce the arrears — Application refused.
This Notice of Motion by the Wife, the respondent herein, seeks an order that a Husband, who is the Petitioner, ‘be committed to prison for his failure to comply with the Order of the Court filed on 24th October, 1996 and for leave to enforce the payment of arrears due in excess of twelve months’.
In this action, a Decree Nisi was granted on the 22nd April, 1994. At the time of the Nisi, the children were 10, 6 and 3 years old. They are now ages 26, 22 and 19 respectively.
On the 15th July, 1996, the Court made an Order that the Husband pay to the Wife the sum of $350.00 per month for the maintenance of the said children commencing on the 5th day of August, 1996 and on the 5th day of each month there after, such payments to be paid to the Chambers of the respondent's attorney.
This application before the Court was commenced on the 24th August, 2009 when the Wife applied for leave to commence committal proceedings and leave to apply to enforce arrears in excess of 12 months.
In her affidavit in support of the application, the Wife said:
Specifically, with regard to the maintenance payments, the petitioner became delinquent almost immediately. Some months he pays the money but not in the amount ordered by the court. Often he would not pay at all. In fact, often months would pass without my receiving any money at all for the children.
Each year the payments should total $4,200.00, calculated as per the Court Order of $350.00 per month. To date the amount paid has been as follows:
5th August – Dec 1996 $350.00 (-$1,400)
1997 – 7 payments = $2,450.00 (-$1,750.00)
1998 – 9 payments = $3,150.00 (-$1,050)
1999 – 9 payments = $3,150.00 (-$1,050)
2000 – 9 payments = $3,150.00 (-$1,050)
2001 – 8 payments = $2,800.00 (-$1,400.00)
2002 – 8 payments = $2,800.00 (-$1,400.00)
2003 – 5 payments = $1,750.00 (-$2,450.00)
2004 – 5 payments = $1,750.00 (-$2,450.00)
2005 – 1 payment = $ 350.00 (-$3,850.00)
2006 – 4 payments = $1,400.00 (-$2,800.00)
2007 – 1 payment = $ 350.00 (-$3,850.00)
2008 – 0 payments (-$2,800.00) = up to August 2008, so there is a SHORTFALL OF $27,300.00.
It is my understanding that the monthly payments should continue at least our last child had reached 18 years. Our last child Joezet turned 18 in August of 2008 but is now attending college. She was attending South Eastern University, but I found it too difficult to manage the school fees so she did summer classes at Broward College and will be attending Broward fulltime in September. A copy of Joezet's acceptance letters and school fee schedule are attached hereto and collectively marked “EXHIBIT GC1”.
Over the years I have done everything for the girls. The only assistance I had was the sporadic payments made by the petitioner. I have always worked three jobs in order to maintain the children. I opened a cleaning company, worked the second shift at the toll both at the turnpike and also as a security guard on the third shift. I have just stopped the security job one month ago because it became too difficult.
Because of the petitioner's wilful disobedience of the Court's Order, the Girls and I have endured great hardship and embarrassment. Often they had to do without essentials simply because I could not prove for them.
I have telephoned the petitioner on numerous occasions in the past to get him to pay as he should, to no avail. In fact the last time I spoke to him I told him of my intention to get a committal. His response was to “go ahead see how far you get” and promptly hung up the telephone.
Later, in an affidavit sworn on the 23rd December, 2009, the Wife exhibited letters received from her attorney enclosing payments made by the Husband to him.
A perusal of the two affidavits shows a number of inconsistencies. For example, although the Wife in her first affidavit said that only 5 payments were made in 2004, the letters from her attorneys indicate that at least 6 payments were made in that year. She also stated that only one payment was made in 2005, but the letters show that at least 4 payments were made in that year.
The Husband in an affidavit sworn 4th March, 2010 said the following:
I paid maintenance regularly through the office of [her attorney] over the years that I was obligated to do so.
I am not in a position to find all my receipts. The reason that I do not have my receipts is because I had a motor car which I sold in or about the year 2006. I used to keep most of my receipts in the glove compartment of my motor car. I forgot that they were there. When I remembered about my receipts I approached the man who purchased the car and asked him for it. He told me that he had discarded all of them. The receipts which I have are the ones which I paid when I did not use the car I sold to get to [the attorneys] office. However I did in fact pay the maintenance as required.
The respondent states in paragraph 7 of her Affidavit that I made 5 payments in the year 2004. I say that I made 12 payments however I can only find 7 of my receipts which are for:
January 30, 2004 – $350.00
February 27, 2004 – 350.00
April 30, 2004 – 350.00
June 11, 2004 – 350.00
September 17, 2004 – 350.00
November 26, 2004 – 350.00
December 19, 2004 – 350.00
These Receipts are now shown to me and marked “Exhibit A”.
In 2005 I Know that I made the payments for the twelve months however the respondent says in paragraph 7 of her Affidavit that I only made one payment. I was able to find 3 of my receipts which are dated:
January 28, 2005 – 350.00
March 11, 2005 – 350.00
April 8, 2005 – 350.00
Copies of these receipts are now shown to me and marked “Exhibit B”.
In the year 1996, 7, 8, and 9, I made every payment to the respondent's attorney for her however the respondent states that I did not.
I made every payment for the 12 months of 2000, 2001, 2002 and 2003 but cannot locate all of my receipts for this period.
In the year 2006 I made payments for all 12 moths but I cannot locate all of them. The respondent says that I only made 4 payments however I was able to locate 6 of my receipts which are date:
January 19, 2006 – 350.00
March 17, 2006 – 350.00
April 13, 2006 – 350.00
May 19, 2006 – 350.00
October 20, 2006 – 350.00
December 15, 2006 – 350.00
Copies of these receipts are now shown to me and are marked “Exhibit C”.
I have not been obligated to pay maintenance for Jasrelle Lousie Cunningham for the last 8 years this means that the sum of $11,328.00 cannot be collected for Jasrelle. This amount is calculated in the following manner: 96 months x $118.00 equals $11,328.00. And the sum of $118.00 for Jocneyee for 3 years or 36 months equals $4,248.00. And the sum of $118 for Joezet for 2 years or 24 months equals $2,832.00. This means that the sum of $18,408.00 is not collectable under any circumstances pursuant to the Court Order because the payments for each child would have ceased at the age of 18.
There are so many years which have passed and so many things have happened in our lives and I say that if the respondent had such difficulty with me not paying she really should have brought her claim in a more timely manner. By waiting so long has prejudiced my position and it seems perhaps that she has also been prejudiced because she would have been in a better position to reconcile the differences. Had the respondent raised the alarm earlier we both would have been in a better position to reconcile our respective positions.
This evidence demonstrates that the Wife's assertion that there is $27,300.00 in arrears is unreliable.
To continue reading
Request your trial