Holley v Holley (ZR 120 (HC)) [1965] ZMHC 14 (18 August 1965)

HOLLEY v HOLLEY (1965) ZR 120 (HC) HIGH COURT CHARLES J August 18, 1965 Flynote and Headnote [1] Civil procedure - estoppel, issue - applicable to alimony proceedings: See [4]. [2] Civil procedure - res judicata - applicable to alimony proceedings: See [4]. [3] Family law - Alimony and maintenance - change of circumstances leading to varia�on in amount: Changes in the amount of alimony to be paid may result from changes in financial circumstances such as regular income, mental, physical and financial resources, capital posi�on, and rate of current personal expenditure. [4] Family law - Alimony and maintenance - res judicata and issue estoppel applicable: The principles of res judicata and issue estoppel apply no less to proceedings for orders for alimony and proceedings to vary or discharge such orders than to other proceedings. Case cited: W v W (No. 3) [1962] 1 All ER 736; [1962] P. 124. Wood, for the pe��oner A O R Mitchley, for the respondent Judgment Charles J: This is an appeal against a decision of the Deputy Registrar dismissing an applica�on by the respondent to a matrimonial suit for varia�on of an order for payment of alimony at the rate of £67 10s 0d per month to the pe��oner. On the 19th November, 1960, the pe��oner was granted a decree of judicial separa�on from the respondent. On the 2nd December, 1960, the Deputy Registrar made an order that the respondent pay alimony to the pe��oner at the rate of £67 10s 0d per month. The order appears to have been based upon an uncontradicted affidavit by the pe��oner in which it was stated that the respondent was paying £50 per month to her, that those payments were her only income, and that the respondent was a farmer with a half share in a farm which the pe��oner believed yielded him at least £2,000 with addi�onal benefits by way of foodstuffs and transport. On the 7th May, 1962, the pe��oner obtained a decree nisi of dissolu�on of her marriage to the respondent, and the decree nisi was made absolute on the 25th August, 1962. On the 9th January, 1963, the respondent, who had been paying alimony only at the rate of £50 per month, applied for remission of arrears and a varia�on of the order. The Deputy Registrar dismissed the applica�on, and an appeal from that decision was unsuccessful. The applica�on to which this appeal relates was lodged in January, 1965. The basis of the applica�on was that the respondent's circumstances did not permit him to pay £6710s 0d per month as 1965 ZR p121 CHARLES J alimony. In support of the applica�on, the respondent filed two affidavits.... [The learned judge summarised the affidavits, which covered the respondent's financial history since 1949, and in particular since 1960, including several yearly balance sheets of the respondent's partnership after 1960.] The learned Deputy Registrar dismissed the applica�on on the ground that the respondent's circumstances had not altered sufficiently to jus�fy any modifica�on of the order for alimony, the only altera�on in circumstances being a further deteriora�ng of the capital posi�on. The grounds of appeal are, in substance, that the learned Deputy Registrar did not atach proper weight to the altera�on and wrongly considered that the respondent was bound to apply capital moneys from the partnership in payment of alimony to the detriment of the business, and that no or insufficient weight was given to the reduc�on in the appellant's resources by his remarriage and the birth of his child. In determining this appeal it is important to appreciate the learned Deputy Registrar's posi�on in rela�on to the applica�on before him. [1] [2] [3] The principles of res judicata and issue estoppel apply no less to proceedings for orders for alimony and proceedings to vary or discharge such orders than to other proceedings. Hence, the learned Deputy Registrar was not concerned with such ques�ons as whether the original order or the dismissal of the previous applica�on to vary were made on sufficient or insufficient informa�on as to the respondent's then financial posi�on and his capacity to pay, provided that the respondent had the opportunity, as he did have, correctly to place all relevant informa�on before the court. Neither was the Deputy Registrar concerned with any ques�ons pertaining to the correctness of the original order and the dismissal of the previous applica�on to vary. He was bound to accept both the original order and dismissal as having been a correct determina�on of the respondent's capacity to pay at the �me they were made, and [4] his only concern was whether such a change in the respondent's circumstances had occurred since the previous applica�on as to have affected his capacity to pay and to require a varia�on or discharge of the order with or without remission; of what changes, if any, had occurred in such factors as the respondent's regular income, his mental, physical and financial resources, the money at his disposal, however it may be used, his capital posi�on and the rate of his current personal expenditure. (See W. v W. (No. 3) [1962] 1 All ER 736 at 738 - 9.) No evidence was adducted on this applica�on to show when the respondent re-married and when the child of the second marriage was born. The ground of appeal sugges�ng that those events were changes in circumstances since the previous applica�on which were not taken into account by the learned Deputy Registrar is, therefore, untenable. Apart from that, the record of the previous applica�on shows that those two events had occurred before that applica�on and were taken into account in respect of it. 1965 ZR p122 CHARLES J The record of the previous applica�on also shows that the court had before it some informa�on which was indica�ve of the con�nued deteriora�on of the respondent's capital posi�on from 1960 - 1963. It would appear that informa�on was not as complete as was that before the Deputy Registrar on this applica�on, and that, such it was, its reliability was affected by the respondent having tried to show that his financial posi�on was bad by a misleading affidavit. Be that as it may, it must be assumed as already indicated, that the court disposed of the previous applica�on a�er fully taking into account the respondent's con�nually deteriora�ng capital from 1960 - 1963. The result is that the learned Deputy Registrar was faced with the fact that the court had not been sa�sfied on the previous applica�on that the resources available to the respondent were insufficient to enable him to sa�sfy the alimony order, notwithstanding his progressively deteriora�ng capital posi�on. The Deputy Registrar rightly decided that the only ques�on before him was whether such an insufficiency had since been created by the con�nua�on of the deteriora�on for one more year. That ques�on was answered in the nega�ve. Having regard to the limited scope afforded to answering that ques�on by reason of the principle of res judicata and issue estoppel even though the last year's deteriora�on had to be considered as a con�nua�on of a process which had been going on over the years, I am not sa�sfied that the answer was wrong. On the contrary, I do not think that it could have been otherwise. The appeal, therefore, must be dismissed. Appeal dismissed 1965 ZR p123