Dorney-Kingdom v Dorney-Kingdom
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0615-16 |
| Docket Number | CCFMI 00/0120/B1 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 June 2000 |
[2000] EWCA Civ J0615-16
The President Lord Justice Thorpe
Mrs Justice Smith
CCFMI 00/0120/B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SLOUGH COUNTY COURT
(His Honour Judge Holden)
Royal Courts of Justice
Strand
London WC2
MR. N. YATES (instructed by Messrs Peter Knipe & Co., Chalfont St. Peter, Bucks) appeared on behalf of the Appellant/Petitioner.
MR. D. BRAZIL (instructed by Messrs B P Collins, Gerrards Cross) appeared on behalf of the Respondent/Respondent.
LORD JUSTICE THORPE: This appeal arises out of ancillary relief proceedings in the Slough County Court. There has already been one appeal in the court of trial. This is therefore now classified as a second tier appeal, and it is a very great misfortune for this family that they should find themselves the victims of such extended litigation.
The parties married on 19th November 1983. Both were working, the husband at the time being employed by LWT, the wife at all material times a nurse. Three children were born, Elizabeth, Jenny and Richard, now respectively 14, 12 and 9. As each child arrived the wife ceased working for a time but always returned at the first opportunity. The husband earned his living from self employment in the later years of marriage, and he it was who initiated the divorce proceedings with a petition filed on 3rd March 1998, which led to the dissolution of the marriage by decree nisi in August 1998 and by decree absolute in July 1999. Between the two decrees there were contested Children Act proceedings in relation to the children's residence. They were resolved by an order of 19th April 1999 committing the residence of all three children to the mother, on the basis of the father's undertaking to vacate the final matrimonial home within seven weeks.
The final matrimonial home is a property that the parties acquired at an early stage in their relationship. It is Wyndham Lodge at Chalfont St Peter. It is plainly a very nice home which currently has a value of approximately £260,000.
The ancillary relief proceedings came before District Judge Fortgang, who made an order that broadly reflected the wife's case that, because she had the responsibility to provide a home for the children, she should receive outright the husband's half share in Wyndham Lodge. In the meantime, the husband had rehoused himself in a property in the neighbourhood called St. Louis. Between his acquisition of the property and the date of the hearing before the District Judge he spent considerable sums making it both habitable and comfortable, with the result that by the date of the final hearing on 19th July it had an agreed value of £160,000. It was financed with a mortgage of £90,000 and a family loan of £16,000. On those figures that would leave an equity of about £54,000. But it is the husband's case that in reality the finances for making the house habitable and comfortable had come from his bank as well as from credit card expenditure, including specific expenditure on central heating and on the extension of the ground floor premises. It is the husband's case that of his debts of £57,000 as at the date of final hearing, approximately £50,000 represented the cost of the improvements to St. Louis, and that in reality its agreed value of £160,000 was more or less precisely matched by his investment in the property from the three sources, mortgage, family loan and additional borrowings.
The District Judge was undoubtedly fortified in ordering the transfer that he did by the husband's achievements in having rehoused himself in an adjoining property which was suitable for contact arrangements. The judge gave little explanation for rejecting the husband's case that this was a family situation that not only permitted but cried out for a Mesher order. He had sought a deferred charge representing 30 per cent of the gross value of the property. The District Judge's order in relation to income was on any view a somewhat muddled adjudication. He made a finding that the wife's entitlement for herself was not substantive but only nominal. The husband's case was that he should provide £200 a month for each of the three children. The wife's case was that her budget could not be sustained on a contribution of less than £1,200 per calendar month. The District Judge ended up making an order:
"[the husband] do pay [to the wife] for the benefit of each of the three children at a rate of £200 per month until 17 years or cease full time tertiary education whichever is the later or further order, such sums to be reduced pro tanto by any sums payable as child support maintenance in respect of the children pursuant to the Child Support Act 1991, the sums to be paid by standing order."
It seems from exchanges between the District Judge and Mr. Brazil, who has represented the wife throughout, that it was the District Judge's understanding that the wife would make an application to the Child Support Agency which would lead to an assessment, bringing into her pocket an additional amount beyond that which the District Judge had ordered. As I will subsequently explain, that perception was simply impossible as a matter of law. In the circumstances, it is not perhaps surprising that the wife filed her notice of appeal from the District Judge's order extremely promptly, even before the order was perfected. The husband counter-attacked with his notice of appeal of 6th August, by which he sought to obtain from the circuit judge the Mesher order which the District Judge had refused.
There was then a hearing before His Honour Judge Holden who is one of the circuit judges of that court specifically authorised to take ancillary relief appeals from District Judges. He sat on 16th September. He had before him Mr. Brazil for the wife and the husband in person. At the end of a hearing, which was clearly conducted in a homely and kindly atmosphere, he allowed the wife's appeal, although fixing a sum of £1,000 per month rather than the higher sum of £1,200 per month which she had sought. He dismissed the husband's attempt to establish his entitlement to a Mesher order.
It is necessary to recite verbatim the order that Judge Holden made. Paragraph 4 of his order reads as follows:
"[the husband] do pay or cause to be paid to [the wife] periodical payments by standing order for the benefit of the three children until they shall respectively attain the age of 17 years or cease full time education, whichever is the later or further order of the court and to the respondent until the youngest surviving child of the family shall attain the age of 17 years or ceases full time education, whichever is the later or further order of the court in the global sum of £999 payable monthly on the first of each month.
Such sums to be reduced pro tanto by any sums payable as child support maintenance in respect of the children pursuant to the Child Support Act 1991, and in any event, be reduced by £400 on each occasion that a child attains the age of 17 years or ceases full time education whichever is the later or further order. Upon the youngest surviving child of the family attaining the age of 17 or ceasing full time education, whichever is the later or further order of the court [the wife's] claims for periodical payments do stand dismissed and [the wife] shall not be entitled from that time to make any further application pursuant to sections 23(a) and (b) of the Matrimonial Causes Act 1973 and it is directed pursuant to section 28(1A) that [she] shall not be entitled to apply for an extension of the terms of the above order."
So that on its face the judge, who again had made a finding that the wife was not entitled to more than a nominal order for herself, made an order to the effect that the husband maintain the children at the rate of £333 per month each. He had provided that in the form that it should be paid to the wife for the benefit of the children, and that her entitlement for herself should stand dismissed at such a time as she ceased to bear responsibility for the children's care.
That order is as vulnerable as the order made by the District Judge. It is not surprising that the husband applied to this court for permission to appeal on 9th December and permission was in fact granted on paper on 19th January. Having thus constituted the appeal and stayed the execution of the order below pending determination, the case comes in for hearing today with the advantage of legal representation for the husband. Mr. Yates has prepared for our assistance a chronology, an extensive skeleton argument, fully crossed referenced to the core bundle, a list and bundle of authorities on which he relies, and finally a condensation of the essential points that he wishes to argue in relation to the vulnerable order for periodical payments.
This appeal really raises two distinct points for decision. The first is: did the court have jurisdiction to make the order which it purported to make on 16th September? If no, has the court any jurisdiction to make an order in respect of periodical payments for the children? The second point is whether the husband is entitled to some share of this jointly owned asset at such date as the last of the children flies the nest.
The first point is a matter of law rather than one of discretion and can be relatively simply decided. One purpose of the Child Support...
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