Happe v Happe
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE BELDAM,SIR ROGER ORMROD |
| Judgment Date | 02 March 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0302-3 |
| Docket Number | 90/0190 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 March 1990 |
[1990] EWCA Civ J0302-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BOURNEMOUTH COUNTY COURT
HIS HONOUR JUDGE BATES Q.C.
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Beldam
and
Sir Roger Ormrod
90/0190
MR. PETER DUCKWORTH (instructed by Messrs Campbell Hooper, Frimley, Surrey) appeared on behalf of the Appellant (Petitioner).
MR. GILES HARRAP (instructed by Messrs Richards & Morgan, Bournemouth) appeared on behalf of the Respondent (Respondent).
The court has before it an appeal by Peter Frederick Happe ("the husband") against an order made by His Honour Judge Bates Q.C. in the Bournemouth County Court on 17th August 1989. This order provided that the husband should pay to Jennifer Mary Happe ("the wife"), (1) a lump sum of £7,330 and £1,000 towards her costs; (2) £150 per month to each of two children of their marriage: Peter, who was born on 6th July 1976, and Ruth, who was born on 6th September 1977. On 7th May 1989 Deputy Registrar Weintroub, on an application to vary a consent order dated 12th March 1986, had ordered a lumpsum of £7,330 to be paid by the husband to the wife. There had been no such provision in the consent order. At the same time the deputy registrar reduced an order for periodical payments of £100 per month to £5 per annum in favour of the wife but continued periodical payments of £100 per month in favour of the two children. The husband appealed to the judge against the lump sum provision. After the hearing before the registrar the wife applied to increase the payments to the two children. Both matters were before the learned judge when he made the order under appeal.
The husband's appeal from the registrar against the lump sum was dismissed. The judge acceded to the wife's application and increased the payments to each of the children to £150 per month. The husband now seeks to challenge both the order for a lump sum in favour of the wife and the provision for periodical payments in favour of the children.
The husband made a career in the Army. He joined up in 1964. He met the wife in late 1973 and they were married in February 1974. As with many service families, they did not at any time acquire a matrimonial home which they owned. They lived either in Army quarters or in rented accommodation. The marriage lasted until 1982 when they separated by agreement. The wife returned to Bournemouth where she bought a property with assistance from her family and set up a home for herself and her two children who were then aged about six and five. The wife is a nurse.
The husband continued with his service in the Army. He had a lady friend at the time of the separation to whom I shall refer as "Frances". It is not suggested that her presence on the scene was a determinative factor in the breakdown of the marriage. The husband presented a petition in 1985 which, I presume, was based on two years separation. It has not been placed before us. In a statement made pursuant to rule 76A of the Matrimonial Causes Rules 1977 submitted to the court in about March 1986, the husband offered a payment of £300 per month by way of maintenance for his family as a whole. This resulted in the consent order to which I have referred dated 12th March 1986. The marriage was dissolved by decree absolute on 14th January 1986. In 1987 Frances became pregnant and a child was born in January 1988.
On 7th October 1987 the husband served notice of intention to apply to the court to reduce the order of 12th March 1986. He swore an affidavit of the same date. In his service with the Army the husband was a physiotherapist and was fortunate enough to be able to use this profession as a bridge from army life into civilian life. In his affidavit he refers to subscriptions to professional bodies both military and civilian. It also appears that by this date, presumably against his release from the Array, the husband had acquired an interest in a property and disclosed himself as "joint owner of house (£38,000 mortgage) current market £48,000-£50,000. It appears that Frances was also a nurse as the affidavit described her as "staff nurse income ceases December 1987" (the baby was expected early in February 1988). In the affidavit the husband also disclosed that he intended to marry Frances in early February 1988. As things turned out they did marry but not until a later date. Nothing turns on this, however. On the basis of a figure for his earnings and expected earnings as a physiotherapist in the National Health Service after leaving the Army the husband sought a reduction in the periodical payments provided in the consent order.
The wife had filed a rule 76A statement but this has not been included in our papers and we are told by counsel that it is not necessary for the consideration of this appeal. However, on 27th January 1988 she issued an application supported by an affidavit of that date seeking relief under section 37 of the Matrimonial Causes Act 1973 against the disposal by the husband of part of the gratuity which it was expected he would receive upon his anticipated discharge from the Army in February 1988. The wife had also sworn an affidavit in reply to the husband's application to vary the consent order. This was dated 14th January 1988. The husband swore a further affidavit in reply to both affidavits sworn by the wife and her application under section 37. This affidavit was sworn on 29th April 1988 from which it appears that the husband had not taken his discharge from the Army as expected in February 1988 but now expected to be discharged on 31th August 1988.
In his final affidavit the husband set out in considerable detail his financial position and that of Frances. In paragraph 11 he made the point:—
"…When the respondent and I separated in 1982 we divided the small capital we had on an equal basis and I have for a substantial period of time since then paid the respondent maintenance on firstly a voluntary basis and then by consent court order thus enabling her to pay the mortgage and live securely in her property which must by now have accrued a substantial equity therein".
There was no suggestion in this affidavit of any major capital investment which the husband decided later to make in order to establish a private practice as a physiotherapist. The wife's final affidavit, sworn on 4th July 1988, asserts for the first time, so far as I am aware, that the separation in 1982 was because of the adultery between the husband and the lady who was to become his second wife. This aspect of the case clearly had no impact upon either the registrar or the judge and, in my judgment, correctly so. Finally, in her affidavit the wife produced a copy of an estimate of work which was necessary to put her own house into a reasonable state of repair. This was in the sum of £8, 000—a figure which has not been disputed by Mr. Duckworth acting for the husband.
On 26th August 1988 Mr. Registrar Wood acceded to the wife's application under section 37 of the Matrimonial Causes Act 1973 and made an order restraining the husband from dealing with or otherwise disposing of an amount of £5000 from the lump sum gratuity of £13,751.16 to be paid to him on or about 31st August 1988.
The husband brought the evidence of his position up to date in a supplemental affidavit of the 3rd March 1989. In this affidavit the husband reports his purchase on 2nd December 1988 of a property suitable to convert into accommodation and a private physiotherapy clinic. This was at 120 Mytchett Road, Mytchett, Surrey. This investment had a substantial impact upon the husband's financial position. It meant that he took on a substantial mortgage in order to purchase this property of an enhanced asset value and, therefore, his current revenue position was reduced by the necessity to service this mortgage. At the same time he included evidence of the earnings of his second wife.
The registrar, after reading the affidavits, and hearing the argument of counsel both for the husband and the wife, delivered a judgment to which it is convenient to refer shortly. The following extracts are relevant:—
"To his credit he did obtain position at Cambridge Hospital and has gone some way to establishing own practice.
Property: cost a lot of money (£140,000.00) with view to living accommodation + practice. Steps already taken to convert. But has taken mortgage of over £100, 000.00 + life policies (some previously in existence) resulting in expre £1031 p.m., £92 on policy and £120 on new policy = £1300 p.m. No income as yet produced through only a matter of time. H told me he is looking to 'turn round' in 12 months. So moderate in expectation.
Wife has bought new house. Has managed commendably well, has supported children with 200 to 1/86 then 300 p.m. Can't have been easy and has continued to work with 2 children quite young and coped with them while growing up, an obligation she will continue to fulfil".…
Lump sum
Only identifiable fund from which lump sum can be satisfied is gratuity payment.
Seems to me on s 25 W has appropriate claim against it for a lump sum.
Marriage may have been 'short'. Also abundantly clear from what I know that had it been the W's wish the marriage would have continued at W's risk. She would have had proper expectations on H's retirement from Army. Also 2 young children she's provided for.
H is in stronger wealth position, with all his expectations. 'Widow's pension' has been talked about. Always contentious. Only evidence in front of me is letter from Pensions Office 12/9.88, taken me by surprise but...
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