Holmes v Holmes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE DILLON,LORD JUSTICE RUSSELL |
| Judgment Date | 20 March 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0320-2 |
| Docket Number | 89/0303 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 March 1989 |
[1989] EWCA Civ J0320-2
Lord Justice Purchas
Lord Justice Dillon
and
Lord Justice Russell
89/0303
No. 3197 of 1988
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (PRINCIPAL REGISTRY)
(MRS. JUSTICE HEILBRON)
Royal Courts of Justice.
MR. RICHARD BOND (instructed by Messrs. Awbry, 3ailey & Douglas) appeared on behalf of the Appellant.
MR. ANDREW McDOWALL (instructed by Messrs. Peake & Co.) appeared on behalf of the Respondent.
The court has before it two applications by Laurien Frances Janet Holmes (to whom I shall hereafter refer as "the wife"). One is an application for an extension of time in which to apply for leave to appeal and to appeal if that is granted, and we indicated at the beginning of the argument that we would be minded to grant such an extension of time. This judgment is concerned with the application for leave to appeal.
The application is in respect of the refusal by Mrs. Justice Heilbron on the 9th May, 1988 to grant leave to the wife to apply for financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 ("the 1984 Act"). Strictly speaking, this application is one to be made ex parte. But notice of the application was given to the respondent, Nigel Holmes (to whom I shall hereafter refer as "the husband"), and at the invitation of the court he has been represented on the application by Mr. McDowall, for whose presence we are grateful.
There is no judgment from which the appeal is brought, but there is a transcript of a dialogue between the judge and Miss Martin, who was making the application on behalf of the wife in the court below.
The facts for the purposes of this appeal may be shortly stated. I take them from a chronology, which has been submitted together with a skeleton argument, by Mr. Bond who has appeared for the wife, and to whom we are grateful for his skilful and careful submissions in this matter.
The parties were married in London on the 20th September. 1968. On the 17th August, 1973 the one child of their marriage (Rowland) was born, again in England. In March 1978 the family moved to New York, in the first instance intending to stay for one year, but in February 1979 they decided to stay indefinitely in New York. The reason for the removal to New York was in connection with the husband's business affairs.
On the 3rd January, 1981 a property known as Vine Cottage was bought and conveyed into the joint names of the parties. In January 1984 they bought a New York appartment at 137 East 36th Street. This was in the husband's name.
On the 21st October, 1985 the husband started proceedings for divorce in the Supreme Court of New York State. On the 7th November, 1985 other proceedings, which had been started by the wife in the Family Court, were themselves transferred to the Supreme Court and consolidated with the husband's. The whole litigation, therefore, between the parties in connection with the divorce was then in the Supreme Court and was in the list of Justice Walter M. Schackman. It is not necessary to deal with the preliminary decisions and movements in that court before the judge. On the 6th February, 1986 there was an order made by the judge granting a decree to the husband on the basis of the wife's behaviour and what in this country would be known as a cross-decree to the wife on the grounds of the husband's adultery. The determination of the custody of Rowland was adjourned. Orders were made generally on the basis that the matrimonial assets were to be divided equally. The New York appartment and Vine Cottage were to be sold, the proceeds of sale in each case to be divided between the parties. The order contained detailed provisions as to how the sales were to be carried out, and so forth. It is not necessary to say more than that the directions were extremely detailed and provided for the proper distribution of the assets. They provided for further sums to be paid to the wife out of the husband's share of the proceeds of the properties to reflect other matters, such as the loss of her 50 per cent interest in the husband's pension and profit sharing plans and also half the share of sums borrowed by the wife for her living expenses were to be reimbursed to her. The order provided also for the schooling expenses of Rowland to be met by the husband. As a matter of history, Rowland is a pupil at Charterhouse School at Godalming, where the husband pays the school fees. There were also orders for the maintenance of the wife and for Rowland.
At Christmas 1986 the wife returned to England, and has been resident in England since then. She went to Vine Cottage, where she is living at the moment. Rowland goes there for his school holidays, and for all practical purposes that is the home of both the wife and Rowland.
On the 24th March, 1987 the wife appealed against the order of Justice Walter M. Schackman. Both parties sought a new trial, which was not granted, but modifications of the judgment and order of the 6th February, 1986 were made. These provided that the sale of the parties' New York appartment should be an arm's length transaction. There was provision that proper hospital and medical insurance cover should be taken out and paid for by the husband. There was a further return to the court, and on the 12th November, 1987 the judge made an order authorising the husband to list Vine Cottage for sale and stating that the wife should execute all necessary documents on some tax matters for the husband's American tax returns.
Matters still progressed. On the 23rd February, 1988 further orders were made. I do not consider that it would forward this judgment to go into details. There were, however, orders of relevance referring to Vine Cottage. It appears that the wife was making a case to the judge that she could buy out the husband's interest in Vine Cottage. It is to be remembered that the property was in their joint names when purchased. The judge gave her an opportunity to do this, but required evidence to be furnished of her capacity to raise a mortgage to assist her to buy the husband's share, etc. Unfortunately, the wife failed to satisfy the judge, and the order for sale was confirmed. That was on the 21st March, 1988.
Although in the earlier stages the wife had been content to co-operate in the sale of Vine Cottage, at some time presumably before her return to Justice Shackman, as the result of the distress shown by Rowland at the thought of no longer having Vine Cottage as his home, her attitude changed, and she still wishes in some way or other to stay in Vine Cottage.
There was evidence that the husband was not regularly paying the maintenance payments, and that matter came before the judge at a later stage. I must return to that in a moment. In the meanwhile, on the 9th May, 1988, Mrs. Justice Heilbron entertained the wife's application and dismissed it. It is from that order that this appeal has been brought.
After that hearing there was an application before Justice Walter M. Schackman by the wife, and the husband was ordered to pay the current maintenance, retroactive to the return date of this motion, meaning the date of the application which was the 17th May, 1988. There is an issue, with which we are not able to deal, as to whether that order in the New York court discharged the arrears of maintenance or suspended them for the time being. According to the chronology, it would appear that the arrears of maintenance by the 27th May, 1988 were sums in the region of $18,000 so far as the wife was concerned and $810 so far as Rowland was concerned.
Behind this the failure on the part of the wife to co-operate in the sale of Vine Cottage was in the husband's eyes affecting his obligation to discharge his part of the order. So the matter is now in issue between them. On the 9th June, 1988 the husband applied in England to the Chancery Division of the High Court for an order for sale of Vine Cottage under section 30 of the Law of Property Act 1925. This application has been stayed pending the hearing of this appeal. I mention it only to emphasise that that application is available to the husband as a result of his interest in the property and has no connection whatever with any matrimonial issues or rights or orders.
On the 17th June, 1988, on the wife's notice of motion, an order was made requiring the husband to produce a statement of the whereabouts of the proceeds of the sale of the parties' New York appartment. This information is now available to the court. It has been put before us in a document, Schedule C, and I refer to it only to record that the credit due to the wife to be met upon the sale of the New York City appartment is $23,863, representing her 50 per cent share, and some credit, which is again an agreed figure, at $17,325, making a total of $41,188 due to her. That share is held on deposit at the Chase Manhattan Bank in Rockefeller Plaza, New York, and will clearly be earning interest which will in due course accrue to her. The current balance on that account as at the 8th August last year was $45,643.63.
That is the bare bones of the history against which this appeal must be considered.
It is now convenient to record one other matter. As I have indicated Mr. McDowall, with this court's consent, gave an undertaking on instructions from the husband that from the proceeds of the sale of Vine Cottage his share will be held by his English solicitors to secure any other sums under the maintenance orders both for the wife and for Rowland as may be found to be due. That is net...
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