Mrs WD v Mr HD
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moor |
| Judgment Date | 28 April 2015 |
| Neutral Citation | [2015] EWHC 1547 (Fam) |
| Docket Number | Claim No.: FD 09 D 02987 |
| Court | Family Division |
| Date | 28 April 2015 |
[2015] EWHC 1547 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London
WC2A 2LL
Mr Justice Moor
Claim No.: FD 09 D 02987
Mr Stewart Leech QC (instructed by Messrs Healys Solicitors LLP) appeared on behalf of the Applicant.
Mr Michael Horton (instructed by Messrs Dawoods Solicitors) appeared on behalf of the Respondent.
This is an appeal from an order made by DDJ O'Leary, dated 4 th September 2014. The judgment was not finally delivered until 19 th September. Therefore, I take the view that the date of the order should be 19 th September 2014.
I am going to refer to the parties as the husband and the wife, even though they have been divorced since 2011 and the husband has remarried. I mean no disrespect by referring to them as such. I do so merely for the sake of convenience.
The husband was born on 7 th March 1969. He is aged 46. He is a qualified accountant and a head analyst in the European Finance Department of a Bank.
The wife was born on 7 th November 1978. She is aged 36. She is a litigation executive with a law firm. She has, at times, been described as a paralegal. She has undertaken her examinations to become a legal executive.
The parties married on 13 th July 2001. Their matrimonial home was at a property in Kent. They have two children. The first of those two children is SD, who is 13 years of age. She is in the senior school at an independent girl's school. The second of the two children is ED, who is aged 10. She is in the junior department of that same school.
The school fees for 2015/2016 will be £5,135 per term for senior girls, or £15,405 per annum, and £4,141 per term for junior school pupils, or £12,423 per annum. I assume that ED has one more year in the junior school before going on to the senior school.
The parties separated on 19 th April 2009. The wife petitioned for divorce on 16 th June 2009 and filed her Form A on 14 th August 2009. A decree nisi was pronounced on 27 th October 2009.
The parties managed to reach an agreement as to their finances. DJ Reid approved their consent order on 8 th June 2011. The order is quite complicated. I will set out only the most salient points. The husband was to pay the private medical insurance of the wife, for so long as there was a periodical payments order in her favour. The matrimonial home was to be transferred to the wife. The husband wished to be released from the mortgage. I understand that the wife borrowed approximately £144,693 as an additional sum from her parents, in order to enable her to deal with this, as well as taking a mortgage herself of £189,000.
In addition, the husband was to pay to the wife spousal periodical payments of £500 per month until the youngest child attained the age of 18 or ceased full-time secondary education, whichever was the later. This was, therefore, an extendable term order.
The husband was also to pay to the wife, for the benefit of the children, the amount of maintenance that would be calculated in accordance with the Child Support Act formula. He was also to pay her 20% of his annual bonus, for the benefit of the children. That was to be reduced to 15% after SD became an adult. The husband was also to pay ED's school fees and a further 25% of his annual bonus to the wife as a contribution towards SD's school fees.
On 10 th June 2011, the decree absolute was pronounced. On 5 th March 2013, the husband applied to vary the periodical payments. He sought relief from the spousal periodical payments, which he asked to be reduced to nominal, and for the wife to pay SD's school fees in their entirety. It appears that there had been a reduction in the quantum of his bonus. However, his basic salary had increased by £30,000 to £115,000 per year. It is said that it has increased further since.
In April 2013, the wife's salary dropped to £18,000 per annum. The wife cross-applied on 22 nd April 2013. She conceded nominal spousal maintenance, but on the basis that the husband would pay SD's school fees in full.
The parties filed their Forms E in April 20The husband's showed a P60 of £156,656, which gave him a net income of £93,977. His outgoings were £4,851 per month and, for the children, £2,429, making a total of £7,280 per month, or £87,360 per annum. The husband's partner, Mrs BD, is also employed by a bank. At that point, her income was £61,000 per annum gross.
The wife's Form E discloses an earned income of £17,959 gross, which was £15,853 net. The child maintenance at the time was £16,844, plus the spousal maintenance. She indicated outgoings of £68,007 per annum and said that there was a real risk of her being made redundant.
In August 2013, the husband married Mrs BD. They are presently living with his mother, as a result of two factors; first, due to his mother's ill health and, secondly, due to the need to save for a deposit for a home of their own.
The matter came before DDJ O'Leary on 3 rd September 2014. The hearing took two days. She heard oral evidence from both parties and reserved judgment. I have already indicated the inconsistency in relation to the date of the order. The order itself provided that, on the basis that the husband agreed to pay 50% of any extras for both girls, the spousal maintenance was to cease forthwith. There was to be a clean break. The arrangements for SD were to continue as per the original order. If she obtained a scholarship, the husband would continue to make the payments as per the order of DJ Reid. I understand that SD has not obtained such a scholarship.
The first judgment from DDJ O'Leary was a draft sent on 5 th September. There followed a number of emails between the Deputy District Judge and the two counsel then instructed. These were commenced because counsel for the wife indicated an intention to appeal and said that there was no proper analysis of the respective financial positions in the draft judgment. As a result, the Deputy District Judge made some amendments to the draft.
In this appeal, the wife makes significant complaint about what happened in those emails following the first draft. It is said that the Deputy District Judge acted on the submissions made by the husband's then counsel, without giving a proper opportunity to the wife's counsel to respond.
Whilst it may be that there is some force in those complaints, I have decided to confine my consideration to the merits of the appeal itself. I accept Mr Horton's submission that the appeal is from the order, not the judgment (see the decision of the Court of Appeal in Vaughan v Vaughan [2007] EWCA 1085; [2008] 1 FLR 1108). However, I also consider that on this appeal the wife must now have the opportunity to respond to anything that was put forward in the husband's further submissions to the Deputy District Judge.
As I have indicated, the reviewed judgment was produced on 19 th September 2014. The Deputy District Judge recited that the husband had told her that he had brought the case back because he did not think the court order was fair. She found that the wife did earn £40,000 gross in 2013, but that this was not the position now. She also found that the husband had completely overlooked the wife's childcare responsibilities and the impact of the Jackson reforms on the area of work in which she specialises, namely personal injury. The Deputy District Judge, therefore, did not accept that the wife could earn £40,000 per annum. It is quite clear that the Judge accepted the wife's earnings disclosed as being her earning capacity.
Furthermore, the Deputy District Judge found that there was no cohabitation between the wife and her boyfriend, Mr X. She also found that there was no financial support from Mr X to the wife, although it does appear that he has been lending her his car when he does not need it.
The Deputy District Judge also found that the husband's bonuses have not been as great in the last couple of years, but that, nevertheless, the wife had still been earning far less than the husband. She found that his earnings were £163,692 per annum gross, and that his second wife earned approximately £50,000 per annum.
The Deputy District Judge also said that the wife was trying to amend the original order in relation to SD's school fees. That is, of course, correct. However, the way in which it is termed in the judgment appears to amount to a criticism. That cannot be right, in circumstances where the husband was, himself, trying to do exactly the same in relation to the order for maintenance.
The Deputy District Judge also found that the wife's forecasted budget was unrealistic and said that she was able to top-up SD's school fees where necessary. She said that there were other claims that the wife could make, such as child or working tax credit. Complaint is made about that, as it is said that this was only introduced by counsel for the husband after the delivery of the draft judgment. That is not accepted by Mr Horton, who points to a reference to it in the documents before the Deputy District Judge. Nevertheless, there is no doubt that it was not canvassed fully before her.
Finally, the Deputy District Judge came to the conclusion that there should be a clean break, saying that the wife does not need the safety net of a nominal periodical payments order and that the medical insurance did not affect the position. She said that, in part, the wife relied on a fear of future litigation.
The wife's Notice of Appeal is dated October 2014. It...
To continue reading
Request your trial
-
H v T (judicial change of mind)
...Civ 940, [2012] 1 FLR 622. Piglowska v Piglowski[1999] 2 FCR 481, [1999] 1 WLR 1360, [1999] 3 All ER 632, [1999] 2 FLR 763. WD v HD[2015] EWHC 1547 (Fam), [2017] 1 FLR White v White [2001] 1 AC 596, [2000] 3 FCR 555, [2000] 3 WLR 1571, [2001] 1 All ER 1, [2000] 2 FLR 981. Appeal The husband......
-
Lockwood v Greenbaum
...instance was wrong or unjust because of a serious procedural or other irregularity. If not, the appeal will be dismissed (WD v HD [2015] EWHC 1547 (Fam); [2017] 1 FLR 160). She argues that the only real argument is the relationship debt, which Mr Greenbaum was prepared to forego. Mr Finch d......