Lindsey v Lindsey

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.
• Judgment Date: 27 April 1992
• Neutral Citation: MS 1992 HC 5
• Docket Number: 49 of 1991
• Date: 27 April 1992

Lindsey

and

Lindsey

Redhead, J.

49 of 1991

High Court

Family law - Maintenance and child custody — Application for custody of infant daughter who lives with defendant and for maintenance of herself and second daughter — Defendant claims that he has an enormous amount of expenditure — Respondent not frank as to his earnings to the court — Petitioner is entitled to maintenance — Custody of infant child — 13 years old — Indicated willingness to live with mother — Petitioner granted custody of daughter also — Question of reasonable access to be decided between the parties, failing such the court would decide the issue.

Redhead, J.

1 The parties were married on 11th May, 1975. On 3rd December 1991 the Petitioner obtained a decree nisi against the respondent on the ground of cruelty. There are two children of the marriage namely Junette Cassandra who was born on the 1st day of May 1974 and Julia Davina who was born on the 27th day of November, 1979.

2 The Petitioner now makes application to the court for custody of the infant child Julia who lives with her father, and for maintenance for herself and Julia. Junetta who cannot be the subject for custody by virtue of her age lives with the Petitioner by choice.

3 I shall deal first of all with the question of maintenance for the Petitioner. The Petitioner and Respondent have failed affidavits in this matter and have also given viva voce evidence. In her affidavit the Petitioner deposed that she has a monthly income of $680, when she gave evidence that her monthly income is $560.00. I do not regard this was an effort to mislead the court, but I conceive it an error.

4 However, she has given evidence of her expenditure as being $542.00. If I accept that the wife's income is $680 as stated in the affidavit, she has about $138 left from her income after her expenditure; whereas if I accept that her monthly income is $560.00 the sum $18.00. In either case the amount in question is not great, that is why I conclude that fete was no attempt to mislead the court.

5 The respondent, on the other hand in his affidavit deposed that he has a gross income of $3,000 per month from his employment. By paragraph 4 of his affidavit, he deposed that his expenses are as follows:

Telephone -	$150.00 per month
Water -	$100.00 per month
Electricity -	$250.00 per month
Property Tax -	$300.00 per month
Insurance -	$3,000 per year
Yard -	$100.00 per month
Loan -	$1,500 per month

The total expenditure, as I conceive it according to paragraph 4 is about $2,125.00 per month.

By paragraph 5 of the affidavit the respondent deposes that “I claim the following to be necessary living expenses for my daughter Julia and me,

Food	$500.00 per month
Clothes	$4,000.00 per year

Miscellaneous including school books $600.00 per year.”

6 By paragraph 6 of the affidavit the respondent deposes that he makes monthly payments towards a loan for a truck which costs $83,252.25. Overdraft account for $95,379.90 and loan in respect of a property $28,350.40.

7 The expenses referred to in paragraphs 4 and 5 of the respondent(s affidavit exceed his gross income. The loans and overdraft referred in paragraph 6 of the affidavit are quite substantial to the tune of $208,882.71. He has not given any indication in his affidavit as to how these sums are said off. In his evidence before me he has given no indication either of how this is paid off.

8 Under paragraph 6(2) of is affidavit the deponent deposes that he is also indebted to M.S. Osborne for goods credited in the sum of $5,947.78 and Romeo Wayside Store for goods in the sum of $3,842.91., Social Security and Inland Revenue for taxes and charges withheld in the sum of $3,385.20, Akoejico Ltd for goods $3,000.00; B and B Enterprises for goods credited $6,000.00.

9 Again the respondent has given no indication in the affidavit of how these sums are being repaid, neither did he in evidence before me except in answer in cross-examination as regards to one item. In cross-examination he said “I pay M.S. Osborne $500,00 per month.”

10 As I have said, taking into consideration what has been deposed in paragraphs 4 and 5 in relation tot he respondent's expenditure, I find that his. expenditure exceeds his income. When one looks at his commitments to which he deposes of in paragraph 6, I find them to be quite substantial. By paragraph 6(1) and 6(2) I find that the respondent's commitments are in the tune of $224,632.89. Apart from his commitment to Romeo which is $3,842.20, which he says in cross-examination that he pays $500.00 per month, he has given absolutely no evidence of how this huge sum is repaid.

11 The respondent has tendered in evidence documentary exhibits supporting mast of his expentidute under paragraph 6. I accept that the respondent has these expenditures he deposed of, but what must be called into question is that having these enormous expenses, it is impossible in my view for him to meet those expenses from his stated income. It is my view therefore, that the respondent was not truthful to the court in so far as his income is concerned.

12 In cross-examination...