Gittens v Gittens

• Jurisdiction: Grenada
• Judge: Berridge J.A.
• Judgment Date: 26 April 1978
• Neutral Citation: GD 1978 CA 5
• Docket Number: Civil Appeal No. 1 of 1977
• Court: Court of Appeal (Grenada)
• Date: 26 April 1978

(W.I.A.S) Court of Appeal

Davis, C.J., Peterkin, J.A. and Berridge, J.A. (Ag.)

Civil Appeal No. 1 of 1977

Gittens

and

Gittens

Appearances:

E. De Freitas instructed be J.H.V. for the appellant.

D. Williams for the respondent.

Family law - Maintenance

1 Berridge J.A. (Ag.): This is an appeal by the wife against the decision of Nedd, J dated 6th June, 1977, varying a maintenance order made by the consent of the parties on 10 ^th April, 1974, for the payment by the respondent husband of $240 per month for the maintenance and education of the child of the marriage, Amanda, and $160.00 per month for the maintenance of the appellant who was granted a divorce from the respondent.

2 The respondent fell into arrears with his payments, and on 19th July, 1976, he was ordered to pay off the arrears by equal monthly installments of $50.00. On 10th September, 1976, the respondent filed an application for the variation of the maintenance order supported by affidavit evidence to which there was a reply by the appellant also by affidavit. Neither side was cross-examined. On 6th June 1977, the Judge having heard argument from both sides varied the order to one of $170 per month for the maintenance and support of the child, and $120 per month for the maintenance of the appellant.

3 The grounds of appeal are,

1

The learned trial judge erred in law in that:– (a) he did not deal adequately or at all with the fact that the order sought to be varied was a consent order (b) he failed to appreciate that the burden of proof imposed on the respondent was to show a material change in his circumstances and that mere re-marriage and/or the assertion that he consented to the order in the belief that he would be able to comply with its financial provisions would be insufficient to ground an application for variation. (c) he failed to deal with as he was bound to the fact that the predominant consideration is to place the petitioner and the child in the financial position they would have been in if the marriage had not broken down. 2. The learned trial judge did not deal with the question of income tax payable by the respondent on the amounts ordered to be paid to her nor did he take into account the fact that such payments are allowed as a deduction to the respondent. 3. The decision of the trial Judge is against the weight of evidence generally and in particular (a) the evidence of the respondent's declining financial position (if any) (b) the evidence of the respondent's borrowing powers or ability (c) the evidence of the respondent's ability to invest in a business.

4 In his...