Greuner v Greuner
|Court of Appeal (Grenada)
|29 February 2000
|GD 2000 CA 3
|Motion No. 13 of 1999
|29 February 2000
Court of Appeal
Motion No. 13 of 1999
Mr. J. Bristol and Mrs. L. Grant for the applicant
Mrs. C. Edwards and Mrs. N. Byer for the respondent
Family law - Divorce decree absolute — Extension of time to appeal — Parties married 21 years prior to separation — Parents of two children — Discovery made that divorce proceedings also instituted in USA — Application made for extension of time to appeal from order of decree nisi
Reasons for delay not meritorious. Applicant had little chance of success in appeal and prejudice to respondent evident. Application for extension of time accordingly refused.
This is an application for extension of time to appeal from an Order of Decree Nisi made by Alleyne, J. on June 4, 1999 and the Decree Absolute which followed on July 23, 1999.
The Parties are both medical doctors. The applicant was born in Grenada on December 20, 1948 and the respondent was born in Germany on May 16, 1930. They were married on August 18, 1973 and separated in 1994. There are two children; Steven born August 2, 1979 and Michelle born June 5, 1982.
On January 14, 1997 the respondent caused to be filed a petition for divorce in the High Court of Grenada in Suit No. 5 of 1997. As indicated above decrees nisi and absolute were made in June and July last year.
The motion for extension of time was filed on December 3, 1999 and it was supported by an affidavit filed by the applicant on December 13, 1999.
In his submissions learned counsel for the applicant stated that there were concurrent proceedings in the U.S.A. and those proceedings existed at the time proceedings in Grenada commenced. The applicant avers that it was not until October 1999, some months after the decree nisi was granted, that she first became aware of the proceedings in the U.S.A.
Counsel concedes that the applicant's averment is contested but asks the court to conclude that the applicant had no knowledge of these proceedings in 1994 as alleged by the respondent, and there is in fact no evidence by the respondent asserting knowledge by the applicant prior to October, 1999.
According to the applicant, in her affidavit, she discovered in October 1999 that the respondent had filed a complaint for divorce in Tennessee, U.S.A. on January 4, 1995. She admitted that she was not given notice at any time prior to that date of the divorce suit. However, on October 25, 1999 she filed an answer to the complaint and on October 28, obtained a temporary Restraining Order in the Circuit Court for Williamson County, Tennessee, restraining the respondent from taking further action in the proceedings filed in the High Court of Grenada.
Learned counsel for the applicant submitted that they have been deprived of the opportunity of putting to the High Court arguments that the Grenada proceedings should be stayed pursuant to the law and the U.S. proceedings should govern the dissolution of the marriage. Counsel submitted that a requirement of the law is to put all things before the court to determine whether there should be a stay.
The applicant asked that the matter be referred to the High Court for rehearing.
In the course of his submissions learned counsel referred to the following authorities:
(1) Rayden and Jackson's Law and Practice in Divorce and Family Matters, Family Proceedings Rules 1991, Appendix 2.
(b) Domicile and Matrimonial Proceedings Act 1973, Sch 1.
(3) West Indies Associated States Supreme Court (Grenada) Act, Cap 336, Section 33(2)(e).
(5) Rayden and Jackson's Law 16 th ed. Para 14.7.
Learned counsel for the respondent referred to the case of a decision of this court where the principles applicable for grant of such applications were laid down. Counsel submitted that the length of the delay was inordinate and in considering the reasons the Applicant had to be forthright. Counsel made reference to the affidavits of the respondent and submitted that the applicant's contentions that she knew of the Tennessee proceedings only in October 1999 were untrue.
Learned counsel submitted that the applicant was not forthright with the Tennessee Court. Counsel stated that months after the decree absolute in Grenada, without being served in the Tennessee proceedings, she makes answer and files a counter claim and then obtains an injunction to stay the Grenada proceedings. Counsel points to the exhibits MPG 1 and MPG 2 and the affidavit in support of the applicant's motion.
Learned counsel submitted that there was little chance of the appeal succeeding and that one cannot have proceedings ad infinitum. In the course of her submissions counsel referred to the case of and the West Indies Associated States Supreme Court (Grenada) Act and in addition made reference to the following:
(b) Bromley's Family Law, Eight Edition, Pages 231, 237.
3, 1995. Since then I have followed that decision in a case from Tortola in February 1998; in a case from Grenada decided on July 16, 1998; and several others. was decided in Antigua by the Full Court on July The cases state that Order 64, rule 6(2) requires that every application for extension of time when made to a judge of the court shall be supported by an affidavit setting fourth substantial reasons for the application and by grounds of appeal which prima facie show good cause therefore. In Singh, J.A. indicated the matters which the court takes into account in deciding whether to grant an extension of time. They are the following: –
(1) the length of the delay;
(b) the reasons for the delay;
(c) the chances of the appeal succeeding if the application is granted;
(d) the degree of prejudice to the respondent.
Length of delay: The decree nisi was made on June 4, 1999 and the decree absolute on July 23, 1999. The motion for extension of time to appeal was more than four months after decree absolute. This is an appreciable length of time.
Reasons for delay. It appears that the Applicant had no reason to appeal against either the decree nisi or the decree absolute before October 19, 1999 when according to her she first heard of the Tennessee proceedings. It is therefore reasonable to suppose this is the only reason for the appeal.
The applicant must have realised that the decree absolute was granted close to 3 months earlier yet she waited another period in excess of six weeks to file the notice of motion. I am not persuaded by the reasons she gave for not acting earlier. She was very active in Tennessee taking steps in an action in which she was not served and ignoring the Grenada decrees. She could have sought the opinion of counsel before the time she did. She certainly did not behave like the wife in at page 97 who, “when she did know of it she immediately took steps to set it aside.”
I shall not adjudicate upon the respective affidavits of the parties as to who is speaking the truth, each accusing the other of falsehoods. It is perhaps safer to agree with learned counsel for the applicant and conclude that the Applicant had no knowledge of the Tennessee proceedings before October, 1999.
Yet I observe in an affidavit filed by the respondent on November 20, 1998 in Suit 5 of 1997, after stating that it was untrue that the applicant was unaware that he contemplated divorce, said that he had instituted proceedings in Nashville and sought an injunction to protect Steven and himself from the applicant's harassment and when the applicant discovered he had filed for divorce she became upset and increased her harassment and profanity and out of fear he instructed his lawyer to discontinue all proceedings.
This was an affidavit filed in the divorce suit 5 of 1997 on November 20, 1998. It would seem to follow that from that the date the applicant knew or...
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