Sharon Phillip Applicant/Petitioner v Dr. Cecil Phillip-respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Remy J.
• Judgment Date: 29 May 2012
• Judgment citation (vLex): [2012] ECSC J0529-3
• Docket Number: CLAIM NO. ANUHCV 2008/0045
• Court: High Court (Antigua)
• Date: 29 May 2012

[2012] ECSC J0529-3

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. ANUHCV 2008/0045

Between:

In the Matter of an Application Pursuant to Section 15 of the Divorce Act,1997

Sharon Phillip

Applicant/Petitioner

and

Dr. Cecil Phillip-respondent

DECISION

BACKGROUND

Remy J.

1 Dr. Cecil Phillip and Mrs. Sharon Phillip were married on the 25^th July 1987. Unhappy differences arose between them and their marriage ended in divorce on the 25^th October, 2009. On the 30^th May 2008, Mrs. Phillip filed an application for ancillary relief, seeking among other things, an order for monthly payments for her support. On the 15^th September 2008, Thomas J., after hearing evidence in the matter, made the following order with respect to the application for ancillary relief:-

• 1. "The Respondent (Dr. Phillip) shall pay monthly support to the Applicant (Mrs. Phillip) in the sum of $2,000.00 on the last working day of each month commencing in September 2008 until she re-marries.

• 2. The Respondent shall pay the Applicant's costs in the amount of $2,500.00

• 3. Liberty to apply."

2 By Notice of Application filed on the 7^th April 2011 (the present application), the Applicant Mrs. Phillip applied to the Court for a variation of the Order of 15^th September 2008, "so that the Respondent pays to her the sum of $2,500.00 on the last working day of each month until she re-marries, instead of the sum of $2,000.00 per month." Additionally, that the Order is to have retroactive effect from the last working day of January 2011. Mrs. Phillip seeks in the alternative an order that Dr. Phillip pay to her the lump sum of $50,000.00. The grounds of the application are stated as follows:-

• a. The Applicant has consumed all of her savings to purchase a house with the help of a mortgage. The amount of the Applicant's housing costs is $1,859.27 per month and as a proportion of the Applicant's income, greatly exceeds that for affordable housing that was once her privilege and enjoyment.

• b. There has been a change in condition, means and other circumstances of the Applicant which merits an increase in the quantum of spousal support.

3 Both Mrs. Phillip and Dr. Phillip filed Affidavits in the matter. When the matter came up for hearing on the 27^th day of March 2012, both Counsel declined to cross examine the parties. The Court heard oral submissions from Counsel and reserved its ruling in the matter.

4 Mrs. Phillip in her Affidavit filed on the 7^th April 2011, deposed that she now lives in her own house which is financed partly by a loan in the amount of $150,000.00 payable over a period of 15 years, partly by the sale of her land, and partly by an investment with CLICO that was utilized. The cost of this "modest" house is approximately $450,000.00. The house is built on her land. Mrs. Phillip deposed further that her monthly mortgage payment consumes more than 32% of her cash inflow, and that this is posing "somewhat of a strain" on her. She states that she is making this application for a variation of her spousal support so that "her housing costs as a proportion of her cash inflow is restored to an affordable basis." She states that she used to enjoy affordable housing, but now that is not the case. Paragraph 12 of the Affidavit sums up her position thus:-

"I was married for 17 years. During all of this time I had affordable housing. As a result of the breakup of the marriage, and notwithstanding my best efforts towards economic self-sufficiency, I am unable to live in affordable housing."

5 In his Affidavit in Reply filed on the 10^th June 2011, Dr. Phillip deposes, among other things, that there has been a decrease of $6,373.27 in his monthly income as a result of the fact that he is no longer employed by the Government of Antigua and Barbuda. He states that his monthly income has been cut down to half of what it used to be at the time of the making of the Order of September, 2008. He states that additionally, the cost of running his private practice has "skyrocketed" within the last year alone as the cost of supplies and utilities have increased, as well as the fact that several of his patients request a deduction in the fee after consultation as they don't have enough money to pay. He states that he is also responsible for paying tuition for his children and that he is "truly struggling" to make the payments. He states that within the last 5 months in particular, his personal mental and physical health have deteriorated "trying to keep up with all the financial obligations and keep everybody happy." Dr. Phillip deposes that he cannot afford an increase in the maintenance payment sought by Mrs. Phillip. In paragraph 14 of the Affidavit, Dr. Phillip deposes:-

"… I simply cannot afford to pay any more monies to the Applicant. I cannot afford the present monthly sum of EC $2,000.00 either."

SUBMISSIONS OF COUNSEL

6 Dr. Dorsett, Learned Counsel for Mrs. Phillip, stated that the Application is grounded and stands on a simple point of law; in particular, Section 15 of the Divorce Act which provides for variation of a spousal order, which includes variation with retrospective effect. Hestated that there are two brief grounds for the Application. Firstly, the factual grounds are that the Applicant has consumed all of her savings to purchase a house with the help of a mortgage; so there is the housing cost incurred by the Applicant. There is also evidence as to her income. Secondly, there are the "Section 15 grounds". He states that there has been a change in the circumstances and means of the Applicant. He submits that those changes have been properly made out on the Applicant's evidence.

7 In developing his submissions, Dr. Dorsett states that the Order granting the Applicant spousal support was an Order made on 15^th September, 2008 (per Thomas J.). Since that time, more than three years have passed and in those three years, it is clear from the Affidavit evidence that the Applicant has not just sat down and done nothing, but has "dusted herself, "pulled herself by her boot straps and has sought to live a productive life". She has obtained employment; further she has liquidated substantial assets in order to acquire a home. This is not a case where she is "laying up for herself treasure on earth". She's making a considerable effort to maintain a decent and reasonable standard of living. In particular she sold lands. Whether "by foresight or otherwise", she liquidated an investment in Clico; she also obtained a mortgage loan. With all of that, she has attained "a very modest house."

8 Dr. Dorsett states that the case has been made that there has been "a change in circumstance" of Mrs. Phillip. He states that the statutory requirements upon which the Court can properly grant a variation have been made out. He further states that in the response of Dr. Phillip, he (Dr. Phillip) seems to suggest that he ought not to be contributing in these circumstances because he will not obtain a proprietary interest in the house. Dr. Dorsett states that the purpose of the Order, if the court is minded to make a variation of that order (that of 2008), is not to grant the person who is under the burden of the order a proprietary interest in anything belonging to the Applicant. He states that, "in the words of government, the order for spousal support is in the form of recurrent expenditure, it is not capital expenditure"; and so any person who is subject to an order ought not to get the view that they are buying something.

9 I now turn to the rival submissions of Mrs. Benn-Roberts, Learned Counsel for Dr. Phillip. Mrs. Benn-Roberts submits that it is true that the application of Mrs. Phillip is grounded under Section 15 of the Divorce Act which basically deals with variation and changes in conditions to warrant a Court entertaining an application for variation. Counsel contends, however, that in considering the application, the Court must not just take into consideration the change in circumstances as alleged by the Applicant, but also the circumstances facing the Respondent. In other words, contends Counsel, if the Applicant has made out what on paper appears to be reasonable grounds, the Court ought not to simply grant the Order for variation without any consideration of the Respondent's financial circumstances. Counsel referred the Court to the Affidavit in Response of Dr. Phillip filed on June 10^th 2011. At paragraph 4 of that Affidavit, the Respondent begins by outlining his financial situation; he points to his decrease in income since the granting of the Order in 2008. That decrease in income became effective in February 2011 and was brought about by the fact that he is no longer employed by the Government and as such the salary, the perks and the benefits associated with the employment no longer exist. While employed with the Government, the Respondent received a salary which is noted in paragraph 4 of the affidavit as being $ 6,373.27. The perks and benefits which that particular employment brought comprised a housing allowance, a gratuity and other benefits which would have been granted on a yearly basis. Additionally, the Respondent who is presently operating only from a private practice speaks at paragraph 5 of his Affidavit of the financial difficulties he has been encountering in keeping the practice open. Paragraph 6 of the Affidavit also further explains the reason why his private practice is not as productive as he would like it to be.

10 Mrs. Benn-Roberts further states that the Respondent, in addition to his normal everyday living expenses has also contributed since 2008 and continues to contribute to the educational advancement of his children. Reference is made to paragraph 7 of the Affidavit in Response which outlines his present monthly and yearly commitment towards tuition, accommodation and payment of utilities in relation to his daughter who...