Leo Francis Vasquez v Karima Shoman Vasquez
| Jurisdiction | Belize |
| Judge | Hafiz-Bertram P,Woodstock-Riley JA,Foster JA |
| Judgment Date | 12 May 2022 |
| Neutral Citation | BZ 2022 CA 16 |
| Court | Court of Appeal (Belize) |
| Year | 2022 |
| Docket Number | Civil Appeal No. 24 of 2017 |
the Honourable: Madam Justice Minnet Hafiz Bertram P (Ag)
Madam Justice Marguerite Woodstock-Riley JA
Mr. Justice Peter Foster JA
Civil Appeal No. 24 of 2017
IN THE COURT OF APPEAL OF BELIZE, A.D. 2022
Ms. Audrey Matura of Matura & Co. for the Appellant
Ms. S Grinage of MH Chebat & Co. for the Respondent
Hafiz-Bertram P (Ag.)
This is an appeal against the decision of Arana J (as she was then) dated 12 July 2017, in which an Order was made for the alteration of property rights and maintenance during divorce proceedings. The appeal challenges only the order made for maintenance by the trial judge.
Karima Shoman Vasquez, the Petitioner (“the wife”) filed a Petition dated 20 October 2020 for maintenance, among other relief, made pursuant to section 148 (A) (1), section 152(1) and section 153(1) of the Supreme Court of Judicature Act, Cap 91 (‘the Act’) and section 16 of the Married Women's Property Act, Cap 176 of the Laws of Belize, Revised Edition, 2000 (‘Married Women's Property Act’). Leo Francis Vasquez, the Respondent (‘the husband’) has appealed the order of the trial judge ordering him to pay $1,000.00 per month to the wife as maintenance for the rest of her life.
Section 152 of the Act gives the trial court the power to grant maintenance. In my view, the trial judge has properly exercised her discretion after considering the statutory factors and the evidence in awarding $1,000.00 monthly to the wife. It is a decision that a reasonable judge could have reached based on the evidence. There is not sufficient basis for this Court to interfere with the order made by the trial judge.
The husband and wife were married on 26 December 1987. On 12 April 2010, the wife applied for dissolution of the marriage on the ground that the husband had committed adultery. The Decree Nisi was pronounced on 11 June 2010 and the Decree was made final and absolute on 8 October 2010.
On 20 October 2010, the wife filed a petition in the Supreme Court of Belize (‘the trial court’) and sought several reliefs which includes (a) An order for the husband to pay maintenance to her for life in the manner to which she has been accustomed, or until further order of the court; (b) the husband to bear the cost of the petition; and (c) such other relief and orders as court may deem just.
On 11 July 2013, the trial court ordered the husband to pay interim maintenance to the wife and two children but, he did not commence making payments of interim maintenance for the wife until his salary was garnished by the order of the trial court dated 18 October 2013. That order was varied by a subsequent order and at the time of the hearing before the trial judge, the husband was paying the sum of $800.00 per month to the wife as interim maintenance.
The husband and the wife filed five affidavits each and by an agreement between them on 13 October 2016, the affidavits constituted the evidence before the trial court. There was no cross-examination as agreed between the parties.
The husband and the wife have provided evidence of their income and expenditure. The husband was a Director of Finance at the Social Security Board and since 2014 is the General Manager of Corporate Services at the Social Security Board. The wife is the Office Manager at the law firm of Lisa Shoman.
The issues determined by the trial judge was whether the husband should be ordered to pay maintenance/ alimony to the wife, the form of maintenance and the quantum of maintenance.
The trial judge found that the wife is entitled to maintenance and ordered the husband to make payments to her in the form of monthly sums pursuant to section 152(2) of the Act. In relation to the quantum of maintenance, the judge ordered the husband to pay the wife $1,000.00 per month for the rest of her life. At paragraph 12 of the decision, the judge stated that she took into consideration the respective income and expenses of both parties and in reaching the quantum she had regard to all the evidence as contained in all the affidavits filed on behalf of the husband and the wife as well as the written submissions of the parties.
The husband filed a notice of appeal on 21 August 2017 appealing the decision of the trial judge from paragraphs 5 – 12. The grounds of appeal are:
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(i) The trial judge erred in law in seeking to award a relief under section 152(2) of the Act which was not applied for by the wife as her application was made specifically under section 152(1) of the Act, which provides only a “ gross sum or annual sum.”
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(ii) the trial judge failed to take into account under the heading of the ability of the husband, all the contributions of property, matrimonial assets, over-payment of maintenance that the wife had already obtained from the husband;
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(iii) the trial judge erred in law in finding a higher lifestyle that the wife was accustomed to than the one the evidence clearly pointed to and in so doing placed a heavier burden on the husband;
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(iv) Ground 4 was abandoned.
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(v) The trial judge erred in law in failing to take into account certain conduct of the parties and took into account other irrelevant conduct of the parties in determining that maintenance should be awarded;
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(vi) That in deciding the quantum of $1,000.00 per month to be paid by the husband to the wife as maintenance for the rest of her life, the judge failed to take into account the earning ability, education, age and prospect of re-marriage;
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(vii) The judge erred in law in condemning the husband to pay to the wife the cost of the proceedings in full to be agreed or assessed without taking into consideration the delay by the wife in determining the matter;
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(viii) The judgment is against the weight of the evidence.
The relief sought by the husband is as follows:
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(i) The order for the husband to pay maintenance of $1,000. to the wife be quashed;
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(ii) That the court finds the application was made under section 152(1) of the Act;
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(iii) In the alternative, if the court finds in favor of the relief under section 152(2) of the Act, that the quantum be $500.00 up to the husband's retirement;
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(iv) That the husband is not condemned to pay the cost of the application; and
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(v) Cost in the Court of Appeal.
Section 152(1) of the Act provides:
“152.-(1) The Court may, if it thinks fit, on any decree for divorce or nullity of marriage, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money or annual sum of money for any term, not exceeding her life, as having regard to her fortune, if any, to the ability of her husband and to the conduct of the parties, the Court may think to be reasonable, and the court may for that purpose order that it shall be referred to the Registrar to settle and approve a proper deed or instrument, to be executed by all the necessary parties, and may, if it thinks fit, suspend the pronouncing of the decree until the deed or instrument has been duly executed.
(2) In any such case as aforesaid the Court may, if it thinks fit, either in addition to or instead of an order under subsection (1), direct the husband to pay to the wife during the joint lives of the husband and wife such monthly or weekly sum for her maintenance and support as a Court may think reasonable….”
In the court below and in this Court, Mr. Chebat SC relied on the Belize Court of Appeal case of Thomas Vidrine v Sari Vidrine, Civil Appeal No. 2 of 2010, in which Barrow JA (as he was then) set out the applicable law for maintenance. Barrow JA, as he was then, at paragraph 40 of Vidrine's case said that the maintenance jurisdiction of the Supreme Court is contained in section 152 of the Act as was discussed in Civil Appeal No. 31 of 2008, ( Tilvan King v Linda Aguilar King unreported; judgment delivered 19 June 2009). He stated further that section 152 (2) “ extends the power of the court to order a husband to pay a wife such monthly or weekly sum for her maintenance and support as the court may think reasonable. This is the maintenance jurisdiction of the Supreme Court.”
Rule 69 of the Matrimonial Causes Rules, Cap 91 of the Subsidiary Laws of Belize (“the Rules”) provides for investigations to be done by the trial court before granting maintenance. Rule 69(1) states:
“69. (1) Upon an application for maintenance or periodical payments the pleadings when completed shall be referred to the court and the court shall investigate the averments therein contained, in the presence of the parties or their Attorneys—at—law, and for that purpose shall be at liberty to require any affidavits, the production of any document, and the attendance of the husband or wife for the purpose of being examined or cross examined, and to take the oral evidence of any witnesses, and shall direct such order to issue as to the maintenance of either party to the marriage or the children of the marriage as the court shall think fit.”
The investigation as shown in Rule 69 is in relation to matters specified in section 152 namely: (a) the fortune of the wife; (b) the ability of the husband; and (c) the conduct of the parties. See also Vidrine's case where Barrow JA, as he was then, said at para 62:
“In Belize, unlike the cases in England, there is no common list of matters to be considered both for maintenance and property adjustment applications….The closest the Act comes to making a list is to identify in s.152 the three factors to be considered, being the fortune of the wife, the...
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