Leslie v Leslie

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Blair-Kerr, P.
• Judgment Date: 01 November 1979
• Neutral Citation: BZ 1979 CA 20
• Docket Number: Civil Appeal No. 1 of 1979
• Date: 01 November 1979

Court of Appeal

Blair-Kerr, P.; Duffus, J.A.; Inniss, J.A.

Civil Appeal No. 1 of 1979

Leslie

and

Leslie

Family Law - Husband and wife — Divorce — Ground

Facts: Husband alleged cruelty and constructive desertion based on conduct of wife — Trial judge dismissed application — Whether judgment against weight of evidence — Whether trial judge erred in holding conduct specifically aimed at him — No evidence of conduct of such a grave and weighty character on part of wife to give appellant cause to leave or to support ground of cruelty — No evidence conduct of wife caused injury to appellant's health or induced in him reasonable apprehension of such injury

Held: Appeal dismissed with costs. It is not necessary for the petitioner to prove cruelty by showing that the petitioner's conduct was specifically aimed at petitioner.

Blair-Kerr, P.

1 This is an appeal by a husband whose petition for the dissolution of his marriage was dismissed by the learned Chief Justice.

2 The parties were married on 2nd August 1955, and their first child was born a few weeks later. There are six children of the marriage now living, namely:

Oswald Laxie born on 27th September, 1977;

Mayhelen born on 6th November 1956;

Sherwin Lionel born on 22nd August 1958;

Therese Elizabeth born on 11th May 19,61;

Rudolph Lionel born on 31st May 1962;

Sherman Anarew born on 21st June 1968.

3 The husband is a musician and-he played in a popular band called “Los Belicenos”. He left Belize with the band in September 1963 and toured the neighbouring republics of Nicaragua and Honduras. According to his evidence he was absent from Belize for 11 months; but the wife said in evidence, that he did not return to Belize till October 1965. During his absence, she received no money from him. It appears that he gave some money to a friend to deliver to her, but she did not receive it.

4 The band became very popular and frequently travelled to the districts. It is not clear from the evidence when the husband's association with it terminated. At any rate, he left Belize in January 1968 and went to the United States where he remained for 4 years, returning to Belize in January 1972. His evidence was that he asked his sister to send the wife money from time to time; but, according to the wife, she received no communication from him during those 4 years and received no money from him or from any of his relatives. She had to take up paid work at the Fort George Hotel to maintain herself and her children. It also appears that her parents contributed to her keep and that of the children.

5 While he was in the United States, the husband suffered an injury of some kind as a result of which he was unable to work for a considerable period. He eventually obtained $11,900 under a court settlement in respect of his injury.

6 According to the wife, the husband started “sleeping out” about February 1972, that is to say he would leave home at 7 p.m. or 8 p.m. and return next morning at 6.30 a.m. or 8 a.m. He finally left the matrimonial home in May 1972.

7 The wife said in evidence that between April and June 1972 she received no maintenance from him; and on 28th June 1972, upon a summons taken out by her, a magistrate ordered that she retain custody of the children and that the husband pay her maintenance for herself and the children.

8 The husband's payments became irregular and the wife said she was forced to take out a number of distress warrants with a view to enforcing payment.

9 The learned judge found that by June 1972 the husband had found “compatible female companionship”; and, in his discretion statement, the husband admits that he lived with a woman named Margaret Taggart, as man and wife, from July 1972 till November 1973, and with another woman namely Daisy Morgan, also as man and wife, from January 1974 to date. According to the discretion statement, he intends to marry Daisy Morgan.

10 The allegations in the petition (which is dated 8th November 1978) are that the wife treated the husband with cruelty; that on a number of occasions she had been guilty of sexual malpractices; that she refused to cook meals for him; and that by her conduct “she evinced an intention to drive (him) from the matrimonial home with the intention of bringing cohabitation between (them) permanently to an end; that (he) was thereby on a day in May 1972 driven from the matrimonial home ……..;” and that she had thereby deserted him without cause, that is to say that she was guilty of what is sometimes referred to as “constructive desertion”.

11 The “sexual malpractice” of which the husband complained was that after the birth of the fifth child in 1962 the wife would allow him to have sexual intercourse only if he adopted the practice of coitus interruptus. It is far from clear from his evidence what effect this had upon him.

12 He said:

“I am not allowed to discharge in her. It killed my nature ………. It made my private get big and I could not get erection. This is the result I get from holding back because I could not get an erection. I went to Dr. Perez-Schofield and he told me don't hold it back. He said holding it back would kill my nature more. After I saw the doctor my wife got pregnant for me. I had stopped holding back. This was the first time after I saw the doctor. She threw that baby away…….. We continued living together and had sex off and on. Then she got pregnant with Sherman the last baby. I thereafter had sex off and on about twice a month. In January 1968 I left and went to U.S.A. to better my condition.”

13 Sherman was born in June 1968.

14 The husband said that after he returned from the United States in January 1972.

“I went to live with my wife at Prince and George Streets. I lived with her from January to last week in May. I bought a pork leg and she refused to cook it ….. she said she had no oil ……… She could have gotten oil. So I packed and left immediately because she could have cooked the meat….. The first Saturday I returned she told me I would not eject in her no more. It bothered me. The relationship was unreasonable.”

15 In cross-examination, the husband said:

“I asked my wife why she did not want me to ejaculate inside her, she said she did not want any more kids. She gave no reasons. I asked her if I could use condoms and she said she was scared it might come off in her. I did not make her go to a doctor to see if she could use any other form of contraceptive…. I got injured in U.S. in December 1970 in my back. Pains still affect. When I came back in 1972 I was having trouble with my back. I cannot do heavy work. I cannot even tie my own shoes. With that type of backache sometimes it is difficult to engage in sexual activity. That is so even now.”

16 In re-examination, the husband said:

“When I returned from the States I had difficulty in having sexual intercourse …. I had pains when I came back. This nevertheless allowed me to have sexual intercourse off and on. I could have sexual intercourse off and on when it is not paining. When I sit I have to be changing sides.”

17 The husband called Dr. Perez-Schofield as a witness. The doctor's evidence was, to a large extent, of a general nature. He was at a disadvantage as he had lost his records in a recent hurricane and was consequently unable to refresh his memory by reference to any notes which he may have made at the time the husband consulted him. Therefore, we do not know precisely, what the husband said to the doctor.

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