Leong v Leong [1990] SBHC 98; [1990] SILR 66 (30 April 1990)

[1990] SILR 66

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 213 of 1989

LEONG

v

LEONG and IRO

High Court of Solomon Islands
(Ward CJ)
Civil Case No. 213 of 1989

Hearing: 12 February, 28, 30 March, 5, 24 April 1990
Judgment: 30 April 1990

Maintenance - duration of the marriage - lump sum in lieu of instalments payments - custody and access.

Facts:

A decree nisi was ordered in favour of the Petitioner on 16 February 1990. Matters of custody and maintenance were adjourned to Chambers. The Petitioner had no income and no home. There were two children of the marriage who were living with the Petitioner. The Respondent’s financial position was difficult to assess but he lived a comfortable life.

Held:

1. No order should be made on the assets of the Respondent due to the short duration of the marriage but a lump sum of $75,000 tax free should be paid to the Petitioner in lieu of regular maintenance payments.

2. Custody of the children should be awarded to the Petitioner with reasonable access to the Respondent. The children were to be maintained by the Respondent.

Cases referred to:

None

Legislation referred to:

None

A. Nori for the Petitioner
D. Campbell for the Respondent

WARD CJ: On the wife’s petition, a decree nisi was ordered on this case on 16th February 1990 and matters of custody and maintenance were adjourned to chambers.

Affidavits of means have been filed and the court has heard some evidence on the means of the parties. The true financial position is difficult to assess.

The wife has no income and denies two transfers of $10,000 to her by the Respondent. I am not, on the evidence I have before me, satisfied such money was paid. There are two infant children which are with the Petitioner and the Respondent offers $150 per month for the two.

The Respondent’s financial position has been very difficult to assess and impossible to ascertain. I accept the difficulties I have had have stemmed from a basic ignorance of his financial affairs rather than a deliberate attempt by the Respondent to hide the facts from the court.

He admits to an income of $36,000 per annum as a salary but he also makes a profit from his gambling amounting to $30,000 so far this year and, it would appear, from the Super Club although the latter is, apparently, a member’s club.

The matter has been further complicated by the fact that substantial assets have been transferred by the Respondent to his father by deed of gift made shortly after it was clear the marriage had failed. I do not have to decide whether this was done to try and frustrate any financial settlements on the Petitioner because the Respondent has told the court that, although the family assets are all in his father’s name, that is the Chinese way and the Respondent can ask for and expect to be given money he needs. Equally on the death of his father, he will receive all these assets.

I have considered the evidence adduced. I do not recite it here neither can I claim to have reached any satisfactory conclusion about the Respondent’s financial state. What I am satisfied has been proved is that he lives a very comfortable life style in which he has access to and draws on substantial sums of money.

It would appear that the Respondent receives $36,000 gross and I would add a figure of $15000 for his various drawings from his businesses and the benefits of such matters as the vehicles being purchased from AGC. His earnings from gambling are substantial but, I accept, uncertain. I feel, on the figures he has given, an estimated annual profit of $50,000 would be realistic and probably an underestimate. This would give a real income of $100,000 gross in normal terms.

I do not feel it is right to consider his assets as part of the joint income as he clearly brought them into the marriage and the Petitioner did not contribute to them. In some circumstance, the Petitioner could claim part of such assets but, in this case where the marriage lasted a little over 4 years, it does not arise.

Both counsel agree that this case would be best resolved by a final lump sum payment rather than regular maintenance and I agree. The Respondent’s assets makes such a settlement possible and a final break is preferable.

The marriage lasted a short time but during that time the Petitioner bore two children. I do not accept she took any substantial part in the day to day running of the businesses but I do accept her contribution to the marriage was to run the house and raise the young children.

I must also take into account, in assessing the lump sum, that there is no matrimonial home and that the wife has custody of the children and no home of her own.

I have, in previous cases, referred to the situation whereby one third is considered as the basis for assessing any maintenance payments. After so short a marriage, I feel that may be too high here. I would consider a figure of one quarter would be more appropriate if I were considering maintenance payments. How is that to be used in assessing a lump sum payment? There is not and cannot be any hard and fast rule. The marriage lasted only a short time but the wife now has no home for herself and the children. The husband continues to live a very comfortable life style and has access to substantial sums of money. The wife is a young and attractive woman and may well be able to remarry but, in the meantime, must provide a home for her children.

A quarter of the assessed income would be $25,000. In view of the short period they were married, I feel that should be multiplied by three to give a figure of $75,000.

I have no evidence of the husband’s personal tax position. He may have good reasons for failing to deal with that bearing in mind his income from gambling. I accept, also, he has substantial debts but this seems not to detract from his standard of living.

In all the circumstances, I feel the sum must be ordered free of tax (i.e. any tax due must be met by the Respondent).

In order to assist the Respondent I shall order payment as follows:

i) $35,500 to be paid by 1st June 1990.

ii) The balance of $37,500 is to accrue interest at 10% per annum and to be paid $18,750 by 1st June 1991 and paid $18,750 by 1st June 1992.

As far as the children are concerned, I feel the sum originally offered was too low. However, it is also clear that, at their present age, costs are not heavy. As they grow older, the Petitioner can apply for variation.

Thus I order that custody be awarded to the Petitioner with reasonable access to the Respondent. The Respondent is concerned that he has not been able to obtain reasonable access. If that continues he also must come to the court for an order. Maintenance for the children to be paid at the rate of $250 per month for each child. In addition, the Respondent has agreed to pay school fees and I so order. He must pay all school fees including kindergarten.

Thus I summarise my orders:

Custody of both children, Michael and Ann Marie, to the Petitioner with reasonable access to the Respondent.

Respondent to pay $250 per month for each child; first payment to be on 1st May 1990.
Lump sum payment of $75,000 free of tax to the Petitioner to be paid:

$37,500 on or before 1st June 1990.

$18,750 on or before 1st June 1991.

$18,750 on or before 1st June 1992.

10% per annum interest on any money unpaid after 1990.

Costs to Petitioner.