Itokopia v Menoia [2017] SBMC 21; Domestic Case 218 of 2016 (1 March 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS )
Civil Jurisdiction

Domestic Case No. 218 of 2016

BETWEEN: HILDA ITOKOPIA CLAIMANT

AND: FRANK MENOIA RESPONDENT

Date of Hearing: 1^st December 2016
Date of Ruling: 1^st March 2017

Ms. C. Hite for the claimant
Mr. L. Chite for the respondent

DECISION ON CLAIM FOR MAINTENANCE, SCHOOL FEES AND BENEFIT TO MATRIMONIAL PROPERTIES

History of the case

1. The claimant (Hilda Itokopia) and the respondent (Frank Menoia) were married by custom in 1996. They have 4 children namely; Fiona aged 20, Fresly aged 14, Lionel aged 8 and Lester aged 5. The respondent somehow had an extramarital affair with another female and as a result, their marriage encountered instability and irrevocably ended in April 2016. The respondent deserted the claimant and the children, and lived with his current partner.
   
2. During their marriage, they acquired 3 houses and 2 vehicles^[1] as matrimonial properties. Two of the houses were; 1 eleven bedroom guest house and a two bedroom house. They were put on rent at Lata. The third one is their private residential house and was looked after by the respondent’s brother at Graciosa Bay in Santa Cruz, Temotu Province. The rentals for these two buildings were paid into business bank accounts exclusively controlled by the respondent.
   
3. In relation to the vehicles, they were already sold by the respondent on a private arrangement unknown to the claimant. The claimant did not receive any proceed of the sale.
   
4. The children lived with the claimant after the respondent remarried. There is not any evidence to suggest to the contrary that the children were routinely residing with their parents but it appears that the claimant had the sole care and custody of the children until date.
   
5. The respondent occasionally provided financial support to the children but as described by the claimant “only on request and constant demand from the children.”^[2]
   

Orders sought in the application

6. The claimant disagreed with the respondent’s attitude during the course of supporting the children and applies for the following orders:
   
   • (a) an order for maintenance (for a fortnightly sum of $1000);
     
   • (b) an order for financial support for school fees for the children; and
   • (c) an order for sharing of the proceeds derived from the rentals of the houses since they were their matrimonial properties.
     

Respondent’s contention

7. The respondent agrees to pay maintenance for the amount claimed if it is for monthly basis and not fortnightly as sought by the claimant. The reason for this is because the amount of $1000 for child maintenance is very excessive for him to pay each fortnight taking into account his means of income and his other financial commitments.
   

Issues/questions for determination

8. Three questions have been posed for me to decide on by learned counsel for the claimant. They are, first, whether or the amount of $1,000 as child maintenance each fortnight is reasonable and within the means of income of the respondent. Second, whether or not the maintenance will include school fees. Finally, whether the claimant is entitle to claim proceeds earned from the matrimonial properties.
   

Is the amount of $1000 as child maintenance per fortnight reasonable and within the means of the respondent?

9. Before deciding on the question of the means of the father, it is important to examine the needs of the children in order to ascertain whether or not they are reasonable in light of the current claim.
   
10. The sworn statement of the claimant is unclear about the exact needs of the children and how they were affected as a result of the purported negligence of the respondent to consistently support them. Paragraph 10 of that sworn statement seemed to suggest the difficulty faced by the claimant when looking after the children. It also includes her request for the respondent to provide her and the children maintenance. But, there was no mention of whether they are living in town or in the village at present; what schools they are currently attending and whether any of the children has special requirements such as child disability, illness etc... that need urgent and consistent assistance from the respondent. The non-disclosure of these important facts precludes the court from making a proper finding as to what exactly their present needs in light of their current age, the environment they live in, the demands that arise as a result of attending school and any special requirements they faced and ought to be provided to them.
    
11. Despite this, it is not disputed at the very least that the claimant and the children are in need of financial assistance from the respondent for their daily sustenance and for their school fees. These needs are generally reasonable, normally expected from a deserted partner and the children.
    
12. The respondent though unemployed has acquired and operated accommodation business at Lata. That is, the 11 bedroom and the 2 bedroom houses that are currently being put on rent. There is also an indication that he is now in the process of constructing a two-storey 20 self-contain bedrooms at Titinge in Honiara. With his current assets and his business expansion to Honiara clearly indicates that his business is growing and clearly puts him in a financially upper position compared to the claimant.
    
13. The various bank statements that were tendered revealed significant amount of monies paid into the ANZ and BSP bank accounts despite the withdrawals. For example, in the month of February 2016, he received a deposit of an amount exceeding $35,000.00 for the ANZ bank and for the BSP bank account, a deposited amount exceeding $15,000 for the month of July 2016. These are only examples of instances where he received substantial amount of monies. There were also significant amount of monies deposited in both accounts during the course of the year (refer to the bank statements filed on 14/11/2016).
    
14. Despite the numerous withdrawals from both accounts and as they presently appear outweighed the number of deposits, the significance of the transactions is that, they revealed the business operated by the respondent has been receiving constant income and on occasions, significant amount of monies.
    
15. Towards the end of last year (2016), the respective balances of the two bank accounts were less than $100. If that this the current financial position of the respondent then, this contradicts the idea of constructing another two-storey 20 self-contain bedrooms in Honiara. In other words, it is impossible to construct this type building with the current standing balances as of the end of last year. No person can build a two-storey 20 self-contain bedrooms with $64.69 and $3.93 and his means to build that building must lie somewhere.
    
16. However, if his business income, family commitments, his business obligations and expenditures and his past practices of providing financial assistance to the children are carefully considered, the court can easily work out whether the claim sought is within the financial capacity and means of the respondent.

17. I do not see the pleadings disclose the respondent’s fortnightly or monthly salary he received as the manager or proprietor of his business. This places the court in a difficult position to precisely figure out his means of income. This difficulty is exacerbated by failure to specifically plead that aspect of evidence which in my view is important for maintenance cases.

18. In these circumstances, by looking at his current family and business commitments, the current financial status of the business as revealed in the materials before me, I am of the view that $1400 is at most the amount of maintenance within the means of the respondent on a monthly basis. I reached this finding since he has been providing this amount of money to the children with $700 on a fortnight basis.
    
19. The next question now is whether it should be paid fortnightly or monthly. To make such orders as to the schedule of payments, consideration must be had to the extent of the reasonable needs of the children, the environment they lived and the potential hardship that they may face during the intervals of the payments. Unfortunately, I must re-emphasise the point that I am unable to be assisted from the pleadings the exact needs of the children except for their education.^[3] The emphasis in the submissions about their current needs, the environment they currently brought in and their educations needs are expressions not supported by the material facts or even the evidence.
    
20. Hence, taking into account the current cost of living, their ages and the daily needs that are inevitably expected for their survival, I am of the view that instead for the respondent to pay this sum of money ($1400) on monthly basis, I order that it will be paid to the claimant in the reduced amount of $700.00 per fortnight as maintenance for the children. To avoid any confusion, both parties will need to agree on the convenient mode of payment whether it will be through bank accounts or direct payment of cash to the claimant.
    

Whether or not the maintenance sought includes school fees the respondent will pay towards the children

21. Section 15 (3) (b)(i) of the Affiliation, Separation and Maintenance Act gives license for the court to order a paternal parent to provide financial assistance towards the child/children when attending school or any educational trainings even if the child/children is/are above 16 years of age.
    
22. The four children have already reached the age of attending school as revealed by their respective ages from 5 to 20. Their mother unfortunately is not working. If the fortnightly maintenance of $700 is shared amongst the children then each one will receive $175. If their daily needs and necessities are expended from this amount of money then, no doubt, this is insufficient to pay for their school fees and other expenses that are expected when they will attend school. Therefore, the only reasonable finding that is open for the court to make is, to order the respondent as the paternal father of the children to pay their school fees including other school requirements when requested by the children upon production of proforma invoices to the respondent or in any like manner. This obligation will continue until each of the child ceases to attend education.
    

Whether the claimant is entitle to claim proceeds earned from the matrimonial properties

23. I think it’s important to resolve this issue of whether or not the Magistrates Court has the power to adjudicate over sharing, distributing and disposing of interest or monies generated from matrimonial properties in the event of cessation of marriage. The consequence of this is obvious and that is, it will be a waste of court’s time and resources to hear this application which otherwise, should be reserved to the appropriate court. Not only that, but it will amount to an abuse of the court process if this court adjudicates over such application.
    
24. From the claimant’s contention, she claims proceeds from the rentals of the houses at Lata since they are matrimonial properties. As claimed, those houses were acquired during their marriage and therefore, the proceeds of the rentals should be shared or distributed between her and the respondent.
    
25. The Affiliation, Separation and Maintenance Act is silent on the issue of sharing, distributing and disposing of interest or monies generated from the matrimonial properties in the event of separation or cessation of marriage. Hence, the applicable legislation is the Married Women’s Property Act 1882.
    
26. That legislation is an Act of the United Kingdom Parliament and has general application and was in force before 1^st of January 1961. Therefore, it was adopted and became part of our laws under schedule 3 of the Constitution of Solomon Islands.
    
27. In Tavake v Tavake,^[4] Kabui J (as he was then) stated:
    

“The effect of section 17 of the Married Women’s Property Act, 1882 is that either the husband or wife or an interested party may apply to the High Court in any question as to the title to or possession of property and the court may make such order with respect to such property in dispute as it thinks fit.”^[5] (Underlined mine)

28. The issue of sharing and distribution of monies derived from a matrimonial property is matter only the High Court will hear it as the court of the first instance. Therefore, the jurisdiction to hear questions about the distribution and sharing of any interest over matrimonial properties is vested in the High Court as advised in Tavake’s case. In other words, the High Court is the only court that can adjudicate over such matters and not the Magistrates Court since by doing so it will amount to an abuse of the court process.
    
29. Hence, it is needless for me to explore more on this issue, save, to say that the case of Tavake has put to rest the issue regarding disputes over matrimonial properties. Unfortunately, I do not have the jurisdiction to hear this aspect of the claim. Therefore, I dismiss this part of the claim for want of jurisdiction.
    

ORDERS OF THE COURT

30. It follows that upon hearing from both counsels for the claimant and the respondent, it is adjudged and ordered as follows:
    

(1) The respondent shall pay fortnightly child maintenance in the sum of $700 (SBD) to the following children; Fiona aged 20, Fresly aged 14, Lionel aged 8 and Lester aged 5.

(2) Pursuant to section 15 (3) (b)(i) of the Affiliation, Separation and Maintenance Act [Cap1] the respondent will pay the school fees of the children referred to in Order 1 above including other education requirements when requested by the children upon production of proforma invoices to the respondent or in any like manner, until they cease to attain education.

(3) Parties are at liberty to apply for further Orders of the Court upon change of circumstances of this case.

(4) Refuse to grant the order for sharing of the proceeds earned from the matrimonial properties due to want of jurisdiction.

(5) No order for costs.

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(Augustine Aulanga – Principal Magistrate)

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^[1] A car and a 3 ton truck
^[2] Paragraph 12 of the sworn statement of the claimant (Hilda Itokopia) dated 23/8/2016
^[3] Paragraph 8 of the respondent’s sworn statement filed on 21/10/2016
^[4] [1998] SBHC 118; HCSI-CC 280 of 1996
^[5] At page 3