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FML v LLS [2015] WSFC 1 (17 April 2015)

IN THE FAMILY COURT OF SAMOA
FML v LLS [2015] WSFC 1


Case name:
FML v LLS


Citation:


Decision date:
17 April 2015


Parties:
FML (Applicant) LLS (Respondent)


Hearing date(s):
11 March 2015


File number(s):



Jurisdiction:
FAMILY


Place of delivery:
Family Court of Samoa, Mulinuu


Judge(s):
Judge Tafaoimalo Leilani Tuala-Warren


On appeal from:


Order:


Representation:
Ms Mareva Betham-Annandale for the Applicant & Mr Patrick Fepuleai for the Respondent


Catchwords:
divorce – alimony – maintenance –


Words and phrases:
motion to strike out – dissolution of marriage –


Legislation cited:


Cases cited:
Letica v Letica [1976] 1 NZLR 667
Z v Z (No 2) [1997] 2 NZLR 258, CA

Summary of decision:

IN THE FAMILY COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER
of the Maintenance and Affiliation Act 1967, Part V


AND


IN THE MATTER
of the Divorce and Matrimonial Causes Ordinance 1961 Part III


AND


BETWEEN


F.M.L of Vailima,
Applicant


AND


L.L.S of Solosolo,
Respondent


Counsel:
Ms Mareva Betham-Annandale for the Applicant
Mr Patrick Fepuleai for the Respondent


Date of Hearing: 11 March 2015


Decision delivered: 17 April 2015

RESERVED JUDGMENT OF DCJ TUALA-WARREN

Background

  1. Ms F.M.L and Mr L.L.S were married in November 2002. Prior to marriage they lived together for a period of time. In all, they were together for about 17 years. They did not have children together but Ms F.M.L had three children from a previous relationship and Mr L.L.S had one child from a previous relationship.
  2. Mr L.L.S divorced in March 2014. Mr L.L.S remarried last year. He has three children from his current wife all of whom were born while he was still with Ms F.M.L. His current wife has two older children from her previous marriage.
  3. Ms F.M.L filed for alimony in June 2014. Ms F.M.L is claiming $2000 per month for her to meet her needs.
  4. The matter was referred to mediation which proceeded on 9 October 2014.
  5. As a result of the mediation, there was a partially mediated agreement whereby Mr L.L.S agreed to pay alimony to Ms F.M.L pending a decision by him within a week as to the amount of the alimony. Mr L.L.S never returned or communicated an amount.
  6. On 6 November 2014, the partially mediated agreement was endorsed as a Court Order. Mr L.L.S then filed a Motion to Strike Out on 3 December 2014 which was heard on 9 December 2014. This Court dismissed the Motion to Strike Out on the same date.
  7. Mr L.L.S maintains his position in the Strike Out Proceedings that he should not pay alimony to Ms F.M.L as he now has a duty to maintain his current wife and children.
  8. Mr L.L.S is the General Manager for National Health Services (NHS) and has been so for about four years.

Issues for Determination

  1. Given the proceedings to date, there is no argument that alimony must be paid by Mr L.L.S to Ms F.M.L. That is what he agreed to in mediation and has been endorsed by a Court Order.
  2. The issues for determination are firstly, the quantum of alimony to be paid by Mr L.L.S, and secondly the duration of the order for alimony.

Law

  1. The primary issue here being quantum, section 22A of the Divorce and Matrimonial Causes Ordinance 1961 (Ordinance) relevantly provides;
  2. This is the first case of alimony after dissolution of marriage in the Family Court of Samoa. Therefore this Court has regard to New Zealand cases. The New Zealand cases come with a substantive caveat that in issues of liability, quantum and duration of maintenance/alimony, the New Zealand Courts are likely making decisions having regard to all aspects of matrimonial property, which in New Zealand are determined from a presumption of equal sharing of such property.
  3. This Court has no jurisdiction to deal with matrimonial property, and statements of principle that emerge from the New Zealand cases may need to be approached with caution, given that the jurisprudence there is developing in a rather different factual and legal context from Samoa.
  4. Notwithstanding the caveat, however, a number of helpful principles emerge from New Zealand law to assist with quantum;
    1. Support of the children of the new partner as well as support of children born as a result of the new relationship is relevant when considering the commitments of each party.( Letica v Letica [1976] 1 NZLR 667);
    2. The term “special circumstances” which the Court must consider has been described in the following way;
    1. A special circumstance can be the husband’s repartnering with a woman earning more than the husband (G v G [2003] NZFLR 289).
  5. The approach of the courts in New Zealand in terms of duration may also be helpful. In New Zealand, an overall principle is that maintenance is not to be a life-long obligation attaching automatically to marriage but rather is designed to provide temporary support to enable parties to overcome the effects of living together and to adjust to new circumstances. It is contemplated that maintenance after dissolution will be temporary, with each party assuming responsibility for meeting the party’s own needs within a reasonable period. (Z v Z (No 2)[1997] 2 NZLR 258).

The Applicant’s claim

  1. Ms F.M.L’s claim is for $2000 per month for alimony for the rest of her life as she claims that she is not able to adequately support herself. She says that she relies on her children for food, medication, and daily needs.
  2. She claims monthly expenses as follows:

Food $600

Water $60

Electricity $200

Petrol $400

Medical $200

Clothing $140

Travel (overseas for medical treatment) $200

Miscellaneous $200

  1. Ms F.M.L concedes that $400 per month will be sufficient for the type of food she needs for her health conditions.
  2. In terms of miscellaneous expenses, she says that these are made up of her contributions for church, Mafutaga o Tina and personal items.

Discussion

Issue 1: Amount payable

Age and State of Health

  1. The age and state of health of the parties must be considered under section 22A of the Ordinance.
  2. The evidence before the Court which I accept is that Ms F.M.L is 58 years old and has long term health conditions of high blood pressure, diabetes and high cholesterol.
  3. It is not disputed that Ms F.M.L retired in 2013 from a job of 32 years with the Development Bank of Samoa. She found a part time job supervising the bar at the RSA night club for three nights a week after she retired. The bar belongs to her cousin. She received $100 per night from that job. She left in January 2015 to go to New Zealand and when she came back, she did not go back to her part time job.
  4. When asked by Counsel for the Respondent why she was not looking for work, she replied that people do not hire her because she is retired.
  5. However apart from the part time job at RSA, there was no other evidence about Ms F.M.L’s efforts to look for further employment or how her health conditions affect her ability to work. She did say that when she had her part time job, she would sometimes go less than three times a week depending on her strength. I accept that she may have worked less than three times a week but there is no explanation as to why she no longer worked for RSA after returning from New Zealand.
  6. I accept that Ms F.M.L needs medication for her health conditions. I also accept that as General Manager of NHS, Mr L.L.S gave his approval for Ms F.M.L to receive free diabetes medication every three months. Both parties confirm that sometimes the medication is in short supply at the hospital pharmacy and has to be purchased from private pharmacies which are costly.
  7. Surprisingly no evidence was given as to Mr L.L.S’s age, only that he is into his second term of a three year contract as General Manager which is unchalleged. He did express in his evidence a concern that he was getting on in years and he was looking at how to generate savings so his children will not be disadvantaged when he is no longer around.
  8. I accept that Mr L.L.S is a well qualified man, being a Statistician and Accountant by profession. He is also a shareholder in the Galusina Village Resort which is a family business.
  9. I find that Mr L.L.S is a mature man in good health. I do find that while he is earning a good salary of $114,000 p.a. now, there is no guarantee of income once his contract ends. However apart from the impediment of a contractual position, there is no evidence that his ability to work is impeded by any other factor such as age or health conditions.
  10. It is plain from the evidence that Mr L.L.S left the marriage better off than Ms F.M.L. I accept that Ms F.M.L still stays in her parents’ home at Vailima which is on customary land and that this was the home in which she and Mr L.L.S lived while they were together. I accept that she currently lives there with four people who are her daughter, her daughter’s husband, her youngest son and the house girl.
  11. It is unchallenged that Mr L.L.S remarried someone who earns more than him, and that he has a high paying job, albeit a contractual one, which no doubt includes travel. I accept that he has healthy investments which bring in dividends of approximately $55,000 p.a. ($40,000 p.a. from Samoa Commercial Bank and $15,000 p.a. from Samoa Finance). I accept that his investments were accumulated while he was with Ms F.M.L.
  12. On the other hand, I find that Ms F.M.L has no regular source of income and only one asset which is her car which she bought in 2013 with her retirement funds. Ms F.M.L does say that if she knew she would no longer be married to Mr L.L.S, she would not have used all her retirement funds to buy a new car.
  13. Ms F.M.L no longer accompanies Mr L.L.S on business trips (which would sometimes allow her to have medical checkups in New Zealand). I find that not only did her standard of living drop considerably when Mr L.L.S divorced her, the divorce also came shortly after her retirement in 2013. She retired from a job which was paying her $45,000 p.a. At that time, I accept that she was unaware of her husband’s desire or decision to seek a divorce.

Proper Needs

  1. The proper needs of each party to the marriage must be taken into account having regard to the age of the person and any special needs of the person when assessing the level of alimony. The “proper needs” of each party must be objective and have regard to the age and special needs of each person.
  2. I accept that Ms F.M.L does need income for her medication if it is in short supply at the hospital, and she needs money to buy the right type of food given her conditions. She needs petrol to get herself around on her errands like getting her medicine.
  3. Mr L.L.S, as noted is in good health and his needs do not extend beyond those that normally exist for healthy middle aged men.

Income, earning capacity, property and financial resources of Applicant

  1. The Court must also look at the income, earning capacity, property and financial resources of Ms F.M.L having regard to her capacity to earn or derive income, including any assets of, under the control of or held for her benefit that do not produce, but are capable of producing, income; and disregard the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.
  2. There is no evidence before the Court that Ms F.M.L has any qualifications to assist her to find employment. I accept that she currently has no income, no property or financial resources, and no assets except for her car. I accept she depends on her children. Ms F.M.L has two children in Samoa and one in New Zealand. Ms F.M.L lives with her two children who are in Samoa. The eldest daughter is married and works at National Provident Fund. The youngest son is unmarried and works for Bluesky. She has one son who works and lives with his family in New Zealand. Ms F.M.L says that her children pay for most of her expenses but she wants to contribute to household expenses and also has personal needs.
  3. The Court will take into account that Ms F.M.L has three grown children who all work and can assist her. She lives with two of those children and her son-in-law who all work. It is appropriate that the Court have regard to this fact and not disregard it on the basis that the children have their own families. It is not uncommon or inappropriate in Samoan culture that children will contribute to the upkeep of their parents once they retire. I accept that they all live in Ms F.M.L’s parents’ home at Vailima which is on customary land. It is rent-free accommodation.

Financial Contributions

  1. The financial contribution made directly or indirectly by or on behalf of a party to the marriage must also be considered.
  2. I accept that both parties contributed to the marriage financially in terms of their homes, one at Solosolo and one at Vailima. Both homes are on customary lands belonging to extended family. Both homes were upgraded, refurnished and improved during the marriage.
  3. I accept that both parties had plantations while married and that it is only Mr F.M.L’s plantation which still exists. The plantation on Ms F.M.L’s family land was the subject of disputes among Ms F.M.L’s family and no longer exists. The plantation at Mr L.L.S’s family land at Solosolo which earned them some money during their marriage is only now used for subsistence. Mr L.L.S says that since moving to NHS, the plantation has been downgraded and basically only provides food for Sunday toonai. He did say that he has two cows and nine or ten sheep. I have no reason to doubt that this is now the situation with the plantation at Solosolo.
  4. I accept that during their marriage, Ms F.M.L used to go to the plantation to take the boys to sell the produce at the market on Saturdays.
  5. I accept also that Ms F.M.L contributed to the marriage by looking after Mr L.L.S’s health and looking after their home at Vailima and to an extent, Solosolo. I accept that Mr L.L.S helped Ms F.M.L look after her three children during their marriage.
  6. In terms of the investment from which Mr L.L.S now enjoys dividends, Ms F.M.L says that she assisted him to secure his shares in Samoa Commercial Bank, Samoa Finance Company and Galusina Village Resort. She testifies that she gave $20,000 cash to him for his shares in Samoa Commercial Bank and he was able to invest in Samoa Finance Company and Galusina Village Resort because he enjoyed rent free accommodation at Vailima. I accept that
    Ms F.M.L gave money to Mr L.L.S to purchase shares in Samoa Commercial Bank. I accept that Mr L.L.S gave her $30,000 to pay her back in full. Despite the money being paid back in full, I find that Ms F.M.L did assist Mr L.L.S to make the investment and he continues to benefit solely from this investment.
  7. I also accept that living in rent free accommodation, being the house at Vailima, helped Mr L.L.S to accumulate other investments, namely in Samoa Finance and Galusina Village Resort.

Commitments of parties

  1. The commitments of each party to the marriage that are necessary to enable that party to support himself or herself or any other person that the party has a duty to maintain must be considered.
  2. I accept that Ms F.M.L does not have anyone to support, except herself. Her children all work and can look after themselves.
  3. I accept that Mr L.L.S earns $114,000 p.a. as General Manager. I accept he receives approximately $6200 per month and pays $3000 per month for loan commitments and $400 per month for church obligations. He says that the rest of the money is used to support his current wife and five children, and to pay for his cultural obligations as he is the holder of two matai titles. I find that he does not have to support his current wife as she has her own salary which is more than his.
  4. Mr L.L.S says that he has a responsibility to take care of five children. The three younger children are his and I accept that he has a responsibility to them. However the two older children are from his wife’s previous marriage. Any responsibility he assumes for them is a matter of personal choice for him, given their mother is well placed to provide for them financially. This is notwithstanding that there is no formal maintenance agreement that he is aware of between his wife and the father of her two older children.
  5. I find that Mr L.L.S is in a comfortable financial position. He is able to support his family and provide for each child’s costs which he claims to be $500 per week. That signals a very comfortable lifestyle. He is able to pay his loan commitments out of his salary and the children’s school fees (between $150-$800 per quarter). His current wife contributes in a significant way financially. In addition his investments bring in significant dividends which are over and above his monthly commitments. He still has a plantation and livestock from which he can derive income if he so wishes.
  6. I accept that both he and his current wife each earn in excess of $100,000. He also has the use of an office car.

Special Circumstances

  1. Lastly the Court will look at any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
  2. In this case, I accept that the parties were together for 17 years including 12 years of marriage. Ms F.M.L is currently unemployed and has retired with no apparent qualifications. Mr L.L.S continues to hold a high paying job while Ms F.M.L currently has no source of income. Ms F.M.L had retired when the divorce was granted so essentially she has had little or no source of income since the divorce. Her part time job used to earn her very little. Even if Mr L.L.S ceased to work, he is now married to someone who works and makes more than him. Ms F.M.L is still single.
  3. Ms F.M.L testifies that she has become accustomed to a certain lifestyle while being married to Mr L.L.S. I have no reason to doubt this. He would take her overseas, take her out to dinner, and buy her jewellery and dresses. Mr F.M.L confirms that during their marriage they would buy gifts for each other and travel together. He says in relation to the overseas travel that the travel was for business but it allowed her to see a doctor arranged by relatives in `New Zealand. All they paid was the consultation fee. The trips were never only for the purpose of seeing doctors. In any event, I accept that Ms F.M.L was accustomed to a certain lifestyle which included overseas travel and which ended abruptly when Mr L.L.S divorced her.

Issue 2: Duration of the Order for Alimony

  1. The Court is guided in determining duration of alimony after dissolution of marriage by New Zealand Courts as our legislation provides no statutory guidance.
  2. The Court is mindful that when a marriage ends, ties are severed as people move on with their separate lives. Alimony in this case is in essence the only tie which will connect Ms F.M.L and Mr L.L.S as they have no children together.
  3. The question then becomes, how long the Court should allow this tie to remain, when Ms F.M.L and Mr L.L.S have clearly moved on. The Court must factor in any new duties and responsibilities that the parties have obtained and balance that against ensuring that both parties are not inappropriately disadvantaged.
  4. Mr L.L.S is clearly in a privileged financial situation compared to Ms F.M.L. Ms F.M.L is currently retired and needs some assistance to meet some of her needs. She is claiming for basic needs like food and clothing. She is living with her two children and one son-in-law who all assist her financially, but it is important that she is able to support herself and work towards this end.
  5. Mr L.L.S now has a family with school aged children whom he supports. However he is assisted by his new wife who earns more than him. Two incomes over $100,000 p.a. as well as significant dividends every year makes for a comfortable life, even with loan commitments and children.

Decision

  1. Considering the whole of the evidence, I am satisfied on a balance of probabilities that the quantum of alimony that Ms F.M.L should receive to meet her needs is $1000 per month for the duration of six months. The Court finds that a period of six months will allow her some temporary support given the drastic change of circumstances in which she found herself since the divorce, and the sudden and traumatic end to her previous lifestyle.
  2. I will allow the following monthly amounts;
    1. $400 for food;
    2. $200 for petrol;
    1. $200 for medicine;
    1. $100 for clothing; and
    2. $100 for miscellaneous expenses.
  3. Ms F.M.L’s children who she lives with both work and can pay for utilities such as water and electricity.
  4. In the words of Hammond J (M V B [2006] NZCA 535; [2006] 25 FRNZ 171 (CA) at 25), it would hopefully provide a ‘respectable period of grace for re-entry (and re-training) in the workforce, having regard to that person’s life situation’.
  5. Ms F.M.L did not envisage the situation in which she now finds herself. It is therefore necessary to assist her to meet her proper needs while she reassesses a future without her husband. This will inevitably involve re-entry into the workforce and perhaps some up-skilling and re-training.

Orders

  1. The Court orders that the first alimony payment of $1000 per month be on 1 May 2015. Payments thereafter will be on the first of every month with the last payment being on 1 October 2015.
  2. This amount is payable irrespective of if and when Ms F.M.L obtains any paid employment within the 6 month period.
  3. This is to give her a period of financial security while she re-renters the workforce.

.........................................
Judge Tuala-Warren


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