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Scottish Sheriff Court Decisions |
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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Winter v. Donaldson [2005] ScotSC 12 (17 February 2005) URL: http://www.bailii.org/scot/cases/ScotSC/2005/12.html Cite as: [2005] ScotSC 12 |
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Winter v. Donaldson [2005] ScotSC 12 (17 February 2005)
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
F480/04
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INTERLOCUTOR of SHERIFF DOUGLAS J CUSINE |
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in the cause DR. PATRICIA HELEN WINTER or DONALDSON PURSUER against JAMES ANDREW DONALDSON DEFENDER
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Act. Macgregor Alt. Jenner
ABERDEEN, February, 2005.
The sheriff, having resumed consideration of the Pursuer's motion No. 7/1 of process, parts 3 and 4 thereof, Refuses the same; Reserves meantime all question of expenses.
NOTE
The Pursuer's motion (No. 7/1 of process) in parts 3 and 4 seeks an order requiring the Defender to pay the school fees for the three children of the marriage who are still at school or an order ad interim for payment by the Defender to the Pursuer of the sum of £1500 per month by way of aliment.
The Pursuer and Defender are husband and wife. There are three children of the marriage who are under 18 and are still at school and one other child is at university.
Pursuer's submissions
As at March 2004, the Defender's income from his three dental practices amounted to £82,000. That can be seen from the Pursuer's second inventory of productions items 2, 3 and 4. The Pursuer's income for the same period, I was told, was £85,000. She works virtually full-time as a GP, but is paid only for part-time work. Her gross payment for November 2004 was £,6,162 leaving a net figure of approximately £4,000. I was advised that the Pursuer's outlays amount to £4,869.86 and that that figure includes payment for things bought for the children.
The Pursuer lives in the family home. Because of her commitments, she has to employ a nanny who collects the children from school on certain days of the week when the Pursuer is unable to do so herself. It was accepted on behalf of the Pursuer that in addition to her income as a GP, she rents out a coach house near her home, from which she receives rental income of £300 per month, but is left with only £85 per month after various outlays. I was advised that she uses all of her net income to support herself and her children. It was said that the Defender has declined to make any contribution towards the upkeep of the children, but has the resources to purchase and maintain a property in Aberdeen which he had purchased for £450,000. It was also said that the Defender had received £25,000 as a payment from an insurance company for time that he was off work with an injury and that that figure should be treated as equivalent of income.
It was submitted that in all the circumstances the Defender could afford to pay one-half of the school fees of £9,000 or pay the Pursuer £1500 per month by way of aliment
Submissions for the Defender
Miss Jenner referred to the Defender's second inventory of productions, item 1 of which is a schedule of income and expenditure. That shows a gross income of £62,103 and that is vouched by a letter from Messrs Johnson & Carmichael, Chartered Accountants dated 23rd December 2004 which is item 27 in that second inventory. Deducting tax from that figure, the Defender's net income amounts to approximately £2,600 per month. In response to the suggestion that the Defender made no contribution towards the children, Miss Jenner referred to item 29 in that second inventory, a cash book kept by the Defender which details the amounts paid to the children, one of whom, Katie, is at university, and is supported jointly by the parties. The Defender's cash book shows the following sums as having been paid over the six-month period ending 31st December 2004. These are £269 to Andrew, £206 to Lucy, £102 to Gillian and £846 to Katie making a total of £1,423. In addition, it was pointed out that while Lucy stays full-time with the Pursuer, Andrew spent 210 days with the Defender, and Gillian 117 days.
It was submitted on behalf of the Defender that any assessment made by the Child Support Agency will be backdated to November 2004, but any amount paid by the Defender to the Pursuer voluntarily would not be taken into account by the CSA.
It was submitted that the Pursuer benefits from the rental income and that she lives in a house worth £600,000 which is not the subject of any mortgage or other borrowing. Until now, the school fees have been met jointly by the Defender and the Pursuer. It was clear from the Defender's second inventory, the schedule of income and expenditure, that his expenditure exceeds his income and I was advised that he has had to use his capital to maintain himself.
On behalf of the Defender it was submitted that the test for an award of interim aliment is need. Given the Pursuer's income, the rental income and the fact that she has a house valued at £600,000 which is not secured in any way, she is not in need and accordingly the Defender ought not to be required to pay the whole of the school fees, and no award of interim aliment should be made.
Response by the Pursuer
The Pursuer submitted that the Defender's current financial position is not known in that the Defender has produced accounts to March 2004, whereas the Pursuer has produced a statement of income up to December 2004.
Decision
The basis for an award of interim aliment is the relief of need taking into account the current standard of living enjoyed by the spouses during the cohabitation and other circumstances of the case so far as known. (See Clive on Husband and Wife, 4th edition page 173). Other circumstances would obviously include the financial positions of the parties.
In this case, the most recent information about the Pursuer's financial position is that she earns approximately £85,000 gross which works out at approximately £4,000 per month. In addition, she has monthly rental income of £300 from which there will almost certainly be some outlays. Her total outlays are £4,869.30, which include payments made to the children. Finally, the Pursuer owns the former matrimonial home and it was not disputed that it is valued at approximately £600,000 and that the property is not the subject of any security.
The most recent information about the Defender's financial position is that he earns £62,103, giving a net income per month of £2,600. It is obvious from the schedule of income and expenditure that the Defender's income is considerably less than his expenditure and I am prepared to accept that he therefore has to encroach upon his capital in order to maintain himself.
It was argued by the Pursuer that the money received by the Defender from the insurance company in settlement of a claim for a period that he was off work should be treated as income; the Defender's position was that it should be treated as capital. No authority was cited in support of the proposition that this was income rather than capital and in the circumstances I express no concluded view on that, save to say that it was a one-off payment and were to be treated as income and be added to the Defender's earnings of £62,000, the total would be £87,000 which would be substantially the same as the current earnings of the Pursuer. If one treats the £25,000 as capital, it is clear that the Pursuer's income of £62,000 with the various items of expenditure would mean that he would be unable to pay his wife anything by way of interim aliment. Even if one treats the £25,000 as income while he would earn approximately the same as the Pursuer, again taking his debtedness into account, he could not afford to pay anything to his wife.
In my opinion, the Pursuer has not made out a case that she is in need of interim aliment. Furthermore, taking into account the respective resources of the parties, their income is either approximately the same if one adds in the one-off payment of £25,000; or the Defender earns significantly less than the Pursuer if one ignores the £25,000. Given the Defender's current indebtedness, I am of the opinion that he does not have the resources to pay the whole of the school fees, or to make any payment to the Pursuer, even if I were satisfied that she is in need of aliment. That being so, I refuse the Pursuer's motion under both heads.
I was not addressed on the question of expenses of the motion and so I have reserved that matter.
