CHIWESHE
JA: This
is an appeal against
the
whole judgment of the High Court (the court a
quo)
sitting at Bulawayo, dated 21 April 2022, in terms of which the court
a
quo
granted the application by the respondent for the variation of clause
2(e)(i) of the parties consent paper and para 4 of the divorce order
granted by the court a
quo
on 27 March 2014 under HC125/14, providing for the post-divorce
maintenance of the parties two minor children.
The
order of the court a
quo
reads:
“It
is ordered that:
1.
Clause 2(d)(e)(i) and paragraph 4 of the consent order be and are
hereby amended by;
(a)
The plaintiff shall pay the sum of US$400.00 for each of the two
minor children per month, payable in cash or into the applicant's
nostro account or the RTGS equivalent thereof at the bank rate
prevailing on the date that payment is made until the children attain
the age of 18 years or become self-supporting, whichever comes first.
2.
This order shall be effective from March 2021.”
Aggrieved
by the decision of the court a
quo,
the appellant has noted the present appeal.
At
the close of submissions in this matter this Court made the following
order:
“The
respondent having conceded that there is merit in grounds of appeal
number 5 and 6:
It
is ordered as follows:
1.
The appeal succeeds in part.
2.
The judgment of the court a quo is amended by the deletion of
paragraph 2 thereof.
2.
Each party shall bear its own costs.”
We
indicated that our reasons for doing so would follow. They are as
follows.
THE
FACTS
The
parties were married on 5 July 2005 in terms of the Marriages Act
[Chapter
5:11].
The
marriage was blessed with two children.
Nine
years into the marriage the appellant instituted divorce proceedings
in the court a
quo
on the grounds that the marriage had irretrievably broken down. He
did so under case number HC125/14.
To
curtail the divorce proceedings, the parties negotiated and agreed
the terms of the consent paper that would govern their affairs after
divorce. It was on the basis of that consent paper that divorce was
granted by the court a
quo.
Paragraph
2(e) of the consent paper provided for the maintenance of the parties
two minor children. It reads as follows:
“(e)
Maintenance of the Minor Children
(i)
The parties have agreed that by way of maintenance the plaintiff (the
present appellant) shall pay US$500.00 for each of the minor children
per month as monthly maintenance until they attain the age of 18
years or become self-supporting, whichever occurs first. (my own
brackets)
(ii)
Plaintiff shall pay all school fees inclusive of levies and other
related ancillary education costs, purchase school uniforms,
stationery and all other school requirements until they finish
tertiary education.”
The
above quoted para 2(e) of the consent paper was incorporated into the
divorce order dated 27 March 2014 as paras 4 and 5.
The
appellant “religiously”
paid the sum of US$500.00 per month per each child, making a total of
US$1,000.00 maintenance per month. He did so from 2014 until 2019
when Statutory Instrument No. 33/19 was promulgated.
This
instrument decreed that all assets and liabilities, including
judgment debts, denominated in United States dollars on or before 19
February 2019 (the effective date) shall be deemed to be values in
RTGS dollars at the rate of one to one to the United States dollar.
The
appellant, whose liability for maintenance was now deemed to be in
RTGS dollars at the rate of 1 to 1 to the United States dollar, would
now be liable to pay a total of RTGS $1,000.00
per month for both children.
However,
realizing that this amount would fall short of the children's
needs, the appellant, at his own volition and unilaterally, decided
to pay RTGS$1,500.00 per month for both children. The respondent
found that amount awfully inadequate and proposed that the appellant
pays the sum of US$320.00 per month per child.
The
appellant refused to budge and persisted with his offer of
RTGS$1,500.00 per month for both children.
At
one stage and, again, unilaterally, the appellant decided to pay the
sum of US$50.00 per month per child.
However,
the respondent avers that between January 2021 and May 2021 the
appellant did not pay any maintenance at all.
Dissatisfied
with that state of affairs, the respondent approached the court
a
quo
armed with an application for variation of the maintenance clause
embodied in the divorce order granted under HC125/14. She asked the
court a
quo
to set the rate of maintenance at US$500.00 per month per child in
conformity
with the order of the court a
quo
of 27 March 2014.
In
opposing the application in the court a
quo,
the appellant submitted that the respondent wished to live a lavish
life out of moneys paid out as maintenance for the children and that
her claim was based on figures plucked from the air. He also
submitted that his financial circumstances had changed since 2014 in
such a way that he was unable to pay US$500.00 per month per child.
Despite
these submissions by the appellant, the court a
quo
granted the application and issued the order captured on the first
page of this judgment.
Although
this order is inelegantly drafted, its import is clear –
that with effect from March 2021 the appellant was obliged to pay
maintenance at the rate of US$400.00 per month per child or its
equivalent in local currency determined at the prevailing bank rate.
It
is this order that the appellant appeals against on the following
grounds:
“GROUNDS
OF APPEAL
1.
The court a
quo
erred in varying the maintenance payable towards the minor children
whilst disregarding the circumstances of the appellant.
2.
The court a
quo,
in varying the maintenance order, misdirected itself on the meaning
of good cause for variation.
3.
A fortiori,
the court a
quo
erred in rejecting that appellant's finances had been drastically
changed negatively, due to lack of employment and the subsequent
remarriage.
4.
The court a
quo
erred and fell into error in not considering the US$100.00 appellant
had been paying consistently as maintenance towards the minor
children.
5.
The court a
quo
misdirected itself in granting a retrospective order when none of the
parties prayed for such an order.
6.
The court a
quo
misdirected itself in granting an order that was retrospective when
the circumstances did not warrant such.”
RELIEF
SOUGHT
The
appellant seeks the following relief:
“1.
That the instant appeal succeeds with costs.
2.
That the judgment of the court a
quo
be overturned and substituted with the following:
“The
appellant be and is hereby ordered to pay US$100.00 or Zimbabwe
dollar equivalent at the prevailing interbank rate as maintenance for
each minor child.”
ISSUES
FOR DETERMINATION
The
grounds of appeal only raise four issues, namely;
1.
Whether the court a
quo
erred in varying the maintenance payable towards the minor children.
2.
Whether the quantum
of the variation is justifiable.
3.
Whether the appellant has the financial capacity to fund the
variation.
4.
Whether the court a
quo
erred in granting a retrospective order.
ANALYSIS
It
is trite that section 9 of the Matrimonial Causes Act [Chapter
5:13]
(the Act) empowers an appropriate court, such as the court a
quo,
to vary, on good cause shown, an order made in terms of section 7 of
that Act.
The
onus is on the applicant to establish good cause for the variation.
In
the case of Fleming
v Fleming
HH27/2003 it was held that:
“On
the applicant therefore rests the onus to establish good cause to
justify a variation of the maintenance granted by the court at
divorce. In order for a court to grant a variation, there must have
been a change in the conditions that existed when the order was made,
that it would be unfair that the order should stand in its original
form.”
The
court a
quo
was alive to these requirements.
It
noted at p5 of its cyclostyled judgment that indeed the parties had
agreed that SI 33/2019 had financial implications on the question of
maintenance. The only outstanding question being one of the quantum
of the maintenance to be paid.
If
it was common cause a
quo
that the SI 33/2019 was in its effect good cause for variation of the
maintenance order, one wonders why the appellant now asserts in his
grounds of appeal that the court a
quo
erred in failing to appreciate “the meaning of good cause for
variation.”
The
ground of appeal concerned has no merit. It must be dismissed out of
hand.
It
was clear that the amount of US$500.00 per month per child had now
been reduced to a paltry RTGS$500.00 per month per child. As
correctly observed by the court a
quo,
this amount is ridiculously low and must be varied upwards.
In
the circumstances, the court a
quo's
reasoning that the erosion by operation of law of the original
maintenance award constituted good cause for the variation of the
order for maintenance cannot be faulted.
The
other good cause for variation was put forward by the appellant
himself, who has since remarried and now has a new family to support.
Some of his resources would now need to be channeled in that
direction.
Once
the court a
quo
satisfied itself that good cause existed for the review of the
maintenance order, it sought to determine the quantum
of the variation.
It
correctly relied on the provisions of section 7(4)(d) of the Act for
guidance.
That
section has a broad provision exhorting the court to have regard to
all the circumstances of the case, including:
(a)
the income earning capacity, assets and other financial resources
which each spouse has or is likely to have in the foreseeable future;
(b)
the financial needs, obligations and responsibilities which each
spouse and child has or is likely to have in the near future; and
(c)
the standard of living of the family including the manner in which
any child was being educated or trained and/or expected to be
educated or trained.
The
court a
quo
also correctly noted that in cases such as the present, a child's
best interests are paramount.
It
also recognized that children are entitled to adequate protection by
the courts and that in that regard the court a
quo
is their upper guardian, a role enshrined in section 81(3) of the
Constitution. See Crone
v Crone
2000
(1) ZLR 367 (S).
In
assessing the quantum
of the variation, the court a
quo
was further guided by two cardinal considerations, namely, whether
there has been a change in the financial circumstances of the
appellant and the ability of the appellant to pay the increment
sought.
It
answered the first question in the negative and then proceeded to
assess the appellant's capacity to fund the increment.
The
appellant's
defence in the court a
quo
was that his financial circumstances had been worsened in that he had
lost three sources of income. He submitted that he had lost his
employment with the Government of Zimbabwe. A letter from that
employer confirmed this fact which was never in dispute. His
employment terminated in April 2013.
Documentary
evidence also confirmed that the appellant had lost his surgery and
shop in Cowdrary Park in 2014. A former employee swore to an
affidavit confirming that the Cowdrary Park surgery was indeed closed
in 2014.
However,
the court a
quo
found that the appellant was not being candid.
It
observed that the three sources of income were lost before the grant
of the divorce order whose variation is sought. To all intents and
purposes, therefore, the appellant has had one source of income since
2014, namely, a surgery. He managed with that one source of income to
pay a total of US$1,000.00 per month from 2014 to 2019.
In
a previous application for variation filed in 2016, the appellant
offered to pay US$630.00 and to purchase groceries worth US$370.00
per month. Cumulatively, that offer amounted to a total of
US$1,000.00.
The
appellant did not then raise the defences he now raises.
For
that reason, the court a
quo
rejected the appellant's contention that his financial
circumstances had deteriorated.
The
appellant did not deny that as a medical doctor in private practice
he charges his clients in United States dollars. The appellant had
provided a bank statement showing only one page as proof of income.
The court a
quo
correctly observed that a single page of a bank statement was
insufficient to prove one's income. What was required was a bank
statement spanning longer periods.
By
producing this one page the appellant was not being candid with the
court as to the quantum
of his income. His actions in this regard were intended to mislead
the court.
The
court a
quo
also noted that the appellant had attempted to mislead the court in
two other respects.
Firstly,
the appellant had custody of the two minor children in November 2019
and December 2020. Firstly, the appellant said that he held custody
during that period because the respondent intended to relocate to the
United Kingdom. The truth, however, was that the respondent was no
longer able to provide for the children on the maintenance that
appellant was paying. She resumed custody in December 2020 when
her salary improved.
Secondly,
the appellant says that he had the children for the entire period in
November 2019 and December 2019. He omitted to disclose that during
that period the children were with the respondent during the school
holidays and on weekends.
The
court a
quo
found that the appellant had not been candid with the court with
regards his financial circumstances. That fact weighed heavily
against the appellant. See Foote
v Foote
1994 (2) ZLR 28 (HC).
It
concluded, and, justifiably so, that the appellant's income had not
been eroded as alleged and that the appellant could afford the
variation sought by the respondent.
The
court a
quo
also found that the appellant had at some stage been paying
maintenance at the unilaterally determined rate of US$100.00 per
month per child. He had thus elected to pay maintenance in United
States dollar terms. He could not now seek to do so in RTGS.
However,
the court a
quo
took
into account the fact that the appellant had remarried. His
remarriage was accepted as a change in his circumstances in terms of
his financial obligations towards his new family.
It
assessed this obligation to be no more than US$100.00 per month.
For
that reason, the variation was granted in the sum of US$400.00 and
not the US$500.00 sought by the respondent.
Finally,
the court a
quo
backdated the variation to March 2021.
The
appellant is up in arms against this. He argues that the court a
quo
misdirected itself in granting a relief which neither of the parties
had asked for.
At
the hearing of this appeal, the respondent conceded that the
variation should not have been backdated and that, accordingly,
grounds of appeal number 5 and 6 had merit.
DISPOSITION
This
Court is of the view that the reasoning and findings of the court a
quo
cannot be impugned.
It
properly found, on the evidence before it, that the respondent had
shown good cause for the variation of the maintenance order. It
correctly assessed the quantum
of the variation following recognized values and laid down
procedures. In its assessment of the quantum
of variation it took into account the fact that the appellant had
remarried. It found that the appellant had not been candid with it in
many material respects and rejected as false his assertions that his
financial circumstances had changed. It correctly noted that in cases
of this nature the interests of the minor children were of paramount
importance.
On
the whole the appellant has failed to prove any misdirection on the
part of the court a
quo,
save for the order backdating the variation which respondent conceded
was not warranted. For that reason, para 2 of the order of the court
a
quo,
backdating the variation to March 2021, must be set aside.
Accordingly,
the appeal succeeds in part. Each party shall bear its own costs.
It
was for these reasons that we ordered that:
1.
The appeal succeeds in part.
2.
The judgment of the court a
quo
is amended by the deletion of para 2 thereof.
3.
Each party shall bear its own costs.
GWAUNZA
DCJ: I
agree
MATHONSI
JA: I
agree
Tanaka
Law Chambers,
appellant's
legal practitioners
Sauramba.
S. P. Attorneys,
respondent's legal practitioners
