This is an appeal against part of the judgment of the High Court. The appellant specifically appeals against paragraphs 2 and 3 of the operative part of the judgment which awarded the respondent maintenance at the rate of US$3,000 per month until she dies, remarries, or cohabits with another man plus costs of suit....,.
BACKGROUND FACTS
The appellant sued his wife, the respondent, seeking a decree of divorce and other ancillary relief. The respondent did not contest the appellant's claim for a decree of divorce. She however sought the distribution of the assets of the spouses and post-divorce maintenance.
The parties found each other regarding the distribution of their assets including the matrimonial home. They agreed to sell the matrimonial home and most of the proceeds were used to purchase an immovable property which was registered in the name of the respondent and the major, and only son, of the marriage. The appellant received the remainder of the proceeds.
PROCEEDINGS IN THE COURT A QUO
The court a quo captured the only outstanding issue before it as whether or not the defendant is entitled to post divorce maintenance and the quantum of such maintenance….,.
At the end of the trial, the court a quo found that the appellant was currently maintaining the respondent in the sum of US$3,000 per month and that from his income he could continue to maintain the respondent in that amount. It then concluded that, on the basis of the proven facts, the appellant was well able to maintain the respondent in the sum of US$3,000 per month. It also found that the defendant's health condition entitled her to maintenance until she dies, remarries, or cohabits with another man.
The appellant, aggrieved by the decision, filed the present appeal on the following grounds.
GROUNDS OF APPEAL
“1. The court a quo erred in awarding respondent post-divorce maintenance in the sum of USD3,000 per month on the basis that appellant had in the past afforded it and so erred in making that award against the background of appellant's dwindling income and increase in his financial obligation.
2. The court a quo misdirected itself in failing to take into account the fact that respondent had taken all the proceeds from the sale of the sole immovable property of the parties and that she has effectively been paid a lump sum payment by the appellant.
3. The court a quo misdirected itself in finding, without credible evidence, that respondent suffers from a medical condition rendering her permanently incapable of engaging in any income generating project.
4. The court a quo erred in failing to take into account the rental income derived by respondent from her Zvishavane properties and misdirected itself in putting any premium on the fact that respondent's late father's estate had not been wound up.
5. The court a quo erred in failing to grant an award which releases appellant from the control and influence of respondent and so erred in failing to take into account the fact that he is entitled to move on with his life.”
APPELLANT'S SUBMISSIONS BEFORE THIS COURT
Counsel for the appellant made the following submissions;
(a) The court a quo's findings were contrary to the evidence adduced and principles of law applicable in such matters.
(b) The exercise of the discretion by the court a quo was therefore improper and must therefore be vitiated.
(c) Contrary to evidence presented before it, the court a quo imposed an obligation upon the appellant to work for the respondent for life.
(d) The respondent has some free income in the sum of US$3,800 whilst the appellant's free income is under US$1,000.
(e) It is settled law that marriage is not a bread ticket for life.
(f) The court a quo further made a finding that the respondent was entitled to US$3,000 per month when no evidence had been placed before it showing the respondent's expenses to be in that amount. The court had no basis to come to the conclusion that her expenses were US$3,000 per month. The award did not take into account that she was earning $3,800 from her father's deceased estate through the properties she was leasing out in Zvishavane.
(g) The court further fell into error in finding that the respondent was unable to work, based on a report produced by a Dr Gunning. The appellant complained that he paid for the production of the report and yet it was only produced after he had testified and during the respondent's case. The finding that she cannot work does not mean she cannot generate income. She could employ people to do the running around for her.
(h) The respondent got a lump sum in sum of US$200,000 from the proceeds of the sale of the parties' matrimonial home which enabled her to buy another property. The appellant had to obtain a mortgage bond to acquire his own property. The US$200,000 should have set up the respondent and she should have used it in a profitable endeavour.
(i) The question of the respondent's adultery should have been taken into account in coming up with the quantum.
(j) Counsel for the appellant further submitted that the court a quo had erred in not considering the income due to the respondent from the Zvishavane properties on the basis that the estate has not been wound up. If ever it changes then she would approach the court for variation. Instead, the court turned principles of law on the head by asking the appellant to approach the court for variation if the respondent is awarded the properties.
(k) He prayed that the court interferes with the quantum and the period.
RESPONDENT'S SUBMISSIONS BEFORE THIS COURT
Per contra, counsel for the respondent made the following submissions;
(a) The court a quo did not act in a vacuum but in terms of facts it found to have been proven. He referred to the judgement where the court a quo deals with the facts that the court found to have been proven.
(b) The appellant, in his pleadings, did not put in issue the fact of entitlement to maintenance and the period. He offered to pay maintenance until such time as the respondent remarried or cohabited with another man. In the Notice of Appeal, he now prays that he pays the defendant the sum of US$1,500 per month for a period of five years reckoned from the date of this order until the respondent either remarries or commences to cohabit with another man. He now seeks to re-argue his case on appeal.
(c) The finding that the respondent had many ailments was based, inter alia, on the appellant's own admission. These are findings of fact. When the report by Dr Gunning was introduced there was no objection from the appellant. There was no insistence that Dr Gunning be called to testify. It would therefore be unfair to attack the court's reliance on the report.
(d) The issue of adultery was never raised as an issue to be considered regarding the respondent's entitlement to maintenance and the quantum.
(e) Again, the issue of the lump sum, realised from the disposal of the matrimonial home, was never raised as a factor in determining the amount of maintenance to be awarded to the respondent. The appellant should have given the respondent due notice that the lump sum would be taken into account in considering the issue of maintenance.
ISSUES
From the above submissions, and the pleadings by the parties, the issue for determination is the quantum of post divorce maintenance and the period.
In my view, this should have been the sole issue before the court a quo. It however proceeded to consider the question of entitlement to such maintenance. This was improper as the appellant, in paragraph 9 of his declaration, pleaded as follows:
“9 It is just and equitable that plaintiff (appellant) pay maintenance to defendant in the sum of US$750 per month for a period of one year commencing with effect from December 2009 or until such time as the defendant should remarry or live with another man as man and wife whichever should occur first.”…,.
Clearly, the appellant did not take issue with the respondent's entitlement to post divorce maintenance at that stage, and throughout the trial, but, rather, put in issue the quantum and the period.
The trial was long-drawn and judgment was only rendered on 22 September 2016. The appellant did not seek to amend the period indicated in paragraph 9 of his Declaration. The offer to pay maintenance for one year, from December 2009, was, consequently, overtaken by events.
THE LAW
The law is settled that an Appellate Court can interfere with factual findings of a lower court in very limited circumstances.
In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA remarked:
“The general rule of the law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion….,.”
In Reserve Bank of Zimbabwe v Granger and Anor SC34-01…, the court held that if an appeal is to be related to the facts “there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. And a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”
As regards the quantum in maintenance matters, the approach to be adopted, on appeal, was laid out in Mentz v Simpson 1990 (4) SA 455 where HEFER JA held that the approach should be along the lines adopted in compensation cases as indicated in Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 where WATERMEYER JA stated…, that:
“…, a Court of Appeal should not interfere unless there is some striking disparity between its estimate of the damages and that of the trial court, and, further, unless there is some unusual degree of certainty in its mind that the estimate of the trial court is wrong.”
The position of the law, regarding post divorce maintenance, and the duration, is now well established in our law. In Chiomba v Chiomba 1992 2 ZLR 197 the following is captured in the headnote;
“Marriage can no longer be seen as providing a woman a bread ticket for life. A marriage certificate is not a guarantee of maintenance after the marriage has been dissolved. Elderly women who have been married for a long time and are too old to now go out and earn a living and are unlikely to re-marry will require permanent maintenance.”
APPLYING THE LAW TO THE FACTS
The starting point in such matters, where the lower court would have given a decision within its discretion, is to look at the power of this court on appeal. As clearly comes out from the above authorities, this Court cannot interfere with factual findings made by the trial Court except;
(a) On the basis of irrationality.
(b) Where the trial court reaches a decision which is not supported by the evidence.
(c) Where the finding is patently wrong.
The question, therefore, is whether the findings of fact made by the court a quo can be interfered with on any of the bases set out above.
The court a quo made the following factual findings;
“The facts found proved are;
1. The plaintiff is currently maintaining the defendant at US$3,000 per month.
2. He earned an average of US$12,923=81 per month in 2015 and an average of US$10,868 per month between January and March this year.
3. That salary is well able to maintain him and the defendant at US$3,000 each per month.
4. It leaves him a balance of between US$2,868 to US$4,913 per month from which he can save for the future.
5. His current means therefore enables him to continue maintaining the defendant at US$3,000 as he is currently doing. He has been able to do so, and more, since their separation.
6. The defendant is not the type of spouse who should be weaned off from her former husband on divorce. Her medical condition qualifies her for maintenance till death or when she remarries or cohabits with another man.
7. That the defendant's father's estate is still to be wound up. If the defendant's means improves from what she will get from it the plaintiff can seek variation.
8. The plaintiff's fear, that his means may come down and make him unable to maintain the defendant at US$3,000 per month, is not a bar to his maintaining her at that rate till the arrival of that eventuality, which would entitled him to seek variation of the Maintenance Order.
9. Their son has acquired his first degree and is currently staying with the defendant. This increases the defendant's expenses. The possibility of his going for further education does not presently dis-entitle the defendant from the maintenance she seeks. If those changes come they can only be relevant in an application. This also applies to the possibility of the plaintiff having to pay fees for their son's further studies.”
It then concluded as follows:-
“I am therefore satisfied that, on the present facts, the plaintiff is well able to maintain the defendant at US$3,000 per month. He has been doing so and his means enables him to do so.”
I turn to deal with the two issues that arise before this Court.
QUANTUM
Counsel for the appellant's argument was that the court a quo found, without a basis, that an award of US$3,000 was a reasonable monthly award. In doing that it committed many cardinal sins which he listed as set out below;
(a) It made an award in the absence of evidence showing her monthly requirements and how they answer to the US$3,000 awarded.
(b) It failed to factor in the respondent's income from Zvishavane.
(c) It did not consider the net effect of the award in that it left the respondent with an income of $3,800 as against that of the appellant in the sum of $700.
The court a quo reasoned that the appellant, in his evidence-in-chief, stated that he could probably afford US$3,000 per month although he could not say for how long he will be able to sustain that amount. He did not put in issue the aspect of the respondent's schedule of expenses despite the question being put to him by his counsel.
It is the figure of US$3,000 that he kept toying around with throughout the proceedings.
He also told the court that his own expenses were about US$3,000 per month.
It must be noted that due to the long drawn nature of the proceedings, the appellant successfully applied to re-open his case. This was to enable him to lead further evidence regarding his dwindling income.
Despite leading that evidence, he still confirmed, under cross-examination, that, at that moment, he could afford to pay the respondent the sum of US$3,000 per month and make provision for his own expenses in the same amount and still have an amount left over for savings.
In arriving at its decision, the court a quo looked at all the above and the appellant's average income of US$12,923=81 per month in 2012 and US$10,686 per month between January and March 2016. It went further to analyse the figures and concluded that, after paying US$3,000 to the respondent and to himself, he would remain with a balance of between US$2,686 and US$4,913 per month which he could save for the future.
I find no misdirection in the court's reasoning.
The appellant himself did not place emphasis on the absence of the schedule of expenses. His main concern was whether he could be able to pay the figure of US$3,000 per month in future in view of his dwindling income and whether he would remain with some savings for the future.
These factors were taken into account by the court a quo in arriving at the quantum it awarded.
THE ZVISHAVANE PROPERTIES
The court a quo had this say on the above issue;
“That the defendant's father's estate is still to be wound up. If the defendant's means improves from what she will get from it the plaintiff can seek variation.”
Counsel for the appellant submitted that the court asked itself the wrong question. It ought to have asked itself whether, as at the date of the trial, and subsequent thereto, the respondent was receiving income from the Zvishavane properties. He opined that what can happen in the future is immaterial. In ignoring the reality of that income from the estate, the court a quo hopelessly misdirected itself.
I am persuaded by the submission by counsel for the respondent that there was no misdirection by the court in finding that the estate of the respondent's father had not been wound up.
It would have been speculative on the part of the court to rely on the existence or otherwise of income from that estate at that stage.
In any event, the court made a finding that the evidence led from an investigator hired by the appellant was not conclusive. This was not challenged on appeal.
The court could not have been expected to take into account evidence from a report it had adjudged inconclusive.
The court a quo was attacked on the basis that it failed to consider that the respondent had committed adultery which had not been condoned. Counsel for the appellant relied on section 10 of the Maintenance Act [Chapter 5:09] which provides as follows:-
“Where a spouse is proved to have committed adultery before or after the making of an order and such adultery has not been condoned, the Maintenance Court may refuse to make an order for maintenance in favour of such spouse or may discharge an order for maintenance made in favour of such spouse.”
I find merit in the submission, by counsel for the respondent, that, whilst the appellant expected the court a quo to deal with the issue, and, consequently, this court, he never pleaded that such alleged marital misconduct be used against her in his pleadings. Doing so would have been inconsistent with his prayer which offered post-divorce maintenance until the respondent remarried or cohabitated with another man.
