SAMANA AHMED v. SYED AHMED
| OUTER HOUSE, COURT OF SESSION |
| | OPINION OF LORD CLARKE in the cause SAMRANA AHMED Pursuer and Minuter; against SYED MASOOR AHMED Defender and Respondent: ________________ |
Pursuer and Minuter: C. Coutts; Brodies, W.S.
Defender and Respondent: Wylie; Balfour & Manson
Third Party Minuter: Spiers; Morton Fraser
25 June 2002
[1]In these proceedings, by way of minute and answers, the pursuer and minuter seeks variation of an alimentary award of £50 per week awarded, by this Court, against the defender in respect of the parties' daughter, Mahein Ahmed, who is now sixteen years of age, and is undergoing full-time education. The award was made in terms of a divorce decree pronounced on 11 May 1994. The Court also made an award against the defender for payment of aliment at the rate of £50 per week to the parties' son Rezaah Ahmed.
[2]The pursuer had originally sought to have the award of aliment made in favour of Mahein varied by way of motion made on 11 October 2000. Because of the sums involved, the Temporary Judge, apparently, took the view that the matter should proceed by way of minute and answers. A proof was, in due course, fixed, but thereafter the parties' son, Rezaah, entered the process, as a party minuter, to have the award of aliment in his favour also varied. The proof, which had been fixed, was apparently discharged because of this, and a fresh diet of proof fixed which, in due course, I heard. That proof commenced with the defender resisting the variation of aliment sought by his son, as well as the variation sought by the pursuer on behalf of his daughter. The proof was required to be adjourned for lack of time. At the commencement of the resumed diet of proof, I was informed by counsel for the son and counsel for the defender, that an agreement had been entered into whereby the defender is to pay the son £150 per week as aliment as long as the son remains under twenty-five years of age and is in full-time education. That agreement is embodied in a joint minute which is No. 50 of process. I am, in the event, therefore only concerned with the pursuer's claim, on behalf of the parties' daughter Mahein, for variation of the award of aliment in her favour.
[3]I should note that, as is averred in the minute, and was explained to me by counsel for the pursuer, the decree of divorce itself is the subject of proceedings, presently pending before the Court, at the instance of the defender, wherein he seeks to have it reduced. I was initially, a little concerned, about being asked to vary a decree which was subject to pending reduction proceedings. All counsel were, at one, however, in submitting that this was competent, and appropriate, in the circumstances. I asked to be referred to authority on the matter. Miss Coutts, for the pursuer, in her closing submissions, referred me to certain authorities in response to that request by the Court. She also reminded me that the defender in the minute and answers proceedings does not dispute that he has an obligation to aliment his children, the defence being confined to the extent of any such obligation.
[4]The authorities to which I was referred, which involved non-consistorial disputes were McLeod v Cedar Holdings Limited 1989 SLT 620 and Homer Burgess Limited v Chriex (Annan) Limited 2000 SLT 277. Those cases provide authority for the competency of seeking partial reduction of decrees. The case of Ali v Ali 1999 SLT 943, involving as it did, a consistorial dispute, is, perhaps, of more direct assistance. In that case a party sought to suspend a decree of divorce in so far as it made an award of a capital sum and expenses. The Lord Ordinary decided that this was an attempt to suspend a decree of divorce, and held that it was incompetent as being contrary to Rule of Court 49.30. An Extra Division reversed that decision, however, and in so doing, said at page 944: "In our view there is no doubt that the decree can be split into its constituent parts and in our view, therefore, the action based on suspension of the decree for a capital sum is one which is competent in this Court".
Counsel also referred me to Section 21 of the Family Law (Scotland) Act 1985 which is in the following terms: "A Court which refuses a decree of divorce or separation shall not, by virtue of such refusal, be prevented from making an order for aliment".
[5]That provision, counsel submitted, demonstrated the free-standing, and non-contingent, character of that part of the decree in the present case which dealt with aliment. I am satisfied that, on the basis of the authorities cited to me and, the submissions made in relation thereto, there is nothing to prevent me from varying that portion of the interlocutor concerned with aliment, notwithstanding that the decree of divorce itself is otherwise presently the subject of reduction proceedings at the instance of the defender.
[6]The divorce proof in 1994 proceeded on an undefended basis because, apparently, of the defender's failure to sist a mandatory. The Court, in making the awards of aliment, it did, in 1994, was provided with a certificate from the defender's then employers, namely Buffalo State University of New York, which is No. 20/1 of process and which stated that, as at 7 April 1993, the defender's annual salary was $29,245. I am satisfied that no additional, or contradictory, evidence regarding the defender's earnings at the time the 1994 decree was pronounced, was before the Court and that that was the figure upon which the Court relied in fixing aliment at the rate it did. The defender, in his evidence, said that, in fact, in 1994 he was earning approximately $100,000 per annum. If that be the case, it was not information that was before the Court, at the time, and, therefore, it cannot be said that the awards of aliment were fixed having regard to that figure.
[7]At the proof before me, I heard evidence from the pursuer, the defender and the defender's brother. In her evidence, the pursuer informed the Court that she had experienced very considerable difficulties in enforcing the alimentary awards made against the defender. He had left the family in 1989 and had gone to live and work in the United States of America. He is a medical physician and anaesthesiologist. At the time of the original decree, the defender was acting as a medical registrar in Buffalo, New York. After the decree was pronounced the defender moved to Florida, without providing the pursuer, or those representing her, with his new address. The pursuer also claimed that he deliberately then changed his surname to Saheed to avoid being pursued by her. It had taken some considerable time and effort to trace him to Florida. Once this was done the defender, sought, before the Florida Courts, to resist the registration of the awards of aliment for enforcement purposes. He did not succeed in his attempts to prevent registration, but it had taken the pursuer until early 2000, when the Florida Court proceedings finally came to an end, to get the defender to pay the aliment on a regular basis. In recent months, she had not received any payments of aliment for her daughter but that, she accepted, was because of a problem with the agency responsible for collecting and transmitting the monies in question to her.
[8]The defender has remarried and has three children from that marriage. The children are twin daughters, aged nine, and a son, aged five. His present wife does not work. The pursuer is herself a doctor whose specialisation was in gynaecology and obstetrics. She has, in recent years, suffered ill health, having developed a condition which effects her immune system. This, in turn, has caused her joints to be painful, particularly her wrists. These symptoms have restricted her ability to carry out certain functions in her work and at home. At the time of the decree of divorce she was employed as a full-time hospital doctor. It is averred that at that time she was earning approximately £38,000 per annum. Since the development of her health problems, she has suffered a significant drop in her income as she has only been able to work as a locum. The pursuer said, in her evidence, that, if possible, she would like, in the future, to transfer to a teaching or research job. In contrast to the position of the defender, to which I will in due course return, the pursuer produced very full vouching of her income and expenditure. For the year ended 5 April 2001, her gross income was £25,810.39. Since October 2001 she had been earning approximately £3,000 gross per month, but the position she was occupying at the commencement of the proof was due to come to an end shortly thereafter and there was some uncertainty about the nature of her future employment and the rate of pay she would earn. I am satisfied, however, that the pursuer, notwithstanding her health problems, is a determined and well qualified woman, who will obtain continuing or future employment which will enable her to earn approximately £30,000 gross per year.
[9]As far as the present expenditure of the pursuer is concerned in respect of herself, her daughter and the running of the house in which they both reside is concerned, a schedule No. 38/1 of process, was produced which itemised and vouched her monthly expenditure. Mahein does not receive pocket money, as such, so money spent on her behalf is subsumed in those figures. Having heard the pursuer speak to the various figures, I am satisfied that there was no evidence that that expenditure involved any lavish lifestyle for herself or her daughter, or indeed any unnecessary expenditure by her. Three modifications to the items set out in the schedule were made by the pursuer in her evidence. She explained that the mortgage repayments in respect of the house she owns and occupies, had risen from £367.25 per month to £602 per month. There required also to be added to the schedule her general medical council subscription of £170 per year and a figure of £600 in respect of the cost of a school trip which Mahein had taken in 2001. The schedule, thus modified, brings out total monthly average outgoings of £2,260. The pursuer's expenditure as so set out, reflects the fact also that her son, who is a student at Cambridge University, comes home and lives with the pursuer during the university vacations, which amounts to a period of about twenty-two weeks per year, during which time he enjoys bed and board at the pursuer's home.
[10]In the event, only one item of expenditure as set out by the pursuer, was seriously challenged by counsel for the defender in cross-examination of the pursuer and in her closing submissions. That item was the cost of certain medical treatment for Mahein. Mahein suffers from a problem with her hormones which evidences itself in the condition of hirsutism, i.e. excessive hair growth on her body. This condition has caused her deep embarrassment and psychological upset. The pursuer, having investigated the various options available to deal with this condition, has arranged for certain laser treatment to be given to Mahein. This was recommended by a consultant dermatologist as the preferred treatment, rather than electrolysis treatment, as being less time consuming and more effective - see No. 38/27 of process. The treatment in question, i.e. EPI-Light treatment is not, currently, available on the National Health Service, though electrolysis treatment is. The cost of the treatment to the pursuer is £9,500. The pursuer explained, in evidence, that she had obtained a deduction of £3,000 from the usual cost of the treatment by paying for it in one lump sum, as it would normally cost £12,500. The recent increase in her mortgage monthly repayments has resulted in the pursuer obtaining an increased loan which, in part, was required to fund the treatment. The defender, in his evidence, questioned the need for this treatment, as opposed to waxing, which seemed to me to show a somewhat callous disregard for the nature of the condition involved and its effect on his daughter. I am satisfied, in any event, that in arranging and paying for this treatment, the pursuer was acting in the best interests of her daughter and that that expenditure cannot be regarded as extravagant or unnecessary, given the nature of the condition and the effect it is having on Mahein. It is an item of expenditure towards which, I consider, the defender should be expected to make some contribution. I am also satisfied that the increase in the pursuer's mortgage was required, not only to cover the item of expenditure just referred to, but was also required because of other necessary expenditure incurred by her on her own behalf and on behalf of her children, in a situation where her own income had dropped for the reasons explained above.
[11]My overall impression of the pursuer, as a witness, was of a woman who wished the very best for her children, both in material terms and in their education. Mahein is presently at school but intends to proceed to higher education and I have no doubt that the pursuer will give her every support and encouragement in that respect. The pursuer impressed me as a devoted and dedicated mother who gave no sign of indulging in any expenditure which could be classified as extravagant in her own lifestyle. She is clearly very bitter about the way she considers she and her children have been treated by the defender and was, at pains, to explain that she wished to ensure that her children had every bit as good a lifestyle as the children of the defender's new family. I also have no doubt that she had made every possible effort to provide the Court with as full and accurate information about her own personal means and expenditure.
[12]To be contrasted with my view of the pursuer, I found the defender to be a very much less satisfactory witness. He was often evasive and, at times, displayed truculence in giving his evidence. He provided no primary direct vouching for his income, although he claimed that he had provided such material to those acting for him. In that respect I considered him to be untruthful. I was left with the uneasy impression, as a result, that the Court may not have been given, by him, the full and accurate information it was entitled to expect as to his personal income and expenditure. My uneasiness about this is fortified by the evidence of his attempts in the past to avoid meeting his alimentary obligations.
[13]The defender is presently employed as a physician and anaesthesiologist at Eyre County Medical Centre in Buffalo, New York State. It is a hospital based practice. He receives a salary from this appointment, but also receives income from private practice work. As previously noted, there was no direct vouching of any of his income from these sources. His explanation for this, apart from initially saying that he had given primary vouching material to those acting for him, was that he endorsed his pay cheques to his wife who paid these into her own account. All of his outgoings, however, appeared to be paid from his bank account. These include, for example, the payment of his second wife's travel to Pakistan amounting to some $3,000. The defender's own evidence, about his income, was that for his salaried employment, he earned, during the last year, approximately $74,000. In addition to that, he earned income from private practice work which amounted to $111,000 gross during the last year. The only attempt to vouch these figures came from No. 47/1(a)(b) of process, which is included in a bundle of productions, which were not lodged, on behalf of the defender, until the beginning of the proof. The documents, just referred to, bear to come from a Kenneth Newman, who, the defender informed the Court, is his accountant. They apparently set out to state what the defender's net income was for part of the last year and it was these figures which were used by the defender to state to the Court the figures he gave for his annual income. It is, of course, entirely unsatisfactory that no better independent vouching for his income was provided by the defender. His failure to give such vouching, naturally enough, led the pursuer to believe that he was deliberately hiding the true extent of his income. That is a suspicion that I myself shared, having regard to the way in which the defender gave his evidence. The pursuer has gone to some pains to obtain advertisements of posts in the United States, for which the defender is qualified, which she maintained showed that his earnings could be significantly more than what he was claiming. These were lodged as productions. The incomes offered in those advertisements cover a range throughout the United States and I am not satisfied that it would be safe to extrapolate from that material what the defender is actually earning at the present time. In any event in her pleadings, the pursuer avers that she reasonably estimates that the defender earns about $200,000 gross per annum which amounts to £137,931 at current exchange rates. Given the figures spoken to by the defender himself, his evidence was that his total income was approximately $134,000 net and his counsel, in her closing submissions, asked me to proceed on the footing that his income was between £90,000 and £100,000 per annum net. That figure is not much different from the estimate put on the defender's earnings by the pursuer herself in her pleadings and I shall proceed on that basis, while feeling, to some extent, uneasy about doing so standing the defender's reluctance to vouch matters properly.
[14]To be contrasted with what the defender produced by way of vouching for his income, he, although unacceptably late, produced very detailed vouching of his expenditure - see No. 41/2-9 of process. This includes £608 per month payable as child support in respect of his son and daughter. A schedule of items headed "income and expenditure", apparently drawn up by the defender himself, brings out a surplus per month of $693.30 - £495.21. Included in the expenditure are items described as credit card and charge card payments amounting to $1,768 per month and miscellaneous expenses bringing out a figure of $1,122 per month. There is another item described as ATM cash withdrawals - re food, etc. bringing out a figure of $568 per month and legal expenses of $975 per month. None of these items was explored, in any detail, in either examination-in-chief or cross-examination of the defender. The defender accepted that some of the items of expenditure included in the schedule would be deductible against tax.
[15]The defender owns a house in England, which he rents out. A schedule of monthly income and expenditure produced by the defender, states that the rent the defender receives from that property, amounts to £430 per month. There is a mortgage over that property and the schedule states that the monthly mortgage repayment amounts to £520 per month, which taken together with some other expenses, is said to produce a deficit in respect of the property of £169.53. It is to be noted that some of the expenditure at least i.e. the replacement of windows, is of a non-recurring character. The figures in question are supported by No. 47/1/21 and 47/1/22 of process. No up-to-date valuation of property in question was produced. The defender claimed that the property in question was in a bad state of repair. The defender previously owned another house in England which he transferred to his present wife. He claimed that he sold it to her for £26,500 and that there was a loan over it of £21,000. These matters were not vouched.
[16]Prior to moving to his present home in Buffalo, New York State, the defender and his family lived in Florida. The home he owned in Florida, he said, he sold for $370,000 in May 2001 at a loss to himself of $7,600. These figures were not vouched. The defender claimed that he had bought the property in Florida with a mortgage of between $277,000 and $280,000 plus a loan from his brother of $100,000. The loan by his brother he said now amounted to $132,000 and remained to be repaid to his brother. The evidence about the loan from his brother I found to be unsatisfactory. In a document No. 36/2 of process, lodged on behalf of the defender, which appeared to have been prepared in November 2000, the loan is stated to be $78,000. When the discrepancy between that figure and the figure of $100,000 or $132,000 was put to the defender, he was unable to provide any satisfactory explanation and simply sought to distance himself from the document saying he could not say whether or not he had instructed that the figure of $78,000 should be given as the loan owed by him to his brother in respect of the purchase of the house in Florida. The granting of the loan and the terms of repayment were not vouched by any contemporaneous document. What was produced was a letter from the defender's brother dated 17 May 2001 - No. 46/1 of process - which is in the following terms:
"As of today, May 17, 2001, Syed Masroor Ahmed owes the undersigned total sum of $132,000. The interest rate on the loan is 5%. The loan was loaned over the last two years to assist him with his financial needs. The sum is secured against equity in the house jointly owned by him and his wife in Florida at 10675 Spring Street, Largo, Florida 33774. As per agreement with Syed Masroor Ahmed and his wife, the equity realised upon sale of the house will be used to pay down the debt. Remainder of the debt will be paid at the rate of $3,000 per month until the principal and secured interest is paid off".
The defender, in evidence, told the Court that, in fact, no repayment of the loan was made on sale of the Florida house. Another document, No. 47/9 of process, emanating from the defender's brother, and dated 4 March 2002, that is a few days before the commencement of the proof, is in the following terms:
"As of today, March 4, 2002, Syed Masroor Ahmed has repaid $2,000 towards the outstanding loan. He presently owns to the undersigned total sum of $130,000 excluding interest. The sum is secured against equity in the house jointly owned by him and his wife in New York State at 5573 Woods Edge Court, Williamsville, NY14 221. I had agreed to allow him to use the equity realised on the sale of his house in Florida to be used for the purchase for their new house in Williamsville".
[17]I heard evidence from the defender's brother, Mr Syed M Ahmed. He was somewhat unclear and vague about the various figures which appeared in the documents and which were said to have been lent by him to the defender and remained outstanding. His position, ultimately, was that he would not be pressurising his brother for repayment unless he himself got into bother financially. He said that he was well able to give the sums in question to his brother. The absence of any contemporaneous vouching of the sums allegedly loaned to the defender, or any contemporaneous written agreement setting out the terms of the loan, as opposed to the documents which were clearly prepared for the purposes of the proof, left me with some considerable doubt as to whether or not there was, in fact, any binding and enforceable agreement between the defender and his brother. In any event, the defender's brother made it perfectly clear that he would not pursue repayment of any sums he may have given to his brother, the defender, if this would involve any prejudice to his children. I do not therefore intend to take this alleged loan into account in coming to my conclusion on the defender's ability to pay aliment.
[18]The defender's present home was purchased for $210,000. The defender said that he paid $110,000 as a down payment. The rest of the cost, he said, was covered by a mortgage. The monthly repayments are $1742 per month. That figure is supported by what bears to be a bank statement, No. 47/2 of process.
[19]As I noted at the beginning of this Opinion, in the course of the proof, agreement was arrived at between the defender and his son, the third party minuter, that the defender would increase the aliment he paid in respect of his son from £50 per week to £150 per week. Prior to that agreement being arrived at, the defender, had said, in evidence, that he was only prepared to offer his son £80 per week.
[20]The application made by the pursuer in this case, is one to vary the present decree of aliment in favour of the parties' daughter. Power to vary such a decree is conferred on this Court, "if since the date of the decree there has been a material change of circumstances" - Section 5(1) of the Family Law (Scotland) Act 1985. On the facts I have found, it is clear that there has been a significant change in the circumstances of the parties' financial positions, their obligations and the needs of their children, since the time of the original decree. In reaching my conclusion as to what is now the appropriate rate of aliment to be paid by the defender to the pursuer in respect of the parties' daughter, I have to have regard to the following factors, set out in Section 4(1) of the Family Law (Scotland) Act 1985 i.e. (a) the needs and resources of the parties; (b) the earning capacities of the parties; and (c) generally all the circumstances of the case. Since both the pursuer and the defender owe an obligation of aliment to their daughter, I have to have regard, in determining the amount of aliment to be paid by the defender, to the fact that the pursuer has also an obligation to aliment - Section 4(2) of the 1985 Act. To be contrasted with my duty to take the pursuer's obligation to aliment the parties' daughter into account, when fixing the amount of aliment to be paid by the defender, I have a discretion as to whether or not to take into account any support, financial or otherwise, the defender gives to the children of his new family - Section 4(3)(a) of the 1985 Act, and I may also have regard to the fact that the pursuer owes an obligation of aliment to the parties' son while he remains under twenty-five years of age and is undergoing full-time education - Section 1(1) and Section 1(5) of the 1985 Act.
[21]Counsel for the pursuer in her closing submissions, referred me to the case of McGeoch v McGeoch 1998 FAM LR 130, as authority for the proposition that, in looking at the question of need, the Court should focus on the requirements of the person seeking aliment, having regard to the lifestyle that they had been used to and, all other things being equal, were entitled to expect. In other words need was not to be determined by reference only to subsistence levels but the reasonable requirements of the person in question, having regard to the particular circumstances of that person. In this case the person in question, that is the parties' daughter, is the daughter of two highly qualified professional persons.
[22]I have already indicated that my conclusion was that the expenditure spoken to by the pursuer, and vouched by her, and which is currently being laid out in respect of the parties' daughter, Mahein, cannot be regarded as extravagant, or inappropriate, in the circumstances of a girl of her age, her intelligence and ability, and her family background. I am satisfied, furthermore, that in giving her evidence about her present earning capacity and resources, the pursuer was being entirely truthful. The difficulty which I am left with is that the defender, in my judgment, has not adequately vouched his financial position, so I am left with considerable uncertainty about his resources and earning capacity. He is not, in my judgment, entitled to take any benefit from his own clear deliberate failure to provide full and adequate vouching of these matters. I have, of necessity, in the whole circumstances, because of the defender's position adopted at the proof, to take a somewhat broad view of matters in this case. The defender admits that he earns approximately £100,000 per annum net at the present time I have a distinct suspicion that he may well earn more than that. His claimed expenditure was not fully vouched. He now appears to consider that his son, who is in receipt, apparently of both, a student loan and a bursary, should be paid £150 per week as aliment by him. Counsel for the pursuer submitted that I should vary the amount of aliment payable by the defender to the pursuer in respect of parties' daughter to £250-£350 per week. Counsel for the defender submitted, on the other hand, that an appropriate figure would be "something less than £150 per week".
[23]It appears to me that, having regard to (a) the respective resources and earning capacities of the parties and, in particular, that the defender is, at present, earning at least £100,000 net per annum, and (b) the needs of his daughter, Mahein, as evidenced by the expenditure vouched and spoken to by the pursuer, taken together with the whole circumstances of this case, the defender should be required to contribute £220 per week as aliment for his daughter. This may require some adjustment of his present lifestyle until she completes full-time education, but it is not a sum which I consider can be regarded as inappropriate, or excessive or beyond his capacity to pay, standing his admitted income and other resources.
[24]Counsel for the pursuer invited me to backdate any varied award of aliment to 11 October 2000 when the motion for variation was first made. The reason for the matter not being resolved before now, she submitted, was largely because of the defender's failure to vouch his financial position. He himself admitted now that he had been earning $100,000 in 1994, when the original award was made and that award was made on the basis of a much smaller figure.
[25]The Court has power to backdate any variation of an award of aliment by virtue of Sections 3 and 5 of the 1985 Act. For the reasons advanced by counsel for the pursuer, though the matter was opposed by counsel for the defender, I shall backdate the varied award of £220 per week to 11 October 2000.