G v G

• Jurisdiction: Ireland
• Judge: Finlay P.
• Judgment Date: 09 October 1984
• Neutral Citation: 1984 WJSC-HC 2177
• Docket Number: [1981 No. 582 Sp.],1982 No. 582 SP CT
• Court: High Court
• Date: 09 October 1984

G. (F.) v G. (P.)

IN THE MATTER OF THE MARRIED WOMEN'S STATUS ACT, 1957AND IN THE MATTER OF THE FAMILY LAW (MAINTENANCE OF SPOUSES ANDCHILDREN) ACT, 1976AND IN THE MATTER OF Y. G., AN INFANT AND IN THE MATTER OF ANAPPLICATION OF F. G.

BETWEEN:

F. G.

Plaintiff

.v.

P. G.

Defendant

1984 WJSC-HC 2177

1982 No. 582 SP CT

THE HIGH COURT

Subject Headings:

CONFLICT OF LAWS: judgment

CONSTITUTION: divorce

INFANTS: maintenance

JUDGMENT: enforcement

1 Judgment delivered on the 9th day of October 1984by Finlay P.

2 This is a claim brought by the Plaintiff who is the wife against the husband for the sum of 3,230 dollars or in the alternative the equivalent amount in Irish pounds converted at the rate of exchange prevailing on the date of judgment herein. The claim is based, firstly, on an agreement in writing made between the parties on 2nd April 1979 whereby the Defendant agreed to pay the sum of 40 dollars per week for the support of the infant, Y. G. commencing on the 13th April 1979 and secondly, on an Order dated 2nd April 1979 and made by the Probate and Family Court of the Commonwealth of Massachusetts whereby it was decreed that the parties who are the parties to this action

"shall comply with the stipulation or agreement of the parties dated 2 April 1979 which is filed with the Court and expressly made a part of this Order."

3 The stipulation or agreement therein referred to was, I am satisfied on the evidence, the agreement which I have already quoted and which has been proved before me.

4 The action was tried before me on affidavit having been brought by special summons and the Defendant did not dispute either the making of the agreement or that as was alleged by the Plaintiff that he was in default in the payment of the sum of 40 dollars per week pursuant to that agreement to the extent of the sum of 3,230 dollars calculated to the 7th day of July 1981.

5 He sought, however, to resist the entry of judgment against him for this sum on two grounds. Firstly, he asserted that as a matter of law the Order made by the Court in Massachusetts on the 2nd April 1979 was not a final Order and as such on the principles of international law applicable was not capable of being the subject matter of a judgment in these courts. Secondly, he contended in the alternative that even if the Order were to be interpreted as a final Order that it formed part of and was inseparable from an Order for divorce granted to the Plaintiff against him, the Defendant, in the Courts of Massachusetts and that as such having regard to the decision in Mayo-Perrott .v. MayoPerrott 1958 I.R. in accordance with the provisions of the Constitution this Court could not lend its aid to execution of thejudgment.

6 I had before me not only the affidavit of the Plaintiff stating the formal matters concerning the action but also the affidavit of John G. Hommel, a Counsellor-at-Law in the Commonwealth of Massachusetts entitled to practice before the courts of that State dealing with questions of the law of the Commonwealth of Massachusetts and as well dealing with the facts of the case in which he was the Counsel acting on behalf of the Plaintiff.

7 The sequence of events leading to the making of the agreement and Order to which I have referred can chronologically be stated as follows. The Plaintiff and Defendant were living together inMassachusetts in the years prior to 1978. There were three children of their marriage, the third of whom, the infant in the title hereof, was in 1978, 15 years of age, the other two children being at that time 19 and 18 years of age respectively.

8 The Plaintiff filed a petition for a divorce a vinculo matrimonii on the 8th day of April 1978. A judgment of divorce nisi was granted in those proceedings on the 15th May 1980 to become absolute at the expiration of 6 months unless on the application of any person within that period the Court should otherwise order. No such order having been made, that decree became absolute on the 17th November 1980. After the issue by the Plaintiff of her petition for divorce, she filed a complaint against her husband in the Courts of Massachusetts on 12th February 1979 claiming custody of the Infant in the title hereof named and seeking maintenance for the child and seeking also an Order requiring the Defendant to leave the family home. It was in those proceedings which came for trial for the first time on 2nd April 1979 that the agreement to which I have already referred and the Order incorporating it as an Order of the Court was made.

9 On the facts and documents, I am satisfied that prior to the granting of the judgment of divorce nisi an application to the Court for judgment of contempt was brought by the Plaintiff on the 4th April 1980 and arrears of the maintenance in the sum 750 dollars was then established.

10 Portion of the judgment of divorce nisi provides as follows -

"...and it is further ordered that custody of the minor child of the parties, namely Y., be and hereby is given to the Plaintififf with the right in the Defendant to visit with the said child at any and all reasonable times, first giving 24 hours prior notice.The Defendant shall pay to the Plaintiff the sum of 40 dollars forthwith and a further sum of 40 dollars on each and every Friday hereafter beginning May 23rd, 1980 for the maintenance, support and education of the minor child until he becomes re-employed. All support payments are to be made through the Family Service Office.

In accordance with the judgment of contempt issued April 4th, 1980 an arrearage of 750 dollars is hereby established for the Defendants failure to comply with the support order of April 2nd, 1979. Said arrearage is held in abeyance. The issue of arrearages and support shall be reviewed by the Court on June 26th, 1980. Or until the further Order of the Court."

11 This judgment of divorce nisi also contained a provision directing the Defendant to convey to the Plaintiff his interest in certain premises situated in Dublin. This would appear to be the only monetary provision made in the divorce judgment to be made to the Plaintiff by the Defendant and is separate from the provision for the Defendant to pay maintenance in respect of the Infant.

12 The affidavit of John G. Hommel establishes the following matters of law of the Commonwealth of Massachusetts.

13 1. The Plaintiff had a right separate from and irrespective of any petition for a divorce to seek from the courts in Massachusetts an order granting her custody of the Infant child and an order directing the Defendant to pay maintenance in respect of that child.

14 2. Upon the making of such an Order for maintenance, the court may, of course, vary it at any time with the altered circumstancesof the parties but has not got jurisdiction to alter itretrospectively.

15 3. Arrears due on such an Order for maintenance can be sued upon in Massachusetts as a liquidated sum and as a simple debt due and the Court will not alter the amount due as arrears.

16 4. If the Plaintiff had never issued a petition for divorce or if her petition for divorce had failed, the Order for maintenance would have continued in force in respect of the Infant until varied or rescinded by the Court.

17 5. Upon the making of a judgment of divorce nisi, however, it is a matter of procedure in the courts of Massachusetts that any order made for the maintenance of a child prior thereto in the separate proceedings is incorporated in the judgment of divorce nisi and that the separate complaint for maintenance of the child is thereupon dismissed as is stated in the affidavit to be a matter of procedure only and not a matter of law.

18 On these facts and on these statements of law which are not contested before me, I have been referred to the following decisions.

19 Firstly, of course, I am bound by the decision of the Supreme Court in Mayo-Perrott .v. Mayo Perrott to which I have already referred and unless I am satisfied that the Order for maintenance can be and is clearly separable from the decree of divorce, I cannot having regard to the provisions of the Constitution enforce it. The issue which arose in Mayo-Perrott of course, was a straightforward issue whereby what was sought to be enforced was an Order obtained by the Plaintiff, who was the wife, for the taxed costs of successful proceedings for divorce a vinculo matrimonii in the High Court in England. From the judgments, it is clear that the issue which...