Nyhan v Judge David Riordan

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Noonan
• Judgment Date: 08 April 2016
• Neutral Citation: [2016] IEHC 170
• Date: 08 April 2016
• Docket Number: [2014 No. 461 JR ]

KAREN NYHAN

APPLICANT

AND

JUDGE DAVID RIORDAN

RESPONDENT

AND

ANTHONY NYHAN

NOTICE PARTY

[2016] IEHC 170

[2014 No. 461 JR ]

THE HIGH COURT

Family – Maintenance – Decree of Judicial Separation – Separation Agreement – Duration of Maintenance Order – s. 13 of the Family Law (Divorce) Act 1996 – s. 12 of the Family Law Act 1995.

Facts: Following a decree of divorce and later refusal of an order to enforce a maintenance order as per the separation agreement in writing dealing with the financial arrangements between the parties, the applicant now sought an order of certiorari quashing the impugned order. The applicant submitted that the coming into effect of a pension adjustment order made pursuant to s. 12 of the Family Law Act 1995 would not terminate the maintenance order clearly provided for by s. 13 of the Family Law (Divorce) Act 1996. The applicant contended that the respondent erred in law and made an order without jurisdiction.

Mr. Justice Noonan held that the application for an order of certiorari quashing the impugned order would be dismissed. The Court observed that the respondent duly judged based on a full consideration of all the evidence presented. The Court stated that the respondent duly determined that the maintenance order ceased on the coming into effect of the pension order as per the intention of the parties at the time they entered into the separation agreement. The Court advised the applicant that the appropriate remedy for the applicant would be to pursue an appeal to the High Court.

JUDGMENT of Mr. Justice Noonan delivered the 8th day of April, 2016.

1 The applicant seeks an order of certiorari quashing the order of the respondent made on the 7th of May, 2014, whereby the applicant's motion seeking to enforce a maintenance order made on the 26th of May, 2008, was struck out.

2 The applicant and the notice party were married on the 20th of November, 1976. They obtained a decree of judicial separation on the 18th of October, 2001. On the same date they entered into an agreement in writing dealing with the financial arrangements between the parties. Pursuant to that agreement, the notice party agreed to pay the applicant maintenance in the sum of IR£250 per week (equivalent to €317.44). Pursuant to the terms of the agreement, a pension adjustment order was made whereby the applicant was to receive 50% of the notice party's pension for the period of reckonable service from the commencement date of the pension to the date of the agreement. On the 28th of April, 2003, the maintenance order was varied to €200 per week. On the 18th of May, 2007, the parties obtained a decree of divorce and on the 23rd of May, 2007, it was ordered that the maintenance would continue at the rate of €200 per week. On appeal to the High Court, the maintenance order was, on the 26th of May, 2008, varied to €220 per week.

3 On the 31st of October, 2011, the notice party retired from his employment on grounds of ill health and received a redundancy payment of €178,565.

4 On the 9th of December, 2011, the notice party ceased maintenance payments to the applicant. The notice party wrote to the applicant on the 13th of December, 2011, advising her that maintenance would cease as of that date and her pension share would be paid. The notice party received a lump sum of €87,350 on foot of his pension and a payment of €39,308 was made to the applicant. From December 2011, the applicant's entitlement pursuant to the commencement of the notice party's pension was €230 per month.

5 Approximately a year later on the 6th of December, 2012, the applicant's solicitors wrote to the notice party making complaint of the fact that he had ceased making payments on foot of the maintenance order and threatening a motion in the event that payments were not resumed and arrears paid. On the 17th of September, 2013, the applicant issued a motion returnable before the Circuit Court seeking enforcement of the maintenance order. On the 19th of November, 2013, the notice party issued a motion seeking to vary the maintenance order. Both motions came on for hearing before the respondent on the 7th of May, 2014.

The Hearing before the Respondent.

6 Both motions were heard on affidavit and the applicant's motion proceeded first. Counsel for the applicant opened the matter fully to the respondent setting out the entire history of the proceedings in detail. This was responded to by counsel for the notice party. Having heard opening arguments from both...