DANA MARIE GOETZ v. THOMAS EDWIN GOETZ

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 257
(Civil)

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JUDGMENT

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Leong, J.A. (giving the judgment of the Court):

1. The petitioner Dana Marie Goetz married the respondent Thomas Edwin Goetz in 1974. She petitioned for divorce on 28th November 1994 and Decree Nisi was granted on 24th May 1995.

2. On 4th December 1995, a consent order on maintenance pending suit was made. The respondent agreed to pay US$5,000 per month as from 1st January 1996 until further order.

3. On 29th January 1997 the respondent by two summonses sought a Decree Absolute, variation of the order of 4th December 1995 and remission of the arrears of maintenance as from that date. It appeared that these applications were not dealt with on the returnable date.

4. On 5th June 1997, the decree was made absolute and the order of 4th December 1995 for maintenance pending suit was replaced by a consent interim maintenance order made under s.4 of the Matrimonial Proceedings and Property Ordinance. The monthly payment remained at US$5,000 and this would continue until the hearing of the ancillary relief.

5. The respondent defaulted in respect of both orders of 4th December 1995 and 5th June 1997 with arrears amounting to US$52,000. On 20th August 1997 pursuant to the order of Deputy Judge Saunders dated 5th August 1997, the petitioner took out a judgment summons against the respondent requiring the respondent to appear before the District Judge to show cause. The matter was heard by District Judge Carlson on 13th November 1997 and judgment was given on 2nd December 1997. In his judgment, the District Judge said he was dealing with two applications - the judgment summons of 20th August 1997 and the application of 29th January 1997 for variation of the order for maintenance pending suit. The District Judge ordered that the monthly payments be varied to US$3,400 with effect from 1st December 1997 and that the arrears of maintenance accrued under the orders of 4th December 1995 and 5th June 1997 be remitted back to the date of the summons. The District Judge however made no order on the judgment summons. The petitioner now appeals against these orders seeking to set aside the orders and to have the judgement summons remitted back to the District Court to be dealt with there.

6. Counsel for the petitioner submits that on 13th November 1997 only the judgment summons was before the District Judge whereby the petitioner sought to enforce the consent orders of 4th December 1995 and on 5th June 1997. The respondent's summons of 29th January 1997 to vary the order of 5th December 1995 was not before the judge. In any case the order of 4th December 1995 had been superseded on 5th June 1997 by the order under s.4. The respondent's application, it is submitted, was rendered no effect. The District Judge had no jurisdiction to vary the monthly payments and to remit the arrears to the date of the respondent's summons. It is also submitted that the District Judge should not have left the judgment summons undisposed of. If the respondent was not able to meet the payments under the two maintenance orders, the District Judge should have dealt with the judgment summons by making a new order under Rule 87(5)(a) of the Matrimonial Causes Rules.

7. After Decree Absolute was made on 5th June 1997 and a s.4 maintenance order was made in its place, there was no longer any order for maintenance pending suit. The s.4 maintenance order was the only existing periodical payment order on 13th November 1997. But there was no application for variation of that order or any other maintenance order validly before the District Judge. In any case, the order of 5th June 1997 was made by consent. By that the respondent indicated he could meet the monthly payment of US$5,000 as before whatever his financial position was. There was no reason for varying the order of 4th December 1995. In these circumstances, when the only application before the District Judge was the judgment summons, the judge should not have varied the order of 4th December 1995 because he had no such jurisdiction.

8. Enforcement of orders for payment of money in matrimonial proceedings against a defaulting party may be made by way of a judgment summons and this is provided under Rule 87 of the Matrimonial Causes Rules, Cap.192. Rule 87(2) enables the petitioner to issue a judgment summons to the respondent to require him to appear before the court to be orally examined on the question whether he has any and, if so, what other property or means of satisfying the order. Rule 87(5) provides that on the hearing of the judgment summons the judge "may where it appears to him that the order would have been varied or suspended if the judgment debtor had made an application for that purpose, make a new order for payment of the amount due under the original order, together with the costs of the judgment summons, either at a specified time or by instalments" The District Judge was thus restricted by such a rule to the extent of making a new order in respect of the amount due and he could not make a variation order. It should be also noted that the rules do not provide for remitting the amounts due under the orders. If the District Judge considered that the respondent should be given time to pay or to pay in other manners or there were reasons for the payments to be suspended, he should have made a new order under Rule 87(5). The District Judge had not dealt with the judgment summons in accordance with the rules. He should not have made no order on the judgment summons.

In the circumstances, the appeal is allowed and the orders made on 2nd December 1997 are set aside. The judgment summons is remitted back to the District Court to be dealt with preferably by a different judge and the application be heard as early as possible.