Roxar v Jaledoust

On an appeal concerning variation of matrimonial periodical payments, the appellate court should not interfere with a trial judge’s assessment of income, earning capacity, needs and liabilities unless the decision is shown to be wrong or outside the judge’s discretion. Findings based on oral evidence, credibility and inadequate disclosure are especially difficult to challenge. Fresh evidence will not justify disturbing the order where it remains speculative or incomplete and does not demonstrate a material change in circumstances. An earning capacity may properly be assessed by reference to work which a party is able, but deliberately unwilling, to undertake.

The husband appealed against an order of HHJ Hess varying an existing periodical payments order, introducing a pension sharing order and making enforcement provisions for arrears. The order reduced the monthly payments in stages and provided for termination at the husband’s state retirement age.

The husband challenged findings about his current and potential earnings, the parties’ needs and liabilities, and the treatment of alleged debts. He relied substantially on fresh evidence concerning changes to his dental practice and remuneration. The central issue was whether the judge’s evaluation was wrong and whether the later evidence justified appellate intervention.

1. Appeal dismissed. The husband failed to demonstrate that HHJ Hess’s decision was wrong.
2. The judge was entitled to assess the husband’s current income by reference to the available financial evidence. The evidence concerning the effect of the sale of the dental practice and the husband’s future remuneration was limited. The judge was therefore entitled to reject the asserted future reduction in income.
3. The judge was also entitled to find that the husband had an available but unexploited earning capacity. The husband’s evidence showed that he had reduced his working hours because he did not wish to continue paying the existing level of maintenance. The court was entitled to assess the case on the basis of a reasonable higher earning capacity rather than permit that deliberate reduction to determine the level of support.
4. Findings concerning the wife’s earning capacity, income, housing needs and liabilities were based substantially on the trial judge’s assessment of oral evidence. That assessment was one which the trial judge was best placed to make and disclosed no error warranting appellate interference.
5. The fresh evidence filed on appeal did not establish an overall reduction in the husband’s income. Its implications for NHS and private practice earnings remained uncertain, and the husband had not fully complied with the direction requiring details of the division between those sources of income. The wife’s incomplete evidence concerning student-loan repayments was insufficient to undermine the overall assessment.
6. The staged reduction of periodical payments, the pension sharing order under the Matrimonial Causes Act 1973, and the order dealing with arrears were carefully crafted exercises of discretion. No basis existed for remitting or disturbing the arrears.

• High Court (Family Division): appeal from an order of HHJ Hess dated 1 November 2016 was dismissed. The order varying periodical payments, making a pension sharing order and enforcing arrears remained in place.