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JILL MARELIC v. DAVOR MARELIC [2000] ScotSC 11 (25th April, 2000)

F212/94

JUDGMENT OF SHERIFF FIONA LENNOX REITH, Queen's Counsel

in the cause

JILL MARELIC, (Assisted Person), residing at 2110 Boulevard Napoleon, Louisville, Kentucky, United States of America

Pursuer

against

DAVOR MARELIC, residing at 60 Montgomery Street, Kinross

Defender

____________

Act: Morris: Condies, Solicitors, Perth

Alt: Miller; TD Young & Co, Solicitors, Glenrothes

PERTH, 25^th April 2000

The Sheriff, having resumed consideration of the cause Finds in Fact:

The defender resides at 60 Montgomery Street, Kinross. He lives there with his second wife, Mrs Gillian Marelic and their two children. The defender is 54 years of age.

The pursuer and the defender were married on 18^th June 1978 in Lake County, Illinois, Unites States of America.

There is one child of the marriage, namely Daniel Marelic, who was born on 31^st December 1979.

By Judgement for Dissolution of Marriage dated 17^th May 1985 ("said Judgement") a Dissolution of Marriage Separation Agreement ("said Agreement") was entered by the Clerk of the Circuit Court of Cook County, Illinois, Unites States of America between the pursuer and the defender.

In terms of said Judgement custody of the said child was awarded to the pursuer. The defender was found entitled to visitation rights in relation to the said child.

In terms of clause six of said Agreement the defender was found liable to make payment to the pursuer of the sum of $313 per month in respect of child support for the said minor child, Daniel. This amount was stated to be based upon the defender's gross income of $25,000 as at the date of said Agreement. Until the defender left the Unites States in about September 1988, he was also provided with free accommodation by his employers. His bills for heating and lighting were also met by his employers. The defender was employed as a building maintenance supervisor.

In terms of clause six of said Agreement the defender acknowledged being in arrears of temporary child support to the extent of $130.

The defender married his second wife in about 1987. They married in the Unites States. She had been employed as a car wholesaler there. As a result, she had had experience of business administration. They have two children who are now aged about 13 and 12.

With the exception of a period of about nine months, the defender made payments in respect of the child support due in terms of said Agreement until about January 1989. He stopped making said payments for about nine months because the pursuer had been refusing to allow him to see the said child, Daniel. He had done this as a last resort in an attempt to re-start visitation to the said child. The money due as child support was subsequently deducted from his salary. The defender had also returned to Court in the United States in an attempt to reduce his liability for the payments due. His applications were not successful.

At about Christmas 1987 the defender and his second wife returned to Scotland with their two children for Christmas. His second wife had been born in Scotland and still had family living in Scotland. She had purchased a return ticket but had then decided not to return to the United States. She had been feeling depressed and did not want to return there. The defender returned to the United States after Christmas. He was still employed there.

In about September 1988 the defender returned to Scotland to join his second wife and their two children there permanently. The pursuer was aware of his address and telephone number in Scotland. The defender had told her where he was going. She accordingly knew where to find him. The parents of the defender's second wife helped them out financially on their return to Scotland. They had expected their financial position to improve. Since their return to Scotland the said parents have continued to help out financially and in kind.

The defender and his second wife commenced a building supplies business in Kinross in about February 1989. The said business was and is known as "D&G Marelic trading as Ace Buildings Material." To enable the said business to be started up the defender's second wife borrowed about Ł15,000 from her mother. The defender's second wife also put in about Ł6,000 of her own savings into the business and a further Ł3,000 towards the purchase of a house. The defender was unemployed in Scotland until the commencement of the said business. There had been a delay in the acquisition of premises for the said business. They had originally proposed to lease the said premises but then required to purchase them due to a change of mind on the part of the then owner of the premises.

By letter dated 27 October 1989 (No. 6/3/6 of process) Messrs Campbell, Brooke & Myles, the solicitors then acting for the pursuer, wrote to the defender seeking payment of outstanding arrears of aliment in respect of the said child, Daniel.

By letter dated 9 November 1989 (No. 6/3/7 of process) Messrs Tods Murray, the solicitors then acting for the defender, responded to said letter of 27 October 1989. They explained the defender's position and offered a nominal sum of Ł5 per week.

By letter dated 10 November 1989 (No. 6/3/8 of process) the solicitors acting for the pursuer advised the solicitors acting for the defender that they were seeking further instructions from the pursuer in relation to said letter of 9 November. Those solicitors did not write further to the defender or his solicitors thereafter.

In the meantime, the defender kept in contact with the said child, Daniel, by telephone and letter. In the course of telephone conversations, the pursuer on occasion asked the defender if he was going to pay maintenance. He told her that he was not able to do so. The defender however occasionally sent Daniel gifts of money with letters. These were not payments in respect of the child support due in terms of said Agreement and said Judgement.

The pursuer was granted an Initial Child Support Enforcement Transmittal on about 22 January 1992 (No. 5/1/11 of process). A second Child Support Enforcement Transmittal was granted on about 30 March 1994 (No. 5/1/12 of process). There was no explanation for the delay between both or for the delay in then commencing the present proceedings. The present proceedings were commenced on 9 September 1994.

Child support continued to fall due at the rate of $313 per month in terms of clause six of said Agreement from 1 April 1994 until 31 December 1997 when the said child, Daniel, ceased to be a minor child.

By interlocutor dated 17 March 1995 the Sheriff at Perth made an award in favour of the pursuer of interim aliment at the rate of Ł80 per month. Said award of interim aliment was payable in advance from 4 January 1995.

The defender met the payments due in terms of said interlocutor until 31 December 1997 when the said child, Daniel, reached the age of eighteen years.

The defender and his second wife have no savings. They have no stocks and shares.

By letter dated 2 December 1993 (No. 5/3/2 of process) Messrs Condies, solicitors now acting for the pursuer wrote to the defender at his home address seeking payment of arrears of child support due.

By letter dated 8 December 1993 (No. 5/3/1 of process) the defender replied to said letter of 2 December enclosing a copy of said letter dated 9 November 1989 (No. 6/3/7 of process) from Messrs Tods Murray and requesting a reply thereto.

As at 31 March 1994 the defender was in arrears of child support due in terms of clause six of said Agreement to the extent of $19,753.50.

Mr Gavin Robertson has been the accountant for the said business since about 1989. He has been responsible for preparing all the accounts for the said business. These comprise No's 6/1/1 through to 6/1/5 of process and No's 6/3/1 through to 6/3/4 of process. They cover the period from March 1989 until 30 April 1998. The said accounts are true and accurate.

In the thirteen month period ended 30 April 1990 the said business made a net loss of Ł10,134. This was the first year of trading. The balance sheet brought out a deficit of Ł7,903. The drawings taken by the defender and his second wife for said period totalled Ł11,400 before tax and national insurance. The bank overdraft totalled Ł19,905 and the bank term loan totalled Ł20,611.

In the year to 30 April 1991 the said business made a net profit of Ł5,998. The personal drawings for the defender and his second wife totalled Ł10,688 before tax and national insurance. The balance sheet brought out a deficit of Ł12,593.

In the year to 30 April 1992 the said business made a net profit of Ł19,297. This included the sum of Ł6,000 received in respect of the grant by them of an option on property. Their personal drawings totalled Ł14,594 before tax and national insurance and an insurance payment of Ł1,951. The balance sheet brought out a deficit of Ł4,390.

In the year to 30 April 1993 the said business made a net profit of Ł18,304. Their personal drawings totalled Ł15,813 before tax and national insurance. The balance sheet brought out a deficit of Ł1,899.

In the year to 30 April 1994 the said business made a net profit of Ł11,980. The reduction in the figure for net profit was attributable to bad debts totalling Ł8,156. These were written off in accordance with normal accounting practice. Their personal drawings totalled Ł13,271 before tax and national insurance. This did not include pension and life assurance payments totalling Ł3,900. The balance sheet brought out a deficit of Ł7,090. Part of the fixed assets of the said business was property shown at a value of Ł37,005. This represented the premises from which the said business operated.

In the year to 30 April 1995 the personal drawings of the defender and his second wife totalled Ł16,231 before tax and national insurance. This figure did not include pension and life insurance payments totalling Ł4,255. In that year the said business made a net profit of Ł17,033. The said property was still shown as part of the fixed assets of the said business. The bank overdraft totalled Ł25,244 and the bank term loan was in the sum of Ł29,000. The bank held, and continue to hold, a standard security over said premises in respect of said overdraft and said bank term loan. There was accordingly no free equity in the said property.

In the year to 30 April 1998 the said business made a net profit of Ł20,763. The drawings taken by the defender and his second wife totalled Ł17,404 before tax and national insurance. This did not include insurance payments. The amount of the bank term loan was Ł28,000. The bank overdraft was at a level of Ł27,012. The said property was shown at a value of Ł37,443. The balance sheet brought out a deficit of Ł13,654.

No. 6/3/5 of process is a true and accurate summary of the Accounts of the said business.

By re-scheduling commitments due by the said business it is likely that the business could finance a short-term loan, for about 2 to 3 months, of up to about Ł2,000. The higher the amount of any such loan, the greater the pressure on the cash flow of the said business. The said business is already experiencing cash flow difficulties. Payments due are already being re-scheduled. Any additional borrowing would therefore add to these difficulties.

Over the period from the commencement of the said business until the 18^th birthday of the said child, Daniel, on 31 December 1997 the defender did not have sufficient resources to enable him to meet the said payments of child support due at the rate of $313 (Ł193.21) per month in terms of said Agreement.

It is not proved that the said business would be able to secure additional borrowing of the order of Ł12,000.

The present action was raised on 9 September 1994.

The exchange rate can be taken as being $1.62 to the Ł1 for the purposes of the present proceedings.

As at 30 March 1994 the pursuer's net income was $3,199 (Ł1,974.69) per month from her employment. Her net annual income was accordingly about $38,388 (Ł23,696). Her monthly out-goings as stated in her Affidavit of that date (comprising part of No. 5/1/12 of process) totalled $2,520 (Ł1,555.55). The pursuer's net free income was accordingly about $679 (Ł419) per month. The pursuer's income exceeded the defender's one half share of the net profit and/or drawings from the said business both for the year to 30 April 1994 and for the year to 30 April 1995.

Finds in Law:

The divorce having been granted in Illinois and recognised as valid by the law of Scotland, and the defender having failed to comply with the award of child support made by a court of that country by reason of the divorce, the defender owed an obligation of aliment in respect of the said child, Daniel, within the meaning of section 1 of the Family Law (Scotland) Act 1985 while he was such a child.

The pursuer also owed an obligation to aliment the said child, Daniel, in terms of section 1 of the Family Law (Scotland) Act 1985 while he was such a child.

Special cause has not been shown for an award of aliment to be back-dated to a date prior to the bringing of this action.

It has not been proved what sum, if any, would have represented reasonable aliment in respect of the said child from the defender for the period from 9 September 1994 until 3 January 1995.

Therefore Sustains the 2^nd and 3^rd pleas-in-law for the defender, Repels the 1^st, 4^th and 5^th pleas-in-law for the defender, Repels the 1^st, 2^nd, 3^rd, 4^th and 5^th pleas-in-law for the pursuer, Dismisses the pursuer's craves: Reserves meantime all questions of expenses.

NOTE:

Introduction:

This is a case which arises out of a judgment given by a court in Illinois in the United States on 17 May 1985 giving effect to an Agreement entered into between the pursuer and the defender. In terms of clause six of the Agreement the parties agreed that the defender was to pay $313 per month to the pursuer for the support of the child of the marriage, Daniel. Daniel was then aged 5. He is now 20 years of age. The defender moved to Scotland in 1988 to join his second wife, Gillian. It is accepted that he met none of the support payments due after January 1989.

The legal framework:

Part II of the Maintenance Orders (Reciprocal Enforcement) Act 1972 ("the 1972 Act") provides for the reciprocal enforcement of claims for the recovery of maintenance. Illinois is a state to which part II of the 1972 Act applies: The Recovery of Maintenance (United States of America) Order 1979. Part II of the 1972 Act does not deal with the reciprocal enforcement of orders. It deals with the reciprocal enforcement of claims. Consequently, the judgment is not itself enforceable in Scotland.

The mechanics provided by the 1972 Act in relation to such decrees is contained in section 31 of that Act. Section 31(1A) of the Act provides that proceedings arising out of an application for recovery of maintenance by a person in a country to which part II of the Act applies is to be treated as an action for aliment within the meaning of the Family Law (Scotland) Act 1985 ("the 1985 Act"). It is then provided that, subject to certain qualifications, the provisions of the 1985 Act relating to aliment are to apply in relation to claims for maintenance in such proceedings and decrees therein.

This case is concerned with the recovery of aliment for the child of the defender. Section 1(1)(c) of the 1985 Act provides that an obligation of aliment is owed by a father to his or her child. By virtue of section 31(1A) of the 1972 Act, this provision of the 1985 Act therefore applies so as to impose on the defender an obligation of aliment in relation to Daniel. The question of the amount, if any, which would represent reasonable support is then governed by sections 1(2) and 4 of the 1985 Act.

Section 31(4) of the 1972 Act goes on inter alia to provide that where an application is for recovery of maintenance from a person who is a former spouse of the applicant, an award shall not be made unless, first, the marriage was dissolved by divorce in a country outside the United Kingdom and is recognised as valid by the law of Scotland, second, an order for the payment of maintenance for the benefit of the applicant as a divorced person has been made in divorce proceedings in a convention country and, third, the court making the award is satisfied that the former spouse of the applicant was failing to comply with the maintenance order made by the court which granted the divorce. There was no suggestion in the present case that these requirements had not been met.

Turning to the 1985 Act, section 1 provides as follows:

"- (1) ...an obligation of aliment shall be owed by...

(2) For the purposes of this Act, an obligation of aliment is an obligation to provide such support as is reasonable in the circumstances, having regard to the matters to which a court is required or entitled to have regard under section 4 of this Act in determining the amount of aliment to award in an action for aliment."

Section 3 of the 1985 Act then provides:

"-(1) The court may, if it thinks fit, grant decree in an action for aliment, and in granting such decree shall have power-

...

to the date of the bringing of the action or to such later date as the court thinks fit; or

on special cause shown, to a date prior to the bringing of the action;...

(2) Nothing in subsection (1) above shall empower the court to substitute a lump sum for a periodical payment."

Section 4 of the 1985 Act then provides:

"(1)- In determining the amount of aliment to award in an action for aliment, the court shall, subject to subsection (3) below, have regard-

to the needs and resources of the parties;

to the earning capacities of the parties;

generally to all the circumstances of the case.

(2) Where two or more parties owe an obligation of aliment to another person, there shall be no order of liability, but the court, in deciding how much, if any, to award against any of those persons, shall have regard among the other circumstances of the case, to the obligation of aliment owed by any other person.

(3) In having regard under subsection (1)(c) above generally to all the circumstances of the case, the court-

may, if it thinks fit, take account of any support, financial or otherwise, given by the defender to any person whom he maintains as a dependant in his household, whether or not the defender owes an obligation of aliment to that person; and

shall not take account of any conduct of a party unless it would be manifestly inequitable to leave it out of account."

Form of action:

At the commencement of the Proof, Mr Morris on behalf of the pursuer indicated that he was only seeking decree in terms of crave 1 of the Record as it then stood (No. 13 of process). At that point, crave 1 sought payment by the defender to the pursuer of the sum of $19,753.50, with interest from 1 April 1994.

Mr Miller then commenced his submissions for the defender in reply with a submission to the effect that crave 1 was incompetent in that, contrary to the terms of section 3(2) of the 1985 Act, it sought payment of a lump sum as opposed to payment of aliment. It appeared that the pursuer was in effect simply seeking to enforce or rubber-stamp, the award made by the court in Illinois. That was not the correct approach: Bergman v Bergman 1988 GWD 22-953 (unreported).

The hearing on submissions was continued to enable Mr Miller to complete his submissions. No doubt in recognition of the force of the submission in relation to competency, it was in this intervening period that a Minute of Amendment (No. 14 of process) was tendered on behalf of the pursuer. This sought to delete the existing crave 1 and to substitute therefor a crave seeking payment to the pursuer by the defender of $313 per month in name of aliment for Daniel and to backdate the award of aliment to 1 January 1989, and with interest from 1 April 1994. This was not opposed by the defender. Answers were lodged and the Record was amended to its final form (No. 17 of process).

In the course of his continued submissions, Mr Miller indicated that in the light of the amendment which had been made he did not now require to proceed with his counter-claim. He also told me that he was not insisting in his 1^st plea-in-law. He therefore invited me to repel the 1^st, 4^th and 5^th pleas-in-law for the defender. He also invited me to sustain the 2^nd and 3^rd pleas-in-law for the defender in relation to the principal action.

Mr Morris confirmed that, although crave 1 was in general terms, he was seeking an award of $313 per month from 1 January 1989 until 3 January 1995, being the day before the first payment of Ł80 a month awarded by this court in the interlocutor dated 17 March 1995. He indicated that, as from 4 January 1995, he was not seeking an award over and above the level of the interim award made. It was a matter of agreement that the action was commenced on 9 September 1994. Mr Morris was therefore seeking a backdating of the award now sought, not just to the beginning of the action, but to 1 January 1989. This was the approximate date upon which the defender had last paid the support due in terms of said Agreement and Judgement. Parties were also agreed that, for the purposes of the present proceedings, the exchange rate should be taken as being $1.62 to the Ł1.

At the outset of the Proof, Mr Morris advised the court that no verbal evidence was to be given by or on behalf of the pursuer. She was apparently still living in the United States. He sumitted that, due to the nature of the litigation, it was not necessary for her to attend.

Mr Morris went on to submit that the case for the pursuer included the following factors:

He first pointed to no. 5/1/1 of process. This was the Judgement for the dissolution of the parties' marriage dated 17 May 1985. This gave approval and effect to a Separation Agreement entered into between the parties on the same date. He pointed to the two signatures below clause five which he said bore to be the signatures of the pursuer and the defender. He also pointed out that the Judgement bore a stamp at the end which indicated that it had been entered by the Clerk of the Circuit Court on 17 May 1985. He then founded particularly on clause six of that part of the Judgement incorporating the parties' Agreement. In terms of that clause, the defender was found liable to pay the sum of $313 per month to the pursuer as support for Daniel. This amount was said to be based on the defender's then gross income of $25,000. In that clause the defender had also acknowledged arrears of $130.

Mr Morris next pointed to the terms of Answer 2 in the Closed Record. In the Answer the defender had admitted the entering of the Judgement and Separation Agreement by the Clerk of the Circuit Court and that in terms of clause six he had been found liable to make the monthly payment. Mr Morris said that there was therefore no dispute that the document was what it purported to be. There was also no dispute as to what the obligations imposed on the defender were in the Judgement. Mr Miller did not dispute these assertions.

Mr Morris also submitted that he would be founding on an admission by the defender that by 31 March 1994 he was in arrears to the extent of $19,753. This was in the original Record, No. 10 of process. Any such admission on Record can of course be withdrawn, as it was. Mr Morris pointed out that this admission had later been replaced with a "not known and not admitted", with an explanation being given to the effect that the defender had no records of the precise payments made. He suggested that this was equivalent to an admission as it was a matter within the knowledge of the defender. I did not agree with this. It seemed to me that the reason stated on Record for the matter being not known was a perfectly intelligible one. In the event, however, when the admission in No. 10 of process was put to him in cross-examination the defender accepted that it was true. Mr Morris was therefore able to, and did, found on that.

As regards the case for the defender, the defender himself gave evidence. His second wife, Mrs Gillian Marelic, and Mr Graham Robertson, Chartered Accountant, were also led in evidence on his behalf. I formed the view that the defender was a credible witness who was doing his best to tell the truth. There were parts of his evidence where he was being asked about what had happened many years ago about payments and any contact with his former wife, or solicitors on her behalf, where his recollection was poor. However, I did not form the view that he was deliberately lying or attempting to mislead the court. So far as the defender's second wife was concerned, I formed the view that she was an impressive witness. I accepted her evidence as being wholly credible and reliable. Mr Robertson was likewise a wholly credible and reliable witness in my opinion.

In terms of section 36 of the 1972 Act, a statement contained in a document, duly authenticated, which purports to set out or summarise evidence taken in a convention country for the purpose of proceedings in a court in the United Kingdom under part II of the 1972 Act is admissible as evidence of any fact stated therein to the same extent as oral evidence of that fact is admissible in those proceedings. Such a document is deemed to be duly authenticated if it purports to be certified by the judge or other person before whom the evidence was given. Mr Morris and Mr Miller were agreed that these provisions applied to the Affidavit accompanying the Second Child Support Enforcement Transmittal (No. 5/1/12 of process) which was given by the pursuer and certified by the Notary Public before whom she had sworn her Affidavit. That Affidavit was dated 30 March 1994. In that the pursuer stated that her income at that point was $3,199 per month net (representing $38,388 per annum net) and that her outlays amounted to $2,520 per month, leaving a free balance of $679 per month. Although sworn, this evidence could not of course be tested by cross-examination and her credibility on this, and any other matter, could not be assessed. The pursuer elected not to give evidence in person. No reason for this choice was given, other than that it was said not to be necessary in a case of this nature. I appreciate that it can be difficult in a case such as this to obtain and perhaps to lead evidence, although I was not told that that was the position in the present case or that this was the reason for the pursuer not being led in evidence. The upshot of this was however that there was no evidence to counter that given by and on behalf of the defender. There was equally no evidence from or on behalf of the pursuer relative to the showing, or otherwise, of any "special cause" for the backdating of any award of aliment to a date prior to the bringing of the action.

It was therefore against this general background that the questions arising required to be determined. The principal questions arising were as follows:

Whether special cause had been shown to justify a backdating of any award of aliment?

How much aliment, if any, should be awarded for the period concerned?

I now address these questions.

Whether special cause had been shown to justify a backdating of any award of aliment?

Mr Morris did not address this issue in his original submissions. It seems likely that this was because, at that stage, the pursuer was seeking a lump sum and Mr Morris was suggesting that there was no basis upon which the court should accede to what he was then expecting to be the defender's request in terms of the counter-claim for a variation of the award of $313 per month to nil and to seek a backdating of such a variation to January 1989. This however became redundant when the pursuer correctly amended the original crave 1 to seek an award of aliment, and a backdating of such an award. As a result of this late focusing of the issue, it was perhaps not surprising that there were no averments on behalf of the pursuer directed at the issue of special cause and that, in turn, no submissions were made on this issue directed to the requirements of section 3(1)(c)(ii) of the 1985 Act when Mr Morris first made his submissions.

In a brief reply to Mr Miller's submissions, Mr Morris suggested that where both parties had previously been residing in another jurisdiction and one of them had left that jurisdiction, that could itself be taken as special cause. This was not elaborated upon. It was not clear to me why this should necessarily follow, and I was not satisfied that it did follow in the present case. Mr Morris went on to suggest that much would depend on the view taken by the court of the circumstances surrounding the defender's departure from the United States in 1988 and the terms of any discussions between the parties by telephone subsequently. I have indicated in my findings-in-fact my conclusions on these points. In particular, I did not believe that the defender left the United States in a deliberate attempt to avoid paying support for Daniel.

It is quite clear that the power to backdate prior to the bringing of the action is to be used sparingly: Hannah v Hannah 1988 SLT 82 per Lord Sutherland at page 83. This approach was approved in Adamson v Adamson 1989 SLT (Sh Ct) 45 by Sheriff-Principal Maguire QC. In Abrahams v Abrahams 1989 SCLR 102 Sheriff-Principal O'Brien QC held that special cause had been shown to warrant a backdating of the variation sought. However, the circumstances of that case were totally different to the circumstances in the present case. In Abrahams the pursuer had, on being granted decree of divorce, been awarded aliment and a periodical allowance. The sums due were paid until the defender became unemployed. The pursuer had at that point accepted this. However, she had then heard that the defender was working and, without warning to him, she had proceeded to take steps against him to have the award enforced. The defender had then lodged a Minute in the divorce process seeking inter alia to vary the award of aliment to nil and to backdate that variation to the date upon which he had become unemployed. The Sheriff-Principal held that there was special cause to warrant the backdating sought in view of the fact that the pursuer had apparently accepted that the defender was unemployed and that it had only been when she had been told, incorrectly, that he was working that she had taken steps to enforce the decree.

Mr Morris also pointed generally to the whole circumstances and history of the case and invited me to find special cause in those factors over the period from 1985 to the date of the raising of the action in 1994. In my opinion, the pursuer came nowhere near showing that there was special cause to justify a backdating of any award of aliment in this case. The points advanced on her behalf did not, for example, amount to any sufficient explanation for the pursuer's failure to bring these proceedings earlier than 9 September 1994. For example, one could envisage a case in which a defender had disappeared without trace for some time and had only recently come to light. In this case, however, I accepted the evidence of the defender to the effect that when and after he had left the United States the pursuer had been aware of his whereabouts here. It may well be, although there was no evidence to this effect, that there were difficulties in the pursuer coming to Scotland to give evidence in this case. I simply do not know. The fact is though that there was no evidence from the pursuer or on her behalf in relation to this important issue. In the light of the views which I formed on the evidence which was before me, and in the absence of any evidence from or on behalf of the pursuer otherwise showing special cause for any backdating, I was not satisfied that special cause had been shown by the pursuer on this issue.

How much aliment, if any, should be awarded for the period concerned?

The period concerned is from 9 September 1994 until 3 January 1995, being the date before the commencement of the interim award at the rate of Ł80 per month beyond which date Mr Morris confirmed that he was not seeking any further award.

I have already referred to the provisions of section 4(1) of the 1985 Act. I shall deal with the evidence and submissions with reference to the three subsections concerned.

The needs and resources of the parties:

The only evidence in relation to the needs and resources of the pursuer came in the form of the Affidavit from her dated 30 March 1994, being part of No. 5/1/12 of process. At that point, she was earning $3,199 net per month. This equated to $38,388 net per annum. Taking the exchange rate agreed between the parties for the purposes of the Proof, the equivalent figures in Sterling were Ł1,974.69 and Ł23,696.29 respectively. Her stated monthly expenses totalled $2,520 (Ł1,555.55) and her net free income per month was $679 (Ł419.13). There was no evidence from or on behalf of the pursuer to the effect that by 9 September 1994, or January 1995, her financial position had altered from that stated in her Affidavit. There was also no evidence from or on behalf of the pursuer regarding any assets she might have, such as a house. In the monthly expenses set out in the Affidavit, there was a heading "Housing and utilities". It was not evident whether this comprised, for example, mortgage repayments or rent. There was also no evidence from or on behalf of the pursuer of any specific needs of the child other than the somewhat inspecific list of outlays set out in the Affidavit.

In relation to the business operated by the defender and his second wife, in the year ended 30 April 1994 the net profit was Ł11,980 and the drawings for both of them totalled Ł13,271 before tax and national insurance. This did not include pension and life assurance payments totalling Ł3,900. In the year ended 30 April 1995, the net profit was Ł17,033 and the drawings for both of them totalled Ł16,231 before tax and national insurance. There were also payments of Ł4,255 in respect of pension and life assurance payments. The figures for these years represented the total income for the support of the defender, his second wife and their two children. The defender's one-half share in both of these years was accordingly significantly lower than the level of the pursuer's income as disclosed in her Affidavit. The fixed assets of the said business included property with a value stated at a figure of Ł37,005. Secured borrowings from the bank by the said business exceeded this figure.

The earning capacities of the parties:

There was no evidence in relation to the earning capacity of the pursuer other than such conclusions as could be drawn from her Affidavit, which indicated that as at 30 April 1994 she was earning a not insubstantial figure. There was however no evidence as to the nature of her employment.

In relation to the defender, he was employed in the United States as a Buildings Maintenance Supervisor. He earned $25,000 in 1985 and had had an apartment provided to him as part of his job. His heating and lighting bills were also met by his employers. It therefore appears that he was capable of earning a reasonably substantial income. The business set up by him and his second wife has been harder to establish than anticipated by them. I was entirely satisfied that they had experienced real difficulties along the way in trying to make it work. The Summary of Accounts (No. 6/3/5 of process) shows by and large a slow but improving situation over the years. However, even now, the business is still operating with substantial loans from the bank. Mr Robertson confirmed that the business was still experiencing cash flow difficulties.

Generally all the circumstances of the case:

Mr Morris sought to argue that there were two circumstances falling under this general head. The first was the fact of the award made by the court in Illinois in 1985. He suggested that the present case was in marked contrast to the position in Bergman, supra. In that case, Sheriff Nigel Thomson had observed at page 12 of his Judgment that the foreign award under consideration had been made after a hearing at which both parties had been represented by lawyers. However, in the written judgment of the foreign court there had been no findings-in-fact as to what the assets of the parties had been or in relation to the defender's income. In the present case, there was no hearing and was no evidence because the parties had reached agreement. Mr Morris suggested to me that in the present case the Judgement had incorporated "a detailed agreement between the parties establishing the level of child support payable by the defender". That was perhaps correct in so far as it went. However, it seems to me that that did not go very far in view of the fact that it did not, for example, record what, if anything, the pursuer was earning at that point. There is also no record of what their respective needs and other assets were at the time. It therefore seems to me that the basis upon which the figure of $313 per month was said to have been agreed was not in fact of the most detailed nature.

Mr Morris submitted that the second circumstance falling under this head was the defender's behaviour. Under reference to section 4(3)(b) of the 1985 Act, he submitted that it would be "manifestly inequitable" to ignore a number of aspects of his behaviour. I agreed that it would be manifestly inequitable to leave out of account the fact that the defender had failed to make payments in the United States for a period of about nine months and that he had made no payments at all since about January 1989 other than the payments of interim aliment due for the period from 4 January 1995. In this connection, I should make it clear that I accepted the evidence of the defender's second wife to the effect that all of the payments of interim aliment due in terms of the interlocutor of 17 March 1995 were met. In relation to the failure to pay for nine months, I accepted the evidence of the defender to the effect that this had happened because the pursuer had been refusing to allow him to see Daniel, and that it was not the other way around. This did not excuse his failure to pay, but it did at least provide an explanation as to how this situation had arisen.

Mr Morris also sought to make something of the fact that the defender was in arrears to the extent of $130 as at the date of the Separation Agreement. This was however less than a month's support payment. I did not consider that any material weight should be attached to that fact. As already indicated, I did not accept that the defender had left the United States in a deliberate attempt to avoid making further payments of aliment. After he and his second wife had come to Scotland for Christmas 1987, and she had then decided not to return, I accepted his evidence that he did return to the United States for a number of months until deciding to make the move to join his second wife and their two children later in September 1988. I do not consider that the defender acted at all unreasonably in deciding to move to Scotland in such circumstances. I also accepted the defender's evidence to the effect that the pursuer had known perfectly well where he was in Scotland.

Mr Miller on behalf of the defender readily accepted that the defender had had an obligation to aliment the child, Daniel. However, he submitted that a further relevant circumstance to which, by virtue of section 4(2) of the 1985 Act, the court required to have regard in deciding how much aliment to award, if any, was the fact that the pursuer had also owed an obligation to aliment the said child. This was by virtue of section 1(1)(c) of the 1985 Act as that section also applied in view of the terms of section 31(1A) of the 1972 Act. It was for this reason that the evidence, or lack of evidence, in relation to the needs, resources and earning capacities of the pursuer was significant. Such evidence as there was indicated that she was earning more than the defender himself. By contrast, the business run by the defender and his second wife was even now still experiencing cash flow difficulties. They were only just making a living. The defender was also requiring to support his two children with the income shared with his second wife. This was relevant in terms of section 4(3)(c) of the 1985 Act.

It seemed to me that Mr Miller was correct in his submissions to the effect that these matters were relevant circumstances to which the court should also have regard in determining the amount of any award of aliment to made in the present case. The pursuer had clearly also owed an obligation of aliment to the child Daniel. Yet, as already remarked upon, there was very little information as to her needs and resources, or in relation to her earning capacity. Likewise, I was satisfied from the evidence led by and on behalf of the defender that the income from the business was not his alone. It was for the support also of his second wife and their two children. I also accepted that the business was still, even now, experiencing cash flow difficulties.

Conclusions:

Mr Miller submitted that it was incumbent on a pursuer making such an application to establish that it would be reasonable for the court to make an award against the defender. To enable a court to determine what sum, if any, it would be reasonable to award, it was incumbent on a pursuer to provide sufficient evidence in relation to her own financial position. In this case, the pursuer had failed to establish that the circumstances were such that an award should be made. In particular, there was insufficient evidence from the pursuer as to her needs and resources, and her earning capacity, to allow the court to make any meaningful assessment of what might be a reasonable level of support by way of aliment for Daniel for the period concerned.

I have to say that I was more than a little puzzled by the approach taken by the pusuer in this case. On the one hand, Mr Morris himself stated that he could not "enforce" the award of aliment made in the United States. On the other hand, the pursuer put forward no reasoned justification at all for seeking an award from this court in that same figure of $313 per month other than the bare fact of the award made in the United States. In particular, no such justification was advanced by reference to the needs and resources of the parties. Having regard to the approach taken on behalf of the pursuer, it was difficult to avoid the conclusion that she was in practical terms simply seeking to "enforce" the original award by means of these proceedings.

In relation to the interim award of Ł80 per month made in 1985, I should record that there was no evidence before me as to the pursuer's needs and resources as at the date of that award. I have no knowledge of what information, if any, on that matter was placed before the Sheriff who made that interim award.

Towards the end of his submissions, Mr Morris submitted that it would be "reasonable and appropriate" that the court should grant decree in terms of crave 1. However, having regard to the provisions of sections 1(2) and 4 of the 1985 Act and to the state of the evidence led before me, I did not consider that I could properly be satisfied just what level of aliment, if any, would have represented a reasonable level of support for Daniel from the defender for the period from the bringing of the action in September 1994 until 3 January 1995, or indeed for any other period had that been relevant. I was satisfied that the payments of interim aliment due from 4 January 1995 were met. This was not a matter relied upon by or on behalf of the pursuer, perhaps not least because the position on her behalf in cross-examination (but in relation to which no supporting evidence was led) was that the defender had not met all the payments of interim aliment due in terms of the interim award. Even although these interim payments were met, I nevertheless accepted the evidence as to the cash flow difficulties experienced. In any event, that does not get round the core problem of the paucity of evidence in relation to the pursuer's needs and resources and her earning capacity. On such evidence as was available, it indeed seemed to me that she was in a somewhat better financial position than was the defender. In the whole circumstances I was therefore not satisfied that any award should be made against the defender.

Both parties were agreed that all questions of expenses should be reserved.