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Kupo v Kupo [2021] PGNC 651; N9857 (21 September 2021)

N9857

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MC NO. 2 OF 2012

SHELLY LAUNA KUPO
Petitioner

-V-

WILLIE KUPO
Respondent

Waigani: Kariko, J
2021: 21^st September

FAMILY LAW – dissolution of marriage – grounds of adultery and cruelty – undefended petition – settlement of matrimonial property – settlement by court to be just and equitable – s.75, Matrimonial Causes Act

FAMILY LAW – dissolution of marriage – relief not pleaded but claimed in submissions

The petitioner filed for dissolution of marriage. The petitioner also claimed for the family house to be transferred to her, for transfer of shares in a family company, custody of the youngest child, maintenance for the two youngest children. The petition was not challenged, and the maintenance claim was abandoned.

Held:

1. The grounds for the petition being adultery and habitual cruelty were not challenged and the court was satisfied they had been proven.
2. Pursuant to s 75 Matrimonial Causes Act, it was just and equitable that the family home is transferred to the petitioner but not the respondent’s shares in the family company.
3. Custody not considered as the subject child is now an adult.
   

Cases cited:

Henry ToRobert v Mary ToRobert (2010) N4003

Henry ToRobert v Mary ToRobert (2012) SC1198

PNGBC v Jeff Tole (2002) SC694

Counsel:

Mr S Nutley & Ms S Gibson, for the Petitioner

Mr J Sebby, for the Respondent

PETITION

This was a petition for dissolution of marriage.

21^st September, 2021

1. KARIKO, J: The petitioner filed for dissolution of her marriage to the respondent on grounds of adultery and habitual cruelty pursuant to s.17 of the Matrimonial Causes Act.
   
2. The parties are both Papua New Guineans from Chimbu and are resident in the country. They were married in church on 14^th November 1987.
   
3. They settled in Port Moresby and established their family home at Section 46 Allotment 25, Karu Street, East Boroko, N.C.D. (the Boroko House).
   
4. They have four children, who are all adults now.
   
5. Starting around 2007, the couple started experiencing marital problems, which according to the petitioner arose from the respondent’s adulterous affairs, and his physical abuse of the petitioner. The issues continued for several years before the petitioner decided to leave the matrimonial house at the end of 2010.
   
6. The relationship breakdown could not be reconciled, resulting in the petitioner filing this petition on 22^nd March 2012.
   

PLEADINGS

7. Apart from obtaining a divorce, the petitioner also seeks substantive orders for:
   
   • The jointly owned Boroko House to be transferred to her,
   • The respondent’s shares in the family company Wilshere Limited, to be transferred to her,
   • Sole custody of their youngest child Helorence, and
   • The plaintiff to pay maintenance for their two youngest children Launa and Helorence.
     
8. The respondent filed an Answer to the Petition and a Cross-petition in which he denied the allegations of adultery and cruelty, and counter-pleaded that the petitioner willfully deserted the matrimonial home and that she had committed adultery. He proposed that the Boroko House be transferred to the children.
   
9. The claim for custody of Helorence and maintenance for her and Launa was not pursued during final submissions.
   

ISSUES

10. The relevant issues on trial are:
    
    • (1) Have the grounds for dissolution of marriage been properly established?
    • (2) How should the matrimonial property be dealt with?
      

EVIDENCE

11. The court directed that evidence at the hearing be by way of affidavit, subject to proper notices under the Evidence Act.
    
12. In compliance with the directions, the petitioner tendered two affidavits:
    
    • Affidavit of Shelly Launa Kupo filed 9^th October 2014 (Exhibit P1)
    • Affidavit of Samul Kupo filed 9^th October 2014 (Exhibit P2).
      
13. Pursuant to a Summons issued by the Registrar dated 13^th April 2015, Oil Search Limited who employs the respondent, produced details of the respondent’s salary and allowances, plus his entitlements under the company’s Long Term Incentive Scheme. The documents from Oil Search were received into evidence and marked Exhibit P3.
    
14. It is to be noted that there was no appearance by or for the respondent until after the evidence closed, and when Mr Nutley for the petitioner was about to conclude final submissions.
    
15. Mr Sebby of counsel for the respondent appeared then and tried to rely on an affidavit by the respondent as his evidence for the trial, without having given notice pursuant to the Evidence Act. I allowed counsel to submit on why the hearing of evidence should be re-opened, but ultimately I was not persuaded to exercise my discretion in favour of the respondent.
    
16. Summarized, the relevant facts stated in the petitioner’s affidavit are these:
    • The petitioner and the respondent lawfully married on 14^th November 1987.
    • They lived together until December 2010.
    • The respondent began verbally abusing the petitioner in 2007.
    • The abuse also became physical and sexual resulting in the District Court issuing a restraining order against the respondent on 16^th June 2010.
    • On 9^th September 2010, the respondent was fined K200 for assault.
    • On 28^th December 2010, the respondent again assaulted the petitioner, that caused bite wounds to her body. Photographic evidence was produced showing the wounds.
    • Following this assault, the petitioner left the Boroko House.
    • The parties have lived separately and apart since then.
    • In June 2011, the petitioner burnt the respondent’s shotgun after he threatened to shoot her and her uncle a few months earlier. She was arrested and charged by the Police for the incident, and subsequently convicted and fined.
    • During the marriage, the respondent had extra marital affairs with other women, including with one Agnes Thomas between 2008 to 2010 resulting in them having a child.
    • On 12^th May 2009, the petitioner was hospitalized and treated for a Sexually Transmitted Infections (STI) which she claims was passed on by the respondent. A medical report in respect of the hospitalization was produced.
    • The petitioner did not condone the adultery or abuse committed by the respondent nor did she connive with the respondent in such conduct.
    • The parties equally own the Boroko House and a family investment company Wilshere Limited.
    • The main asset of Wilshere Limited is an investment property located at Section 86 Allotment 3, Korobosea, Port Moresby, N.C.D., which comprises five residential units and a business office (the Korobosea Units).
    • That property had been repossessed by Westpac Bank as mortgagee, for sale by public tender following default in loan repayments.
    • The respondent enjoys an executive salary with fringe benefits and entitlements such as club membership, while the petitioner had to stop her career as a social worker to manage Wilshere Limited.
      
17. In his affidavit, Samuel Kupo, who is the second eldest child of the parties, stated that:
    
    • He was turning 26 years old, his elder brother Frazer was aged 31 years, brother Launa was 23 years old while sister Helorence was aged 18 years.
    • Since the parents separated, he and his siblings had been living with their father.
    • In 2013, his father entered into a customary marriage with one Mispa Nokuk by paying K130,000 as bride price.
    • The respondent’s new wife moved to live with them in July 2014 in the Boroko House.
      
18. The documents produced by Oil Search Limited (Exhibit P3) consist of:
    
    • a letter from the company’s in-house lawyer dated 14^th May 2015 which details the respondent’s interests under the company’s Long Term Incentive Scheme for its employees, and
    • a Summary by the company’s PNG Human Resources Manager that shows the respondent’s annual salary and entitlements for 2015.
      
19. As the General Manager of Oil Search Limited at the time of the trial, the respondent was being paid gross salary of K19, 718.37 and housing allowance of about K4,640.00 per fortnight. He was also entitled to a “bonus” which for the year 2012 was K55, 168.00, but was expected to be lower for 2015.
    

DISSOLUTION OF MARRIAGE

20. Pursuant to s.17 of the Matrimonial Causes Act, a marriage may be dissolved on various grounds, including:
    

“(a) that, since the marriage, the other party to the marriage has committed adultery; or

..........................................................................................

(d) that, since the marriage, the other party to the marriage has, during a period of not less than one year, habitually been guilty of cruelty to the petitioner”

21. Although the respondent filed an Answer to the Petition and a Cross-petition, he did not present any evidence in support of his pleadings, nor did he challenge the evidence of the petitioner. Further, his counsel’s submissions did not suggest the marriage should not be dissolved.
    
22. I consider this case to be an undefended petition, and I am satisfied on the evidence before me that the pleaded grounds for dissolution of marriage have been properly established. I find the parties were lawfully married under the Marriage Act, and that they separated near the end of 2010 and have since lived separately and apart, and there is no reasonable likelihood of cohabitation being resumed. I am also satisfied that there is no bar to the dissolution of this marriage.
    

MATRIMONIAL PROPERTY

23. In relation to matrimonial property, the petitioner principally proposed that the respondent transfer his shares in Wilshere Limited to her, and for title to the Boroko House to be also transferred to her.
    
24. It is appropriate to note s.75 of the Matrimonial Causes Act and in particular s.75(1) which states:
    

“In proceedings under this Act, the Court may by order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such settlement of property to which the parties are, or either of them is, entitled (whether in possession or in reversion) as the Court thinks just and equitable in the circumstances.” (Emphasis mine)

25. As Gavara-Nanu,J observed in Henry ToRobert v Mary ToRobert (2010) N4003 at [57], the powers given to the Court under Section 73 (which deals with maintenance) and Section 75 “are wide, which include making orders that the Court may deem just and equitable in the circumstances of a case.” The Supreme Court in Henry ToRobert v Mary ToRobert (2012) SC1198 further explained at [42]:
    

“The apportionment of property is inherently a matter of discretion and the Court is obliged to take into account principles of equity. The Court must always consider the conduct of the parties. Maxims such as ‘those who seek equity must do equity’ and ‘those who come to a court of equity must come with clean hands’ apply (Mainland Holdings Ltd v Paul Robert Stobbs (2003) N2522, John Mur v Les Kewa (2010) N4016).” (Emphasis mine)

Wilshere Limited

26. As mentioned earlier, the parties are equal shareholders in Wilshere Limited whose main asset was the Korobosea Units until it was repossessed by Westpac Bank to be sold to settle debt owed to the bank. Given the situation, the relief sought in the petition relating to shares in the company was not strongly pursued in final submissions.
    
27. It is relevant to note that pending delivery of this decision, it was brought to the court’s attention through evidence filed by both parties in respect of an application by the petitioner filed 24^th November 2016 regarding the funds of Wilshere Limited, that the Korobosea Units were indeed sold and from the monies due to the company, each party received K250,000. An amount of some K200,000 as balance was deposited in the company’s account.
    
28. In all the circumstances, I decline to grant the relief sought by the petitioner in respect of the shares in Wilshere Limited, meaning that the parties remain equal shareholders in the company. I consider this as just and equitable.
    
29. This obviously means that each party may deal with its shares as it wishes, subject to the company’s constitution (if any) and the Companies Act. If necessary and appropriate, one party may even sell its shares to the other party at a fair market value.
    

Boroko House

30. Since the petitioner left the Boroko House nearly 11 years ago, the respondent has continued to live in the residence with the children, their families, and his new wife. He is providing for all those living with him. The respondent urges for this to continue. Interestingly, both parties intimated that they are keen for the children to eventually benefit in the property.
    
31. In her submissions, the petitioner volunteered to the court that she had incorporated her own company Starbrooks Investments Limited which owns a property described as Portion 85 Milinch of Granville, Port Moresby, National Capital District (Portion 85). That is a property that was also jointly purchased by the parties. She apparently took up residence and settled there after leaving the Boroko House.
    
32. In the case of two joint tenants owning a property, s.75(1) the Matrimonial Causes Act empowers the Court, among others, to sever the joint tenancy by transferring one joint-tenant’s interest in the property to the other joint tenant, or to a third party.
    
33. As noted earlier, the parties co-own the Boroko House and co-purchased Portion 85 as joint tenants. In law, each of them does not have a distinct share in the Boroko House and on the death of one of them, the surviving party assumes sole ownership. However, the joint tenancy may also be terminated if one of the co-owners releases his interest to the other co-owner or transfers his interest to a third party.
    
34. In the circumstances of this case, I consider just and equitable that title to the Boroko House should be transferred to the respondent and the children as the petitioner has settled on Portion 85, after arranging for its title to be registered to her company, Starbrooks Investments Limited. The respondent should however not lay any claim to the title to or any other interest in Portion 85.
    

CUSTODY

35. The youngest child Helorence is now an adult of about 24 years. Therefore, no consideration will be given to making any order for her custody.
    

MAINTENANCE

36. As noted earlier, the claim for maintenance for the two young children was effectively abandoned.
    
37. In her submissions, the petitioner sought maintenance for herself and she also argued that there were monies owed to her pursuant to consent orders endorsed by this Court on 20^th September 2013.
    
38. As to the claim for maintenance for herself, the petitioner relied on the evidence that the respondent was earning an executive salary while she had been persuaded to give up her career as a social worker to run the family business. Regrettably for the petitioner, she did not plead for maintenance to be paid to her. No evidence of matters not pleaded can be allowed or relief granted; PNGBC v Jeff Tole (2002) SC694. Accordingly, maintenance for the petitioner will not be entertained.
    
39. The consent orders of 20^th September 2013 included an order that the petitioner be paid K2,000.00 per fortnight by Wilshere Limited until determination of this proceeding. That order has not been set aside and has remained in force. It is my view that monies not paid in accordance with the order is a debt owed to the plaintiff by Wilshere Limited. However, the debt is not a claim pleaded in the petition, and in any case, it should properly be pursued against the company in a separate action should the petitioner decide.
    

COSTS

40. As the petition for dissolution of marriage was not defended in the end, the respondent should pay the petitioner’s costs.
    

ORDER

41. The Court orders the following:
    
    • (1) A decree nisi of dissolution of the marriage is granted forthwith.
    • (2) The decree nisi will become absolute in three (3) months from today in accordance with s.60 of the Matrimonial Causes Act unless this Court orders otherwise before then.
    • (3) On the decree nisi becoming absolute, the petitioner may resume use of her full maiden’s name.
    • (4) The petitioner’s interest as a joint tenant in the property described as Section 46 Allotment 25, Karu Street, East Boroko, N.C.D. shall be transferred to the respondent and the children of the marriage.
    • (5) The respondent shall not claim any legal or equitable interest he may have in relation to the property described as Portion 85 Milinch of Granville, Port Moresby, N.C.D. which property shall be registered to the petitioner or her nominee.
    • (6) The parties shall take all steps necessary including executing all relevant legal documents by 30^th November 2021 to facilitate and effect Orders (4) and (5) above.
    • (7) No orders are made with respect to the custody and maintenance of the children of the marriage as each of them has attained the age of 21 years.
    • (8) The respondent shall pay the petitioner’s costs of and incidental to this proceeding, to be taxed if not agreed.
    • (9) The time for entry of these orders is abridged to the time of settlement before the Registrar which shall take place forthwith.
      

________________________________________________________________

Fiocco Nutley Lawyers: Lawyers for the Petitioner
Jopo Lawyers: Lawyers for the Respondent