Pellissier v Pellissier (A564/2010) [2011] ZAWCHC 336 (25 July 2011)

Pellissier v Pellissier (A564/2010) [2011] ZAWCHC 336 (25 July 2011)

The appeal court found that the writ of execution was only justified for the amount of R1,700.00, as determined by the court a quo, and not for the larger sums claimed by the appellant. The Supreme Court of Appeal's decision in Fish Hoek Primary School v GW clarified that schools may claim fees from either parent, but this did not entitle the appellant to recover the full amount inter partes where she had no liability to pay. The respondent's financial circumstances, including reduced income due to the recession, were accepted as credible, and there was no reliable evidence to support the appellant's claim for a higher global maintenance amount. The joint decision-making regime was...

Citation
[2011] ZAWCHC 336
Parties
Appellant: Eulogy Pellissier; Respondent: Samuel Henri Pellissier
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
25 July 2011
Case Number
A564/2010
Procedural Posture
Civil Appeal / Appeal From Decision of Allie J on Urgent Application and Counter Application
Outcome
Both the appeal and the appeal on the counter-application are dismissed. No order as to costs.
Judges
Davis, Steyn, Dlodlo
Legal Topics
Maintenance Obligations, Variation of Divorce Order, Warrant of Execution, School Fees Liability, Joint Decision Making, Alternative Dispute Resolution
Family and Children Civil Procedure Maintenance Obligations Variation of Divorce Order Warrant of Execution School Fees Liability Joint Decision Making Alternative Dispute Resolution

Case Brief

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Parties

Eulogy Pellissier

Appellant

Samuel Henri Pellissier

Respondent

Procedural Posture

Civil Appeal / Appeal From Decision of Allie J on Urgent Application and Counter Application

Legal Issues

  1. 1 Whether the writ of execution for maintenance and school fees was lawfully issued for the amount claimed.
  2. 2 Whether the counter-application to vary joint decision-making and maintenance obligations should have been granted.
  3. 3 Whether the appeal court should interfere with the discretion exercised by the court a quo regarding maintenance and decision-making.

Ratio Decidendi

The appeal court found that the writ of execution was only justified for the amount of R1,700.00, as determined by the court a quo, and not for the larger sums claimed by the appellant. The Supreme Court of Appeal's decision in Fish Hoek Primary School v GW clarified that schools may claim fees from either parent, but this did not entitle the appellant to recover the full amount inter partes where she had no liability to pay. The respondent's financial circumstances, including reduced income due to the recession, were accepted as credible, and there was no reliable evidence to support the appellant's claim for a higher global maintenance amount. The joint decision-making regime was...

Court Disposition

Both the appeal and the appeal on the counter-application are dismissed. No order as to costs.

Orders

  • The appeal is dismissed.
  • The appeal on the counter-application is dismissed.