DS v GE and YM - Judgment

¶ __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 1 of 66 1 THE GRAND COURT OF THE CAYMAN ISLANDS 2 FAMILY DIVISION 3 CAUSE NO. FAM 0221 OF 2019 4 5 BETWEEN: DS 6 PETITIONER 7 8 AND: 9 GE 10 RESPONDENT 11 YM PERSON NAMED 12 13 Appearances: Ms. Sheridan Brooks Q.C. of Brooks & Brooks for the 14 Petitioner 15 Mr. Dennis Brady of Brady Attorneys-At-Law for the 16 Respondent 17 18 Before: The Hon. Justice Cheryll Richards Q.C. 19 20 Hearing: 8th January 2021, 11th and 12th January 2021, 14th 21 January 2021, 21st January 2021, 4th February 2021 22 23 Written Submissions of Respondent: 3rd February 2021 24 Written Submissions of Petitioner: 15th February 2021 25 Draft Judgment Circulated: 14th May 2021 26 27 HEADNOTE 28 Family Law- s.19 and 21 of the Matrimonial Causes Act Final Ancillaries, Applicable 29 principles. 30 31 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 2 of 66 1 JUDGMENT 2 INTRODUCTION 3 1. This is an application for Final Ancillaries. The parties are Jamaican nationals who are residents 4 of the Cayman Islands. They have been together for some twenty years and have co-habited 5 for most of this period, both before and after their marriage which was on the 31st July 2015. 6 The Petitioner DS, (“the wife”) is forty-six years old. The Respondent GE (“the husband”, “Mr. 7 GE”) is fifty–two years old. They have one child together, a daughter ‘O’ who was born on 8 the 20th August 2003. She is now 17 years old. She has completed attendance at a local private 9 high school and is seeking enrollment in an overseas institution to pursue a degree in medicine. 10 11 2. The wife filed a Petition for divorce on the 12th September 2019. This referred to YM as a 12 Person Named. YM is a witness in these proceedings. Service of the Petition was acknowledged 13 by the husband and YM on the 24th September 2019 with the indication that neither of the two 14 intended to defend the matter. The Petition was ordered proved on the 7th October 2019. 15 16 3. At the time of the filing of the Petition the parties resided at the former matrimonial home in 17 Spotts, Grand Cayman (“the FMH”). By Summons filed on the 15th May 2020, the wife sought 18 a number of interim orders. By that point in May 2020, the disharmony between the two had 19 grown to the point where they resided in opposite sides of the FMH and each accused the other 20 of certain acts which made being in the same property either uncomfortable or difficult. The 21 police were called in over one incident where the husband could not find his slippers in the 22 place where he had left them and an argument between them escalated. For her part, the wife 23 claimed that the husband was being careless in respect of O’s health issues in the midst of a 24 pandemic and was also interfering with her. These issues are set out in the judgment issued on 25 the making of those orders1 and are not repeated in detail herein. I concluded that it was in the 26 best interest of the child and all concerned that as a temporary measure the parties remain at a 27 distance from each other and that the husband vacate the premises except for access during the 28 day time to work materials stored in the attic of the house. The Orders made on the Interim 29 Summons included the following: 1 Judgment dated 27th October 2020 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 3 of 66 1 i. The husband is to pay interim spousal and child maintenance to the wife of 2 $5,000.00 per month through the Court Fund’s Office on or before the 28th day of 3 each month. 4 5 ii. The husband is to pay the monthly school fees for ‘O’, the child of the marriage 6 directly to the Service provider. 7 8 iii. The wife is to have the exclusive use of the Dodge Ram Truck registration number 9 195 377 until the conclusion of the Final Ancillary proceedings. 10 11 iv. The husband shall forthwith vacate the former matrimonial home at Block 25B 12 Parcel 100 which shall thereafter be exclusively occupied by the wife and ‘O’ until 13 the conclusion of the Final Ancillary proceedings. 14 15 v. The husband shall forthwith disclose and identify the banks at which he has 16 business and personal accounts and the account numbers for these accounts and 17 shall provide on a periodic basis, records of all sums withdrawn and documents 18 evidencing the purpose for such withdrawals. 19 20 4. There is agreement between the parties as to the custody of, and financial support for, their 21 daughter ‘O’ until she completes tertiary education and it is evident that both care deeply for 22 her and that each in their own way will make every effort to provide for her. In the course of 23 this hearing, the husband gave evidence that his position with respect to ‘O’, is that in the future 24 he will be fully responsible for her education as he has been throughout her life. 25 26 5. The primary issue before the Court on this application is whether certain items of real estate 27 and certain businesses constitute matrimonial property and, if so, how any such assets should 28 be fairly divided. 29 30 6. Throughout their relationship, the parties purchased several properties in the Cayman Islands 31 and in Jamaica and operated a number of businesses. It is clear on the evidence that the husband 32 has been the driving force, energy and acumen in respect of all their acquisitions. Prior to 33 moving into the FMH the parties resided together at a home at Mahogany Way in Prospect. __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 4 of 66 1 This first home was purchased by both of the parties by means of a mortgage obtained at a local 2 bank and is registered in their joint names. This is the only property in both their names. They 3 lived in one part of the property and rented out other parts. The rental income was used to pay 4 the mortgage. Shortly after their marriage in 2015, they moved from this home leaving it as 5 entirely rental property. The relatives of both the wife and husband have rental units at the 6 property and it is a source of disagreement that the relatives of the wife are expected to and pay 7 rent while the relatives of the husband including his mother, brother and nephew are not 8 required to pay rent and live rent free. More properties were purchased over time in the Cayman 9 Islands and in Jamaica. 10 11 7. The husband began with the operation of one landscaping business and expanded into a second 12 such business, as well as a construction, and an event planning business. It is a matter of dispute 13 as to the level of contribution of the wife to these businesses. Both parties are now self- 14 employed, the wife having left long term employment in about 2012. She was encouraged and 15 supported by the husband to open her own retail establishment. He provided startup capital of 16 $45,000.00. The husband also left his long term employment about four or five years ago. 17 18 8. In addition to pension entitlements and vehicles, the properties and businesses in issue are, 19 properties in the Cayman Islands: 20 i. Bock 25 B, Parcel 100 – rental property, Mahogany Way Prospect; 21 ii. Block 24 D, Parcel 120 – FMH in Spotts; 22 iii. Block 25 B, Parcel 266 – bare land in Spotts; 23 iv. Block 48 C, Parcel 144 – Breakers property. 24 25 9. The properties in Jamaica are: 26 i. House in New Town, Black River, St. Elizabeth; 27 ii. House in Fullerswood Black River, St. Elizabeth; 28 iii. Land at Montpelier, St. Elizabeth in name of the husband; 29 iv. Land at Montpelier in name of the wife; 30 v. House in Black River in name of the wife. 31 32 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 5 of 66 1 10. The businesses are: 2 i. Retail establishment operated by the wife; 3 ii. Landscaping business 1 – E; 4 iii. Landscaping business 2 – TLM; 5 iv. Construction business; 6 v. Event planning business. 7 8 THE POSITIONS OF THE PARTIES 9 10 11. The husband’s position by way of an open offer in the course of these proceedings and again 11 repeated in closing submission is that the FMH be transferred into the sole name of the wife 12 together with his commitment to pay the applicable mortgage, until ‘O’ attains the age of 21 13 years or completes her tertiary education, whichever is the later. He stated in evidence that he 14 would not offer the wife the Mahogany Way property because that is where he now resides as 15 does his mother in a house that he built for her. With respect to the properties in Jamaica he 16 proposes that the wife retains the properties which are already in her name, to wit the land at 17 Montpelier and the house in Black River. He also proposes that the wife retains the retail 18 establishment operated by her and all its earnings. Should she wish it, he also offers the E. 19 landscaping business. 20 21 12. The husband also offers to pay all school fees and provide health insurance for ‘O’ under his 22 insurance policy until she is 21 years of age and to pay any additional costs for dental and 23 optical coverage not covered by insurance. They should each retain their pension funds. He 24 seeks the return of the Ram truck which was purchased for $66,000.00 for use in his 25 landscaping business. 26 27 13. The wife’s position is that the husband has dissipated matrimonial funds since the filing of the 28 Petition such that she should be awarded a lump sum payment of $250,000.00 as well as 29 specific assets as follows: 30 The FMH free and clear from the outstanding mortgage of $90,653.00 which is to 31 be paid by the husband before transfer. __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 6 of 66 1 The Mahogany Way property free and clear from the outstanding mortgage of 2 $92,120.00 which is to be paid by the husband before transfer. 3 One half the sale proceeds of the bare land. 4 Her position would require the husband to make payments totaling $432,773.00. 5 6 14. The wife also asks that the husband be responsible for the college fees and educational expenses 7 for ‘O’ up to age 21 and that this be done by way of continued periodical payments of 8 CI$ 5,000.00 per month to be paid directly into her bank account. 9 10 15. The wife asserts that all the assets acquired by them were acquired from income earned when 11 they were both employed and from rental income from their first property. 12 13 16. With respect to the businesses, it is her position that all are matrimonial businesses and that the 14 income and expenditure relating to each of these are so inter-related and intermingled that an 15 accurate division of the finances relating to each is impossible without the use of forensic 16 accounting. She states that the parties cannot afford to employ a forensic accountant to value 17 each business. Moreover the event planning business has no separate account and the husband 18 used the construction business accounts for this business. Additionally through Counsel the 19 wife states that she does not have either the practical day to day experience or the time to 20 operate any of the four businesses operated by the husband. She anticipates that her time will 21 be even more limited due to the responsibility for travelling which is necessary to assist with 22 settling in ‘O’ into her studies overseas. There is also the complicating factor that a number of 23 the current employees of these businesses are either related to the husband or friends with him 24 or with YM. Thus the wife states that she would not be comfortable taking over these 25 businesses. Her position is that the husband retains the four businesses while she would retain 26 her retail establishment. 27 28 17. The wife agrees that each party should retain their pension entitlement. As to motor vehicles, she 29 seeks to retain the Ram truck and requests that the title be transferred into her name. 30 31 32 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 7 of 66 1 THE LAW 2 3 18. The Matrimonial Causes Act (2005 Revision) sets out the powers of the Court on the final 4 distribution of marital assets. Section 19 provides that in dealing with all ancillary matters arising 5 under this Law, the Court shall have regard, first of all, to the best interests of any children of a 6 marriage and, thereafter, to the responsibilities, needs, financial and other resources, actual and 7 potential earning power and the deserts of the parties. 8 9 19. Section 21 provides that at the time of pronouncing a decree under this Law, the Court shall, as 10 appropriate, make orders for: 11 12 “ (a) the custody, care and control of the children of the marriage; 13 (b) the disposition of matrimonial property, including the matrimonial home; 14 (c) varying any settlement of the property of the spouses made in 15 consideration of the marriage, whether such settlement was made before 16 or upon the treaty of the said marriage. 17 (d) varying any other settlement of matrimonial property; 18 (e) making financial provision from the property of either spouse for the 19 children of the marriage and for the other spouse; 20 (f) providing for periodic payments to be made by either spouse for the benefit 21 of the children of the marriage and for the other spouse; and 22 (g) costs.” 23 24 25 26 20. The subsections which are most relevant to this application are (b) and (e). 27 28 21. In the leading case of McTaggart v. McTaggart2 the Cayman Islands Court of Appeal (CICA) 29 provided guidance as to the interrelationship between these two provisions of the Law and their 30 application. This includes that a court will need to consider whether having regard to the s.19 31 factors, an order under s.21(b) of the Law for the disposition of matrimonial property will make 32 appropriate provision for the relevant party with regard to their needs, the level of compensation 33 and sharing. If disposition of matrimonial property will not allow for the appropriate provision to 34 be made, then the court should go on to consider whether to make an order under s.21(e) that 35 financial provision be made from the property of either spouse. A court should not make an order 36 for periodic payments under s. 21(f) without good reason. Such good reason would arise where the 2 McTaggart v. McTaggart [2011] (2) CILR 390 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 8 of 66 1 combination of orders under s.21(b) and (e) are insufficient to satisfy the three strands of need, 2 compensation and sharing3. 3 4 22. Additionally the Appellate Court made it clear that although the s.19 factors are less extensive than 5 those in England and Wales, in the Matrimonial Cause Act 1973 as amended by the Matrimonial 6 and Family Proceedings Act 1984, the approach in the Cayman Islands should be the same as in 7 that jurisdiction.4 A court in exercising its powers under the statutory provisions should therefore 8 consider all the circumstances of a case to include the following: 9 10 “a) the income, earning capacity, property and other financial resources 11 which each of the parties to the marriage has or is likely to have in the 12 foreseeable future, including in the case of earning capacity any increase 13 in that capacity which it would in the opinion of the court be reasonable 14 to expect a party to the marriage to take steps to acquire; 15 (b) the financial needs, obligations and responsibilities which each of the 16 parties to the marriage has or is likely to have in the foreseeable future; 17 (c) the standard of living enjoyed by the family before the breakdown 18 of the marriage; 19 (d) the age of each party to the marriage and the duration of the 20 marriage; 21 (e) any physical or mental disability of either of the parties to the 22 marriage; 23 (f) the contributions which each of the parties has made or is likely in 24 the foreseeable future to make to the welfare of the family, including 25 any contribution by looking after the home or caring for the family; 26 (g) the conduct of each of the parties, if that conduct is such that it 27 would in the opinion of the court be inequitable to disregard it; 28 (h) in the case of proceedings for divorce . . . the value to each of the 29 parties to the marriage of any benefit which, by reason of the 30 dissolution or annulment of the marriage, that party will lose the 31 chance of acquiring.”5 32 33 APPLICABLE PRINCIPLES 34 23. In considering the division of matrimonial property pursuant to s.21 of the Matrimonial Causes 35 Law (2005 Revision) a court should first determine what constitutes matrimonial property.6 3 McTaggart v. McTaggart [2011] (2) CILR 390 - Paragraphs 42 and 43 4 McTaggart v. McTaggart [2011] (2) CILR 390 - Paragraph 39 5 Statutory Factors in England and Wales 6 See Wight v. Wight [2010] CILR 60 and McTaggart v. McTaggart [2011] (2) CILR 390 – paragraph 34, B-H v. H. [2009] CILR 185 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 9 of 66 1 24. The leading cases from England and Wales which have been cited with approval in this 2 jurisdiction are the cases of White and White7 and Miller v. Miller, McFarlane v. McFarlane.8 3 In White and White, Lord Nicholls of Birkenhead stated that fairness requires the court to take 4 into account all the circumstances of the case. The learned Judge under the heading of equality 5 stated: 6 7 “But there is one principle of universal application which can be stated with confidence. 8 In seeking to achieve a fair outcome, there is no place for discrimination between husband 9 and wife and their respective roles. Typically, a husband and wife share the activities of 10 earning money, running their home and caring for their children. Traditionally, the 11 husband earned the money, and the wife looked after the home and the children. This 12 traditional division of labour is no longer the order of the day. Frequently both parents 13 work. Sometimes it is the wife who is the money-earner, and the husband runs the home 14 and cares for the children during the day. 15 16 But whatever the division of labour chosen by the husband and wife, or forced upon them 17 by circumstances, fairness requires that this should not prejudice or advantage either party 18 when considering paragraph (f), relating to the parties' contributions. This is implicit in 19 the very language of paragraph (f): '… the contribution which each has made or is likely … 20 to make to the welfare of the family, including any contribution by looking after the home 21 or caring for the family.' If, in their different spheres, each contributed equally to the 22 family, then in principle it matters not which of them earned the money and built up the 23 assets. There should be no bias in favour of the money-earner and against the home-maker 24 and the child-carer.” 25 26 27 25. This important principle that there is no place for discrimination between a husband and wife 28 and their respective roles in considering division of financial property was reiterated in the case 29 of Miller v. Miller, McFarlane v. McFarlane. The homemaker role should be given equal 30 weight. Additionally a court should consider the three strands of need, compensation and 31 sharing which should guide the court in arriving at a fair division of property on the dissolution 32 of a marriage. 33 34 26. In his judgment in that case, Lord Nicholls of Birkenhead stated that fairness requires that when 35 a partnership ends, each partner is entitled to an equal share of the assets of the partnership 36 unless there is good reason to depart from equality. The learned Judge emphasized that the 7 [2000] UKHL J1026-3 8 [2006] UKHL 24 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 10 of 66 1 yardstick of equality is not a rule but an aid.9 The learned Judge further stated that there is a 2 real difference between matrimonial property and non–matrimonial property and pointed to the 3 difference being the source of the acquisition. Property which is acquired during the marriage 4 otherwise than by inheritance or gift would usually be matrimonial property. Matrimonial 5 property is the “financial product of the parties’ common endeavor.” As to the matrimonial 6 home, the Learned Judge said this: 7 “The parties’ matrimonial home even if this was brought into the marriage at the outset by 8 one of the parties, usually has a central place in any marriage. So it should normally be 9 treated as matrimonial property for this purpose. As already noted, in principle the 10 entitlement of each party to a share of the matrimonial property is the same however long 11 or short the marriage may have been.” 12 13 14 27. The Learned Judge went on to say that the position is different with regard to non-matrimonial 15 property. This is property which the parties bring with them into the marriage or acquire by 16 inheritance or gift during the marriage. 17 18 28. In discussing the approach which should be taken to the question of contributions, Baroness 19 Hale of Richmond in her judgment in the said case concluded that these should be approached 20 in much the same way as conduct, to wit that it was of such a level that it would be inequitable 21 to disregard it. The learned Judge stated: 22 “Coleridge J’s words were rightly influential in the later retreat from the concept of special 23 contributions in Lambert v. Lambert [2003] Fam 103. It had already been made clear in 24 White v. White [2001] 1 AC 596 that domestic and financial contributions should be treated 25 equally. Section 25(2)(f) of the 1973 Act does not refer to the contributions which each had 26 made to the parties accumulated wealth but to the contributions they have made (and will 27 continue to make) to the welfare of the family. Each should be seen as doing their best in 28 their own sphere. Only if there is such a disparity in their respective contributions to the 29 welfare of the family that it would be inequitable to disregard it should this be taken into 30 account in determining their shares.”10 31 32 33 29. In McTaggart v. McTaggart11, the Appellate Court provided guidance as to the way in which a 34 Court should approach the issue of what is matrimonial property under s.21 of the Law: 35 9 Miller v. Miller, McFarlane v. McFarlane [2006] UKHL 24 - Paragraphs 16 and 17 10 Miller v. Miller, McFarlane v. McFarlane [2006] UKHL 24 - paragraph 146 11 [2011] 2 CILR 377 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 11 of 66 1 “It can be seen that the section gives recognition to the concept of “matrimonial 2 property.” That concept is not defined in the Matrimonial Causes Law, but it is 3 generally understood in the sense described by Lord Nicholls of Birkenhead in Miller 4 v. Miller (5), that is to say, it comprises “property acquired during the marriage 5 otherwise than by inheritance or gift” ([2006] 2 A.C. 618, at para. 22). Its 6 distinguishing feature is that it is “the financial product of the parties’ common 7 endeavour”12 8 9 10 30. The Court further stated: 11 12 “It is necessary therefore to identify those assets which are owned or under the 13 control of one or other (or both) of the parties as at the date when the order is made 14 and then to identify which of those available assets are matrimonial property and so 15 capable of being the subject of an order under s.21(b).13 16 “There may be cases (of which, as I shall explain, the present provides an example 17 in relation to the husband’s potential retirement benefits) where an asset which did 18 exist at the date of final separation does not exist—or does not exist in the same 19 form—at the date of the hearing. In such cases it will be necessary to consider 20 whether the former asset can be traced into an after-acquired asset which can itself 21 be treated (in whole or in part) as matrimonial property; and, if not, whether some 22 other order (say, under s.21(e)) should be made to reflect the fact that the former 23 asset has ceased to exist. 24 25 The power conferred under s.21(b) of the Law is a power “to make an order for the 26 disposition of matrimonial property.” There is no requirement under the Law that 27 the disposition should give effect to an equal division of the matrimonial property as 28 between the parties; and there is no invariable rule that the power should be 29 exercised in a manner which achieves that effect. The requirement—imposed by s.19 30 of the Law—is that, in exercising the power, the court shall have regard to “the 31 responsibilities, needs, financial and other resources, actual or potential earning 32 power and the deserts of the parties.” It is plainly open to the court—if, having 33 regard to those factors, it thinks it appropriate to do so—to make an order which 34 effects an unequal division of the matrimonial property as between the parties. The 35 order made in Wight v. Wight (11)—and upheld in this court—provides an example 36 of such a case. In Miller (5) ([2006] 2 A.C. 618 at para. 16), Lord Nicholls observed 37 that “the yardstick of equality is to be applied as an aid, not a rule.” But, as Lord 38 Nicholls had pointed out in White v. White (10) ([2001] 1 A.C. 596, at 605)—in a 39 passage expressly adopted by Lord Cooke of Thorndon (ibid., at 615)—“as a general 40 guide, equality should be departed from only if, and to the extent that, there is good 41 reason for doing so.” 42 12 McTaggart v. McTaggart, Supra at Page 376 13 McTaggart v. McTaggart, Supra - Page 390 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 12 of 66 1 31. In Valerie Gordon v. Jefferson Watler14, the Appellate Court stated: 2 “The correct approach, as I have indicated, was to ask what provision should 3 be made for the wife in order to recognise the three strands of need, 4 compensation and sharing. If a division of the matrimonial property could 5 meet those needs, then it was unnecessary to go further. But if and so far as a 6 division of the matrimonial property could not meet those needs, then it would 7 be necessary to consider whether to make an order under section 21 (e) in 8 respect of the husband’s other assets.” 9 10 32. In the case of B-H v. H15, the parties had been married for 12 ½ years and had two children. 11 The issue for the Court was to identify what was matrimonial property in circumstances where 12 each party had brought properties of their own into the marriage and had acquired more 13 thereafter. They had maintained separate financial affairs during the course of the marriage. 14 Foster J. (Actg.) reviewed a number of local and English cases and said this: 15 “In my opinion, it is clear, both from the remarks made in the various 16 authorities and as a matter of common sense, that in determining whether 17 particular property is to be considered matrimonial property or the separate 18 property of one of the spouses for these purposes, the court must have regard 19 to all the circumstances relating to the property concerned. Such 20 circumstances include but are not confined to, the circumstances and timing 21 of its initial acquisition, the party by whom and how it was acquired, the 22 apparent intentions of the parties with regard to and the use of the property 23 during the marriage, amongst other factors. For example, it does not, in my 24 opinion, automatically follow that just because the property concerned was 25 acquired solely by one spouse prior to the marriage, whether by purchase, gift 26 or inheritance, and the title remained throughout the marriage in the name of 27 that spouse, the property may not nonetheless in some circumstances be 28 considered to have become matrimonial property—“put into the melting pot 29 of the marriage” (see Levers, J. at first instance in Wight v. Wight (10) (2006 30 CILR 1, at para. 55)).” 31 32 33. Foster J. (Actg.) held that the parties had seen their relationship as a partnership and that, 33 viewed in that light the three properties brought into the marriage would be categorized as 34 matrimonial assets “since they had both benefitted from them as matrimonial homes and used 14 CICA Civil 13/2014- 22nd August 20140 15 [2009] CILR 185 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 13 of 66 1 them to raise money to finance purchase of other property and spent money on them and 2 generally treated them as assets for the benefit of both of them.” 3 4 34. I now turn to consider the issues and facts in the instant case with the law and general principles 5 in mind while noting that each case must be decided on its own facts with the objective being 6 to arrive at financial arrangements which are fair to both parties. I must identify the matrimonial 7 and non-matrimonial assets and consider a fair and equitable distribution of the matrimonial 8 assets in light of the statutory factors taken as a whole and of the three strands of need, 9 compensation and sharing. If the matrimonial assets are not sufficient to meet the needs, I may 10 then go on to consider whether any further disposition should be made from non-matrimonial 11 property. The desirable aim is for there to be a clean break between the parties if this can be 12 achieved in the circumstances of this case and to give each party an equal start on the road to 13 independent living. 14 15 EVIDENCE IN THE CASE 16 35. The material before the Court consisted of the following written material: 17 18 i. Affidavit of husband dated 20th May 2020 19 ii. Affidavit of husband dated 8th June 2020 20 iii. Affidavit of husband dated 23rd September 2020 21 iv. Affidavit of husband dated 16th December 2020 22 v. Affidavit of husband dated 18th December 2020 23 vi. Affidavit of YM dated 4th February 2021 24 vii. Affidavit of wife dated 19th May 2020 25 viii. Third Affidavit of wife dated 3rd June 2020 26 ix. Fourth Affidavit of wife dated 24th September 2020 27 x. Updating Affidavit of wife dated 8th December 2020 28 xi. Requests for and Responses to Requests for Further and Better Particulars 29 30 36. In addition, evidence was heard from the following witnesses in addition to the wife and 31 husband, HD, BE, YM and CB. The matter was adjourned on a number of days at the request __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 14 of 66 1 of Counsel for the wife in order that additional banking documentation could be obtained and 2 produced by the husband and YM. 3 4 IDENTIFYING MATRIMONIAL PROPERTY – FAMILY AND BUSINESS ARRANGEMENTS 5 6 37. A family asset is defined by reference to the landmark case of Wachtel v. Wachtell16 :- 7 8 “It refers to those things which are acquired by one or other or both of the parties, with 9 the intention that there should be continuing provision for them and their children during 10 their joint lives, and used for the benefit of the family as a whole.” 11 12 38. The evidence in this case is that the relationship between the parties began while they were 13 both resident in Jamaica at a time when the wife was just out of High School. The husband 14 moved to the Cayman Islands in 1993 to take up employment. The wife visited him every year 15 until she too secured a job at the same establishment where the husband was employed. She 16 moved here to live with him in 1998 or 1999. When the husband sought to purchase their first 17 property in Mahogany Way, he was unable to secure a mortgage on his salary alone. He 18 discussed the matter with the wife (they were then unmarried) and both agreed to obtain the 19 mortgage together. 20 21 39. In addition to their respective incomes, the husband collected rent initially from Mahogany 22 Way and then from their various properties as they acquired them. From the rental income and 23 his earnings from the businesses, he paid all the household bills including mortgage, utility and 24 other bills as well as school fees for ‘O’. The wife from her own income bought groceries and 25 other household necessities. This was the agreement and arrangement of long standing between 26 them. It is evident from this division that each played a significant role in the relationship with 27 the wife taking care of the home and feeding and caring for the family. The evidence is that she 28 did so on her own without the assistance of a helper. The husband does not disagree that the 29 wife was a good mother to ‘O’. He gave evidence that he respects the fact that she cared for 30 their child and states that he would never be mean to her or deny her anything which should 31 come from the marriage.17 16 [1973] Fam. 72 17 Affidavit of H. dated 20th May 2020, para 21 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 15 of 66 1 40. The wife stated in evidence: 2 3 “Traditionally I have trusted the Respondent to collect the rental income from all of our 4 properties including those in Jamaica, and to use the proceeds to make other investments 5 on our behalf and also to pay household and other expenses.”18 6 7 41. The husband’s evidence is that he would invest from his earnings into the properties. He has 8 said repeatedly throughout these proceedings that the wife would always dissuade him from 9 these investments saying that all he was interested in was ‘house and land’. He said that he 10 used to approach the bank all by himself to get loans because she was not interested. He 11 criticizes the wife for being unsupportive of him, his efforts and investment ideas while 12 enjoying the fruits of his hard work. He said that not only was she unsupportive of his ventures, 13 she would always discourage him. There is much bitterness on his part about this. It is plain 14 from the evidence and it is an aspect of the evidence of the husband which I accept as a truthful 15 account that the husband it was who sought to ensure that investments were made and wealth 16 accumulated. One example which the wife did not deny is that it is the husband who encouraged 17 her to open her own business after she left her long term employment, rather than to seek further 18 employment to work for someone else. 19 20 42. For her part, the wife denied not encouraging the husband and her evidence in cross 21 examination when it was suggested to her that she never encouraged his investments was: 22 23 “We have been together when we had nothing, sir, and we have been together achieving 24 everything. I never left my husband’s side. I have worked toe to toe with him and helped 25 him and I contribute my money as well to it. It might not be as much as he would think but 26 I contribute what I have and I work with him in all his businesses.” 27 28 43. She gave evidence that the Mahogany Way property was acquired by them together, that the 29 funds which were generated from that property were used to help them to get the FMH so that 30 the husband would not have to be under stress about paying the mortgage. She said that the 31 money that was collected from the property in Mahogany Way and from all the businesses that 32 they had started, gave them everything they have today and that she had worked tirelessly with 33 the husband. 18 Third Affidavit of W. dated 3rd June 2020 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 16 of 66 1 44. She said that when they started their first business they did not have anything much to their 2 names, they began by buying an old bus from their former employer. She said that that one bus 3 started everything. She was the one who bought and printed letters and cards, and went around 4 to the neighborhood, dropping them off and telling people that they were starting a little 5 business. She said also that she did a lot of the accounting work while the husband is good with 6 his hands. She spent hours at night on West Bay Road, and in the district of West Bay working 7 together with the husband on projects in order to earn money to invest in their business. 8 9 45. She would make supplies for their decorating projects on her dining table at home. She said 10 that she worked with the husband and would go out on jobs with him. When he would go out 11 on landscaping jobs, she would go and help to rake up the grass. When they started the 12 construction business she would sometimes drive the construction truck. She has been on sites 13 with him. She did the paper work for him. She worked with him together in everything. 14 15 46. The husband gave evidence in chief that they initially started a retail supply business together 16 with $45,000.00 from his account. After a while that business was not doing well and then they 17 decided to divert the business to a retail store. He said that the wife took care of the food for 18 the family and O’s lunch and personal items and he did everything else. 19 20 47. He has been operating the first gardening business since 2004, just after Hurricane Ivan. The 21 wife was a signatory on the account for that business and would sign cheques. He subsequently 22 took her off the account completely because she went behind his back and withdrew $8,000.00. 23 He thought that it was dishonest for her to do this without telling him. The wife denied doing 24 this and said that she had his permission to make the withdrawal. He said that if she wants the 25 landscaping business, they had both started it and he would not have a problem giving it to her. 26 27 48. In cross-examination, the husband said that the first business which they started together was 28 E Landscaping. The second was the retail store operated by the wife which was about 10 years 29 ago. The next one was the construction company which was around the same time. The wife 30 did not assist him with contracts for that company which were done by the quantity surveyor 31 and other persons. She did help him with payroll for that business. He would write a cheque __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 17 of 66 1 and she would go to the bank and get the cash whenever he could not go as he was still then 2 working at his regular job. 3 4 49. The next business which he started was TLM. He said that the wife did not help with the payroll 5 for this company as she used to do for the first business. By that time he had developed the 6 expertise for himself and he had also established an online system for payroll so he was able to 7 do it himself by putting in the amount of hours worked by each employee. 8 9 50. He agreed that it could be that it was the wife who set up the payroll system for the business 10 for him on the computer as she always had more experience than he did in computers so 11 whenever he needed assistance she would always show him what to do. She assisted him until 12 he developed the expertise to do it. 13 14 51. He agreed to the suggestion that in relation to all the businesses, both of them worked together 15 in putting in what expertise they each had. The intention was that the income from these 16 businesses would be used to pay the bills for the family and take care of whatever needed to be 17 taken care of. This is an arrangement which began before they were married and continued 18 after, as to how finances were shared. 19 20 52. He said that he opened the retail store for the wife with the intention that it would assist the 21 family and all the financial strain would not be on him alone. The investments which he made 22 in the properties came from the income from these businesses together with whatever he had 23 saved from before. 24 25 53. In summary all of the evidence points to this being a partnership, with the wife undertaking the 26 more traditional home maker role for close to twenty years. She it was who ensured that food 27 was purchased for the family and took care of their child and home. This role is of equal 28 importance to the financial investments and real estate purchases made by the husband. 29 30 54. I also conclude that there is no evidence in this case that the parties lead separate economic 31 lives. They had an arrangement which belies this. While they assigned themselves separate 32 areas of financial responsibility, there was the general pooling of resources to meet the needs __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 18 of 66 1 of the family. Even in respect of those accounts to which the wife did not have signatory access, 2 funds from these were utilised for the benefit of the family. 3 4 55. For the husband’s benefit, it might be helpful to refer again to the applicable legal principle as 5 stated in the cited case of Miller v. Miller, McFarlane v. McFarlane: 6 7 “150. More difficult are business or investment assets which have been generated solely 8 or mainly by the efforts of one party. The other party has often made some 9 contribution to the business, at least in its early days, and has continued with her 10 agreed contribution to the welfare of the family (as did Mrs Cowan). But in these 11 non-business-partnership, non-family asset cases, the bulk of the property has 12 been generated by one party. Does this provide a reason for departing from the 13 yardstick of equality? On the one hand is the view, already expressed, that 14 commercial and domestic contributions are intrinsically incommensurable. It is 15 easy to count the money or property which one has acquired. It is impossible to 16 count the value which the other has added to their lives together. One is counted 17 in money or money’s worth. The other is counted in domestic comfort and 18 happiness. If the law is to avoid discrimination between the gender roles, it should 19 regard all the assets generated in either way during the marriage as family assets 20 to be divided equally between them unless some other good reason is shown to do 21 otherwise.” 22 23 56. There is no evidence that the husband acquired any of the properties, investments or businesses 24 by way of gift or inheritance. I accept what I found to be the clear and credible evidence from 25 the wife that the starting point for all that was later acquired by them was the rental income 26 from their first and jointly-acquired property at Mahogany Way. This helped to pay the bills 27 for the family and provided the launching pad for all later acquisitions. I accept her evidence 28 that she supported her husband not only in the role of homemaker but also in the establishment 29 and growth of each business. I consider that each of the five businesses listed above constituted 30 matrimonial endeavours. 31 32 IDENTIFYING MATRIMONIAL PROPERTY – THE BUSINESS ACCOUNTS 33 34 57. The evidence is that the husband had accumulated significant sums in his personal and business 35 bank accounts prior to the commencement of these proceedings. Thereafter the balances in 36 these accounts have fallen in a major way. The wife submits that this evidences dissipation of 37 assets. __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 19 of 66 1 58. At the time of the filing of the Petition in September 2019, the TLM business account ending 2 in 592 had a balance of $4,863.71. The pattern of activity was regular deposit of cheques 3 usually less than $5,000.00 in most instances, withdrawals and transfers to a personal account 4 of $2,000.00 per month and payments to individuals of weekly sums. 5 6 59. On the 30th September 2019, the balance in the TLM business account ending in 017 was 7 $133,690.18. This was the case through all of August and September, with small sums being 8 withdrawn and credited and the amount remaining relatively stable. On the 15th October 2019, 9 the sum of $66,000.00 was withdrawn by way of a draft to Car City dealership. This was about 10 one half of the account balance, the remaining balance was then $68,540.18. On the 26th 11 November 2019, $50,000.00 was withdrawn by way of a draft payable to a local law firm. The 12 balance in the account through to February 2020 was $29,451.86. 13 14 60. The balance in the construction account ending in 352 was $310,385.78. Between 31st July 15 2019 and September 2019, it remained relatively stable at just above $300,000.00. On the 1st 16 of October 2019 a cash amount of $20,000.00 was withdrawn reducing the balance to 17 $290,000.00. In October 2019, there were a series of withdrawals, the largest of which was 18 $5,000.00 to CD, identified to be an administrative assistant to the husband. In November there 19 were three large withdrawals as follows: 20 21 14th November 2019 - cheque $16,740.00 22 20th November 2019 - cheque $30,000.00 23 27th November 2019 - draft $220,000.00 24 25 61. The end result was that as at 29th November 2019 the balance in the account was $2,703.00. 26 Despite some credits, by 31st January 2020 the balance in the account was $529.67. 27 28 62. The account ending in 901 for E business as at the 30th September 2019 had $1,028.92. Between 29 August 2019 and January 2020, the amount ranged between $50.00 and $5,000.00. 30 31 63. Personal accounts for the husband had small balances of under $5,000.00. 32 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 20 of 66 1 64. In September 2019, the wife’s main account had about US$17,000.00 falling to $4,000.00 in 2 February 2020. 3 4 65. On 26th June 2019, the husband by cheque withdrew the sum of $189,823.00 from an unnamed 5 account which was put towards the purchase of a house with YM. 6 7 66. In respect of the withdrawals from the construction business account on the 20th November 8 2019 of $30,000.00, and on the 26th November 2019 of $220,008.25 and from the account of 9 TLM on the 26th November 2019 of $50,000.00, the husband’s evidence is that this amount of 10 $300,000.00 was funds owed to his brother BE and which BE put towards the purchase of a 11 house at Mangrove Avenue. 12 13 67. In respect of the withdrawal on the 15th October 2019, by way of a draft payable to Car City 14 for $66,000.00 for the purchase of a Ram truck, the husband claims that this amount was paid 15 in furtherance of a loan agreement with and in order to purchase the truck for HD. 16 17 68. The wife’s evidence is that since the commencement of these proceedings H has bragged to 18 her about buying a bucket truck for $60,000 and a Ram truck for $50,000.0019. She further 19 states that the husband has told her that he will use all the funds available and will see that she 20 gets nothing. 21 22 69. The husband denied telling the wife that he was going to use all the money that he had so that 23 ‘she would not get a cent’. He agreed that as at the 30th September 2019, the balance on the 24 account for the construction business was $310,385.75 and that by 31st January 2020 it was 25 $529.67. He agreed that after the divorce was filed he spent $309,856.09, roughly $77,000.00 26 per month from this account. 27 28 70. The use of these funds and the resulting purchases as to whether or not they constitute 29 matrimonial property are significant issues in dispute in these proceedings. 30 31 19 Paragraph 55 of Affidavit of 15th May 2020 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 21 of 66 1 I) THE FMH 2 3 71. The FMH located at Block 24D Parcel 120 is valued at $312,000.00 as at January 2020. There 4 is an outstanding mortgage in the amount as stated above. It was registered in the sole name of 5 the husband on the 25th August 2010. This was five years before the marriage at a time when 6 they had been together for some ten years and were residing together at the Mahogany Way 7 property. The evidence of the husband was that he used the equity in Mahogany Way to get the 8 FMH. He approached the bank himself and built it as a surprise for the wife who was unaware 9 of the purchase. By that time he was operating various businesses with the primary one being 10 a landscaping business. He says that the house was built by the sweat of his back, cutting 11 peoples’ yards. It was purpose built in part to accommodate storage in the attic for his various 12 businesses in particular his event planning business. Counsel on his behalf submitted in closing 13 that the husband is particularly hurt and frustrated that the wife applied for him to be ousted 14 from the FMH which is the “jewel and pride” of his hard work. In his oral evidence the husband 15 said that he had decided to give the wife that house. He said that although he has his items 16 stored there, it is a nice house and she would like that. 17 18 72. The wife gave evidence in line with the husband that she had not known about the purchase of 19 the land for the FMH because it was a surprise for her. There was some divergence in that she 20 spoke of having knowledge of it before the construction was completed and thus at an earlier 21 stage than appeared to have been indicated by the husband. She testified that at the time they 22 were living at Mahogany Way and it had become uncomfortable because there were a lot of 23 tenants. Importantly their daughter was growing up and they wanted a house for her. She said 24 when she first went to the property the foundation for the home was being prepared. She said 25 that she knew of the contractor for the house. She went to the AL Thompson hardware store 26 and together they selected the fixtures for the home and in the process decided to upgrade and 27 to have nicer fixtures. They discussed the matter and the agreement was that she would make 28 periodic payments towards the upgrades while the house was being built which she did from 29 her bank card. She was not yet self-employed. She denied that the house was fully built when 30 she first saw it and said that she bought the chandelier which was put on the stairs and chose 31 the different tiles for the house. 32 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 22 of 66 1 73. The FMH was evidently purchased for the benefit and use of the family following on the joint 2 endeavors of the parties over the years. This was the family home through to the date of their 3 separation in September 2019. I conclude that the FMH constitutes matrimonial property and 4 the mortgage is a matrimonial debt. 5 6 7 II) MAHOGANY WAY PROPERTY 8 9 74. The Mahogany Way property is located at Block 25B Parcel 100. It was registered in the joint 10 names of the parties on the 4th December 2003. A valuation obtained in January 2020 values 11 this property at $240,000.00 (unfurnished). 12 13 75. There was some initial disagreement as to the level of income from this property. The husband 14 initially asserted that the rental income being collected was CI $2,300.00 per month from four 15 tenants one at $1,000 per month, two at $450.00 and one at $500.00.20 He said that there had 16 been payment issues because of the effects of the pandemic. The wife visited the property and 17 collected signed documents from most of the tenants. It was her calculation that the total rental 18 to be collected is $3,700.00 per month. 19 20 76. In his further Affidavit of 9th June 2020, the husband indicated that he had omitted to mention 21 two tenants in error due to them being extended family. He maintained that most of them were 22 not paying rent due to pandemic issues. He said that he paid utilities for the property from the 23 rental income and on average this was $800.00 per month. Following a review of the utility 24 bills which he produced, I concluded that the monthly rental income after deduction of utilities 25 was $2,850.00. 26 27 77. The purchase of this property was the joint endeavor of the parties and was up to 2010 their 28 family home. It constitutes matrimonial property. 29 30 31 20 Affidavit filed 21st May 2020 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 23 of 66 1 III) BARE LAND IN SPOTTS 2 3 78. This land in Spotts at Block 25 B, parcel 266 was registered in the sole name of the husband 4 on the 20th April 2017. It is valued at $70,000.00. The evidence of the husband is that he 5 purchased it with monies which he received by way of a redundancy payment when he left his 6 long term job to become self-employed. 7 8 79. This property was acquired during the marriage. It was not acquired by gift or inheritance but 9 through the regular employment of the husband. There is no indication that the parties intended 10 or agreed that this was to be for the sole use and benefit of the husband. The fact that it is in 11 his sole name is not indicative of this given the way in which the parties conducted their lives. 12 For example the FMH which was for their joint use and benefit was in his sole name. 13 14 80. This land constitutes matrimonial property. 15 16 iv) THE BREAKERS PROPERTY 17 18 81. The Breakers property at Registration section Block 48C Parcel 144 was registered in the 19 names of YM and GE on the 12th July 2019 in the shares of 3/10 and 7/10 respectively. It is 20 described by the valuator as a newly-constructed residential dwelling. As at the 9th January 21 2020, the market value on completion is $248,000.00. 22 23 82. The evidence of the husband is that YM approached him in relation to the purchase of the 24 property. He said that she invested 30% in it which was all she had. He said that he invested 25 70% of the purchase price. In cross-examination by Counsel for the wife, he acknowledged 26 that a cheque stub, numbered 000987 for $189,823.00 dated 26th June 2019, payable to a firm 27 of local attorneys were the funds which he paid towards its purchase. This was a cash purchase 28 and there is no mortgage on the property. 29 30 83. As to the rental income, he said that the wife is incorrect that the property is rented out at a rate 31 of $2,800.00 per month. The actual rental is $1,900.00 per month with this being shared 32 between himself and YM according to shareholding after bills are paid. __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 24 of 66 1 84. It is unclear from the evidence from which account the funds were taken by the husband to 2 purchase this property. The issue is whether it is in fact entirely owned by the husband and 3 whether any contributions were made by YM towards the purchase. 4 5 EVIDENCE OF YM 6 7 85. Ms. YM gave evidence that she contributed CI $50,000.00 towards the purchase of the property 8 in Breakers. She said that she saw the property, liked it and went to the husband about 9 purchasing it. She has been in a relationship with him since 2009. Initially she said that the 10 property had been purchased for $168,000.00 and that she has 30% interest in it. This was a 11 cash purchase and she dealt with the real estate agent herself. She confirmed the rental amount 12 stated by the husband and said that it is rented on a one year lease. She receives $600.00 per 13 month from the rental income. 14 15 86. She said that she was granted early retirement in 2018 and as a result received a pension. She 16 said that she gave the husband $20,000.00 from her pension and $15,000.00 from a savings 17 partner that she had and she also gave him $25,000.00 to hold for her. 18 19 87. She said that she made $3,000.00 per month from her shop before the pandemic, $2,000.00 per 20 month since then and she also does farming. She has a janitorial company and has also received 21 monthly funds of $1,000.00 per month since the onset of the pandemic. 22 23 88. Her evidence was somewhat confusing to follow. Having said that she gave the husband 24 $20,000.00 from her pension, she then said she received $12,000 in August 2018 and another 25 $12,000.00 in August 2019 and gave the money to him. She was asked and answered as 26 follows: 27 Q.: Okay. You said you have documents showing that you took some 28 money out of your pension? 29 30 Ms. YM: I gave him the last pension. I think Mr. Brady has that one and 31 also the last one I didn’t give them the last pension because I draw 32 the cash from the bank. When I went and changed the $12,000.00, 33 I gave it to G. 34 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 25 of 66 1 89. Then she said that the $12,000.00 was given to the husband to buy some materials to contribute 2 to the house. Each time that he was going to buy materials, she would withdraw the money 3 from her account using her card, “like $3,000.00 or $2,000.00 and give it to him whenever he 4 needed anything for the house”. 5 6 90. Later in her evidence she said that she contributed to the renovation of the house by purchasing 7 items herself at the hardware store. She said that she went and bought the bath tub and the tiles 8 out of her own money. She withdrew small sums from her account to do this, $400, $500 or 9 $1,000.00. She would not have receipts because these were bought under the name of the 10 husband’s construction company because the company receives a discount. 11 12 91. She said that the husband had $25,000.00 for her from her partner savings, $20,000.00 of which 13 was saved in 2018. She has been giving him money to save for her since 2012 because she 14 wanted to save for a house for herself and she spends money freely, usually on her family. 15 There were about four occasions when she received money from her partner savings and if she 16 made any extra money such as during the holidays. She has no independent record of what she 17 gave him. She does not have to keep a record because he is very honest. 18 19 92. She said that she did not feel that her money was in jeopardy because of the divorce proceedings 20 because the money that he had for her is already spent in the house which they purchased 21 together. She said that the remainder of the money which he had for her was about $6,800.00 22 which she had asked him to use to buy appliances for the property. 23 24 93. She maintained that she thought the husband an honest person despite the fact that when he 25 married the wife she did not know anything about the marriage. There was also the second 26 matter that he had allowed the wife to use the business license which had been obtained for 27 YM’s own use. He did not tell her that he had given the wife permission to use it. She became 28 aware that this was happening when there was confusion among the two sets of customers. 29 Both stores had the same name, one had an online business. The other did not. 30 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 26 of 66 1 94. She said that she did not challenge the inclusion of the house in these proceedings. She did not 2 know that she had the option to do so. She was not thinking that her 30% would be involved in 3 this. 4 5 95. She said that her bank statements should show the withdrawals of the amounts given to the 6 husband. 7 8 96. In answer to questions from the Court, she clarified the payments made as follows. In 2017 she 9 received $10,000.00 and $5,000.00 in partner savings which she gave to him. He collected 10 these in cash directly from the “banker” for the partner savings. The “banker” is no longer on 11 Island and has migrated. There is no document which evidences this. In 2018 he had funds 12 from two partner savings which she had for $20,000.00. This was the first money that he got 13 and the last $5,000.00 was from another partner savings. She said that the only document 14 which she would have is the $12,000.00 withdrawal from her pension. This was not paid in a 15 lump sum. She withdrew sums, and gave him cash to purchase items for the house. 16 17 97. She said that when the husband was making the down payment on the house, he had monies 18 for her which he could use to do this. She said that she could not give a figure as to how much 19 was spent on renovations for the house as she was not checking how much was spent. The 20 house needed windows, doors, tiles, bathroom fixtures and kitchen cabinets. It took a year and 21 more to renovate it. 22 23 98. In further cross-exanimation, she said that the husband paid the deposit but she does not 24 remember how it was paid. They went through an attorney at Solomon Harris. She was asked 25 to produce documents which would show what was spent on the house and the pension amount 26 being received by her, in particular bank statements from June 2019 to March 2020 when the 27 renovations were completed. 28 29 99. There then followed multiple adjournments, some of which were due to waiting on the bank to 30 provide the requested statements and in other circumstances where she had accounts in two 31 currencies and only the documents for one currency account had been provided. 32 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 27 of 66 1 100. Upon her return to Court on the 11th January 2021, further questions were put to her in 2 examination in chief, she said that she had given the cost of the property as $168,000.00 but 3 fees added up. It was put to her that the actual cost was $189,000.00 and that 30 % of this was 4 about $55,500.00 which was less than what she had said that she had given to Mr. E. She said 5 that most of the time she would give him small amounts in cash whenever she has it. There is 6 no record of these amounts because she would give him cash. 7 8 101. Upon her return to Court on the 21st January 2021, she produced a pension statement to show 9 the payment to her of $24,000.00 and bank statements for the period 1st May 2019 through to 10 1st May 2020 for her US account only. This is the account into which she said that the pension 11 withdrawal had been paid. There was no record of this payment on the statements. 12 13 102. In response to questions from the Court she said that the bank statements showed six 14 withdrawals of cash amounts adding up to US $5,600.00 which were withdrawals of cash that 15 was used for the house. 16 17 103. On the 4th February 2021, YM produced further bank account documentation which showed a 18 deposit of $12,000.00 in September 2019. This came from her pension. This was after the house 19 had been purchased. She said that she had not said she had given the husband $12,000.00 20 towards the purchase of the house. She said that the money that she gave to him was the money 21 that he had saved for her and that the $12,000.00 was the amount from which funds were drawn 22 as needed for the repairs. She agreed that she had absolutely no documentation to show that 23 she had contributed to the purchase of the house. 24 25 104. The evidence of the husband as to property ownership ratios is supported by YM’s account. In 26 the absence of documentation, particularly as to the collection and saving of funds, much turned 27 on an overall assessment of YM’s credibility. YM was not the clearest of witnesses. The 28 sequence of her evidence as set out above highlights the small but significant changes at each 29 stage. The initial impression which she gave was that the pension withdrawal amounts in total 30 had been given to the husband towards the purchase and made up the $50,000.00 which she 31 had contributed. The bank account records did not show any such lump sum payment activity. 32 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 28 of 66 1 105. It transpired that she was saying that the husband had himself collected her partner savings 2 directly from the “banker” and that she had asked him to save these amounts for her as she is 3 not good with saving money. There is no documentation in support of this. 4 5 106. Then she said that the $12,000.00 from her pension was contributed towards purchases for 6 repairs to the house. It had been expected from this evidence that the statements would have 7 shown multiple purchases at hardware stores and other suppliers. They did not. 8 9 107. I considered whether there is any truth to the account that she gave. She was quite clear in her 10 account of the informal savings scheme which operated among the workers at her place of 11 employment. I accept that she did participate in this scheme and would have had savings. 12 Whether these were all collected on her behalf by the husband is not without doubt. My 13 impression is that very likely the truth lies somewhere in between, that she did make some 14 contribution to the down payment for the house from these savings but perhaps not on the scale 15 urged. 16 17 108. However I do accept her evidence that she did assist financially with the repairs to the property. 18 I found her to be credible on this aspect. The pension documents produced from the Pension 19 Plan provider do show the withdrawal of the $24,000.00 over a two year period. She was readily 20 able to say what was needed for the house, such as tiles, fixtures and other items. 21 22 109. This purchase was before the divorce Petition was filed and in my view very likely represents 23 the approximate contributions made by the husband and YM. 24 25 110. There is no indication that the husband had any other source of income other than income from 26 the businesses. I conclude that the husband’s 70 % contribution to the purchase was made using 27 matrimonial funds and that 70% of the value of the Breakers house constitutes matrimonial 28 property. 29 30 31 32 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 29 of 66 1 V) MANGROVE AVENUE PROPERTY 2 111. The Mangrove Avenue property is at Block25 B, Parcel 213. The evidence of the husband in 3 his May 2020 Affidavit was that this property is owned by his brother who bought the house 4 and he was simply giving his brother free labour in making the house livable.21 5 6 112. The purchase price of this property was $300,000.00 which funds were withdrawn from the 7 accounts stated above. The issue in respect of this property is whether it is in fact owned by the 8 brother of the husband and in particular whether the funds used for the purchase were funds 9 which were owed to the brother of the husband such that they do not constitute matrimonial 10 funds. 11 12 EVIDENCE OF BE - BROTHER OF THE HUSBAND 13 113. BE testified that he is the brother of the husband, he is a carpenter by occupation and works for 14 his brother. He gave evidence that Mr. CB is his co-worker but his brother is his boss so he 15 deals directly with him rather than with Mr. CB. 16 17 114. He said that he lives at the family home which is the Mahogany Way house and does not pay 18 rent or utility bills and has never done so. He does all the general maintenance on that building. 19 His son, the nephew of the husband also lives there and assists him with maintaining the 20 building. He also does the maintenance on other properties owned by Mr. E. 21 22 115. He became the owner of the property on Mangrove Avenue because his brother was saving 23 some money for him from jobs that he gave him over a six year period. In most cases he is not 24 paid by the hour, he charges a fixed price for a job. He is sometimes paid by Mr. E, when he 25 needs money to spend but most of the time he tells him to save the money towards the property. 26 He has been saving so that he could buy a property to qualify for an application for a grant of 27 status. 28 29 116. He said that his work permit is renewed every year but he does not know the amount of his 30 earnings as stated on the permit. There had been no discussion or agreement with his brother 21 Paragraph 36 of Affidavit of husband dated 20th May 2020 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 30 of 66 1 as to how much he would be paid because he is family. They trust each other so that there is 2 nothing in writing. 3 4 117. He said that his brother would have had about $315,000.00 in savings for him in the bank. The 5 property was purchased for $300.000.00 so he should still have $15,000 for him. The property 6 is an unfinished duplex with 4 bedrooms, 2 upstairs and 2 down stairs. He was shown Exhibit 7 1, real estate documents and agreed that it was advertised as having 4 bedrooms upstairs and 4 8 downstairs. He said that he did not quite remember how much it was advertised for initially. 9 10 118. He said that since Mr. E. paid him the majority of the money owed, he is now being paid for 11 the work that he does. He said that he is purchasing materials and paying for the renovations 12 himself from his work earnings. His friends from and outside of his workplace are assisting 13 him. 14 15 119. He said that for the six years, he is not sure how much in salary he would have been paid. He 16 does not remember all of that as it has been so long. He said that he has no receipts for any of 17 the materials which he has bought for the refurbishment of the property. 18 19 120. He denied that the property really belongs to his brother. He said that he paid $50,000.00 to the 20 law firm Bodden and Bodden, which firm he went through for the closing of the property. That 21 was just a fee. In order to purchase the house he said that he paid $220,000.00 for the house 22 and $30,000 in real estate fees. He was shown documents which indicated that the selling price 23 of the house was $300,000.00 for which $30,000.00 was required as a deposit. 24 25 121. He was given time to produce the paperwork which he said that he had in relation to the 26 $50,000.00 which was paid. He left and returned to Court in the afternoon and the following 27 day and said that he could not find it. He said that he had been cleaning up his room over the 28 Christmas holidays and may have thrown it out. 29 30 122. The husband gave evidence that he had no written record of the money that he had been holding 31 for his brother but that he had it in his head and his brother knew how much he was owed based 32 on the amount earned from the various jobs. He was asked how many jobs his brother had done __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 31 of 66 1 to amount to the $220,000.00 owed. He said that it is a lot but he does not remember how many 2 jobs. He said that he paid a further $30,000.00 to the real estate company and that in all he paid 3 $300,000.00 towards the purchase of the property on behalf of his brother. 4 5 123. The husband was cross examined extensively about the money spent on the property including 6 as follows: 7 Q. Why didn’t you mention the Mangrove property in any of the 8 correspondence or Affidavits that you did initially? 9 Mr. E.: Why would I need to? 10 11 Q.: It would explain the $220,000.00 cheque, wouldn’t it? 12 13 Mr. E.: You didn’t ask me anything about that. 14 15 Q.: We didn’t ask you for the cheque? 16 17 Mr. E.: You asked me to present the cheque and I presented the cheque. 18 Everything that you asked me to present, did you get it? 19 20 Court: Mr. E., don’t ask any questions, please. 21 22 Mr. E.: Okay. 23 24 Q.: Mr. E., we asked you what was this $220,000.00 spent on. 25 26 Mr. E.: And what did I tell you? 27 28 Q.: You couldn’t remember. 29 30 So we requested a copy of the cheque so that we could find out what it was 31 about and even then it was just payable to Bodden and Bodden. 32 33 So I am putting it to you that you tried to deceive or disguise at least the 34 payment that was made in relation to that property. You never said 35 anything in these proceedings about that property, did you? 36 37 Mr. E.: You did not ask me.” 38 39 40 124. In the earlier judgment in these proceedings the evidence given in interim proceedings was 41 summarised as follows: __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 32 of 66 1 “The husband was cross-examined extensively about the bank account records which he 2 had eventually provided. 3 4 He was asked about an account for the construction business which he said he also used 5 for event-planning. This had been marked by him as not operational. He said that the 6 account was not being used because he does not presently have any ongoing construction 7 work. On the 30th September 2019, that account had a balance of $310,385.78 and in six 8 months on the 31st January 2020, the balance was $529.67. In response to a specific 9 question, he said that he could not remember what the money had been spent on. He was 10 then taken to specific withdrawals. He said that he could not recall what the amount of 11 $220,008.25 withdrawn by way of a draft on the 26th November 2019 had been spent on, 12 neither could he recall the purpose for which withdrawals of $16,740.00 on 14th November 13 2019 and $30,000.00 on the 20th November 2019 were made. 14 15 He said he was the only person who used the account so he knows that the money was 16 spent, most likely it was on payroll or to buy equipment. It is possible some of it may have 17 been used on the house at Breakers. He was asked about a withdrawal of $20,000.00 made 18 on the 1st October 2019. He said that he is the one that deals with all the financial matters. 19 He pays the bills and sometimes forgets, but pays them as soon as he remembers.22” 20 21 125. It was not until November 2020 that the husband responded to the request to explain various 22 transactions in relation to the construction business bank account and identified a significant 23 number of withdrawals for the period August 2019 through to January 2020 as being for project 24 expenses, personal or work related bills except for the cheque for $220,008.25 on the 26th 25 November 2019 which he said was money that had been owed to his brother BE. 26 27 126. I observed both witnesses closely as they gave evidence on this important issue. I did not 28 believe either the husband or his brother. Neither could remember, mention or name a single 29 project or series of projects which would have generated income on such a large scale. I found 30 it surprising that initially the husband claimed on oath not to recall the purpose for which the 31 large sum of approximately $220,000.00 had been spent. This was about 70 % of the amount 32 which he then had in the construction business account. Surely it would have been difficult to 33 forget this. I had the impression of an effort at concealment. 34 35 127. Additionally I considered the timing of the withdrawal to be of significance, being within two 36 months of the filing of the Petition. I accept the evidence of the wife as truthful that he told 22 Paragraphs 58, 59 and 61 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 33 of 66 1 her that he was going to withdraw all the funds so that she would be left with nothing to get. I 2 did not believe the husband’s account on this aspect. 3 4 128. As to the absence of records of the amounts owed to his brother, while one can readily 5 understand that given the family connection there may not have an emphasis on records, it is 6 questionable that neither would have kept even a rough note where the sum in question was so 7 significant. It is also of import that purely from a mathematical standpoint, the owner of the 8 business appeared to have less savings in the business account than his employee. 9 10 129. Having considered all the evidence on this point I did not find either the husband or BE to be 11 credible witnesses. I do not accept as truthful the evidence that $300,000.00 was owed by the 12 husband to BE and find that this use of funds was a deliberate effort by the husband to denude 13 the accounts of funds to get them away from the reach of the wife. My overall impression is 14 that the explanation proffered for its withdrawal was one that appeared to have been contrived. 15 16 130. Additionally if as appears to be the case, that this was a purchase made by the husband and not 17 his brother, then it would be out of character for the husband. For years he had exercised care 18 in his spending, such that the two houses purchased with the wife and family in mind were 19 purchased by way of mortgages which remain ongoing, despite many years having passed. Yet 20 shortly before the divorce Petition was filed he made a cash purchase of a house with YM and 21 thereafter yet another cash purchase purportedly on behalf of his brother. This is against the 22 background of his own evidence when in response to the suggestion that had he put some of 23 the monies towards paying off the mortgage on the matrimonial home and other property, the 24 loans would have been paid off, he said that this is not the agreement which he has with the 25 bank and that he keeps up to his obligation every month. Having assessed him over his many 26 days of giving evidence, noting his care for his mother, siblings and extended family and the 27 size of this new purchase, some eight bedrooms, I consider it very likely that this purchase was 28 part of a contingency plan. 29 30 131. I conclude that the funds paid by the husband towards the Mangrove Avenue property were not 31 due and owing to BE such that they constituted an employee expense. The funds constituted 32 matrimonial funds which can be traced into an after-acquired asset. __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 34 of 66 1 PROPERTIES IN JAMAICA 2 3 132. The following table lists the properties in Jamaica and the valuations provided: 4 Registered Owner Value JD Value KYD 1 Lot 1- Montpelier, Manchester Vol. 1432, Folio 277 Residential Land GE $4 mill. 2 Lot 175 Lower Works St. Elizabeth Vol. 1336 Folio 282 Residential – Apartment building GE and Mother $35 mill. 3 Lot 2 – Montpelier, Manchester Vol. 1432 Folio 278 Residential DS $3.2 mill $19,599.43 4 Lot 42 – Hodges, St. Elizabeth Vol. 1325, Folio 342 Residential (unfinished house) DS $10 mill $61,248.23 5 Fullerswood Vol. 1510 Folio 179 Commissioner of Lands (GE in possession) $16 - $18 mill $94,012,57- $105,764.14 5 6 133. The husband’s evidence is that of the properties in Jamaica, only one is owned by him and this 7 is jointly with his mother. This is item 2 in New Town, Lower Works, St. Elizabeth and is 8 rented for $80,000.00 per month. He said that his mother is the backbone of his success. It is 9 correct that she did not have a job but she made money from farming. Together they had 10 secured a loan of JD $18 million to purchase the property and there is a monthly loan repayment 11 of JD$233,697.34 which will end in 2032. The rental of the house covers a portion of the 12 mortgage and he pays the balance. 13 14 134. The husband also gave evidence that he bought and paid $250,000.00 for a ¼ acre lot of land 15 in Montpelier, Jamaica which is next to his family’s property. It was placed into the wife’s 16 name and is now valued at JD$3 million dollars. He has a piece next to hers which is valued at 17 about $5 million dollars. 18 19 135. He further stated that the house owned by the wife in Hodges, Black River, Jamaica was 20 purchased some ten years ago. He said that he was the one who stood surety by way of cash in __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 35 of 66 1 order for the wife to secure a loan to purchase it. It was in an unfinished state when she bought 2 it and at his expense the cesspit and windows were installed. He encouraged the wife to 3 complete it and rent it out to tenants but she has refused. The house remains incomplete to this 4 day because the wife despite his encouraging her to complete it, is loathe for anyone else to 5 live in her house except her. 6 7 136. He stated that construction of the house on the property at Fullerswood in Black River was 8 started by his father. The land on which it is built is referred to as “captured land” a term which 9 describes land which remains in the ownership of the Government of Jamaica, being land for 10 which no personal title has been obtained. 11 12 137. By the end of the hearing and as stated in closing submissions both parties now agree that they 13 should each keep their respective properties in Jamaica. 14 15 16 THE RAM TRUCK AND OTHER VEHICLES 17 18 138. On the 15th October 2019, the husband withdrew $66,000.00 from the TLM business account, 19 just under one half of the amount in the account. The money was used to purchase a Ram Truck 20 which is registered in the name of HD, a friend of the husband’s. The wife contends that the 21 truck is in fact owned by the husband. The husband states that it is owned by HD and that the 22 money was a loan. 23 24 139. In his May 2020 Affidavit the husband said this about the Ram Truck and other vehicles: 25 26 “I sometimes drive a Ram Truck which is not mine, and to correct the statements made, I 27 do own a Noah Van, which was not mentioned in the list for vehicles and which is my 28 personal vehicle. I also wish to point out that all of the other named vehicles, are what are 29 used in connection with the Landscaping business and at times, with the construction when 30 that business and the Event Planning were operational.” 31 32 33 140. The vehicles listed in his financial disclosure booklet are 5 company trucks and a personal 34 vehicle as follows: __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 36 of 66 Estimated value $ 1& 2 Two Isuzu vehicles 6,000.00 3 Mitsubishi vehicle 2,500.00 4 Peterbuilt 2000 8,000.00 5 International 2006 8,000.00 Personal Noah Bus 1,500.00 Total $ 26,600.00 1 2 141. In September of 2020, the wife’s vehicle, a 2013 Ford Explorer was in need of repairs. She 3 applied to the Court for temporary use of the Ram truck. The husband objected on the basis 4 that the truck was needed for his landscaping business. He said that in any event, the wife 5 needed a special category of license to drive it. The wife confirmed the inaccuracy of this 6 statement with the Department of Vehicle Licensing. 7 8 142. On the 17th September 2020, the Court made an Interim Order for her to have temporary use of 9 the truck. The terms included that the husband provide the wife with use of the Ram truck or a 10 rental vehicle of similar size. This was made in order for the wife to have transport to take ‘O’ 11 to and from school as well as to transport goods for her store. The husband initially refused to 12 do either. The wife sought the assistance of the police. The husband then rented a vehicle which 13 was not of similar size. The Order was amended to include a penal notice and the formal 14 assistance of the Police. The husband handed over a key for the truck to the Police. On the 15 arrival of the wife to collect the vehicle, the husband had moved it so that a large truck was 16 parked in front of it which completely blocked access to it. Photographs were produced 17 showing this. 18 19 143. The husband explained that he had not initially read the Order, that he was angry because he 20 needed the vehicle for use in his business. He had thrown the Order down but had subsequently 21 become aware of the alternative option and had thereafter endeavored to comply but the wife 22 refused to take the keys for the rental vehicle. 23 24 144. In his further Affidavit dated 16th December 2020, he stated that since the making of that 25 Interim Order his ability to carry on his landscaping business and earn a living is in jeopardy, 26 that he has lost two contracts as a result because at times the truck that he is renting for $250.00 27 per week is not available thus forcing him to postpone landscaping services to his clients. __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 37 of 66 1 145. He said that the truck is crucial to the current operations of the landscaping business and that 2 an arrangement had been entered into with Mr. HD in order to facilitate them both. By this 3 arrangement he would have a vehicle for use in the business and HD could ultimately export a 4 used vehicle to Jamaica rather than a new vehicle which would attract high rates of import duty. 5 6 146. He gave oral evidence that HD had approached him about purchasing the truck from Car City 7 dealership. He made a deal with him that he would loan him the money to purchase it and he 8 would drive it here in the Cayman Islands. He would use it for landscaping to pull the trailer 9 and to put landscaping equipment on it. The benefit to him would be to have the new vehicle 10 to use which would be attractive to clients rather than the old truck which he had. They had an 11 agreement which they signed in September 2019 before they purchased the truck in October 12

¶ [2019] They had a written agreement so that he could be assured that HD was serious. He said 13 that he paid for the vehicle by bank draft but when they went to Car City, he paid for the license 14 for the vehicle using his credit card. HD was there when he did that. 15 16 147. In cross-examination of the husband he agreed that neither of the two letters which he had 17 produced as to termination of gardening contracts gave a reason for the termination so as to 18 indicate that it was due to transportation difficulties. He said that despite needing the vehicle 19 for his business he did not just buy it himself because he never thought about buying a new 20 vehicle for himself. 21 22 148. He produced an agreement dated 1st September 2019 which consists of a single paragraph after 23 the identification of the parties as borrower and lender as follows: 24 25 “Terms and Conditions 26 The borrower promises to pay the lender six hundred dollars ($600.00) monthly for a 27 period of 110 months (9.2) years.” 28 29 149. It is not witnessed by any other person and had no other details. The husband acknowledged 30 that there was nothing on paper, reflective of the use agreement which he had described. 31 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 38 of 66 1 150. YM gave evidence that the truck does not belong to the husband, that he had leased it from 2 HD. She said that she had seen both of them drive it. 3 4 151. HD gave evidence that he is the owner of the Ram truck. He said that he went to Car City saw 5 the truck and liked it and borrowed the money, $66,000.00 from the husband who is his friend 6 in order to purchase it. The husband came to Car City with him and used his card to purchase 7 the vehicle. The husband allowed him to put the vehicle in his name right away. 8 9 152. He said that he is not employed and has been unemployed since coming to the Cayman Islands 10 from Jamaica close to three years ago. Over the past three years the only income he has had is 11 from his part time employment with the husband. He has never worked with anyone else and 12 is usually at home with his children. Whenever the husband has some work for him to do he 13 calls him. He said that he is now unavailable as he has a young baby. The last time that he did 14 some work for the husband was four months ago and he was paid $1,000.00 in cash. He is paid 15 at the rate of $10.00 an hour. 16 17 153. When asked how he was proposing to pay back the $66,000.00 he said that he was planning to 18 send the vehicle to Jamaica before the pandemic. His business is in Jamaica and that is where 19 he does his farming. He said that he knew that the Court had made an order for the wife to be 20 driving the vehicle now. He was wondering about the reason for this but he had not made any 21 attempt to come to Court to get the truck back. He said that he had left it up to the husband and 22 did not want to be here in Court. 23 24 154. He said that to date he had made no payments towards the vehicle and that there was no 25 agreement between them as to how he would repay the funds. He would pay when he gets the 26 money. They were going to discuss this. The vehicle is licensed and insured in his name and 27 he allowed the husband to drive it because he borrowed the loan from him and because he did 28 not want to send a brand new vehicle to Jamaica. He said that he wanted the vehicle to have 29 some mileage on it before it is sent to Jamaica. 30 31 155. He said he did not know how much CI$66,000.00 is in Jamaican dollars. There then followed 32 33 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 39 of 66 1 this sequence of questions and answers between Counsel for the wife and the witness: 2 Q.: So you didn’t check how much money you had to make in Jamaica 3 in order to pay Mr. E. back? 4 5 Mr. D.: If it takes me 10 years to pay back, it doesn’t matter. 6 7 Q.: It doesn’t matter to you or it doesn’t matter to him? 8 9 Mr. D.: It doesn’t matter to him either. 10 11 Q.: How do you know? 12 13 Mr. D.: I know Mr. E. 14 15 Q.: I am putting it you Mr. D. that you did not borrow this money from 16 Mr. E. 17 18 Mr. D. I did not borrow it? 19 20 Q.: No. 21 22 Mr. D.: What did I do? How did I get it? 23 24 Court: Please do not ask any questions, just answer. 25 26 Mr. D.: Okay. 27 28 Q.: I am putting it to you, that this is Mr. E.’s truck. He owns it. 29 30 Mr. D.: That’s what you are saying. 31 32 Q.: Yes, and that’s what I am putting to you. 33 34 Court: Do you agree or disagree. It’s a suggestion that Counsel makes 35 to you. Do you agree or disagree? 36 37 Mr. D.: About what? 38 39 Court: The suggestion that Counsel is putting to you. 40 41 Q.: That it’s Mr. E’s truck. You call it a van. I call it a truck. 42 I am saying that it is Mr. E’s’. He put it in your name because he 43 didn’t want to show his ownership. 44 45 Mr. D.: Is that what you are saying? 46 47 Q.: Yes. And is it correct? __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 40 of 66 1 2 Mr. D.: No. I can’t like the van and buy it? 3 4 Q.: You can like the van and you pay, but how much money do you 5 make at your farm per month in Jamaica? 6 7 Mr. D.: There is lots of money can be made with that van. 8 9 Q.: Do you have copies of any bank statements or anything with you? 10 11 Mr. D.: No. 12 13 Q.: Are you able to provide them to the court, your bank statements to 14 show what money you’ve got in Jamaica? 15 16 Mr. D.: I am not running it right now because I am in Cayman. My plan 17 was to send it to Jamaica to start the farm as a business. 18 19 Q.: You starting the business, you don’t have a business now? 20 21 Mr. D.: No. I am sending it to Jamaica to start my business. 22 23 Court: Do you have a business in Jamaica or not? 24 25 Mr. D.: I rent vehicles in Jamaica. 26 27 28 156. He testified that he has two vehicles in Jamaica which are rented some of the time and he would 29 sometimes earn JD$10,000.00 per day but sometimes they would not be rented for three 30 months. The money which he earns from the rental helps him with living expenses in the 31 Cayman Islands. 32 33 157. Subsequently he said that the money earned in Jamaica does not really assist with his living 34 expenses here. Instead he gets money from his wife who is working here and from helping the 35 husband on and off. 36 37 158. He said that despite his owing $66,000.00 to the husband he had received the $1,000.00 from 38 him for work done for him. He said that rather than the husband keeping it towards the loan, 39 the money had been given to him because he needed it. 40 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 41 of 66 1 159. He said that when the time is right he will pay him back and that will be when he starts doing 2 his business in Jamaica. He has a group 4 license here. It was put to him that he did not need 3 such a license to drive the Ram truck here in the Cayman Islands whereupon he said that he 4 has further plans to drive a truck here. He said that as far as he was aware the husband had not 5 taken out anything to protect himself and had not registered anything on the title. 6 7 160. He answered yes to the question whether he found it unusual that the husband would give him 8 $66,000.00, allow him to work for him, pay him for the work that he did, while he still owed 9 him this money, not paying him a cent. He said that the husband is a good man. The husband 10 also paid for the insurance and the license. He paid for everything. 11 12 161. HD said further that he has a two-bedroom house in Jamaica which is unfinished. He did not 13 get a loan or mortgage to build it. His wife did. He did not do so because he could not qualify 14 for the loan then because of his earnings. He runs a taxi and does a lot of other things there. 15 He said that he is also putting in another two bedrooms on that house and that his wife needs 16 to work to pay off for these two extra bedrooms. He was asked the reason why he had spent 17 $66,000.00 on a truck if he needed to finish his house and needed monies to live off, why would 18 he spend that kind of money. He replied that you have to look on the long term. 19 20 162. He agreed that the husband drives a small 2015 Noah vehicle and that the Ram truck is a 2019 21 vehicle. He said that he did not find it unusual that the husband would lend him this money to 22 buy a 2019 special edition Ram truck while the husband drove a 2015 Noah. He said that he 23 explained to the husband that he wanted the truck to send to Jamaica because he wanted to start 24 up a business. He denied that he was speaking untruthfully and that in fact the truck was owned 25 by the husband. 26 27 163. He was asked on more than one occasion whether he had signed anything in relation to 28 borrowing the money from the husband and he said categorically no he did not sign anything. 29 He was then shown the contract document which had been produced by the husband and he 30 identified his signature on it. He said that it was for him to pay back for the truck and he was 31 supposed to be paying back $600.00 per month. He said that the basis on which he would be 32 paying back the $600.00 was when he got the truck to Jamaica. He agreed that there was __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 42 of 66 1 nothing in the agreement referring to that. He said that when he was at Car City, he saw the 2 husband take out his card and hand it over to pay for the truck. It was put to him that the truck 3 was paid for by bank draft and he said he did not know of the husband using any draft and did 4 not see him use a cheque. He maintained that he saw him take a card out of his pocket. He said 5 he had not remembered this agreement document when he answered earlier. He said that he 6 had signed this document after the truck was bought. It was then pointed out to him that the 7 document was dated 1st September 2019 which was more than a month before the truck was 8 actually bought. 9 10 164. Counsel for the wife put the following question to him: 11 12 “Q.: You are at home with your baby. You haven’t had a work permit since you came 13 to the Cayman Islands. You are not earning this kind of money in Jamaica. How 14 could you repay $600 a week to Mr. E.? 15 16 Mr. D.: As things go by, better come.” 17 18 165. In answer to questions from the Court, HD said that he had known the husband for about 3 19 years. He said that he had known him in Jamaica but they were not really close, he used to see 20 him and a good friend here introduced them when he came to the Cayman Islands. Since he 21 has been here, they have a very good relationship. 22 23 166. I observed HD carefully as he gave evidence. I found it difficult to accept his evidence. The 24 questions and answers set out in some detail above are illustrative of his demeanour in the 25 witness box. I did not find him to be a credible witness. I found his answers incredulous in 26 many respects. Firstly the agreement which he described simply made no commercial sense. 27 That $66,000.00 would be loaned to someone who is out of work, has not been employed for 28 three years except for odd jobs, who is in such need of funds that he had to be paid $1,000.00 29 done at $10.00 an hour four months ago, who has no means to repay except for a possible 30 farming business which is not one which is ongoing but is one which he intends to start. 31 32 167. The agreement which HD described was one that the funds would be paid sometime in the 33 future after his farming business commenced. This appeared to be inconsistent with the written 34 agreement which required payment at $600.00 per month. Even if it could be said to have been __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 43 of 66 1 done out of friendship and because the husband is “a good man”, there were inconsistencies in 2 the details as to how the funds were paid for the vehicle by bank draft or credit card and when 3 the agreement was signed. HD claimed that the payment had been effected by credit card and 4 said that he personally witnessed this payment being made. The husband who gave evidence 5 after HD seemed to invite the conclusion that HD perhaps made a mistake between the payment 6 for the vehicle and the payment for the license. I have considered this, but it still seems 7 surprising that the borrower of the loan did not know how the payment was going to be effected. 8 9 168. It was also surprising that HD would have forgotten that there was a written agreement which 10 he had signed and when he had signed it. HD struck me as an intelligent, and articulate young 11 man. He was never at a loss for words. I did not consider this to be an issue of memory as to 12 what had actually occurred but one in relation to getting the agreed story straight. Despite his 13 registered and declared ownership of the vehicle, he was reluctant to come to Court to challenge 14 its use or to give evidence about it. 15 16 169. In summary, I did not find HD to be a credible witness and do not accept his evidence. 17 18 170. In respect of the evidence of the husband on this matter, it is unusual that he would have loaned 19 these funds in this way. His claim is that the vehicle is integral to his landscaping business such 20 that he is losing business because of its absence. This is inconsistent with the casualness of his 21 initial position which was that he sometimes drives a Ram truck. 22 23 171. If the vehicle is so necessary to his business, it is not surprising that he would buy it but it is 24 surprising that he would do so for someone else. The circumstances of the loan are also 25 questionable, that this would have been loaned, at such a high level, to someone who is 26 unemployed and had been mostly unemployed for the past three years, has no regular monthly 27 income, is largely a stay-at-home father and is in need of funds, for it to be used to work on a 28 farm in Jamaica sometime in the future, which farm has not yet been started appears to be 29 entirely inconsistent with the astute business man that the husband appears to have been over 30 the years. It is also of note that no lien had been placed on the vehicle by the husband. 31 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 44 of 66 1 172. This arrangement and agreement has all the hallmarks of a contrivance to conceal the fact of 2 the ownership of the husband of the vehicle. In any event the funds loaned were withdrawn 3 from the TLM account and appear to be funds earned by that business. There is no evidence or 4 suggestion that these funds belonged other than to the business. These funds constitute 5 matrimonial property which are traceable into the Ram vehicle. 6 7 THE WIFE’S VEHICLE 8 9 173. The wife initially rented a vehicle for $1,719.84 and paid $1,143.00 towards repairs of her own 10 vehicle. She sold her vehicle on 19th November 2020 for $12,000.00. She gave no reason for 11 this sale which would have left her without a means of transport. She asks that the Court make 12 an order that this amount be set aside for O’s college fees because there is no pool of funds 13 remaining for this. 14 15 174. The husband says that he values his daughter and wants only the best for her. He says that he 16 undertakes to fund his daughters’ education and remains committed to doing so at all costs.23 17 He ask that the Court deny the request of the wife and that she be made to apply the funds 18 towards purchasing her own transport. He has provided proof that while the wife’s vehicle was 19 at the motor shop for repairs, in order to expedite its completion so that the return of the Ram 20 truck to him could be advanced, he went into the shop and paid one half of the total repair cost 21 of $4,634.88. 22 23 175. During the cross-examination of the husband, he agreed that he had failed to disclose until 24 specifically requested to provide details of a further US$ account which in his name. This 25 contains US funds and as at 31st December 2020, it had a balance of US$52,789.00. He said 26 that the funds in this account belong to his daughter ‘O’ and that he had been saving these funds 27 for her from her birth. He testified that he had no recollection of ever withdrawing money from 28 this account and that he had not felt it necessary to disclose this account because it is his 29 daughter’s account. His attention was drawn to an amount withdrawn on the 16th October 2020 30 which from the nature of the purchase, for novelty lights could not have been a purchase by 23 Updating Affidavit of H. dated 18th December 2020 paragraph 26 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 45 of 66 1 her. Despite this withdrawal, he was asked and said that he would be prepared to place O’s 2 name on this account. He said that this was something which should have been done already. 3 4 176. Taking the husband at his word that he will do this, there would already be in place an amount 5 for O’s use. 6 7 177. I accept the submission of the husband on this point and would decline the proposed 8 establishment of a separate account for ‘O’ into which the $12,000.00 from the sale of the 9 wife’s vehicle is to be placed. I consider that all the vehicles and the proceeds from the sale of 10 the wife’s vehicle constitute matrimonial property. 11 12 EARNINGS OF THE BUSINESSES 13 14 178. At the time of the first hearing, the husband’s evidence was that the construction and event 15 planning business were not operational over the course of the pandemic and that the only 16 business in operation was the landscaping business. He said that E landscaping has two 17 employees and makes less money than TLM which has three full time employees and they add 18 others as necessary. He said he bought this second business from someone who was leaving 19 the Island and kept the contacts. 20 21 179. He said that he was not able to provide the earnings from the landscaping or construction 22 businesses and that the event planning business relies heavily on tourism so has seen a down 23 turn since the pandemic. 24 25 26 THE CONSTRUCTION BUSINESS 27 28 180. At the time of the interim maintenance hearing the husband provided account documentation 29 for the construction business on which had been written the words “not operational”. The thrust 30 of his evidence at the time of that hearing was that the business was dormant because of 31 pandemic issues and was not earning any money. 32 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 46 of 66 1 181. During this hearing in the face of additional account documentation which showed significant 2 activity on the account in particular in relation to a large ongoing project which had commenced 3 before the onset of the pandemic, he sought to explain that the business was not being operated 4 by him but rather by one CB. The final evidential position is that the project generated close to 5 $2 million of deposits into the construction business account and upon completion the profits 6 are to be shared between the husband and CB in an as yet undetermined ratio. 7 8 182. In his signed response to Requests for Further and Better Particulars, dated 13th November 9 2020, the husband stated: 10 11 “I had discussions in early August with CB, CB was hired as Technical Administrative 12 Assistant and who was the Project Manager employed by E. Construction, since its coming 13 into business and at the time, started taking on larger projects. We came to an agreement 14 that he would take on a larger share of the profits by investing his earnings in the company 15 and then giving me only a percentage of the profit after expenses. That way, I didn’t have 16 to be involved in the day to day running of the construction company and therefore did not 17 any longer consider it “my company” as he had taken over the lead; that I had previously 18 performed in this company. That is why I referred to it previously as “not operational”. 19 20 EVIDENCE OF CB 21 22 183. CB gave evidence that since 2017 he has worked with the husband’s construction business in 23 the position of Technical Administrative Assistant, a title which he has held for more than two 24 years through to the present. He said that his duties have remained somewhat consistent, that 25 nothing in relation to his employment changed in 2019 and that he did not start taking on 26 additional duties at that time. He has pretty much from day one and continues to do all the 27 liaison between architects and other construction professionals. His earnings, which are in the 28 form of a commission, vary, depending on the nature of a project. 29 30 184. In response to the question whether he had ever invested any of his earnings back into the 31 construction business in order to own a portion of the business, he said that it is more so that 32 instead of cash, he buys equipment, such as computers and office supplies for the office. There 33 has never been a time when he has given Mr. E. a percentage of the profits that have been made 34 for the business and he kept the balance or invested the balance back in the business. 35 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 47 of 66 1 185. He said that on paper he does not regard himself as a part owner of the business but in principle 2 there is a gentleman’s agreement. This is to the effect that if he brings in a client based on his 3 liaison with the technical people in the industry, then his returns will be different from what is 4 regularly the case. He would get more salary and a commission. He said that he has never 5 taken the lead of the business over from Mr. E. who is the owner of it. 6 7 186. He said that their discussions as to sharing the profits of the business had not yet occurred. Mr. 8 E. knows what is happening but is not involved in the day to day running of the business. Mr. 9 CB said that he is not a signatory of the business accounts, so if a cheque is required for 10 payment, Mr. E. would have to sign it. His commission payments are signed by Mr. E. He is 11 not able to make any withdrawals from the business account unless Mr. E, has signed them. 12 Mr. E. would know about any funds coming out of the construction business account. He has 13 never withdrawn cash from the accounts of the business as he is not authorised to do that. 14 15 187. In the course of his evidence the husband was cross-examined extensively on this business. He 16 explained that he did not know the details of the amounts paid for the most recent contract in 17 which the construction business was engaged and that he did not know the value of the contract. 18 He said that it was all being handled by CB and he did not have these matters in his head. 19 20 188. In the course of cross-examination on the funds used after the Petition was filed, there was this 21 exchange on the 12th January 2021: 22 23 Q.: From the 30th September 2019 to the 31st January 2020, your account, E. 24 Construction went from $310,385.75 to $529.00. 25 26 Mr. E.: Have you seen the recent account where it went from $1 million to --. 27 28 Q.: I haven’t seen any account with $1 million at all. 29 30 Mr. E.: That’s the same one C. was telling you about with the contract. 31 32 So did you see where the money from …going into the account? 33 34 Q.: So Mr. E., are you telling us now that the deposit that was paid for that 35 contract is $1 million? 36 37 Mr. E.: No, I am not telling you it is. __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 48 of 66 1 You asked me how much the contract value, so I am just telling --. 2 3 Q.: No I didn’t. 4 5 Mr. E.: What you are trying explain to me that there was that money in the account 6 and it goes down to that. But now you asked me what did, I do, with that 7 money. 8 9 Q.: No, I haven’t. 10 I am interested to know which account am I supposed to see that there is 11 $1 million in. Which account is that? 12 13 Mr. E.: I did not tell you that there is an account with $1 million. 14 15 Q.: You asked me if I saw the account that had a million dollars in it, and I 16 said, no. 17 18 Mr. E.: I am just referring to this same account with the contract that he told that 19 it was. 20 21 Q.: So you got a million on that contract. You see earlier you told me you 22 don’t know what percentage of that contract you have had. 23 24 Mr. E.: Yes, I did. 25 26 Q.: How money was paid etc., now are you telling me that $1 million was paid. 27 28 Mr. E.: No I didn’t tell you that. 29 30 Q.: So which account am I supposed to see that has a million in it? Which 31 account Mr. E.? 32 33 My Lady can you direct the Witness to answer, please? 34 35 Court: I would expect he is thinking Mrs. Brooks. 36 37 Q.: I am sorry. 38 39 Mr. E.: There is no account with a million dollars. I was just trying to explain 40 something to you. 41 42 Q.: You are trying to explain what to me. You asked me if I had seen the 43 account that has the million in it. 44 45 Mr. E.: No. 46 47 Court: I beg your pardon? You dropped your voice. __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 49 of 66 1 Mr. E.: She was asking me about this account Your Honour, the E Construction. 2 3 Court: And you said, “Have you seen the account with a million dollars”. You 4 did say that Mr. E. So Counsel is asking you which account you are talking 5 about. 6 7 Mr. E.: I just referring to this same account. 8 9 Q.: So at one stage there was a million dollars in that account? 10 11 Mr. E.: No. 12 I was just talking about the contract that C. was talking about. 13 14 Q.: Well you didn’t ask me, have I seen the contract for a million dollars. 15 16 Mr. E.: The contract. I am just referring to the contract. 17 18 Q.: You are just not telling the truth are you, and you are under your oath.” 19 20 189. The husband was cross-examined about his 13th November 2020 response to the Request for 21 Further and Better Particulars mentioned above in which he said “I have not been operating 22 the construction business and as previously stated, the landscaping business is the only one 23 now generating income.” 24 25 190. He said that what he meant by this is that the business was not under his control but under the 26 control of CB. He was asked about bank statements for the construction business which he said 27 he had previously provided but which had not been received by Counsel for the wife. The 28 hearing was delayed on a number of occasions for him to produce them. 29 30 191. On the 4th February 2021 he produced additional bank statements. When asked about them he 31 acknowledged that the statements showed the deposit of $29,500.00 on the 13th November 32

¶ [2019] On the 19th February 2020, the account had received $193,750.00 and a second deposit 33 of $400,000.00. 34 35 192. He admitted that there was substantial income coming into this business but said that he was 36 not the one operating it, it was being run by CB. He said that by referring previously to a million 37 dollars in the account, he was just referring to the fact that monies are received for the purpose 38 of a project and that it is gone within a week because it is spent on the project. He agreed to the __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 50 of 66 1 suggestion that on the ongoing project over $1.95 million had been deposited into the account 2 for the construction business. 3 4 193. He said that he had not thought that this was something which he should declare to the Court 5 when he signed the 13th November 2020 document because CB is dealing with the construction 6 business and the ongoing project. He has nothing to do with that. The only thing he does is to 7 sign whatever cheques need to be signed. He has no interest and does not deal with it. At the 8 end of the project whatever profit is left, he will get something out of that. 9 10 194. As at 31st December 2020 only $89,227.00 was left. He said that this was because the money 11 had been spent on the project. He accepted that the business is his but maintained that he is not 12 operating it. He admitted that he knew that over $1 million had been received but denied that 13 his intention had been to mislead the Court by failing to disclose the statements previously. He 14 said that he thought that all the statements had been previously disclosed. He agreed that the 15 bank statements showed receipt of funds on the 22nd April 2020 of four cheques for a total of 16 $10,604.00. When asked whether this was not evidence of the business making money he said 17 that he would have to find out from CB. 18 19 195. He agreed that amounts had been deposited into the account in respect of the ongoing project 20 in February and July 2020 before the interim maintenance hearing. He said he knew about the 21 project at the time and knew that money was being paid towards it. 22 23 196. In response to the question as to the reason he had not mentioned the project during that hearing, 24 he said that CB had been dealing with it. He said that to date, he has received three $5,000.00 25 cheques on separate occasions. He does not keep track of amounts paid out and relies entirely 26 on CB for this. He sometimes writes a number of blank cheques and gives them to CB. 27 28 197. He agreed that at the time that he wrote not operational on the E. Construction account, it had 29 only $529.57 that was on the 31st January 2020 but that nineteen days later the account received 30 a deposit of $200,000.00. 31 32 198. In re-examination, he said that he received the funds of $15,000.00 because he asked CB for 33 these amounts. This will be deducted from what he is to receive at the end of the project. __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 51 of 66 1 199. In response to questions from the Court he said that he had been in the construction industry 2 for 15-16 years. He said that he did not know the anticipated profit on the ongoing construction 3 project. He said that he has no idea because this is dependent on when you spend whatever the 4 project requires, whatever is left over after the project is completed. He said that you cannot 5 determine the profit margin before the project is completed. He said that he did not know 6 generally the percentage profit on a construction project such as a house. He said he could not 7 say how the profit is going to be divided at the end between himself and CB because they have 8 not yet discussed this. 9 10 200. I found the evidence of the husband on this aspect singularly unconvincing. He appeared to be 11 bent on distancing himself from the business in circumstances where it is plain that he cannot 12 be. He maintains control over the bank accounts for the business. CB does not have access to 13 this account without a signature from him. The project was ongoing before and after the interim 14 maintenance hearing where the position he put forward was that the business account was not 15 operational. It is fair to say that had Counsel for the wife not persisted in the search for 16 documentation the true picture would not have been known. As to his not being aware of what 17 was going on and leaving everything to CB, this was a single project and moreover one of 18 significant value. Additionally I thought it surprising that after 15-16 years in the construction 19 industry he was not able to give a range as to the likely profit margin on a project of this size. 20 21 201. Regrettably it appears to me that he was being less than candid as to the on-going operation of 22 this business and that he would very much wish to give the Court the impression that his earning 23 potential from this business was and is limited. This does not appear to be the case. I do 24 however accept his evidence that the deposits initially made on a construction project are used 25 towards project expenses, to include the purchase of materials and payment of labour costs. I 26 accept that it is at the end of a project after all expenses have been defrayed that profit is 27 calculated to a firm degree and realised. 28 29 PENSION ENTITLEMENTS 30 202. A pension statement provided by the wife indicates that as at 30th April 2020, her pension 31 entitlement was $39,855.24. Following certain redemptions, as at 30th October 2020, it was __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 52 of 66 1 $25,212.24. The husband’s pension entitlement as at 30th September 2020 was $125,762.78. 2 Both parties agree that they should each retain their respective entitlements. 3 4 SUBMISSIONS 5 6 203. Counsel on behalf of the wife pointed to the apparent failures of the husband to disclose the 7 fact that the construction business had been operative prior to and over the period of time when 8 the interim order had been made. Between February to December 2020, a period of 11 months 9 the business account had received multiple deposits, amounting to some $2.4 million, 10 of 12 10 of these deposits appeared to be from the (purchaser of the) project. 11 12 204. Counsel submitted that the husband has a much larger earning capacity than the wife and that 13 after the divorce is granted, she will have financial needs, obligations and responsibilities 14 including having to travel to assist ‘O’ to settle into college. It is submitted further that the 15 parties had a fairly high standard of living prior to the breakdown of the marriage and that it 16 would be inequitable to allow the husband to continue at that standard while not allowing the 17 wife to do so. 18 19 205. Counsel submitted also that the wife has always looked after the needs of the child and will 20 continue to do so. This it is said will reduce her earning capacity. 21 22 206. Counsel invites the Court to draw negative inferences from the failure to provide full and frank 23 disclosure and relies on the case of Glennis Hydes v. Halfrank Hydes24. Counsel highlights 24 the following passage: 25 26 “15. Section 19 of the Matrimonial Causes Law (2005 Revision) (“the Law”) requires 27 the Court to have regard, first of all, to the best interests of any children of the 28 marriage and thereafter to the responsibilities, needs, financial and other 29 resources, actual and potential earning power and the deserts of the parties. In 30 exercising its discretion pursuant to section 19, of the Law, it is clear that where 31 there is general failure by a husband to give full and frank disclosure in the course 32 of the case the court may infer the existence of assets denied by such husband to 33 exist or which he has failed to disclose (see Baker v Baker (1995) 2 FLR 829). It 34 is also clear that the Court may take into account a husband’s earning potential 24 Grand Court Judgment dated 4th March 2009, D23/2007 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 53 of 66 1 and fundraising capability, on the basis of his apparent business acumen exhibited 2 in the past, to make fair and proper provision for a wife. In such a case the Court 3 does not have to be in a position to quantify the assets dissipated or the existence 4 of which has not been disclosed or denied or to quantify the future prospects but 5 may draw inferences made on this basis for the purposes of making a fair and 6 proper division between the parties (see Rye v Rye [2000] 2 FLR 981 referred to 7 in B v B [2007] EWHC 594).” 8 9 207. In closing submissions Counsel on behalf of the husband submits that the allegations leveled 10 at him are purely motivated by bitterness and a commitment to exact revenge. The feeling of 11 the husband is that he was simply the “work horse’ and there was no appreciation by the wife 12 of how hard he worked and the financial risks that he had undertaken in order that they would 13 have a comfortable life. The husband maintains that the reason for the non-inclusion of the wife 14 on a number of real estate and other business documents is not because he was seeking to 15 exclude her but that she chose not to be involved and did not encourage or support his 16 endeavors. It is his submission that in respect of the Mahogany Way property, the wife made 17 no financial contribution to its acquisition or to the payment of the mortgage thereafter. 18 19 208. Counsel asks the Court to take into account the husband’s statement as to how any monies 20 which came into his account are disbursed and to accept as truthful his statements and 21 Affidavits made in the matter. It is urged that his offer is a fair and reasonable one in all the 22 circumstances. It is said that the Court ought not to accede to the application of the wife as it is 23 uncalled for and is an effort to use the power and authority of the Court for reasons which are 24 without merit. Additionally, Counsel on behalf of the husband requests that the Court take into 25 account the contents of his Affidavit of 9th October 2020 as it relates to the survival of his main 26 source of income and the one upon which he will need to rely in order to pay his financial 27 obligations including any financial orders from the Court. 28 29 CONCLUSIONS AS TO MATRIMONIAL PROPERTY 30 31 209. Having considered all of the evidence and the submissions made I conclude in each case where 32 property is identified to be a matrimonial asset, that given the way the parties conducted their 33 lives as outlined above, the manner in which the businesses were started and the investments __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 54 of 66 1 made, that there is no basis to depart from the yard stick of equality. Each is entitled to one half 2 share and each is responsible for one half of the mortgage debts. I also conclude that it appears 3 that the husband has endeavored to dissipate and hide matrimonial funds. 4 5 210. There is agreement that each will retain the properties in their respective names in Jamaica and 6 their respective pensions. I do note that the values are higher in respect of the properties held 7 in Jamaica by the husband than those held by the wife. In respect of the Cayman Islands 8 properties an equal division would be as follows: 9 Property Value $ Less Mortgage $ Equity W H. 1 FMH 312,000.00 90, 653.55 221,000.00 110,500.00 110,500.00 2 Breakers less 3/10th share 173,600.00 173,600.00 86,800.00 86,800.00 3 Spotts- bare land 70,000.00 70,000.00 35, 500.00 35,500.00 4 Mahogany Way 240,000.00 92,120.00 147,880.00 73,940.00 73,940.00 5 Mangrove Avenue/$ spent from matrimonial assets 300,000.00 300,000.00 150,000.00 150,000.00 $912,480.00 $456,740.00 $456,740.00 10 11 211. The wife seeks properties in addition to a significant lump sum. It is said that the lump sum is 12 sought bearing in mind the husband’s prior dissipation of the matrimonial funds. However, care 13 must be taken not to double count. The funds withdrawn from the business accounts which 14 were initially unexplained were to a large extent except for the purchase of the vehicle, put 15 towards and have been traced into some of the above properties. The value of these properties 16 is to be shared with the wife. The husband’s explanation for a number of other withdrawals 17 from the construction business account is project expenses.25 I do not consider that this is an 18 explanation which I can reject out of hand given the nature of that business. The wife has also 19 submitted that in considering a lump sum payment the Court should have regard to the over $2 20 million paid into that business account over the eleven month period February 2020 to 21 December 2020. While noting that this is a period after the date of separation, again the 22 evidence was that these funds were staged payments which would be used for the ongoing 25 Paragraph 14, of Responses to Requests for Further and Better Particulars dated 13th November 2020 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 55 of 66 1 project pending the completion when the profit would be calculated. In these circumstances to 2 arrive at a lump sum figure on the basis of amounts withdrawn or deposited may not be an 3 entirely fair approach. 4 5 212. I have considered the division which is fair and reasonable in all the circumstances of this case. 6 The husband has offered the matrimonial home with an arrangement by which he would 7 continue to pay the mortgage for some years into the future. Not only would this be the 8 antithesis of independent living, it is unfortunately the case that the husband’s record as to 9 payment of bills on time is doubtful. 10 11 213. In cross–examination, Counsel for the wife challenged him as to his evidence that he had been 12 making the mortgage payments on time and referred to the loan account documents produced. 13 He said that he has an account at the bank from which the mortgage payment amount is 14 withdrawn. If there is insufficient money in this account, the account manager would call and 15 remind him that he had forgotten to transfer funds and he would do this right away. He agreed 16 that sometimes there would be late fees for a couple days. He was also asked about the 17 mortgage account for Mahogany Way and the recordings thereon which stated payments past 18 due. He said that Counsel was misreading the document, that everything was up to date on the 19 account and that he has a good reputation at the bank. Overall I formed the view that he does 20 make payments late from time to time. He is well meaning and willing but may forget to pay 21 the bills in the course of busy work days. 22 23 214. My view is that the better course is for each party to make any mortgage payments or future 24 bank arrangements on an individual and separate basis. The mortgage on the FMH is $1,262.01, 25 on the Mahogany Way property it is $1,008.63, a total of $2,270.64. 26 27 215. The wife seeks both the FMH and the Mahogany Way property free and clear from mortgages. 28 This would require the husband to meet all of the outstanding matrimonial debt and make 29 payments of about $180,000.00. This is in circumstances where one of these properties is 30 income producing, with sufficient funds to meet the monthly mortgage payments with a 31 substantial balance remaining. In my view it would be a fair outcome for the husband to meet __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 56 of 66 1 one half of the matrimonial debt and to do so by paying off the mortgage balance on the FMH. 2 The wife is to meet the other half of this debt. 3 4 216. The husband seeks to retain the Mahogany Way property which would mean that he would 5 have two income bearing properties in the Cayman Islands and a possible third when Mangrove 6 Avenue is completed and the wife would have none. This cannot be a fair outcome. In 7 considering all options, though income producing, I cannot see that it would be practical for 8 the wife to acquire the Breakers property in which YM is a part owner or the Mangrove Avenue 9 property. 10 11 217. I conclude that the wife is to receive: $ 1 The FMH - (all of equity) 221.000.00 2 Mahogany Way- (all of equity) 147,880.00 3 ½ of the proceeds of the bare land 35, 000.00 Total - $403,880. 00 12 13 218. The husband would receive: 14 $ 1 Breakers - (all of 70%) 173,600.00 2 Mangrove Avenue- 300,000.00 3 ½ of the proceeds of the bare land 35,000.00 Total - $508,600.00 15 16 219. As a result of the unequal division, the wife would be entitled to receive a lump sum payment 17 of $51,860.00 which represents the difference in the value of the properties between both. The 18 husband will have the option of paying one half the value of the bare land to the wife should 19 he wish to retain it. 20 21 220. As to the division of the businesses, it is agreed by both, that the wife will retain the retail 22 establishment which she operates and all income in hand as at the date of separation. She has 23 declined all other businesses. The husband will therefore retain the four other businesses. __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 57 of 66 1 Having reviewed the bank statements from all the businesses, I accept the evidence of the 2 husband that the two landscaping businesses combined do not make as much money as the 3 retail business operated by the wife. However there is still a disparity between what each will 4 have. The husband has a distinct financial advantage in retaining both the construction and the 5 event planning businesses, which had a combined account with a large balance as at the date 6 of separation and have far greater earning potential. He is also retaining all of the physical 7 assets of these businesses to include vehicles, tools and other equipment. The event planning 8 business has a quantity of assets which were said to be stored at the FMH. No figures are 9 provided to allow for a calculation as to values to be shared. 10 11 221. In respect of the vehicles, it emerged during the evidence that the Noah vehicle driven by the 12 husband is said to be owned by YM. Excluding this vehicle valued at $1,500.00, the combined 13 value of all the vehicles used in the businesses is thus $25,500.00 of which one half would be 14 $12,750.00. 15 16 17 222. The cash received or spent on vehicles is as follows: Wife’s vehicle (proceeds of sale) $12,000.00 Money spent on Ram Truck $66,000.00 Total $78,000.00 18 19 20 223. The Ram truck was purchased from the TLM business account. As at the date of the filing of 21 the Petition, using the date of the 30th September 2019, the balance on that account was 22 $133,690.18. There is no evidence as is the case for the construction business account that this 23 account contained funds to be paid towards project expenses. An equal division at the time of 24 separation would mean that each would have been entitled to receive $66,845.09. However of 25 the balance remaining in that account a further $50,000.00 was withdrawn on the 26th 26 November 2019 and paid towards the Mangrove Avenue property. Thus that $50,000.00 is 27 already taken into account for each party in respect of the real property conclusions detailed 28 above. Deducting this, each party would therefore be entitled to receive $41,845.0026 from this 26 $66,845 less $25,000.00 =$41, 845.00 for each __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 58 of 66 1 account. Part of that money may be traced into the Ram truck. In the hands of the wife the truck 2 at $66,000.00 is $24,155.00 more that she should receive. She also has $12,000.00, one half of 3 which should be shared with the husband for a total of $30,155.00 more than she should receive. 4 5 224. The husband seeks the return of the truck and refers to the critical need for it for his landscaping 6 business. It may be returned to him on his payment to the wife of $35,845.0027. With this 7 amount in addition to the $12,000.00 which she retains, the wife will have the option of 8 purchasing a new vehicle of her choice. 9 10 225. Should the husband not pay this sum to the wife in 30 days from the date of the Order arising 11 from this judgment, the truck is to be transferred into the wife’s name. This will reduce any 12 lump sum payment which is payable by him to her by $30,155.00. 13 14 INCOME AND EXPENDITURE OF WIFE 15 16 226. The wife previously gave her gross earnings from the business she operates as being about 17 $3,800.00. Following deductions for rent, storage, utilities, insurance and re-stocking costs she 18 gave her net earnings as being about $1,000.00 per month. However a previous review of her 19 bank statements showed significant earnings between December 2018 and January 2019 with 20 the account balance rising from $8,515.67 on 29th November 2019 to $29,112.15 on 31st 21 January 2020.28 She explained that this was seasonal and that her earnings would be higher 22 over Christmas and New Year. In order to reflect her higher earnings over these periods, I 23 assessed her income in July 2020 as being on average $2,000.00 per month. 24 25 227. The updated bank statements provided, for the period July 2020 to January 2021, show a 26 starting balance of $31,386.87. The balance as at 1st December 2020 was $24,414.35.29 27 Following what appears to be December sales the balance after the December period was on 28 4th January 2021, $57,607.55, indicating receipts of over $30,000.00 for the Christmas period. 29 30 228. The business is therefore able to generate significant income but only at certain times. 27 $41,845 less $6,000.00 = $35,845.00 28 Account ending in 717 29 Account ending in 717 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 59 of 66 1 229. Her monthly expenses to include mortgage on the FMH were previously indicated to be: 2 3 W’s Monthly Expenses: $ Food/Groceries 600.00 Hair & Personal expenses 370.00 Family vacation 400.00 Lunch 300.00 Social Expenses 100.00 Gasoline/car/insurance 341.66 Health Insurance 160.00 Life Insurance 63.10 Pension 60.00 Hospital bill 250.00 Phone 80.00 Medication 50.00 Clothing/shoes 250.00 House Mortgage (Full amount is $1,241.34) 841.34 House insurance 288.16 Utilities-Electricity 133.34 Water 58.00 Gardening/Yard maintenance 150.00 Cooking gas 82.00 Total 4,977.60 4 5 230. No updated information has been provided. Deducting the mortgage payments which would no 6 longer be payable or would be covered by rental income, her expenses would be about 7 $4,000.00 per month with some room for savings, for example on family vacations. There is 8 no application for spousal maintenance. 9 10 INCOME AND EXPENDITURE OF HUSBAND 11 12 231. By his Affidavit of 20th May 2020, the husband denied having several sources of income. He 13 said that the only business that he had in operation was the landscaping business. The other 14 businesses – that is, the construction and event-planning businesses, were no longer in 15 operation and had not been for some time. He gave his income from the landscaping business 16 as $3,500 to $4,000 per month, from which he pays five full-time employees a total of 17 $2,365.00. Thus, his income and expenditure were then given as: __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 60 of 66 1 2 3 4 5 6 7 8 9 232. In the financial disclosure form dated 2nd February 2020, he gave his overall income as 10 $5,000.00. He listed overall expenses as $8,698.00 consisting of the following: 11 Amount $ Mortgage or rent (two properties) 2,000.00 Home Insurance (two properties) 422.00 Electricity

¶ [650] 00 Water 600.00 Other utilities 100.00 Internet 100.00 Clothing and Shoes 150.00 Toiletries and cosmetics 75.00 Pharmaceutical and uncovered medical and therapeutic expenses 175.00 Hair dressing 30.00 Dental 50.00 Work lunches 200.00 Mobile phone 150.00 Automobile- licenses, insurances, gas, repairs 2,787.50 Overall Expenses 8, 698.00 12 13 14 233. As detailed in the earlier judgment and continuing through to the present, the level of his 15 income remains unclear but is evidently much higher than he declared. The expenses of 16 insurance, electricity, water and utilities were said to be for all the properties. Excluding 17 property and business expenses, his personal expenses amount to $930.00. 18 INCOME $ Landscaping business 3,500.00 Rental income 2,400.00 EXPENSES Employees 2,365.00 Utilities 480.00 Health and Pension 150.00 Total 2,905.00 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 61 of 66 1 234. In cross-examination in the course of this hearing he said that perhaps he had exaggerated 2 previously when he had said on oath that the event planning business sometimes made as much 3 as $30,000.00 per month. I had difficulty accepting this late attempt to reduce the earnings of 4 this business. 5 6 235. While his testimony is accepted that the pandemic has resulted in the closure of the tourism 7 industry which has significantly impacted this business, it is plain that in the future once matters 8 return to normal, there is the potential for him to earn significant sums of money, more so than 9 the wife. 10 11 CONSIDERATIONS 12 13 236. I have considered all the evidence and submissions made in this case, some of which I have not 14 detailed herein. I am to give due consideration to the general principles in section 19 of the 15 Matrimonial Causes Act, to the statutory factors in England and Wales and to the strands of 16 need, compensation and sharing. 17 18 237. Firstly the needs of ‘O’, who is still of school age are considered as a matter of priority. She 19 requires assistance with her tuition, other educational and general living expenses. 20 21 238. The husband has been very clear in his indication that he is willing and prepared to shoulder 22 this responsibility and indeed has offered to do so. I believe that he is deeply sincere in his 23 love for his daughter and take him at his word that he will pay what is required. The tuition 24 figures provided indicate maximum payments for tuition, residence, meals, books and supplies, 25 transportation and personal expenses combined of $55,291.58 at the highest end. At the lowest 26 end the figure is $38,778.50. General living and personal expenses are included in these figures, 27 thus I have considered these figures when considering child maintenance as a whole. 28 29 239. Using the figures in mid-range, this would be $40,524.83, or $3,377.00 per month. The husband 30 is therefore to pay through the Courts Funds Office the monthly sum of $3,400.00 per month 31 towards O’s college education and general maintenance. The wife is to meet any additional 32 maintenance costs. If the most expensive school option is chosen, then there would be a ratio __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 62 of 66 1 of 75/25%, and the wife would have to pay 25% or a total of $1,151.89 per month. The husband 2 has also offered and should pay for O’s health insurance and any costs for dental, optical and 3 medical fees not covered by such insurance. 4 5 240. This was a five-year marriage but a period of close to 20 years of cohabitation in which the 6 parties built economic stability together. Both are of middle age. Each contributed in their own 7 way to the welfare of the family over the years with the husband on the investment and financial 8 side, and the wife caring for the home and child and supporting the husband. In the future the 9 wife will have the day to day oversight and responsibility for ‘O’. However ‘O’ is now at the 10 stage of tertiary education and once she is settled in college overseas, the wife’s daily duties of 11 care will become increasingly less except for during the vacation periods when she returns to 12 the Island. There is no physical or mental disability on the part of either and no conduct which 13 rises to the level such that it would be inequitable to disregard it. They are each self-employed 14 and there is sufficient property and businesses that neither will have to start over in life. They 15 each should be able to live at the standard of living to which they have been accustomed. 16 17 241. The wife will have an ongoing income from operating her retail business. It is a modest one 18 when spread over a year outside of the high season period. As proposed the mortgage debt on 19 the former matrimonial home will be removed, leaving her with less expenses. Additionally 20 she will have the rental income from the Mahogany Way property. This is more than $2,000.00 21 per month and sufficient to pay the mortgage on that property with a balance left over as 22 additional income to assist in meeting her expenses. However, she has almost no savings and 23 no safety net for contingencies or future investments. She has gone from a position where as a 24 couple they had over a half a million dollars in savings. The husband has spent this on property 25 purchases without her knowledge and agreement. In my view her needs require that she be paid 26 a lump sum over and above the sharing of property detailed above. I arrive at a figure by using 27 one half of six months of the notional earnings of the event planning business for a total of 28 $90,000.00. This is a broad calculation. I have considered whether the strand of compensation 29 requires an additional sum. There is no evidence that the wife has suffered relationship 30 generated disadvantage such that a high level of compensation is required. She has been 31 provided by the husband with a means towards independent living. Is the lump sum payment 32 proposed in order to assist in meeting her needs and the sharing of assets as calculated fair in __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 63 of 66 1 all the circumstances? The total to be paid to her is $154.610.0030. As a cross check while it is 2 primarily a needs based and a sharing calculation, it also goes someway to addressing the 3 imbalance and inequity in the asset disposition and the likely future earnings of the parties, 4 both of which are as a result of the proposed manner of division of the businesses. In my view 5 the proposed disposition is a fair one and satisfies the three strands. 6 7 242. I have considered the income, earning capacity and resources of the husband and his needs. 8 The outcome should also be fair to him. Any payments to be made by him are to be affordable 9 and in line with his income, assets and if necessary his future prospects. They should not be 10 such as to excessively burden him. He is presently living at the Mahogany Way property and 11 has options of residing at one of the other two properties which are mentioned above, both of 12 which are mortgage free. He will have no rental or mortgage payments to make. His daily 13 needs and monthly payments can be met from the income from his businesses. He is faced with 14 the prospect of paying off the mortgage on the FMH and making an additional lump sum 15 payment. The bank documents which were produced up to the date of this hearing do not show 16 that he presently has savings or deposits in those accounts available to meet these payments 17 immediately. However his actions in denuding these accounts of funds has led to the position 18 of today. The funds are traceable into property held by him. He has property which can be used 19 as security in order to pay off the mortgage on the FMH and or to make the lump sum payment. 20 Additionally, he has the potential for earnings from his construction business in the near future. 21 He is due profits from the large construction project detailed above. He will also have the event 22 planning business once the economy reopens following the waning of the pandemic. He himself 23 said that the latter business sometimes earned as much as $30,000.00 per month. I am 24 conscious that he may need time to pay the lump sum which time would allow for arrangements 25 to be made or the completion of the construction project, and the receipt of profits as well as 26 the re-opening of the economy. The outcome is a fair one for him. 27 28 29 30 30 $51,860.00 +$12,750.00+ $90,000.00 = $154,610.00 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 64 of 66 1 CONCLUSIONS 2 3 243. Having considered the best interests of the child of the marriage, the three strands of needs, 4 compensation and sharing, and all the relevant factors as set out above, the conclusions are as 5 follows: 6 7 i. The husband is to pay through the Courts Funds Office on or before the 1st day of each 8 month, commencing on the 1st day of August 2021, the sum of $3,400.00 per month 9 for child maintenance including educational costs in respect of the child of the marriage 10 ‘O’ until she reaches the age of 21 years. 11 12 ii. The requirement to pay the sum of $5,000.00 per month in accordance with the Interim 13 Order dated 27th October 2020 shall cease following the payment to be made on the 14 28th June 2021. 15 16 iii. The husband is to add O’s name to the US bank account with number ending in 692 17 within 7 days of the date of the Order arising from this judgment. The account is to be 18 transferred into her sole name upon her attaining the age of 18 years. In the interim 19 prior to the addition of her name and the transfer into her sole name, the husband is not 20 make any withdrawals from this account. 21 22 iv. Commencing on the 15th day July 2021 and until she reaches the age of 21 years, the 23 husband is to pay any health insurance costs for ‘O’ pursuant to any policy currently 24 in force (i.e. by making payment to the wife) or if there is none in place to arrange and 25 pay for such health insurance coverage. He is also to pay any optical and dental costs 26 not covered by any such insurance. 27 28 v. The matrimonial debt consisting of two mortgages is divided equally, the husband is 29 to pay off the mortgage on the FMH within three months of the date of the Order arising 30 from this judgment and the wife the mortgage on the Mahogany Way property in due 31 course. 32 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 65 of 66 1 vi. Following payment by the husband of the mortgage balance on the FMH, it is to be 2 transferred by the husband into the sole name of the wife. 3 4 vii. By the 1st day of August 2021, the husband is to remove any personal or business items 5 which he has left or stored at the FMH. 6 7 viii. Subject to the consent of the Mortgagor, the Mahogany Way property is to be 8 transferred into the sole name of the wife. Within one month after the Mortgagor has 9 provided its approval to the transfer, the husband shall transfer the Mahogany Way 10 property into the sole name of the wife. 11 12 ix. The husband is to retain the Mangrove Avenue property. 13 14 x. The husband is to retain 70% share of the Breakers property. 15 16 xi. The husband has the option within six months of the date of the Order arising from this 17 judgment to pay to the wife one half of the value of the bare land, Block 25 B, Parcel 18 266, otherwise it is to be sold and the proceeds divided equally between the parties. 19 20 xii. The parties are to each retain their respective properties in Jamaica. 21 22 xiii. The parties are to each retain their respective pension entitlements. 23 24 xiv. The husband is to pay to the wife a lump sum of $154,610.00, by way of no more than 25 five installments, within 18 months of the date of the Order arising from this judgment. 26 27 xv. The Ram truck is to be returned to the husband on payment by him to the wife of the 28 sum of $35,845.00 within 30 days of the date of the Order arising from this judgment. 29 Failing which it is to be transferred by the husband (and or HD) into the name of the 30 wife and the lump sum payment which is payable to her be reduced by $30,155.00. 31 32 33 34 __________________________________________________________________________________________________________ Judgment. FAM 0221/2019: DS v GE and YM. Coram: Richards J. Date: 24th June 2021 Page 66 of 66 1 COSTS 2 3 244. The wife seeks an opportunity to apply for indemnity costs. If an application is to be made it is 4 to be done within 14 days of receipt of the perfected judgment. 5 6 7 ADDITIONAL MATTERS 8 9 245. Following the release of the draft judgment in this case, there has been an exchange of 10 significant correspondence between the parties raising a number of issues including as to the 11 state of the Ram truck, any need for a mechanical examination and other matters some of which 12 refer to new evidence. I do not propose to address these matters in this judgment. The parties 13 have liberty to apply. 14 15 Dated this 24th day of June 2021 16 17 18 Honourable Justice Cheryll Richards Q.C. 19 Judge of the Grand Court 20