Hall J
This Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment is being distributed on the strict understanding that in any report no person other than the attorneys (and any other person identified by name in the Judgment itself) may be indentified by name or location and in particular the anonyment of the child and the adult members of their family must be strictly preserved. 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 FAMILY DIVISION 3 4 BETWEEN: 5 6 7 AND: 8 9 10 IN CHAMBERS 11 Appearances: 12 13 14 15 16 Before: 17 CAUSE NO. FAM 105 OF 2014 D. H. PETITIONER B. W RESPONDENT Petitioner represented by Ms Natasha Bodden instructed by Sonia Bush & Associates Respondent represented by Ms Sheridan Brooks, QC instructed by Brooks & Brooks Hon. Justice N Hall (Actg.) 18 Judgement Delivered: 2 November 2018 19 20 JUDGMENT 21 22 Background 23
The parties were married on December 23, 1999 and a Petition for Dissolution 24 of Marriage was filed on June 4, 2014. This Petition was proved on July 3, 18-11-02 - DH & BW - FAM 105 of 2014 -Judgment - Anonymised and Released for Publication on 19-01-10 Page 1 of 17 This Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment is being distributed on the strict understanding that in any report no person other than the attorneys (and any other person identified by name in the Judgment itself) may be indentified by name or location and in particular the anonyme"t of the child and the adult members of their family must be strictly preserved . 1 2
While there were three children of the marriage there remains only one minor, J born on September 1, 2004. 3 4
The PetitionerlWife had obtained an Ex-parte Occupation Order against the 5 RespondenUHusband on December 31 , 2015 excluding him from the former 6 matrimonial home. This Order was discharged on April 12, 2016 on the basis 7 that the RespondenUHusband deposed that he had no intention of returning to 8 occupy the former matrimonial home with the PetitionerlWife until final 9 resolution of ancillaries. He was however permitted access to the property for 10 the purpose of operating his farm which is located there until further Order of 11 the Court. He always denied the allegations of abuse/violence made by the 12 PetitionerlWife. 13 14
The matters raised by the PetitionerlWife on ancillaries were as follows: 15
The Child of the marriage; 16
The Former Matrimonial Home; 17
Vehicles; 18
Farm: Animals & Plants; 19
Bank accounts; 20
Pensions; 21
Spousal Support. 22 23 The Law 24
The applicable legislation is found in sections 19, 20 and 21 of the Matrimonial 25 Causes Law (2005 Revision). These provide as follows: 26 "19. In dealing with al/ ancillary matters arising under this Law, the Court shall 27 have regard first of all to the best interests of any children of a marriage and 18-11-02 - DH & BW - FAM 105 of 2014 -Judgmen1- Anonymise<i and Released for Publica1ion on 19-01-10 Page 2 of 17 ~;"'''''' .. ..,..""" n . l~ .... ~l.(.''J1 .~,l).sju~gment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment ;;:. vr ~~~il .. t\ .... ~.,,,.is be!'n~ d. istributed on the strict understanding that in any report no person other than the attorneys (and ,:./ Q! I 'i! t.';; :any, b' ~er person identified by name in the Judgment itself) may be indentified by name or location and in ,J,i\. 1t"~1-''' ..... ~ r • I. '~t, ~J.t~,,~ ,.~~~~fi . _~!f i£1!.l~r the anonyment of the child and the adult members of their family must be strictly preserved . " • 'Jl ' l <:.r t ~ '.! I ~,.f 'i~1 . 1 .~ ..... ~v. r thereafter to the responsibilities, needs, financial and other resources, actual ~ . f1!('(\~ '\ J " ,,\,,~~~'.1 . _ ... .. r and potential earning power and the deserts of the parties. 3
The Court may make orders pending the outcome of any suit in respect of 4 which a petition has been presented providing for- 5 (a) the care and control of the children of a marriage; 6 (b) the use of the matrimonial home; 7 (c) periodic payments to be made by one party to another pending suit; 8 (d) an injunction for the protection of settled and other property in which either 9 spouse claims an interest; 10 (e) the protection of one spouse from interference by the other; and 11 (f) security for costs. 12 13
At the time of pronouncing a decree under this Law, the Court shall, as 14 appropriate, make orders for- 15 (a) the custody, care and control of the children of the marriage; 16 (b) the disposition of matrimonial property, including the matrimonial home; 17 (c) varying any settlement of the property of the spouses made in consideration 18 of the marriage, whether such settlement was made before or upon the treaty 19 of the said marriage; 20 (d) varying any other settlement of matrimonial property; 21 (e) making financial provision from the property of either spouse for the children 22 of the marriage and for the other spouse; 23 (f) providing for periodic payments to be made by either spouse for the benefit 24 of the children of the marriage and for the other spouse; and lB .. ll'()2 - DH & BW - FAM 105 of 2014 .. Judgment - Anonymised and Released for Publication on 19'()1 .. 10 Page 3 of 17 ,:IJ4.-~'. ",if'-COl.j,~) // ~ ---"-'< This Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment l ~ "'~l,~~·:· .. s~ b~~i!lg distributed on the strict understanding that in any report no person other than the attorneys (and I ri .. ,jo, . ... ~~,.- ~, .... .:.a v'.o!~er person identified by name in the Judgment itself) may be indentified by name or location and in ~s. fn ~~4:'f\.·~ . }.~~~p;'~arfrClJla r the anonyme"t of the child and the adult members of their family must be strictly preserved. t -" .. ., ./ T~ " • !" ./~~.i .# r",,..,, ;r- -," , ~" ' '''4~ '~ " "I: ,#' (g) costs," '1"" .'11.1 A. \'t. ~/ \.':I.'l,.'t.'tA",~ .... ;t3" 2 3 The Child of the Marriage 4
The child of the marriage currenlly resides in the former matrimonial home with 5 the PetitionerlWife who seeks a Sole Residence Order for the child with liberal 6 contact to the Respondent/Husband, For his part, the Respondent/Husband 7 seeks a shared Residence Order. He expressed the desire to participate fully 8 in the further upbringing of the minor child of the marriage, 9 10 6, The Respondent/Husband argued that the PetitionerlWife obtained the ex- 11 parte occupation order as a tactical manoeuvre and not as a result of a genuine 12 need for same, The timing of this order, he submitted, was meant to ensure 13 that he suffered maximum embarrassment and that he would be unable to 14 spend the holiday season with his children, 15 16 7, The Respondent/Husband pointed to statements made by the PetitionerlWife 17 about the state of her health as being relevant to the issue of custody of the 18 minor child of the marriage, In contrast to her position when the Petition was 19 filed, the PetitionerlWife is no longer employed as an Assistant Teacher by the 20 Cayman Islands Government. She produced documentation to establish the 21 nature of her illness and indicated that she had been "medically boarded", The 22 Respondent/Husband raised challenges to the currency of the medical 23 documentation provided, 24 25 8, The Respondent/Husband pointed out that the PetitionerlWife gave no 26 indication about whether or not she received any financial benefits or 27 compensation upon her departure from employment with the Government of 28 the Cayman Islands, He also challenged the details provided concerning her 29 assertion that she was able to do light duties which included conducting a 30 baking business, 31 1B-11'()2 - DH & BW - FAM 105 of 2014 - Judgment- Anonymised and Released for Publication on 19'()1-10 Page 4 of 17 ~.~"·4 -"'" 0 ,:.i~;?~_l!~);ThiS Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment ft' ~, '" a.,,' iSB eing distributed on the strict understanding that in any report no person other than the attorneys (and ~y 'T: "~;'~~"'.~~ ;\a ~~l other person identified by name in the Judgment itself) may be indentified by name or location and in . ct: 1 .~. ';t- "' '' ''' }' , n tft l~~¥~: {~ p ~f i.sular the anonyme"t of the child and the adult members of their family must be strictly preserved. ~...", •• I .. ,"~' .. ~ ~ ~ < ,;v . ~., \'~ / dlt<'b"'.ti9. While it was not specified in her position statement, in her affidavit of means, \."\\~~1..".;;> the PetitionerlWife had sought financial assistance including an Interim 3 maintenance amount of $250 per week for the child of the marriage. 4 5
The Respondent/Husband challenged the expenses put forward by the 6 PetitionerlWife. He argued that her affidavit of means showed that she had a 7 monthly excess of expenditure of $3312.73 which would amount to a running 8 debt of $39,752.76 per year. It was submitted that there was no documentation 9 in support of this allegation. 10 11 11 . The PetitionerlWife was also criticized for taking out a car loan of $31 ,000 in 12 January 2016 leaving her with a monthly debt of mortgage and insurance of 13 $702.66. This debt apparently accrued at the time when based on her claims, 14 she already had a shortfall of over $3000 per month. It was argued that it was 15 very unlikely that she could qualify for such a car loan with that much excess 16 monthly expenses. 17 18
Additionally figures were given for the minor child's attendance at private 19 school, clothing, school trips, lunch money, art classes and music lessons 20 which amounted to a total expenditure for the child of $1590 per month. It was 21 argued that this was without consideration of her food from groceries or 22 necessary personal items. It was submitted that some of these expenses for 23 the child would have to be abated. At the time of the hearing it was stated that 24 the child was presently enrolled in public school but that the PetitionerlWife 25 wanted her to return to private school. She also wanted the 26 Respondent/Husband to pay for the child's music fees because the child had 27 a special gift for music. 28 29
It was submitted by the Respondent/Husband that he earned $51 ,761.00 per 30 annum from which $297.70 was deducted monthly for family health insurance. 31 His net monthly salary was therefore $4015.72 and not $7,000 as the 18·11.02 - DH & BW - FAM 105 of 2014· Judgment - Anonymised and Released for Publication on 19.01·10 Page 5 of 17 . ,,.:..."<\'. " ~ p~ .:fJ COU' ,l~Q/--':":~,i , .! ~. I. ~7, ,..,t',.(I~1I<.:\Tltjs .~Udgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment y.~, . "'~'~*'::"~'! i being distributed on the strict understanding that in any report no person other than the attorneys (and ~ C) {~.~:~ ,~iftia ~~t:her person identified by name in the Judgment itself) may be indentified by name or location and in 1., 6'.'~~'~""'" j a1'!i~~ lar the anonyme"t of the child and the adu lt members of their family must be strictly preserved. ~I '" ~! .. , " . .,;~ .. '1'-;"" ~ ~ t~ ,', I",\~ hl,:l't4~~ ;'i' PetitionerlWife argued. It was submitted that while he previously had additional \'l;;'~~~'I;"'I>.' ,..,...-•. ¥I> 2 income from farming and selling produce, he could only do this on a limited 3 4 5 6 7 8 basis due to the PetitionerlWife's occupation order. He was unable to provide documentation regarding his income from these sources due to his exclusion from the former matrimonial home in which he kept any and all receipts and documentation in relation to these transactions. The PetitionerlWife having exhibited some of these, established that she had access to them. 9
The Respondent/Husband stated that he paid the entirety of the mortgage 10 payments for the former matrimonial home. In contrast to the request of the 11 PetitionerlWife, he submitted that $800 per month in maintenance would be a 12 reasonable sum for him to pay for the minor child while continuing to be 13 responsible for his children's medical, dental and optical health insurance 14 coverage. 15 16
The Court's only hesitation when awarding custody would involve any 17 perceived unfitness on the part of any parent. While the PetitionerlWife made 18 allegations about abusive behaviour on the part of the Respondent/Husband, 19 he always denied this. The matter was never properly ventilated because a 20 Consent agreement about the occupation of the former matrimonial home was 21 arrived at by the parties. 22 23
The PetitionerlWife submitted that on the basis of maintaining the status quo, 24 she should have a Sole Residence Order for the minor child of the marriage 25 with liberal contact to the Respondent/Husband. This submission, seems to 26 strengthen the position that there is no danger to the minor child from the 27 Respondent/Husband. At the same time, the Respondent/Husband makes a 28 strong point that if the health of the mother is as severely impaired as she has 29 stated, it would not be best for the child to be under her sole care. 30 31 18-11.02 - DH & BW - FAM 105 of 2014 - Judgmen1- Anonymise<l and Released for Publica1ion on 19.01-10 Page 6 of 17 ~~~.J.. • • <- "0 .~y S) \.,0 V , fl" ~'\. ~., ... --..,..: t')- This Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment ( v~ ..... . 'Ir.lI"O~\ 1,5 being distributed on the strict understanding that in any report no person other than the attorneys (and ff 0:1 ~ ... o~\~~ H-I"'~" ) a ~y other person identified by name in the Judgment itself) may be indentified by name or location and in ~ ~ ~.~"'i.~ ~,; ,~'-l. ~~rticular the anonyme"t of the child and the adult members of their family must be strictly preserved. ~ , ·llC'~·JJ"" .... f. ~ Co f..~ .' "r " .... ".<lh '-;- '~'/"':~I 17. With respect to finances, normally both parents share the educational and "I,. J.;:AN '\. .,4 " " "" " '~" '2 '" medical expenses for the children of the family. In this case, the responsibility 3 4 5 6 will lie solely with the Respondent/Husband. In those circumstances, the award of maintenance for the child will be slightly less than that which was requested by the PetitioneriWife. 7
Consequently, a Joint Residence Order is made for the minor child of the 8 family. Additionally, The Respondent/Husband is ordered to pay the sum of 9 $800 per month in maintenance for the child. 10 11 The Former Matrimonial Home 12
The main area of dispute involved the former matrimonial home which is 13 located at 35 Raven Avenue, Savannah, Grand Cayman. 14 15
The property is registered at Registration Section Spotts Block 25C Parcel 147 16 in the names of SW (3/4 share); SW, BW (the Respondent/Husband) and EM 17 (1/4 share) as Tenants-in-Common. 18 19 21 . According to the PetitioneriWife, her mother-in-law, SW had told her on the 20 day after the wedding that she would be gifting the entire five acres of property 21 to her son and herself. It was conceded that a transfer was made six months 22 after this but the PetitioneriWife stated that she was unaware that her name 23 was not listed as one of the transferees. She claimed that the 24 Respondent/Husband told her that he and she were both the legal owners of 25 the property and that it would be left to them once his mother passed away. 26 27
The PetitioneriWife stated that it was after this that she and the 28 Respondent/Husband started to build their matrimonial home on the property. 29 She detailed the physical work that she put into the project and mentioned that 30 she baked and sold items to make ends meet. She also claimed that she was 31 aware that a mortgage was obtained to finish the home but that she left it up 18-11 .02 - DH & BW - FAM 105 of 2014 - Judgmenl - Anonymised and Released for Publicalion on 19.01-10 Page 7 of 17 ;i rr''''';:' t:' ;1.'::~~~"",:; ':!.;, . .'. This Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment i~l,/'~ _"J'" 11 .... . ~ is being distribute~ on ~~e strict und~rstanding that in, any report no, perso,", other than the atto~neys (a~d ,:'/ ~ ~ .. , ,',. any other person Identified by name In the Judgment Itself) may be mdentlfled by name or location and In i"! .... ~~t.'"'· 0- i .J ~ ~ \~\ ;. .~ . _' >.;- lP~ ..... ~i ,~ular the anonyme"t of the child and the adult members of their family must be strictly preserved. 1; • ·""t ~ 1. -. ~w11 < ~' \~L,:2:, ~ ,:.;s:/ to the Respondent/Husband to arrange the mortgage. She claimed that it was " r f:'<1 M ;:;) .,.' ',,:"i.("!.\''2 ",- some years later that she learned that her sister-in-Iaw's name had been added ''' , 1.'1.~ .. .... ~, ...... :'''' 3 4 5 to the Register as a jOint proprietor. She claimed that she was unaware that her name was not on the Register. 6
The PetitionerlWife also claimed that she was unaware of the extent of the 7 mortgage loan obtained against the property. She claimed that the 8 Respondent/Husband took care of all the monetary transactions for the 9 property including for appliances that she selected for the home. 10 11
There is no dispute that the property in question had always belonged to the 12 Respondent/Husband's family. It had been owned by his grand aunt L T and 13 she subsequently transferred a share to his mother SW and the two owned the 14 property as joint proprietors. The death of L T was subsequently noted on the 15 Register. The Respondent/Husband's name was thereafter added as a joint 16 owner and then subsequently also his sister EM. 17 18
Evidence was disclosed that on or about October 18, 2000 after the 19 Respondent/Husband's name had been added to the Register, a mortgage 20 was secured in the sum of $41,841.15 to commence building a home on the 21 property. On November 20, 2002 when his sister's name was added to the title 22 this amount was increased to $219,000. Subsequently in December 2006 the 23 mortgage was increased to $265,000. 24 25
It was Respondent/Husband's position that the mortgage had never been in 26 his sole name and the PetitionerlWife had never been responsible for paying 27 the mortgage. 28 29
The PetitionerlWife claimed that the Respondent/Husband colluded with his 30 mother and sister to thwart her interest in the matrimonial home. 31 18·1 HJ2 - DH & BW - FAM 105 of 2014 • Judgment - Anonymised and Released for Publication on 19-01·10 Page 8 of 17 ~ ... ; . '~ /.~~ ..... c~:{_':." This Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment jf_~,,/ "" ~\ is being distributed on the strict understanding that in any report no person other than the attorneys (and ;1 tJ::1 ... ~~lt:.:;~. ', any other person identified by name in the Judgment itself) may be indentified by name or location and in ~ (!) (i[.,.~: \, ',\~' ) P'!rticular the anonyment of the child and the adult members of their family must be strictly preserved. \~~ "'1~;;;'\--;/ir:;"28 Both parties referenced a valuation report dated July 2014 obtained by the "'t .,}; - c.V f' . 'I 7t7!1MI \'J ,> " 4'''\1'\1 2 """ 't"'J~:OO , .,~,!,-"~- RespondenUHusband. The opinion given therein was that the market value of the property was $1 ,091 ,000. This figure reflected the Sales Comparison 3 4 5 6 7 8 Approach. The land is valued at $727,000. The same report also showed a valuation of $1 ,176,000 which was based on a Depreciated Replacement Cost Approach. That approach showed the same value for the land and an estimated Replacement Cost of the Building which was stated to be $413,890. 9
The RespondenUHusband concluded that his legal interest in the property is 10 one third of a one quarter share in the property. He submitted that he had made 11 no contribution to the acquisition of the land on which the matrimonial home 12 stands and as such he separated the value of the said land from the value of 13 the house. He valued the building at $364,000 ($1 ,091 ,000-$727,000). He 14 based his calculation of his share in the former matrimonial home using that 15 method of calculation. For her part, the PetitionerlWife put forward a much 16 higher valuation although both parties made reference to the same valuation 17 report. The PetitionerlWife referenced the Replacement Cost of the Buildings 18 of $413,890 and claimed half of this sum. 19 20
The PetitionerlWife claimed that she had an incurable illness which affected 21 her lungs causing her to be medically boarded. Further she stated that she 22 could not qualify for a mortgage at her age and that following the matrimonial 23 proceedings she would have no place to live. Consequently, she sought to 24 reside in the matrimonial home until she passed with her interest then going to 25 her children or alternatively she sought a lump sum payment from the 26 RespondenUHusband of her interest in the matrimonial home to allow her to 27 purchase a home for herself and the minor child of the marriage. 28 29
For his part, the RespondenUHusband conceded that the PetitionerlWife was 30 entitled to one half of his share in the property. He submitted that at the date 31 of separation, the outstanding amount on the mortgage was $167,000. 32 Therefore on that date the full equity in the home would be $197,000 for the 18·11-02 - DH & BW - FAM 105 of 2014 • Judgment- Anonymised and Released for Publication on 19-01·10 Page9 of 17 .~ ... :;..'''''''' . -,4-F."..0£1"-Cf 'iJ .f' ~1...,... -.... ,J' ,I. lYt " " . ::\ ~hi S Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment d C!: ,~~o~ '''''' is being distributed on the strict understanding that in any report no person other than the attorneys (and t t:!) ~~~ < ':~#I .a,f[v:.other person identified by name in the Judgment itself) may be indentified by name or location and in \. .. ~ ~!:.f·Y ..;.!' .... ~ar't:icula r the anonyme"t of the child and the adult members of their family must be strictly preserved, ' ... ;A ~.,~. ~~~1l .• "" ~ '\' . .!"~ '''''' .. ;.....,.,;- three owners. He calculated his share in the equity as $30,321 .20. He ... ~."" ..... ~.' 2 3 4 5 6 submitted that the PetitionerlWife's share as at the date of separation would be $15,160.60. Using those figures, he submitted that he was prepared to pay her the total amount of his share in the equity of the home subject to his obtaining financing. 7
The Respondent/Husband sought a Declaration that upon payment to the 8 PetitionerlWife as suggested, she would vacate the former matrimonial home. 9 10
It is interesting that in their approaches, both husband and wife referenced the 11 value of the building to assess their share of the property. The land itself 12 appears to be excluded from consideration. 13 14
While the documentation is not entirely clear, it would appear that by the 15 Transfer dated 131h July 2000, the Respondent/Husband and his mother 16 17 18 19 20 21 became joint proprietors of the entire property. Thereafter by Transfer dated 151 November 2002, the ownership of the property became that which it is today, with the Respondent/Husband's share dramatically decreased. No issue was taken about this detail, possibly because of the attachment of the mortgages soon after each Transfer. 22
Also while there were submissions alleging collusion between the three legal 23 owners, no evidence was adduced on this point. Thus legal ownership stands 24 as endorsed on the Register. 25 26
I am persuaded by the authority of Joss/yn Sainz-Ebanks v James Ebanks 27 & Dorothy Cruz FAM 2 of 2012. This was a decision of the Honourable Chief 28 29 30 31 32 Justice, Anthony Smellie QC wherein he recognized the principle that where property was conveyed into the joint names of parties there was a prima facie case that both the legal and the beneficial interest in the property were joint and equal. The onus of proof lay upon the party seeking to establish that equity should not follow the law, and that the parties held a common intention that 18-11'{)2 - DH & BW - FAM 105 of 2014 - Judgment - Anonymised and Released for Publicalion on 19.{)t-10 Page 10 of 17 ,, ;_;,:"1..:..;,.-.. . ~~ ....., .~ i~~1.,·~t...:.~~, Ttlis Judgment was delivered in private, but the Judge hereby gives leave for it to be published, The Judgment "I..V 'iI~i! _,\(Y1 .. 1 i~ being distributed on the strict understanding that in any report no person other than the attorneys (and t ci ,~~5~\j:~' .\~~ .. ~ ny other person identified by name in the Judgment itself) may be indentified by name or location and in ~ ~"",:,,.q. . . •• ~ !,. pa{ticular the anonyment of the child and the adult members of their family must be strictly preserved. ~ • .,~-: ,. .J(..o., ~ ('l -,;,j."'" ,-' ~~ ;t~!" " -~r':-~ / their beneficial interests be different from their legal interests. In order to I' "I "'\i'i ~ ~, " t}, '~ '~fi i \." .:. ' < \,,~ iJo;- ~ ''I\'t;\' .~''':!.;:;'''~'''' discern the parties' intention, the Court should look to the parties' whole course 3 4 of conduct in relation to the property. 5 37, The contribution of the PetitionerlWife to the building of the former matrimonial 6 home is acknowledged and accepted by the RespondenUHusband, The former 7 however seeks a division of the value of the property which would affect the 8 legal shares of her mother-in-law and sister-in-law, 9 10
This was a long marriage and there is no basis to depart from the established 11 principle that the starting point for the division of matrimonial assets should be 12 on the basis of equality. Equality should only be departed from for good reason. 13 14
Using the July 2014 Report accepted by both sides I consider that a proper 15 valuation of the entire property is based on the market value which is 16 $1 ,091 ,000, The RespondenUHusband's share of this property is one third of 17 one quarter of the equity value. 18 19
The Transfers do not make a distinction in ownership of the land and building 20 and for the avoidance of doubt, I find that the RespondenUHusband's share is 21 one third of one quarter of the entire property. 22 23
The PetitionerlWife's assertion that the behaviour of the legal owners and 24 abusive behaviour by the RespondenUHusband entitled her to a departure 25 from the equality principle, is rejected, Further, there was no evidence adduced 26 from which the Court could conclude that the interests of her mother-in-law and 27 sister-in-law should be disturbed. 28 29 42, Clearly, the PetitionerlWife is entitled to one half of the RespondenUHusband's 30 share in the property and she is awarded this, 31 18,11 .02 - DH & BW - FAM 105 of 2014 · Judgmenl- Anonymised and Released for Publicalion on 19.01-10 Page 11 of 17 This Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment is being distributed on the strict understanding that in any report no person other than the attorneys (and any other person identified by name in the Judgment itself) may be indentified by name or location and in particular the anonyment of the child and the adult members of their family must be strictly preserved. 1
It was submitted previously that at the date of separation, the outstanding 2 amount owed on the mortgage was $167,000. This reduced the total equity in 3 the property to $924,000. The quarter share owned by SW, the 4 Respondent/Husband and EM would then be valued at $231,000. The value 5 6 7 8 9 of each party's share would then be $77,000.
The value of the PetitionerlWife's half share is $38,500.00. Pensions 10
The Respondent/Husband submitted a statement showing his pension balance 11 as at 31 December 2016. This sum was $119,252.15. For her part the 12 13 14 15 PetitionerlWife produced statements showing her pension balance as at 31 December 2015 of $64,462.93. The PetitionerlWife applied for half of the Respondent/Husband's pension funds. 16
As set out in P.H.R.S. v S.O.S. [2004-05 CILR Note 11], a pension is a family 17 asset. The inference which is usually drawn is that the party contributing to a 18 pension scheme did so with the intent and for the purpose of benefiting his or 19 her family members. 20 21
The contributions of both parties must be placed in the pot. As submitted by 22 Counsel for the Respondent/Husband the combined pension value for both 23 parties would be $183,715.08. Divided equally, each would be entitled to 24 $91,857.54. 25 26
The Respondent/Husband is required to transfer $27,357.54 of his pension to 27 the PetitionerlWife's pension plan to equalize their pension entitlements. 28 29 Bank Accounts 30
The Respondent/Husband submitted his bank account statements. Most were 18-11.02 - DH & BW - FAM 105 of 2014 - Judgment - Anonymised and Released for Publication on 19.01-10 Page 12 of 17 1 2 3 4 This Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment is being distributed on the strict understanding that in any report no person other than the attorneys (and any other person identified by name in the Judgment itself) may be indentified by name or location and in particular the anonyment of the child and the adult members of their family must be strictly preserved. in the joint names of himself, his mother and his sister and were clearly meant to service the mortgage loans. He submitted two sets of statements which were in his sole name but which showed very minimal balances. 5
The PetitionerlWife made the allegation that the Respondent/Husband did side 6 jobs for which he collected cheques made out to him, then cashed them so as 7 to hide his financial position. She sought to rely on two exhibited cheques made 8 out to the Respondent/Husband as proof of this allegation. For her part, she 9 provided no banking details. 10 11 51 . In the absence of any proof that either party had any significant banking assets, 12 it is ordered that each party must retain the benefit of his/her bank accounts. 13 14 Vehicles 15
The Respondent/Husband produced a certificate of vehicle ownership for a 16 2001 Toyota Tacoma which was registered in his name. The PetitionerlWife 17 submitted in contrast, that he used matrimonial funds to purchase heavy 18 equipment which he then registered in his father's name. It was alleged that 19 this included a backhoe, excavators and a dump truck. It was submitted that 20 this equipment was then used for contractual work at various construction 21 locations although the Respondent/Husband was employed full-time to Water 22 Authority. He denied these allegations. 23 24 25 26 27 28 29 30 31
The PetitionerlWife made reference in her documentation to a car loan and car insurance payments but she did not provide any details about the vehicle to which this was related. Given the state of the evidence under this head the only reasonable order which can be made is that each party retain the benefit of his/her own vehicle. .1'"~iJ.r~ . ,. J' c1--:"' . 0c,. I ' f!';)~~ .'61 .. .~~f>o ,O" "" .• El 0 ~~U:. 'j " "./ff)j;\ r , p. ~ flj'~: IO ; ' f ~';.if "'- ~.v.~ {'ii·~·(;:;·~~~ '.~'t, ' ''~ 'd ·· ~ ..;;;!·"';:~I·II · 1 I' '.. • '. - " 'iJ .I" 'V'';;~''' __ ' ~Q j 18·11-02 - DH & BW - FAM 105 of 2014 -Judgment-Anonymised and Released for PUblicatiO~OQli!-41 )\~\..~:c:ll'age 13 of 17 -"~"\.,,,,,,~.,, J~""'" . r-<"!' ..... ,'" {'t ,,' ") ..... '_ .. (.1 .:'l" v-.,:. ......... -........ " r.f ~~,..-- . . .. ~ ','This Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment :1' ttt,(", ",,~:\'i :':':,' ',s being distributed on the strict und~rstanding that in any report no, perso,n. other than the attorneys (and ~ C) .f>.~ : ;~' .. ' \ .. .; ar~'y_ other person Identified by name In the Judgment Itself) may be Indentlfled by name or location and In ~l ' ""\ ... '; ',1/' .. ,t Jpatticular the anonyme"t of the child and the adult members of their family must be strictly preserved. ?,~ "- .. "" ,.. ,'" , . 't~~l1l''''' ' ... t"r", ·!!'r"~'":t<·;~· ~· Farm : Animals and Plants ", " ; ,1\ ~,. , ,,,f ,,' 'lJ., IJ I ''''\;~ .,;.. ... : ....... -, .... ~ .. ,.. ..... ~ . 2
The PetitionerlWife submitted that the Respondent/Husband had cows and 3 goats which were matrimonial assets and produced documentation showing 4 payments to the Department of Agriculture and sales receipts in support of this 5 contention. She argued that she was entitled to half of the value of these 6 animals or a lump sum of $10,000. In his disclosure he denied that this was 7 the current situation and he has stated that he no longer did any farming, 8 9
The Court is satisfied that previously the Respondent/Husband was involved 10 in farming with the maintenance of plants and animals and that he received an 11 income therefrom. This however appears to have been brought to an end when 12 he was barred from the property. There is no evidence of the present existence 13 of any animals and he denies owning any. The highest that this evidence can 14 be taken, is the recognition that the Respondent/Husband has a skill from 15 which he can earn an incorne that he rnay choose to use in the future if there 16 is a change in his circumstances. 17 18 Income & Spousal Support 19
The PetitionerlWife submitted that the Respondent/Husband earned rnore than 20 $7000 per month from working with the Water Authority as a heavy equiprnent 21 operator. Reference was made to bonus packages which it was believed had 22 been received but not disclosed. Further, according to the PetitionerlWife, the 23 Respondent/Husband did not disclose the side jobs which he did using heavy 24 equipment or his income from the farm. 25 26
The Respondent/Husband submitted that his net monthly salary from the 27 Water Authority was $4015.72. The salary slips which he exhibited however 28 showed a range that varied depending on the amount of overtime that he was 29 required to perform each month. Additionally, the PetitionerlWife produced 30 proof of a bonus that he received on one occasion. Earlier in proceedings, the 18-11-02 - DH & BW - FAM 105 of 2014 -Judgmenl- Anonymised and Released for Publication on 19-01-10 Page 14 of 17 .,:..IJ''':~:.:!''' ' '''' ''''' i'~~\'O CO,:, '"~. ".-...... VLl", ,," ~r \ I "~.' I,: "".~'.V ;h 'i~ Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment l C) r·;".i. 1, :'''~I '-~: & ;eing distributed on the strict understanding that in any report no person other than the attorneys (and , . ~~~:(~: .' ~'~l £ ?yiother person identified by name in the Judgment itself) may be indentified by name or location and in ~0.? ;:f:i" ,(,:;;:tJ>~"' . ~l~fticu'ar the anonyment of the child and the adult members of their family must be strictly preserved . !;'ih·, > •• ......-:: .. ~r.~ '1, '.-. 'IN \t~v . ~ ,. ~ •• "'.t" 1:..;;,,.;..' .'.~ ~. 2 Respondent/Husband had admitted working on an ad hoc basis by assisting his father with his heavy equipment earning $100 or $200 monthly. 3 4
For her part, the PetitionerlWife was no longer employed. She stated that she 5 did some baking so as to receive an income but did not provide any details of 6 such said income. 7 8
She went on to ask the Court to draw an inference of hardship caused to her 9 due to physical abuse. She submitted that she had been deceived by the 10 Respondent/Husband in respect of their matrimonial home and additionally 11 suffered from stress and an incurable illness. She asked the Court to award 12 her $700 in monthly spousal support. 13 14 15
The evidence has established that the Respondent/Husband receives a 16 regular monthly salary from the Water Authority although the monthly quantum 17 varies. Additionally, he is a skilled farmer and when in possession of the "tools" 18 required for farming, he can derive income from that occupation. These 19 proceedings have not allowed the Court to estimate what such earnings would 20 be. It was also accepted from the evidence that the Respondent/Husband can 21 obtain additional income on occasion, by working with his father. Again, the 22 value of these side jobs cannot be estimated. 23 24 61 . The PetitionerlWife's allegations of physical abuse have not been proved and 25 consequently the inference of hardship that she invites the Court to conclude 26 cannot be made. 27 28
Both parties have requested that the Court make orders allowing them to have 29 a "clean break". This can best be achieved, by the awarding of a lump sum 30 payment to the PetitionerlWife rather than an order for monthly spousal 31 support. This was a long marriage but there are not a great deal of liquid assets 32 to utilize. I award the PetitionerlWife the sum of $30,000 to be paid by the 33 18-11-02 - DH & BW - FAM 105 of 2014 -Judgment - Anonymised and Released for Publication on 19-01-10 Page 15 of 17 <""...;:.'t; • ~ ' • . /.~~s>s.~.?;,-~ This Judgme nt was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment it C~~.~ w~ ~ .,~ \~''';i~ being distributed on the strict understanding that in any report no person other than the attorneys {and ;i (? r:;'u~.;:. :·l::7~·~! any other person identified by name in the Judgment itself) may be indentified by name or location and in iI~"~' '!j~.~ ,:. .. .'.' J" ~~,articular the anonyment of the child and the adult members of their family must be strictly preserved. 'f' . r ,. ' . ,.;f~ '!t<t.I/l , ""' ., . "-' ~~.'" '. ~ '--«f •... ~J/ '\'\./7/'> ,,-;,<i,Jr .. · Respondent/Husband. No separate order for spousal support is made . . . ·Afl-d "S J . <, ... .... 't: , y;~7'- .2 3 Conclusion 4
Based on the foregoing, the following orders are made in settlement of 5 ancillaries. 6 7
A Joint Resident Order is made for the minor child J born on September 1, 8 9 10
She will have contact with each parent on a flexible basis as she requires. 11
The Respondent/Husband must pay maintenance of $800 per month for 12 13 14 15 16 17 the minor child until she reaches the age of 18 years or completes full-time education up to the age of 21 years whichever is later. The first payment is to commence on 15th November 2018 and is payable on or before the 15th day of each month thereafter. Payments to be made to the Court Funds Office. 18
The Respondent/Husband shall pay the minor child's educational and 19 20 21 22 medical expenses reasonably incurred until she reaches the age of 18 years or completes full-time education up to the age of 21 years, whichever is later. 23
The PetitionerlWife is awarded one half of the Respondent/Husband's 24 25 26 27 share in the former matrimonial home located at 35 Raven Avenue, Savannah, Grand Cayman and registered at Registration Section Spotts Block 25C Parcel 147. 28
The value of the PetitionerlWife's share in the former matrimonial home is 29 30 31 $38,500. Upon payment of this amount to her she must vacate the former matrimonial home. 18·11 -02 - DH & BW - FAM 105 of 2014· Judgment - Anonymised and Released for Publication on 19-01·10 Page 16 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 This Judgment was delivered in private, but the Judge hereby gives leave for it to be published. The Judgment is being distributed on the strict understanding that in any report no person other than the attorneys (and any other person identified by name in the Judgment itself) may be indentified by name or location and in particular the anonyment of the child and the adult members of their family must be strictly preserved.
The Respondent/Husband is required to transfer $27,357.54 of his pension to the PetitionerlWife's pension plan.
Each party is to retain the benefit of his/her vehicles and bank accounts.
The Respondent/Husband is to pay the PetitionerlWife the sum of $30,000.00.
No Order as to Costs.
Liberty to Apply. Nova Hall Judge of the Grand Court (Acting). 2nd November 2018. 16·11-{)2 - DH & BW - FAM 105 of 2014 . Judgmenl - Anonymised and Released for Publicalion on 19-{)1·10 Page 17 of 17