Thomas Martin Dewitt v Edna Vandeen Dewitt - Judgment

¶ Judgment – Thomas Martin Dewitt v. Edna Vandeen Dewitt Cause No. D66 of 2008 03.05.11 Page 1 of 10 IN THE MATTER OF THE GRAND COURT 1 HOLDEN AT GEORGE TOWN, GRAND CAYMAN 2 3 CAUSE NO. D66 OF 2008 4 5 BETWEEN: THOMAS MARTIN DEWITT 6 PETITIONER 7 8 AND: EDNA VANDEEN DEWITT 9 RESPONDENT 10 11 Appearances: Mr. Philip Boni of Higgs & Johnson 12 for the Petitioner 13 14 Ms. Vanessa Allard of Brooks & Brooks 15 for the Respondent 16 17 Before: Hon. Justice Henderson 18 19 Heard: May 3, 2011 20 21 JUDGMENT 22 23

¶ [1] In this matrimonial cause, the Petitioner Thomas Martin Dewitt passed away in 24 January 2011 during the course of the proceeding. The applicants before me now 25 are the executors of Mr. Dewitt's will. I have already granted an order of probate 26 Judgment – Thomas Martin Dewitt v. Edna Vandeen Dewitt Cause No. D66 of 2008 03.05.11 Page 2 of 10 and directed those executors to file an inventory within six months. The applicant 1 executors now seek an order confirming that certain matrimonial assets which 2 were the subject of evidence and argument during the proceeding have fallen into 3 the deceased's estate. 4 5

¶ [2] The procedural history is relevant. The petition was filed in May 2008. It alleges 6 that the marriage has broken down irretrievably due to unreasonable behaviour by 7 Mrs. Dewitt. An answer and cross-petition were filed on her behalf. The answer 8 denies the allegations of fact set out in the petition. The cross-petition alleges that 9 the marriage has indeed broken down irretrievably, but that has occurred because 10 of the unreasonable behaviour of Mr. Dewitt. The Petitioner has filed a reply. It 11 denies the allegations of fact in the cross-petition. 12 13

¶ [3] Thus both parties are agreed upon the conclusion of law which the Court should 14 arrive at - that the marriage has broken down irretrievably. However, there is no 15 agreement at all upon the truth or falsity of the various allegations of fact 16 asserting unreasonable behaviour which might enable the Court to arrive at a 17 conclusion that the marriage has indeed broken down irretrievably. 18 19

¶ [4] On September 10, 2009 a Judge of this court signed a consent order that: "the 20 petition and cross-petition proceed by way of mutual petitions." 21 Judgment – Thomas Martin Dewitt v. Edna Vandeen Dewitt Cause No. D66 of 2008 03.05.11 Page 3 of 10 1

¶ [5] A certain amount of financial disclosure was made. Mr. Dewitt then took out a 2 summons asking this Court to make a final disposition of the ancillary issues. I 3 began to hear that application on March 24th 2010. In my written judgment of 4 May 20, 2010, I determined which assets were matrimonial assets. Some were 5 not. I determined that the division of property should proceed on an asset-by-asset 6 basis. I determined the value of a number of assets and I awarded some assets to 7 one party or the other. 8 9

¶ [6] However, my task was not completed. I was not satisfied with the adequacy of the 10 disclosure with respect to certain of the assets. I ordered the parties to obtain 11 additional evidence of value regarding the business known as Sea Beauty, a 12 jewelry business, and of certain shares and chattels including paintings in the 13 matrimonial home. No further hearing has been held. 14 15

¶ [7] I have now settled the order of May 20, 2010 as my jurisdiction to do that cannot 16 be affected by the untimely death of the petitioner. 17 18 19 Judgment – Thomas Martin Dewitt v. Edna Vandeen Dewitt Cause No. D66 of 2008 03.05.11 Page 4 of 10 The Position of the Parties 1 2

¶ [8] The executors of Mr. Dewitt say that I should now consider the fresh evidence 3 which has been presented and proceed to make a final order effecting the division 4 of assets. Mr. Dewitt's share of the matrimonial assets would then be distributed 5 under the law of Probate in accordance with his will. Mrs. Dewitt says that I have 6 no jurisdiction to make further orders in the matrimonial cause in light of Mr. 7 Dewitt's death. 8 9 Analysis 10 11

¶ [9] Our Matrimonial Causes Law differs from that of England and Wales. We do not 12 issue Decrees Nisi in this jurisdiction. A Decree of Dissolution is pronounced 13 under s.10 of the Matrimonial Causes Law (2005 Revision) which reads, in its 14 material part: 15 "10. (1) A decree of dissolution of marriage may be pronounced by the 16 Court in respect of a marriage on the ground that since 17 the celebration of the marriage- ... 18 19 (b) the respondent has behaved in such a way that the petitioner 20 cannot reasonably be expected to live with the respondent; ... 21 22 if the Court, after inquiring so far as it can into the facts of the 23 case, is satisfied that- 24 Judgment – Thomas Martin Dewitt v. Edna Vandeen Dewitt Cause No. D66 of 2008 03.05.11 Page 5 of 10 1 (i) the grounds for the petition have been established; 2 3 (ii) the marriage has broken down irretrievably; and 4 5 (iii) no material impediment under this Law exists to 6 the pronouncement of the decree." 7 8

¶ [10] The section requires that a decree be pronounced only after the Court has inquired 9 "so far as it can into the facts of the case." The Court must be "satisfied that the 10 grounds for the petition have been established." A conclusion that the marriage 11 has broken down irretrievably is not by itself sufficient to support a decree. 12 13

¶ [11] Mr. Boni argues that the order that "the petition and cross petition proceed by way 14 of mutual petitions" is intended to be a final determination that the grounds for 15 divorce have been proved to the required standard. I cannot read the order that 16 way. The order says nothing about whether the allegations in the petition or, 17 alternatively, in the cross-petition have been established. They are mutually 18 inconsistent so it cannot be the case that both the petition and the cross-petition 19 have been proved. If the order was intended to show that certain allegations of 20 fact have been established to the satisfaction of the Court more specific language 21 would have been used. This order is merely an interlocutory procedural order 22 confirming that both petition and cross-petition may be heard at a single hearing. 23 24 Judgment – Thomas Martin Dewitt v. Edna Vandeen Dewitt Cause No. D66 of 2008 03.05.11 Page 6 of 10

¶ [12] I am required to postpone the pronouncement of any Decree of Dissolution until 1 all ancillary issues have been disposed of. 2 3

¶ [13] I refer to s. 12(5) of the Matrimonial Causes Law which reads: 4 "12.(5) The Court shall postpone pronouncement of a decree under subsections 5 (2) to (4) until it is satisfied that provision has been made for the custody 6 and care of all the children of the marriage and that no application for any 7 order for- 8 (a) settlement of marital property; 9 (b) financial provision; ... remains outstanding." 10

¶ [14] Secondly, I refer to s.21 of the same Law which reads: 11 "21. At the time of pronouncing a decree under this Law, the Court 12 shall, as appropriate, make orders for- ... 13 14 (b) the disposition of matrimonial property, including 15 the matrimonial home;" 16 17

¶ [15] I emphasize the words "at the time of pronouncing a decree." The effect of s. 21 is 18 that at the time of pronouncing the Decree, I must also make the final order of 19 disposition of the matrimonial property. This was recognized by Taylor, J.A. in 20 Wight v Wight 2006 CILR 416, when he said: 21 "The Matrimonial Causes Law (2005 Revision) provides only for a 22 single, and thus final, Decree of Dissolution of marriage. This may, 23 Judgment – Thomas Martin Dewitt v. Edna Vandeen Dewitt Cause No. D66 of 2008 03.05.11 Page 7 of 10 under s.12(5), be granted only when provision has been made for 1 all ancillary matters, including the settlement of matrimonial property 2 and other financial arrangements, as well as care and custody of 3 children, and when no application for any order in respect of such 4 matter remains outstanding. The practice is for the court first to 5 determine whether the facts alleged in support of the petition for 6 dissolution have been established, which is usually done by 7 affidavit, and thereafter, when an order has been made that 8 these have been proved, to deal with any ancillary matters. Only 9 after orders have been made disposing of the ancillary matters 10 is a Decree of Dissolution of marriage granted. Until the Decree 11 of Dissolution is granted, any order disposing of matrimonial 12 assets is without effect, since the marriage remains until then in 13 effect and could, indeed, be terminated by death, in which 14 case a different disposition of the matrimonial property might 15 take effect." 16 17

¶ [16] Although the passage may be, as Mr. Boni argues, obiter, I respectfully agree 18 with Taylor, JA. A suit for divorce is a personal action. At common law, such an 19 action is abated upon the death of a plaintiff or petitioner. Even in the United 20 Kingdom, where the rule of automatic abatement upon death has been superseded 21 by statute, a claim for a division of matrimonial property cannot survive the death 22 of either party. 23 24

¶ [17] I refer to the 5th Edition of Halsbury's, volume 73, para 684. The body of that 25 paragraph starts off by mentioning the general rule that proceedings abate where 26 one of the parties dies and then says that in light of English legislation there are 27 three considerations involved in determining which, if any, aspects of the 28 Judgment – Thomas Martin Dewitt v. Edna Vandeen Dewitt Cause No. D66 of 2008 03.05.11 Page 8 of 10 proceeding may nevertheless survive the death. The third of those three questions 1 which must be considered is: 2 "(3) the applicability of the statutory provisions which abolished 3 the common law rule that personal actions died with the person." 4 5

¶ [18] That consideration is explained in detail in footnote 4 which reads, in part: 6 "4. A right to apply for financial provision in family proceedings is 7 not a cause of action within the meaning of the Law Reform 8 (Miscellaneous Provisions) Act 1934. (see WILLS AND INTESTACY 9 vol 103 (2010) para 1279); if, therefore, either party dies before an 10 application for financial provision or a property adjustment order 11 has been determined, the court's jurisdiction will lapse: see 12 Dipple v Dipple [1942] P 65, [1942] 1 All ER 234, HL (wife's right 13 to apply for secured maintenance did not survive the husband's death); 14 D'Este v D'Este [1973] Fam 55, sub nom D(J) D(S) [1973] 1 All ER 349 15 (no jurisdiction to entertain an application by the husband's 16 personal representatives against the wife for variation of a 17 post-nuptial settlement). See also Thomson v Thomson and Rodschinka 18

¶ [1896] P 263, CA (no jurisdiction to entertain an application by the 19 personal representatives of the husband to vary a post-nuptial settlement). 20 In Re Bramwell, Campbell v Tobin, [1988] 2 FLR 263 at 267, Sheldon J 21 stated: "In these circumstances, in my judgment, it is clear -- as 22 has been recognised and acknowledged without recorded dissent for over 23 40 years -- that in matrimonial proceedings a claim for financial provision 24 neither gives rise to nor becomes a 'cause of action' within [the Law 25 Reform (Miscellaneous Provisions) Act 1934 s 1(1)] unless an order has 26 been made in respect of it before the death of the deceased: until such an 27 order has been made, therefore, it remains a mere hope or contingency 28 which survives neither against nor for the benefit of the deceased's estate.” 29 30 31

¶ [19] In Mosey v Mosey and Barker [1956] P 26, a wife was the beneficiary of an order 32 awarding to her £300 per annum "to be secured on part of the husband's real 33 Judgment – Thomas Martin Dewitt v. Edna Vandeen Dewitt Cause No. D66 of 2008 03.05.11 Page 9 of 10 property, that part to be selected if agreement has not been reached between the 1 parties by the Registrar". The order was held to create an enforceable claim 2 against the husband's assets after his death. However, the marriage had already 3 been dissolved and the case must be distinguished on that basis. 4 5

¶ [20] In the case at bar, the parties remained married at the date of Mr. Dewitt's death. It 6 cannot be said that a Decree of Dissolution based on the petition or upon the 7 cross-petition was inevitable. A finding that the alleged behaviour did in fact 8 occur and a judicial conclusion that the proved behaviour was reasonable had yet 9 to be made. The ruling awarding to Mr. Dewitt certain of the matrimonial assets, 10 including a share in the matrimonial home, was a provisional ruling which could 11 only be perfected by a Decree of Dissolution. Until such a decree was 12 pronounced, any interest he could be said to have in those assets was no more 13 than an expectation which was conditional upon one party or the other proving his 14 or her grounds of divorce to the satisfaction of the Court. 15 16

¶ [21] It is also true that I have no jurisdiction now to consider the fresh evidence which 17 has been presented, and I have no jurisdiction to make any order effecting a 18 division of assets or to grant a Decree of Dissolution. 19 20 Judgment – Thomas Martin Dewitt v. Edna Vandeen Dewitt Cause No. D66 of 2008 03.05.11 Page 10 of 10

¶ [22] I have not overlooked the submission that Mrs. Dewitt is in contempt of my 1 earlier disclosure order. Assuming (without deciding) that that is so, it cannot 2 have any effect upon the present ruling. Mrs. Dewitt is not the applicant. She does 3 not find herself in the position of a suitor who seeks the assistance of this Court 4 while persisting in flouting a prior order. She cannot be deprived of the benefit of 5 this ruling through her earlier failure to make proper disclosure: see Baker v 6 Baker (No 2) [1997] 2 FCR 249. 7 8

¶ [23] For these reasons I make an order declaring that the ownership of assets possessed 9 by Mr. and Mrs. Dewitt has not been altered or affected by this matrimonial 10 proceeding, which is now dismissed as abated. 11 Dated this 3rd day of May, 2011 12 13 Henderson, J. 14 Judge of the Grand Court 15 16