Levers J
IN CHAMBERS IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO: D103 OF 2001 BETWEEN: ANDREW ANTHONY KIDD Petitioner AND: MELROSE KIDD Respondent APPEARANCES: Counsel for Petitioner: Ms. E. Nervik of Nervik & Co. Counsel for Respondent: Ms. K. Reid of McKinney Reid & Co. Heard: February 16 & 17, 2005 JUDGMENT Levers J, The Petitioner, Andrew Anthony Kidd has summoned this Court for the formal determination of ancillary matters and asks for the following relief:
An order as to the custody, care and control of child of the marriage, namely Yannick Akaim Kidd born on the 29th November 1997;
An order as to the maintenance of the said child of the marriage;
An order as to costs; and
Such further and/or other relief that this Honourable Court deems fit and proper. The Respondent has also filed a Summons asking for the following relief: 1. Custody of the child Yannick Akaim Kidd; 2. Reasonable maintenance for the child of the marriage; 3. That there be no order as to access to the child in favour of the Petitioner until and unless a report is submitted to the Honourable Court by a medical Social Worker, Psychologist or like professional employed by the Cayman Islands Government stating that it is safe and in the best welfare of the child that he be granted access; 4. That there be a property adjustment order and/or lump sum payment to the Respondent;
Further and other relief; and
Costs. Before the commencement of the hearing of this matter, with the Court's guidance and assistance, the parties came to a Consent Order as to the custody of the child. The following Order was made: 1. Joint custody be given to the Petitioner and the Respondent; 2. The Respondent to have access to the child every other weekend, half school holiday, every other Christmas 3. Access on Father's day to the Petitioner and the Petitioner's birthday to the Petitioner; 4. The Respondent to have access to the child on Mother's day and her birthday; 5. Care and control to the Respondent; 6. The Petitioner to pay maintenance at $75.00 per week for the maintenance of the child plus half school fees and half medical, half dental and optical fees not covered by the insurance. The maintenance of $75.00 per week to commence on the 1st March 2005 and to be paid into the Court's office.
The child not to be taken out of the jurisdiction without the permission of either party or the leave of the Court for more than 5 days; and
The parents are to inform each other as to the whereabouts of the child when abroad even for a short time. That now leaves me with the question of the matrimonial asset. It should be noted that the Petitioner did not ask for relief relating to the assets because his position is that the assets having been brought into the marriage and not being in the name of the parties jointly, the Respondent is not entitled to any relief. In short that there are no matrimonial assets. The Respondent's position is that although the bulk of the assets were brought into the marriage, the improvements thereto were contributed to by her and therefore, she is entitled to a percentage of the improved value of the assets (ie. the matrimonial home). Background The parties lived together for approximately four years before getting married in 1997. There is one child of the union born in 1997, namely Yannick Akaim Kidd. After marriage, they commenced living in the matrimonial home which at the time was a two bedroom, two bathroom house. During the marriage both parties seemed to have worked, the Petitioner more consistently and regularly than the Respondent. The Respondent according to her passport and on her own admission traveled frequently either to Miami or to Jamaica. Her trips to Miami were for commercial purposes where she purchased clothes for sale in Cayman. Her trips to Jamaica were to look for her dependant mother and her child. However, when she was in the Island it would appear she worked in various positions as a cashier and a clerk. She alleges that she made direct and indirect contributions to the improvement of the matrimonial home. The marriage was an unhappy one during its latter stages and in 2001, 30th July, the Petitioner filed for the dissolution of the marriage. It would appear that subsequently, the parties attempted reconciliation, but were unsuccessful and in December 2002, the Respondent left the matrimonial home. On the 5th June 2003, the Petition for divorce was proceeded with and proved and the ancillary matters were adjourned to chambers. The only asset was the matrimonial home to which the Respondent makes a claim. A brief chronology of the ownership of this property is relevant and useful for purposes of this application. 25th April 1990 The property was transferred from Petitioner's sister to the Petitioner. 4th July 1990 The property was transferred from the Petitioner's name to joint names of the Petitioner and his first wife. Early part of 2000 - The property was transferred from the joint names of the Petitioner and the first wife into the sole name of the Petitioner by a court order. 6th July 2000 The property was transferred from the sole name of the Petitioner to the joint names of the Petitioner and his sister. It is not disputed that the main house as I will call it, was brought into the marriage by the Petitioner. It is important to note that the property had been transferred originally from the Petitioner's sister to the Petitioner. The issue in question is the Respondent's claim to the improved value that was undertaken during the course of the marriage. The Petitioner borrowed monies from the bank to finance the improvements. The first draw down was on the 1st December 2000 in the sum of $25,673. The second draw down was on the 25th July 2001 in the sum of $25,820.00 and the third draw down was on 10th September 2002 in the sum of $5000.00 and the fourth draw down was on the 19th September 2003 in the sum of $7500.00. The total borrowed was $63,993.00. The parties agree that neither the property nor the loan was in the name of the Respondent. Indeed, the Petitioner alleges that the 6th July 2001, transfer was undertaken There is no text on this page. because the Petitioner asked his sister to guarantee the loans. The Petitioner's Case The Petitioner's position is that the Respondent does not have a claim to any part of this property. That the property is owned with the right of survivorship to his sister. That the Respondent made no financial contribution whatsoever to the improvement that is the two apartments built onto the main house and that she has not acted to her detriment but instead, she got a benefit. He states that she lived there rent-free and that there is no presumption of a gift. He submits therefore there that is no issue of intent and nothing that has been said by the Respondent gives her a beneficial interest. The Petitioner further says that what There is no text on this page. ever money the Respondent made was used to purchase land in her name in Jamaica in the sum of $10,000CI approximately and was sent to support her mother and son in Jamaica and another child in the United States of America. The Petitioner admits that his conduct was not appropriate during the marriage and states that he did abuse the Respondent on more than one occasion. However, he says that the Respondent exaggerated the question of abuse and he invites this court to look at one of the charges that was laid against him. That is the charge of "intent to insult the modesty of woman, namely Melrose Kidd called her, a bitch". Very often insulting words are used in homes where there is acrimony between husband and wife. The Court therefore has to look at the nature of the charges laid to assess the conduct of the parties. If this Court holds that the Respondent has a claim to the property then the conduct of the Petitioner would become relevant and will have to be examined. Respondent's Case The Respondent admits that she commenced living with the Petitioner in the matrimonial home when it was a two bedroom, two bathroom unfurnished house. She alleges that he was in arrears with the Royal Bank in the payment of the house mortgage, and that she assisted the Petitioner in clearing the mortgage payments and went as far as attending the bank with him and seeing a loans officer to indicate that there were two of them to assist with the mortgage payments. This, of course, deals with the main house. The house to which she does not lay any claim. The house which was brought into the marriage. The Respondent gives no dates, gives no amounts paid and gives no details as to the payments made by her. She further alleges that she worked during most part of her marriage and that she was only unable to work for several months around the period of September 2001 to February 2002, because the Petitioner abused her to such an extent that her health would not permit her to return to work. She states and I quote: "We added a two bedroom apartment and a one bedroom apartment, I contributed substantially to the building of this extension and to the furnishing of the entire of matrimonial home. I would often buy furniture for the home out of my wages." The substantial contribution to the building of the extension is the only relevant issue for purposes of this application. The Respondent does not give any details whatsoever as to her contribution direct or indirect. She goes on: "I would go and request building materials, furniture and labour from friends and church people. I gave the Respondent money on many occasions to assist with the building. I also did some of the labour myself. I did most of the work to see that the addition was completed. The Petitioner/Respondent was hardly around, although he would go to order and pay for the building materials. Any financing would have been done in the Petitioner's name. However, I would assist with those payments in addition to giving the Petitioner/Respondent money to help otherwise. I also had to pay most of the household bills. Many of the payments for the household bills or utilities were deducted from my account at Canadian Imperial Bank of Commerce. I am now shown a printout of my account which reflects many of the payments I made for the household." There is no evidence before this Court that the Respondent has been able to provide, to confirm the request for materials, furniture and labour from friends. The evidence is that on one occasion, a friend of the Petitioner's gave them some cement which was put on the driveway and the Respondent and her cousin helped to level the cement on the driveway. The Court reminds itself that the evidence given by the Respondent is that she did most of the work to see that the addition was completed. The lack of details leaves the court in some difficulty as far as this is concerned especially in circumstances where Mr. Franklin Wright was called by the Petitioner who gave evidence that he was the contractor on the job. That he undertook the building of the addition onto Mr. Kidd's house from foundation to the end. He also gave evidence that Mrs. Kidd would be seen around but never discussed anything as far as the building was concerned. That in There is no text on this page. fact, it was Mr. Kidd that always paid him. To sum up Mrs. Kidd's allegations are that: (1) She assisted in the building by borrowing material and furniture from friends, and got the assistance of labour from friends and church people. (2) That she did most of the work to see that the addition was completed and (3) That she assisted with the payments to the Petitioner. These are substantial allegations and would justify a claim to the property. However, this court has no details whatsoever from Mrs. Kidd. What the Court is left with is the following: 1. That documentary evidence has been provided by the Petitioner to show that the improvement was wholly financed by the Bank; 2. That there was a contractor who did the work; 3. That when the one bedroom apartment was completed sometime in 2001, the Respondent was not in the Island; 4. That there is no evidence from the Respondent apart from her allegation that material was given to her from friends or that friends assisted with the labour; 5. That when she alleges that she did most of the work to see that the addition was completed, it flies against the sworn uncontested evidence of Mr. Wright. Mrs. Reid on behalf of the Respondent in cross-examination put it to Mr. Wright that in fact he came on the property when it was up to the window stages and that it was another man who had undertaken the work up until then. Mr. Wright denied it and I find Mr. Wright a credible witness. There was no cross-examination as to any work done by Mrs. Kidd. It is perhaps convenient at this stage to turn to the law. The Matrimonial Causes Law (1997 Revision), section 19 sets out the general principles to be followed by the Court in ancillary matters: In dealing with all matters arising under this Law, the Court shall have regard first of all to the best interests of any children of a marriage and thereafter to the responsibilities, needs, financial and other resources, actual and potential earning power and the deserts of the parties. Section 22 deals with ancillary matters: At the time of pronouncing a decree under this Law, the Court shall, as appropriate, make orders for- (a) the custody, care and control of the children of the marriage; (b) the disposition of matrimonial property, including the matrimonial home; (c) varying any settlement of the property of the spouses made in consideration of the marriage, whether such settlement was made before or upon the treaty of the said marriage; (d) varying any other settlement of matrimonial property; (e) making financial provisions from the property of either spouse for the children of the marriage and for the other spouse; (f) providing for periodic payments to be made by either spouse for the benefit of the children of the marriage and for the other spouse; and (g) costs. These relevant sections come into effect if this Court was to hold that the Respondent's contribution was such that she had a claim to the property. Mrs. Reid relied on the case of White v White [2001] 1 ALL ER. That case can be easily distinguished from this one. In the case of White v White it was a long marriage and the main thrust of the Court's judgment was about the powers conferred on the Court in proceedings for ancillary relief and the need of the Court to make a fair financial arrangement in the absence of agreement between the spouses. The evidence in that case was that the wife had worked and made direct and indirect contribution to the welfare of the marriage and the Court held that equity demanded that it was not the wife's requirements alone that were to be taken into account but equality when division of the matrimonial assets were undertaken. In the case of Doak v Doak [2002] CILR 224, Justice Taylor in his judgment at paragraph 22 says this: "It seemed to us to be of particular importance that the appellant worked and devoted her earnings to family needs, rather than acquiring assets of her own, while the respondent built up a valuable practice." He was dealing with the White test to be applied. The authorities are clear that if a wife is held to have made a contribution directly or indirectly or if there was a common intention that can be inferred from words or conduct or if equity demanded, that there can be a claim that can be There is no text on this page. justified by the wife then the Court must ensure that fairness is achieved in the division of the matrimonial assets. Findings The easiest claim in the world to make is that of an indirect contribution. At the same time it perhaps is difficult to prove because persons who are in an enjoyable relationship do not always keep receipts and bills. However, a wife's claim in circumstances where there is no evidence of common intention or a presumption of a gift and where there is documentary evidence of the bank financing the entirement improvement, must be looked at very carefully. The wife in this case, says they were building the extension and they had little means and that she would go and request building material, furniture and labour from friends and church people. This is to be examined against the evidence that the husband has documented that he borrowed money from the bank. She says he gave the Petitioner money on many occasions to assist with the buildings. There is no evidence of that whatsoever. She also says that she did some labour herself and that she did most of the work to see that the addition was completed and that the Petitioner was hardly around. This is against the fact that the Respondent was away for a period of time when the first apartment was completed. There is no documentary evidence that she assisted financially and indeed, there is not one person who comes before this Court to say that she did most of the work to see that the addition was completed. I have the evidence of Mr. Wright whom I found him to be an honest witness. What perhaps is more revealing is that the Respondent was able to save substantial monies during the course of the marriage and that when she left to go to Jamaica she took close to $10,000CI dollars with her. I bear in mind that the Respondent was not a qualified professional and that whatever she did and however much she supplemented her income without further information to this Court it is difficult to conclude that the Respondent contributed in any meaningful way towards the building. The bank having given the loan, the fact that the Petitioner had to go four times to borrow the money to pay for the extension and Mr. Wright's evidence leaves me in great doubt as to whether the Respondent contributed, if any, or at all to the building of the extension. During the marriage she purchased land in Jamaica in her name alone. I find therefore that the Respondent does not have a claim to any of the property. That the property is owned with the right of survivorship and she made no financial contribution. That she never acted to her detriment and that there is no presumption of a gift. There is no issue of intent. Nothing was said or done to give her a beneficial interest and it cannot be inferred by conduct. I do not find that the Respondent is being honest when she says she contributed in a substantial way. The Respondent's Summons dated 7th October 2003, therefore, asking for relief regarding the matrimonial home is dismissed and the following Order is made: 1. Joint custody of Yannick Akaim Kidd born on the 29th November 1997 to Petitioner and Respondent; 2. Care and control to the Respondent. The Petitioner to pay the sum of $75.00 per week as maintenance plus half school fees, half medical, dental and optical fees not covered by the insurance of the Respondent; 3. The maintenance to be paid into the Court Funds Office, commencing on the 1 March 2005; 4. The access to the Petitioner is every other weekend, half school holidays, every other Christmas, Father's day and father's birthday. The mother is to have the child on Mother's day and mother's birthday if it falls on a weekend or a day when the father is having access; 5. The child is not to be taken out of the jurisdiction without permission of either party or the leave of the Court for more than 5 day; 6. The parents are to inform each other as to the whereabouts of the child when abroad even for a short time; 7. The Respondent's claim for property adjustment and/or lump sum payment is dismissed; 8. The Respondent to receive any furniture or chattels she may have left in the matrimonial home; and
No order as to costs. Dated this 3rd day of March, 2005 Judge of the Grand Court