Olivia Gourzong v Stanley Gourzong - Judgment

¶ IN CHAMBERS IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO: D66 OF 2003 BETWEEN: OLIVIA R. GOURZONG Petitioner AND: STANLEY R. GOURZONG Respondent APPEARANCES: Counsel for Petitioner: D. Murray of Associated Advocates Chambers Counsel for Respondent: Ms. S. Brooks of Brooks & Brooks Heard: January 6, 2005 JUDGMENT Levers J, The parties were married on 4 December 1981. The marriage lasted for some 21 years. There are two children of the union. For purposes of this application, however, there is only one relevant child Rachel Gourzong born on 7 April 1989. Both parties have petitioned the court for relief as to custody and maintenance for the said child and as regards the disposal of matrimonial properties. The Petitioner had filed a summons, which was adjourned, and the Respondent has now filed for the following specific relief:

¶ [1] That the parties be granted joint custody of the minor child of the marriage: namely Racquel Sonelia Gourzong who was born on the 7 April 1989 with the Respondent having day to day care and control of the said child and the Petitioner having reasonable access to her;

¶ [2] That the Petitioner pay such sum as maintenance for the said child of the marriage as is deemed appropriate by this Hon. Court;

¶ [3] That the matrimonial properties be disposed of as this Hon. Court shall deem appropriate;

¶ [4] Such further and other relief as this Hon. Court shall deem necessary. CUSTODY As worded the Respondent's Summons asks for care and control of the said child. However, when this matter came up for hearing, the Respondent conceded that he was at present not in permanent accommodation but was still fairly anxious to have care and control of the child. It is common ground between the parties that they should have joint custody of the child of the marriage. In order to assist the court there was a Social Enquiry Report and the recommendation therein was that care and control of the child should vest in the Petitioner. As is well established when making orders for custody care and control the paramount consideration is the welfare of the child and any order made must be in the best interest of the child. It is the evidence in this matter that the Petitioner was the primary care giver of the said child. The child in question has a debilitating illness and requires perhaps more care than a usual child of this age. She also has the need for greater care because of her illness and tardy mental development. The child has always resided with the Petitioner. The Respondent makes certain allegations against the Petitioner. He states: 1. That the Petitioner does not spend enough time with the child; 2. That the Petitioner does not appear to give the child priority in her life; 3. The Petitioner continues to visit the same male friend whom he sought to make a co-respondent in this matter; 4. That the child has informed him that she has to work while in the male friends company by cooking and cleaning for this man;

¶ [5] The Petitioner alleges that the child is left many a night with the helper and he states that if he had care and control, he would spend a lot of quality time with the child; and

¶ [6] That the child would love to come and live with him. In view of the Social Enquiry Report and the evidence submitted in Chambers through the affidavits, I do not find that the Respondent has made out these allegations. I do not find any evidence that the mother is an unfit mother or that the child has suffered in any way because of the fact that she lives with the mother. It is clear that the Petitioner is the one that has taken the child abroad for the various medical examinations and treatment and it is the Petitioner who has taken a very active interest in the child's education. Despite the fact that the Respondent's living circumstances may militate against him at present, this Court would have considered his application had it been that the mother was seen to be unfit in any way. Therefore, in the circumstances it is felt that it is in the best interest of the child at present to award joint custody with care and control to the Petitioner with reasonable and generous access to the Respondent. There is an order currently in force made by this Court on the 19 September 2003 and in that access has been defined to be on every Monday, Wednesday and Friday afternoons as well alternate Saturday's and Sundays. In addition to that I would award access as follows: 1. Half Christmas day; 2. Half of every school holiday; 3. Father's day; 4. Father's birthday; 5. Half of the child's birthday; and 6. Any other access that is reasonably agreed between the parties. MAINTENANCE The Respondent at present pays $500 a month as maintenance plus pays half the school fees. This order is to continue in addition to the Respondent paying the following: 1. Half Medical; 2. Half dental; 3. Half optical; and 4. Half extra-curricular expenses. The maintenance order to continue until the child is 21 years old and thereafter, depending on the child's health, the Petitioner to have liberty to apply for a continuation of this order. The order is to be reviewed every 2 years with a view to assessing the adequacy of the maintenance. MATIMONAIL ASSETS The law pertaining to the division of the matrimonial assets is governed by Section 19 of the Matrimonial Causes Law of the Cayman Islands which reads as follows: "In dealing with all ancillary matters arising under this Law. The Court should have regard first of all to the best interest of any children of the marriage and thereafter to the responsibilities and financial and other resource, actual and potential earning power and the deserts of the parties." It must be read in conjunction with Section 22 of the Law, which provides as follows: "At the time of pronouncing a decree under this law the Court shall as appropriate make order for: (a) 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 spouse made in consideration of the marriage. Whether such settlement was made before or on the treaty of the said marriage; (d) Varying any other settlement of the matrimonial property; (e) Making financial provision 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." Section 22 of the Cayman Law gives a much wider discretion to the Court to make the appropriate order than the English law. This therefore places tremendous burden on the court and the court must at all times endeavor to make an equitable and fair settlement considering the following factors: (1) The length of the marriage; (2) The age of the parties; (3) The income and earning power of the parties; (4) The amount of matrimonial and non matrimonial property available to the parties; (5) The needs and obligations of the parties as recognizing that an award need not necessarily be limited to a parties needs when there is matrimonial property that exceeds both parties needs; (6) The liquidity of the parties including one parties ability to pay any lump sum award without seriously impairing his or her ability to continue to generate sufficient income and finally, the desserts of the parties including the contribution that the parties have made to the accumulation of the matrimonial, as well as non-matrimonial property. In this case the task of this Court is made slightly less difficult, because the parties have agreed to what the matrimonial assets are: 1. Block 22 D, parcel 23, 24 and 53 2. A parcel of land 72(c) End End Block parcel 58 and 59 owned by the Respondent. 3. A further property owned by the Petitioner in East End. The parcel of land owned by the Petitioner in East End was inherited as was one of the parcels of land owned by the Respondent in East End. It is agreed between the parties that the 2 inherited parcels of land should not come into the equation and I believe the principals of law applicable to this would make this an appropriate order save and except that if for some reason the Court felt that the requirements of the parties needed a wider look at the matrimonial assets then it would be that these properties would come into the equation. As it stands however, the parties are agreed that the matrimonial home are the only point of contention. The matrimonial home was built on land brought into the marriage by the Respondent. The Petitioner concedes that the Respondent owned this land with a home on it when the marriage took place. The land and the home are in the Respondent's name. Substantial improvements made to the home after marriage makes it now worth $250,000. The value subscribed to it at the time it was brought into the marriage by the Respondent is $95,000. The Respondent's case is that he brought this land and home into the marriage and that the Petitioner is not entitled to the land and/or the home save and except for the improved value of the house to which she may be entitled to a percentage. Ms. Brooks on his behalf states that had he wanted her to have an equitable interest in the land, he would have transferred it into joint names. All the authorities, she says in which land and/or home are brought into the marriage deal with a situation where the owner of the properties transferred them into the joint names of the parties. Mr. Murray on behalf of the Petitioner submits that various factors militate against Ms. Brooks' interpretation of the law. He says that the law is not blinded to the fact that the length of the marriage, the contribution of the parties, the needs of the parties sometimes require the court to look at all assets brought into the marriage even those owned solely by one spouse. The case of White v White [2001] 1 All ER, I believe is instructive in this regard at page 2, it was held: "A claimant's financial needs, even when interpreted generously and called 'reasonable requirements', were not to be treated as determinative. There was no support in the statutory provisions for a conclusion to the contrary. Nor was there anything in the statutory provisions, or the underlying objective of securing fair financial arrangements, which led to the supposition that the available assets of the respondent husband became immaterial once the claimant wife's financial needs were satisfied. Although on the facts of a particular case there might be a good reason why the wife should be confined to her needs and the husband left with the much larger balance, the mere absence of financial need could not, by itself, be a sufficient reason. If it were, discrimination would be creeping in by the back door, bearing in mind that the claimant was usually the wife. Hence the importance of the check against the yardstick of equal division. There was much to be said for returning to the words of the statute, and confusion might be avoided if courts stop using the expression 'reasonable requirements' in such cases. That would not deprive the court of the necessary degree of flexibility. In assessing financial needs, the court would have regard to a person's age, health and accustomed standard of living. (The latter criteria does not apply to the Cayman Islands) It might also have also have regard to the available pool of resources." White v White goes on: "Thus in deciding what would be a fair outcome, the court was also required to have regard to other factors such as the available resources and the parties' contributions." Ms. Brooks argues that anything owned by either party to the marriage prior to the marriage should not become a matrimonial asset. The instructive passage that I have quoted from White v White makes it quite clear that in order to come to a conclusion and order on the equitable division of property, the court can look at various factors including the wife's requirement and the circumstances of each case and look at resources outside the strict interpretation of matrimonial assets. Ms. Brooks argues that for the following reasons, the court should not take into account the matrimonial assets without giving Mr. Gourzong, the Respondent, the credit for the amount of money he brought into the marriage in the sum of value of the property and the home ($95,000). Further she says he paid all the mortgage on the property and that Mrs. Gourzong's contribution should be assessed only on the difference of the value of $250,000 less $95,000 which is the enhancement value after the marriage and that Mr. Gourzong should be entitled to keep the matrimonial home. This Court having already decided that Mrs. Gourzong should have care and control of an ill child, it is incumbent on the Court to look at her needs. Furthermore, the Court must consider that the length of the marriage is fairly long and, the age of the parties and their contributions. There is not a great difference between the income and earning power of the parties. Her needs and obligations however, because of her sick child would be fairly onerous. Mr. Gourzong is maintaining the child, but the Court must still bear in mind that the child is her primary responsibility on a daily basis. I believe, that in view of all the circumstances of this case, it would be most equitable if I consider the matrimonial home as an asset and not only the enhanced value of it. It is conceded that Mr. Gourzong did not transfer it into the name of the Petitioner but it is clear from the inception that this property was to be their matrimonial home. If one was to look at the settlement as a whole, Mrs. Gourzong, (if I was to decide that only the enhancement value was to be given to her) would leave this marriage with little or no assets save and except her inherited piece of land. Her needs must be the same as Mr. Gourzong's needs and she will need to start life by putting down a deposit on a home in which she and the child could live. An added feature in this matter that needs to be considered is that Mr. Gourzong and Mrs. Gourzong have a mortgage on the property and the Bank is about to foreclose on the property. Mr. Gourzong has agreed and stands ready, he states, to pay off the mortgage on the property. Mrs. Gourzong will bear her own debts, she says. I believe that the Court would not do justice to Mr. Gourzong, if it was to hold that Mrs. Gourzong would have leave to purchase Mr. Gourzong's interest in the land and home. It is perhaps appropriate and fair that the Court accedes to his request to keep the home, as he stands ready to pay off the mortgage and save the matrimonial home. But the question is, is it right to give the credit for the $95,000 which he claims was the value of the home when he brought it into the matrimonial property. In view of the principles of law stated above and in view of the factual situation in this case, I believe the appropriate Order is as follows: 1. That Mr. Gourzong has leave to purchase Mrs. Gourzong's 50% of the net value of the land and the matrimonial home valued at $250,000. The amount to calculate the net value to be deducted from the $250,000 must be the amount of the outstanding mortgage alone and thereafter, the property divided 50:50; 2. Mr. Gourzong to get consideration for the value of the land alone that he brought into the marriage. That is $45,500. 3. That Mrs. Gourzong be permitted to live in the matrimonial home for a further 12 months from the date of this Order until she finds adequate accommodation for herself and the child; 4. Mr. Gourzong to purchase Mrs. Gourzong's share within a period of 6 months and that if he does not exercise that option then she has the option to purchase his share; 5. The parties each to keep their inherited land; 6. That the Respondent be allowed to keep the property he has in East End which is another parcel, in addition to the inherited parcel he has;

¶ [7] That the Respondent to keep parcel 23;

¶ [8] That should the Petitioner be unable to find suitable accommodation within the 12 months as stated above, she has liberty to apply for an extension;

¶ [9] That whilst the Petitioner is living in the matrimonial home she maintains it in a habitable condition and;

¶ [10] That the Respondent payoff the mortgage outstanding in order to avoid foreclosure;

¶ [11] The time share in Florida to be given to the Respondent;

¶ [12] Liberty to apply generally; and

¶ [13] No order as to Costs. Dated this 18th day of January 2005 Judge of the Grand Court