Gregory Bowman Petitioner v Marlese Bowman Respondent [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | JOSEPH, Monica J |
| Judgment Date | 04 October 2011 |
| Judgment citation (vLex) | [2011] ECSC J1004-1 |
| Docket Number | CIVIL CLAIM NO. 128 OF 2009 |
| Court | High Court (Saint Vincent) |
| Date | 04 October 2011 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CIVIL CLAIM NO. 128 OF 2009
This is an ancillary relief application by the Petitioner. The parties, who were married on 15th December 1992, have two children: Macgregor Anthony, bom on 31st March 1993, and Mikaila Leisa born on 6th May 1995. There was a decree nisi on 5th March 2010, to be followed by a decree absolute when satisfactory arrangements are made for the children.
The Petitioner filed an Affidavit of Means on 26th November 2010 and the Respondent filed an Affidavit in Response on 7th December 2010. There was a further Affidavit of the Petitioner filed on 11th February 2011.
The Petitioner claims: That he is entitled to a half share of the equity of the matrimonial home. The Respondent to pay the Petitioner a sum equivalent to his half share and in default the property to be sold and proceeds distributed equally. The Respondent to pay the Petitioner half of the profit from the sale of the house at Glen, that is, $15,000.00. The parties to keep their respective vehicles. The Petitioner to pay $800.00 per month as maintenance for the children of the marriage.
(a) Should the parcel of land at La Croix given to the Petitioner by his father on the occasion of his decision to get married be regarded as matrimonial asset
.(b) Should the property at Beachmont which the Respondent inherited from her father be regarded as matrimonial asset?
The evidence taken as a whole, is that each party contributed equally, financially and otherwise to the welfare of the family over the years. Each party is entitled to half a share in the major matrimonial assets, the Beachmont property, the La Croix property and the $30,000.00 profit earned from the sale of the Glen property.
As the Petitioner wishes to keep the La Croix property, counsel's submission was that the best way to achieve this is to set off the Respondent's interest in the La Croix property against the Petitioner's interest in the Beachmont property. In that way, each party will be able to receive a fair portion of the major assets while still retaining an appreciable interest in the gifts which each of them received from their respective families.
Counsel then specified a number of ways in which setting off can be achieved, including the calculation of mortgage interest outstanding, (no evidence was led on the mortgage balance) and deductions made from the value of properties. Counsel cited a number of cases includingStonich v Stonich BVI Civil Appeal 17 of 2002; White v White (2001) 1 AC 596; Hughes v Hughes (1993) 45 WIR 149.
Counsel invited the Court to dismiss the Petitioner's application to transfer half share in the Beachmont property to him. The Respondent inherited a quarter share in that property valued at $238,972.00, her share is now $59,743.00. The Petitioner, since March 2008, has paid $771.00 per month toward the mortgage on this property and the Respondent's salary maintained the home.
Taken at its highest, submitted counsel, the Petitioner's share in the property can only be assessed at $30,556.00, which is the approximate amount he would have paid towards the mortgage. The Petitioner cannot justify his claim for a half share of the property, inasmuch as the Respondent argues that she also made contributions towards mortgage payments by utilizing her salary to maintain the home. Counsel for the Respondent cited a number of authorities, some cited by Counsel for the Petitioner, andLawrence Wheatley v Raishauna Wheatley 301 Civil Appeal 6 of 2007.
I rely on the evidence of the Petitioner in some instances, in other instances, on the Respondent, as I assess the witnesses, the manner of the giving of evidence coupled with the evidence they have given.
In exercising a discretion in the distribution of matrimonial property, the principle to be followed is that there should be equality, if equality is fair. No equality if unfair. In deciding on what is fair and on the parties' contributions to the welfare of the family, the factors set out in section 34(1) of the Matrimonial Causes Act (Cap 239) (the Act) are to be taken into account
In the fairness concept: I consider any situation that may displace the equality principle. These are: the claim made by the Respondent (denied by the Petitioner) that the Petitioner's father made a wedding gift of Glen property to the parties; and the fact that the parties bought the interest of the Respondent's brothers in the Beachmont property. I amrequired to check my views against the yardstick of equality before departing from that concept. In Stonich v Stonich BVI Civil App.17 of 2002 Saunders J.A. said:
"As Lord Nicholls states, (White v White) each in their different spheres contributed equally to the family and, as a general rule, equality in the distribution of matrimonial assets should be departed from only if, and to the extent that, there is a good reason for it."
The factors set out in section 34 (1) of the Act are:
The Petitioner holds the pensionable post of a Town Planner holding a Master's degree, employed with the Government of Saint Vincent and the Grenadines, earning a monthly income after taxes of $5,751.67. His monthly expenses are $5,406.41. The Respondent is a Graduate Teacher, holding a Master's degree, employed by the Government of Saint Vincent and the Grenadines, earning a monthly salary of $4,035.15 after taxes. Her monthly expenditure is $4,407.56. She has been unemployed since December 2010, when she left for Canada.
Both parties are highly educated and the future is promising for them both. Although the Respondent is unemployed at the moment, this is likely to change with an improvement in the economic situation.
There are three properties: the Glen property was acquired during the marriage and sold in 2008, with the parties making a profit of $30,000.00, which is to be divided equally.
The La Croix property: the Petitioner's first affidavit evidence was that his father gave him La Croix property (which he does not consider to be a matrimonial asset) by deed of gift which was conveyed shortly after the marriage. Since the breakdown of the marriage, his father has asked him to restore title to him, which he has done by deed of gift. His oraltestimony was that he has not produced a copy of the deed, but that a copy is at the High Court. The Petitioner also said, in cross examination:
"That parcel of land wasn't given to me as wedding gift. Since I was a child my father had promised me that parcel of land. When I became a man he said that's now yours. He gave me when I became a man. I don't know when I became a man. He transferred it to me when I told him Marlese was pregnant. I was born in 1963. In 1992 I got married. I was 29. Don't know age of majority here. My father didn't transfer it to me at age 18 nor at age 21. On occasion of my marriage he transferred it to me."
"I commence a chattel house on that land to have some place to stay. I bought it for $7,000.00. I commenced improvements about nine months ago. Am still working on it. House and property…. This is house given by my father…am still making improvements on it……Land is very land chattel house is on. I have restored title to him. I did so by deed of gift. I knew I was coming to give evidence. I do not have it with me but it is available at the court house."
Deed 1480/1993 conveying La Croix property was made on 17th January 1992 between donor Augustine Anton Bowman and donee Gregory Keith Anthony Bowman and the parties were married in December 1992. Although the land is conveyed only to the Petitioner, the Petitioner's evidence does not convince me that La Croix was a gift to him. I believe the Respondent's version that the Petitioner's father gave them the land as a marriage gift. I hold that this property is a gift to both parties and they share equally.
The Beachmont property: described by the valuator as 3,775 sq ft Urban Residential, valued at $238,972.00. The Petitioner seeks one half share of the Beachmont property. The Respondent deposed in her affidavit that the property had a value of $228,000.00 and her share at the time, $57,000.00 (now valued $59,743.00) and her brothers' shares $171,000.00 (now valued $179,229.00). The Petitioner's oral evidence, "…I am entitled it depends on how the other properties go including land at La Croix…"
Where property is inherited, decided cases show that a court holds that property is not a matrimonial asset, and the party who received the gift, keeps it. $57,000.00, being the Respondent's inherited share, belongs to her. She therefore has a $57,000.00 (now $59,743.00) interest in the value of the property. A court takes that inherited share into account in considering the contribution she has made to the welfare of the family.
Another factor to be considered is that the parties purchased the brothers' shares of $171,000.00. Part of the purchase price of $171,000.00 to pay for those shares came from loans obtained by the parties: $140,000.00 by means of bank Mortgage Deed 993/2008 for $100,000.00 and by Mortgage Deed No. 996/2008, a further loan of $40,000.00, using the La Croix property as security. Deed of Assent 811/2008 vested Beachmont in the Respondent's name. What about the difference of $31,000.00? The Respondent's oral evidence was:
"Money...
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