Josette Corrine Marshall Née Browne Petitioner v Junior Malcolm Marshall Respondent

• Jurisdiction: St Vincent and the Grenadines
• Judge: Henry, J.
• Judgment Date: 21 March 2017
• Judgment citation (vLex): [2017] ECSC J0321-1
• Docket Number: SVGHMT2012/0016
• Court: High Court (Saint Vincent)

[2017] ECSC J0321-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

SVGHMT2012/0016

Between

Josette Corrine Marshall Née Browne

Petitioner

and

Junior Malcolm Marshall

Respondent

Appearances:

Ms. Samantha Robertson of counsel for the petitioner.

Mr. Grant Connell of counsel for the respondent.

INTRODUCTION

Henry, J.

1 Mr. Junior Marshall and Mrs. Josette Marshall were married in 2003 1. They have two children Jamar aged 12 and Jaron aged 6. 2 Unhappy differences led to a breakdown of their union and Mrs. Marshall obtained a decree nisi of divorce in 2012. She has made an application 3 for custody and

maintenance of the children, lump sum payment for her and the children, a property adjustment order in respect of the matrimonial home and costs.

2 Mr. Marshall contends that Mrs. Marshall did not assist him with the construction of the matrimonial home. He alleged that she has instructed him not to have anything to do with Jaron. He accepted that he has an obligation to contribute to the maintenance of the minor children and indicated that he has faithfully done so. He resisted the application for Mrs. Marshall to have sole custody and for the property adjustment order.

3 Mr. Marshall asked that the court award him sole custody of one of the children with custody of the other to Mrs. Marshall. He maintained that the matrimonial home was constructed largely with resources he received from his friends for his benefit and from the proceeds of a loan he obtained from a joint account with Mrs. Marshall.

4 Mr. and Mrs. Marshall are granted joint custody of the minor children. Mrs. Marshall's application for maintenance is granted. She is entitled to a share in the matrimonial home. Her application for a lump sum payment is denied.

ISSUES

5 The issues are:-

1

What order should be made for Jamar's and Jaron's custody, care, control and maintenance? 2. Whether an order for lump sum and periodical payments should be made in Mrs. Marshall's favour? 3. Whether a property adjustment order should be made in respect of the matrimonial home?

ANALYSIS

Issue 1 – What order should be made for Jamar's and Jaron's custody, care, control and maintenance?

6 Before pronouncing a decree absolute of divorce, the court is required to satisfy itself that satisfactory arrangements have been made for the welfare of any minor children of the family. 4 The orders it makes

embody those arrangements and are expected to address all of the child's needs including physical, financial, social, religious and educational.

7 The court's principle consideration is always the child's best interest. 5 When deciding what is best, the court takes into account the child's financial needs; his income, property, other financial resources and earning capacity; any physical or mental disability; the manner in which he was being or was expected to be educated or trained by the parents; and the standard of living the family enjoyed before the breakdown of the marriage. 6

8 The court also assesses the parties' respective ages, any physical or mental disabilities of either; their incomes, earning capacities, properties and other financial resources, needs, obligations and responsibilities and the length of the marriage. It also looks at their contributions to the family's welfare and the value of any benefit which either party will lose as a result of the dissolution of the marriage. 6

9 The court seeks to ensure as much as reasonably practicable and just, that the child is placed in the position he or she would have been if the marriage had not broken down, and each party had properly discharged his or her financial obligation towards him. 6 Neither parent has a superior right or authority to custody of the child or his upbringing 7. The court must examine the circumstances of the case including the parties' behavior towards the child and decide what arrangements would best cater to the child's needs. The resultant order would set out each party's obligations towards the child.

Custody

10 Jamar Junior Marshall and Jaron Jonathan Marshall live with their mother at Rillan Hill and have done so for the past seven and six years respectively. Jamar is in Form 2 at the Buccament Bay Secondary School, while Jaron attends C.W. Prescott Primary School and is in Grade 1. There is no evidence that they or their parents suffer from any mental or physical disability. Neither parent voiced any concerns about the boys' development or conduct. I infer that all is well.

11 Mr. Marshall testified that he currently contributes $200.00 each to Jamar's and Jaron's maintenance by giving them cash each month. He claimed that he purchases all of their school uniforms and school books and assists with their medical expenses. This was neither put to Mrs. Marshall nor disclosed in Mr. Marshall's affidavit. He provided this testimony after Mrs. Marshall had testified. Mrs. Marshall denied receiving any assistance from Mr. Marshall towards the children's care. She claimed that she was responsible for all household bills and family expenses.

12 Mr. Marshall was being economical with the truth on this subject. I do not believe that he gives the children cash in the amounts that he claimed. It would be remarkable for him to give Jaron, a six year old, or even Jamar such large sums of money; or that he did so without bringing it to their mother's attention. Mrs. Marshall's account is more credible. I prefer it to Mr. Marshall's and accept it.

13 Mrs. Marshall indicated that the children rarely spend time with Mr. Marshall. Mr. Marshall admitted that although he sees the boys almost daily, they have not spent time with him at home for more than a few hours at one time. He expressed a desire to interact with them more and have them at his home during the vacations and every other weekend except when he is engaged in Calypso competitions, between 27 ^th March and 14^th July each year. His wish to spend more time with Jamar and Jaron is commendable and should be fostered as it would be in the children's best interest to develop a closer relationship with their father.

14 Mr. Marshall gave no compelling or other reason why he should have sole custody of either child. custody Mrs. Marshall submitted that Mr. Marshall has had no extended interaction with the children, any visitation or sleep over and the court should be hesitant to grant sole custody of either to Mr. Marshall. I agree with her. The evidence disclosed that Jamar and Jaron have spent most of their lives with their mother. In fact, Jaron has never lived with his father. To separate the children at this juncture or remove either of them from their established environment could in my opinion cause some upheavals in their lives which might not be all positive.

15 Regrettably, the parties were very scant in the nature and extent of the information supplied to the court regarding the family's lifestyle and related matters. However, I am satisfied from the available evidence that Mrs. Marshall has shouldered most of the responsibility for the children's care, upbringing and control. She did not quite receive the full support from her husband. A change in supervisory control of either child is unlikely to be in that child's interest. It is my considered opinion that it would be in their best interest for Jamar and Jaron to remain with their mother under a shared custody arrangement.

16 It is accordingly ordered that Mr. Junior Marshall and Mrs. Josette Marshall shall have joint custody of the minor children Jamar and Jaron with primary care and control to Mrs. Marshall. Reasonable access is granted to Mr. Junior Marshall to include visitation every other weekend between 1 ^st January and 31^st March and 14^th July and 31^st December each year; alternate public holidays and half of Christmas, Easter and summer school holidays, the dates for each school holiday to be varied and agreed between the parties as necessary. Mr. Marshall's access to each child is to continue until that child attains 18 years of age.

Maintenance

17 There is no evidence that either Jamar or Jaron earns income, owns property, savings or other financial resources. Their present earning capacity is nil. Like most parents Mr. and Mrs. Marshall probably aspire to see each young man complete secondary education and go on to pursue tertiary education. Although they did not indicate what goals they have for their sons in this regard, I think it is reasonable to presume that they have realistic expectations for them to complete some type of tertiary education or training.

18 The Marshalls present themselves as a typical working class family. From the two accounts, they have all settled into a stable lifestyle in their respective communities. Jaron never experienced living in a home with both parents. Jamar's memories would span a period of his childhood from birth to age 6. They are likely to have acclimatized to the current living arrangements.

19 Mrs. Marshall said that she left the matrimonial home in 2010 for her safety and that of the children because of Mr. Marshall's threats and conduct. Mr. Marshall denied threatening her. Mrs. Marshall occupies rented accommodation at Rillan Hill. No evidence was provided of the facilities. I take it that they are adequate. Mr. Marshall lives alone in the matrimonial home at Rillan Hill. It is a three bedroom concrete structure.

20 Mrs. Marshall is a supervisor at a bakery. She has been in steady employment with that institution from the inception of the marriage. Mr. Marshall is employed as a driver in the public service. When he first married, he drove a passenger bus and a truck. He alleged that he earned $200.00 as a bus driver at that time, but did not mention how much was received for truck driving. It is not clear whether those earnings were weekly or monthly. Mr. and Mrs. Marshall acknowledged...