DL v KL
| Jurisdiction | Cayman Islands |
| Judge | Mr. Justice Richard Williams |
| Judgment Date | 31 January 2018 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: FAM 35 OF 2015 |
| Date | 31 January 2018 |
Hon. Mr. Justice Richard Williams
CAUSE NO: FAM 35 OF 2015
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FAMILY DIVISION
Financial Provision — Ancillary relief — effect of purported agreement, whether there was a binding agreement — application for occupational rent — payment of mortgage when one party is able to exclusively occupy the matrimonial home — clean break — duration of periodic payments for child pursuant to s.22(1) Matrimonial Causes Law (2005 Revision) — requirement to comply with Practice Direction No 11/2014 “Court Bundles in Family Proceedings In the Family Division of the Grand Court.”
Mr. Delroy Murray from Murray & Westerborg for the Petitioner
Mrs. Stacy Thompson for the Respondent
This is an application for ancillary relief made by DL, the 47 year old Petitioner/Cross-Respondent wife, who is a Caymanian national. The application is made against her 49 year old Caymanian husband KL. The parties married on 15 January 1992.
I hope that the parties will not be offended if from now on I refer to them, for convenience, as the husband and the wife.
On 5 March 2015 the wife filed her Petition for the Dissolution of the Marriage. The husband filed his Acknowledgement on 27 March 2015, indicating his intention to defend. The husband filed his Answer and Cross-Petition to the Petition on 30 March 2015. The wife filed her Reply to the Answer and Cross-Petition on 21 April 2015. Almost a year later, on 6 April 2016, both parties sensibly agreed to the husband withdrawing his Answer to the Petition and to the wife withdrawing her Answer to the Cross-Petition. The Petition and Cross-Petition were then both proved on an uncontested basis. It has been a lengthy marriage.
On 29 July 2015 the husband filed a Summons seeking interim orders for the wife to pay occupational rent in relation to the former matrimonial home (“FMH”) or, in lieu of that, to make all off the mortgage payments. He also sought an order for the wife to return all marital cash assets to the parties' joint accounts.
On 7 August 2015, the wife filed a Summons for interim orders for the husband to pay toward the mortgage and outgoings on the FMH. At around that time she also voluntarily moved out of the FMH to rented accommodation, leaving the property vacant.
The Summonses for interim relief came on before Mangatal J. on 21 September 2015, when they were adjourned to a date to be fixed for hearing. Mangatal J. made substantive directions to the final ancillary relief hearing.
The Summonses for interim relief came on before me on 16 April 2016, when the parties agreed to a further adjournment. An extension of time was given for compliance with the substantive directions to the trial date fixed for 27 July 2016. The costs of the husband's application to extend time for him to comply with the directions in relation to pleadings were reserved to enable a later review of his required subsequent compliance.
The final hearing date scheduled for 27 July 2016 had to be vacated due to the non-assignment to a Judge to hear it. On 11 October 2016 the final hearing was fixed for three days commencing on 18 January 2017.
The final ancillary relief hearing was spread over five days. The parties were then afforded the opportunity to file Written Closing Submissions by or on 6 June 2017. The husband's Written Submissions were filed on 7 June 2017 and the wife's were filed on 8 June 2017.
On 29 June 2017 the Court received a written request from the husband's attorney for leave to file further Written Submissions to deal with issues surrounding a Land Rover Defender motor-vehicle. Leave was given to the parties to make additional Written Submissions to be filed by 3:00 PM on 7 July 2017. On 12 July 2017 the husband's attorney wrote to the Court seeking an extension for the filing of the additional Written Submissions to 17 July 2017.
Although no further submissions had been filed, on 28 September 2017 the husband's attorney wrote to the Court concerning the status of the Judgment. On 29 September 2017 the Court wrote to the parties stating:
“After receiving closing written submissions I received further email correspondence from the parties indicating that there was a wish to serve further written submissions. No agreement was reached between the parties in that regard and it does not seem that this is now being pursued. Having regard to the latest email I do not expect to be receiving any further written submissions and accordingly I am now in a position to commence writing the judgment and I will do so upon my return to the jurisdiction at the end of October.”
An email was received later on 29 September 2017 from the wife's attorney, in which he indicated that she had not sought, and still did not seek, to add anything further to her June 2017 written submissions. Having received no further submissions concerning the Land Rover, I have regard to the fact that my notes recorded that at the end of the hearing on 9 May 2017:
“Both parties agree that the other can keep the vehicle which they are currently using. The wife will sign the transfer form so the husband can have the car transferred into his name. He will pay the transfer fees.”
When reviewing the Written and Oral Submissions it became clear that certain areas needed clarification to enable the Judgment to be completed. As a consequence, on 10 November 2017, a note detailing the information sought was sent to the parties. The husband submitted his replies on 1 December 2017. The wife submitted her replies on 7 December 2017.
This is my reserved Written Judgment prepared after careful consideration of the parties' oral and written evidence, their Written Skeleton Arguments, their June 2017 Written Closing Submissions and later written comments. Preparation of this Judgment has been made more difficult due to the shifting positions of the parties during the course of the hearing in relation to their respective cases and the orders sought and their fluctuating valuations of the assets provided in their evidence and various submissions. Despite the inconsistency of some of the detail set out in the documents, I have paid close regard to the fact that each party relies heavily on their respective written closing submissions filed in June 2017 and their written comments filed in December 2017.
The parties have a daughter, K, aged 24 (DOB 31 December 1992). Unfortunately, K suffers from Asperger's syndrome. Initially the husband contended that, although K was over 21 years of age, an order for the wife to make periodical payments should still be made pursuant to s.22(1) of the Matrimonial Causes Law (2005 Revision) (“the Law”) as K was unable to maintain herself independently. However, as confirmed in the Closing Written Submissions submitted on his behalf, the husband has abandoned that claim. This is an understandable position to have now taken, as K was able to study away from home as a college student in the United States and gain, at times, some employment in the Cayman Islands upon her return.
The wife stated that in August 2013 she told K, who was then 20 years of age, that if her grades fell she would have to leave her college, Nova South Eastern in South Florida (“NSE”), especially as the husband was unemployed at the time. Upon K's return to the Cayman Islands in December 2013 the wife states that they had a further discussion as K had been placed on academic probation by NSE due to her low grades. The wife states that she informed K that she was not willing for her to stay at NSE and that she should transfer back to the Cayman Islands to attend either UCCI or ICCI. The husband felt that K should be able, as she wished to, to return to NSE. The wife said that he indicated that he would pay the fees out of his own share of the matrimonial assets or from his income. K returned to NSE in January 2014. The mother said K had to leave at the end of that academic year due to failing grades. The father said that K had been put on academic probation in December, but had then managed to improve her grades and therefore was not asked to leave NSE. He said that she left NSE as he could no longer afford to pay the fees by himself. Both parties agree that there is currently no fees liability remaining directly to NSE despite the fact that K did not complete her course there.
The husband's initial position in relation to K's education costs, as communicated to the wife at the time, is contained in an email that he sent to her on 16 April 2014. In that email he was referring to college fees and meal allowances which were due at NSE. He stated:
“As I am aware this bill is my responsibility. When I made a commitment to (K), I had hoped that I would have been paid by (his former employer), (29K) Sold the Backhoe (38K) or gotten a job. Any of these would have facilitated me paying the fees. (I don't claim that all of the proceeds are mine. Only that I have sufficient equity to help her.) It was my last option to pay her fees out of the Scotia deposit. I reasoned that she needed to achieve at least two years of college credits at worst, and if she was able to get a scholarship I would be able to help continue at school. Two years of college credit...
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