DS v GE

• Jurisdiction: Cayman Islands
• Judge: Cheryll Richards
• Judgment Date: 14 May 2021
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSE NO. FAM 0221 OF 2019

Between:

DS

Petitioner

and

GE

Respondent

YM

Person Named

Before:

The Hon. Justice Cheryll Richards Q.C.

CAUSE NO. FAM 0221 OF 2019

THE GRAND COURT OF THE CAYMAN ISLANDS

FAMILY DIVISION

HEADNOTE

Family Law—s.19 and 21 of the Matrimonial Causes Act Final Ancillaries, Applicable principles.

Appearances:

Ms. Sheridan Brooks Q.C. of Brooks & Brooks for the Petitioner

Mr. Dennis Brady of Brady Attorneys-At-Law for the Respondent

Introduction

1 This is an application for Final Ancillaries. The parties are Jamaican nationals who are residents of the Cayman Islands. They have been together for some twenty years and have co-habited for most of this period, both before and after their marriage which was on the 31st July 2015. The Petitioner DS, (“the wife”) is forty-six years old. The Respondent GE (“the husband”, “Mr. GE”) is fifty–two years old. They have one child together, a daughter ‘O’ who was born on the 20th August 2003. She is now 17 years old. She has completed attendance at a local private high school and is seeking enrollment in an overseas institution to pursue a degree in medicine.

2 The wife filed a Petition for divorce on the 12th September 2019. This referred to YM as a Person Named. YM is a witness in these proceedings. Service of the Petition was acknowledged by the husband and YM on the 24th September 2019 with the indication that neither of the two intended to defend the matter. The Petition was ordered proved on the 7th October 2019.

3 At the time of the filing of the Petition the parties resided at the former matrimonial home in Spotts, Grand Cayman (“the FMH”). By Summons filed on the 15th May 2020, the wife sought a number of interim orders. By that point in May 2020, the disharmony between the two had grown to the point where they resided in opposite sides of the FMH and each accused the other of certain acts which made being in the same property either uncomfortable or difficult. The police were called in over one incident where the husband could not find his slippers in the place where he had left them and an argument between them escalated. For her part, the wife claimed that the husband was being careless in respect of O's health issues in the midst of a pandemic and was also interfering with her. These issues are set out in the judgment issued on the making of those orders 1 and are not repeated in detail herein. I concluded that it was in the best interest of the child and all concerned that as a temporary measure the parties remain at a distance from each other and that the husband vacate the premises except for access during the day time to work materials stored in the attic of the house. The Orders made on the Interim Summons included the following:

• i. The husband is to pay interim spousal and child maintenance to the wife of $5,000.00 per month through the Court Fund's Office on or before the 28th day of each month.

• ii. The husband is to pay the monthly school fees for ‘O’, the child of the marriage directly to the Service provider.

• iii. The wife is to have the exclusive use of the Dodge Ram Truck registration number 195 377 until the conclusion of the Final Ancillary proceedings.

• iv. The husband shall forthwith vacate the former matrimonial home at Block 25B Parcel 100 which shall thereafter be exclusively occupied by the wife and ‘O’ until the conclusion of the Final Ancillary proceedings.

• v. The husband shall forthwith disclose and identify the banks at which he has business and personal accounts and the account numbers for these accounts and shall provide on a periodic basis, records of all sums withdrawn and documents evidencing the purpose for such withdrawals.

4 There is agreement between the parties as to the custody of, and financial support for, their daughter ‘O’ until she completes tertiary education and it is evident that both care deeply for her and that each in their own way will make every effort to provide for her. In the course of this hearing, the husband gave evidence that his position with respect to ‘O’, is that in the future he will be fully responsible for her education as he has been throughout her life.

5 The primary issue before the Court on this application is whether certain items of real estate and certain businesses constitute matrimonial property and, if so, how any such assets should be fairly divided.

6 Throughout their relationship, the parties purchased several properties in the Cayman Islands and in Jamaica and operated a number of businesses. It is clear on the evidence that the husband has been the driving force, energy and acumen in respect of all their acquisitions. Prior to moving into the FMH the parties resided together at a home at Mahogany Way in Prospect. This first home was purchased by both of the parties by means of a mortgage obtained at a local bank and is registered in their joint names. This is the only property in both their names. They lived in one part of the property and rented out other parts. The rental income was used to pay the mortgage. Shortly after their marriage in 2015, they moved from this home leaving it as entirely rental property. The relatives of both the wife and husband have rental units at the property and it is a source of disagreement that the relatives of the wife are expected to and pay rent while the relatives of the husband including his mother, brother and nephew are not required to pay rent and live rent free. More properties were purchased over time in the Cayman Islands and in Jamaica.

7 The husband began with the operation of one landscaping business and expanded into a second such business, as well as a construction, and an event planning business. It is a matter of dispute as to the level of contribution of the wife to these businesses. Both parties are now self-employed, the wife having left long term employment in about 2012. She was encouraged and supported by the husband to open her own retail establishment. He provided startup capital of $45,000.00. The husband also left his long term employment about four or five years ago.

8 In addition to pension entitlements and vehicles, the properties and businesses in issue are, properties in the Cayman Islands:

• i. Bock 25 B, Parcel 100 – rental property, Mahogany Way Prospect;

• ii. Block 24 D, Parcel 120 – FMH in Spotts;

• iii. Block 25 B, Parcel 266 – bare land in Spotts;

• iv. Block 48 C, Parcel 144 – Breakers property.

9 The properties in Jamaica are:

• i. House in New Town, Black River, St. Elizabeth;

• ii. House in Fullerswood Black River, St. Elizabeth;

• iii. Land at Montpelier, St. Elizabeth in name of the husband;

• iv. Land at Montpelier in name of the wife;

• v. House in Black River in name of the wife.

10 The businesses are:

• i. Retail establishment operated by the wife;

• ii. Landscaping business 1 – E;

• iii. Landscaping business 2 – TLM;

• iv. Construction business;

• v. Event planning business.

The Positions of the Parties

11 The husband's position by way of an open offer in the course of these proceedings and again repeated in closing submission is that the FMH be transferred into the sole name of the wife together with his commitment to pay the applicable mortgage, until ‘O’ attains the age of 21 years or completes her tertiary education, whichever is the later. He stated in evidence that he would not offer the wife the Mahogany Way property because that is where he now resides as does his mother in a house that he built for her. With respect to the properties in Jamaica he proposes that the wife retains the properties which are already in her name, to wit the land at Montpelier and the house in Black River. He also proposes that the wife retains the retail establishment operated by her and all its earnings. Should she wish it, he also offers the E. landscaping business.

12 The husband also offers to pay all school fees and provide health insurance for ‘O’ under his insurance policy until she is 21 years of age and to pay any additional costs for dental and optical coverage not covered by insurance. They should each retain their pension funds. He seeks the return of the Ram truck which was purchased for $66,000.00 for use in his landscaping business.

13 The wife's position is that the husband has dissipated matrimonial funds since the filing of the Petition such that she should be awarded a lump sum payment of $250,000.00 as well as specific assets as follows:

Her position would require the husband to make payments totaling $432,773.00.

• • The FMH free and clear from the outstanding mortgage of $90,653.00 which is to be paid by the husband before transfer.

• • The Mahogany Way property free and clear from the outstanding mortgage of $92,120.00 which is to be paid by the husband before transfer.

• • One half the sale proceeds of the bare land.

14 The wife also asks that the husband be responsible for the college fees and educational expenses for ‘O’ up to age 21 and that this be done by way of continued periodical payments of CI$ 5,000.00 per month to be paid directly into her bank account.

15 The wife asserts that all the assets acquired by them were acquired from income earned when they were both employed and from rental income from their first property.

16 With respect to the businesses, it is her position that all are matrimonial businesses and that the income and expenditure relating to each of these are so inter-related and intermingled that an accurate division of the finances relating to each is impossible without the use of forensic accounting. She states that the parties cannot afford to employ a forensic accountant to value each business. Moreover the event planning business has no separate account and the husband used the construction business accounts for this business. Additionally through Counsel the wife states that she does not have either the practical day to day experience or the time to operate any...