Elsie Marie Kynes v Ronald Kynes
| Jurisdiction | Cayman Islands |
| Judge | Hall, J |
| Judgment Date | 27 August 2014 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | Cause No. FAM 160 of 2011 |
and
Hall, J (Actg.)
Cause No. FAM 160 of 2011
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
FAMILY DIVISION
The Petitioner appearing in person
Daniel Altneu instructed by Samson & McGrath appearing for the Respondent & Co-Respondent
The Petitioner and the Respondent herein were married in the Cayman Islands on November 26, 2005. By Petition filed July 21, 2011, the Petitioner sought an Order that the marriage be dissolved and that she be granted Orders pursuant to the Matrimonial Causes Law (2005 Revision). By Order dated August 16, 2011, the Petition was proved.
The only issue which remains for the Court is the determination of ancillaries. Each side argued for the fair disposition of matrimonial property.
The parties have an acrimonious relationship. This is fueled by allegations or infidelity leveled against the Respondent by the Petitioner and allegations of a lack of concern and an unwillingness to send funds on the Petitioner's part when the Respondent was ill and seeking treatment in Cuba.
A significant Issue raised by the Respondent was the allegation that the Petitioner had not made full and frank disclosure of her assets and further, that during the marriage she had made significant withdrawals from the joint accounts of the parties without the consent of the Respondent. These allegations were denied.
The applicable legislation is found in sections 19, 20 and 21 of the Matrimonial Causes Law (2005 Revision). These provide as follows:
“19. In dealing with all ancillary matters arising under this Law, the Court shall have regard first of all to the best Interests of any children of a marriage and thereafter to the responsibilities, needs, financial and other resources, actual and potential earning power and the deserts of the parties.
20. The Court may make orders pending the outcome of any suit in respect of which a petition has been presented providing for —
(a) the care and control of the children of a marriage;
(b) the use of the matrimonial home;
(c) periodic payments to be made by one party to another pending suit;
(d) an injunction for the protection of settled and other property in which either spouse claims on interest;
(e) the protection of one spouse from interference by the other; and
(f) security for costs,
21. At the time of pronouncing a decree under this Law, the Court shall, as appropriate, make orders for —
(a) the 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 spouses made in consideration of Ihe marriage, whether such settlement was made before or upon the treaty of the said marriage;
(d) varying any other settlement of 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,”
There are no children of the marriage for the consideration of the Court.
In her affidavit filed March 14, 2012, the Petitioner stated that she was of limited means and was unable to secure meaningful employment in Cayman Brac which is where she resides. She indicated that she had sought financial assistance from the Department of Children and Family Services (“DCFS”), family and friends.
According to the Petitioner, at the start of the marriage she had been employed as a sales clerk at Paramount, The Respondent was an artist known as “‘Foots” and was employed as a maintenance man at the Divi Tiara Hotel. Subsequently the couple started a construction company, E&F Construction; named for them both and from which they made a good living. The Petitioner stated that they used the business to pursue opportunities to build on and sell several properties In Cayman Brae. Following Hurricane Paloma in late 2008 the company did particularly well and the Petitioner left her job at Paramount.
The Petitioner stated that following this period, she worked for six days a week doing various tasks of physical labour and assisting the Respondent with various projects. She also claimed that she assisted with the necessary paperwork and anything else that the job entailed. According to her, she did not receive a salary for this work. The Petitioner claimed that at times, she would do extra work outside the business so as to supplement the income from the business. This was not done on a large scale.
In her Affidavit of Means filed May 7, 2012 the Petitioner elaborated, stating that between February 2008 and mid-2011, when the marriage effectively ended, she worked for six days a week doing painting and other physical labour as well as assisting the Respondent with various jobs and projects. She claimed to have assisted the Respondent with tasks such as roofing repairs.
According to the Petitioner when the marriage effectively ended in mid-2011, she no longer received any meaningful source of income. She stated that the Respondent retained a licence for the business but changed the name (Atlantis Construction). In a subsequent affidavit she stated that she had no knowledge of the status of the business. She claimed to have neither pension nor health insurance.
The Petitioner claimed that at the time of her marriage she had “a good job, a car, a pension and CI $12,000.00 in savings”. She stated that at the time of the preparation of her affidavit, her only asset was the dwelling house in which she resided and which she had owned for a number of years prior to meeting the Respondent. Upon leaving her job at Paramount in 2007 she cashed in her pension tor a total of $15,000. She claimed that these funds were invested in property described as registration section Little Cayman West, Block 81A, Parcel 30 which is registered in the joint names of herself and the Respondent. The Petitioner claimed that this property had formed the bulk of her father's estate and it had been given to her by her mother with the consent of her siblings.
It was the Petitioner's evidence that she had been the holder of an account at Cayman National Bank in which she added the Respondent as a joint holder in February 2005. She stated that following the breakdown of the marriage, in June 2011, she removed her name from the account. She opened in account at the same bank in her sole name. She is also a joint holder of three savings accounts with each of her three children being: Thomas Sevik; Timothy Sevik and Patricia Sevik. She stated that the balances in these accounts are minimal. She also identified a term deposit account at the same bank which had been opened for her mother in December 2005, She claimed that the initial deposit amounts of over $11,000 came from her mother's pension. She claimed that in September 2010, her mother agreed to loan herself and the Respondent $3000 to assist with their living expenses and that further funds were taken out to purchase a motor-vehicle for her sister Eldeen Banks who had been caring far their mother.
In her evidence, with respect to allegations made by the Respondent that she had siphoned funds from their accounts for her own purposes, the Petitioner countered that two years prior to separation, the Respondent had gathered all bank papers and had made no complaint that all was not in order. She also testified that most withdrawals had been made by her at the direction of the Respondent, for the business and was largely spent on building materials. She claimed that she had not kept proper records concerning her withdrawals and spending.
The Petitioner categorically denied stealing any money from the Respondent. In relation to a withdrawal of over $100,000, she again claimed that she had acted at the Respondent's behest.
In responses given during her testimony, the Petitioner suggested that funds were intermingled. She referred to: using money from her children's accounts at times to purchase items for the Respondent and subsequently repaying it; purchasing building materials from her daughter for the Respondent's work with funds that they had and using money that they held, on various homes that they had contracts to repair.
The petitioner's comments on the real property which formed part of the matrimonial assets are noted below.
The Respondent filed an affidavit on March 26, 2012. Thereafter, he filed an Affidavit of Means, a Request for Further Information and an Answer to the Petitioner's Request and Second Request for Information. Counsel for the Respondent invited the Court to consider the last document in particular, along with written submissions.
According to the Respondent, he went to reside on Cayman Brac full Lime in 2003. He had a full time job as head of maintenance at the Divi Tiara Resort, the income from which in addition to his savings were sufficient to satisfy his financial needs.
With reference to the construction company, E&F Construction, the Respondent claimed that he alone owned and operated that company, starting it in February 2005, prior to his marriage. He slated that as he was living with the Petitioner at the time, the “E” in the name of the business was in fact an acknowledgment of her. He stated that he continued to use the business on contracts for the repair and maintenance of homes in Cayman Brac and Little Cayman throughout the marriage. He stated that he and the Petitioner lived off the business income and savings; which he accused the Petitioner of depleting prior to thejr separation.
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