Home | Databases | WorldLII | Search | Feedback Trinidad and Tobago High Court

Context

PAUL JOSEPH CAMACHO PETITIONER AND DENYSE NICOLE CAMACHO [2006] TTHC 80 (14 December 2006)

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

(Matrimonial)

No. M 1062 of 2003

BETWEEN

PAUL JOSEPH CAMACHO

Petitioner

AND

DENYSE NICOLE CAMACHO

Respondent

**********

JUDGMENT

Before the Honourable Mr. Justice Narine

Appearances:

Ms. L. Seebaran-Suite for the Petitioner

Ms. L. Ramcharan for the Respondent.

The applications before the Court are:

1. The Petitioner’s Summons of 24^th November, 2003 seeking custody of the three (3) children of the family.

2. The Respondent’s Notice filed on 26^th November, 2003 seeking periodical payments for the support of the children.

3. The Respondent’s Summons filed on 26^th November, 2003 seeking custody of the children.

4. The Petitioner’s Notice filed on 26^th May, 2004 seeking a property settlement.

5. The Respondent’s Notice filed 1^st June, 2004 seeking periodical payments, lump sum, a transfer of a motor vehicle, furniture and fixtures in the matrimonial home, and the return of certain items of jewellery.

6. The Respondent’s Notice filed on 22^nd June, 2004 seeking occupation of the matrimonial home.

THE FACTS:

The parties were married on 7^th May, 1989. They have three (3) children, Christian Paul who is 16 years old, Leanna Nicole who is now 14 years old and Joshua Joseph who is now 11 years old.

The parties last lived together at the matrimonial home situate at 92 Columbus Circle, Westmoorings. The Respondent now resides there with the youngest child Joshua. The other two children have been staying with their father, who recently moved to his mother’s home a short distance away.

The Petitioner is a Dentist, now 44 years old. The Respondent, now 42 years old, operates a clothing boutique at Movietowne. A decree nisi was granted on 30^th April, 2004 on the ground of the Respondent’s behaviour, the Respondent reserving the right to challenge the allegations.

THE CUSTODY APPLICATIONS:

In considering the issue of custody, I bear in mind that the welfare of the children is the paramount consideration. I have noted the obvious love and devotion that both parties have demonstrated for their children. I have also taken the liberty of meeting the children in my Chambers in the absence of the parties and their Attorneys. What was evident from this brief interview was the children’s love and loyalty for both their parents in spite of the difficult experiences that the family has undergone.

In this case there are certain factors that weigh more heavily than others. These are:

1. The personality and character of the claimants.

2. The availability of the claimants to provide care and attention to the children.

3. The wishes of the teenage children.

4. The status quo, and the likely consequences of upsetting the status quo.

It is quite clear on the evidence that the Respondent shares a very close relationship with her children. In the earlier years of the marriage, she played the greater role in caring for the family, and providing for their emotional needs. The Petitioner spent far less time with the children. He was the sole provider for the family. He considered the Respondent to be an excellent mother and caregiver to the family.

However, in December, 2002 the Respondent opened her boutique. It required her to spend long hours at work. She had to put arrangements in place for her children to be supervised and cared for on evenings, while she was still at work.

During the week, her business is open from 10.30 am to 7.00 pm. On afternoons she leaves her shop to pick up the children at 2.00 pm. She goes back to work later in the afternoon, after 5.00pm, sometimes 6.00 pm.

The Petitioner’s office hours end at 3.30 – 4.00 pm. On Friday afternoons between 5.00 to 8.00 pm he meets his friends at Tony Roma’s. On other days he goes home. On Saturdays and Sundays he plays golf.

The Petitioner’s personality is quite different from the Respondent’s. He appears to be less emotional, more controlled and more organized than the Respondent.

The children indicated to the Probation Officer in September, 2004 that they would prefer to be in the care of both parents. However, if this were not possible, from a practical part of view, the Petitioner would be able to get them to school on time. The Petitioner is always punctual and more organized than the Respondent.

The two elder children have in fact been living with the Petitioner. Christian moved with the Petitioner in January, 2006. Leanna went to live with him in April 2006.

Joshua is now 11 years old. He was diagnosed as dyslexic. He displays frustration and anger as a result of his inability to read. He is attending special sessions to improve his reading and to manage his anger.

Having regard to all the circumstances of the case, I have come to the conclusion that custody of the children should be granted to the Petitioner. He clearly has more time during the week to look after the needs of the children.

Because of her business, the Respondent is unable to give her children the attention and care that they require on evenings. The Petitioner is in a better position to pick them up at school, ferry them to their various lessons and extra curricular activities and supervise their school work on evenings. From the evidence, he appears to be more organized, punctual and better able to instill discipline, routine and a sense of order into the lives of the children.

The elder children have demonstrated by their actions and their words their desire to live with the Petitioner. The youngest child Joshua clearly needs care and attention. It is in his best interest to be reunited with his siblings.

I wish to make it clear that the issue of custody has nothing to do with fault on the part of either party. The Court must consider what is in the best interest of the children.

THE APPLICATIONS FOR MAINTENANCE/LUMPSUM/PROPERTY ADJUSTMENT ORDERS:

The Court is required to consider the factors outlined in Section 27 of the Matrimonial Proceedings and Property Act. Ch. 45 No. 51.

1. The income, earning capacity and property of the parties.

The Petitioner is a Dentist. He is employed part-time with the Ministry of Health. He also has a private practice. He earns $8,000.00 - $10,000.00 from his practice, and a net salary of $4,644.36 from his job. He gets a travelling allowance of $1,300.00. He also receives $5,000.00 from a sub-lease of premises at Gordon Street, Port of Spain, where he has his office. His monthly income is in the vicinity of $21,000.00 when all sources are taken together.

The Respondent started up her own business in order to be financially independent of the Petitioner and to avoid their frequent quarrels over the payment of expenses. The start up costs of the business were met by a loan from Republic Bank in the sum of $250,000.00. The Respondent took a further loan of $200,000.00 to stock the business. The cost of servicing these loans is $14,000.00 a month. She runs the business on an overdraft facility of $50,000.00. In December 2003 her rent was in the region of $13,000.00. The gross receipts from her business are $50,000.00 - $55,000.00 per month. In December 2003, she was advised by her bankers that it would be about 3 years before the true potential of the business would be realized. However, in June 2006 the Respondent testified that she is still in great financial difficulty.

The matrimonial home at No. 92 Columbus Circle is in joint names, subject to a mortgage in favour of Royal Bank. The Petitioner deposed in his affidavit filed on 9^th February, 2006 that he believes that the home is now valued at approximately $3 million (TT) and that there is owing on the mortgage some $400,000.00. The mortgage instalment is $3,700.00 per month. It is not in dispute that the Petitioner has always paid the mortgage instalments.

The Petitioner has a Honda CRV motor vehicle valued at $230,000.00 for which he pays $2,500.00 a month to R.B.T.T. He is also servicing a credit card debt which now stands at $25,000.00 (US). He is also repaying a loan of $100,000.00 from his father’s estate which was used to purchase the home. However, no details have been supplied with respect to this loan.

The Petitioner also owns a Volkswagen Bora motor vehicle which the Respondent uses.

The Petitioner pays $2,000.00 - $3,000.00 (U.S.) per month towards the credit card debt which means that by December, 2006 the credit card debt should be cleared.

2. The financial needs, obligations and responsibilities of the parties.

Both parties have the same needs for shelter, clothing, food, transportation and entertainment.

3. The standard of living of the parties.

The parties appear to have enjoyed a fairly high standard of living. They live in an upper middle class community. The husband belongs to a prestigious profession. The wife operates a boutique business, which attracts a middle and upper middle class clientele, having regard to its location.

4. Age of the parties and duration of the marriage.

The Petitioner is now 44 years old. The respondent is 42. The parties were married in 1989. The Petition was filed in 2003, and a decree nisi was pronounced in April, 2004. However, the parties continued to live together and made attempts at reconciliation even after the decree nisi.

5. Physical or mental disability of either party.

This is not applicable to this case.

6. Contributions of the parties to the welfare of the family.

There is no doubt that the Petitioner has always been the main provider, while the Respondent looked after the home and was the main caregiver in the family until quite recently.

7. Conduct:

There is no conduct that may be described as gross and obvious, which ought to be considered in this case.

8. The requirement of fairness

The Act requires the Court to exercise its powers so as to achieve an outcome which is “just”. The Court must be fair to both parties. The conceptual difficulty in carrying out this directive in a particular case is well articulated by Lord Nicholls of Birkenhead in the recent cases of Miller v Miller and McFarlane v McFarlane (2006) UKHL 24 in paragraph 4 of his judgment:

“4. Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process or logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case”.

The modern approach by the Courts in applying the principle of ‘fairness’ to distribution of matrimonial assets is encapsulated in the following dictum of the same Judge in the earlier case of White v White (2000) UKHL 54 under the rubric “Equality”.

“In seeking to achieve a fair outcome, there is no place for discrimination between respondent and wife and their respective roles. Typically a respondent and wife share the activities of earning money, running their home and caring for their children. Traditionally, the respondent earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the respondent runs the home and cares for children during the day. But whatever the division of labour chosen by the respondent and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties’ contributions. This is implicit in the very language of paragraph (f): ‘…the contribution which each has made or is likely… to make to the welfare of the family, including any contribution by looking after the home or caring for the family.’ If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer. There are cases, of which the Court of Appeal decision in Page v Page (1981) 2 FLR 198 is perhaps an instance, where the court may have lost sight of this principle.

A practical consideration follows from this. Sometimes, having carried out the statutory exercise, the judge’s conclusion involves a more or less equal division of the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge’s decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court refocus on the need to ensure the absence of discrimination.

This is not to introduce a presumption of equal division under another guise. Generally accepted standards of fairness in a field such as this change and develop, sometimes quite radically, over comparatively short periods of time.”

The question then is whether fairness in this case requires an equal distribution of the only matrimonial asset in this case – the matrimonial home - or whether one party should get a larger share, having regard to the particular circumstances of this case.

In her written submissions, Mrs. Suite has submitted that the principle of equality should be departed from for the following reasons:

1. The matrimonial home has been acquired from the financial resources of the Petitioner alone.

2. If he is granted custody, he will be solely responsible for providing shelter for the children.

3. It is likely that he will bear the costs of tertiary education for the children at institutions abroad.

4. If he retains the Matrimonial home he will have to raise a substantial sum to pay the Respondent for her share in the home, while servicing the existing mortgage.

On the other hand I bear in mind the need for the Respondent to acquire housing for herself, if the Petitioner, as the custodial parent resumes possession of the home.

Taking all circumstances into account including the fact that the Petitioner will now assume all expenses for the maintenance and education of the children I hold that the share of the Respondent in the home should be 40% of the equity.

THE ORDER:

1. The Petitioner is granted custody, care and control of the three (3) children of the family namely:

CHRISTIAN PAUL CAMACHO born on 30^th April, 1990

LEANNA NICOLE CAMACHO born on 14^th November, 1992 and

JOSHUA JOSEPH CAMACHO born on 9^th October, 1995.

2. The Respondent is granted liberal access to the said children including but not limited to every Sunday from 9.00 am to 6.00 pm and half the school holidays.

3. The matrimonial home to be valued by Linden Scott and Associates within 28 days.

4. The Respondent to bear the costs of the valuation.

5. The Petitioner to pay to the Respondent a sum equivalent to 40% of the value so ascertained less the amount outstanding on the mortgage as at the date of the valuation report.

6. Upon payment of the sum under paragraph 5, the Respondent to give vacant possession of the matrimonial home to the Petitioner, and to execute a Deed of Conveyance in favour of the Petitioner to be prepared by Attorneys for the Petitioner, and the Petitioner at the same time to execute such documents as are necessary to release the Respondent from the existing mortgage.

7. The Respondent’s Notice and Summons filed on 26^th November 2003 are dismissed.

8. The Respondent’s application for periodical payments is dismissed.

9. The Petitioner is ordered to transfer to the Respondent Motor vehicle Reg. No. PBH 9325 within 14 days of the date hereof.

10. The Respondent’s Summons filed on 22^nd June 2004 is dismissed.

11. The order made on 26^th May 2004 for periodical payments for the maintenance of the children is hereby discontinued.

12. There shall be no order as to costs on all the applications.

13. Respondent gives an undertaking not to remove or damage the furniture and fixtures and appurtenances to the matrimonial home.

14. The parties will collaborate in preparing an inventory of the furniture and appliances in the home and will be given an opportunity to distribute the items between themselves.

15. The Respondent to remain in exclusive possession of the home until payment of the said sum under paragraph 5.

16. Liberty to apply.

Dated this 14^th day of December 2006.

Rajendra Narine

Judge.

Context