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BARBARA SPENCER PETITIONER ANDHENRY SPENCER RESPONDENT AND EUSTOLIA SPENCER-CONNELL INTERVENER [2006] TTHC 82 (15 December 2006)

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

(Matrimonial)

No. M 432 of 1993

BARBARA SPENCER

Petitioner

AND

HENRY SPENCER

Respondent

AND

EUSTOLIA SPENCER-CONNELL

Intervener

************

JUDGMENT

Before the Honouarable Mr. Justice R. Narine

Appearances:

Mr. R. James and Mr. Moore for the Petitioner

Mr. R. Boisson for the Respondent and the Intervener

By Notice filed on 9^th August, 2004, the Petitioner applies to the Court, inter alia, for a transfer of property order in respect of the matrimonial home situate at L.P. No. 9 Foster Road Extension, Sangre Grande, and half the value of three motor vehicles.

The parties were married in December, 1984. The Petitioner was then 20 years old and the Respondent was 23. In 1993 the Petitioner filed for divorce due to alleged violence by the Respondent. The parties were subsequently reconciled, until the Respondent left the matrimonial home in October 2000. A decree nisi was pronounced on 28^th October, 2002. It was made absolute in February 2004. The parties have two children, Krystie born on 12^th May 1986 and Rykiel born 29^th January, 1998.

In considering the application the Court must bear in mind the various matters outlined in section 27(1) of the Matrimonial Property and Proceedings Act Ch. 45 No. 51.

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

The Petitioner is a Teacher. She receives a salary of $4,770.00 (gross). She has $5,000.00 in the bank. The Respondent is also a Teacher. He receives a net income of $4,256.76

The Petitioner alleges that the Respondent earns additional income from driving two taxis and from doing private auto mechanical work. The Respondent denies this. He stated in cross examination that one taxi was scrapped sometime around 2000. He still owns HAJ 584. He denies that he owns PAS 3606. He alleges that this vehicle was given to him to repair. The owner never returned for it. A friend of the Respondent uses it. The Respondent values it at about $8,000.00. He has not stated a value for HAJ 584.

In his first affidavit filed on 11^th March 2005, the Respondent denied that he had any interest in the properties stated in the Petitioner’s Notice filed on 9^th August 2004.

On 20^th April 2005, he filed another affidavit. In this affidavit, he stated that he and his sister (the Intervener) acquired a parcel of land in 1983. This was a five acre parcel. By Deed dated 7^th June, 2002 and registered in September 2003, he sold his interest in the land to the Intervener for $20,000.00. The matrimonial home stands on a portion of this land. The Respondent denies that the Petitioner contributed to the acquisition of the larger parcel of land or to the construction of the matrimonial home as she alleges. He claimed in this affidavit that the house was built out of monies derived from sales of portions of the five acre parcel.

On 16^th March, 2006 Mr. Boisson obtained leave to join Eustolia Louisa Spencer-Connell, the Respondent’s sister, as an Intervener. She filed an affidavit on 29^th March, 2006. She is also represented by Mr. Boisson.

She deposed that the 5 Acre parcel was developed and sold as lots. About 24 lots were sold between 1984 and 1989 at an average price of $15,000.00 per lot. They collected $360,000.00 from these sales. After deduction of expenses, $40,000.00 was given to the Respondent and two other siblings, and the Intervener retained $75,000.00 for herself. She pooled her resources with the Respondent. They spent about $85,000.00 to construct and furnish what was to become the matrimonial home. She considered herself to be half owner of the house. The Petitioner made no financial contribution to the construction of the house. It was agreed between the Respondent and her, that the Respondent would live in the house with his family rent-free until he acquired sufficient resources to build his home elsewhere.

In February 1984, the Intervener moved into a new house she had acquired from the National Housing Authority at Valencia. The Petitioner and the Respondent stayed at her home at Valencia, until they moved to the matrimonial home sometime in 1985, or thereabouts.

Having considered the evidence very carefully, I have serious misgivings about the evidence of the Respondent and the Intervener with respect to the construction of the house. In the first place, the Respondent’s position was that he has no interest in the house whatsoever. This shifted to the position that the construction was financed from sales of the land belonging to his sister and to him. His final position was to admit that he still retained half a share in the house.

I find it rather strange, as well, that the Petitioner made no mention whatsoever of any agreement that he had with the Intervener for the construction of the house, as she alleges in her affidavit. Moreover, I find it unlikely, that having acquired a house of her own, she would invest the bulk of her receipts from the sale of the land in a house to be occupied by the Petitioner and the Respondent. Her evidence is that she had to borrow the sum of $8,000.00 from a relative in order to make the down payment on her own home. Why would she invest so heavily in the construction of her brother’s home, when it appears she had no resources to invest in her own?

I view with suspicion, as well, the conveyance in June 2002, registered in September 2003, from the Respondent to the Intervener. This was while the divorce proceedings were already before the Court. The evidence is that the parties were separated. The Respondent was living in the house. It makes no sense that he would relinquish his interest in the land on which the house stands. That parcel could have been excised from the remaining portion of land. The Respondent still lives there with his new family. The clear inference to be drawn having regard to all the circumstances, is that the Respondent conveyed the land to his sister in order to defeat any claim the Petitioner might make in respect of the matrimonial home.

It seems to me that the Respondent has not made full and frank disclosure of his income and his property. His evidence with respect to the motor vehicles was vague, and improbable. There is no evidence as to when these vehicles were acquired, and at what price. One of the vehicles was scrapped around 2000, while the other, PAS 3605 was given to him for repairs by a man from Tobago whom he is unable to locate. So the Respondent gave someone else’s property to a friend to use, since he was unable to locate the owner.

2. The financial needs and obligations of the parties.

Both parties require the usual necessities – food, clothing, shelter and transportation. The Respondent now occupies the former matrimonial home with his new family. The Petitioner lives with her children at her father’s home, in rather cramped circumstances in a two (2) bedroom apartment which she shares with her brother Theophilus Ammon and his wife. The present accommodation of the Petitioner and her children appears to be dilapidated and incommodious. In addition, the Petitioner fears that her father will ask her to move out.

3. The standard of living enjoyed by the parties.

Both parties are teachers. The standard of living enjoyed by the parties before the breakdown of the marriage was modest.

4. The age of the parties and the duration of the marriage.

The parties were married in December 1984. The Petitioner was then 20 years old, the Respondent was 23. The Petitioner filed proceedings for divorce in 1993. However, there followed a period of reconciliation, until they were finally separated in late 2000. The decree nisi was pronounced in October 2002, and made absolute in February 2004.

5. Contributions to the welfare of the family.

Apart from looking after the home and the family, the Petitioner assisted in augmenting the income of the family during the marriage. She assisted the Respondent in running a wheel balancing and alignment shop. She did sewing. She planted short crops and reared chickens.

6. 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.”

This was a marriage that effectively lasted for some sixteen (16) years. Apart from her contributions to the welfare of the family, I accept that the Petitioner contributed to the initial acquisition of the land from her savings, and she did not sit idly by at home while the Respondent worked to provide for the family. She showed a great deal of industry in applying herself in various undertakings to augment the income of the family. Having regard to all the circumstances of the case, I can find no justification for departing from the yardstick of equality of division.

The Petitioner has made rather serious allegations of violence against the Respondent. In the circumstances, the Court is not minded to satisfy her interest by an order for occupation. Instead, the Court intends to award an appropriate lump sum which will take into account her interest in the house and the motor vehicles.

The Report of Linden Scott and Associates dated 14^th February, 2006 places a value of $285,000.00 on the house and the land on which it stands. I propose to award a lump sum of $150,000.00 which I hope will assist the Petitioner in finding accommodation of a modest standard to house herself and her children.

ORDER:

1. The Respondent is ordered to pay to the Petitioner a lump sum in the amount of $150,000.00 within 60 days of the date of this order.

2. The Respondent will pay the Petitioner’s costs.

Dated the 15^th day of December, 2006.

Rajendra Narine

Judge.

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