Albert Martinez-Martin v Raquel Anita Murcott Parke
| Jurisdiction | Jamaica |
| Judge | Lindo J. |
| Judgment Date | 22 February 2019 |
| Neutral Citation | [2019] JMSC Civ 22 |
| Date | 22 February 2019 |
| Docket Number | CLAIM NO. 2014M02555 |
| Court | Supreme Court (Jamaica) |
[2019] JMSC Civ 22
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Lindo, J.
CLAIM NO. 2014M02555
Mrs. Michèle Champagnie and Mr. Vincent Henry for the Petitioner
Mrs. Pamela Benka-Coker QC. and Mrs. Debra McDonald for the Respondent
Petition for Dissolution of Marriage — Application for Custody and Maintenance of child — Application for Maintenance of wife — Divorce not yet final — Matrimonial Causes Act — Children (Guardianship and Custody) Act — Maintenance Act
On October 27, 2014, the Petitioner, Mr Albert Martinez-Martin brought a petition for the dissolution of the marriage between himself and the Respondent, Ms Parke. The marriage took place in Jamaica on July 30, 2005. The Petitioner is a national of Spain and now resides in the Dominican Republic and the Respondent is a Jamaican national and resides in Jamaica.
There is one child of the marriage, T, born on July 14, 2006. He resides with the Respondent in Ocho Rios, Saint Ann.
On July 17, 2017, the Petitioner filed a Notice of Application for Court orders in which he sought orders that joint custody of the child be granted to himself and the Respondent, with care and control to the Respondent and access to him, including overnight visitation when he visits Jamaica, and having the child travel to visit with him during major school holidays. He also sought an order that he contribute “the sum of US$3,000.00 per month or such lesser sum…” towards the maintenance of the child, and a declaration that “the Petitioner and the Respondent are capable of maintaining themselves”.
By Notice of Application filed on November 9, 2017, Ms Parke sought sole custody, care and control of the child, and maintenance for herself and the child. In her application, she claimed “that the Petitioner do pay such sums as the Court may deem reasonable” for her maintenance for a period of one year and “such sums as the Court may deem reasonable for the child of the marriage. until he attains the age of twenty-three [23] years”
The evidence in support of the Petitioner's case, and in response to the Respondent's counter application, is contained in affidavits filed on October 27, 2014, July 17, 2017, November 23, 2017, January 31, 2018 and two re-sworn affidavits filed on August 31, 2018.
The evidence in support of the Respondent's case is contained in affidavits filed on April 16, 2015, September 22, 2017 and November 29, 2017.
When the matter came on for hearing on June 26 and 27, 2018, the two applications were heard together. The affidavits of the parties were admitted as their examination in chief and they were cross examined.
At the close of the hearing of the evidence, Counsel were ordered to file closing submissions which they did. On July 25, 2018 they made brief oral submissions to the court. I have considered carefully the submissions made, which I found to be of great assistance. I intend no disrespect if in the course of this judgment they are not referenced in detail.
There is now no issue joined between the parties in relation to the application for custody of the child. The question of access to the child however, has to be finalised, and the court needs to determine the issue of the maintenance of the child and whether the Petitioner should be ordered to contribute towards the maintenance of the Respondent and, if so, the amount of that contribution and the period for which it is to be made.
During the course of the trial, certain concessions were made in relation to custody and access to the child and the court has found on the evidence led, that both the Petitioner and the Respondent are caring and devoted parents. The court has also found that they have always consulted each other in relation to matters concerning the child and I agree with the submission of Counsel for the Respondent, that the parties “have displayed an admirable degree of maturity and cordiality…”
The court will therefore grant joint custody to the parties, with care and control of the child to the Respondent. The court is of the view that this is in the best interest of the child.
For the avoidance of doubt, however, the court is minded to make specific orders in relation to access to the child in terms which will provide for more clarity. The Petitioner shall have access to the child on terms and conditions as found by the court to be agreed between the parties in their oral and documentary evidence.
The court now needs to consider the issue of maintenance, and in particular what sum the Petitioner ought to contribute in relation to the maintenance of the child and whether he ought to contribute to the maintenance of the Respondent and, if so, in what amount and for what period.
I will not rehearse the details of the evidence presented by the parties, but will highlight aspects which I found crucial in coming to a determination.
Ms Parke has itemised her expenses in relation to the child “and to a limited extent” for herself, in her affidavit sworn to on September 21, 2017. This amounts to US$7,246.00. This sum includes school fees, medical expenses and sundries. She has also stated that in order to properly maintain the child, she would require US$6,500.00, as well as all school related expenses up to university level, and local and overseas health insurance coverage.
She has led evidence that she does not now have the capacity to maintain herself or her child. She states that she is a director of a company, Ochi Trolley Tours Limited, from which she should earn US$1,000.00 per month, but has not been collecting a salary from the company as she spent the last three years working at starting the business with her family “which started with its first guests on December 12, 2017”. She also states that she was an art director of films, she is a writer, she has experience in marketing and she has a Bachelor of Arts Degree in Philosophy.
In cross examination, she denied that because she is a single mother she cannot take a traditional 9am to 5pm job, agreed that she has the capability to work and said she would be willing to, if she could get a job while her business comes on stream. She also stated that from February 2013 to the present, she has not sought employment “outside of the current business”
Ms Parke also stated that if she received US$5,000.00, the gap would have been filled by the funds she received from the sale of Ellacott Mews until she started to receive a profit from her business venture.
Mr Martinez-Martin has contested the sum claimed by Ms Parke in respect of herself and the child and has provided his version of what the maintenance payment should be. In his re-sworn affidavit filed on January 31, 2018, he provides a breakdown of the expenses as claimed by the Respondent, points out that the sum of $3,203.00 would be attributable to the Respondent's expenses and that the half share of the child's expenses would amount to $2,021.50. He therefore contends that his contribution of $3,000.00 “is fair and reasonable”
He states that he is a Film Producer and President of Lantica Media and his current income is “US$180,000.00, plus benefits”. He indicates that his children are covered under health insurance provided by his company and this includes an “international plan”. He says he does not now own a home, but there is a property in Spain, which is registered in his name although his father is entitled to the beneficial interest.
He has provided evidence of bank accounts which he operates and states that he has no bank loans, but that he owes US$2,400.00, combined, on credit cards. He lists his expenses, per month, as totalling US$10,350.00, to include the sum of US$1,200.00 as travel for/with the child and states that he has two other children.
In cross examination, he stated that his partner is a professional who is employed and earning 50,000.00 pounds per year.
Counsel for the Petitioner submitted that there were inconsistencies in the Respondent's evidence as to the monthly cost of supporting herself and the child. She pointed out that, in her affidavit filed September 22, 2017, the Respondent said that the full cost of running their home (and expenses) was now close to US$8,000.00 per month, noted that she indicated that she was willing to accept US$5,000.00 per month in 2018, when she was slated to be paid US$1,000.00 per month, but does not say from where the additional US$2,000.00 would be sourced.
Ms Champagnie analysed the items of expenses put forward by the Respondent and expressed the view that the figures stated were unreliable. She submitted that “the true total cost to maintain T… and his mother and to pay all their medical, dental, optical and health insurance etc… is on a balance of probabilities US$6,000.00”.
Queen's Counsel, on behalf of the Respondent, submitted that the monthly expenses set out on behalf of herself and the child are “reasonable in the context of this case” and urged that the court in evaluating the evidence, “…look at the relationship between the parties and their marriage from the time they resided in the United Kingdom up until the time that they went to live in the Dominican Republic…”.
She examined the assets and expenses of the Petitioner and noted that he did not account for earnings or contribution of his partner and that he produced “no documentary trail that corroborates his testimony.”
The court is empowered to entertain the applications and to make orders for maintenance pursuant to the Matrimonial Causes Act, 1989 (MCA) and the Maintenance Act 2005 (MA)
Parents have an equal financial obligation under the law to maintain their unmarried children who...
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