Carlene Miller v Harold Miller

• Jurisdiction: Jamaica
• Judge: Dunbar-Green
• Judgment Date: 13 February 2015
• Neutral Citation: [2015] JMSC Civ 18
• Docket Number: CLAIM NO. 2012HCV00292
• Court: Supreme Court (Jamaica)
• Date: 13 February 2015

[2015] JMSC Civ 18

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

Coram:

Dunbar-Green, (Ag.)

CLAIM NO. 2012HCV00292

Between

Carlene Miller

Claimant

and

Harold Miller

Defendant

Mrs. Symone M. Mayhew for the Claimant .

Ms. Marjorie E Shaw instructed by Brown & Shaw for the Defendant .

Dissolution of Marriage in Foreign Court — Separation Agreement Incorporated in Dissolution judgment — Provision in Separation Agreement to Establish Trust over land in Jamaica — Consequential Orders made by Foreign court — Trust and Conveyancing Deeds executed by Foreign Court in name of absent Defendant — Whether foreign judgment and/or Orders in personam or rem — Whether foreign judgment enforceable in Jamaica — Whether Separation Agreement enforceable in Jamaica.

IN CHAMBERS

Background

1 The parties were married in Hartford, Connecticut, on February 16, 1993 and domiciled in the United States for a period. They owned properties in Jamaica and the United States. In 2007, the claimant petitioned for divorce in the Superior Court of Connecticut. The respondent filed an appearance in the proceedings and was present at the hearing of the petition on December 1, 2008 before His Honour Judge Richard Dyer. At the time of the hearing the claimant was then residing in Atlanta, USA, and the defendant was living in Southfield, St. Elizabeth, Jamaica. Both parties entered into a Separation Agreement, which included the establishment of a trust over a property (Top Hill) in Jamaica, for the benefit of their three children. They consented to their agreement being incorporated in the judgment of the court. One term of the agreement was that it would survive and stand independent of any such judgment.

2 An order for dissolution of marriage was made on 1st December 2008. The Court further ordered, as agreed by the parties, that the written agreement between them dated 1st December 2008 be incorporated, by reference.

3 The provisions in the Separation Agreement, in so far as they are germane to the instant proceedings, read as follows:

…WHEREAS, the parties desire to enter into an agreement settling all of the claims and demands which may (sic) have against the other, including, but not limited to, support, maintenance and alimony; and any and all claims which either party may have or claim upon or against the estate of the other for support, maintenance, alimony and any other matter whatsoever arising out of the marital relationship; and

WHEREAS, the Husband and Wife have been fully advised by their respective attorneys of their choice as to their respective rights and obligations, and have each carefully reviewed the contents of this Agreement with the said attorneys…

…5 CHILD SUPPORT:

The Defendant Husband will pay child support for the benefit of the minor children in compliance with the State of Connecticut Child Support Guidelines…

…15 REAL PROPERTY:

… Top Hill, St. Elizabeth, Jamaica

The parties shall transfer Top Hill into a trust for the parties' three minor children. The transfer shall include both the lot and the house and the lot bounded as follows…

The parties shall agree upon a neutral trustee. Defendant Husband shall have the right to occupy the upstairs apartment for a period of one year until November 30, 2009. Upon vacating the property, the Defendant Husband shall not remove fixtures or appliances. The current physical structure shall remain the same except for reasonable wear and tear. Downstairs shall be rented and the rent shall be paid to the trust. The first rents collected shall be utilized to pay legal fees and costs associated with the transfers to effect the trust.

…18 DISSOLUTION:

The parties understand and agree that a copy of this Agreement may be marked into evidence at the time of a final marital dissolution hearing and may be incorporated by reference into any judgment entered in connection therewith. The parties further understand and agree that the incorporation of the within (sic) Agreement will not be deemed a merger of the Agreement into any such judgment, but rather the Agreement will survive and stand independent of any such judgment.

…20 MODIFICATION AND WAIVER:

A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality of this Agreement…Nothing in this provision shall preclude a court of competent jurisdiction from the modification of weekly orders of support and alimony.

…22 JURISDICTION:

Each of the parties hereto hereby irrevocably contests (sic) and submits to the jurisdiction of the courts of the State of Connecticut and of any federal court located therein in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and also waives any objection to venue in the Hartford County Superior Court at Hartford.

4 The Separation Agreement made provision for other matters, including custody, a parenting plan, education, debts, bank accounts, and other properties (real and personal) situated in the United States.

5 At the divorce hearing in the United States, the parties were specifically examined on whether they had received legal guidance and confirmed their understanding of all the material terms of the agreement and its incorporation in the judgment of the court. Both parties separately confirmed, under examination by their respective counsel, and in response to questions from the judge, that they understood the terms of the agreement and had been satisfied with the legal guidance provided by their respective counsel.

6 The claimant's then Jamaican attorney-at-law, Mr. Conrad Powell, was in attendance at the dissolution hearing and reference was made to him as participating in settling the Separation Agreement and how the trust would be effected. The claimant, agreed in examination by her USA Counsel, that ‘…rents [would] go to pay for the transfers and any costs associated in Attorney Powell's attorney's fees in doing that…’ In examination, the defendant agreed that ‘rental [would] be used to pay the legal fees and costs associated with creating a trust, getting a TRN number for the trust and having any documents that [needed] to be effectuated that [put] the trust in existence and [determine] who manages the trust.’ Both parties also agreed, in their respective examination, that the trust was to be established for the ‘benefit’ of their children. (pp 1, 22–23, 52–53 of the Transcript of proceedings ).

7 The parties failed to agree on the establishment of the trust for the Top Hill property. The claimant alleged that it was the defendant's fault as he refused to cooperate and execute the appropriate documents. On that basis, she filed a motion in the Superior Court of Connecticut for an order to have the Top Hill property in Jamaica transferred into a trust for the benefit of the minor children. The motion was granted on 21 ^st October 2009.

8 The defendant did not put in an appearance at those proceedings. It appears, from court records, that by the time the motion was filed, the attorney-at-law who had represented him in the divorce proceedings, Mr Patrick Lyle, had withdrawn. The defendant, who by that time had returned to Jamaica, denied being served notice of the motion, although he had received late receipt of other court documents. There is a certification by the claimant's USA attorney that the defendant was served at his address in Jamaica, by pre-paid postage.

9 The motion and order of 21 ^st October 2009, referred to a prior order of July 28, 2009 by Judge Epstein. That order required the defendant to execute trust documents on the Top Hill property, under Jamaican law, and that all proceeds should go into a trust which was to be administered by the plaintiff. The July 28, 2009 order was not exhibited and the claimant gave evidence that she had not been aware of it.

10 Apparently, on the basis of the 21 ^st October 2009 order, a trust deed was executed on 18th December 2009 appointing Kadian Rodwell, teacher of Santa Cruz, St. Elizabeth, as trustee. Judge Jack W. Fischer, a Judge of the Superior Court of Connecticut, signed on behalf of the defendant. A deed of conveyance and instrument of transfer dated 18th December 2009 were also executed by Judge Fischer, on the defendant's behalf, purportedly transferring the Top Hill property to Kadian Rodwell (trustee) “…upon trust for sale subject to and for the trusts (sic) and purposes set out in the trust deed”.

11 As this trust deed is being sought to be enforced in these proceedings, I will recite some of the clauses.

…Trust Fund

5. The subject property is to be held by the Trustees on trust for sale for the

benefit of the children of the Grantors, with such provisions for maintenance, advancement and otherwise for the benefit of the said children.

6. The Trustees shall hold the subject property upon trust for the sale

with power to postpone the sale and retain the property in the present state of investment or with the consent of the Grantors during their lifetime and thereafter at the discretion of the Trustees to realise same and invest the proceeds in any investment hereby authorised and may from time to time with the consent of the Grantors or at their discretion transpose such investments into others as hereby authorised…

…Trusts

14. The Grantors hereby declare that the trusts herein created and the income from the Trust Fund shall be applied by the Trustees at their sole discretion for the education support and maintenance of the beneficiaries up to the age of twenty-five (25) years…

Power to pay Capital

17. The Trustees may in the exercise of their absolute discretion at any time after any of the said beneficiaries shall have attained the age of twenty-five (25) years raise and pay to...