Dixon v Dixon

• Jurisdiction: Jamaica
• Judge: Anderson, K. J.
• Judgment Date: 21 July 2017
• Neutral Citation: [2017] JMSC Civ 106
• Docket Number: CLAIM NO. 2014HCV00841
• Court: Supreme Court (Jamaica)
• Date: 21 July 2017

[2017] JMSC Civ. 106

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Anderson, J.

CLAIM NO. 2014HCV00841

In The Matter of the Property (Rights of Spouses) Act

Between

Doreen Dixon

Claimant

and

Quenston Dixon

Defendant

Mrs. Janet P. Taylor, instructed by Taylor, Deacon & James, for the claimant

Mr. Samuel Smith, for the defendant

THE PROPERTY RIGHTS OF SPOUSES ACT-WHAT CONSTITUTES THE FAMILY HOME-INTEREST IN THE FAMILY HOME-THIRD PARTY'S INTEREST-FIXTURES AND CHATTELS-LAND ACQUIRED BEFORE THE PARTIES WERE SPOUSES-ENTITLEMENT TO PROPERTY-FINANCIAL AND NON-FINANCIAL CONTRIBUTION — PARTY'S SHARE IN PROPERTY NO LONGER IN THE POSSESSION OF SPOUSE-ADVERSE POSSESSION

IN CHAMBERS

Anderson, K. J.

BACKGROUND TO THE CLAIM

1 This claim concerns a dispute surrounding alleged matrimonial property. The parties herein, who were married on April 17, 2006, obtained a Decree Absolute dissolving their marriage, on May 30, 2014. Thereafter, this claim was filed, with the claimant essentially contending that she is entitled to fifty percent (50%) interest in four (4) properties and two (2) motor vehicles owned and/ or previously owned by the defendant. Further, that she is entitled to a hundred percent (100%) interest in the furniture and appliances, in the alleged family home.

2 This is on the premise that the alleged family home is owned by the defendant and they both worked together to construct it over time. That in so doing, she expended significant sums, which were greater than the financial contribution of the defendant. She also contributed to the income of the household, partnered with the defendant in his farming business and took loans to assist the defendant in purchasing the other family assets.

3 The defendant is challenging this however, and maintained, that the land on which the alleged family home is located, is part of the property of the estate of Mabel Elliott, his maternal grandmother, and the alleged family home belongs solely to his mother, Florence Dixon. The parties were only given a licence to stay there and he was the one who primarily dealt with the financial concerns of their family.

THE CLAIM

4 The claimant, on February 20, 2014, filed a fixed date claim form and an affidavit in support, seeking, inter alia, the following orders:

• (1) A declaration that the claimant and defendant are entitled each to a fifty percent (50%) share in the former matrimonial home being ALL THAT PARCEL OF LAND part of OLD BOTTOM, JUNCTION in the parish of ST. ELIZABETH being approximately an acre in size butting and bounding on the north by Linval Powell and Howard Elliott, South by Nathaniel Gayle, West by Florence Dixon and Nathaniel Gayle and East by Delorica Ebanks and Janet Banton being lands contained in undated common law indenture between Florence Dixon and Quenston Dixon and common law indenture dated January 30, 1993, between Nathaniel Gayle and Quenston Dixon; (For the purposes of this judgment, this property has been and is hereinafter continually referred to as, ‘the alleged family home’).

• (2) A declaration that the claimant and defendant are entitled each to a fifty percent (50%) share in lands situate at Old Bottom, Junction, in the parish of St. Elizabeth, being lands estimated to be one acre in size butting and bound on the north by parochial road and lands belonging to Basil Dixon, on the south by lands belonging to Quenston Dixon, on the east by lands belonging to Delorica Ebanks and on the west by lands belonging to Florence Dixon being in lands contained in common law indenture dated August 18, 2003, between Linval Powell and Howard Elliott and Quenston Dixon.

• (3) A declaration that the claimant and defendant are each entitled to fifty percent (50%) share in unregistered lands situate at Tryall in the parish of St. Elizabeth, being lands estimated to be half an acre with shop thereon.

• (4) A declaration that the claimant and defendant are each entitled to fifty percent (50%) in unregistered lands part of Ballards Valley in the parish of St. Elizabeth, being approximately one acre in size purchased from Danny Dixon.

• (5) A declaration that the claimant is entitled to a fifty percent (50%) interest in Toyota Mark II or to fifty percent (50%) of the proceeds of sale therefrom.

• (6) The valuations of the properties by a valuator agreed by the parties be taken and the costs be borne equally by the parties.

• (7) If no valuator can be agreed within twenty-one (21) days of the order of this honourable court, then the valuation shall be done by a realtor appointed by the Registrar of the Supreme Court.

• (8) The claimant be given the first option to purchase the defendant's fifty percent (50%) interest in the alleged family home, at the value outlined by the valuator and must, within sixty (60) days after the date of the order of this honourable court, pay fifteen percent (15%) deposit towards the purchase of the said interest in the said property.

• (9) The defendant be given the first option to purchase the claimant's interest in the other lots of land at the value for each outlined in the respective Valuation Reports. The defendant is to exercise his option by paying a fifteen percent (15%) deposit in respect of each lot of land and signing of an agreement for sale within sixty (60) days of the date of the orders herein.

• (10) The transfer of the alleged family home shall be exempted from transfer tax in accordance with the provisions of section 9 of the family Property (Rights of Spouses) Act (hereinafter described as PROSA).

• (11) If the claimant fails to exercise her option to purchase the alleged family home within the stipulated time, it be ordered that the said land and house be sold on the open market and the net proceeds of sale be divided equally between the parties.

• (12) If the defendant fails to exercise his option to purchase any of the lots within the time stipulated, it be ordered that any lot for which he has not exercised an option be sold on the open market and the net proceeds of sale be divided equally between the parties.

• (13) Taylor, Deacon & James, Attorneys-at-Law, be appointed as attorneys having carriage of sale in respect of the properties the subject of this suit.

• (14) Costs and attorneys' costs incurred in the transfer of the alleged family home and other properties be borne equally between the claimant and defendant.

• (15) In the event that either party fails and/ or refuses to sign the agreement(s) for sale and/ or instrument(s) of transfer, the Registrar of the Supreme Court be authorized to sign for and on behalf of the defaulting party.

• (16) A declaration that all furniture and appliances to be found in the subject property is owned by the claimant herein.

• (17) A declaration that the claimant and defendant are each entitled to a fifty percent (50%) interest in 1990 Volkswagen Motor Truck bearing registration number 8215 EK.

• (18) The claimant and defendant agree a valuator to determine the value of the 1990 Volkswagen Motor Truck bearing registration number 8215 EK and the cost of the valuation be borne equally between the parties.

• (19) If no valuator can be agreed within twenty-one (21) days of the order of this honourable court, then the valuation of the above-mentioned motor vehicle shall be done by a valuator appointed by the Registrar of the Supreme Court.

• (20) The defendant be given first option to purchase the claimant's fifty percent (50%) interest in Volkswagen Motor Truck bearing registration number 8215 EK to be exercised by the paying of the fifty percent (50%) purchase price within sixty (60) days of the date of this order.

• (21) A declaration that the claimant and defendant are each entitled to a fifty percent (50%) interest in 1994 Toyota Mark II motor car.

• (22) The defendant be required to account to the claimant for 1994 Toyota Mark II motor car removed from the possession of the defendant in or about 2012.

5 An acknowledgment of service by the defendant and an affidavit of service by the claimant were both filed on July 23, 2014 and the matter was first heard on July 24, 2014, but subsequently adjourned to March 19, 2015. On March 19, 2015, Laing J., inter alia, set the matter to be heard on November 18 and 19, 2015. On November 18, 2015, the matter was adjourned to April 05 and 06, 2016.

6 On April 05, 2016, the trial of the matter commenced before this court and continued on April 06, 2016. On the latter date, the matter was adjourned to April 08, 2016. On April 08, 2016, the trial of the claim continued and was adjourned to May 02 and 03, 2016. The trial of the matter continued on May 02, 2016, but was adjourned to June 29 and 30, 2016. The trial of the matter continued on June 29, 2016 and concluded on June 30, 2016. Thereafter, judgment in this claim was reserved.

BURDEN & STANDARD OF PROOF

7 In addressing this claim, this court acknowledges that he who avers, must prove. The claimant has averred that she has interests in the real and personal properties mentioned above. She must therefore prove that, on a balance of probabilities, she is entitled to the Declarations and Orders sought herein, if she is to succeed in proof of either her entire claim or any part thereof.

SUMMARY OF DISPUTED AND UNDISPUTED FACTS

8 Disputed Facts

• (1) There is a dispute as to the ownership of the land on which the alleged family home is located, and as to who built the said house and the source of funding;

• (2) There is a dispute as to the number of properties acquired and whether the said properties were acquired jointly by the parties during the course of their alleged relationship and marriage; and

• (3) There is a dispute as to the parties' financial status and contribution to the acquisition of the properties in question.

9 Undisputed Facts

• (1) The parties were married on April 17, 2006 and obtained a Decree Absolute dissolving...