Getfield Stewart v Pearlena Stewart
| Jurisdiction | Jamaica |
| Judge | F. Williams, J. |
| Judgment Date | 16 September 2013 |
| Neutral Citation | [2013] JMSC Civil 121 |
| Docket Number | CLAIM NO. HCV 05190 OF 2010 |
| Court | Supreme Court (Jamaica) |
| Date | 16 September 2013 |
[2013] JMSC Civil 121
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
F. Williams, J.
CLAIM NO. HCV 05190 OF 2010
Mrs. Angela Cousins-Robinson , instructed by Robinson & Clarke for the Claimant.
Ms. Kayann Balli , instructed by Balli & Associates for the Defendant.
Claim for Division of Matrimonial Property —‘Family Home’— The Property (Rights of Spouses) Act — Claim for Maintenance of Divorced Wife and Child of the Parties — Principles to be Considered — Maintenance Act.
By way of Fixed-Date Claim Form dated and filed October 28, 2010, the claimant seeks the following orders:
- A Declaration that the Claimant is beneficially entitled to half the estate and interest in all that parcel of land part of Bellevue Hospital Land (in) the parish of Kingston (;) Lot numbered ONE THOUSAND TWO HUNDRED AND SEVENTY-FIVE A and SECONDLY all that parcel of land being Lot numbered ONE THOUSAND TWO HUNDRED AND SEVENTY FOUR being all the land registered at Volume 1341 Folio 867 of the Register Book of Titles. 2. An Order that the property be sold and the proceeds of sale be divided equally between the parties. 3. An Order that the Defendant be given first option to purchase the Claimant's interest within twenty-one (21) days of the date of any court order hereof. 4. An Order that in the event that the Defendant fails to exercise her option within the time stipulated, that the property be put up for sale on the open market and the proceeds of sale be divided equally. 5. That the Registrar of the Supreme Court be empowered to sign any and all documents giving effect to this order in the event that the defendant neglects or refuses to sign’.
For her part, the defendant has asked for the following orders:
‘i. The Claimant and the Defendant each have a 50% interest in the said property situate at 4A Carlisle Close, Manley Meadows, Kingston 2.
ii. The said property is to be valued by a reputable valuator to be agreed on by both of the parties to determine the current market value of the property and also to determine the costs of construction of the 2nd floor at 2003 prices. That upon the costs being so ascertained the Claimant is to pay to the Defendant 60% of the costs as indicated by the said valuation report expended in effecting the improvement work on the premises between 2001 and 2003.
iii. The Claimant pay to the Defendant the sum of $150,000 being one-half the costs expended by her in effecting improvement work on the said premises in 1999;
iv. The Claimant shall pay to the Defendant the sum of $37,500 monthly by way of maintenance for the child Levar Stewart plus one half educational expenses as they arise together with continuing to maintain health insurance for the benefit of the said child;
v. That the Claimant shall also pay to the Defendant the sum of $55, 965.76 by way of a refund of amounts spent by the Defendant for educational expenses for the school years 2011/2012 and 2012/2013;
vi. That the sums hereby ordered to be paid by way of maintenance for the child Levar Stewart be secured against and shall be a charge on the Claimant's interest in the family home. In the event of a sale of the said property the said amounts shall be deducted as a lump- sum from the proceeds of sale of the Claimant's interest in the said property and paid to the Defendant;
vii. The Claimant pays the Defendant the sum of $8,000.00 monthly for a period of 3 years [by] way of maintenance for the Defendant payable on the first day of the month until the expiry of the period. The said sums shall also be secured against and be a charge on the Claimant's interest in the family home and in the event of a sale of the premises shall be deducted as a lump sum and paid from the proceeds of sale of the Claimant's interest in the said property and paid to the Defendant.’
The Defendant also seeks, as an alternative, the making of two other orders: one delaying the sale of the property until the child of the parties has attained the age of majority; and that, pending the sale, the claimant pay to the defendant the sum of $20,000; and a further sum of $5,000 per month for maintenance of the defendant.
Initially, the defendant had sought an order that the parties' respective interests be declared to be 60%:40% in favour of the defendant and claimant respectively. Based on this initial approach, considerable time was spent prior to the hearing; and considerable affidavit evidence was devoted to the exploration of the contribution of the parties to the building of the family home. However, as the matter progressed, the defendant relented from this position, conceding that, on the state of the law as it stands, she would not be able to demonstrate sufficient cogent and exceptional circumstances that would cause the court to displace the presumption of the equal-share rule. In coming to that decision, she had the guidance of the case of Christian v Christian 2012 JMSC 036 in which Campbell, J opined that:
‘the disparity of contributions between the parties is insufficient, by itself alone, in proving that equal entitlement is unreasonable’.
Additionally, there was evidence from both parties, and in particular, the defendant, to the following effect:
‘When we did the expansion it was for our continuing lives together.
At the time, it was a joint effort. It did not matter who put what…’
This evidence came from the defendant in cross-examination.
With this acceptance by the defendant, the matter has been transmuted from being (as it at first ‘threatened’ to be), a battle as to the percentage apportionment between the parties; into a matter whose main focus is on the appropriateness or otherwise of maintenance payments and, if they should be made, how they are to be secured. So that, instead of the Property (Rights of Spouses) Act occupying centre stage by itself, it must now share that position with or yield that pride of place to the Maintenance Act.
While this is so, it will still be useful to give some background to the parties and the substance of their claims.
The parties were married on December 18, 1999 and obtained a decree absolute on December 12, 2009. They have one child together, Levar Stewart, who was born on December 16, 1997 (on the evidence of the defendant). Whilst the parties lived together as man and wife at the subject property or family home, they shared it with two of the defendant's children from previous relationships. These are Jermaine Hayle and Sharmaine Smart, who are now adults.
The claimant is a corporal of police. He has now re-married and his wife resides in the United States of America (USA). He left the family home which he occupied with the defendant in November of 2005. At that time he was a constable. With his promotion to the rank of corporal in 2008, came a salary increase. In spite of his departure from the family home, he has continued to make the mortgage payments for the mortgage loan for the family home. (It should be pointed out as well that when the family home was bought, two mortgage loans were obtained: the one that is still being paid by the claimant, which was taken out in his name; and another in the sum of $200,000, taken out in the name of the defendant, which has since been repaid by her; both being loans from the National Housing Trust (NHT)).
The claimant now resides with his brother in a two-bedroom apartment in Cooreville Apartments, St. Andrew, which apartment his brother owns. His proposal is that, on the family home being sold, his son, Levar, could live there with them.
There is no dispute that he contributes a sum of about $10,000 per month for the maintenance of Levar. The claimant's position is that if this amount is to be increased, an increase to the sum of $15,000 should be sufficient. The defendant, on the other hand, seeks to have the amount being paid for maintenance increased beyond that sum (as the proposed orders earlier set out indicate).
The defendant in her testimony indicates that when she met the claimant, she was an informal commercial importer (that is, an ICI, or higgler). She largely gave this up or significantly reduced the frequency of her trips upon her marriage to the claimant and upon Levar's being born. She also ceased this type of work completely in 2008.
Apart from obtaining the loan from the NHT, she was otherwise able to contribute significantly to the expansion and physical improvement of the home — by obtaining free or cheap labour from family and/or friends; and from her earnings from a bar that she operated for some time (and which she eventually closed, primarily (on her evidence) because of the claimant's dissatisfaction with her working there); and from earnings from a taxi that her son, Jermaine, operated and still operates.
Although claiming in an affidavit previously filed in court that he contributes sums of between $10,000 and $20,000 monthly towards Levar's maintenance, the claimant has always and only contributed $10,000 per month; and this is the same sum he has contributed for five years — up to 2011. This sum has always been inadequate and has become more so as the cost of living has increased.
Since leaving the family home in or about October 2005 (and not, as he says, November), and up to the time he was served with papers for the divorce, the claimant had told her that he would not be making any claim for an interest in the family home. Accepting this assurance, she was lulled into a sense of security (now proven, on her case, she contends, to have been false) which made her decide against pursuing a claim for maintenance...
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