Ruth Irma Rodriquez Morales Pino v Reinaldo Pino Bestard
| Jurisdiction | Jamaica |
| Judge | CORAM: E. BROWN, J (Ag.) |
| Judgment Date | 01 July 2011 |
| Judgment citation (vLex) | [2011] 7 JJC 0102 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2009 HCV 03869 |
| Date | 01 July 2011 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
CLAIM NO. 2009 HCV 03869
Ms. Marjorie Currie, Ms. Carleen McFarlane and Mrs. D. Edwards instructed by McNeil and McFarlane for the claimant.
Mrs. Rose Duncan Ellis and Mrs. Hyacinth Griffith instructed by Duncan Ellis and Company for the defendant.
FAMILY LAW; APPLICATION FOR DIVISION OF MATRIMONIAL PROPERTY; SEPARATION AGREEMENT; TIME WITHIN WHICH TO MAKE THE APPLICATION
By Fixed Date Claim Form filed 27 th July 2009, the claimant Mrs. Ruth
Irma Rodriquez Morales Pino, sought a number of orders against her estranged husband/defendant, Reinaldo Pino Bestard. The orders sought are:
BACKGROUND
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(i) That the claimant and the defendant own the matrimonial house located at 12 Hopeton Avenue, Kingston 8 in the parish of St. Andrew in equal shares of 50% each.
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(ii) That the applicant is the sole owner of Nissan motor car licenced # 3341 EJ.
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(iii) That the defendant transfer the said motor car to the claimant forthwith.
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(iv) That the defendant pays to the claimant by way of maintenance the sum of Ten Million Dollars ($10,000,000.00) for the duration of her life.
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(v) That the defendant be restrained from cancelling Health Insurance Policy number 91300-05046, which he holds with Sagicor Limited as an employee or a member of the Correctional Service, and of which the claimant is a beneficiary or that he makes such arrangements for her Health Insurance as the Court deems just.
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(vi) That the claimant and the defendant are entitled to the sums in all the National Commercial Bank Account held at the Manor Park Bank Branch or such other branches in the name of the defendant or in both parties name, as the said funds have been transferred to.
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(vii) That the parties are equally entitled to a 50% interest in the one bedroom apartment at 9A Central Avenue, Kingston 8.
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(viii) That the defendant pays to the claimant such monthly sums as the Court deems just in the interim for her maintenance.
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(ix) That a valuator agreed upon by the claimant and the defendant be appointed to do a valuation on the premises situated at 12 Hopetony Avenue, Kingston 8 in the parish of St. Andrew and that costs of same be paid equally by the parties.
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(x) That the Registrar of the Supreme Court be empowered to sign any and all documents to make effective any and all Orders of this Honourable Court if either party is unwilling or unable so to do.
In her affidavit of even date, Mrs. Pino says she's a Store Manager but 'temporarily redundant'. Both are Cubans and met in 1982. After a courtship of seven (7) years they celebrated their marriage on the 23 rd February, 1989 in that Spanish isle. The claimant is Dr. Pino's senior by three (3) years but nature's gifts of youth and youthfulness, together with the bliss of romance would have rendered that an invisible detail. Be that as it may, the medical doctor and working woman extended their union on 22 nd January, 1990 with the birth of their first child.
Sometime thereafter, the allure of the English-speaking, democratic and perhaps more viable economy, of neighbouring Jamaica, caressed the couple to emigrate. Pursuant to their agreement, Dr. Pino preceded Mrs. Pino to Jamaica on 17 th October 1994 to secure a job. Five months later Mrs. Pino and their child joined Dr. Pino.
While there is no dispute that the family first settled in Annotto Bay, St. Mary, where Dr. Pino had secured a job at the Annotto Bay Hospital, discord permeates the details of residence. In her affidavit of 27 th July 2009, Mrs. Pino says they lived in a rented one bedroom near the Annotto Bay Hospital. Dr. Pino disputed that and counter-averred that it was a one room at the doctor's quarters, sharing common facilities. Mrs. Pino seems to agree in her affidavit of 29 th January 2010. She therein says it was a one room apartment at the hospital. She added that that arrangement continued for one and a half (1%) months.
According to Mrs. Pino, thereafter the hospital found for them a three bedroom house. They resided in that house between 1995 and September 1997. At this time, Dr. Pino's grandmother, who lived with them in Cuba, resided with the family. Dr. Pino says within one month of Mrs. Pino's arrival he acquired a three bedroom house. That was through the hospital, as Mrs. Pino alleges, but specifically the administrator according to Dr. Pino. Although the house was then owned by Banana Estates, it was extended as a courtesy to the Resident Doctor. That translated into the nominal requirement of payment of maintenance only.
From this house the family moved to Kingston in September 1997. This was the family home, located at 12 Hopeton Avenue. That was notwithstanding needed repairs, in the evidence of Mrs. Pino. Dr. Pino in his affidavit of 2 nd December 2009 refutes the latter assertion and says the house was in perfect living condition. Mrs. Pino maintained that while the house was in a livable condition, repairs and renovation were required.
Whatever the habitable condition of the family home, the question of real import is its means of acquisition. Mrs. Pino says most of the negotiation was handled by Dr. Pino. That situation was precipitated by a coincidence of handicaps and tradition. First, whereas her grasp of the English language was inchoate, his had advanced to fluency. Secondly, in contradistinction to the temporal constraints imposed on her by work and care-giving thereafter, he enjoyed flexible work hours. Thirdly, Dr. Pino was the head of the household, with whatever authority was concomitant with that ceded, assumed or both. Mrs. Pino implies that the foregoing explains the title appearing in the sole name of Dr. Pino. That fact however excited no alarm as she harboured no anxiety concerning the protection of her interest.
Dr. Pino substantially contradicts the second handicap. He says Mrs. Pino was a stay at home mother so, presumably her participation in the negotiation wasn't thereby circumscribed. He is silent on the other matters. Dr. Pino boldly discloses that the property is in his sole name for what might be compendiously stated as the absence of any financial contribution from Mrs. Pino. A relative gave him $4,750,000.00 and the National Housing Trust (NHT) the remaining $1,098,930.00. The closing costs came from his personal savings.
This averment was frontally contradicted by Mrs. Pino in her reply, filed on 29 th January 2010. The sum of $4.75 million wasn't given by Dr. Pino's relative but rather by Mrs. Jennifer Greaves, a family friend. Mrs. Greaves was cast in the role of a bountiful, beneficent benefactor. Mrs. Greaves was their facilitator to settle on these shores and told them about the sale of this house. Mrs. Greaves' beneficence was born of overwhelming love for Laima, the couple's daughter, Mrs. Pino asserted.
In consequence of that undying love, following a discussion with the Pinos, the money was gifted to the family as a deposit on the house for the benefit of Laima. Further, Mrs. Greaves arranged for her driver, Henry Adolph Durant, to transfer his NHT benefits [points perhaps] to facilitate a mortgage repayment of approximately $10,000 per month. To this robust challenge Dr. Pino regurgitated an anaemic response, while admitting Mrs. Greaves to be a family friend, his relative morphed into a close friend with the identical characteristics of anonymity.
The parties appear to agree that the sale was completed in or about mid 1998. That having been done, Mrs. Pino says they made arrangements to both repair and extend the house. Au Contraire, Dr. Pino avers that no discussion preceded this. It was his decision to secure the property by the installation of grills and fences. Any discussion was with the workmen whom he personally supervised and remunerated. It was his evidence that Mrs. Pino was then pregnant, required the aid of a full-time helper and was bereft of any knowledge of construction.
Mrs. Pino partly refutes this in her reply. She does not explicitly challenge Dr. Pino's assertion of individuality of decision-making but contends an acceleration of that decision consequent upon their victimization by criminal gunmen. Further, for want of time and unfamiliarity with the construction sector, Mrs. Pino said Dr. Pino was as much a neophyte in the area as herself. Her position was however mitigated somewhat by having worked in the hardware. So, that experience and being unemployed at the time equipped her as supervisor. That retort stood unanswered in Dr. Pino's reply, filed on 20 th July, 2010.
By 2001, their second child was 2 years old, the house essentially restored and Mrs. Pino re-entered the labour force. Although the prefatory part of paragraph 16 of his affidavit of 2 nd December, 2009 denies the foregoing assertion, the succeeding sentence makes it plain that the denial touches and concerns only the averment of the restoration of the house. Mrs. Pino's re-entry to the labour force was pursuant to a discussion which recognized that this would be in the best interests of their second child. It was also agreed that Mrs. Pino would assume responsibility for the expenses of employing a baby sitter, her sole contribution to the household expenses, swore Dr. Pino. Mrs. Pino countered that additionally; she paid the helper and on occasions the gardener as well. No further rejoinder came from Dr. Pino.
By this, the romantic bliss had evaporated like the morning mist in the face of the noon day sun, as the delicate petals of the marriage wilted before the concupiscent Fahrenheit 212° temperature of Dr. Pino's extramarital affair. Frequent trips to Cuba by Dr. Pino precipitated frequent quarrels between the two. Those trips evidenced an established...
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