Vallen Donovan Hendricks v Pauline Paula Hendricks

• Jurisdiction: Jamaica
• Judge: Morrison, J
• Judgment Date: 09 October 2014
• Neutral Citation: [2014] JMSC Civ 149
• Docket Number: CLAIM NO. M00497/2010
• Court: Supreme Court (Jamaica)
• Date: 09 October 2014

[2014] JMSC Civ. 149

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

FAMILY DIVISION

CLAIM NO. M00497/2010

Between

Vallen Donovan Hendricks

Petitioner/Respondent

and

Pauline Paula Hendricks

Respondent/Applicant.

Application for maintenance of child of marriage — Maintenance Act — Principles — Application for extension of time — Principles — Property (Right of Spouses) Act — Application for entitlement to share in property — Family Home — Resulting in trust/Constructive Trust — Principle

IN CHAMBERS

1 The case at bar is one that is fact-sensitive. Whereas counsel was instrumental in filling the breach created by my misplaced notes of evidence, I regret that owing tothe press of myriad inconveniences the timely delivery of this judgment has been compromised. It is due in no small measure to the recent location of the said notes which, I remind, is the official record. As such I feel obliged to ask for the counsels' forbearance in the face of their understandable anxiety.

2 On the 26 ^th day of March 2005 the Petitioner/Respondent, a bachelor, was lawfully married to the Respondent/Applicant, a divorced person. (Hereafter referred to as ‘Respondent’ and ‘Applicant’, respectively).

3 According to the Petition for Dissolution of Marriage, ‘The Petition’, the married couple lived as man and wife in Jamaica at 96 Cumberland Way, Gregory Park in the parish of Saint Catherine. The property has now spawned and sparked a dispute as to each spouse's entitlement thereto. More on that later.

4 The marriage, according to the Petition, has produced one relevant child, Xavier Hendricks who was born on the 23 ^rd day of August 1991, some fourteen days adrift of the date of the marriage. This relevant child of the marriage is also the subject of an application for maintenance by the Applicant. According to the Petition the marriage has suffered irretrievable breakdown three years into its solemnization. A decree nisi, even up to the point of the filing of the Notice of Application for Court Orders, had not been granted.

5 As to the latter it was filed on May 20, 2011 by the Applicant who has asked this Court to grant certain other orders. I now set out the sought-after orders.

6 First, that the Petitioner be ordered to pay maintenance towards the education, welfare and upkeep of this child.

7 Second, a declaration that the Respondent is entitled to a one half share in the family home at 961 Cumberland Way, Gregory Park, in the parish of Saint Catherine.

8 Third, that the Applicant be given permission to apply for an order for division of matrimonial property under the Property (Right of Spouses) Act (PROSA).

9 Fourth, that the family home at 961 Cumberland Way, be sold and the proceeds of sale distributed equally between the parties.

10 Fifth, such further and other relief as the Court deems just.

11 A number of bases were advanced in contemplation of the desired orders:

12 Reliance on the assertion that the child of the marriage is enrolled in a tertiary institution at which he is undertaking a course of training and as such he requires reasonable maintenance; that the family home is in the sole name of the Petitioner despite the fact the Respondent made significant contributions thereto; that twelve months have elapsed since termination of cohabitation between the parties; and, that the Applicant and Respondent have ceased cohabitation and it is desirous that the property be divided between them.

BACKGROUND FACTS

13 The Respondent and the Applicant were married on the 26 ^th day of March 2005. Prior to their marriage the Applicant had been married to a Mr Pennicooke in the United States of America. He later died. During the currency of that marriage the Respondent was adulterously accommodated by the Applicant who had remarried a Mr Clarke.

14 Notwithstanding that latter fact she continued her liaison with the intervenient Respondent. That last marriage also failed. During the course and duration of both marriages the Applicant categorically asserts that she sent monies to the Respondent which the latter denies. The matter of proof being in issue, I propose to enlarge on that aspect later. In actuality, avouches the irrepressible Applicant, she not only contributed to the deposit on the Cumberland house but also sent approximately US$40,000.00 to finance the expansion of the said house, that is to say, to buy steel, cement, tiles and other building materials. The above expenditures signalled and is referrable to the common intention of them both that the house was to be theirs and that the Applicant was to return to Jamaica to live with the Respondent in their joint acquisition.

THE AFFADIVIT EVIDENCE

15 The Applicant's evidence is contained in three affidavits sworn to on May 10, 2011, December 27, 2012 and February 26, 2013 while those of the Respondent's were sworn to on March 28, 2012 and March 18, 2013.

16 According to the Applicant, since the birth of the relevant child, Xavier Hendricks, on August 23, 1991, the Respondent has not contributed ‘a cent towards his education, upbringing, maintenance, medical care or otherwise and I have to foot the expenses’. That being the case, she depones, ‘I had to work two jobs while he was going to school’. She then itemises Xavier's living expenses which comprisehealth insurance, dental care, optical, clothing, lunch money, groceries and social life as costing approximately US$2,391.00 per month. Added to this is the fact that ‘Xavier is currently enrolled in Sheridan Vocational Technical School. I have to pay for all of his expenseswith no assistance from his father’. As to the latter assertion, she exhibits from Sheridan Technical Center, a letter of Verification of Enrollment dated May 19, 2011.

17 The ability of the Respondent to assist with Xavier's expenses is set out in general terms: ‘I know that the Petitioner receives a monthly pension, collects rent from two tenants and works as a furniture maker. He makes and sells bed heads at a cost of $70,000.00 per bed head’.

18 Moving on to her claim for a share in the matrimonial home, the Applicant depones that she ‘expended significant amounts of money assisting him to build the family home at 961 Cumberland Way, Gregory Park in the parish of Saint Catherine’. She did so both before and during the marriage. In total, she avers, she sent the Respondent approximately US$40,000.00. The Respondent vicariously benefited from her largess due to the fact of her solely maintaining herself and Xavier ‘which allowed him to use his money to build the house’.

19 As proof of her significant contribution towards the construction of the upper floor of the house, the roof, doors and grilling, the Applicant tendered from Western Union, a money transfer establishment, a “confirmation of money transfer' from that entity which shows at total of US$1,000.00 for two transactions in May and June 2005 as being sent to Vallen Hendricks; US$100.00 as being sent to Vallen Hendricks in July 2004; Bank of America December 2008 statement; Invoice Viewer dated March 2005; receipt from Negril Pharmacy date February 2007; and receipt from Constantine Wood Center for transaction dated December 2008.

20 In deflection, the Respondent challenged the Applicant to prove her assertions. Without delving into thoroughgoing point counterpoint traverse the Respondent countermined that without the aid of any other he acquired his house in 1995 and that the mortgage was discharged over an 8 year period before his retirement. He categorically asserts that the Applicant: …’ did not have to and did not provide any financial assistance. That she contributed a door worth J$700.00 but did not expend significant amounts of money in assisting me with the building of my home at 961 Cumberland Way, Gregory Park, in the parish of Saint Catherine before and during the marriage’.

21 In the point of fact, asserts the Respondent, concerning the assertion monetary contribution by the Applicant, ‘…I borrowed US$1,000.00 from the Applicant, after we got married in 2005. I offered to reimburse her and she told me to the keep the money. At the time the exchange rate was roughly US$1 to J$54’.

22 While agreeing that the Applicant sent monies to him through Western Union, the Respondent, departed from this assertion of the Applicant in maintaining that the monies that he received were for on-sending to the Applicant's niece and in respect of work which he did on the Applicant's property in Seaview Gardens, Saint Andrew.

23 Yes, he agrees, that he did receive from the Applicant a stove and refrigerator that was intended for the Applicant's mother. However, he intimated his fears to the Applicant of their being damaged by other family members which caused her to disband her plans in favour of the Respondent keeping the new appliances and transmitting his used equivalent ones to the Applicant's mother. He is prepared to return the said itemsto the Applicant. He is also prepared to return the living room suite, to her which she had bought and about which she depones.

24 Save that two subsequent affidavits were sworn to and filed by the affiants nothing of probative evidential import was forthcoming.

THE SUBMISSIONS

25 The Applicant submits that on the facts and relevant legislation she is entitled to a one half share of 961 Cumberland Way, Gregory Park, in the parish of Saint Catherine it being the family home of the parties. Alternatively, she asks that should the Court be not inclined to agree that the “family home” as is defined in PROSA then the court may make a finding under the equitable principles of either a Resulting Trust or Constructive Trust.

26 As to maintenance for Xavier, the Applicant submits that in spite of the fact that Xavier is no longer a minor, ‘it would be unconscionable for the Court not to make an order for maintenance in light of ‘…...