P v P

JurisdictionBahamas
CourtSupreme Court
JudgeMaynard, J.
Judgment Date29 October 2007
Docket NumberFP/FAM/div/075 of 2006
Date29 October 2007

Supreme Court

Maynard, J. (Ag.)

FP/FAM/div/075 of 2006

P
and
P
Appearances:

Mr. Jethro Miller for petitioner.

Mr. Kwasi Thompson for respondent.

Family law - Divorce — Cruelty — not established — Evidence did not support constructive desertion — Decree nisi granted

1

Maynard, J. (AG.): The petitioner and the respondent, both divorces, married on January 12, 2002. By a petition filed on May 25, 2006, the petitioner applied for a divorce on the grounds of cruelty and constructive desertion by the respondent.

2

In his answer filed August 4, 2006, the respondent denied the acts of cruelty alleged by the petitioner and asked that the petitioner's request for dissolution of the marriage be rejected. By a separate cross petition filed almost seven months later on March 1, 2007, the respondent took a different approach. The cross petition stated that “the petitioner deserted the petitioner (sic) for a continuous period of at least two years” immediately preceding the presentation of the cross petition. The brief particulars were that, “on or about December, 2003, the petitioner left the matrimonial home and to date has never returned”. The cross petition repeated the request that the prayer in the petition be rejected and the petition be dismissed, but further requested that “the discretion of the Honourable Court to grant a decree be exercised in his (the respondent's) favour” and that the marriage be dissolved.

3

While the reference to the petitioner deserting herself was probably a typographical error, that paragraph was not corrected in the course of the lengthy proceedings. But, from the particulars, it appeared that the respondent was asking for a divorce on the ground of desertion by the petitioner.

4

During the application for leave to file the cross petition out of time and at the trial itself, the petitioner made much of her allegation that the respondent's immigration status in particular his appearance would be compromised if the divorce were granted on the ground of cruelty. According to her, this was the reason why the respondent filed a cross petition and wanted a divorce on a different ground. The respondent denied the allegation. His counsel replied that this would come out at trial if it were the case that the respondent resisted the ground of cruelty for immigration purposes. It did not. Evidence was given that the respondent, a German national who resided and operated a business in the Bahamas for a substantial period, had applied for permanent residence. She assumed that he applied as the spouse of a Bahamian, and her letter to the assistant director of immigration dated May 24, 2006 objecting to the application, was entered into evidence by the petitioner, along with her account of meeting with immigration personnel and the respondent. Although her attorney spoke of issuing a subpoena and did so, no witness appeared from the immigration department or otherwise and her attorney took it no further. I am not convinced by the evidence before me that the respondent's conduct was determined by his immigration application, nor am I convinced of any relevance of it to his alleged cruelty. I find that this line of inquiry by the petitioner allegation had no merit in these proceedings, and I give my findings without any further regard to it.

5

The parties went out together from March 2000. They were both pilot and flew small aircraft back and forth from Florida and other destinations, sometimes together. She was the sole survivor in a fatal crash on April 19, 2001 in Florida in which all of her four passengers were killed. As a result, she suffered extensive, serious burns about her body and other injuries such as a collapsed right lung, and spent more than two months in the burn unit of Jackson Memorial Hospital in Florida. She was discharged from the hospital in late June 2001. Her relatives, the respondent, and, according to him, his goddaughter who was a registered nurse cared for the petitioner during her recovery. After marriage counselling, they were married in January 2002. The respondent, the petitioner and her daughter by her previous marriage moved into the respondent's apartment and later into his condominium. They lived together for less than two years. In December 2003, while the respondent was in Canada visiting his mother, sister and adult children of his previous marriage, the petitioner moved out of his place and back into her own home.

6

The specific allegations of cruelty claimed by the petitioner apart from the respondent's alleged preoccupation with his immigration status (already dealt with above), extended notably to uncontrolled outbursts of anger, restricting the access of the petitioner's daughter to the master bedroom and causing her to be sent away to Florida, requiring the petitioner to pay for his delivery or pick-up services, for repairs at his garage and for trips on his airplane, the disclosure to third parties of partly nude photographs of her in the hospital bed after the plane crash, the treatment of her orphaned cousin Kazz, and the respondent's conduct during her aunt's illness. She claimed the respondent was self-centred and more concerned about giving a good impression in public and receiving praise from others than about her feelings. She said that he talked too much to others about their private affairs and that he jeopardized her interests in the aviation case in the United States resulting from the crash. She said they had a business relationship, not a marriage; she put in evidence invoices where he charged her for services rendered by his garage and by him for her personally or for her mail drop business. She said she never felt at home in the respondent's apartment, and gave the example of their altercation over a cookie oven. She insisted she was traumatized, yet remained calm, because she could not be agitated during her recovery from the crash. The crash took place before the marriage, but her burns were so serious that her recovery continued throughout their time together.

7

Her counsel stated that, while there was give and take in a marriage, the above instances taken separately and together went beyond the normal wear and tear.

8

Because of the respondent's outbursts, she said she felt she was walking on eggshells. A specific example of an outburst arose from an incident while landing at the Fort Lauderdale airport in which she, as his co-pilot, failed to hear a radio communication directed to them. But, she accepted that he was justified in being annoyed at her, though not at an airport employee who approached them when they landed. In addition, she acknowledged during additional counselling in the latter part of 2002 during the first year of the marriage, that his outbursts were not a marital problem. She said the doctor informed the respondent he had an anger problem. She said this was not a marital problem, but the respondent's personal anger problem, that he needed to deal with, and that was not within the marriage. She further explained that at that point she did not care any more; she was ready to leave. She said he had no interest in improving himself so that their relationship could be better; he did not want to go to counselling and chose to do nothing about his anger.

9

The petitioner said the respondent would not allow her fourteen year old daughter to enter the master bedroom, except to clean it, even when the petitioner was there alone and ill in bed. The petitioner said that, when the situation became intolerable, she sent her daughter in August 2003 to live with her sister in Fort Lauderdale. The respondent replied that he was often unclothed or partly clothed in the master bedroom and thought it was unsuitable for a child of her age to see him in that condition. While he acknowledged that he did not have a close relationship with the child, he claimed that he was not unkind to her. He also had children of his own from his previous marriage who lived elsewhere.

10

The respondent denied showing the photographs of the petitioner to other persons. He claimed he showed other photos with her fully clothed in a wheelchair, and not the photos she complained of.

11

Regarding her cookie oven, she said she would plug it in, and later the petitioner would unplug it and plug in his toaster, and this cycle would be repeated. The respondent said he did not remember the incident and that he did not have a clue about it. I do not think that this amounted to cruelty on his part. Nor do I think the compromises they made over the purchase of furniture for the home amounted to cruelty. In the heat of a divorce, the compromises which one might ordinarily make in a marriage, even with some reluctance, are magnified in retrospect out of proportion to their actual significance at the time. I think these latter instances are of such a nature. She now was sweating the small stuff, in spite of the popular admonition not to do so and that such occasions are all small stuff.

12

She said she was very close to an older cousin lanthie Williams, whom she affectionately called “Ma”. Their relationship was like mother and daughter and Ms Williams had often accompanied her on her flights and cooked her meals. But, Ms Williams was not well and was in and out of hospital. At the same time, the petitioner would deliberately stay at her store until 10 p.m. or until she thought the respondent was asleep, before she would go home. On a particular evening, she said the doctor had informed her that Ms Williams had three weeks to six months to live. She said that, when she went home from the hospital that night, the respondent had not been informed of what transpired regarding Ms Williams and he was up waiting for the petitioner. She said they argued loudly and he yelled at her.

13

But, she said that she understood that if she was in his position, with a wife coming home so late, she would...

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