Rosemary Edith Burrows v Sylvester John Burrows

• Jurisdiction: Bahamas
• Judge: Madam Justice Crane-Scott, JA
• Judgment Date: 15 December 2021
• Neutral Citation: BS 2021 CA 199
• Docket Number: SCCivApp. No.58 of 2021
• Year: 2021
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Madam Justice Bethell, JA

SCCivApp. No.58 of 2021

Between

Rosemary Edith Burrows (née Knowles)

Appellant

and

Sylvester John Burrows

Respondent

APPEARANCES:

Mr. Alexander Maillis for the Appellant

Mrs. Janet Fountain for the Respondent

A v. B [2010] 2 BHS J. No. 19; mentioned

Bellenden (formerly Satterthwaite) v. Satterthwaite, [1948] 1 All ER 343; applied

Charman v. Charman, [2007] 1 FLR 1246; mentioned

Chisholm v. Chisholm, SCCivApp. No. 127 of 2020; mentioned Collie v. Collie, SCCivApp & CAIS No. 19 of 2015; considered

GB v. VB, [2018] 1 BHS J. No. 87; distinguished

Glinton v. Glinton, SCCCivApp & CAIS No. 101 of 2017; mentioned

GP v. DP, [2015] 1 BHS J. No. 145; mentioned

H v. H, [2007] EWHC 459 (Fam); distinguished

Herridge v. Herridge, [1965] 1 WLR 15; mentioned

Jupp v. Jupp, SCCivApp. No. 37 of 2011; considered

Miller v. Miller; MacFarlane v. McFarlane, [2006] UKHL 24; considered

Missick v. Missick, SCCivApp & CAIS No. 27 of 2011; mentioned

Munroe v. Munroe, SCCivApp. No. 120 of 2018; mentioned

Perry v. Perry, [1952] P. 203; mentioned

Piglowska v. Piglowska, [1999] 3 All ER 632; applied

Sawyer v. Sawyer, SCCivApp. No. 134 of 2014; mentioned

White v. White, [2001] 1 AC 596; considered.

Civil Appeal — Matrimonial proceedings — Ancillary relief — Appeal against Property adjustment order — Duration of marriage — Cessation of mutual support — Breakdown of marriage — Property available for distribution at time of breakdown — Departure from equitable sharing principle — Search for a fair result — Conduct of the parties — Discovery Order — Section 29(1) Matrimonial Causes Act

This was an appeal by a wife against the whole of a written Ruling handed down by a Supreme Court judge following a contested hearing of an application for ancillary relief consequent on the parties' divorce.

In her grounds of appeal the wife complained that the learned judge's Ruling was at variance with the law and the facts. In particular, the wife complained that the judge erred in law and in fact when he found that the marriage had broken down and mutual support had ended in 2011, despite the uncontroverted evidence which showed that after their brief separation in 2011, the parties had reconciled for a further period of 6 years before the wife finally left the matrimonial home in 2017 and commenced proceedings for divorce.

The parties' marriage lasted 25 years and produced no children. The marital assets included the matrimonial home in the husband's name, 3 fishing boats, Government registered stock, shares in 2 companies, the wife's accrued pension gratuity, various joint and individually held bank accounts and a vehicle.

Notwithstanding the undisputed evidence that the wife had returned to the matrimonial home in 2011 and the parties had resumed cohabitation for a further 6- years, the judge found as a matter of mixed fact and law that the marriage had broken down in 2011 when (as he also found) the parties' mutual support had ended. On this basis, he excluded from his consideration all income deposited in or withdrawn from any of the bank accounts after that time. The judge also ignored the wife's complaints that the husband (without the wife's knowledge or consent) had caused the Government Stock (jointly acquired during the marriage) to be transferred to his sole name; and had further, withdrawn substantial sums from the parties' joint accounts shortly before the wife finally left the matrimonial home in October 2017.

The wife appealed the entirety of the learned judge's Ruling and identified some 23 grounds of appeal. After hearing the contending submissions, the Court reserved its decision.

Held : Appeal allowed. The learned judge's Ruling and orders are set aside in their entirety. In the result the Wife's appeal is allowed. We set aside the learned judge's Ruling and the orders in their entirety and remit the ancillary proceedings for rehearing in the Supreme Court at the earliest opportunity. Costs of the appeal to the Appellant/Wife to be taxed if not agreed.

While the judge correctly adverted to section 29(1) of the Bahamas MCA and to his statutory mandate to have regard to ‘all the circumstances’, including the numerous factors set out therein, his Ruling was replete with numerous errors of fact and of law. Based on his erroneous reliance on the authorities of H v. H and GB v. VB, and notwithstanding the undisputed evidence of the parties’ 6-year resumption of cohabitation after a period of separation in 2011, the learned judge repeatedly alluded to his initial erroneous finding that the marriage had in fact broken down in Easter of 2011. This led him subsequently to erroneously leave out of account items of matrimonial property which ought otherwise to have been subject to the equitable sharing principle.

Furthermore, indirectly relying on the now overruled authority of GW v. RW, and erroneously adverting to irrelevant material located in the Husband's Cross-Petition regarding the circumstances of the Wife's departure from the matrimonial home, he unreasonably departed from the equitable sharing principle for reasons which were not cogently stated and which, in our view, were far from compelling.

In the result, we are satisfied that the judge's final conclusions are plainly wrong and must be set aside.

Decision delivered by The Hon . Madam Justice Crane-Scott, JA

Introduction

1 This is an appeal against a written Ruling of the Honourable Mr. Justice Keith Thompson (now retired) handed down on 16 March 2021 following a contested hearing of an application for ancillary relief consequent on the parties' divorce.

2 We have allowed the Wife's appeal against the judge's orders relating to the distribution of the matrimonial assets. Our reasons appear below.

3 The following background, including extracts from the relevant portions of the learned judge's Ruling, will provide the necessary context for consideration of the grounds of appeal.

Background

4 As the judge found, the parties were married on 2 January 1993. At paragraph [7] of his Ruling he expressly found that the duration of the marriage was approximately 25 years.

5 Though the judge made no specific finding as to the parties' respective ages, based on their respective Affidavits of Means, it appears that the Appellant (“Wife”) was approximately 45 years at the date of the Ruling, while the Respondent (“Husband”) was 49 years.

6 The Husband has been fishing since he was a teenager and still earns his living as a fisherman. The Wife is a teacher. It is not in dispute that following their marriage, the couple moved into a dwelling house which the Husband had constructed on a house spot which he subsequently acquired from his uncle situated on family land at Cartwright's, Deadman's Cay, a settlement on the island of Long Island. The conveyance for the matrimonial home is held in the Husband's sole name.

7 Both parties accept that in 1997 (some four years into the marriage) the Wife moved to Nassau to study and pursue a degree in education. Thereafter, the couple commuted between Nassau and Long Island over the approximately four years it took for the Wife to complete her studies. On completion of her studies in 2001, the Wife returned to the matrimonial home on Long Island where she began her teaching career. There were no children of the marriage.

8 In the year 2011, due to matrimonial difficulties, the Wife left the matrimonial home. After a brief period of separation, she returned home in 2001 and resumed cohabitation for a further 6 years (i.e. until 3 October 2017) when she left the home and the parties finally separated.

9 The Wife petitioned for divorce on 1 November 2017 citing cruelty on the part of the Husband. The Husband filed an Answer and Cross-Petition on 18 December 2017 denying the Wife's allegations of cruelty and alleging cruelty on the part of the Wife.

10 A Decree Nisi was granted on 10 April 2018 on the basis that since the celebration of the marriage both parties had treated each other with cruelty and the ancillary matters were adjourned to Chambers. The Certificate of Making the Decree Nisi Absolute was issued on 19 June 2018.

The Ancillary Proceedings

11 The Affidavits: In preparation for the ancillary proceedings, the parties filed their respective Affidavits of Means identifying the available property and advancing their respective positions in relation the property distribution orders they each sought. The Wife filed her initial Affidavit on 27 September 2018, followed by a Supplemental Affidavit of Means on 17 February 2020. The Husband filed his initial Affidavit on 11 February 2020.

12 The Discovery Order: On 3 March 2020, the Wife applied to the Court seeking discovery. On 6 March 2020, she obtained discovery orders requiring the Husband, inter alia, to produce: (i) a proper valuation ofthree fishing boats, (ii) documentary evidence ofhis earnings from his commercial fishing for the year 2019, (iii) bank statements for the period June 2017- 6 March, 2020 for four specific bank accounts.

13 The discovery order further required the Husband to disclose any certificates of deposit, local or foreign, held in his name, and/or any joint account with any other person or in respect of which he was a signatory for the period June 2017 to 6 March 2020.

14 The Husband was further ordered to account to the Court for three (3) specific sums which the Wife claimed had been withdrawn from the following RBC accounts:

“6.

(a) $50,000.00 transferred from RBC Account 702-567-9 on 13 June 2017;

(b) $19,299.49 transferred from RBC Account 702-567-9 on closing account on 25 September 2017;

(c) $14,765.00 transferred from RBC Account 701-480-6 on 25 September 2017.”

15 Both parties then filed their...