Yasmine Mechelle Johnson Nee Miller v Andrew Simeon Johnson

• Jurisdiction: Bahamas
• Judge: Dame Anita Allen, P,The Honourable Dame Anita Allen, P,The Honourable Mr. Justice Isaacs, JA,The Honourable Mr. Justice Jones, JA
• Judgment Date: 14 December 2017
• Neutral Citation: BS 2017 CA 98
• Docket Number: SCCivApp No. 20 of 2015
• Court: Court of Appeal (Bahamas)
• Date: 14 December 2017

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Before:

The Honourable Dame Anita Allen, P

The Honourable Mr. Justice Isaacs, JA

The Honourable Mr. Justice Jones, JA

SCCivApp No. 20 of 2015

Between

Yasmine Mechelle Johnson nee Miller

Appellant

and

Andrew Simeon Johnson

Respondent

APPEARANCES:

Lady Sharon Wilson, Counsel for the Appellants

Ms. Marylee Braynen-Symonette, Counsel for the Respondent

Dean v Dean 1991 BHSJ No. 164 mentioned

G v G [1985] 2 All ER 225 mentioned

Howard v Howard [1945] P. 1 mentioned

Jupp v Jupp SCCiv App No. 37 of 2011 mentioned

Macey v Macey (1981) 3 F.L.R. 7 ) mentioned

Miller (Appellant) v Miller (Respondent) ; McFarlane (Appellant) v McFarlane (Respondent) [2006] UKHL 24applied

Trippas v Trippas [1973] Fam. 134 mentioned

Civil Appeal — Family Law — Ancillary — Access — Periodic Payments — Property Adjustment — Matrimonial Property — Gifts — Income — Proceeds of Gambling Matrimonial Causes Act, Ch. 125

In October 2011 the parties began ancillary proceedings in the Supreme Court. The appellant sought orders for custody, maintenance of the children, payment of a lump sum to her and various property adjustment orders. The appellant asserted, amongst other things, that she had an equal interest in the properties acquired by the respondent during the marriage and further that the learned trial judge incorrectly concluded that monetary gifts given to her by her parents formed a part of her regular income.

Held:- appeal allowed, access order is varied to insert the word alternate, periodical payment order varied, respondent shall pay the school fees of both children until they shall complete tertiary education up to a Bachelor's degree, the appellant shall pay all educational expenses of the children up to a Bachelor's degree, a valuation of the Westwinds, Saffron Hills and Winton properties is to be undertaken, such valuation to be conducted by an appraiser to be agreed between the parties, failing an agreement the said valuation is to be undertaken by an appraiser appointed by the Supreme Court, upon completion of the valuation the respondent is to convey 50% of his interest in each property to the appellant, alternatively, the respondent is to pay the appellant an amount representing 50% of the appraised value of the properties, each party is to pay his or her own costs of the appeal

per Allen, P

From a review of paragraph 33 of the learned judge's decision, and the judge's expressed intention to ensure equal access by both parties, I think she clearly went wrong in granting access to the respondent every Saturday outside of the school holidays, effectively giving the respondent access for what is nearly the whole of every weekend. To my mind, the learned judge did not arrive at a solution which fulfilled her stated intention.

Suffice it to say that custody arrangements are not fixed in time, and the fact that at the time of the order the appellant may have accepted that the identical arrangements were then working, does not prevent her from later challenging those arrangements on the basis that the judge wrongly exercised her discretion. I would accede to this ground for the reason mentioned; and vary the order at paragraph 11 (2) (iv) to insert the word “alternate”.

In light of the dicta in Howard v Howard [1945] P. 1 and Macey v Macey (1981) 3 F.L.R. 7, it is clear that voluntary assistance from third parties (the appellant's parents in this case), cannot properly be regarded as a part of the appellant's income, unless there are circumstances from which the court may properly infer that such assistance will be likely to continue and should therefore be brought into account as ‘income’ in accordance with section 29 of the Act. On the evidence in this case, the learned judge's decision to bring into account $1600 as part of the appellant's monthly income, was plainly wrong. Her salary of $3033.33 ought to have been regarded as her income for the purpose of the assessment under section 29 of the Act; her 2006 BMW and her joint interest in property situate at Treasure Cove, ought to have been regarded as the extent of the property she owned for that purpose.

As to the respondent's assertion that his gambling winnings should not have been included in determining his income or earning capacity for the purposes of the application for the periodical order, it emerges from his evidence that he has been gambling over many years; and while he suggests that he sometimes loses, from the evidence, he appears to have been fairly successful. It seems to me that this is a form of income which might be considered as an incidental of his earning capacity which, from his evidence, seems likely to continue to form a part of his resources for the for-seeable future.

Having read the respondent's cross examination, it struck me that he was less than forthcoming about his income and financial resources; and notwithstanding he had been ordered by the court to produce his bank statements for the three years previous to 2013, he produced statements only for 1999 which, in some respects were illegible, and those which were legible, he was seemingly unable to explain. At the end of his evidence, the court was none the wiser as to his real income, earnings, and financial resources.

From the respondent's evidence, it may reasonably be assumed that his level of income and his financial resources are likely to be sustained for the forseeable future. All of this evidence was before the learned judge, and in as much as the respondent was not forthcoming about his income and financial resources, it was open to her to look to his expenditures and his standard of living as an indication of his financial resources; which on the evidence appear to be substantially more than the appellant's. In these circumstances, the learned judge in my view took into account matters which she ought not to have taken into account; and failed to take into account matters which she ought to have taken into account; so that the order which resulted must plainly be wrong.

When one looks at the substance of the order, and considers the relative income, earning capacity, property and financial resources of the parties, the contribution required of the respondent is clearly not commensurate with his level of income, earning capacity, property and financial resources.

In the premises, I would vary paragraph 36(3) of the order to provide that the respondent shall pay the school fees of both children until they shall complete tertiary education up to a Bachelor's degree; and to provide further that the appellant shall pay all educational expenses of the children up to a Bachelor's degree.

As I understand the dicta of Lord Nicholls at paragraphs 16 and 22 of Miller (Appellant) v Miller (Respondent); McFarlane (Appellant) v McFarlane (Respondent) [2006] UKHL 24, properties which are the financial product of the common endeavor of the parties, namely marital acquests, should on the break-up of a marriage whether the marriage was short or long, be shared equally, unless there is good reason to find otherwise. In other words, there should be parity in the sharing of the property unless there is good reason which dictates that the properties should not be shared equally.

The learned judge gave no sufficient reasons for her finding at paragraph 73 to the effect: ‘that there was no partnership of equals between the appellant and the respondent with respect to acquiring assets which would be considered matrimonial assets’. In my view that is incorrect. Indeed, the mere fact that the parties were married makes them a partnership of equals; and it does not matter whether or not either party intended that his or her property acquired during the marriage should be matrimonial property. Accordingly, following Miller (above), and in the absence of any good reason to the contrary, these properties should be shared equally.

In the result, I would order a valuation of the three properties, namely, Westwinds, Saffron Hills and Winton, such valuation to be conducted by an appraiser to be agreed by the parties. Failing agreement by the parties, the said valuation is to be undertaken by an appraiser appointed by the Supreme Court. Upon completion of the valuation, the respondent is to convey 50% of his interest in each property to the appellant. Alternatively, the respondent is to pay the appellant an amount representing 50% of the appraised value of the properties. Each party is to pay her or his own costs.

Dame Anita Allen, P

Judgment Delivered by the Honourable

1 . The parties to this appeal were married on 21 October 2000, and are parents of two minor children.

2 . The marriage of the parties lasted until 13 July 2011, when a Decree Nisi was granted to the respondent on the ground of cruelty. The couple however, had been separated since 2008.

3 . On 27 October 2011, ancillary proceedings were commenced by the appellant by way of Notice filed in the Supreme Court, wherein the appellant sought orders for custody, and maintenance of the children; payment of a lump sum to her; and orders for property adjustment.

4 . The application was heard by Madam Justice Rhonda Bain who rendered her judgment on 17 December 2014. In that judgment she made orders for custody, access and maintenance of the children; but refused the appellant's applications for a lump sum payment; and the property adjustment orders sought.

5 . The appellant is aggrieved by some of the provisions of the custody and maintenance orders; and by the refusal of her application for a share of the properties acquired by the respondent during the marriage.

6 . The appellant launched her appeal by filing a Notice of Appeal on 9 June 2015, following the grant on 3 June 2015, of an extension of 7 days within which to appeal. That Notice of Appeal was amended subsequently to include further...