Young, Sr. v Young
| Jurisdiction | Bahamas |
| Judge | Moore, J. |
| Judgment Date | 26 January 2001 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 134 of 2000 |
| Date | 26 January 2001 |
Supreme Court
Moore, J.A.
134 of 2000
Mr. Vernon Darville for the petitioner
Ms. Pleasant Bridgewater for the respondent
Family law - Petition for divorce — Petitioner sought order for divorce on ground of cruelty by respondent — Isolated instances of cruelty — Whether instances amounted to cruelty within sec. 2 of Matrimonial Causes Act — Finding that evidence of husband fell short of satisfying grave and weighty test of cruelty — Petition dismissed.
On the 29th August 1978, Mr. Bernard Anthony Young, the petitioner, then a somewhat youthful divorcee, was married to a somewhat older spinster Marsha Theodora Humes who was nearly ten years his senior. Two daughters were born during the Marriage: but the parties also had a son. It is common ground between them that the marriage was consummated, that both parties are domiciled in the Bahamas, that there have been no previous proceedings and that the Petition was not presented or prosecuted by the parties in cahoots with each other.
The petitioner relies on the ground of cruelty. The respondent pleads that she has not treated the petitioner with cruelty. On the contrary, she said that she was always treated him with honour, respect and much care, concern and affection.
Neither side called any witnesses even though two of the incidents upon which the petitioner relied were witnessed by one daughter in one case, and the other daughter in the second.
It is not difficult to understand the reluctance of the parties to involve their children in their marital difficulties at the level of the courts. Much therefore turns on the evidence given by the parties. It must be examined for its inherent plausibility and credibility against the background of their respective demeanours in the giving of their testimony and in the way they appeared to the court.
The petitioner testified that he is a local Pastor of the Faith Ministerial International Church. He demeaned himself with a pious air and gave his evidence in a candid straightforward and convincing manner. He was a most impressive witness. As he recounted the events about which he spoke with telling effect, the respondent squirmed in her seat shifted from side to side, crossed and uncrossed her legs, stared alternatively at the petitioner and at the court, heaved sighs of feigned disbelief, mumbled, pursed her lips, rolled her ample eyes in a revolving manner, or darted her gaze from side to side, peered over the top of her reading glasses, crossed herself from time to time and appeared to be completely adept in the display of such histrionics. Hers is clearly a demonstrative personality.
It is undeniable from the evidence of both parties that before the month of April 2000, there had been a certain degree of turbulence in their relationship. The first incident upon which the petitioner sought to found his charge of cruelty had its genesis in an issue which is often the subject of debate in many families. It concerned the readiness of their son for entering into the holy estate of matrimony and, more important, whether he was financially able to shoulder the burdens of that estate which accompanied its enticing privileges.
The wife thought that the son should postpone the savouring of the delights of marriage at least until he had found a job. But the petitioner, evidently alive to the new reality in which we live, where many husbands earn considerably less than their wives or do not earn at all, was of the view that the boy should have his way and the wedding proceed.
In A non (1955) Times, 9th June CA one of their Lordships opined that a wife's “only weapon is in effect her tongue.” But it would appear that in this case, the husband's allegation was that the wife had added other elements to her arsenal. The wife admitted that many plant pots adorned the matrimonial home, though she contended that they decorated the veranda and not the interior of the house.
The husband saw it otherwise. He says that plant pots were actually within the house itself and that, as the volume of their oral exchanges increased and their control over their tempers diminished, the wife, without warning, swung a ceramic plant pot with such telling accuracy that it struck him over the side of the head, taking him unaware, before he could mount any evasive manoeuvre. I believe that that is what actually happened.
Surprised by the wife's sneak attack, the husband rounded upon her, and before she could strike again, seized both of her forearms in the area of the wrists thus restraining her from repeating the assault. The parties wrestled with each other. She, attempting to break free, he struggling to restrain her and prevent her from wielding the plant pot yet again.
There is a dispute between the parties as to what happened next. The wife admitted in her pleadings that she did kick the petitioner in his groin in self-defense because she was being assaulted by the petitioner who was holding her to the ground and holding both her hands. Her legs were free, she pleaded, and, to force him to let her alone and get off her she kicked him in the groin.
By the time she came to give her evidence however, the respondent wife, no doubt renouncing the pleaded version with its negative imputations upon her modesty and femininity, deposed that the petitioner, holding her hands, threw her backwards over a couch: and that as she was falling into that supine posture, her foot shot up involuntarily and may inadvertently have come into contact with the petitioner's unprotected groin, which happened to find its way into the path of her ascending foot as it made its upward arc. I do not believe her. The husband's version that she kicked him in the most tender part of his person as he held her to the ground is far more plausible, credible and acceptable.
The husband in his testimony was somewhat hesitant to describe the effects of this affront to his manhood: but was eventually able to disclose with evident reticence that when, what he described as a swift kick landed upon the target area, he was almost immobilized except for holding on to the respondent's hands.
The couple's youngest daughter intervened and, like a good referee, succeeded in separating the combatants without further incident. The daughter was so upset that the petitioner took her away for a drive to calm her down. So shaken was the petitioner that he thought it prudent to inform the police of the episode.
The respondent appears to have a penchant for the use of plant pots for purposes other than the cultivation of colourful blooms. Indeed, she appears to find them handy as convenient weapons. Mrs. Maggie Jiggs of the cartoon “Bringing up Father” has become notorious for the telling effect with which she ‘brained’ the unfortunate Jiggs with her rolling pin.
In the month of June, 2000 the petitioner, who by this time had removed from the matrimonial home, went there to see his older daughter Bianca who was home from college. He testified that the respondent hit him with a plant pot, and then, as a further indignity, dumped the dirt upon his head. Her parting shot was to hurl the plant pot which sped unerringly towards his head. But he was sufficiently quick witted to see it coming on this occasion, and was able to duck before it found its mark. But while he escaped, his hapless car did not: for the plant pot crashed into the body of the automobile denting the vehicle, and scratching up the paint. The petitioner lamented that the car bore the scars of this affront right up to the day upon which he testified.
The petitioner testified about a third incident on the 10th July 2000. The petitioner describes this as a fight. But no July incident appears in the particulars of cruelty in the petition. Nor did the petitioner give any evidence of the respondent trying to run him off the road. In any event, the respondent denied that any such event ever took place and I believe her. The question therefore before the court, upon the facts which I have found, is whether the voluntary conduct of the respondent amounts to cruelty within the definition contained in section 2 of the Act.
The entire matrimonial relationship must be considered. These are persons who have been married for some twenty-two years. They have parented children who are young adults or nearly so. They appear to have enjoyed a comfortable standard of living. The Petition based itself on the particulars of cruelty set out therein. The question is whether there is evidence from which the court can conclude that all of the elements of cruelty set out in the section have been established by the petitioner and, where alternative elements exist, whether at least one of those elements has been proved.
The court must bear in mind the physical and mental condition of the parties as well as their social status. Both parties appeared to be of good health and, the respondent's nervous gestures before she entered the witness box notwithstanding, gave their evidence in a calm and restrained manner. They both gave their evidence with dignity and courtesy to examining counsel. They both testified about dining together, about the...
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