Anthony John Mello v Marilyn Elizabeth Mello

• Jurisdiction: Bermuda
• Judgment Date: 18 July 1987
• Docket Number: DIVORCE JURISDICTION 1986 No. 23
• Date: 1987
• Court: Supreme Court (Bermuda)

Anthony John Mello

Petitioner

and

Marilyn Elizabeth Mello

Respondent

[1987] Bda LR 61

DIVORCE JURISDICTION 1986 No. 23

In the Supreme Court of Bermuda

JUDGMENT

Melville, J.

The parties were married on the 9th January, 1971, Decree Nisi was pronounced on May 21, 1986. There are two children of the family, both girls, the elder Heidi was born on May 29, 1974 and the younger Phillipa on May 9, 1979. For easy reference I will refer to the Petitioner as the husband and the Respondent as the wife. The husband seems to be now about 39 and the wife is approximately 36 years old.

In these proceedings, the wife is seeking a transfer of property order so that she can raise the younger child in the former matrimonial home (the home); alternatively, and as a fallback position, she seeks a lump sum payment sufficient to make a deposit on the purchase of a home.

It seems that in addition to the viva voce evidence given I have to consider some nine affidavits and the exhibits attached thereto sworn by the parties at various times in these proceedings and in proceedings under the Minors Act — no. 148/1985. The wife confined her affidavits sworn on the 19th August, 12th November and 9th December all in 1986, and another sworn on the 1st June, 1987; whilst the husband confined affidavits sworn by him on 5th March, 28th July, 2nd October and 26th November, all in 1986, and yet another sworn on 9th February, 1987.

Sometime in 1979 the parties bought the home in joint names for $135,000. To raise this amount the parties obtained a joint mortgage from the Bank of Bermuda for $75,000 and a joint loan from the husband's mother in the amount of $60,000. The family occupied the property which is approximately 9 ¹/₂ squares until the separation of the parties in August/September 1986 when the wife left the home.

During the time the parties occupied the home, a stable was established and for some time the wife operated a riding school, referred to as the Lee Bow Riding Centre. The husband operates a business known as Mello Marine Service, and after the separation he also took over the business of the riding school, both of which he is still operating.

Difficulties arose between the parties and in September of 1982, the wife consulted the legal firm of Conyers, Dill & Pearman (CD&P) on, among other matrimonial matters, the question of a valuation of the home to ascertain what her share would be worth. According to the wife's evidence that was done as she was at that time thinking about going to England.

After the separation in August/September 1983, the wife again sought advice from CD&P. As a consequence, that firm wrote a letter dated 12th September, 1983 (Exhibit 1) to the husband. It states in the relevant portion:

“We understand it has been agreed that so far as the assets are concerned and the ancillary matters, the following shall take effect:

…..

4. That the dwelling-house be transferred from joint names into a trust for the two children in equal shares, one of the trustees being your mother, Mrs. Gilda Mello, to be held in trust until the children attain the age of 21 years respectively and in the interim period you to take over the responsibility of the mortgage in relation to the house.”

One knows for sure that that supposed agreement in paragraph 4 of Exhibit 1 was never effected because by an indenture dated December 13, 1983 (MEM.2 to the wife's affidavit sworn on 1st June, 1987) the wife conveyed her share in the home to the husband for the amount of $15,000. Some $67,500 was still outstanding on the mortgage, as also the $60,000 loan to the husband's mother, together with an additional $30,000 borrowed from the wife's father, Mr. Sherwood, to help in the erection of the stables. In addition to the payment of the $15,000, the husband undertook the sole responsibility for the repayments of the various amounts of some $157,500.

It is common ground that of the $15,000 the husband only paid the sum of $5,000. The balance of $10,000 was tendered but refused after these proceedings were launched.

By an agreement between the parties dated May 4, 1984, the wife transferred the riding school business to the husband for a consideration of $16,000 retroactive to 15th December, 1983.

This latter agreement was negotiated and executed on the wife's behalf by her father and seems to have been executed in two separate documents (see AJM.2 to the husband's affidavit sworn on 5th March, 1986 in the proceedings under the Minors Act, and further exhibited to the husband's affidavit sworn on July 28, 1986 in these proceedings.)

Of this amount of $16,000 it is agreed that $12,000 has been paid. There is a dispute as to the balance of $4,000. By about January 1984 the wife had taken up residence in England with the children of the family. It seems that she had left a horse at the riding school to be used for lessons by whoever was running the school. In August 1984, the husband telephoned the wife asking for permission to destroy the animal and she agreed.

This was never done as the animal recovered from whatever was wrong with it. When the wife returned to Bermuda in 1985 she used the horse to give lessons to a friend's daughter on a few occasions in September 1985 to May 1986, according to her evidence. At the husband's insistence the horse was later removed by the wife and apparently given away. The husband then sent the wife a bill for nearly $4,000 for the care of the animal and lighting. Indeed a cheque for $83 — which was apparently refused — was also sent which with the bill would amount to $4,000.

I have no doubt whatsoever that this alleged set off was no more than a ploy used by the husband to get out of paying this $4,000. Of the amount borrowed from Mr. Sherwood, $2,000 was used by the wife to purchase a horse — I think it was named Peanuts. On 4th February, 1984, the husband paid Mr. Sherwood the full amount that was outstanding (see AJM.6 to the husband's affidavit sworn on 26th November, 1986). That was about $31,000.

Peanuts seemed to have been sold by Mr. Sherwood on 4th May, 1984 on the wife's behalf to the husband again for $4,000 (see AJM 8 to the husband's affidavit sworn on 26th November, 1986). So in effect the husband has...