A. B. v F. B

• Jurisdiction: Bermuda
• Judge: Alexandra Wheatley
• Judgment Date: 10 October 2019
• Neutral Citation: [2019] SC Bda 69 Div
• Docket Number: DIVORCE JURISDICTION
• Court: Supreme Court (Bermuda)
• Date: 10 October 2019

[2019] SC (Bda) 69 Div

In The Supreme Court of Bermuda

Wheatley, R.

DIVORCE JURISDICTION

2019 No: 57

Between:

A. B.

Petitioner

and

F. B.

Respondent

Matthew Watson of Cox Hallett Wilkinson Limited for the Petitioner

Georgia Marshall of Marshall Diel & Myers Limited for the Respondent

Maintenance Pending Suit

Ruling

JUDGMENT of Registrar Alexandra Wheatley

Alexandra Wheatley

INTRODUCTORY

1 The Petitioner and the Respondent were married on 11 April 1990 and as such have had a long marriage of approximately 29 years. There is one child of the family who is now 18 years old and is enrolled in full-time tertiary education.

2 The divorce petition was filed on 3 May 2019; however, the Respondent filed an Answer on 5 July 2019. The defended divorce hearing has been set down for three days on 25, 26 and 27 November 2019.

3 Prior to the Petitioner filing the divorce petition, the Respondent commenced proceedings in the Magistrates' Court under the Domestic Violence Protection Order Act 1997 (“the DVPO Act”) in April 2019. A Temporary Domestic Violence Protection Order (“the DVPO”) was granted to the Respondent on 18 April 2019 which inter alia, ousted the Petitioner from the former matrimonial home located at 4 Sanz Lane, Pembroke (“the FMH”) as well as required the Petitioner to pay the following for the Respondent:

• (a) the rent of the FMH in the sum of $4,000 per month;

• (b) continue to pay the Respondent's major medical insurance; and

• (c) a weekly maintenance payment of $500 per week for maintenance for the Respondent and the child of the family.

4 I am not required to make any findings in relation to the DVPO as this was done by the Learned Magistrate and that decision was not appealed by the Petitioner. However, Counsel for the Petitioner continually made submissions which heavily criticized many facets of this application. Mr Watson also purported the sums requested for the DVPO application would have been sums sufficient to cover the Respondent's and the child of the family's needs which therefore made the application to this court unnecessary. I will address these specific submissions later.

5 The Respondent filed her Notice of Application for Ancillary Relief on 17 July 2019 (“the Application”). The Application sets out the relief being sought by her as follows:

“ …Order (1) the Petitioner be ordered on an urgent basis to pay periodical payments for the Respondent and the child of the family……and (2) the Petitioner be ordered to pay periodical payments for the Respondent [and the child of the family].

The Respondent also seeks an order that the Petitioner pay the costs of this application.”

6 The Application was listed for directions on 30 July 2019. The parties reached an agreement regarding directions and filed a Consent Order dated 5 August 2019 (“the Consent Order”). The parties entered into the Consent Order on the following basis:

“…without prejudice to any and all arguments that may be made on the Application by either party, including but not limited to whether the Respondent is entitled to any urgent interim maintenance or interim maintenance at all…”.

7 The Consent Order sets out the following financial provisions for the benefit of the Respondent and the child of the family:

“ …

• 4. The rent of the Petitioner and the Respondent shall be paid from the business bank account of [the Business 1] as and when it falls due;

• 5. The utilities associated with the Respondent's residence at 4 Sanz Lane, Pembroke shall be paid from the business bank account of [the Business] as and when they fall due;

• 6. Commencing the week of Monday, 29 July 2019, the Respondent is at liberty to spend a maximum of $500 per week from the business bank account of [the Business] in respect of the ordinary reasonable living expenses of herself and the child of the family…;

• 7. The Petitioner shall maintain the Respondent's existing health insurance and the Respondent is at liberty to pay any reasonable co-pays from the parties' joint HSBC savings account;

• 8. [The child of the family's] school and health related expenses shall be paid from the parties' joint HSBC savings account;

• 9. This Consent Order is conditional upon the discharge effective 26 July 2019 of the Order made on 3 May 2019 in Magistrates' Court case number 19FS0035;

• 10. To the extent that there are insufficient funds in the business bank account of [the Business] to pay the amounts in paragraphs 4, 5 and 6 as and when they fall due, such amounts shall be paid from the parties' joint HSBC savings account;…”

8 I reserved Judgment at the close of submissions, but provided the parties with further directions in the Order dated 29 August 2019 as follows:

• “ (1) Judgment is reserved.

• (2) The Petitioner shall respond to the letters from Marshall Diel & Myers Limited dated 27 August and 28 August as well as provide all documents requested therein within fourteen (14) days from the date hereof;

• (3) The Respondent shall respond to the letter from Cox Hallett Wilkinson Limited date 21 August 2019 within fourteen (14) days from the date hereof;

• (4) The terms of the Consent Order set out at paragraphs 4 through 10 shall continue until the final determination of this application.

• (5) This matter shall be set down for mention on 1 October 2019 at 9:30 a.m. to review whether the parties have complied with the terms of this Order and whether any further directions are necessary pending the outcome of the defended divorce proceedings listed for 25, 26 and 27 November 2019.”

THE FACTS

Respondent's position

9 The Respondent relies on her second affidavit and corresponding exhibit sworn on 17 July 2019 (“the Respondent's Second Affidavit”), as her evidence in this application.

Income

10 The Respondent currently has no source of income other than the monthly sums she receives from the Consent Order. Paragraph 67 and 68 of the Respondent's Second Affidavit speak to her inability to be employed at this time and particularly at the Business due to “ The Petitioner's physical and verbal domestic abuse of [her], both at the home and at the premises of the Business”. Psychological reports were exhibited to support this position. The fact that the DVPO was granted by the Learned Magistrate required were findings of domestic violence to be made against the Petitioner in accordance with the DVPO Act.

11 The Petitioner challenges the basis on which the DVPO was made and criticized the Respondent for making such an application being made ex-parte. Furthermore, the Petitioner has made allegations the Respondent has been earning more than she has disclosed and alleges she has been working other jobs since she has been employed at the Business (paragraph 93 to 96 of the Petitioner's Affidavit). However, the Petitioner has not provided any supporting evidence to establish his position.

12 Whilst Mr Watson prepared an analysis in relation to the Respondent's alleged income since 2012 (produced by his firm) in his correspondence to the Respondent's attorneys on 21 August 2019, Mrs Marshall was in no position at the hearing to respond to this analysis. This letter was sent the day prior to both parties leaving to take the child of the family to university and had only returned the day prior to the hearing.

13 The Petitioner further purports that the Respondent is fully capable of obtaining alternative employment and should have done so since she ceased employment with the Business in April 2019. He disputes the psychological reports provided by the Respondent supporting the position that she should not be working.

Expenses

14 Paragraphs 28 through 31 of the Respondent's Second Affidavit set out the household expenses, her personal expenses as well as those for the child of the family. They are summarized as follows:

Household expenses

Rent	$4,000.00 2
Cablevision	$120.00
Electricity (on average)	$300.00
Food/Groceries	$800.00 3
Gas (Cooking)	$32.50
Water ($420 per annum)	$35.00
Internet/telephone	$150.00
Total:	$5,437.50
Total less the rent payable for the FMH:	$1,437.50

Respondent's personal expenses

Car Insurance ($1,200 per annum)	$100.00
Car maintenance ($500 per annum)	$41.66
Car gas	$433.00
Parking	$75.00
Clothing	$200.00
Toiletries	$41.66
Doctor and Dentist Co-Pay ($920 per annum)	$76.66
Hairdresser	$50.00
Cellphone	$145.00
Fitness Club	$95.00
Entertainment	$100.00
Gifts	$50.00
Dr Hancock	$300.00
Travel	$150.00
Storage	$135.00
Dog-related expenses (food, vet, etc.)	$50.00
Personal/beauty care	$50.00
Legal fees	NIL 4
Total:	$2,092.98 5

15 At the hearing, Counsel confirmed the parties had agreed that payment of the child of the family's tuition, room and board (meal plan) for this semester be paid from the parties' joint savings account given she was leaving the island prior to the hearing of this matter.

16 Mrs Marshall submitted that whilst this was agreed by the parties, she is reserving her client's position to seek these expenses to be paid by the Petitioner subsequent to financial disclosure being provided by him. Therefore, the child of the family's ongoing expenses that have to be addressed in relation to this application are as follows:

Child of the family's expenses

Clothing	$250.00
Doctor and Dentist	$40.00
Hairdresser	$66.66
Cell phone	$65.00
Entertainment	$100.00
Pocket money	$100.00
Total:	$621.66

17 Counsel for the Respondent asserted on several occasions that the terms of the Order dated 18 April 2019 obtained via the DVPO application, were not predicated by the Respondent accepting this would be a long-term solution. It is the Respondent's evidence that she was still made to believe by...