C.R.M.R v K.L.R
| Jurisdiction | Bermuda |
| Judge | Hargun,Chief Justice Hargun |
| Judgment Date | 28 January 2019 |
| Neutral Citation | [2019] SC Bda 7 Div |
| Date | 28 January 2019 |
| Docket Number | DIVORCE JURISDICTION 2016: 050 |
| Court | Supreme Court (Bermuda) |
[2019] SC (Bda) 7 Div
In The Supreme Court of Bermuda
Hon. Chief Justice Hargun
DIVORCE JURISDICTION 2016: 050
Mr. Adam Richards, Marshall Diel & Myers Limited, for the Plaintiff
Ms. Jacqueline MacLellan, MacLellan & Associates, for the Respondent
Ancillary relief; Object of spousal maintenance; Requirements of compensation for relationship disadvantage; Relevance of tailpiece in Section 29(1) of Matrimonial Clause Act 1974
This is an appeal by the Petitioner/Wife (“Wife”) against an Order for maintenance made by the Acting Registrar, R Barritt (“Registrar”) in a Judgment dated 7 November 2017. There is also a cross-appeal by the Respondent/Husband (“Husband”) in relation to the same Order made by the Registrar.
The appeal is governed by RSC Order 58, which deals with appeals from the Registrar, and which is applied by reason of Rule 3 of the Matrimonial Causes Rules 1974. The appeal is by way of rehearing ( T v T [2014] Bda LR41 following T v T 2006 N0 183). Despite the fact that the appeal is by way of rehearing, the parties have agreed that they would not give oral evidence again and that the appeal would be determined on the basis of the existing record.
By her Judgment, the Registrar ordered that the Wife should pay to the husband the sum of $17,500 per month for child and spousal support. The maintenance was backdated to October 2016 (being the date of the initial application for ancillary relief) and was to be reviewed in October 2020 (i.e. 3 years from the judgment and 4 years from the date used for backdating). In this appeal, the Wife seeks a reduction in the maintenance and an Order that the maintenance be expressed as for a specific term. The Husband seeks an increase in the maintenance allocation.
The Registrar helpfully set out the previous Court Orders and agreements made by the parties which have a bearing on the issue of maintenance before the Court.
First, the Registrar noted, that on the application made by the Wife, the Supreme Court granted a freezing injunction on 18 May 2016, which ordered the Husband not to dispose of, deal with or diminish the sum of $150,000 removed from the joint bank account between 8 and 12 April 2016 and the Husband was also ordered to repay the funds to the joint account within 14 days. It is an agreed fact between the parties that the funds were not returned to the joint account. For present purposes, the parties accept that the Husband had use of the funds in the amount of $150,000.
Secondly, in April 2016, the Husband left Bermuda for an agreed trip to South Carolina with the child of the family and, at the conclusion of the planned two week vacation, he advised the Wife that he did not intend to return with the child to Bermuda. The Husband initiated proceedings related to the child in the US whilst the Wife commenced an application under the Hague Convention for the return of the child to Bermuda. Eventually, after both parties incurred significant legal fees and after four months, these applications were resolved by consent with the child being returned to Bermuda in August 2016, and the husband paying towards the Wife's legal costs, the sum of $30,000. The Husband also returned to Bermuda to reside in August 2016.
Thirdly, the Husband initially sought maintenance in the amount of $20,000 per month by way of Ex Parte Summons dated 2 November 2016. Following a hearing before the Registrar, on 30 November 2016, the Wife agreed to pay the Husband's rent for December in the amount of $4,500 plus $8,000 per month in maintenance for December 2016, January 2017 and February 2017. The Wife continued to make voluntary payments to the Husband of $8,000 per month after the Order expired and 18 April 2017, the parties agreed that the Wife would pay the Husband $10,000 per month in maintenance commencing 1 May 2017 and continuing until matters of ancillary relief were resolved.
Fourthly, the parties have reached, in full and final satisfaction of all claims of a capital nature, an agreement which provides that the Husband receives a payment of $250,000; the Husband retains the benefit of the $150,000 that was the subject of the injunction application; the Husband retains the property he owns with his mother in his native South Carolina; the Husband retains one of the former matrimonial cars; the Wife retains the full benefit of her business; and the Wife retains the second former matrimonial car. As this agreement has not been reflected in a Consent Order or written agreement at the commencement of the hearing before the Registrar, both counsel confirmed that the Court should not look behind the agreement whereby all capital claims were resolved on a full and final basis. The parties were represented by counsel and had full and frank disclosure of relevant financial information at the time the agreement was reached. On the basis of these representations, the Registrar expressly stated that she has assumed and has operated on the assumption that “ I cannot interfere with the settlement of the Husband's capital claims, and have operated on the basis that all capital claims were resolved in full and final terms by the agreement” [13]. Counsel for the parties made the same representations to this Court at the hearing of this Appeal.
In her Judgment, the Registrar set out the uncontroversial background facts relating to these parties and the underlying dispute which I gratefully adopt. The Husband is a US citizen and the Wife possesses Bermudian status. The Wife is now 42 years of age and the husband is 43 years of age. The Wife is a self-employed doctor specialising in obstetrics and gynaecology. At the time of the hearing, the Husband had not worked since 2009, and planned to return to full-time education starting in September 2017.
The Husband and Wife met at college in the United States. After College, the Husband and Wife worked and resided in the US from 2003 through 2009. The Husband obtained a degree in psychology and worked with consulting firms gaining experience in various business industries. The Wife continued medical studies and worked as a doctor.
After dating for approximately four years, the parties started living together in 2003. The parties were married on 1 May 2004. The child of the family was born on 15 June 2009 while the family was residing in the US. After the child was born, and after first relocating within the US, the parties moved to Bermuda. There is a dispute as to the parties' intention when they moved to Bermuda and how long they were going to remain in Bermuda. It is agreed that in October 2015, the Wife advised the Husband that she wanted the family to remain in Bermuda to continue a medical practice. The Wife's medical practice in Bermuda was established during the marriage.
The Husband did not commence employment in Bermuda. The Husband contends that it was agreed that he would be a stay-at-home father and the primary caregiver to the child until the family returned to the US when he would return to full-time education. The Wife contends that it was always intended that the Husband would return to work once the child was in full-time education wherever the family was residing.
The parties separated briefly in 2014 but reconciled shortly thereafter. The party separated permanently in 2016. Decree Nisi was pronounced on 26 August 2016 and made Absolute on 20 October 2016. The length of cohabitation and marriage was 13 years.
The child of the family is now 9 years old, and the parties agreed a shared care arrangement in 2017. The Husband did apply for his extension of spousal rights certificate but that application was unsuccessful. The Husband is taking legal advice with a view to judicially review that decision of the Department of Immigration.
Before the Registrar, the Wife contended that the income from the business was in the region of $35,000 per month. The Wife further contended that the income from the business had been on a downward trend due to (a) the time spent by Wife dealing with the breakdown of the marriage and the various application in 2016; (b) there are now seven OB-GYN's practising in Bermuda as compared to four when the Wife first established her practice; and (c) birth rates were on a declining trend in Bermuda. The Wife argued that as a result, past earnings cannot be used to determine the current earnings or earning potential, and that only $35,000 should be attributed to her by way of regular monthly income.
The Wife accepted that she should pay 100% of the child's expenses including the child's school fees, extra-curricular activities, school uniforms and supplies, health insurance, co-payments and any miscellaneous expenditure until such time as the Husband is employed. She also accepted that she should continue to pay the Husband's health insurance premium until the Husband is employed.
The Wife contended that the Husband should receive an award based upon his needs with a view to achieving a transition to independent living as soon as reasonable. She proposed that the Husband receive an award of $10,000 per month in the proportions of two thirds spousal maintenance and one third child maintenance based upon the following:
| Rent | $4,500.00 |
| BELCO | $378.71 |
| Digicel | $300.00 |
| Cablevision | $300.00 |
| Groceries | $1,300.00 |
| Travel | $1,175.00 |
| Education | $1,000.00 |
| Household/Entertainment | $800.00 |
| Total | $9753.71 |
The Wife further proposed that the Order should have a three-year extendable turn with the obligation on the Husband for the extension. The issue of child maintenance would also be reviewed at the end of the three-year...
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