Carol Ann Green and Charles Edward Davies Green

• Jurisdiction: Bermuda
• Judgment Date: 01 November 2001
• Date: 01 November 2001
• Docket Number: Divorce Jurisdiction 1997: No. 224
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Vincent W. Meerabux

Divorce Jurisdiction 1997: No. 224

BETWEEN:

Carol Ann Green

Petitioner

-and-

Charles Edward Davies Green

Respondent

Mrs. G. Marshall for Petitioner

Mrs. Cartwright De Couto for the Respondent

JUDGMENT

PRELIMINARY

There are two applications before the Court. An application dated 12 June 1998 by Charles Green, the Respondent, for inter alia a lump sum provision and a cross-application dated 28 October 1998 by Carol Green, the Petitioner, for periodical payments for the children of the family. The Respondent seeks a lump of $800,000.00 to purchase a home for himself.

FACTUAL BACKGROUND

From the evidence I find the following facts.

The Petitioner and the Respondent were married on 19 December 1986 when the Petitioner was 34 years of age and the Respondent was 30 years of age.

Before marriage the parties co-habited at Warwick Villas from October 1985 until they were married on 19 December 1986. The parties were separated on or about 26 July 1989 but resumed cohabitation on or about October 1989. There are two children of the family, Benjamin who was born on 4 October 1990, now about 11 years, and Emma who was born on 21 August 1992, now just over 9 years. Both children attend private fee paying schools.

The parties again separated on or about 3 August 1995 and remained separate and apart from that date. On 29 May 1998 the Petitioner was granted a decree nisi of divorce. The decree nisi was made absolute on 31 August 1998. The marriage lasted about twelve years though the parties cohabited during a period of approximately one year. The Petitioner is about 49 years and the Respondent is about 45 years.

At the time of the marriage the Petitioner was a fund manager at the Bank of Bermuda Ltd. and at that time she was worth more that $6,000,000.00 which were made up primarily of the value of her stock portfolio. In addition she was earning a salary of about $120,000.00 a year and was in receipt of bonuses ranging from $20,000.00 in one year to $300,000.00 in another year.

The Respondent at the time of the marriage was a scuba diving instructor and general manager of Nautilus Diving Ltd. (‘the company’). The company at that time ran its diving operation from the Southampton Princess Hotel and had the beach concession as well as supplied lilos and other beach items for rent for use on the Hotel's beach. The Respondent had savings of about $5,000.00 and in 1985 earned approximately $350.00 net a week.

After the marriage the parties continued in their respective employment and maintained a bank account known as ‘the La Garza account’ from which household and other expenses were paid. The Petitioner was the main contributor towards that account. During the years 1989 to 1995 the Respondent deposited in the La Garza account the sum of $110,776.00, which is about $15,845.00 a year. On occasions the Respondent used the La Garza account to make payments for expenses other than household expenses. For example he paid for petrol for his dive boat from that account.

At the outset of the marriage the Petitioner owned a flat in London. After marriage the Petitioner purchased in 1988 the matrimonial home, ‘La Garza,’ for about $2,000,000.00, in 1991 a farm which is held in trust for the children in Wales for about £190,000.00 and in 1996, after the parties separated, a second flat in London. The Petitioner also purchased in 1989 a three-bedroom property in London in trust for her sister and nieces for about £200,000.00. The Respondent has not made any contribution to the purchase price of any of these properties.

The Respondent in September 1986, before the parties were married, purchased 38% of the shares of the company from Ross Menzies for the sum of $230,000 which sum was lent to him by the Petitioner at 9% interest. The Respondent repaid the Petitioner that sum over a period of three years and paid some interest in the amount of $30,000.00. The Respondent controls the day to day running of the company, controls the revenue of the company and all aspects of capital accretion without any call being made on Ross Menzies to contribute to the capital needs of the company. The Respondent is also entitled to 100% of the company's income. The company operates at the Southampton Princess Hotel. The current lease is dated 20 July 1998 between West End Properties Ltd. and the company and Hamilton Properties Ltd. The lease relating to the operations at the Southampton Princess Hotel expired on 31 March 2001. The Respondent works under a work permit held by Ross Menzies which permit expired in October 2000 and must be re-advertised in October 2001. The Petitioner has fully supported the Respondent in his business.

Prior to July 1995 the Petitioner paid £500.00 a month for a period of two and a half years towards payment of the ongoing mortgage of the Respondent's late mother. That sum was repaid over a period of time by the Respondent.

During the marriage the Respondent caused some works to be undertaken at the dock of the matrimonial home which works were paid for out of the La Garza account. The Respondent then used the dock to moor his dive boat. When the parties separated in August 1995 the Petitioner allowed him to continue mooring the boat at the dock. Eventually the Petitioner requested him in October 1995 to move the boat and he complied with the request.

After the purchase of La Garza in 1988 the parties lived there until they separated on 26 July 1989. After resuming cohabitation later that year the Petitioner gave birth to Benjamin in 1990. She then employed the services of a nanny and resumed work. The nanny was employed from April 1991 to April 1993. The Respondent during 1991 to 1993 paid his wages into the La Garza account during the high season, namely, between April and October of each year. Following the birth of the second child in 1992 the Petitioner stopped working and stayed at home caring for the children, looking after the family and managing the home. Whilst the Petitioner was unemployed and until the parties separated in August 1995 the Respondent contributed $400.00 a week towards the household expenses between May and October of each year. In the other months the Respondent did not contribute towards the household expenses. In January 1995 the Petitioner resumed employment at Lines Overseas Management (‘LOM’) where she was paid only on a commission basis earning about $60,000.00 a year. In January 1997 the Petitioner was no longer in employment and has been a homemaker since. After the separation of the parties in August 1995 the Petitioner paid all the outgoing expenses of the home and the expenses of the children including their school fees except the payment of one sum of $6,000.00 which the Respondent paid.

CROSS APPLICATION

I will first consider the Petitioner's cross-application for periodical payments for the children of the family. The Respondent in his evidence before the Court said that he was not challenging the Petitioner's evidence concerning the children's expenses which expenses amounted to $2,484.66 per month for both of them, that probably the expenses could be more, that he was prepared to pay for the children's educational expenses, including private school fees and to provide maintenance for them somewhere between $600.00 and $1,000.00 a month for each child. He accepted that school fees were ongoing, that since separation only $6,000.00 plus which represented school fees for one term he contributed, that the Petitioner has kept the children to a standard of living to which they are accustomed and that the Petitioner has done that herself. He stated that he saved about £57,000.00. I find that the Respondent is not hard-up, is not financially challenged and has neglected his parental responsibility in respect of maintenance for the children.

The Petitioner has accepted the Respondent's offer to pay the children's educational expenses and to provide maintenance for them.

In the circumstances I order that the Respondent pay to the Petitioner the sum of $800.00 per month per child as maintenance, that the Respondent pay the school fees for each child, that such payments do continue until each child attains the age of eighteen years and that this Order takes effect from 3 August 1995. I further order that any amount due with effect from 3 August 1995 to the date of this Order be paid within two months from the date of this Order.

ARGUMENTS CONCERNING LUMP SUM

Mrs. Cartwright De Couto for the Respondent submits that the Court's power to make financial provision on divorce derives from statute, that an overriding consideration when applying the statutory provisions is the welfare of the children and that in this case the need of the children is a home suitable for the children. She argues that there is ample capital in this case, that the Petitioner has two or three homes available to her and the children in the United Kingdom, that the Respondent needs a home, that the Respondent needs a lump of $800,000.00 to purchase property and that the Respondent should have the ability to save from his income so as to set aside for the uncertain future. She contends that equal weight must be given to section 29 (1) (c) of the Matrimonial Causes Act. 1974 and the ‘tail piece’ proviso and that a high standard of living was enjoyed at the Petitioner's expense and is still so enjoyed by her. She contends that the available ‘resource’ is the equity in ‘La Garza’.

She argues that the Respondent has a legitimate need of his own home suitable as a home for the father and for the children, that it is reasonable, proper and fair if the Petitioner has to resort to her property acquired with her assets held by her before the marriage and that the Respondent would be placed only in the position he would have been had the marriage not broken down. She argues that the Respondent has played a greater role in caring for...