Karen Irvina Cross v Walter Florent Cross Jnr. and Rosie Lofters
| Jurisdiction | Bermuda |
| Judgment Date | 05 April 1991 |
| Date | 05 April 1991 |
| Docket Number | Divorce Jurisdiction 1989 No. 175 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Wade, A.J.
Divorce Jurisdiction 1989 No. 175
and
and
Mr. Kieron Unwin for the Petitioner
Mrs. Georgia Marshall for the Respondent
Mrs. Georgia Marshall for the Co-Respondent
On the 18th of October, 1989, the wife, Karen Cross, petitioned for divorce pursuant to Section 5 of the Matrimonial Causes Act, 1972 on the ground that the marriage had broken down irretrievably. To substantiate this she relies on section 5(2)(b) of the Act, supra, alleging that her husband, Walter Cross, had behaved in such a way that she cannot reasonably be expected to live with him.
On the 7th November, 1989, the husband filed an Answer and Cross-Petition denying the wife's allegations praying that the wife's petition be rejected and that the marriage be dissolved on the basis of the fact specified in section 5(2)(b) of the Act, supra, that is that the wife, Karen Cross, had behaved in such a way that he cannot reasonably be expected to live with her.
On the 23rd November, 1989, the wife filed a Reply to the husband's Answer and Cross-Petition. On the 7th December, 1989, the wife filed a Supplemental Petition further alleging that since the date of the Petition herein, the husband had behaved in such a way that the wife cannot reasonably be expected to live with him. In addition she alleged that the husband had committed adultery with Rosie Lofters and that she finds it intolerable to live with him. The main thrust of this allegation which has been denied by the husband and Rosie Lofters is that between the 23rd and the 25th November, 1989, at room 753 of the Hamilton Princess Hotel, they committed adultery.
The parties were married on the 4th July, 1982, at the Wesley Methodist Church, Pembroke Parish, when the wife was 32 and the husband was 42. This was the second marriage for both parties. There are four children of the family, one of the union, Danielle Denise Cross, born on the 29th June, 1985, and three children of the Petitioner who are not of the union, namely, Will Carpenter, Lamar Keith Carpenter and Carrie Ann Carpenter, all of whom are over the age of 18 years.
The hearing occupied 4 working days. The crucial witnesses were cross-examined at length. I have considered their evidence which conflicted at almost every point. In some instances I believe one, in other instances I believe the other. I do not propose therefore to rehearse every single issue on which they were in conflict when at the end of the day I have come to some broad conclusions.
The Petitioner lists 8 Particulars of the husband's alleged unreasonable behaviour. In support of those allegations in her Petition she testified that the marriage began to go downhill since 1987 when the husband began to show a lack of affection towards her and the child Danielle. Six months prior to the presentation of the petition he showed her virtually no affection or attention and if he had sexual relations with her it was because he had nothing else to do.
She identifies a number of matters which she says gave rise to her suspicion of an improper association between her husband and Mrs. Lofters, but was surprisingly, for a suspicious wife, unable to put a date to the commencement of those suspicions, For example, she testified that: towards the end of 1987 the husband came home and and requested that their daughter participate in a wedding party. She felt this a strange request as neither the prospective bride nor groom knew her family, nor as far as she knew did her family know them. Be that as it may, she gave her consent for the child's participation in Mrs. Lofters' sister's wedding. The husband and the wife attended the wedding. The occasion seemed to have gone well, and it is only with hindsight the wife assesses the event as part of the germination of an improper association between Mrs. Lofters and her husband. Further examples include her discovery of a few cheques made payable to Mrs. Lofters which were of unusually large amounts. She discovered cheques to two restaurants and asked her husband if he was having lunch with Rosie Lofters and he admitted he had lunch with Rosie twice and dinner once when they entertained an overseas business client; she believed Mrs. Lofters threw her husband a 1988 and 1989 surprise birthday party and neither she nor Mrs. Greenwood, her mother (who was working on an irregular basis at the business in 1988) was invited. Finally her discovery of a document from the jewellers which she believed to be a receipt for a ring valued at $1,095. She said regarding the receipt ‘I had mixed feelings about the document. I felt something was going on. I could not think who he bought the ring for. He did not give it to me.’
She testified that in July 1989, she and her husband went on a cruise on a ship and the straw the broke the camel's back was her husband's request for her to pick out a pair of earrings for Mrs. Lofters. She said he was buying souvenirs for his staff. She says she did not get angry, but enquired of him as to why he would buy someone earrings for a souvenir. She said she picked out “t-shirts” for Mrs. Lofters and a purse for another employee, but the husband gave neither of the gifts to the employees. The wife said the husband returned from the cruise and reverted to his previous cold attitude.
She said that the family usually spent the Cup Match holidays on the family's boat, but complained that during the July 1989 Cup Match her husband spent most of his time on other people's boats that were rafted up to their boat. The wife was particularly annoyed that Mr. and Mrs. Lofters' boat was rafted up across from her family's boat, even though I find there was no evidence to show that during this period her husband visited the Lofters' boat.
She testified that in September 1989 her husband had the telephone in the matrimonial home tapped and gave her a tape of one of her telephone conversations where she was cursing. This made her quite upset. It was during this time that she confronted him about taking friends out on the boat as he had ceased taking her and the child boating. She said that night the husband refused to allow her to sleep in the bed and she poured oil in a cup and said to the husband that ‘if she couldn't sleep in the bed, no one else was going to sleep in it.’ The police were summoned and the husband left the matrimonial home. He subsequently returned to find the door bolted. The wife said she was awakened from her sleep by a loud banging. The husband had broken the kitchen and screen door in order to gain reentry to the house.
The wife said in October 1989 she passed her husband in Mrs. Lofters' car. She went home and called the laundry and neither her husband nor Mrs. Lofters were there. She said she did not expect them to be there. She left a message for her husband to call her and shortly thereafter he returned her call. She said that it was after this incident that she broke down and wept for two days, and thereafter she sought psychiatric counselling. She said her distress affected her work performance, which deteriorated.
In cross-examination the wife conceded that when the husband bought the business he devoted a lot of time to get the business off the ground and that this took him away from the family. She agreed that towards the end of 1987, the commercial section was introduced into the business and this took up even more of her husband's time. However she understood from him that when he hired Mrs. Lofters, this would no longer be the case.
Further, the wife conceded that she came back from the 1988 cruise with the same attitude she had before she left on the cruise, because ‘the man asked me to pick out earrings for another woman’ and this request supported what, she felt, was going on. She accepted that she had heard gossip of involvements of Mrs. Lofters, but she denied that she had formed any impression or had any previous disposition of Mrs. Lofters based on the gossip, nor did she look for anything.
The wife accepted that she had a network of friends and would keep the closer ones informed of what was going on. She disagreed that she used her friends to get tidbits to piece together, although she agreed it was a friend, her husband's friend, she said, who gave her information on the 4th September, 1989, that culminated in the incident where she took oil into the bedroom, et cetera. Again it was a telephone call from a friend that made her go to room 753 of the Hamilton Princess Hotel which incident we'll hear more about later on in this judgment.
She denied that she was constantly telling her husband that a relationship was going on between himself and Mrs. Lofters, but agreed that the husband said it was strictly a business relationship. She conceded that Mrs. Lofters was very hard-working when she first started, did some overtime work, was a trusted employee and ran the business whenever she and her husband went away.
She accepted that she asked her husband not to renew Mrs. Lofters' work permit, as she felt she was the problem with their marriage. She accepted that she wrote to the Department of Immigration and Labour Relations requesting that Mrs. Lofters' work permit not be renewed. She conceded that there was nothing unusual about an employer taking an employee out to lunch and dinner, and said that this alone does not amount to an improper association. In fact, it is something that she has done herself.
She acknowledged that she did not know what a reasonable salary is for a laundress, but said a move from $400 to a maximum of $800 was a bit ridiculous. She said she saw at least six to seven cheques that were higher than $400 and Mrs. Lofters was not putting in that type of time. She knew Mrs. Lofters was not putting in that type of time because of ‘talking to other members of the Quickie-Lickie...
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