Kenny Mccarthy Dottin v Sheena Grace Eileen Dottin
| Jurisdiction | Bermuda |
| Judge | Shade Subair Williams J |
| Judgment Date | 25 September 2019 |
| Neutral Citation | [2019] SC Bda 64 Civ |
| Docket Number | CIVIL JURISDICTION 2019 No: 62,CIVIL JURISDICTION |
| Court | Supreme Court (Bermuda) |
| Date | 25 September 2019 |
[2019] SC (Bda) 64 Civ
In The Supreme Court of Bermuda
Williams, J.
CIVIL JURISDICTION
2019 No: 62
Petitioner: Mr. Edward Ishmael-King, Edward Ishmael-King
Respondent: Ms. Cristen Suess, Wakefield Quin Limited
Claim for Partition of Land under Partition Act 1914 after final order in matrimonial proceedings made pursuant to section 28(1)(a) of the Matrimonial Act 1974 — Court has no power to vary or discharge section 28(1)(a) Property Adjustment Order — Doctrine of Res Judicata — Strike Out on Court's own Motion under RSC O. 18/19 at trial stage — Abuse of Process — Constructive Trust by operation of law
JUDGMENT of Shade Subair Williams J
This matter came before the Court on the trial of an action for an order for partition of land under the Partition Act 1914. The land in question is situate at Seawall Drive Boaz Island Village, Sandys Parish (“the Property”).
The parties to this action were formerly married and are the parents of three children, two of whom are twins. Their current ages are 21 years and 19 years (“the Children”). The dissolution of the parties' marriage on 14 September 2016, arrangements as to the Children and other ancillary relief orders were made by previous orders of the Court in its Divorce Jurisdiction.
The final order made in those matrimonial proceedings was made by the learned Justice Mrs. Norma Wade-Miller (now retired) on 12 November 2015 (“the 2015 Order”). In the 2015 Order, the learned judge gave directions on the occupation and ownership of the Property.
The Petitioner, without seeking a variation of the 2015 Order, filed a petition in this Court's Civil Jurisdiction for a partition order in respect of the Property.
At the close of the hearing, having heard submissions from Mr. King on behalf of the Petitioner, I dismissed the Petition. I also ordered that costs follow the event in favour of the Respondent. Having informed the parties that I would provide written reasons for my decision, I now provide those reasons herein.
Ms. Sheena Dottin was the Petitioner in the matrimonial proceedings culminating in the 2015 Order which provided as follows:
UPON HEARING A Justicia Law Chambers for the Petitioner and for the Respondent James & Associates
IT IS ORDERED
THAT the Petitioner has agreed for (the) children…to be relocated to the Island of Barbados West Indies.
THAT the Petitioner will make contributions to the children's education in Barbados when she is gainfully employed
THAT a date is to be agreed when the children leave Bermuda. The Respondent is to finance the travel tickets back to Barbados.
THAT the Respondent shall give one (1) month's notice to the present tenants in the #11 Boaz Island Sandys property and to ensure that the property is in a tenable condition.
THAT the Petitioner shall take up occupancy in the #11 Boaz Island Sandys property on January 1st 2016
THAT the Petitioner have free access to all children of the family. All the children of the family be allowed to return to Bermuda for vacations and to visit the Petitioner.
THAT there are no travel restrictions for both Petitioner and Respondent.
THAT the #11 Boaz Island Sandys property to be place(d) in Trust for (the Children) only
IT IS ORDERED that Liberty to apply in respect of access and travel arrangements if the parties are unable to agree.
It was an agreed fact between the parties that no further applications were made following the 2015 Order and that no trust instruments were executed in furtherance of Wade-Miller J's direction for the Property to be placed in trust for the Children.
By Petition filed in this Court on 13 February 2019, the Petitioner in these proceedings (“KD”) prayed for a valuation Order and an Order for the sale of the property for equal apportionment between the parties.
The Petition was supported by an affidavit sworn by KD on 28 January 2019 outlining the history of how he and the Respondent (“SD”) originally acquired the Property as joint tenants. KD deposed that the Property had not been placed in a trust due to the prohibitive related costs.
KD also stated that the Children all resided with him in Barbados without any financial contribution by the Respondent. At paragraph 6 of his affidavit he said:
“ The 3 adult children are desirous of furthering their education in England. I consider it incumbent on me to assist them financially, in achieving their goals, but as a retiree dependent upon a pension, I cannot afford to do so without realizing my monetary share of the proceeds of sale of the Boaz Island Village property.”
SD filed a reply affidavit sworn in her name on 13 March 2019 confirming that she continues to occupy the Property and is solely responsible for all of its associated expenses which includes land tax and property maintenance fees. She exhibited to her affidavit the 2015 Order and the underlying summons in support of her submission that Wade-Miller J already disposed of KD's interest in the property by ordering that it be placed in trust for the Children only.
SD also explained in her affidavit that one of the Children (“KCD”) is ‘severely autistic’ and has epilepsy. She said that this was one of the reasons why the Property should be held in trust. SD advised that KCD recently returned to Bermuda to reside with her in the Property under her care. She said that the sale of the property would not benefit KCD. SD also ‘robustly’ denied KD's assertion that she did not provide financial support to the Children.
At the concluding paragraph of SD's affidavit she invited the Court to dismiss KD's Petition on the grounds that it is an abuse of process. SD submitted that KD is fully aware of the 2015 Order and ought to have applied for a variation order instead of attempting to circumvent the 2015 Order which was final and binding.
By further affidavit evidence sworn on 28 March 2019, KD accepted that the KCD was diagnosed as epileptic in 2017 but said that he was unaware of any autism diagnosis.
In responding to SD's criticism that he should have sought a variation order and her submission on the effect of the 2015 Order, KD said at paragraph 8:
The Respondent acknowledges that the cost of establishing the trust may have been prohibitive. Since the trust was never set up, there was no lesser obligation on the Respondent than on me to seek variation of the Order of 12 th November 2015. The fact that the Order did not stipulate a time frame within which the trust was to be established did not grant the respondent indefinite leave to reside in the property. The Order did not dispose of my beneficial interest in the property (which is, to this day, still in our joint names). I venture to say that the Court did not order the property being put in trust for the children subject to a life tenancy to the Respondent. Further, had the trust been established, neither the respondent nor I would have retained a beneficial interest therein. The Respondent is under a misapprehension that upon her death or departure therefrom that the property would then be subject to be placed in trust for the children's benefit.
As the sole co-owner in occupation, it is not unreasonable that the Respondent should be solely responsible for the property and all expenses associated with it. How can she claim that the Order of 12th November 2015 disposed me of my beneficial interest in the property and yet raise an issue of sole liability for associated expenses?
Paragraph 12 of KD's reply affidavit goes on to say:
It cannot be denied that I require funds to assist the two children to further their education. The children's further education was not in the contemplation of us, parents, at the time of the making of the Order of 12 th November 2015. Paragraph 5 of that Order could not be varied by consent, or otherwise, to provide for the costs of the children's education. I am not attempting, in bringing these proceedings, to circumvent that Order. The only clause in that Order touching upon the property was that it be placed in trust for the children.
The Order of 12 th November 2015 made no provision for the children's travel costs…
At the concluding paragraph, KD wrote in his affidavit:
It is for the Court to determine whether my Application is an abuse of process. The property has not been placed in trust for the children (now all adults) but remains owned by the Respondent and me as joint-tenants. I, therefore, respectfully ask the Court to grant me the relief sought in my Petition under the Partition Act 1914.
A further joint affidavit in support of the application was sworn by the two children who continue to reside in Barbados with KD. While the Court examined this evidence, I do not deem it necessary to recite any passages therein.
In matrimonial proceedings the Court has the power to make orders for ancillary relief which include property adjustment orders and variation orders. The Court's power to make property adjustment orders is pursuant to section 28(1)(a) of the Matrimonial Causes Act 1974 (“the 1974 Act”) which reads:
Property adjustment orders in connection with divorce proceedings, etc
28 (1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders—
(a) an order that a party to the marriage shall transfer to the other party, to any child of the family or to such person as may be specified in the order for the benefit of such a child...
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