Kuni Marie Frith Swan v Alexander Winston Joseph Swan
| Jurisdiction | Bermuda |
| Judgment Date | 23 February 1994 |
| Date | 23 February 1994 |
| Docket Number | Divorce Jurisdiction 1992 No. 162 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Vincent W. Meerabux
Divorce Jurisdiction 1992 No. 162
and
Mrs. A. Cartwright DeCouto for the Petitioner
Ms. K. Lomas for the Respondent
This is an application by the Petitioner for ancillary relief. Counsel for both the Petitioner and the Respondent seek fair provision by way of a lump sum on the basis of a clean break.
The parties were married in Baltimore, Maryland, United States of America on 28 August 1986 when the Petitioner was aged 31 years and the Respondent was aged 43 years. There was one child of the marriage, Alexis. born on 20 November 1986. She was 7 years on 20 November 1993. The parties separated in April 1992 and have not lived together since then.
The Petitioner was granted a decree nisi of divorce on 15 January 1993 made absolute on 29 March 1993.
The Petitioner, at the time when she married, was working and during the marriage continued working except during some time prior to and after pregnancy. The Petitioner worked at various places and at Gibbons Company, the last place she worked at before becoming fully involved in her retail store. Her salary at Gibbons Company was $36,750 per annum.
When the Petitioner entered into marriage she was approximately $42,000 in debt. On or about 16 March 1992 the Respondent guaranteed an overdraft of $125,000 to increase her indebtedness to the Bank of N.T. Butterfield. The guarantee is still in force.
The Respondent was a company director at the time of the marriage and is still so. His assets were limited to three properties acquired over a period of years prior to the marriage and a limited portfolio of shares. They are not assets to which the Petitioner in any way contributed. The Respondent has some shareholdings of insignificant value and the dividends that they reap are insignificant.
During the marriage the parties initially lived at ‘Mazeltov’, one of the Respondent's properties, a two-bedroomed, 1 bathroom house, for a period of time but because of certain fears expressed by the Petitioner, they subsequently left and resided at ‘Tana-Kita’, a ten-roomed house, for which the Respondent is paying a monthly rent of $4,000 and for which he has a lease option to purchase the property.
On leaving the matrimonial home, the Petitioner took her personal effects as well as her daughter's and the daughter's bedroom set and a television set and resided for some weeks with her mother.
Presently the Petitioner lives in an apartment paying a monthly rent of $1,050.
In 1988, during the marriage, the Petitioner was a joint tenant with her mother of a three apartment dwelling house, at Loyal Hill, until 27 September 1993. The rental income of the property was $1,800 per month.
The Petitioner after the marriage has continued operating her retail store ‘Island Fever’ at Dockyard.
The Respondent is paying $650 per month as maintenance for the child of the family. On 9 September 1992 the Respondent was ordered to pay school fees for Alexis for the academic year 1992/93 and on 5 March 1993 the Petitioner was awarded maintenance pending suit to the amount of $700 per month.
In considering this matter, I think that the proper approach is first for the Court to consider the matters set out in section 29 of the Matrimonial Causes Act 1974 (Title 27 Item 3) (hereinafter referred to as ‘the Act’) in the light of all the circumstances of the case. It is the Court's duty so to exercise those powers as to place the parties, so far as is practicable and. having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other. All the enumerated circumstances in section 29 of the Act must be taken into account by the Court.
I have determined that the Respondent's monthly income and expenses at 23 November 1993 to be approximately as follows:
| HOUSING | MONTHLY |
| Loan-Dunscombe Road | $2,500.00 |
| Mortgage—Casa-del-Sol | $1,794.00 |
| Mortgage—Granaway Heights | $755.00 |
| Rent—Tana Kita | $4,000.00 |
| Landtax—Granaway Heights | $20.00 |
| Landtax—Dunscombe Road | $51.00 |
| Property Maintenance | $1,000.00 |
| Grounds—Tana Kita | $300.00 |
| Insurance—Granaway Heights (house) | $4 7.00 |
| Insurance—Dunscombe Road (house) | $67.00 |
| Insurance—Dunscombe Road (content) | $32.00 |
| Insurance—Tana Kita (content) | $21.00 |
| $10,587.00 | |
| UTILITIES | |
| Bda. Electric Light Co. | $156.00 |
| Bda. Telephone Co. Ltd. | $75.00 |
| Bda. Cablevision | $71.00 |
| Bda. Gas & Utility (gas) | $12.00 |
| $314.00 | |
| TRANSPORTATION | |
| Gas (car) | $480.00 |
| Car Maintenance | $50.00 |
| Car Insurance | $34.00 |
| Car License | $51.00 |
| $615.00 | |
| CLUBS & ORGANIZATIONS | |
| Rotary | $75.00 |
| Belmont Golf Club | $75.00 |
| PHC, Leopards, Blue Waters Clubs | $30.00 |
| $180.00 | |
| HOUSEHOLD | |
| Cleaning | $320.00 |
| Food | $600.00 |
| Pest Control | $60.00 |
| Town &Country | $35. 00 |
| $1.015.00 | |
| PERSORAL | |
| Shirts | $100.00 |
| Drycleaning | $50.00 |
| Haircut | $20.00 |
| Clothing | $100.00 |
| $270.00 | |
| MEDICAL | |
| Cardiovascular Training | $400.00 |
| Dental Care | $50.00 |
| Doctor | $30.00 |
| $480.00 | |
| ALEXIS | |
| Tuition | $505.83 |
| Maintenance | $650.00 |
| C.A.S.C. (Alexis) | $114.00 |
| K. Swan | $700.00 |
| $1,969.83 | |
| SUNDRY | |
| Entertainment | $200.00 |
| $200.00 | |
| $15,630.83 |
| MONTHLY | |
| Salary | $5,300.00 |
| Rents | $7.915.00 |
| Dividends | $229.00 |
| Government Board Fees | $40.00 |
| $13.484.00 | |
| SUMMARY | |
| TOTAL EXPENSES | $13,484.00 |
| TOTAL EXPENSES | ($15.630.83) |
| DEFICIT: | $2,146.83) |
It must be mentioned that the Respondent is a director and a trustee of various companies and there is no evidence that he has received emoluments for holding or performing functions in those offices.
I have determined that the Petitioner's monthly expenses at 23 November 1993 to be approximately as follows:
| Rent | $1,050.00 |
| Food | 500.00 |
| Telephone | 35.00 |
| Electricity | 115.00 |
| Gas (Cooking) | 12.00 |
| Laundry and Dry Cleaning | 60.00 |
| Petrol and oil for car | 225.00 |
| Bank overdraft repayment Loan, Car, Furniture, Appliances and legal fees | 535.00 |
| Extra expenses for Alexis school activities parties etc. | 100.00 |
| Golf and riding lessons for Alexis (discontinued due to lack of funds) | 200.00 |
| Car maintenance | none to date |
| Cosmetics and beauty care | 100.00 |
| Total | $2,932.00 |
The Petitioner has outstanding debts for instance $218.65 cents for electricity, $277.15 cents for the telephone, $136.00 for cablevision, $2,800 for dentist, $2,700 and $1,500, being debts owed to her father and brother respectively.
The Petitioner in her sworn testimony stated that she was earning $1,600.00 per month from her business. However, from the evidence it can be inferred that the Petitioner was earning more than $1,600 per month. For instance the Petitioner admitted in evidence that Island Fever bore the cost of about $7,500 for her elective surgery. Her telephone bill showed that it was billed to the business. The Kadobi business was billed for certain personal expenses e.g. groceries, cablevision and hairdressing. In my view the Petitioner has not been forthright in respect of her earnings.
I think that taking into account the personal expenses billed to her business I have determined that the Petitioner's monthly remuneration is at least $2,300. Hence I have determined that the Petitioner's monthly income and the summary of her Revenues and Expenses to be approximately as follows:
| Monthly | |
| Salary | $2,300.00 |
| Maintenance for child | $650.00 |
| Interim Order for maintenance | $700.00 |
| Total | S3,650.00 |
| SUMMARY | |
| TOTAL REVENUES | $3.650.00 |
| TOTAL EXPENSES | ($2.932.00) |
| $ 718.00 |
However, if the outstanding debts are...
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