Lionel D Parker v Gail K Parker
| Jurisdiction | Bermuda |
| Judge | Alexandra Wheatley |
| Judgment Date | 12 January 2024 |
| Neutral Citation | [2024] SC Bda 1 Div |
| Court | Supreme Court (Bermuda) |
| Docket Number | DIVORCE JURISDICTION 2018 No: 28 |
[2024] SC (Bda) 1 Div.
Hon. Alexandra Wheatley, Registrar
DIVORCE JURISDICTION 2018 No: 28
In The Supreme Court of Bermuda
Final Application for Ancillary Relief; Third Party Claim for Interest in Matrimonial Property; Beneficial Ownership in Matrimonial Property; Constructive Trust; Proprietary Estoppel; Whether Loans to be Considered in Asset Calculation; “Hard” or “Soft” Loans; Matrimonial and Non-Matrimonial Assets; Principle of Fairness; Principles of Needs and Sharing
Mr Adam Richards of Marshall Diel & Myers, for the Petitioner
The Respondent, Mrs Parker, In Person
REGISTRAR, Alexandra Wheatley
The parties married in 1987. The Petitioner (hereinafter referred to as the Husband) is 63 years old and the Respondent (hereinafter referred to as the Wife) is 61 years old. The Husband is a U.S. citizen (who now holds Bermuda Status through marriage), and the Wife is Bermudian. There are two children from the marriage who are now adults and financially independent. The parties separated in August 2015. Decree Nisi was pronounced on 27 July 2018 and made absolute on 18 September 2018. The parties were therefore, in a long marriage of over thirty years.
The Husband filed an application for ancillary relief dated 21 March 2022 ( Husband's Application) seeking periodical payments, a lump sum, a property adjustment order, and such other relief as may be just. The Wife did not file her own application for ancillary relief.
The Husband relies on his first affidavit sworn on 3 May 2022 ( Husband's First Affidavit) as well as his second affidavit sworn on 9 August 2022 ( Husband's Second Affidavit). In addition, the Husband submitted an affidavit by his sister (hereinafter referred to as HS) which was sworn on 29 September 2022 ( HS's Affidavit).
The Wife relies on her affidavit sworn on 17 June 2022 ( Wife's First Affidavit), as well as her second affidavit which was in response to the HS's Affidavit and was sworn on 10 February 2023 ( Wife's Second Affidavit).
The parties attended the final hearing and provided viva voce evidence updating their respective financial position since the filing of their respective affidavits. Both parties were cross-examined as was the HS who appeared for the purpose of giving her evidence. The Husband and HS both appeared remotely through an audio-visual link whereas the Wife attended physically in the courtroom.
There is no dispute between the parties whether the assets they now own, which are held in joint names or in either of their sole names, were created during the marriage and are matrimonial assets.
The primary point of dispute relates to the ownership of a property in Georgia ( Georgia Property). The Husband asserts that the parties have a negligible interest in the Georgia Property due to the purported interest he says his sister (HS) holds, whereas the Wife asserts that she and the Husband hold a fifty percent (50%) interest and the Husband's mother (hereinafter referred to as HM) the other fifty percent (50%) interest. Initially, the wife disputed HM's 50% share in the property; however, this was conceded during the hearing.
The other issues for determination are in relation pension equalization as well as alleged debts incurred during the marriage and/or after separation.
The former matrimonial home ( FMH) is located in Southampton Parish. The FMH was purchased at the outset of the marriage. There are factual disputes regarding renovations undertaken during and after the parties' separation as well as their respective contributions towards the monthly mortgage payments. Specifically, (1) who should be responsible for the debts incurred for work carried out after the Husband vacated the FMH in August 2015; and (2) what compensation, if any, should be accounted for in favour of either party when the Husband ceased contributing to the monthly mortgage payments in December 2018.
Since the Husband vacated the FMH in August 2015, he continued to contribute to the monthly mortgage payments until December 2018 when he notified the Wife that he would no longer be contributing to the said payments. It is noted that there is no evidence of the outstanding mortgage at the point of separation nor is there any evidence of its value 2015.
The Wife advises that she has made payments of $260,000 since separation towards the mortgage. The Husband states that he has separately made payments of $124,000 which were made for the period August 2015 to December 2018. He has not made any further contributions to the mortgage payments since December 2018.
The FMH was valued in 2019 by Main Point Real Estate for $1,500,000 ( First Valuation). The valuation lists 16 items of works that the valuer flagged as needing to be addressed. The First Valuation also shows that the FMH would be valued at $2,000,000 upon completion of these works. The FMH was appraised again by the same valuer in May 2022 for $1,430,000 ( Second Valuation). The Second Valuation listed 18 items of works which need to be completed but does not have a projected value upon completion of the works. However, it should be noted that the descriptions of the suggested works to be carried out are extremely vague and unhelpful in being able to properly assess the full extent of the work required. For example, one description states “Stairwell”, another “Lower bathroom”, another “Electrical”. There were photographs attached to the First Valuation that purportedly exhibit some of the items on the list which require to be completed however, the quality of the pictures makes it very difficult to properly ascertain the extent of the work required. There was also no evidence provided by either party proposing an estimated amount of funds that would be required to complete all the renovations.
The Husband accepted the calculations at paragraph 32 of the Wife's First Affidavit showing an approximate net equity in the FMH as being $10,000 which is calculated as follows:
| Gross Market Value | $1,435,000.00 |
| Less Agent Commission | $71,750.00 |
| Less 1/2 Conveyancing Costs | $38,204.25 |
| Less Outstanding Mortgage | $1,353,758.75 |
| NET EQUITY: | $9,566.75 |
Whilst the FMH is not in the parties' joint names, the Husband signed off as a guarantor on the mortgage. The Husband continues to remain a guarantor as the bank will not agree for him to be removed based on the Wife's sole income.
Further, it is the Wife's evidence that the Land Tax for the FMH is in arrears in the sum of approximately $20,536.48 as well as home insurance. She has asserted that the bank's position is that the land tax arrears and home insurance payments must be brought current for consideration to remove the Husband as a guarantor. It should be noted that the only evidence of what the alleged arrears of land tax was a table created by the Wife and a Land Tax Demand Note for the period 1 January 2022 to 30 June 2022 showing there was $1,583.23, but this only relates to one of the rental units. At the end of the hearing the Wife was directed to produce a letter or other correspondence from the relevant government department confirming the amount outstanding for all assessment unit for the FMH, but this was not provided.
The Wife avers there were several debts which were outstanding at the time of separation which total approximately $27,000 ( Renovation Debts). It was the Wife's contention in her oral evidence that she and the Husband continued to affect certain renovations/works on the FMH for some time after the initial period of separation.
The breakdown of the Renovation Debts is as follows:
| SAL | $4,453.99 |
| Skyline trucking | $5,562.84 |
| Eldon Raynor | $900.00 |
| Pitts plumbing | $7,400.00 |
| Aptech | $3,909.00 |
| Hunt's trucking | $1,505.00 |
| Bierman's | $3,600.00 |
| TOTAL: | $27,330.83 |
The Wife was unable to provide any evidence of the invoices or any payments she made to the Renovation Debts save for, producing a single bill from SAL in the total sum of $3,903.99. There is no evidence of any payments being made against the SAL invoice save that the balance has reduced by approximately $500 from what it was five years ago. The Wife avers that the $500 was paid by the Husband.
Aside from the Renovation Debt, there is also a debt owed to Sub Zero for approximately $20,000 ( the Sub Zero Debt). Judgment was obtained against the parties in the Supreme Court for a total sum of approximately $42,000. The parties separately entered into Consent Orders with Sub Zero accepting equal responsibility for the debt; i.e. $21,000 each. The Husband provided evidence that his $21,000 share was paid and the Wife's evidence showed that she has only paid back $600 since entering into the Consent Order.
In addition, the Wife was required to take out a loan to have certain works completed at the FMH for it to be safe for their grandchildren. She says that she obtained this loan through her daughter for a principle sum of $50,000 ( the Construction Loan). The current outstanding balance is $30,724.82.
There is a great deal of contention between the parties surrounding this property. The Georgia Property was purchased in 2008 when the parties were considering moving back to Atlanta. It was purchased jointly between them as well as with both the Husband's mother and father. The purchase documents show that the Husband and Wife paid $20,000 as a down payment plus closing costs and the remainder was secured by mortgage. The parties accept that the father's credit rating was required to obtain the mortgage. At some later date, the father transferred his share in the Georgia Property to HM so that it is now held with...
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