Alvin Gregory Hodge v Marguerite Denise Hodge
| Jurisdiction | British Virgin Islands |
| Judge | d'Auvergne J |
| Judgment Date | 26 November 2003 |
| Neutral Citation | VG 2003 HC 20 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CLAIM NO. 33 of 2002 |
| Date | 26 November 2003 |
IN THE HIGH COURT OF JUSTICE
CLAIM NO. 33 of 2002
Ms Lorna Shelly-Williams for the Respondent/Applicant
Ms Sonia Parry with Mr. Kerry Anderson for the Respondent/Petitioner
This is an application by Mrs. Hodge, the Applicant/Respondent, for the following orders:
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(1) That the Applicant be granted sole custody of the child of the marriage
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(2) That the Respondent be ordered to pay as maintenance for the said child the sum of $800.00 per month
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(3) That the Respondent be ordered to pay as maintenance for the Applicant the sum of $400.00 per month
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(4) That the Respondent be ordered to pay half of the medical and educational expenses in respect of the said child
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(5) That there be no order as to costs.
On the 5 th of October, 1998, Mr. Hodge who was then 25 years old and Mrs. Hodge who was then 23 years old got married at the Territorial Court, St. Thomas, U.S.V.I. There is one child of the marriage Tyrique Austin Hodge who was born on the 7 th of March 1998. On the 17 th of February, 2003, Mr. Hodge obtained a Decree Nisi of divorce which has not been made absolute.
Mrs. Hodge has an elder son called Cassini Skelton and both children lived with the parties at the matrimonial home.
In or about October 1999 Mrs. Hodge left the matrimonial home with both of her sons and migrated to Atlanta, Georgia, U.S.A.
Mrs. Hodge's evidence is that she was forced to leave the matrimonial home because Mr. Hodge had physically and mentally abused her and even threatened to kill her. Mr. Hodge denied this accusation but admitted to hitting Mrs. Hodge once.
Mrs. Hodge further stated that after her arrival in the U.S.A. she was unemployed for about two months and was in search of a job, an apartment and a motorcar while having to care for two young children and that Mr. Hodge agreed to have Tyrique until she was settled.
Mr. Hodge denied that Tyrique was only given to him on a temporary basis. He said that he was contacted by Mrs. Hodge who asked him ‘to take over the responsibility for the care and upbringing of Tyrique as she had difficulty in disciplining Tyrique and could not meet her personal expenses, the additional expenses associated with the care and upbringing of Tyrique and Cassini as well as household expenses.’
Mrs. Hodge said that while in Atlanta Mr. Hodge would call and apologise for his behaviour and suggested that they give the marriage a second chance.
As a result she returned to Tortola in the summer of 2001 and stayed at the matrimonial home but the abuse continued so she returned to Atlanta.
Mr. Hodge denied the above. He said that ‘no attempt was made to reconcile the marriage.’ That Mrs. Hodge came to Tortola in March of 2001 and stayed at the home of her friend, one Abigail, with both Cassini and Tyrique.
It was not disputed that Mrs. Hodge came to Tortola in August 2002 and took Tyrique to St. Thomas with the intention of proceeding to her residence in Atlanta and that Mr. Hodge followed her. She further said that while in St. Thomas Mr. Hodge assaulted her (by trying to choke her) and took Tyrique away. She tendered a Police report verifying that she made a report of the alleged assault. The report noted that she sustained minor bruises and scrapes to her legs.
Mr. Hodge denied that he assaulted Mrs. Hodge and said that she sustained the injuries to her legs while holding on to his shirt. He said that he had Tyrique in his arms and was moving away at the same time that Mrs. Hodge was holding on to his shirt; and as a result she was dragged along the stairs.
Mr. Hodge is a truck driver and an auto mechanic who has since the marriage fathered two daughters; the elder lives with her mother in St. Marteen while the younger, who is only seven (7) months old, lives in Tortola with her mother.
It was his evidence that he remits $700.00 as monthly as maintenance to the child in St. Marteen and provides the younger with a sum between $550.00 to $650.00 monthly.
Mr. Hodge told the Court that he was and still is ‘part of a trucking company called Tattoo's Trucking’ but he emphasized that he was not a shareholder; that between his mechanical work and his trucking he earned an average of $5,000.00 per month. He was also ‘part of another Company, B & A which does not produce any dividends.’ He owns a piece of land at Georges North Side, a Nissan jeep (pathfinder) 2001 model; two saving bank accounts, the savings on each being in the region of $4,000 to $5,000.
His evidence discloses that he lives within a close family unit, the same compound with his mother and aunts and their children and they assist him with the care and upbringing of Tyrique. He said ‘Tyrique lives primarily with me but has secondary homes with my mother and aunt.’
I pause here to note that present at the hearing were Mr. Hodge's mother and two aunts whereas the mother of Mrs. Hodge sat next to her throughout the proceedings.
No evidence was led as to the earnings of Mrs. Hodge. The Court was only cognizant of the fact that she was gainfully employed, rented an apartment and owned a vehicle.
Finally, the Court was informed of the arrest and very serious charges with which Mr. Hodge was charged and that if convicted there was the possibility of his being incarcerated for several years. In reply, Mr. Hodge said that if the possibility materialized he would wish Tyrique to be given to the care and control of Mrs. Hodge.
Both Counsel addressed the Court on the relevant law with regard to custody and maintenance for a child of the family and financial provisions for a spouse.
In this matter, as in all matters concerning issues relating to custody of a child the oft-repeated statement ‘that the welfare of the child is of paramount importance,’ is and will always be a decisive factor in the deliberations before an order is made.
The Guardianship of Infants Act Cap 270 of Laws of BVI paragraph 3 places the mother and father on equal footing for it specifically provides that, neither has a superior claim to that of the other.
The generally accepted view that the custody of children of tender years regardless of sex should be awarded to their mothers since...
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