Lawrence Wheatley v Raishauna Wheatley

• Jurisdiction: British Virgin Islands
• Judge: THOMAS, J.A. [AG.],BARROW, J.A.:,EDWARDS, J.A. [AG.],Errol L. Thomas,Justice of Appeal [Ag.],BARROW, J.A.,Denys Barrow, SC,Justice of Appeal,Ola Mae Edwards
• Judgment Date: 13 October 2008
• Docket Number: HCVAP 2007/006
• Court: Court of Appeal (British Virgin Islands)
• Date: 13 October 2008

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Denys Barrow, SC Justice of Appeal

The Hon. Mde. Ola Mae Edwards Justice of Appeal [Ag.]

The Hon. Mr. Errol L. Thomas Justice of Appeal (Ag.]

HCVAP 2007/006

BETWEEN

Lawrence Wheatley

Appellant

and

Raishauna Wheatley

Respondent

Appearances:

Mrs. Tana'ania Small for the Appellant

Mrs. Susan V. Demers for the Respondent

Civil Appeal — Family Law — Divorce — Ancillary Relief — whether the judge took into account all relevant considerations — whether the judge gave due weight to all relevant considerations — whether the court could take judicial notice of the law governing work permits — weight to be attached to an agreement on income — lump sum payment — whether inherited property is part of the matrimonial assets and ought to be included in the calculation of the lump sum — meaning of ‘secured to the satisfaction of the Court’— Child Custody — Matrimonial Proceedings and Property Act No. 6 of 1995 — Guardianship of Infants Act Cap 270.

The appellant, a citizen of the British Virgin Islands, is the co-manager and co-owner of a family run hotel in Anegada. He met the respondent, a citizen of the United States of America, whilst he was studying in Florida. They were married in 2002 and have two young sons. The respondent was a housewife and the children's primary caretaker during the four year marriage, except for a brief period when she managed the hotel's gift shop. She filed a divorce petition in March 2006 and claimed custody of the two children and ancillary relief. A decree absolute was granted and ancillary relief ordered in the following terms: (i) a lump sum payment to the respondent of US$253,657.60 comprising the appellant's (the respondent on the petition in the court below) inherited property and other assets; (ii) the lump sum payment to be secured by a charge over the shares of the (hotel) company held jointly by the appellant and his sister; (iii) the appellant and his sister to be treated as tenants in common and not as joint tenants in relation to all real property and shares of the company; (iv) monthly maintenance sums to be paid to the respondent and the two children; and (v) the periodical payments to be secured by a charge over all property identified as being jointly held by the appellant and his sister. The respondent was granted custody of the children with liberal access being granted to the appellant. The appellant appealed against these awards and the grant of custody and challenged the learned judge's findings of fact.

Held: allowing two grounds of the appeal, disallowing all other grounds and making no order as to costs on the appeal:

• (1) The learned judge had properly taken into account and given due weight to the statutory considerations and the relevant factual circumstances including the conduct of the parties during the marriage and at the trial (their credibility), the earning capacity of the parties, the respondent's employability both within and without the British Virgin Islands, the assets held by the appellant and the appellant's truthfulness regarding his financial position. The learned judge had also properly found that the parties enjoyed a good standard of living. In those circumstances, there was no basis upon which an appellate court could interfere with these findings and the conclusions reached in making the order for ancillary relief.

• (2) As a matter of law, the law governing immigration work permits and related matters was a question of which the court could take judicial notice.

• (3) The learned judge had due regard to the welfare of the children having considered all relevant factors and attached appropriate weight to them. The learned judge's discretion to award custody to the appellant was accordingly properly exercised.

• (4) In making the maintenance award, the learned judge was mandated under sections 23 and 25 of the Matrimonial Proceedings and Property Act (‘the Ad’) to consider a number of variables, including the income of the parties. The question of an agreement on income by the parties did not arise or was otherwise implicitly rejected by the learned judge.

• (5) The learned judge paid due regard to the appellant's job prospects in determining the maintenance award; and, in terms of quantification of the award, considered all the relevant evidence and had appropriate regard to the submissions of counsel. There was therefore no basis for interfering with the learned judge's maintenance award.

• (6) As a general rule, inherited property or non-matrimonial assets ought not to be shared by the other party to the marriage. In determining whether inherited property should be included in the calculation of the lump sum award as an exception to the general rule, the court may take into account the duration of the marriage, whether a petitioner would have directly or indirectly benefited from the inheritance had the marriage subsisted and whether a petitioner's financial needs could be met without recourse to the property. In the circumstances of the case, having regard to the respondent's financial needs and to the fact that she would have benefited from the inheritance had the marriage continued, the learned judge properly exercised her discretion to include the inherited portion of the appellant's assets in calculating the lump sum award.

  Dicta of Lord Nicholls in White v White [2001] 1 All ER 1; dicta of Munby J in P v P [2004] EWHC 1364; Dicta of Lord Nicholls and Baroness Hale in Miller v Miller [2006] 2 WLR 1283; dicta of Edwards J (as she then was) in Darcheville v Darcheville Claim No. SLUHMT 2003/0034; dicta of Lord Denning M.R. in Trippas v Trippas [1973] Fam 134 considered and applied.

• (7) Each party is entitled to a fair share of the available property and, as far as is reasonably practicable, is to enjoy the same standard of living as would have pertained had the marriage subsisted. Having regard to all the circumstances of the case including the situation of the respondent and the duration of the marriage, the awards in relation to the family assets and the gift shop were fair and adequate.

• (8) As to the sale and ownership of the gift shop, the learned judge made findings of fact which were duly explained so that there were no grounds upon which the appellate court could intervene. In terms of the value of the gift shop, the appellant was under a duty to secure a current valuation. Having failed to do so, the learned judge was entitled to estimate its value, which discretion was reasonably exercised.

  Dicta of Saunders JA (as he then was) in Stonich v Stonich British Virgin Islands Civil Appeal No. 17 of 2002 followed.

• (9) The power in section 23 of the Act to order payment of a lump sum to be ‘secured to the satisfaction of the Court’ does not empower the court to order the charging of property of any kind, simpliciter. The learned judge was not, in the circumstances, entitled to order that the lump sum payment or the periodic payments be secured by a charge over the company's shares.

• (10) However, the court should, as a matter of approach and depending on the circumstances including what may have been said by the parties to the court, give the parties the opportunity to agree on the property to be charged as security. In the event the parties cannot agree, or if a party declares before there is any attempt at agreement that he will not charge any property, the court has the power to direct what property is to be charged, order the charging of that property and appoint a person to execute the charge, if a party refuses to do so. [per Barrow JA and Edwards JA [Ag.]; Thomas JA [Ag.] dissenting].

• (11) Section 25(1) permits the court to, inter alia, make an order transferring the property specified in such an order to which one party to a marriage is entitled, whether in possession or reversion, or to make orders creating a settlement. Such a transfer or settlement is however confined to the parties to the marriage and children of the marriage. It was accordingly outside the court's competence to make an order which sort to bind the appellant's sister who was not a party to the marriage.

• (12) The learned judge took all relevant considerations into account, and did not therefore err in awarding costs against the appellant in the court below.

THOMAS, J.A. [AG.]

1 This appeal against the decision of Madam Justice Rita Joseph-Olivetti concerns in essence, what has been described, in a similar context, as ‘that most intractable of problems: how to achieve fairness in the division of property following a divorce’.1

Background

2 The appellant (‘the appellant’) is from Anegada, an island in the British Virgin Islands, and has lived there all his life except when he was away at college in Daytona Beach, Florida studying for his degree in Hotel Management. He is the co-manager and co-owner of the Anegada Reef Hotel which is a family run business started by his parents many years ago. The Wheatley family is well known and well established in Anegada as well as in the islands of Virgin Gorda and Tortola.

3 The respondent (‘the respondent’) is a 29 year-old woman. She is a citizen of the United States of America and met the appellant when he was in college. When the appellant completed his studies in June 2002, the respondent decided to move back to Anegada with him. The parties decided to get married and did so in September 2002.

4 The parties have two children, Lowell now 4¹/₂ years and Landon, now 3 years. They were married for a period approaching 4 years.

5 In March 2006 a divorce petition was filed by the respondent. The decree nisi was granted on 4^th July of the same year and the decree absolute was granted subsequently. In the petition the respondent sought custody and ancillary relief which gave rise to the judgment

of Justice Olivetti on 16^th April 2007.

The Orders

6 In...