Martinsen v Martinsen

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Joseph Monica J.
• Judgment Date: 30 April 1984
• Neutral Citation: VG 1984 HC 4
• Docket Number: Divorce Suit no. 20 of 1980
• Date: 30 April 1984

High Court of Justice

Joseph, J

Divorce Suit no. 20 of 1980

Martinsen

and

Martinsen

Appearances:-

Mr. Smith-Hughes for applicant.

Mr. Archibald Q.C., and Mr. Farara for respondent.

Family Law - Husband and Wife — Matrimonial Property.

Family Law - Maintenance.

Facts: The parties married in the United States in 1964. There were two children of the marriage, a girl born in 1965 and a boy born in 1970. The parties went to Tortola in 1975 and lived on a yacht. Differences between the parties arose. Applicant/wife filed for divorce in 1980 on ground of husband's adultery. Respondent did not contest. The parties were unable to reach agreement as to ancillary relief. The applicant claimed share in hull, deck and outfitted yacht and also claimed that she had contributed by sanding and varnishing during construction of yacht and by assisting in day to day maintenance of yacht.

Facts: Parties married in United States in 1964. There were two children of the marriage, a girl born in 1965 and a boy born in 1970. The parties went to Tortola in 1975 and lived on a yacht. Differences between the parties arose. Applicant/wife filed for divorce in 1980 on ground of husband's adultery. Respondent did not contest. The parties were unable to reach agreement as to ancillary relief. The respondent was employed as Maintenance Manager. The applicant was employed as temporary office employee in Norway. The applicant had been given custody of children.

Held: Parties were joint beneficial owners of yacht applicant having one eight share and respondent seven eights share.

Held: The respondent was to pay the applicant $8,000 as maintenance and $225 monthly for maintenance of son until he reached eighteen years.

Joseph Monica J.

1 This is an application by the applicant for maintenance for herself and the children of the marriage and for a declaration under the Married, Women's Property Act (Cap. 238), that the Vessel “Froya” is owned by the applicant absolutely or such order as to the ownership as may be dust.

2 The history of this matter is gives in affidavit evidence of both parties and evidence on oath by the respondent. The parties ware married on 6th June 1964, in the state of California in the United States of America, and there are two children of the marriage; Heidi born on 29th January 1965, Thor born cm 11th April 1970.

3 The parties came to Tortola in 1975 and lived on the yacht. Froya until 1978 when, with the respondent's. consent, the applicant and children travelled to Norway. They returned from Norway in May, 1979, and the family resumed living together. Unhappy differences arose between the applicant and the respondent.

4 In January 1980 the respondent had a heart attack and was hospitalised. He did not return to live on the Froya on his discharge hospital. The applicant lived on board with the children for some time and then moved into an apartment in road Town, The respondent subsequently returned to live on the Froya.

5 On 9th April 1980, the applicant filed a petition for divorce on the ground of adultery by the husband, The prayer of the applicant included the grant to her of alimony pending suit, custody of the children; maintenance for herself and the children and further and other relief. An appearance was entered for the respondent by Mr. Mc Todman, Q.C., but the petition was not defended.

6 By letter of 21st August 1980, counsel for the applicant wrote to counsel for the respondent:

“In confirmation of our conversation yesterday in the presence of our respective clients:

• 1. You told me that the husband would not be contesting the case or appearing personally and that he would probably be in St. Lucia at the time of the hearing.

• 2. We therefore discussed maintenance and the communal property.

• 3. We and our clients agreed to an order (with liberty to apply) that the husband would pay her $450 per month for herself and the children (to be apportioned) $276,00 per month for ten months of the year for their education, and would arrange for this to be paid direct to the wife through his employers, the Moorings.

• 4. We agreed that the communal property was solely the vessel “Froya” which the husband had listed with Captain William Mackie for sale and that the proceeds would be distributed 50/50. Consideration would be later given to whether the husband should make a lump sum payment out of his share to commute maintenance………”

7 On 15th September 1980, counsel for the respondent wrote counsel, for the applicant thus:

“It would appear that our effort to reach a financial settlement out of court has been wasted. I have just received a letter from my client in which he says (in relation to the agreement I thought we had reached);

My wife is demanding too much of me…… I am sorry to say I can not comply. I therefore request that this case go before the judge.

I take these instructions to mean he will defend on the question of ancillary relief but not on the issue of dissolution of marriage.”

8 On 4th November 1980, a decree nisi was pronounced; Custody of the children was granted to the applicant and the questions of maintenance of the applicant and the children were adjourned to Chambers. On 22nd January 1981 an Originating Summons was filed on behalf of the applicant, applying that

• (a) respondent do file an affidavit of means within a time specified by the court or be committed for contempt in default;

• (b) applicant be granted interim maintenance for herself and the children of the family;

• (c) matrimonial property, that is, the vessel. “Froya” be apportioned between the parties.

9 On 23rd February 1981, a consent order was made ordering that “the vessel Froya do not leave the waters of the British Virgin Islands without either the consent of both the applicant and respondent or the leave of the court.”

10 On 30th June 1981, the respondent wrote informing his wife that the children would obtain a better education outside of Tortola. He stated that one of them had to leave as the island was not big enough for then both and it was not fair to him, her and to the children. Further, that if he left the island he could not guarantee a steady income to support the applicant and the children.

11 In July 1981, the applicant and the children returned to Norway — her father meeting the cost of passage ($2,000) for herself and the children.

12 Negotiations mare conducted between counsel for the parties, fob settlement of the proprietary rights of the parties and the payment of maintenance.

13 By letter of 2nd July 1982, counsel for the applicant wrote counsel for the respondent, that the applicant would settle on the following terms:

• (a) $30,000.00 not $25,000.00……….

• (b) maintenance of children must be $250 each until twenty-one or self-supporting…….

• (c) provision most be made for higher education for Heidi and Thor which their mother cannot afford;

• (d) the $2,000,00 cost of repatriation to Norway borne by her father must be returned;

• (e) Finn should make provision in his will for his children….”

14 By letter of 8th October 1982, the respondent wrote his counsel –

• (a) I feel that any offer of $25,000.00 was reasonable ……

• (b) It was agreed that I would, pay maintenance of $450.00 per month which I continue to do until the children reach eighteen years.

• (c) Providing Heidi and Thor show aptitude, then neither will have any trouble in obtaining Government grant for higher education. If it is in my means, I will of course try to supplement this.

15 By letter of 8th April 1983, counsel for the respondent forwarded the applicant's comment in a letter to counsel for applicant one of those comments –

“To date it is aver a year since I made ay offer which Mr. Jack Smith-Hughes agreed and my fee was very reasonable considering the circumstances, but she would not agree and still wants more.”

16 On 8th April 1983, the respondent filed as affidavit of means wherein he swore that he had been employed as maintenance manager with Caribbean Sailing Yachts Ltd., Road Town, Tortola, from November 1982, and that prior to that date he had been employed in a similar capacity in St. Lucia for a period of about six months. His gross income was $692:30 a fortnight with Social Security contribution of $16.00 and PAYE deduction of $34.62, both made fortnightly.

17 He testified that his monthly expenditure is –

(a) Water	-	$ 60,00
(b) Fuel	—	114,00
(c) Annual Hauling of Froya	—	60.00
(d) Food	—	320.00
(e) Batteries	—	20.80
(f) Oil Filters	—	8.50
(g) Clothing	—	50,00
(h) Medical expenditure consequent on Cardiac Condition	—	200,40
	Total	$833,30

18 In addition he owes the sum of $5,000 to a Mrs. J. Zelezinster which loam was used to undertake necessary repairs to the Froya. He stated that he is liable to pay income tax up to the year 1983, and that payment for 1984 and 1981 was $1,618.56.

19 He swore that under a voluntary agreement which the applicant made on 4th November 1980 (the time of the granting of the. Decree Nisi) he agreed to make and still makes monthly maintenance payments for the two children of $450.00. Further, he lives aboard the Froya built at his own expense and in his spare time, while the parties were residing in the United States of America: that the yacht had an appraised value of $65,000, and that he had no other capital or income.

20 On 25th April 1983, counsel for the respondent wrote counsel for the applicant informing him that the respondent's work permit would not be extended beyond 31st May 1983. The letter reads:

“Mr. Martinson, for his part, does riot wish to leave the Virgin, Islands. while there is still unfinished business, that is, with the divorce suit — As a United States citizen, he can work in the United States Virgin Islands, and informs me that he had already applied for employment there. But...