Stonich v Stonich

JurisdictionBritish Virgin Islands
JudgeMATTHEW J. Ag.
Judgment Date31 July 2002
Neutral CitationVG 2002 HC 42
Docket NumberCLAIM No. BVIHMT 2001/0023
CourtHigh Court (British Virgin Islands)
Date31 July 2002

IN THE HIGH COURT OF JUSTICE (CIVIL)

Before: His Lordship Justice Matthew (Acting)

CLAIM No. BVIHMT 2001/0023

BETWEEN
Timothy Stonich
Petitioner
and
Tamara Stonich
Respondent
Appearances:

Mr. J. Carrington for the Petitioner

Mrs. T. Davis for the Respondent

KEY WORDS

Divorce — Whether the Petitioner has established domicile in the BVI as required by the Matrimonial Proceedings and property Act, 1995 — Domicile is the basis for the jurisdiction — Letters written by parties before separation speak to BVI as their home — After separation the Petitioner continued his chartering business in the BVI — Respondent remained in BVI and made enquiries for employment — Domicile in BVI is established — Section 58 the Matrimonial Proceedings and Property Act, 1995 is not conclusive as to domicile

MATTHEW J. Ag.
1

This judgment pertains to a notice filed by the Petitioner on June 7, 2002 asking the Court for an order that reasonable provision of ancillary relief consequential upon the grant of decree of divorce on November 20, 2001 be made to the Respondent.

2

On May 3, 2002 by her second affidavit in another matter the Respondent touched on matters pertaining to this application. In his third affidavit filed on June 7, 2002 the Petitioner responded to the Respondent's affidavit of May 3, 2002 while supporting his application in the present proceedings.

3

The Respondent filed her third affidavit on June 21, 2002, and also filed about the same time were affidavits supporting her contentions by Susi B. Shelton on June 24, 2002 and by Julia Murphy on June 25, 2002.

4

The Petitioner filed his fourth affidavit on June 27, 2002.

5

Timothy Stonich aged 54 and Tamara Stonich aged 51 were married on November 13, 1987 in Illinois, U.S.A. The marriage lasted for 13 1/2 years and was dissolved by decree absolute on June 5, 2000. There are three children of the family who are all over 18 years old.

6

Shortly after the marriage about 1988 the Parties bought a new house jointly in Winnetka which they eventually sold about 1998 for a net amount of $500,000. The new house cost about $615,000 of which the Respondent contributed $15,000.

7

The Parties left the United States in 1998 to pursue the Petitioner's dream to buy a boat and sail all over the world and for that purpose they sold all their possessions, or most of them, in the United States.

8

They traveled to South Africa at the end of the year where they purchased the ‘Rendezvous Cay’. They sailed from South Africa in their boat in December 1998 for the Caribbean taking about 2 months to do so.

9

They started living in Tortola early in 1999 where they began to operate a boat chartering business. Unfortunately they did not remain together for too long on the boat where they lived, and the Respondent left the boat in April, 2001.

10

Shortly before the marriage on July 1, 1987 the Petitioner obtained employment in a very senior position with a company, U.S. CAN and it is not disputed he earned a very good salary in excess of $200,000 per year. He left this to pursue his dream.

11

In 1990 the Parties created a joint account at Prudential Bache Securities in the region of $500,000. In the next year the brokerage account was transferred to Morgan Stanley Dean Witter. The Petitioner retained some small assets in his sole name.

12

Between 1990 and 1994 the Petitioner acquired assets in his own name—mainly options which were quite substantial; these were placed in the joint account.

13

The Petitioner's mother died in 1990 and he received an inheritance of $278,826.62 which was also transferred to the joint account. The Respondent makes a claim to some of that amount alleging it was a gift to her.

14

On March 22, 1994 a trust was created into which the joint account was placed. The Petitioner, a graduate in Spanish and French who did some MBA courses says she did not understand the nature of the trust that she had signed.

15

The shares from the options were all sold and placed in the trust which was virtually under the control of the Petitioner.

16

In her last paragraph of her third affidavit, the Respondent lists the matrimonial assets as follows:

(i) Rendezvous Cay

$ 700,000

(ii) Morgan Stanley Dean Witter 28/2/2002

$2,191,869

(iii) IRA 28/2/2002

$ 597.539

$ 3,489,408

17

In paragraph 24 of his fourth affidavit Timothy Stonich states that his assets are fully described in Tamara's affidavit. He states also that he has a share in a condominium in Steamboat Springs valued at $70,000 and investments in United Bank and CDP1 worth about $105,000. He does not accept the valuation put on the Rendezvous Cay which was purchased for $516,000 and outfitted for an additional $35,000. His estimation of the boat insured at $550,000 is about $400,000.

18

The summary of accounts for the month ending April 30, 2002 by Morgan Stanley gives the value of the total amounts for the trust account, number 379–033846 as $2,064,340.21 and the IRA account 379–031269 as $591,877.47. This makes a total of $2,656,217.68. If the $70,000 and the $105,000 mentioned in the preceding paragraph are added to that, the total marital assets would be $2,831,217.68 plus the value of the Rendezvous Cay which I assess at $500,000. There is also an amount of $90,000 real estate in Florida. The grand total would be $3,421,217.68, just a little less than what the Respondent suggests.

THE AFFIDAVIT EVIDENCE
19

In her second affidavit the Respondent states that she is presently employed as a real estate agent in Orlando, Florida, since September 2001. She said she left the boat in April 2001 for she felt unable to cope with the emotional abuse from the Petitioner.

20

She said in the course of the marriage she and the Petitioner acquired substantial assets which were primarily held in their joint names until 1994 when the Petitioner moved the assets held in the joint brokerage account with Dean Witter to place them under the jurisdiction of a trust they created. It is strange the Respondent now says she did not understand the effect of the trust. I do not believe her.

21

Neither do I believe her when she says it was the Petitioner who told her that she would not get anything under the BVI laws which would favour him, and that is why she went to Florida to commence proceedings. At the time she had BVI lawyers advising her in respect of her divorce. Why did she not consult them even assuming the Petitioner made the statement to her?

22

She has returned to the Courts which she denigrated because of her failure in the Florida Courts. That of course is not to say that the Court will not give her what is due to her as it is bound to do within the principles of justice and equity.

23

In his third affidavit Timothy Stonich says he is a boat captain of West End, Tortola. He says both the Petitioner and himself are in good health and not under any mental disability. I tend to agree. He denies the statement in Tamara's affidavit ‘ We acquired substantial assets in the course of the marriage’.

24

This is understandable for it cannot be disputed that the Petitioner earned all the assets. The Respondent is entitled to a share for the contribution she made to the marriage which the Petitioner admits, in accordance with the provisions of the Matrimonial Proceedings and Property Act.

25

The Petitioner stated that he decided to place his assets in a trust fund for estate planning purposes. He said because virtually all of the assets were premarital, this was done to ensure that the majority of his assets would be held for the benefit of his two children of his first marriage while allowing him sole full access to the assets during his lifetime.

26

The Petitioner testified that since her departure in April 2001 to date he had made substantial amounts of money available to the Respondent. I do not think that is being challenged.

27

He stated that on September 21, 2001 he created a restatement of the trust which had the effect of revoking the Respondent's entitlement to the income of the trust after his death. That does not appear to be a just act but it is of no moment today since I shall attempt to make adequate provisions for her from the sums in the re-stated trust.

28

The Respondent responded with a mammoth affidavit containing 101 paragraphs. I have already referred to the last paragraph.

29

In her affidavit she refers to the background of the relationship between herself and the Petitioner; the decision that the Respondent should stay at home; the financial support she gave to the family; the partnership of marriage; the creation of the trust; the decision to relocate to Tortola, and the separation.

30

I do not believe there was a decision that the Respondent should stay at home and I have already expressed my...

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