Wheatley v Wheatley

• Jurisdiction: British Virgin Islands
• Judge: Barrow, J.A.,Edwards, J.A.,Thomas, J.A.
• Judgment Date: 13 October 2008
• Neutral Citation: VG 2008 CA 5
• Docket Number: Civil Appeal No. 006 of 2008
• Court: Court of Appeal (British Virgin Islands)
• Date: 13 October 2008

Court of Appeal

Barrow, J.A.; Edwards, J.A. (Ag); Thomas, J.A. (Ag.)

Civil Appeal No. 006 of 2008

Wheatley

and

Wheatley

Appearances

Mrs. Tana'ania Small for the appellant.

Mrs. Susan V. Demers for the respondent.

Family Law -; Divorce — Ancillary relief — Property adjustment — Whether the trial judge gave sufficient weight to factual circumstances — Division of property found to be fair and adequate — Whether the trial judge was entitled to order that the lump sum payment be secured by charge over a company's shares.

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.

1 Thomas, J.A. [AG.]: 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”. (Per Lord Nicholls in Miller v Miller [2006] 2 W.L.R. 1283 at para.1)

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 4 ¹/₂ 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 4th 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 16th April 2007.

THE ORDERS

6 In giving her judgment the learned judge made orders in these terms:

• “1. The respondent shall pay to the Petitioner a lump sum of US$253,657.60, comprising the following:

  • (a) 10% of US$1,249,742.50 (the respondent's inherited property) – US$124,974.25;

  • (b) 15% of US$757,889.00 (the respondent's share of property acquired from Susan Wheatley) – US$113,683.35;

  • (c) 15% of US$100,000.00 (value of the gift shop) - US$15,000.00;

• 2. The lump sum award in the amount of US$253,657.60 shall be secured by a charge over the 95 shares of the company, Anegada Ventures Limited, currently held jointly by the respondent and Lorraine Wheatley, said charge to be a second charge if the said shares are charged to Banco Popular and a first charge if the said shares are not so charged;

• 3. The lump sum award in the amount of US$253,657.60 shall be paid within six months of the date the judgment herein was pronounced;

• 4. All real property and the 95 shares of Anegada Ventures Limited which the respondent holds jointly with Lorraine Wheatley shall henceforth be regarded as being as tenants in common and not as joint tenants;

• 5. The Petitioner is granted custody of the minor children of the marriage, Lowell Wheatley, born April 7, 2003, and Landon Wheatley, born December 13, 2004, with liberal access to the respondent;

• 6. The Petitioner is granted leave to take the children out of the jurisdiction and to reside with them in Florida, United States of America;

• 7. The respondent shall have access to the children of the marriage each year for two weeks at Easter, six weeks during the summer vacations and two weeks every alternate Christmas holidays. The respondent shall take care of all the children's travel arrangements and shall ensure that the children are escorted by a family member known to them when they travel to be with the respondent;

• 8. The respondent shall have access to the children at such other times as the parties may agree during any visits the respondent makes to Florida, such access to include overnight visits upon giving reasonable notice to the Petitioner;

• 9. The respondent shall pay to the petitioner for her maintenance the sum of US$2,700.00 per month for the next 3 years, commencing from 15th April, 2007;

• 10. The respondent shall pay to the Petitioner the sum of US$520.00 per month for the benefit of each child for his maintenance;

• 11. The maintenance for the children shall continue until each attains the age of 18 or complete his education, whichever is later;

• 12. The periodical payments for maintenance of the Petitioner and the children of the marriage shall be secured by a charge over all of the parcels of real property identified in the judgment as currently held in the joint names of the respondent and Lorraine Wheatley, namely Parcel 9, Block 5670A, Anegada Registration Section; Parcel 69, Block 5344B, Virgin Gorda Central Registration Section and Parcel 12/1, Block 5971a, Anegada Registration Section;

• 13. The respondent shall pay to the Petitioner the costs of these proceedings, to be assessed upon application if not agreed.”

THE APPEAL

7 The appellant has filed some twenty-seven grounds of appeal, numbering from (a) through to (aa), which cover a myriad of legal and factual issues. In this regard, the appellant contends that certain of the grounds are characterized by the fact that the learned trial judge took into account matters that should not have been taken into account while on other occasions she failed to take into account matters that she properly ought to have taken into account. Accordingly, certain of the grounds of appeal will be considered together if the circumstances so demand.

8 At paragraph 14 of the written submissions filed by learned counsel for the appellant the following is stated:

“Broadly, the husband…complains that the learned judge took wrong account of each of the relevant factors of income, earning capacity, property and financial resources, standard of living enjoyed by the parties before the breakdown of the marriage, their ages and the duration of the marriage.”

9 The grounds identified in this connection are grounds (a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (q) and (x). These grounds will be analysed as appropriate.

GROUNDS (a), (b) & (f)

10 With respect to these grounds the appellant, through his counsel, Mrs. Tana'ania Small, contends that the respondent's conduct was a “demonstrably relevant” (appellant's submissions at para.18) factor which the learned trial judge was entitled to take into account in order to determine the justice of placing the parties in the position they would have been if the marriage had not broken down.

11 In this connection the appellant draws attention to the respondent's conduct in different circumstances. First, the matter of her attending the Daytona Beach Community College and the production of a transcript purporting to be an official transcript. Second, the removal of the children from this jurisdiction in breach of an existing order giving access to the appellant for which she was found to be in contempt of court. Third, the admission by the respondent that documents filed in Florida seeking to challenge the jurisdiction of the local courts in relation to her application for relief contained false statements. Fourth, actions of violence committed by the...