THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES SVGHMT2011/0137 BETWEEN: EARLON ALVAN LEWIS PETITIONER/CROSS-RESPONDENT -AND- ISADORE PAMELA LEWIS née BENN RESPONDENT/CROSS-PETITIONER Appearances: Mr Moet Malcolm for the Petitioner, Mrs Anneke Russell for the Respondent.
2015: Feb. 19
JUDGMENT BACKGROUND  Henry, J. (Ag.): Mr Earlon Lewis and Mrs Isadore Lewis were married in 1990. Their marriage lasted for almost 23 years. They are now both 57 years of age and while their union produced no children, they each have two children from previous relationships. Mr and Mrs Lewis are employed in the hospitality industry on the island of Mustique where Mr Lewis works as a butler for one of the properties, while Mrs Lewis is employed at another property as a housekeeper. They are both employed by the Mustique company. Before tying the knot, they acquired two lots of land in Questelles which were registered in their joint names. On becoming husband and wife, they secured a loan and built a two-storey house on the lots which became the matrimonial home. Their equity in that property was used subsequently to secure four loans. The proceeds from the first two loans were used to purchase a vehicle and to fund renovations to the house in 2001 and 2002 respectively . The other loans were taken to fund the education of Mrs Lewis’ son Rodney. He left for England around in 2005 at the age of 28 years and is still there.  Mr Lewis has applied for ancillary relief and seeks a property adjustment order and a declaration that he is entitled to a half share in the matrimonial property. He claims a half share on the basis that the lots were acquired and the house built and paid for equally by the parties. Mrs Lewis resists this claim and contends that Mr Lewis is entitled to only a one third share in the matrimonial property since she alone bought the lands on which the house was built and she has been solely responsible for servicing the mortgages, paying insurance premiums and from 2009 the property taxes. ISSUES  The singular issue is to what share in the matrimonial property is Mr Lewis entitled. The factors to be considered by the court in making this determination are well established . The court will consider the facts of the case in light of those principles. ANALYSIS Issue: What share is Mr Lewis entitled to in the matrimonial property?  The court is empowered to make property adjustment orders for the purpose of
adjusting the financial position of the parties to a marriage and any children of
the family. The court on making a property adjustment order, may also make an order for sale of any property owned by or in which either party has a beneficial interest. When considering an application for such orders, the court must have regard to all of the circumstances of the case. Fairness is the established and accepted guiding principle which governs the court in its exercise those powers. In seeking to achieve fairness, the court is required to give primary consideration to the welfare of the children and as far as possible seek to accomplish a “clean break” between the parties. A child of the family is one who is either a child of both parties or one who has been treated by both parties as a child of their family.  The court is enjoined also to take account of the income, earning capacity, property and financial resources, financial needs, obligations and responsibilities of each party currently and in the foreseeable future. Other factors which must be considered by the court in arriving at its decision are the age of the parties, the physical and mental health of each, the duration of the marriage, each party’s contribution to the family’s welfare and the standard of living enjoyed by the family before the breakdown of the marriage. Duration of marriage, standard of living, income, earning capacity, age, physical and mental health  Mr and Mrs Lewis enjoyed a marriage which can be described as long, having regard to all the circumstances. Their marriage spanned two decades starting when both parties were in their early 30s and ending as they approached the autumn of their lives. From their accounts, during that time the family members cooperated with one another and existed as a cohesive unit. Throughout the marriage, Mr and Mrs Lewis spent most of their time on Mustique while the children remained on the mainland in Saint Vincent. Before their marriage, Mrs Lewis had left her children in a friend’s care in Prospect. When they became a couple, from both accounts Mr Lewis accepted Mrs Lewis’ children as his own. In this regard, he said that he did not like the conditions under which the children were living and he was further concerned that they were not performing well academically. He explained that “the girl” and “the boy” respectively had failed their common entrance and school leaving examinations. With Mrs Lewis’ consent and support, he arranged for his sister Marie Lewis, to take them to live with her and for their admission to the Barroullie secondary school. He explained that the children were around 10 and 12 years old respectively at that time. The children lived with Ms Lewis from then except for two years when the daughter lived with Mr Lewis’ brother Augustine Lewis. Subsequently, the children moved into the matrimonial home.  Mrs Lewis indicated that she would sometimes spend six months “straight on Mustique”. Whenever she got the opportunity she would visit her children at Prospect even if only for a day. Likewise, when Mr Lewis was on the mainland, he would take the children to his home on the mainland and occasionally to Mustique to spend time with him. The picture painted by the parties of those early years together suggests that there was mutual cooperation and common endeavour for the ultimate good of the unit which comprised the husband and wife and the wife’s two children. No mention is made of Mr Lewis’ children or what if any involvement Mrs Lewis had in their lives. The court infers from the evidence that Mrs Lewis paid minimal if any role in their lives as she appears not to have had much time for her own children during their formative years largely due to the fact of her virtual confinement on Mustique meeting the demands of her job. This remark is not intended to be a criticism, but rather to note the sacrifice she likely endured and accepted to contribute to the family’s livelihood.  When they were first married, Mr Lewis was earning approximately $2000.00 per month which increased to roughly $3000.00 around 2010. Mrs Lewis was receiving $4500.00 per month in July 2013 and she states that this is her current salary. The court notes that Mr Lewis has not provided any documentary evidence of his income now or in 1990. In fact, most of the details concerning Mr Lewis’ means and circumstances were provided by him in cross-examination and in affidavits in response to statements made by Mrs Lewis in hers. The court observed that Mr Lewis appeared to have difficulty comprehending questions which were not straight forward. He indicated in response to the court that he left school in senior 2. It appears that he faces certain challenges linguistically which might have hampered him in this regard. However, this does not relieve him of the duty to make full and frank disclosure to the court on these matters. His attorney would be expected to provide the necessary guidance. Suffice it to say, where a party fails to make full disclosure of his or her financial affairs, the court is entitled to draw adverse inferences from such default and conclude that the defaulting party is hiding assets with a view to ensuring that he or she leaves the marriage in a substantially more advantageous financial position than the other party. In the premises I conclude that Mr Lewis is currently earning at least $3000.00 per month and quite likely more.  Neither party claims nor appears to suffer from any physical or mental disability. In the normal course of life, they each can hope to enjoy at least 8 more years of gainful employment with the Mustique company or another entity. They would each also expect to live for at least another 20 years or so. Neither party informed the court of any pension scheme operated by the Mustique company. The court notes however that Mrs Lewis salary slip records a deduction for NIS and regular pension. The court infers that both parties will at the statutory timelines, sometime within the next ten years, receive pensions from both the NIS and the Mustique company. To their credit, while they started their lives together as members of the working class, their combined efforts have resulted in them enjoying a comfortable lower middle class lifestyle which is projected to last well into their retirement, barring any catastrophic life-changing event. Property, financial resources, financial needs, obligations and responsibilities, contributions to family’s welfare  Neither party appears to have much savings. There is no evidence from which the court can assess their respective savings as the two accounts for which details were provided are joint accounts with balances of less than $500.00. The data provided on each is dated and no recent banking activity has been disclosed. Having regard to the historical data reflected in both those accounts as to the saving ability and habits of both party, I have little doubt that they both have amassed modest savings elsewhere. The court takes into account that while Mrs Lewis has provided a breakdown of her monthly expenses, Mr Lewis has failed to do so. I harbor no doubt that Mr Lewis’ income is enough to meet and even surpass his reasonable monthly expenses. Based on the available information, after paying the mortgage for the outstanding loans, Mrs Lewis has roughly $550.00 to cover her necessities of water, food, electricity, clothing and cooking gas. She provides an overall estimate of $698.25 per month which seems reasonable. She would experience a deficit each month if she is to meet those expenses only from her salary.  It is clear from the evidence that Mr Lewis relied on Mrs Lewis to handle the family’s finances and financial matters particularly with respect to paying bills and managing their banking needs. Mr Lewis stated under cross-examination that Mrs Lewis came to the mainland more often than he did and he would give her instructions and sometimes withdrawal slips to obtain money from their joint account. He added that the slips he gave her were to allow her to buy supplies for him and to do anything she wanted to do including paying the bills. He said that he did not pay any bills himself because Mrs Lewis took care of that. He reasoned that because of the amounts she withdrew from the account and the small sums she sent to him he thought that she paid bills or used the monies for other things. He declared that he left Mrs Lewis “to do the business all the time.”  Mrs Lewis does not refute this. She stated that she alone paid all the bills including purchase of food and payment for other amenities while Mr Lewis contributed to their savings from his salary. She admits she had access to Mr Lewis’ account at the time. She accepted also that sometimes she was using funds from the joint account with Mr Lewis to maintain the house. She stated that monies from Mr Lewis’ salary and from her account went into the joint account. Neither party has indicated how much money from each went into the joint account. What is clear though is that Mr Lewis’ entire salary went into that account. There is no dispute that Mr Lewis was the initial account holder and that he subsequently added Mrs Lewis to that account. It seems that Mrs Lewis retained another account of her own which was not jointly held with Mr Lewis. Further, it appears that Mrs Lewis’ salary went into her account from which sums were transferred into the joint account. There is no evidence before the court about what sums were so transferred and the frequency of such transfers. Mrs Lewis accuses Mr Lewis of squandering monies they had for their savings in another joint account. Under cross-examination Mr Lewis denied knowledge of that joint account, stating that he knows of only one joint account. This couple regrettably spent time seeking to justify respective contributions they willingly made to the family during happier times when they obviously intended those efforts to benefit all members. This is to be discouraged in cases of this nature.  Mrs Lewis exhibited an account activity record for that second joint account for the period 3/31/01 to 12/31/07. Three names appear on the account. It is not very helpful as it contains no details about the source of funds or the names of persons who deposited and made withdrawals. It will therefore be disregarded. Mr Lewis exhibited almost 110 withdrawal slips in respect of the joint account with Mrs Lewis for the period 2002 to 2007. Among them are 23 signed by Mrs Lewis alone for sums ranging from $500.00 to $5000.00. Curiously, Mrs Lewis deposes that she only recently learned that that account was a joint account. I do not accept that testimony in face of the said withdrawals from that account under her hand. Also included are several slips signed by Mr Lewis directing the bank the sums withdrawn, to pay to Mrs Lewis. Mrs Lewis having reviewed the entire bundle of receipts during cross-examination insisted that the last sums she received from that account were for $2500.00 and $3000.00 in 2005. Contrary to her assertions the bundle contains 3 withdrawal slips after that date signed by Mrs Lewis reflecting a total withdrawal of $3500.00 and a balance of $51,722.09.  The only property which the parties own is the matrimonial property registered in their names as joint tenants in 1989. In situations where a marriage has ended and there is only one house between the parties, the court seeks to ensure that if possible each gets a roof over his or her head. They have settled into a routine where they share the one house but it is clear that Mr Lewis wishes to have a clean break as he has asked that the property be sold. The children are now adults so there is no reason to maintain the status quo for their benefit. The first floor of the building comprises a one bedroom apartment occupied by Mr Lewis, while Mrs Lewis resides in the second floor which consists of a four bedroom, three bathroom unit. There is no evidence before the court regarding who if anyone occupies the upper storey of the house along with Mrs Lewis. No information was elicited about her daughter’s whereabouts although Mrs Lewis testified that her son is now in England. Obviously, Mrs Lewis enjoys the majority of the facilities and amenities at the house.  The property has a market value of $373,000.00. It is mortgaged to First Caribbean International Bank on which there is an outstanding balance of between $50,000.00 and $199,924.71 according to Mrs Lewis. The court notes the disparity in the two figures. The evidence is that in 1990 they obtained a loan in 1990 to construct the house and less than 10 years later in 2001 had repaid it.
Mr and Mrs Lewis’ accounts differ as to how the property was acquired. Mr Lewis asserts that they paid equally for the lots on which it was built while Mrs Lewis is adamant that she alone paid the full purchase price which she borrowed from her employer. I accept Mr Lewis’ version because the evidence shows clearly that the property was registered in the joint names of the parties at the time. I do not accept Mrs Lewis’ account that she put Mr Lewis’ name on the deed because her lawyer suggested it. They got married soon after the property was bought and their behavior throughout their marriage demonstrates that they arranged their affairs to be mutually beneficial. They deviated from this practice only after the marriage broke down.  After they repaid the loan to construct the house Mr and Mrs Lewis borrowed $26,000.00 in 2001 to purchase a vehicle and another $30,000.00 in 2002 to undertake renovations and improvements to the house, a total of $56,000.00. The property was mortgaged additionally in 2003 and 2005 for loans of $47,000.00 and $65,596.78 respectively (a global sum of $112,596.78) to pay for Rodney’s tertiary education. Mrs Lewis testified that she has been paying $2675.00 monthly since 2005 when the debt was transferred to First Caribbean Bank Ltd. Interestingly, the mortgage transfer and the second student loan were executed on the same day. This could explain Mr Lewis’ apparent ignorance that he had signed another loan for Rodney’s education as expressed under cross-examination.  Mr Lewis maintains that his salary contributed to the repayment of the initial $56,000.00 and possibly a portion of the loans for Rodney’s education. He insists that the amounts borrowed for the vehicle and repairs to the house have already been repaid and that the remaining balance relates only to the student loans. He explains that he executed the mortgages for the student loans only because he was a co-owner of the property and this was required by the lending institutions. He maintains that Mrs Lewis agreed that she would be solely responsible for their repayment. Mrs Lewis contends that Mr Lewis is equally responsible for all the loans because he executed the mortgages and agreed to contribute equally to the repayment of each. She submits further that Rodney was always treated as a child of the family by Mr Lewis and in those circumstances, Mr Lewis is legally bound to contribute to the cost of his tertiary education. I do not agree with Mrs Lewis on this score. I do not believe that Mr Lewis agreed to assist with repayment of the student loans. I am satisfied that despite Mrs Lewis’ protestations to the contrary, that when the student loans were taken for Rodney’s tertiary education, she agreed to retain sole responsibility for them. She admitted as much under cross-examination. I find that they did have such an agreement.  At the time of the mortgage transfer, the principal sum of $94,403.22 was owed. If the term of the mortgage was ten years ending in 2015, the loan would be repaid by September 2015 at a monthly repayment of just under $1200.00. At the stated rate of $2700.00 per month, the loan would have been repaid long ago. Mrs Lewis’ assertion that the outstanding balance on the $94,500.00 mortgage is almost $200,000.00 is incredible based on calculations using any amortization schedule. Mathematically, the figures provided by Mrs Lewis do not compute unless there were significant defaults on repayment throughout the years or if other undisclosed loans were taken. In either case no such information is before the court. I reject them totally.  The court is empowered to make a financial provision order or an order requiring one party to transfer property to the other for the benefit of a child of the marriage. A person becomes an adult at eighteen years. A corollary to that is that the court is not ordinarily, at liberty to make a financial provision order or order for transfer of property for a “child’s” benefit where he has reached eighteen years. However, the court may make such an order if there are exceptional circumstances for doing so or if the court considers it necessary where the child is pursuing studies at an educational institution. Rodney would have been 26 and 28 years respectively, a full grown man, when the two loans were obtained to fund his education. He is now an adult of 37 years of age. Neither he nor his mother could reasonably expect Mr Lewis to cover loans for his education. Additionally, in the natural course of events he should have already concluded his studies and made arrangements to pay those loans himself. In fact, the second student loan was received in October 2005 almost 10 years ago. Surely Rodney would have completed his studies and armed with his qualifications and a career, is now contributing to or making the payments for those or other outstanding student loans.  Mrs Lewis did not provide any information regarding Rodney’s progress or whether he is assisting or repaying the loans. This is a clear breach of her duties to be candid with the court. In the premises, I draw the inference that she is likely receiving assistance to service those loans. Based on the couple’s track record in repaying the earlier loan for construction of the house, I have no difficulty in inferring and concluding that those two later loans were fully paid off by 2009 when Mr Lewis left the family unit. I am fortified in this view particularly as no evidence was led to the contrary, taking into account that the family accumulated in excess of $50,000.00 in the joint accounts at NCB between 2002 and 2007 and having regard to mathematical calculations and amortization schedules based on the interest rate and other figures in the mortgage deeds.  Mr Lewis struck the court as a very simple man who was endeavouring to tell the truth to the best of his recollection. Mrs Lewis was clearly the dominant partner in this relationship and had a shrewd business sense which Mr Lewis clearly relied on and which he himself does not possess. He left it up to Mrs Lewis to manage their joint financial affairs and endorsed unquestioningly whatever decisions or proposals she made in that regard. This is reflected in his testimony that he did not know that he had signed another student loan for Rodney’s Education. I perceive that due to his limited academic progress his understanding of the import and effect of the legal documents he signed likely came from Mrs Lewis. Mrs Lewis gave conflicting testimony on important matters and was considered not as forthcoming as the circumstances required. She was almost combative at times during her testimony under cross-examination. Where therefore they contradict each other, the court prefers and accepts Mr Lewis’ account. On the evidence before the court, I am satisfied that Mr Lewis’ salary was utilized by Mrs Lewis to defray the outstanding balances on the vehicle and housing renovation loans up to 2009 when the marriage broke down and the parties separated. In all the circumstances, Mr Lewis is entitled to be reimbursed any sums he would have expended in excess of his half contributions to the house renovation and vehicle loans.  I am satisfied that this is not a proper case in which the court should make either a financial provision order in respect of Rodney’s education or an order for transfer of Mr Lewis’ interest in the matrimonial property for Rodney’s benefit. Not only had Rodney exceeded statutory prescribed age for that kind of consideration but there are no special circumstances which merit it and it would also be flying in the face of reason to do so. This is not a case in which the court can make an order for financial provision or adjustment of property mandating contribution by Mr Lewis in respect of Rodney’s student loans. I accordingly, make no such order. Instead, I find that Mr Lewis is entitled to recover from Mrs Lewis any sums he would have contributed unwittingly to servicing Rodney’s student loans. I hold that Mr Lewis is entitled to a half share interest in the property and reimbursement of all sums which he paid towards the repayment of the student loans. I find also that Mrs Lewis is entitled to be repaid by Mr Lewis half of all insurance premiums and property taxes for those years that he did not contribute to them. Finally, this is an appropriate case in which to give the parties a clean break and provide them each with the opportunity to obtain adequate accommodation for their current and future needs. ORDER  It is therefore declared and ordered:
- Mr Earlon Lewis and Mrs Isadore Lewis each owns and is entitled to a net share of 50% in the matrimonial property registered by Deed of Indenture 4612 of 1989, less: a) in Mr Lewis’ case, one half of the sums paid by Mrs Lewis for property tax and insurance premiums between 2007 and 2014; and
b) in Mrs Lewis’ case those sums that Mr Lewis would have contributed towards the repayment of the student loans for Rodney.
- The parties are to use their best endeavours to obtain documentary proof of the respective amounts spent on the items described in 1 (a) and (b) on or before May 15, 2015
- The matrimonial property at Questelles registered by Deed of Indenture 4612 of 1989 is to be offered for sale on the open market between October 1, 2015 and December 31, 2015 by public auction or private treaty at a price as close as possible to the value of $373,000.00 provided in the valuation report of Mr Franklyn Evans. Sale of the property is to be attempted as often as necessary until the property is sold, right of first refusal reserved to Mr Earlon Lewis or Mrs Isadore Lewis.
- The Registrar is to effect conveyance, transfer and registration of title.
- The proceeds of the sale are to be divided equally between Mr Earlon Lewis and Mrs Isadore Lewis after the appropriate adjustments are made in accordance with paragraph  1. of this Order and after all expenses related to the sale of the house have been fully satisfied.
- Mrs Isadore Lewis is to pay costs of $3,730.00 to Mr Earlon Lewis
 The Court wishes to thank counsel for their submissions.
.………………………………… Esco L. Henry HIGH COURT JUDGE (Ag.)