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BRITISH VIRGIN ISLANDS
IN THE COURT OF APPEAL
CIVIL APPEAL NO.17 OF 2002
BETWEEN:
TIMOTHY STONICH
Appellant
and
TAMARA STONICH
Respondent
Before:
The Hon. Mr. Albert Redhead Justice of Appeal
The Hon. Mr. Adrian D. Saunders Justice of Appeal
The Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]
Appearances:
Mr. J. Carrington for the Applicant/Appellant

Ms. T. Small-Davis for the Respondent

2003: June 19; 20;

September 29.

JUDGMENT
[1] SAUNDERS, J.A.: Mr. and Mrs. Stonich were married in the United States in
1987. The couple had no children together. Mr. Stonich and a former deceased
wife of his had adopted a boy and a girl. At the time the Stoniches were married,
these children were ages 5 and 7 years respectively. Mrs. Stonich had one son.
He was 7 years old when his mother married Mr. Stonich.
The Trial Below
[2] The divorce decree absolute ending the marriage was granted in June 2002. A
hearing was conducted to determine how the couple’s assets should be divided.
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The assets in question comprised:
[a] A trust account with Morgan Stanley Dean Witter;
[b] A luxury yacht called “Rendezvous Cay” to which the Judge ascribed a
value of $500,000;
[c] An IRA account held at Morgan Stanley;
[d] A share in a condominium said by Mr. Stonich to be valued $70,000;
[e] Real estate in Florida said by Mr. Stonich to be valued $90,000; and
[f] Investments in United Bank and CDP1 worth about $105,000 according to
Mr. Stonich.
[3] The trial Judge looked at the assets as a whole and decided that the husband
should be entitled to 70% of the same while Mrs. Stonich’s entitlement should be
30%. Both spouses are dissatisfied with the Judge’s order. The husband thinks
the Judge was too generous to Mrs. Stonich. The wife is content to accept the
30% awarded in the assets referred to in (c) to (f) above. She takes the view
however that she should be entitled to one half of the assets mentioned in items
(a) and (b) in addition to the 30% ordered in respect of the remaining assets. Mr.
Stonich has appealed the Judge’s order and Mrs. Stonich has cross-appealed.
[4] At the trial below, both parties were cross-examined at length. It does not appear
that Mrs. Stonich cut a very favourable picture. For example, the trial Judge did not
believe her when she testified that she did not understand the financial
consequences to her of the establishment of the trust account with Morgan
Stanley. Further, contrary to her testimony, the trial Judge did not believe that
there was an agreement that she, a college educated person, should stay at home
and not work. The Judge did find however that, by remaining in the home, she had
made “undoubted contribution” to the welfare of the family and, in this regard, the
Judge referred to affidavit evidence from witnesses that described her as “a loving,
attentive and caring mother”. In order better to understand the order made by the
trial Judge, it is helpful briefly to review the evidence as to how the assets came
into being and how each party contributed.
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The Background
[5] There is no dispute that Mr. Stonich was the income earner in the relationship. By
the time of the marriage he already had personal and financial assets valued at
approximately $150,000 and he had just obtained employment in a new job
earning a salary in excess of $200,000 annually. Mrs. Stonich was earning a net
salary of $3,000 monthly before she ceased working, which she did shortly after
the marriage.
[6] The couple had agreed to reside in Mr. Stonich’s home but, with a household that
now included three children, it was decided to acquire a bigger home shortly after
the marriage. The spouses therefore sold their respective pre-marital dwelling
houses, pooled the sums realized by these sales and purchased a home in
Winnetka, Illinois for $615,000. The entire net proceeds realized by Mrs. Stonich
on the sale of her home and provided by her to acquire the new home was
$15,000. Mr. Stonich netted $250,000 from the sale of his old house. The
mortgage on the new home was paid by Mr. Stonich but the Winnetka home was
placed in the joint names of the parties.
[7] The spouses operated a joint account into which the wife alleges she placed all
her earnings throughout the brief period of the marriage during which she was
employed outside of the home. In 1990 Mr. Stonich inherited $278,826.62 from the
estate of his deceased mother. He then transferred this sum together with a
significant amount of his other assets to an account at Prudential Bache
Securities. That portfolio was subsequently transferred to Morgan Stanley Dean
Witter. Both the Prudential Bache and the Morgan Stanley accounts were at all
times joint between the spouses.
[8] Mr. Stonich explained the circumstances of the joint character of these accounts. It
was asserted vigorously, both before the trial Judge and this Court, that he had
been threatened by his wife with divorce proceedings if he failed to transfer the
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assets to a joint account. There is however no indication that the trial Judge
accepted this assertion.
[9] In 1994 Mr. Stonich acquired a considerable amount of shares and stock options
as a result of his employment with US Can. That company was then going public.
Mr. Stonich was given fiscal advice. He decided to create the Timothy W Stonich
trust account as a mechanism for estate and tax planning. He transferred to the
trust account all the assets in the Morgan Stanley joint account together with his
US Can acquisitions. He became the sole beneficiary under the trust. His evidence
was that partly because of the huge tax advantages and partly because the trust
afforded her a larger resource base from which to draw income, Mrs. Stonich
stood to gain from the creation of the trust. According to him, notwithstanding the
fact that he was the only trustee and had in effect regained sole control over
almost all of the family assets, she agreed to the creation of the trust as her overall
financial position had improved. Moreover, the house at Winnetka, still in their joint
names, was not included in the trust.
[10] In his judgment, the learned Judge referred to Mrs. Stonich’s role in the home but
did not go into details. The evidence is that the children, particularly Mr. Stonich’s,
were difficult. Prior to the marriage to Mrs. Stonich they had been cared for by a
succession of nannies some of whom had seriously mistreated them. They
suffered from severe emotional and psychological problems. Mrs. Stonich did her
utmost to provide a stable home environment for them. She enrolled them in
sports programmes and summer camps. She played a very active role in their
school and extra-curricular activities. She said that she managed the household,
cleaned, did laundry and prepared meals. Mr. Stonich admitted that she made a
contribution to the welfare of the family during the course of the marriage but
sought to minimise the extent of that contribution by stating that the pair had a
cleaning lady three times per week and a live-in maid on weekends.
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[11] In 1998 the spouses decided to change their way of life. Mr. Stonich resigned his
job. They sold the Winnetka house and all their possessions – cars, clothes,
furniture and the like. The proceeds yielded just over $500,000. This money was
placed briefly in the trust account and then an approximate sum was used from the
trust to purchase the luxury yacht Rendezvous Cay. The yacht was put in the
name of a company. Each spouse held one share in the company. The ship was
lavishly outfitted and the couple began sailing the seas. Unfortunately, the
marriage did not last much longer. The parties separated in 2001.
The Appeal
The respective values placed on Rendezvous Cay; the Investments in
United Bank and CDP1; and the Condominium
[12] Counsel for Mr. Stonich objected to the decision by the Judge to ascribe a value of
$500,000 to Rendezvous Cay. Counsel submitted that neither of the spouses had
suggested that figure of $500,000 nor was the figure based on any expert
valuation.
[13] The evidence adduced by the husband at the trial was that the ship was at the
time insured for $550,000 but that it was then worth only $400,000. The wife gave
two values. At trial she alleged on one occasion that the ship was valued $700,000
and on another occasion she suggested that it was worth $600,000.
[14] Bearing in mind that the likelihood was always that Mr. Stonich would pay out Mrs.
Stonich for her share, each spouse naturally had an interest to serve in suggesting
a value that would give that spouse some relative advantage. The trial Judge took
the view that neither of them could accurately be relied upon. The Judge had
before him a range in value provided by the parties as well as the insured value of
the ship. In light of his assessment of the evidence the learned Judge was entitled
to ascribe the value that he did if he considered that value to be fair and
reasonable. He may well have taken the insured value and reduced it somewhat to
take account of some depreciation occurring subsequent to the time that value
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was given to the insurers. Mrs. Stonich does not challenge the $500,000 value and
I hardly see how Mr. Stonich, who insured the ship for $550,000, can properly
complain. I find no merit in this ground of appeal.
[15] As regards the value of the investments in United Bank and CDP1, the husband
also complains to this Court that, because those investments are subject to market
fluctuations, the trial Judge erred in placing a definitive value of $105,000 on them.
Curiously enough it was Mr. Stonich himself who suggested this figure to the
Judge. When he did so his suggestion was unqualified.
[16] The same circumstances arise with respect to the $70,000 value placed on the
condominium. Prior to the hearing of the appeal, counsel for Mr. Stonich sought to
adduce fresh evidence to show that the condominium had since been sold and the
realized proceeds were only $55,000. The Court disallowed the application to
introduce this fresh evidence because we were of the view that, at the material
time, Mr. Stonich neglected fully and frankly to disclose all his knowledge about
this asset. Indeed, the transcript reveals that the Court below was only made
aware of the acquisition of this asset in a quite accidental manner. In the
circumstances Mr. Stonich is stuck with the $70,000 valuation which he gave on
affidavit and which at the time was also not qualified by him in any manner.
[17] The wife does not complain about the $500,000 value placed on the Rendezvous
Cay by the Judge. Nor did she take issue, either at the Court below or during the
appeal, with the values of $105,000 and $70,000 respectively for the other two
assets. At all material times the husband was in control of all three assets. It was
his obligation to obtain and present at the hearing either professional valuations of
them or cogent evidence to support the view that the respective values were
subject to significant fluctuation over time. He neglected so to do. It is my view that
in all the circumstances he cannot now be heard to complain about the values
adopted by the Judge since the Court relied on Mr. Stonich’s own unqualified
evidence as to those values.
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Payments made to the wife between the separation and the hearing
[18] Counsel for Mr. Stonich submits that the Judge erred when he refused to give the
husband credit for various sums of money that were made available to the wife
between the period April 2001 and June 2002 after the breakdown of the marriage.
[19] In an affidavit filed on 21st June, 2002, Mrs. Stonich acknowledged that her
husband had written her a cheque for $20,000 when she left the boat in April,
2001. She also admitted liquidating a brokerage account in her name of roughly
$31,000. She stated that she and Mr. Stonich shared a joint tax refund of
approximately $24,000 in the year 2000 and that each received cheques from
Morgan Stanley for $50,000 in 2002. She also drew cheques on their joint
checking account to pay rent, groceries and for household supplies and she made
credit card charges of $30,841 to pay for legal fees in Florida and miscellaneous
personal expenses.
[20] Mr. Stonich produced a document drawn up by him evincing monthly living
expenses of $3,300. Apart from this however, the trial Court did not have the
benefit of a similarly candid account from him of the actual expenses incurred by
him after the break-up.
[21] Upon the specific request of counsel for the husband, the learned trial Judge,
Matthew, J., stated that in making his award he had taken into account all these
sums that were made available to the wife. I see no reason whatsoever to take the
view that the Judge had wrongly done so. It has to be borne in mind that, upon the
breakdown of the marriage, Mrs. Stonich, a lady who by then was accustomed to a
high standard of living, left with nothing. She had neither a home nor employment.
Throughout this time Mr. Stonich continued his life of leisure in possession of the
couple’s luxury yacht. The Judge may well have concluded that the sums paid by
Mr. Stonich to his wife were in lieu of maintenance pending suit.
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The Rendezvous Cay
[22] Mrs. Stonich is aggrieved at the decision that she should be awarded only a 30%
share in Rendezvous Cay. Mr. Stonich argues that his wife’s share in the yacht
should be significantly less than 30%. This latter submission is premised on the
circumstances in which the house in Winnetka was acquired.
[23] Counsel for Mr. Stonich submitted to the following effect. The wife’s contribution to
the acquisition of the Winnetka matrimonial home was only $15,000 or 2.4% of the
purchase price. There was no express agreement between the parties to suggest
that the wife should have any share in the house that was greater than the extent
of her contribution to its acquisition. The Court should infer that the only probable
common understanding was that their respective interests in the house would be
dependent upon their respective contributions. The yacht virtually took the place of
the home. The beneficial interests in the yacht should therefore mirror what would
have been the beneficial interests in the house. The cases of Stoutt v Stoutt 1
and Pettitt v Pettitt2 were cited in support of these propositions.
[24] I cannot agree with counsel’s submission. I make no comment as to how the Court
might have determined the respective beneficial interests in the house if the
occasion for so doing had arisen. However, the purchase of the yacht by a
company in which each spouse had an equal share appears to me highly
indicative of the intention of the parties as to the ownership in that vessel. There is
no question that both the legal and beneficial ownership in the yacht vested in the
parties in equal shares. I therefore agree that Mrs. Stonich should be entitled to a
half share in Rendezvous Cay valued by the Court at $500,000 and I so order.
1 British Virgin Islands Civil Appeal No. 10 of 1994 (unreported)
2 (1969) 2 A.E.R. 385, 406
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The Trust Account
[25] The trust account is the most important asset of the couple. It has a fluctuating
balance. Its value as at 28th February, 2002 was almost $2.2million. Mrs. Stonich
is dissatisfied that she was awarded only 30% of the value. She urges this Court to
increase her entitlement to 50%. In order properly to consider the matter, it is
helpful to revisit the reasoning of the learned trial Judge.
[26] The Judge looked at sections 23 through 26 of the Matrimonial Proceedings and
Property Act (MPPA) and enumerated the various factors to which the Court was
obliged to pay regard. The learned Judge stated at paragraphs 24 and 59
respectively of the judgment:
“……it cannot be disputed that the [husband] earned all the assets. The
[wife] is entitled to a share for the contribution she made to the marriage
which the [husband] admits, in accordance with the provisions of the
Matrimonial Proceedings and Property Act”.
“By far the greater contribution to the welfare of the family has been made
by the [husband]. He provided all the assets which included pre-marital
assets and an inheritance of over a quarter million dollars from his
deceased mother. I am not convinced that there was any partnership
agreement between the parties. And I cannot discern any intention that
the parties should have an equal interest in the matrimonial assets”.
[27] One of the useful features of the MPPA is that it gives the Court a broad discretion
in apportioning assets built up over the course of the marriage. The ultimate and
overriding objective that the Court must strive at is fairness. In apportioning the
assets, the Court must consider the various factors the legislature has asked it to
take into account and then arrive at a solution that is, in all the circumstances, fair
to the parties. The wide discretion available permits the Court the ability to
interpret fairness in light of prevailing societal standards.
[28] In assessing the respective contributions of husband and wife, there was a time
when one regarded the fruits of the money-earner to be more valuable, more
important that the childrearing and homemaking responsibilities of a wife and
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mother. If the man was reasonably successful at his job and the family fortunes
were vastly improved, his contribution was almost automatically treated as being
greater than that of the wife who remained at home. Ironically, if the man’s
business failed, whether through bad luck or ineptitude, the wife invariably shared
equally the couple’s hard times.
[29] The Court should not pay too much regard to a contribution merely because it is
easily quantifiable in hard currency and too little to a contribution that is less
measurable but equally important to the family structure. In the vast majority of
cases where these two types of contribution are in issue – that of a homemaker
and that of an income earner, it is the wife who has stayed at home while the
husband has performed the role of breadwinner. There is therefore an element of
gender discrimination in degrading the woman’s role in the home.
[30] The MPPA does not rank in any order of preference any of the factors to which
Courts are obliged to have regard. It is for the Court to consider all of them. In one
case, the facts and circumstances may call for a particular factor to be given
special importance. In another case another factor may assume most significance.
The point is that there is no basis in law for Courts to regard always as decisive or
of special importance the financial contribution made by a party to the welfare of
the family. In the normal course of things any such contribution should be weighed
in the same scales as a contribution of a different nature. Spouses may choose to
perform different roles in a marriage. If the husband’s skill, initiative, hard work and
drive yield handsome financial rewards, it is entirely unfair to regard those rewards
as being any greater in value than those of the wife who might have employed
equal skill, initiative and dedication at home bringing up the children and keeping a
stable household. In such a case I see no reason why the assets acquired during
the marriage ought not to be equally divided. As Lord Nicholls states, each in their
different spheres contributed equally to the family and, as a general guide, equality
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in the distribution of matrimonial assets should be departed from only if, and to the
extent that, there is good reason for it 3.
[31] What then are the concrete facts of this case? The husband is currently 55 years
of age. The wife is 52. They are apparently both in good health. This was not a
particularly long marriage. But it can’t be said that it was a short one either. It
lasted some 13½ years. A fair amount of the assets that found their way into the
trust account was either inherited by Mr. Stonich from his deceased mother or had
been accumulated by him before the marriage. It is true to say however that most
of the assets in the trust fund were acquired in the course of the marriage. I have
already referred to Mrs. Stonich’s role at home raising difficult children. Even the
husband grudgingly admitted the value of her contribution. In a case of this nature
I would be particularly mindful of the standard of living enjoyed by the parties
before the marriage.
[32] In all these circumstances I agree with the learned Judge that Mrs. Stonich should
not receive 50% of the trust account. But equally, I find 30% to be somewhat on
the low side. I believe not enough consideration was given to her role in the home.
I would increase her award under this head to 40%. I believe such an award to be
more in line with the modern authorities of White v White and Lambert v
Lambert4 and I would respectfully rely upon them in support of this order.
[33] I would therefore allow this appeal and vary the Judge’s order to the extent that
Mrs. Stonich should be entitled to $250,000 representing her one half share of the
Rendezvous Cay and that she should also receive 40% of the trust account. I
would order each party to bear his/her own costs.
Adrian Saunders
Justice of Appeal
I concur. Albert Redhead
Justice of Appeal
3 See White vs. White (2001) 1 A.C. 596
4 (2002) EWCA Civ 1685
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[34] GEORGES, J.A.[AG.]: I have had the privilege of reading the draft judgment of
Saunders J.A. and whilst I appreciate the rationale of his judgment as set out at
paragraphs 28, 29 and 30 in respect of sections 23 through 26 of the Matrimonial
Proceedings and Property Act (MPPA), I find myself unable to agree with his
conclusion (at paragraph 32) that the Judge’s award of 30% in the trust account to
Mrs. Stonich was ‘somewhat on the low side’ and he accordingly increased that
head to 40%; having himself acknowledged at paragraph 31 that ‘a substantial
amount of the assets that found their way into the trust account was either
inherited by Mr. Stonich from his deceased mother or had been accumulated by
him before the marriage.’
[35] It is my considered view that the award of 30% of the trust account to Mrs. Stonich
by the learned trial Judge is right and just and fair in the light of those factors. And
all the more so as the marriage itself according to Justice Saunders at paragraph
31 was “not a particularly long marriage.”
[36] I now turn to the division of the luxury yacht “Rendezvous Cay” to which the trial
Judge ascribed a value of $500,000.00 of which Mrs. Stonich was awarded 30%.
That asset represented the proceeds of sale of the matrimonial home in Winnetka
Illinois which the parties had purchased shortly after their marriage for
$615,000.00. Mrs. Stonich provided $15,000.00 towards the purchase price from
the sale of her own home and Mr. Stonich’s contribution was $250,000.00.
[37] Part of the agreement was that Mrs. Stonich would pay the mortgage on the new
home but she in fact never did so. The mortgage on the new home which was in
the joint names of the parties was paid by Mr. Stonich. Mrs. Stonich ceased work
some months after the house was acquired to look after Mr. Stonich’s two adopted
children by a previous marriage and her own child by a former marriage.
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[38] Learned Counsel for Mr. Stonich contended that in the absence of an agreement
between the parties that the wife’s share in the house should be not greater than
the extent of her contribution to its acquisition the only probable common
understanding being that their respective interests would be dependent upon their
respective contributions relying on the case of ‘Pettit v Pettit.’
[39] Like Saunders J.A. I beg to differ especially having regard to the factors
enumerated at Sections 23 through 26 of the MPPA. I do not however agree (as
Saunders J. A. decided) that the fact that the purchase of the yacht by a company
in which each spouse had an equal share (i.e one share) is necessarily
determinative of the ownership in the vessel and that Mrs. Stonich should ipso
facto be entitled to a half share in it as valued by the Court.
[40] Rather I am of the view that whilst it is recognized, as the learned Judge found,
that ‘by far the greater contribution to the (material) welfare of the family has been
made by the husband’, Mrs. Stonich over the years made an invaluable
contribution in the looking after and upbringing of Mr. Stonich’s children as well as
her own, the former of which proved particularly difficult from all accounts.
[41] For my part I would have awarded Mrs. Stonich one third of the value of
Rendezvous Cay in lieu of the one half share which she seeks and which Justice
Saunders in fact awarded her, the latter amount being in my view somewhat over
generous having regard to all the circumstances. However inasmuch as my
apportionment does not significantly differ from that of the Court below I would not
interfere with it – de minimis non curat lex.
Ephraim Georges
Justice of Appeal [Ag.]