Mohammed v Mohammed

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Rajnauth-Lee, J.A.
• Judgment Date: 25 March 2015
• Neutral Citation: TT 2015 CA 11
• Docket Number: Family Appeal 21 of 2013
• Date: 25 March 2015

Court of Appeal

Narine, J.A.; Rajnauth-Lee, J.A.; Mohammed, J.A.

Family Appeal 21 of 2013

Mohammed

and

Mohammed

Appearances:

Ms. Theresa Hadad instructed by Ms. Saira Lakhan for the appellant.

Ms. Lynette Seebaran-Suite instructed by Ms. Sydelle Johnson for the respondent.

Family Law - Matrimonial property division — Whether the trial judge properly considered section 27(1) Matrimonial Proceedings and Property Act matters — Whether the delay in filing for financial relief prejudiced the appellant or lulled him into believing all claims had been dealt with — Whether the judge had the power at the stage of trial to make an order for the sale of property outside of the sale of the matrimonial home — Appropriate date at which valuations were to be taken in applications for financial relief.

I agree with the reasons of Rajnauth-Lee J.A. and have nothing to add.

R. Narine

Justice of Appeal

I too agree and have nothing to add.

M. Mohammed Justice of Appeal

Rajnauth-Lee, J.A. :

1 The appellant and the respondent were married on the 28th June, 1997. In January 2001, the respondent moved out of the home that the parties shared and went to live with her mother. The respondent continued to reside at her mother's home until the trial. During the marriage, the parties had two sons, namely, Brandon born on the 3'd November, 1997, and Nicholas born on the 18th September, 2000. On the 26th February, 2007, the appellant filed a petition for divorce on the fact of five years' separation. On the 13th December, 2007, the respondent filed an application for financial relief. An amended application for financial relief was filed by the respondent on the 18th January, 2010 seeking inter alia an interest in the appellant's business known as Platinum Financial System and Services Limited (“PFSSL”) and a settlement or transfer of the following properties:

• • No. 19 Bharath Street, Pasea Village, Tunapuna (“the Pasea property”)

• • No. 22 Bazalon Street, Tunapuna (“the Tunapuna property”)

• • No. 7 Sampath Street, Off First Street, Five Rivers, Arouca (“the Arouca property”).

2 The trial judge refused to allow the inclusion of the relief in respect of PFSSL. [See paragraph 10 of the trial judge's judgment. In addition to the business of PFSSL, the trial judge found that the appellant had formed three (3) other businesses, that is to say, Neil A. Mohammed & Associates, Platinum Financial Holdings Limited and Brannich Investments Limited subsequent to the breakdown of the marriage] As to the properties mentioned above, the Pasea property comprised a two-storey apartment building and a two-storey annex. There were 4 apartments in the main building. The appellant kept an office and had added commercial space. A 2009 valuation put the value of the Pasea property at $1,800,000.00. The Pasea property was purchased during the marriage in 1998 for $400,000.00. The property was purchased by way of mortgage taken out in the name of the appellant. As at the date of separation, the balance owing under the mortgage was $276,354.12. As to the Tunapuna property, this was a 6 apartment building purchased in 2006 in the name of Brannich Investments Limited. The Tunapuna property was valued in 2009 at $950,000.00. As to the Arouca property, it was also purchased during the marriage in 1999 for either $250,000.00 or $275,000.00. It comprised four apartments and was valued in 2009 for $800,000.00. The appellant alleged that he paid the sum of $1,400.00 bi-weekly in respect of a mortgage. At the time of the trial before the judge, it was undisputed that the balances outstanding on the mortgages for the Pasea property and the Arouca property were negligible. The trial judge also took into account other assets and financial resources of the parties.

3 The trial judge made several findings of fact and d considered several matters. [See paragraph 159 of the trial judge's judgment] He found inter alia that both parties failed to disclose their true financial positions to the court. He also found that both parties contributed to the welfare of the family with the respondent making the greater non-financial contributions and the appellant making the lion's share of the financial contributions. He further found that the appellant was responsible for the acquisition of the Pasea property, the Tunapuna property and the Arouca property. He found that it was the appellant who furnished the houses and paid the various mortgages and insurances. The trial judge also considered that the respondent possessed property of her own which she had managed to build up over the years. [The respondent had acquired a parcel of land in Roystonia, Couva in 1990 prior to the marriage. The trial judge found that the Roystonia property was acquired and built up by the respondent without any financial assistance from the appellant. The trial judge did not consider it a matrimonial asset for division by the parties, but took it into account as part of the property and financial resources of the respondent. The property was valued at $215,000.00 in 2009, and was unfinished according to the respondent] The trial judge also had regard to the fact that the respondent had waited for more than six (6) years to file an application for financial relief. The trial judge also bore in mind that the appellant had a new family to which he likely had financial obligations. He also considered that the appellant had wrongly removed the respondent as a director of PFSSL and that he had wrongly divested her of her share in PFSSL. There was no valuation for PFSSL before the trial judge. The judge also found that the marriage was a short one. He considered further that there was a continuing obligation on the appellant to contribute to suitable accommodation for the children of the family.

4 The trial judge made the following order:

• i. The Court declares that the respondent/Wife is entitled to a 50% share, title and interest in the former matrimonial home located at No. 19 Bharath Street, Pasea Village, Tunapuna and the petitioner/Husband is entitled to 50% therein.

• ii. The Court further declares that the respondent/Wife is entitled to a 40% share, title and interest in the property situate at No. 7 Sampath Street, Off First Street, Five Rivers, Arouca and the petitioner/Husband is entitled to 50% of same.

• iii. The petitioner/Husband shall pay to the respondent/Wife the lump sum $1,220,000.00 in full and final satisfaction of her claim, which said lump sum represents the respondent/Wife's share, title and interest in the equity of the properties located at No. 19 Bharath Street, Pasea Village, Tunapuna and No. 7 Sampath Street, Off First Street, Five Rivers, Arouca on or before 18th March, 2014.

• iv. In default of the petitioner/husband honouring the payment as ordered at paragraph (iii) hereinabove, the said properties situate at No. 19 Bharath Street, Pasea Village, Tunapuna and No. 7 Sampath Street, Off First Street, Five Rivers, Arouca respectively shall be sold by public auction before the doors of the Family Court and the net proceeds of sale (after deduction of the outstanding mortgage, if any, and the expenses of sale) be divided between the parties in accordance with their respective shares, title and interest in the said properties as declared in paragraphs (i) and (ii) above.

• v. In the event that there is to be a sale in accordance with this order, the respondent/Wife shall apply to this Court for directions as to the arrangements for the advertisement and conduct of the sale.

• vi. There shall be joint custody of the children of the family, namely, Brandon Mohammed and Nicholas Mohammed to both parties, with care and control to the respondent/Wife. The Husband shall have liberal telephone access to the said children and staying access on weekends. The children shall spend Father's Day with the Husband and Mother's Day with the Wife. The petitioner/Husband is entitled to half of all school vacations, Christmas Day as well as alternate Public Holidays with the said children.

• vii. The petitioner/husband shall pay the sum of $2000.00 per month in maintenance for each child of the family, namely Brandon Mohammed and Nicholas Mohammed and 1/2 of all major medical, dental and optical expenses until each child attains age 18 or completes tertiary education, whichever occurs later.

• viii. The petitioner/Husband shall pay to the respondent/Wife 40% of her costs incurred in pursuing this application for financial relief, to be taxed in default of agreement.

• ix. Liberty to apply.

5 The appellant appealed the trial judge's order but only in respect of paragraphs i to v. Accordingly, there was no appeal from the judge's order as it related to the children of the family. On the 16th December, 2014, we allowed the appeal, but only in respect of the relief granted at paragraph (iv) of the trial judge's order, that is, as to the order for sale. We gave brief reasons for our decision, and indicated that we would gave full reasons in due course.

ISSUES FOR DETERMINATION

6 The issues which arose for our consideration were as follows:

• i. Whether the trial judge's order in favour of the respondent was excessive;

• ii. Whether the trial judge failed to consider properly the matters set out in section 27(1) of the Matrimonial Proceedings and Property Act Chap. 45:51 (“the MPPA”), and in particular paragraphs (a), (b) and (d) having regard to the short duration of the marriage and the respondent's delay in seeking financial relief;

• iii. Whether the trial judge was wrong in law to order the sale of the property in default of payment by the appellant of the sums ordered to be paid to the respondent; and

• iv. What was the appropriate date at which valuations were to be taken.

APPELLATE ROLE

7 I am mindful that the issues arising in this appeal touch upon the exercise of the trial judge's discretion after considering and weighing...