Nidhan v Nidhan
| Jurisdiction | Trinidad & Tobago |
| Judge | Ramkerrysingh, J. |
| Judgment Date | 18 December 2009 |
| Neutral Citation | TT 2009 HC 316 |
| Docket Number | FH No. 493 of 2007 |
| Court | High Court (Trinidad and Tobago) |
| Date | 18 December 2009 |
High Court
Ramkerrysingh, J.
FH No. 493 of 2007
Ms. Devi Ramnarine for the petitioner.
Mrs. Indra Ramoutar-Liverpool for the respondent.
Family law - Matrimonial property division.
Clive and Sherry Nidhan had been married for 25 years before Mrs. Nidhan (“the Wife”) filed her divorce petition on 16th March 2007, based on her husband's intolerable behaviour. The Wife filed injunction proceedings contemporaneously with the petition, by which she sought, among other things, an order for avoidance of disposition of the assets and an exclusion order. Several ex-parte orders were made on the same day, which, in large measure, prevented Mr. Nidhan (“the Husband”) from disposing of, or in any way, interfering with the assets. The order also excluded him from the former matrimonial home situate at 52 Wittet Drive, Central Park, Balmain, Couva (“the matrimonial home”). The Valuation Report described the property as located at 17 Wittett Drive, but I am satisfied that this was an incorrect address and that the report submitted referred to the matrimonial home. Certainly neither party raised an objection to the information contained in the report or the pictures therein. Orders were also made for full disclosure by the Husband of all the assets and directions were given for him to respond to the application for injunctive relief. Unsurprisingly, as the matter proceeded, the Husband filed applications to access a number of the accounts in order to meet his daily needs and the appropriate orders were made, releasing funds at the appropriate times.
The parties owned a clothing store, Vanelle Fashion Outlet, which supplied lathes' apparel and accessories and at a very early stage of the proceedings (29th March 2007), the Wife was ordered to hand over to the Husband, the Sale Books relative to the business, but this direction was not complied with until the 18th May 2009, when the trial was underway. I mention this fact at this stage because I am of the view that this reluctance to co-operate by the Wife was the beginning of a campaign by her to deliberately conceal the true value and worth of the business. This rather disturbing development I think, showed the Wife in an unfavourable light and laid the foundation for me to make certain findings of fact as will be revealed. I shall return to this crucial issue later in the judgment.
The marriage produced two girls, Vanessa who was 24 at the time of the filing of the petition and 21 year old Vachelle, then, a full-time student at the School of Accounting and Management where she was reading for a degree in Marketing Management. This was a three-year programme she was scheduled to complete in September 2008, so that by the time of the trial she had already graduated and was in employed. It seems that Vachelle excelled in her examinations, since by his affidavit filed on 25th August 2008, the Husband indicated that the child had been working at her alma mater as a lecturer and was in receipt of a salary of $12,000 per month, a claim which remained unchallenged by the Wife.
Throughout the marriage the Husband worked and maintained the family and the household, while the Wife remained at home and took care of the children and performed other household responsibilities. Sometime in 2003, when the children had grown and no longer needed her constant care, the Wife was desirous of going into business, selling women's clothing and the Husband agreed to finance the project. The evidence is that from the initial stages, both parties managed the business, although the day-to-day affairs were handled by the Wife. The Husband continued to support the home financially, while at the same time shouldering the financial burdens of the store. When business started to pick up and able to generate a profit, both parties agree that some of the household needs and those of the children were met from the business proceeds, but the greater portion of the expenses to re-stock sale items and pay credit card bills and other miscellaneous expenses, continued to be borne by the Husband. Over the course of the life of the business, the Husband alleges that he took several loans, both personal in nature and from financial institutions in order to meet some of the cost overruns of the business. The shop continued its affairs and the parties conducted their lives uneventfully, until the Wife filed her petition.
An event that played a significant role in the outcome of this matter occurred in March 2008, during the pendency of these proceedings, and indeed around the time when the parties had agreed to meet for settlement discussions, when the Wife, in the absence of consultation, consent or knowledge of the Husband or his attorney, sold the business and unilaterally used the sale proceeds to allegedly meet certain debts she claimed to have incurred, after the breakdown of the marriage. This rather unfortunate event, to my mind put the Wife in a precarious position which had a major adverse effect on her credibility. This too, is a matter to which I shall refer later, but I think it is important enough to feature at this introductory stage.
Long before the trial, that is to say by November 2007 all the injunctive orders had been discharged save for the exclusion order and an order was made for Vachelle's maintenance which was to continue until the completion of her degree programme in March 2008. Thereafter, the matter was punctuated by efforts on a number of occasions, to facilitate settlement talks, either through mediation or via attorneys. Regrettably, all attempts proved unfruitful and the case proceeded to trial. The trial was conducted over a period of five days and although the matter was generally uncomplicated, the documentary evidence was voluminous and several witnesses relative to the Husband's accounts were summoned to give and/or produce documents verifying his liquid assets, thus making the trial bundles far more extensive than required. I have been referred to a great number of the documents, and I have taken all of them into account in reaching my decision.
I note with concern the forensic approach adopted by the parties, particularly by the Wife and the recourse to cross-examination on an almost item-by-item basis relative to the history of various accounts and with respect to the activities of Vanelle. The skill with which, on both sides, all this effort was deployed was first class; whether the endeavour was really necessary is, perhaps another matter. But in venturing this observation I emphasise that I thoroughly understand that the application of the sharing principle may be considered sound justification for detailed accounting, but apart from this exercise not being very helpful to the court, this approach is to misinterpret the exercise in which the court is engaged, which is, a broad analysis in the application of its jurisdiction under the Matrimonial Proceedings and Property Act, rather than a detailed accounting exercise. While I appreciate that it is the role of the attorney to preserve his client's interest in these matters, I think that far too much emphasis is placed on dissecting parties' expenditure and discrediting the opposing side, (no doubt pursuant to the instructions of distrusting parties), than is necessary for the determination of the division of assets. In so doing, precious time is wasted and not enough emphasis is given to the factors relevant to the circumstances of the case that can truly help the court to define how assets are to be divided between parties. This approach only serves to prolong the trial process and escalate costs for both sides and the usefulness of the information gathered by this means is hardly worth the time, which I think could be better spent focussing on the legislative factors and other guidelines provided by the case authorities, that can help the court in making a proper determination of the division. It is my judgment that precious time is lost trying to point out the frailties of the parties rather than concentrate on the real issues.
The written submissions were also very lengthy and I commend attorneys on both sides for their valiant efforts throughout the proceedings and I praise their legal talents, but I rather think some of the excess could have been avoided. My comments are not to be viewed as a criticism, but merely as an explanation, that I propose only to deal with what I think really matters to the eventual outcome of this case, and if, by doing so, I do not make mention of much of what was submitted to me by way of arguments, please understand that it is not without deference to counsel, but in the interest of focussing on the issues. If I were to embark on a voyage that touches on each point raised in the submissions, I fear it would result in an unnecessarily lengthy judgment. However please be assured that I have given careful consideration to all the evidence and submissions in coming to my conclusions.
Parties should be encouraged to look beyond the distrust that naturally develops upon the breakdown of their relationship and avoid the mud-slinging that usually accompanies such distrust, particularly when assets are to be divided. They must be made aware too that a frantic picking apart of their matrimonial efforts over the years, in an attempt to enhance their role during the marriage, while at the same time diminishing or criticising the role of their partner, does not necessarily help their claim. Lawyers should take the time as soon as possible after their initial conference, to sit down with their clients and set realistic goals within the guidelines set by the Act and the landmark White v White and post-White cases that have now become part of our matrimonial landscape. The target goal of “fairness” should be the focal point of such...
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