Rampersad v Rampersad
| Jurisdiction | Trinidad & Tobago |
| Judge | Ramkerrysingh, J. |
| Judgment Date | 27 January 2009 |
| Neutral Citation | TT 2009 HC 14 |
| Docket Number | FH 1083 of 2006 |
| Court | High Court (Trinidad and Tobago) |
| Date | 27 January 2009 |
High Court
Ramkerrysingh, J.
FH 1083 of 2006
Ms. Leslie-Ann Lucky-Samaroo for the petitioner.
Ms. Mandavi Tewary instructed by Ms. Hilda Goodial for the respondent.
Family Law - Divorce — Division of matrimonial assets — Matrimonial Proceedings and Property Act — Matrimonial home and business only partially in husband's name but treated as belonging solely to him by husband's parents — Wife entitled to 1/2 share in home and 10% share in business — Husband to be solely responsible for children's maintenance.
In this judgment I shall refer to the husband and the wife as “Anil” and “Cassandra” respectively. The case is deceptively simple, in that the facts are not exceptional, but certain extenuating circumstances, which will be revealed later in the judgment, make the division of the assets somewhat challenging. Apart from the former matrimonial home which is comprised of a living space on the first floor of property situate at 190 Eastern Main Road Barataria, the other assets that fall for consideration are a machine shop business, and the combined residential/commercial building sitting on the prime piece of real estate. The valuator was asked to value each “asset” (i.e. the living accommodation and the business premises) separately so that each could be treated in its own right. My focus in this matter after all is said and done, is to ensure that both parties are treated fairly. Most attorneys who specialise in this area of law are by now all too familiar with the White v. White and post-White cases, so I will refrain from repeating lengthy quotations and only where necessary make mention of text relevant to this case.
When Anil and Cassandra met, he was working in his father's auto parts and machine shop then registered as “Mack Rampersad Auto Spares and Accessories Limited”, along with his sister and brother, Praveen and Ravi. Cassandra was at the time living with her mother in New Jersey, in the United States, where she held a job, albeit illegally, (her vacation visa having expired) as a Registrar in a hospital. The parties married in America on the 15th of June 1991 and on their return to Trinidad re-married under Hindu rites on the 6'h of July the same year, whereupon they immediately moved into the matrimonial home, a large five-bedroomed apartment above the auto/machine shop which was then managed by Anil and his parents Bissoon and Indra Rampersad. Anil has owned the property since lie was 18 years old, jointly with his parents since 1987 when they became seised of it as joint tenants. The marriage lasted 11 years – the parties having separated in 2002 – and produced three children: Vinai, Kiran and Regan, who are now 16, 14 and 8 years old respectively. Vinai and Kiran now attend St Mary's College in Port of Spain and Regan is still at St Andrews Private School in Maraval, the primary school alma mater of the two older children. Anil expressed his unhappiness with St. Andrews saying that the school's population, curriculum and general outlook did not suit the boys' background and the family's ideals. The school served the two older boys in good stead and while Regan seems to have some learning difficulties there is no reason to doubt that the same quality education would not be imparted to this child. From all the reports he seems settled and better adjusted now and is coping with his studies. I do not think that it is a good idea to move him at this stage. Any move at this time might serve as a set-back in light of his delicate position. I do not find that there is any merit in Anil's objection. However, the choice of schooling is something to bear in mind as it gives an idea of the standard of living the children have been exposed to.
Shortly after their return to Trinidad in 1991, Cassandra says that she started to “help out” in the business. Her assistance initially took the form of cashier, thereafter expanding to include bookkeeping, accounting, banking, ordering parts and general management. Anil's parents were still heavily involved in the business at this time too; his mother also performed the tasks of cashier and banking and the father busied himself with general management and day-to-day running of the business. There is some contention that Cassandra inveigled her way into the business, gradually edging Mrs. Rampersad senior from the cash register and taking it over completely. Cassandra however said that at the time, her mother-in-law was in and out of the shop and there was never any move on her, Cassandra's part to rob Mrs. Rampersad of her place in the business. Indeed, Cassandra contends that her in-laws were happy to hand over the reins of management to Anil and Indra particularly, welcomed her involvement as well, since it was all part of their ultimate plan to pass the shop over to Anil.
During and after the births of the children, Cassandra continued to work in the business, sharing this responsibility with child care and housekeeping duties. As the children grew older and less dependant on her, she was able to spend more time in the business, particularly during school hours. She was also responsible for transporting the children to and from their various activities, helping out with homework and such like.
Sometime around 2002, according to Cassandra, her father-in-law decided that he and his wife would relieve themselves of active responsibilities of running the business and ease into semi-retirement, by handing over the management to his children. With that in mind he split the business into two separate ventures (1) the machine shop which he transferred to Anil and (2) the auto parts shop which he handed over Praveen. While not disputing that the business was divided as just described, And asserts that the reason for so doing was not in preparation of his parents' retirement, but rather because they wanted to downsize operations in order to avoid attracting potential kidnappers, which was so prevalent during this period. In any event Mack Rampersad Auto Spares and Accessories was transformed into “Anil's Machine Shop” registered in the sole name of Anil Rampersad and “American Auto Parts Connection” which was registered in Praveen's name, but run and managed by Ravi until Praveen came of age.
To support her view that Mr. and Mrs. Rampersad were desirous of retiring from the business, Cassandra exhibited an undated, unsigned document (CR2 attached to Affidavit – 28/05/07) purporting to divided the business between Anil and Praveen children, while simultaneously rendering parental advice on the manner in which they should carry on management of their newly formed companies. They also used this forum to pass on to their children some of the knowledge, experience and expertise that they would have gained over the years. Anil did not challenge the document per se, nor did he dispute that it came from his parents. Bissoon and Indra themselves never denied that they were the authors of the handwritten note. Anil did however insist, and it is clear, that the document did not pass any legal title to the children, and as he said in his July 2007 Affidavit at paragraph 11, it “was merely advisory.” What the document also does, is to indicate in clear terms the intentions of the parents as to how they wanted the business managed after they were gone. I think Mr. and Mrs. Rampersad wanted to see the business set up and divided amicably while they were still alive and while they were still around to advise and counsel their children. In Anil's own words (para. 11 – Affidavit – 13/07/07) “… my father always made it clear that whatever property he owned would be distributed through his will, but he would allow us to manage various aspects of his business and retain the major share of the income derived therefrom.”
After the breakdown of the marriage Cassandra became more involved in the business, at first assisting Indra with the cashing, which was done exclusively by her before Cassandra came into the picture. She then started doing the banking and bookkeeping. It is Anus contention that soon these duties were performed more and more by Cassandra until she took them over altogether, to the exclusion of Mrs. Rampersad. It is Cassandra's view, on the other hand, that her enlarged involvement in Anil's Machine Shop was part of a natural progression towards the intended ultimate transfer of it by the Rampersads to Anil. Indeed she said that her involvement “…was done with the approval of the respondent's parents as they had both worked together for many years in their various businesses. The Respondent's mother in particular encouraged my involvement in the business” (para. 10 Affidavit – 28/05/07) On a balance of probabilities, Cassandra's version of the facts seems more credible. It is doubtful whether Indra was at all qualified to do the general accounting, but it is not disputed that Cassandra, apart from having some passes at Caribbean Examination Council (CXC) level, she pursued a course in accounting. It is only reasonable to assume therefore that she would be more adept at the accounting procedures than Indra, and therefore would be counted upon to perform these duties.
For the next five years or so right up to the time of filing of these proceedings Cassandra was still heavily involved in the shop, but by this time there was much discord between the parties, with Anil accusing Cassandra of embezzling funds and attempting to deprive his parents of running their business. At this point let me say that I find it rather unfortunate that these two elderly people, having worked diligently all their lives, should in their twilight years be drawn into this litigation. Through their attorney Mr. Dewlath, they put forward their position (with respect to legal ownership of the premises) and brief consideration was given as to whether...
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