Williams v Williams
| Jurisdiction | Trinidad & Tobago |
| Judge | Mohammed, J. |
| Judgment Date | 24 June 2015 |
| Neutral Citation | TT 2015 HC 203 |
| Docket Number | FH01086 of 2011 |
| Court | High Court (Trinidad and Tobago) |
| Date | 24 June 2015 |
High Court
Mohammed, J.
FH01086 of 2011
Mr. Nicholas Campbell and Ms. Joan Byrne for the petitioner/respondent
Ms. Aquila Njeri Smart for the respondent/applicant
Family Law - Husband and wife — Application by the applicant husband to have the court correct an alleged error in a judgment order previously given by the court — Whether the court made an error in the final calculation of the wife's 30% interest in the matrimonial home as reflected in the 2013 judgment order — Whether any error was of such a nature to enable the court to correct it in accordance with Part 30.14 of the Family Proceedings Rules.
This decision concerns an application made by the applicant/husband which sought to have this court correct an alleged error in a judgment order previously given by this court. The previous judgment order dealt with the issue of financial relief for the respondent/wife upon divorce of the parties.
The judgment order which forms the subject of this application was delivered on 18 September 2013 by this court. The relevant part of the judgment order which is now in issue directed as follows:
“84. Accordingly, the ORDER of the Court is as follows:
1. This Court declares that the petitioner/Wife is entitled to a 30% share, title and interest in the matrimonial premises situate at No. 13 Fondes Amandes Avenue, St. Ann's and the Husband is entitled to 70%.
2. The respondent/Husband shall pay to the Wife a lump sum of 567,147.00 TTD which said lump sum represents the Wife's share, title and interest in the said matrimonial premises on or before the December 31, 2013.”
For ease of reference, that part of the judgment order which is now in issue, shall hereinafter be referred to as the ‘2013 judgment order’.
Near nine months after the 2013 judgment order was made, on 15 May 2014 the applicant/husband filed a notice of application supported by an affidavit of his attorney-at-law, Ms. Aqila Njeri Smart. By that notice of application the applicant/husband sought, pursuant to Part 30.14 of the Family Proceedings Rules 1998 (FPR), to correct an alleged error arising in the 2013 judgment order. Thus, the order sought by the applicant/husband in the instant application was that-
“(a) the Judgment made by [this court] dated the 18th day of September, 2013 be amended at paragraph 84(1) by including the words “EQUITY IN THe…” so as to read:
“THIS COURT DECLARES THAT THE PETITIONER/WIFE IS ENTITLED TO A 30% SHARE, TITLE AND INTEREST IN THE EQUITY IN THE MATRIMONIAL PREMISES SITUATE AT NO. 13 FONDES AMANDES AVENUE, ST. ANN'S AND THE HUSBAND IS ENTITLED TO 70%.”
(b) the said Judgment be accordingly amended at paragraph 84(2) by deleting the sum of 567,147.00 TTD and inserting thereof the sum of 429,303.09 TTD in addition to the words
“…LESS THE PRESENT BALANCE OF THE MORTGAGE DUE AND OWING IN RESPECT OF THE SAME…” so as to read”
“THE RESPONDENT/HUSBAND SHALL PAY TO THE WIFE A LUMP SUM OF 429,303.09 TTD WHICH SAID LUMP SUM REPRESENTS THE WIFE'S SHARE, TITLE AND INTEREST IN THE SAID MATRIMONIAL PREMISES LESS THE PRESENT BALANCE OF THE MORTGAGE DUE AND OWING IN RESPECT OF SAME ON OR BEFORE THE DECEMBER 31, 2013.”
(c) the petitioner/respondent releases the judgment registered against the respondent/applicant;
(d) costs;
(e) further and/or other relief as applicable. “(Emphasis added]
The instant application first came up for hearing before the Honourable Madam Justice Paul on 9 July 2014 and having regard to the nature of the application, particularly the fact that the application pertained to a previous judgment made by this court, Paul J ordered that the instant application be transferred to and heard by this court.
Accordingly, on 5 November 2014 a directions hearing was held before this court, at which an order was made for both parties to file and exchange written submissions. Both the applicant and the respondent filed their written submissions on 28 November 2014.
Having considered the written submissions of the applicant and the respondent, I am of the view that there is no doubt, in light of the context, wording and whole of this court's judgment dated 18 September 2013, that this court was fully conscientious and abreast of the fact that at the time of the 2013 judgment order there remained an outstanding mortgage against the matrimonial property. The existence of the mortgage was indeed taken into consideration, among other considerations, when this court decided to award the respondent/wife the lower 30% share, title and interest in the matrimonial home, as compared to the larger 70% which was awarded to the applicant/husband taking into consideration his equity of redemption in the matrimonial property.
In the premises, there was neither a clerical mistake nor any error arising from any accidental slip or omission which was made in the 2013 judgment order. It follows that there is no correction for this court to make to the judgment order pursuant to Part 30.14 of the FPR. Therefore, the applicant/husband's application made pursuant to Part 30.14 of the FPR has failed and is hereby dismissed. The applicant/husband remains under a legal obligation to adhere to the 2013 judgment order of this court, in addition to which the applicant/husband shall pay to the respondent/wife her costs to be taxed of the instant application in default of agreement certified fit for advocate attorney-at-law.
The reason for my decision hereinafter follows.
The facts relevant to the instant application are strictly limited to the circumstances in which the parties’ interests in the matrimonial home came to be divided by this court in the manner stated in the 2013 judgment order. Therefore, for the purpose of the instant application I shall only rehearse those limited facts.
The applicant/husband and respondent/wife got married on 8 April 2006. Divorce proceedings were initiated by the respondent/wife on 18 May 2011. For the duration of their marriage they lived at the matrimonial home situate at No. 13 Fondes Amandes Avenue, St. Ann's. During that time, the matrimonial home was owned solely by the applicant/husband and was in fact brought into the home as part of his settlement from his prior marriage.
As detailed at paragraph 39 of this court's previous judgment dated 18 September 2013, which dealt with the issue of financial relief upon the divorce of the parties, the evidence before the court was that the applicant/husband received the matrimonial home as part of his settlement from his prior marriage and claimed that he and his first ex-wife had verbally agreed to transfer a half share of the interest in the property to their daughters Lindsey and Ariel upon completion of the payment of the mortgage. The respondent/wife, on the other hand, claimed that though she was present at the time of the transfer of the property to the applicant/husband, she had no knowledge of that alleged agreement between the applicant/husband and his first ex-wife. The respondent/wife also claimed to have made substantial contributions to the renovations of the matrimonial home, the extent of which the applicant/husband disputed. Of uppermost relevance to the instant application, it was also noted at paragraph 39 of this court's previous 2013 judgment that at the time that the applicant/husband filed his Form 9 on 14 October 2011, the applicant/husband indicated that approximately 525,000.00 remained owing on the mortgage.
Having set out the relevant facts and evidence, in light of the evidence that was before the court in relation to the respondent/wife's application for financial relief, I then reviewed and applied the principles of law as expressed at sections 24 and 27 of the Matrimonial Proceedings and Property Act Chap. 45:51 as well as the Court of Appeal's guidance in the case of Persad v Persad Civ. App. No. 130 of 2008. Then, at paragraph 78 to 80 of this court's previous judgment dated 18 September 2013, I summarised my considerations and concluded by giving my decision in respect of how the applicant/husband and respondent/wife's interest in the matrimonial home was to be divided upon their divorce. I concluded as follows:
“78. The main asset for division between the parties is the matrimonial home. The home at No.13 Fondes Amandes Avenue, St. Ann's is in the Husband's sole name and was brought into the marriage by him. It served as the matrimonial home for the duration of the marriage. I do not find the marriage to have been a long one, having lasted 5 years. One child was born of the union, Lee Anthony Williams. The matrimonial home underwent renovations and as was said earlier. I prefer the Husband's evidence in so far as he said that the renovations to the home cost approximately 300,000.00 of which the parties contributed 150,000.00. I find that both parties contributed towards the expenses of the home. The Wife strikes me as the independent and confident sort, one who was able to contribute from her own earnings towards the household. I accept that she would have dutifully carried out her role as mother to Lee and perhaps even attempted to extend that role to the Husband's children in addition to her own. I find her applying for the visas for permanent residence for not only him but his daughters to allowing a cafe in New York to be set up in her name, a venture from which she did not benefit financially.
79. That being said, I accept that as a man who had lived alone with his daughters and a housekeeper prior to the Wife taking up residence in the household, the Husband would have been responsible for groceries and so forth and see no reason to conclude that he would have ceased to perform those financial responsibilities. In that regard I believe that in an attempt to bolster her case, the Wife may have exaggerated her financial...
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