Claudia Esmeralda Membrano v Daren Dale Swasey
| Jurisdiction | Belize |
| Judge | Alexander, J. |
| Judgment Date | 12 September 2024 |
| Docket Number | CLAIM No. CV153 of 2023 |
| Court | Supreme Court (Belize) |
CLAIM No. CV153 of 2023
IN THE SENIOR COURTS OF BELIZE
IN THE HIGH COURT OF BELIZE
Mrs. Robertha Magnus Usher SC for the Claimant
Ms. Darlene Vernon for the Defendant
The defendant (“Mr. Swasey”) applies to strike out the claim on the basis that it discloses no discernible cause of action so amounts to an abuse of process and that there are no reasonable grounds for bringing or defending the claim. He filed the application on 17 th May 2023 supported by an affidavit stating that he does not know what the claim is about. Mr. Swasey claims that the claimant (“Ms. Membrano”) brought an imprecise and unclear claim, which he is unable to answer or properly defend. It should be struck out.
Ms. Membrano is the ex-wife of Mr. Swasey. After obtaining a divorce from him, Ms. Membrano approached the court by fixed date claim filed on 13 th March 2023, seeking declarations and alteration orders for properties/assets allegedly obtained during the parties' marriage. She claims that she is beneficially entitled to a share in the properties listed in the schedule in the claim since Mr. Swasey holds title in trust for her. She, therefore, seeks orders for transfer of title in the properties, transfer of proceeds of rent, delivery of possession of listed items or, alternatively, that a parcel of land be sold and proceeds be divided between the parties.
Ms. Membrano states that her claim is sufficiently clear for a defence to be made to it. Mr. Swasey's application should not be entertained by the court.
I rule in favour of the application before me.
Ms. Membrano's claim is essentially for a division of matrimonial property after a divorce was made final. However, she did not describe it as a claim for division of matrimonial property because she was required to seek property settlement at the time of the divorce proceedings. Having not done so, she comes by way of a civil claim to get her beneficial share in the property. She claims she is entitled to bring the claim more than a year after the divorce was finalized, as Mr. Swasey holds title in the properties and assets “in trust” for her. Her pleadings show that her cause of action is in trust, so there is no need to specify the type or nature of the trust.
Ms. Membrano may hold a beneficial share in the matrimonial property, but she was required to seek property settlement within the timelines set by the law. At this stage, she cannot rely on the Senior Courts Act to get the reliefs being sought, as her claim is time barred. She also ought to have given brief details of her claim in trust in her pleadings to fairly allow for an answer to it.
Having not dealt with the property settlement at the right stage, and with an ill-defined claim in trust, the claim is an abuse of process and discloses no reasonable grounds for bringing or defending it. I, therefore, strike out her claim and grant Mr. Swasey his application.
Mr. Swasey's application requires that I give a short history to understand why these divorced parties are back before the court. He claims that he is unable to respond to the claim by way of a defence, as there is no discernible cause of action.
The parties' divorce was made absolute on 27th October 2021. At the time of the divorce proceedings, Ms. Membrano did not apply for a division of matrimonial property and/or assets. Subsequent to the dissolution of the marriage, and in the absence of a claim over the matrimonial assets, the Senior Courts Act No. 27 of 2022 came into force in November 2022 (“SCA”). The SCA provided a longer period within which an application for property settlement can be made after a divorce is made absolute. The law in Belize is now that as codified in the SCA.
Having not sought a division of property during the course of the divorce, Ms. Membrano now claims in equity for her share of the matrimonial property and assets. This claim is brought as an action in trust. The nature or type of trust is not spelt out in the pleadings. She seeks inter alia a declaration of property rights and a division of property or assets held in trust for her. Mrs. Usher, counsel for Ms. Membrano, says the cause of action is obvious and Mr. Swasey can answer the claim.
It is convenient, therefore, to look at Ms. Membrano's claim as advanced. She seeks:
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1. A declaration that the Claimant is beneficially entitled to property listed in the Schedule hereto or such share therein as the Court thinks just and that the Defendant holds title thereto in trust for and on behalf of the Claimant.
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2. Possession of all those properties described in the Schedule hereto, being Parcels 5088, Block 20, Belmopan, Registration Section, Belize and all furniture including… …
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3. An order of Injunction, restraining the Defendant by himself, his agents and or servants howsoever from selling or agreeing to sell, possessing, transferring, leasing, charging encumbering, entering on or in any way dealing with any of the real properties aforementioned until the determination of the Action herein or further order.
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4. An Order directing the Defendant to transfer his title in the property listed in the Schedule hereto to the Claimant and to transfer proceeds of rent (if any) collected since the parties' separation to the Claimant.
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5. In the alternative that the said parcels of land be sold and proceeds shared in such proportion as the Court deems just.
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6. An Order that the Respondent transfer and deliver possession of all the items mentioned in paragraph two (2) hereof to the Applicant.
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7. Such further or other order or relief the Court deems just.
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8. Costs.
In the affidavit in support, Ms. Membrano laid out in paragraphs 4-23 the history of the relationship between the parties including when they met, got married, and the responsibilities of each party during the marriage. She detailed her financial and other contributions to the marriage and properties in dispute. She claimed that at some point during the marriage, Mr. Swasey had stopped contributing to the family and household expenses. After the marriage ended, Mr. Swasey continued to live at the matrimonial home. It was unclear if any attempt was made to get him to vacate the matrimonial home but given that there was no division of matrimonial property, I assumed that the parties continued with their same living arrangements after the divorce.
Ms. Membrano stated that whilst she was away for work in January 2022 for four months, she was locked out of her home by Mr. Swasey. Since then, she has been deprived of her home, furniture and personal items. She is forced to take up rental accommodation at her parents' home with her son.
The sole issue is whether Mr. Swasey has satisfied the test to get the claim struck out on the pleadings. This requires a determination of the following:
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a. Is the claim an abuse of process?
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b. Does the claim disclose no reasonable ground for bringing or defending it?
Rule 26.3 (1) (a) to (d) of the Civil Proceedings Rules empowers the court to strike out a claim in specified circumstances. It reads:
[26.3] (1) In addition to any other powers under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court –
(a) that there has been a failure to comply with a Rule or practice direction or with an order or direction given by the court in the proceedings;
(b) that the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings;
(c) that the statement of case or the part to be struck out discloses no reasonable grounds for bringing or defending a claim; or
(d) that the statement of case or the part to be struck out is prolix or does not comply with the requirements of Parts 8 or 10.
CPR 8.7(1) and (2) outline a claimant's duty to set out its claim by giving a statement of all the facts being relied upon in the matter. The statement must be as short as possible. The purpose of this rule is to put a defendant in a position to answer the claim against him.
Mr. Swasey brings his application under CPR 26.3, which has four sub-rules. In submissions, Ms. Vernon, counsel for Mr. Swasey, states that the claim is to be struck out for failing to disclose a cause of action. It is an abuse of process and discloses no reasonable ground for bringing it: see CPR 26.3 (1) (b) and (c). I will look first at the abuse of process claim.
Generally, it is an abuse of process to bring a claim without a clear cause of action against a defendant. It is defective in law. If the claim has a clear and valid cause of action then it is not an abuse of process to have brought the claim. It should not be struck out.
The fixed date claim form at paragraph 10 above identifies the claim as one where property and assets are held “in trust” for Ms. Membrano. There is no dispute that the claim refers to property and assets acquired or improved during the marriage (together “matrimonial properties”). There is also no dispute that the time for bringing a claim for property settlement in matrimonial proceedings, under the previous legal regime, has expired. The question then is whether these two words “in trust” are sufficient to put Mr. Swasey in a position to answer the claim.
In her affidavit in support of the claim filed on 13 th March 2023, Ms. Membrano states at paragraph 23, “The Defendant well knew he held the property in trust for myself and that as I had to assume responsibility for paying...
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