Usher v Usher and Grinage; Usher v Usher

• Jurisdiction: Belize
• Judge: Sosa, P.,Morrison, J.A.,Hafiz-Bertram, J.A.,HAFIZ-BERTRAM, J.A.
• Judgment Date: 28 June 2013
• Neutral Citation: BZ 2013 CA 15
• Docket Number: Civil Appeal 40 of 2010; Civil Appeal 2 of 2011
• Court: Court of Appeal (Belize)
• Date: 28 June 2013

Court of Appeal

Sosa, P.; Morrison, J.A.; Hafiz-Bertram, J.A.

Civil Appeal 40 of 2010; Civil Appeal 2 of 2011

Usher

and

Usher and Grinage

Usher

and

Usher

Appearances:

M. Marin Young for the appellant

F. Lumor SC and Mrs. R. Magnus Usher for the respondents

Family Law - Husband and wife — Divorce — Alteration of property rights — Property rights — Appeal against order — Reconsideration of property rights — Grounds of appeal — Finding that award had been adequate to compensate the appellant for work done to develop and maintain property — Finding that there was an abuse of process claim was frivolous and vexatious — Appeal dismissed — Costs — Sections 16 (1) of the Married Women's Property Act — Section 148A of the Supreme Court of Judicature Act.

Sosa, P.

1 As regards Civil Appeal No. 40 of 2010, I am in agreement with the other members of the Court that the appeal of the appellant, Elena Usher should be:

• i) dismissed to the extent that it seeks the setting aside of the order of Muria, J. dismissing the claim against the second-named respondent, Claudette A. Grinage; and

• ii) allowed, in full, to the extent that it seeks the setting aside of the portions of the order numbered 1), 2) and 3) but only in part to the extent that it seeks the setting aside of the portions of the order numbered 6), 7) and 8); and

that an order which is just and equitable in all the circumstances should be made in favour of the appellant. I am in further agreement with the other members of the Court that the cross-appeal of the first-named respondent, Osbert Orlando Usher, should be allowed in part. As regards Civil Appeal No. 2 of 2011, I agree with the other members of the Court that the appeal should be dismissed. I have read, in draft, the judgment of Hafiz-Bertam J.A. and concur in the reasons for judgment given, and the orders proposed, in it.

Sosa, P. Morrison, J.A.

2 I too have had the great advantage of reading, in draft, the judgment of Hafiz-Bertram, J.A. in Civil Appeals Nos. 40 of 2010 and 2 of 2011. I agree with the judgments, as well as the orders proposed by Hafiz-Bertam, J.A. for the disposal of both appeals.

Morrison, J.A.

INTRODUCTION

Hafiz-Bertram, J.A.

3 These two appeals are from the decisions of the learned trial judge Muria. Elena Usher, the appellant in both appeals was the wife of Osbert Orlando Usher. I will refer to the appellant, Elena Usher as the wife and Osbert Orlando Usher as the husband although they are divorced. In Civil Appeal No. 40 of 2010, the decision under appeal is dated 3rd November, 2010 and is in relation to a claim by the wife for an alteration of property rights pursuant to section 148A of the Supreme Court of Judicature (Amendment) Act (No. 8 of 2001). The wife has appealed against the orders made by the learned trial judge and seeks the following relief:

• a) That the Court sets aside the orders made by the Supreme Court; and

• b) That the Court makes an order that “reflects the appellant's interest, if any, in all the properties real and personal that were the subject matter of Supreme Court Action No. 420 of 2005 that is just and equitable in all the circumstances.

4 In Civil Appeal No. 2 of 2011, the decision under appeal is dated 24th November, 2010 and concerns two separate applications under claim No. 788 of 2010 which was issued after judgment was given in the property rights matter. The first application was for an interim injunction by the wife to restrain the husband from preventing her from removing and relocating plants, equipment, machinery, hardware and implements from Gran's Farm Land. The second application dated 23rd November, 2010 was by the husband to strike out the wife's claim and notice of application on the basis of res judicata and as an abuse of the Court's process.

5 I think it would be prudent to consider the property rights matter first and thereafter, consider, Civil Appeal No. 2 of 2011.

FACTUAL BACKGROUND — CIVIL APPEAL NO. 40 OF 2010

6 The background to the proceedings in the Court below and this Court is instructive. The learned trial judge from paragraphs 6 to 14 of his judgment stated a brief background of the parties and their marital relationship. I do not believe any of these matters are in dispute and I respectfully adopt what has been stated by the trial judge. The parties met on 22nd January, 1980 whilst they were students studying dentistry in Guatemala City. On 18th December, 1983 their first child was born. They started to live together in January of 1984. They were married on 12th August, 1990. Their second child was born on the 11th March, 1991. The wife has a child by a previous relationship who was born on 17th December, 1977 and was six years old at the time of the commencement of the parties relationship. The child was a member of the household and supported by the parties.

7 The husband completed his studies in 1985 and returned to Belize where he opened his dental practice. The wife remained in Guatemala to complete her studies. During this time, she visited Belize on her vacations and continued her cohabitation with the husband. The wife did not complete her studies. She came back to Belize in July of 1985 and continued to cohabit with the husband. She worked for three months and thereafter took care of her family and started a horticulture business sometime later.

8 The parties were separated when the wife was forced to leave the matrimonial home on 14th June, 2005. She was unhappy with the marriage as the husband had a paramour and at the same time remained with her. The youngest child who was sixteen years old at the time went to live with the wife.

9 The wife commenced divorce proceedings on 17th November, 2005 and a decree nisi dissolving the marriage was granted on 31st October, 2007. On the 8th December, 2009 the decree absolute was granted.

THE PROCEEDINGS IN RELATION TO ALTERATION OF PROPERTY RIGHTS

10 On 17th November, 2005 the wife commenced proceedings by way of Originating Summons under the provisions of section 16 of the Married Women's Property Act and section 148A of the Supreme Court of Judicature (Amendment) Act (No. 8 of 2001). The wife in an amended originating summons dated 28th May, 2007 sought the following relief:

a) A Declaration under section 16 of the Married Women's Property Act, Chapter 176 and or under Section 148A of the Supreme Court of Judicature (Amendment) Act No. 8 of 2001 that the applicant is beneficially entitled to a one-half share or interest in the properties listed in the Schedule below. b) A Declaration that the applicant is beneficially entitled to one-half share or interest in the personal properties owned by the parties. c) A Declaration that the transfer of freehold premises 5.059 acres situate at the North End of Drowned Caye, Belize District as shown on Plan of subdivision Survey by Gilberto A. Perez dated January 13th, 2005 registered in Register No. 24 Entry No. 8540 to Claudette Anasellie Grinage, caused by or at the behest of the first respondent is, pursuant to section 149 of Chapter 190 of the Laws of Belize, void as a transaction prejudicing the applicant. d) A Declaration that the transfer of freehold premises known as 4.702 acres situate at Cross Caye, Stann Creek District as shown on Plan of Subdivision Survey by J. H. Hertular dated 7th April, 2005 registered in Register No. 7 Entry No. 8873 to Claudette Anasellie Grinage caused by or at the behest of the first respondent is, pursuant to section 149 of Chapter 190 of the Laws of Belize void as a transaction prejudicing the applicant. 2. An Order that the aforementioned properties should be sold and the net proceeds of sale be shared equally between the applicant and the first respondent; and or 3. In the alternative an Order that the aforementioned properties be settled or transferred equally or equitably between the applicant and the first respondent as the Court may determine. 4. a) An order that one-half of the net proceeds of sale of the following vehicles be shared equally or equitably between the applicant and the first respondent, namely – (1) Chevy 15 seater van. (2) GMC Pick-up Truck. (3) Plymouth Voyager Mini-van. b) An Order that one-half of the amounts standing as credit in the following bank accounts be paid to the applicant, namely – i. Savings Account at Holy Redeemer Credit Union, Hydes Lane, Belize City, Belize in the name of Osbert Usher. ii. Checking/Savings Account at Atlantic Bank Limited, Freetown Road, Belize City, Belize in the name of Osbert Usher.

SCHEDULE

• 1 (1) All that piece or parcel of land containing 10.15 acres situate along the south side of the Western Highway, near Mile 14 (Minister's Fiat Grant No. 813 of 1998).

• (2) All that piece or parcel of land containing 9.593 acres situate along the Western Highway, near Mile 14, Belize District (Minister's Fiat Grant No. 398 of 1999).

• (3) All that piece or parcel of land containing 13.46 acres situate along the Western Highway, near Mile 14, Belize District (Minister's Fiat Grant No. 822 of 1998).

• (4) All that piece or parcel of land situate on Western Highway containing approximately 5 acres (Leasehold), near Mile 14 Western Highway.

• (5) All that piece or parcel of land situate at Petticoat Alley, Belize City, being Lot No. 1097, containing a two storey house thereon.

• (6) All that pieces or parcels of land situate at Nos. 14 and 16 Magazine Road, Belize City, Belize containing a structure and a nursery, respectively.

• (7) All that piece or parcel of land situate on Long Caye.

• (8) All that piece or parcel of land containing one acre situate at Honey Camp, Orange Walk District, Belize.

• (9) All that piece or parcel of land containing 50 acres in Hope Creek Village, Stann Creek District.

• (10) All that piece or parcel of land situated at No. 3580 Sittee Street, Belize City, Belize containing a three storey building thereon.

• (11) All that...