Michael McIntyre Appellant v Margery Anne McIntyre Respondent

• Jurisdiction: Grenada
• Judge: Blenman JA
• Judgment Date: 25 January 2016
• Judgment citation (vLex): [2016] ECSC J0125-1
• Court: Court of Appeal (Grenada)
• Docket Number: GDAHMTAP2013/0024
• Date: 25 January 2016

[2016] ECSC J0125-1

EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal Ag..

GDAHMTAP2013/0024

Between:

Michael McIntyre

Appellant

and

Margery Anne McIntyre

Respondent

Civil appeal — Divorce — Division of matrimonial assets — Property adjustment — Ancillary relief — ss. 24 and 25 of Matrimonial Causes Act 1973 (UK) — Whether learned trial judge erred in awarding respondent one half of matrimonial assets — Whether there was proper basis for equal division of matrimonial property — Challenge to findings of fact made by learned trial judge

Mr. and Mrs. McIntyre got married in Grenada in 1997. Prior to the marriage, Mrs. McIntyre lived in Texas, USA but once married, she moved to Grenada to live with her husband. The couple resided in the matrimonial home which Mr. McIntyre had brought into the marriage. For the most part, Mrs. McIntyre was the homemaker; she ensured that the couple had a well-kept and comfortable home to live in. She was also a willing hostess and cook at social gatherings and dinners held at the matrimonial home. The couple often entertained numerous friends and associates of Mr. McIntyre. With the support which Mr. McIntyre received from his wife, he was able to devote his attention to his family owned car dealership business, McIntyre Brothers Ltd.

About 3 years into the marriage, the couple encountered difficulties in the marriage and it eventually completely broke down after a total of 11 years. Mrs. McIntyre filed a petition for divorce in 2008 and the decree absolutely dissolving the marriage was granted on 2^nd November 2009. The marriage had produced no children.

Throughout the marriage, Mrs. McIntyre was completely financially dependent on Mr. McIntyre. Before she had moved to Grenada she was fully self-supporting. In Grenada, she was trying to earn money selling paintings but had found difficulty in doing so. Mr. McIntyre, on the other hand, as the company director of McIntyre Brothers Ltd., was earning a gross income of $85,000.00 per annum. He also had other sources of income, which included his interest in a gas station for which he received $24,000.00 annually, and also, income from NIS which amounted to $14,000.00 annually.

Prior to the decree being made absolute, the High Court, on 19^th December 2008, made a maintenance order pending the hearing and determination of ancillary matters, which was continued by consent of the parties. Subsequently, on 21^st May 2010, Mrs. McIntyre filed an application for ancillary relief seeking, inter alia: that 'the property housing the matrimonial home and the furnishing therein' be conveyed to her; that a vehicle be provided to her; that Mr. McIntyre continue to pay her medical expenses for the next 10 years; that such lump sum be paid to her as the court sees fit; in the alternative, that a one-off lump sum payment of US$1,500,000.00 or such sum the court may deem just be paid by Mr. McIntyre to her; and costs.

This application, which was vigorously opposed by Mr. McIntyre, was heard by the learned judge, who applied the Matrimonial Causes Act 1973 in determining the relevant factors the court must consider on such an application. The learned judge concluded that even though Mr. McIntyre was 68 years old, his income would remain stable, but on the other hand, Mrs. McIntyre had little or no income and remained unemployed. The judge noted that although Mrs. McIntyre had artistic skills and would be able to earn an income in the future from her paintings, in difficult economic times, the sale of the paintings is limited. The learned judge found that Mrs. McIntyre's needs were for housing, income, transportation and provision for her animals. She also found that the parties had enjoyed a high standard of living, entertained regularly and attended various social events, taken holiday trips and enjoyed all the amenities that life at that level had to offer. Concerning the contributions of Mr. and Mrs. McIntyre to the welfare of the family, the judge accepted that Mr. McIntyre was the breadwinner in the family and that in addition to the matrimonial home, he brought most of the assets into the family. However, the judge found that Mrs. McIntyre had made substantial non-financial contributions to the welfare of the family and that such non-financial contributions should not be discriminated against in favour of the money-earner.

The judge then went on to set out the assets that the court should take into account in deciding the application for property adjustment, and identified which of these assets she considered were matrimonial assets. Having done this, the learned judge stated: 'Having regard to all the circumstances, including [Mrs. McIntyre's. needs I award [Mrs. McIntyre. one half of the matrimonial assets, that is, $1,273,018.00'. The order granting Mrs. McIntyre's application for property adjustment further stated that Mrs. McIntyre was to vacate the matrimonial home, and she was awarded costs of the application in the sum of $8,000.00.

Mr. McIntyre appealed against the judge's decision ultimately on two main grounds, which may be set out as follows: (1) the learned judge erred in law in awarding Mrs. McIntyre one half of the matrimonial assets; and (2) the learned trial judge erred in law in awarding Mrs. McIntyre one half of the matrimonial assets without setting off the benefits received from Mr. McIntyre pursuant to the maintenance pending suit order made on 19^th December 2008. In particular, Mr. McIntyre challenged the learned judge's finding that the parties enjoyed a high standard of living throughout the marriage. He also took issue with the decision of the learned judge to include in the list of marriage assets his 50% share in the value of a villa at Calivigny Gardens, the commission earned from the sale of a property/equivalent shareholding in the company Calivigny Gardens Inc. and the balance of an account in the Cayman Islands.

Held: dismissing the appeal, and ordering that Mrs. McIntyre have her costs on the appeal in the sum of $5,333.33, that being 2/3 of the costs awarded in the court below, that:

• 1. Section 25(2)(f) of the Matrimonial Causes Act 1973 provides that the court should consider 'the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family'. This section does not refer to the contributions which each party has made to the parties' accumulated wealth. Each party to the marriage should be seen as doing their best in their own sphere. The assets which Mr. McIntyre argues should not have been included in the list of matrimonial assets represented contributions by Mr. McIntyre to the welfare of the marriage and were properly considered by the judge as matrimonial assets. Accordingly, the learned judge did not err in regarding them as matrimonial assets.

  Miller v Miller 2006. UKHL 24 [2006. UKHL 24 applied; John Robert Charman v Beverley Anne Charman 2007. EWCA Civ 503 [2007. EWCA Civ 503 applied.

• 2. There was evidence before the learned judge from which it was open to the judge to properly conclude that Mrs. McIntyre had made a significant non-financial contribution to the marriage. There is no basis therefore for this Court to interfere with the learned judge's findings of fact.

• 3. The learned judge did not provide reasons for awarding Mrs. McIntyre a half share in the matrimonial property. The judge merely stated in very general terms: 'Having regard to all the circumstances, including [Mrs. McIntyre's. needs', in making the award to Mrs. McIntyre. Insofar as the learned judge failed to provide reasons, it therefore falls to this Court to examine the circumstances of the case and seek to discern the reasons the judge had for granting the award.

• 4. It is the law that an inquiry on an application for ancillary relief is always in two stages, namely, computation and distribution. Although the learned judge awarded Mrs. McIntyre one half of the matrimonial assets (at the distribution stage), she excluded, at the computation stage, certain assets on the basis that they were not matrimonial assets, and offered no explanation for the exclusion of certain of the excluded assets. However, although the learned judge did not explicitly state the approach that she was taking, it is clear that she identified the non-matrimonial property to be excluded, leaving the matrimonial property alone to be divided in accordance with the equal sharing principle. The learned judge was entitled to take this approach.

• 5. While the learned judge's reasons for the exclusion of some assets from the list of matrimonial assets were not entirely clear, had she applied the principles of need, compensation and sharing (enunciated in the cases of Miller v Miller 2006. UKHL 24 [2006. UKHL 24 and John Robert Charman v Beverley Anne Charman 2007. EWCA Civ 503 [2007. EWCA Civ 503) which inform the distribution stage of the inquiry on an application for ancillary relief, she would have, at the very least, made the same award to Mrs. McIntyre as she did in the present proceedings. The judge, in effect, departed from an equal division of the assets by allowing Mr. McIntyre to retain the full benefit of the shares in McIntyre Brothers Ltd. as well as the benefit of the other assets which were excluded. In the circumstances, this was a fair result and accordingly, the learned judge did not err in awarding Mrs. McIntyre 50% of all the assets.

  N v F 2011. EWHC 586 (Fam) [2011. EWHC 586 (Fam) cited with approval; Victoria Theresa Jones v Gareth Telfer Jones 2011. EWCA Civ 41 [2011. EWCA Civ 41 cited; Miller v Miller 2006. UKHL 24 [2006. UKHL 24 applied; John Robert Charman v...