Downer v Downer
| Jurisdiction | Barbados |
| Judge | Simmons, C.J. |
| Judgment Date | 23 May 2008 |
| Neutral Citation | BB 2008 HC 9 |
| Docket Number | No. 663 of 2007 |
| Court | High Court (Barbados) |
| Date | 23 May 2008 |
High Court
Simmons, C.J.
No. 663 of 2007
Ms. Bernadette Callender for the applicant.
Mrs. Dawn Shields-Searle for the respondent.
Jurisdiction - High Court — Divorce proceedings pending in two different jurisdictions — Whether the High Court of Barbados could entertain the husband's application on the basis of the wife's Barbadian citizenship — Forum non conveniens — whether Barbados was clearly the more appropriate forum to hear the matter — Finding that the U.S. Courts were in a better position to adjudicate as the parties assets and liabilities were in the U.S.A..
This case concerns the jurisdiction of the High Court of Barbados in divorce proceedings. The parties married in Barbados on 3 May 1997. On 29 November 2007 the applicant (the husband) filed an application for dissolution of his marriage to the respondent (the wife). The application was served on 19 January 2008. On 28 December 2007 the wife filed proceedings for divorce in New Jersey, U.S.A. and served the husband on 13 January 2008. There are, therefore, divorce proceedings pending in two different jurisdictions. On 1 February 2008, in accordance with Rule 28.(1) of the Family Law Rules, 1982 S.I. 1982 No.18, the wife filed an Answer Under Protest to the husband's application in Barbados in which she contests the jurisdiction of this Court to hear and determine the divorce proceedings filed in this Court.
The parties have agreed that I should adjudicate two issues viz. (i) does the High Court have jurisdiction to entertain the husband's application? (ii) if the High Court does have such jurisdiction, should the husband's application for dissolution of the marriage be stayed on the basis of the doctrine of forum non conveniens?
Neither party was born in Barbados. The husband was born in Guyana on 24 October 1965 and is a citizen of the U.S.A. by naturalization. He holds a Barbados Identification Card and is a permanent resident of Barbados. His mother is a Barbadian. The wife was born in Jamaica on 18 November 1968 but is a citizen of Barbados by naturalization. Her application for citizenship of the U.S.A. is pending but she has permanent residence of that country.
The wife went to school in Barbados whereas the husband was a student in Guyana. Both parties pursued undergraduate studies at the Cave Hill Campus of the University of the West Indies. From 1997 to 2000 the wife did a degree programme in Film and Video at a university in Atlanta. The husband began an Executive MBA programme in 2002 and graduated in 2004 from Columbia University. Approximately 5 months after their marriage, the parties emigrated to the U.S.A. There are no children of the marriage.
Between May 1997 and September 2006 the parties lived in various rented accommodation in New Jersey. However, they are the owners of two properties – a 4 500 square feet house at Crane Crossing, Macungie, Pennsylvania (the Crane Crossing property) and a condominium of 1 400 square feet at Dudley Street, New Jersey (the Dudley Street condo). This condominium was the matrimonial home. The parties separated in November 2006 but the wife currently lives in this property.
Both properties are subject to mortgage. The Crane Crossing property was valued in March 2007 at $369, 396.00 and the two outstanding mortgages amount to $360, 522.55. The Dudley Street condo was bought in October 1996 for the sum of $665, 165 and the two outstanding mortgages on this property amount to $600, 845.44.
It appears that the parties bought and sold property as part of their financial investment strategy. In 1993 they bought a house at Fort George Heights, Christ Church, but sold it in January 1999. After the marriage, they sold three properties in the U.S.A. between May 1997 and September 2002. At the time of these proceedings the Crane Crossing property was rented.
In an affidavit of 13 February 2008 the husband deposes that he is the Senior Vice-President of Independent Risk Management at CitiBank Group and travels worldwide on a U.S.A. passport. He alleges the following and claims a connection with Barbados because of them. (a) His mother owns several properties in Barbados which she rents to various persons and which he manages through a Barbadian attorney-at-law. The husband says that he pays the land taxes and the attorney-at-law renders annual accounts to him. He says that in October 2007 he instructed the attorney-at-law to serve notices to quit on the tenants because he wishes to develop the properties. (b) On 4 December 2007 he gave a presentation to the Central Bank of Barbados in respect of its implementation of risk management programmes. (c) He and his wife never had any intention of “disconnecting” from Barbados. (d) They are the owners of a Company registered and incorporated in Barbados as Olichan Enterprises Inc. Bank accounts are kept in the name of the Company and it is being run from overseas addresses. (e) He and his wife source and purchase items for his mother-in-law's Barbadian Company ‘Silks & Things’. (f) The Department of Management Studies of the University of the West Indies indicated to him by letter of 12 February 2008 that they were “considering” engaging his services as Lecturer in the M.Sc. Banking and Finance programme to assist with the teaching of two courses in July 2008. The Coordinator of the programme asked him to inform the Department of his availability so that an official request could be made to the Appointments Section. As at the date of hearing of this matter no appointment had been made.
The husband filed a supplemental affidavit on 25 February 2008. He asserts that the legal costs associated with a New Jersey divorce are ‘prohibitive’ and he does not have the financial means to litigate in New Jersey. He is willing to reach an amicable settlement of the property issues. He claims that the wife's application in New Jersey is an abuse of the process of the Court and the Answer Under Protest is vexatious. He says that the nature of the New Jersey proceedings would jeopardize his present and future employment in the U.S.A.
The husband exhibited to his most recent affidavit (16 May 2008), a document purporting to be a schedule given to his accountant with the financial position of the parties for income tax purposes. The document purports to show the parties’ net financial position as one of deficit in an amount of $223, 941.37. Since this document has not been verified by the wife, I will pay no attention to it for the purposes of my decision. The husband goes on to allege that the impact of matrimonial proceedings will cause himself and his wife significant financial loss – see paras. 11 to 14 of the affidavit.
The following factors were urged by the wife's counsel in the Answer under Protest in support of a stay: (a) The husband is a citizen of the U.S.A. (b) The wife has permanent resident status in the U.S.A. and her application for U.S. citizenship is pending. (c) The parties have lived continuously in the U.S.A. for 10 years. (d) The matrimonial home (the Dudley Street condo) is in New Jersey and all of the matrimonial property is situated in the U.S.A. (e) The parties have substantial assets in the U.S.A. and their creditors are based there. (fl Since the marriage, both parties have been working in the U.S.A. (g) They are not ordinarily resident in Barbados. Indeed they left Barbados five months after the marriage. (h) Their only real connection with Barbados is the fact of their marriage here. (i) Their bank accounts are in the U.S.A. where they also have Retirement Plans. 0) The wife has filed proceedings for dissolution of the marriage in New Jersey.
In an affidavit of 6 May 2008, the wife responded to the husband's affidavit evidence then before the Court and deposed that their bank accounts in Barbados have been inactive for 9 years. With respect to the Company Olichan Enterprises Inc., she says that it has not carried on business for 10 years and its bank accounts have been inactive since October 1997. She says that their bank accounts, pension arrangements, loans and mortgages are all in the U.S.A. She also referred to other pending litigation between the parties in New Jersey. I have not taken this litigation into account in my decision.
I now turn to an examination of the two issues and the relevant legal principles.
Ms. Callender submitted on behalf of the husband that he was entitled to commence divorce proceedings in Barbados because the wife was a citizen of Barbados on 29 November 2007 when the husband's application was filed. This is an irresistible submission. The language of s.20(2) of the Family Law Act, Cap.214 (the Act) is plain.
Section 20(2) is as follows:
“(2) Proceedings for a decree of dissolution of marriage may be instituted under this Act by a party to the marriage if, at the date on which the application for the decree is filed in the Court, either party to the marriage:–
(a) is a citizen of Barbados;
(b) is domiciled in Barbados;
(c) is a permanent resident of Barbados within the meaning of the Immigration Act; or
(d) is an immigrant of Barbados within the meaning of the Immigration Act, and has resided in Barbados continuously for one year immediately preceding that date.”
The intention of Parliament is clearly to confer jurisdiction on the High Court where either party to the marriage has a connection with Barbados by citizenship, domicile or residence. I therefore hold that the husband is entitled to commence the proceedings on the basis of the wife's Barbadian citizenship at the time when the application was filed.
The more difficult issue is whether, even though the husband has...
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