Victoria Romney v Glenford Romney
| Jurisdiction | Anguilla |
| Judge | BLENMAN, J |
| Judgment Date | 01 February 2012 |
| Judgment citation (vLex) | [2012] ECSC J0201-1 |
| Date | 01 February 2012 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Docket Number | SUIT NO. AXAHMT 107 OF 1998 |
IN THE HIGH COURT OF JUSTICE
SUIT NO. AXAHMT 107 OF 1998
This is a matter in which Mrs. Victoria Romney seeks a number of discrete orders against her ex-husband Mr. Glenford Romney. Chief among the orders sought is an order varying the Ancillary Order that was made by the Court in relation to her interest in the matrimonial home and the payment of money which represents her interest in another property. Mrs. Victoria Romney also seeks to enforce the contempt order that was made by the Court in 2007 and suspended.
In addition, there is an application in which Mrs. Romney seeks to vary the Ancillary Order that was previously made by the Court on 20th November 2006, with which Mr. Romney has not complied.
Mrs. Romney seeks an order to have Mr. Kenvic Romney joined as a party to the claim. She also seeks to have the Court set aside the transfer of land that Mr. Romney effected in his brother Kenvic Romney's name.
Mr. Glenford Romney strenuously opposes all of the applications.
The issues that arise for the Court to resolve are as follows:
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(a) Whether the Court should order Mr. Kenvic Romney to be joined as a party to the proceedings.
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(b) Whether Mr. Romney is in contempt of the Court through his default in payment of the sums that were ordered by the Court.
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(c) If so, whether the Court should activate the suspended custodial sentence that was imposed on Mr. Romney.
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(d) Whether the Court is satisfied that Mr. Romney caused parcel 170 to be transferred into the name of his brother Kenvic in order to defeat the enforcement proceedings by Mrs. Romney.
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(e) Whether the Court should set aside the transfer of parcel 170 by Mr. Glenford Romney to his brother Kenvic.
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(f) Whether the Court should make a further order for the sale of Parcel 170.
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(g) Alternatively, whether the Court should order the sale of the former matrimonial home.
Mrs. Victoria Romney and Mr. Glenford Romney were married and the marriage lasted for several years. They were divorced on 7th September 2000. Subsequently, Mrs. Romney filed ancillary proceedings seeking maintenance for the then minor child of the family together with division of the matrimonial property and another property, namely, Parcel 170 West Central Section Block 28310B, which they owned as a couple.
On the 20th day of November 2006, the Court ordered Mr. Romney to pay her the sum of US$90,000 representing her half share in the matrimonial home and a third share of the value of Parcel 170, Block 28310B. Mr. Romney was also ordered to pay Mrs. Romney the monthly sum of EC$1,200 towards the maintenance of the then minor child of the family, Shekimea Shenia Romney, until she attained the age of 18.
Mr. Romney failed to comply fully with the above orders and Mrs. Romney brought contempt proceedings against him.
On 6th November 2007, Mr. Romney was found to be in contempt of Court and was committed to prison for six (6) months unless he paid the sum of US$90,000 on or before 31st December 2000 and the arrears of maintenance in the sum of EC$12,000 on or before 30th November 2007. Costs were awarded in the sum of US$700.00. The committal order was suspended.
Apparently, the parties subsequently entered into another payment arrangement with a view to liquidating his indebtedness to Mrs. Romney and he paid approximately US$40,000 towards the entire debt. He was quite sporadic with his payments and did not make any payments for a long period of time.
Thereafter, Mrs. Romney moved the Court to have the suspended contempt order activated on the basis that Mr. Romney owed her the sum of US$62,000 on the ancillary judgment and EC$10,367.70 for maintenance.
The matter came on for hearing and the Court ordered Mr. Romney to pay the sum of US$5,356.74 representing the arrears on child maintenance and costs; these were to be paid by 4th November 2009, failing which Mr. Romney was to have been committed for six (6) months. It was further ordered by consent that Mr. Romney should pay Mrs. Romney the sum of US$62,000 and interest of US$11,102.60 on or before the 30th day November 2009 representing the balance of monies owed to her for her share in the matrimonial home.
Mr. Romney failed to comply with the Court's Orders and Mrs. Romney caused her solicitor to write Mr. Glenford Romney demanding that he make good his indebtedness or in the alternative threatening legal action against him.
Before the application for the Committal Order was filed, Mr. Romney caused the land and property situate at Registration Section West Central Block 28310B, Parcel 170, to be transferred to his brother Mr. Kenvic Romney. This is the same parcel of land in which Mrs. Romney was awarded a third share. The parcel of land is now registered in Kenvic's name.
Mrs. Romney contends that Mr. Romney has deliberately transferred the parcel of land to his brother Kenvic in order to avoid enforcement proceedings and she has filed an application to have Kenvic joined as a party. She has also requested the Court to set aside the transfer of the property to him.
She also contends that Mr. Glenford Romney was previously employed at a lucrative job and earned handsomely and has still refused to liquidate his indebtedness towards her in accordance with the Court's order.
Mrs. Romney seeks the following Orders against Mr. Glenford Romney, namely, An Order committing him to prison for a period of seven (7) days.
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(a) Pursuant to section 43(1) (b) of the Matrimonial Property and Proceedings Act, an Order setting aside the transfer of land for Registration Section West Central Block 28310B, Parcel 170 to Kenvic Romney.
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(b) That Mr. Kenvic Romney be joined as an interested party to the application.
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(c) An order varying the ancillary relief order made on 20th November 2006 in favour of a grant of any of the following Orders:
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(i) That the former matrimonial home located at Registration Section West Central Block 28310B, Parcel 170, be sold and the proceeds from such sale be paid to Mrs. Romney in settlement of the debt owed by Mr. Romney.
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(ii) That the property located at Registration Section West Central Block 28310B, Parcel 170, be sold and the proceeds from the sale be paid to her.
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Mr. Romney takes issue with most of the contentions that have been made by Mrs. Romney. He says that he simply does not have the money to make good on his indebtedness to her. While he worked for a period of time, he says that he was also unemployed for a very long time.
Mr. Romney states that he simply does not have the money to pay her the lump sum and that he has done his best to offset some of his indebtedness to her. He says that he has no access to money to pay her the balance even though he has tried unsuccessfully to obtain a loan.
He agrees that he has transferred the property to his brother Kenvic but says that his reason for doing so was because his brother expended substantial sums in assisting him to construct the building that sits on the land.
Mrs. Romney and Mr. Romney filed affidavits in support of their respective positions and they were cross-examined at length. Throughout the cross-examination that sought to test their respective credibilities, the Court formed the view that Mrs. Romney was an honest witnesswho was merely seeking to obtain the fruits of her judgment after several years. In contradistinction, Mr. Romney struck the Court as a very hostile and uncooperative gentleman who was determined not to comply with the Court's order. On several occasions, he gave the impression and made statements which clearly showed that he had no intention to pay the outstanding sum. It was equally clear that Mr. Romney is determined to protract the matter for as long as possible.
Learned counsel Mrs. Ruan said that Mr. Romney's evidence is that he made efforts to make payments towards the debt and that within approximately two (2) years of the Order, he had managed to pay approximately US$40,000 towards the debt. In fact, the evidence is such that it was only after he was laid off in 2008 and during the financial decline that his payments became less consistent and in smaller sums. There is no evidence before the Court upon which it could be concluded that he was willful and had the means to pay the full debt. He had the means to make installment payments. Mr. Romney testified that he was in the process of looking for work but that he had been out of work for significant periods of time. He gave evidence that he tried to obtain a loan to pay the debt but was denied. Mrs. Romney herself agreed that she had worked at the Golf Course with Mr. Romney and that she knew when the project closed down and they were all laid off.
The onus of proof rests with the Judgment Creditor (Applicant). Mrs. Ruan referred the Court toFitzroy Warner v. Hotel Equity Fund V, LLC. The Court, in this case, in looking at the Debtors Act said on page 5 that: "The significant, it has been called revolutionary reform, brought about this Act is well-known to all lawyers. It required that the judgment creditor prove that the judgment debtor had been both (1) refusing or neglecting to pay the debt and that (2) he had or has had since the date of the judgment the means to pay. The burden of proving the means of the judgment debtor was placed squarely on the judgment creditor, and the judgment debtor had nothing to prove."
Learned counsel Mrs. Ruan said that Mrs. Romney has failed to present evidence to persuade the Court, on the balance of probabilities, that Mr. Romney has been willful and/or that he has had the means since the judgment to satisfy the full payment of the debt.
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