The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A WOMAN ought to have accounted for the $4 million in cash stashed in a foreign bank account and thousands of dollars' worth of South African and Indian gold coins contained in a safety box when divorcing her husband of 21 years, the Court of Appeal has ruled.

Appellate Justice Jon Isaacs, along with acting appellate Justices Sir Michael Barnett and Milton Evans, said the woman, Flora Sawyer, was "obliged to account" for those items for there to have been any "equitable division of the assets" during the split, which along with other "disputed assets," were either secured in a safety box or a bank account in Canada.

And both the box and the bank account, the appellate judges stated, were either under the "sole control of the wife exclusive of the husband," Floyd Sawyer, or in the "sole name of the wife and over which the husband had no authority."

According to the ruling, the two were married in September of 1987. At the time of the marriage, Mr Sawyer was 39 and his wife was 31. Both had previously been married.

On April 29, 2008, after 21 years of marriage, Mrs Sawyer filed a petition for divorce.

Following that, the appellate judges said the "squabble" for ancillary relief began. Those ancillary proceedings took an "inordinately long period of time," the appellate ruling said. Although the summons for ancillary relief which led to the judgment under appeal was filed on June 18, 2008, it was not heard until July 25, 2011.

Those hearings continued before Justice Claire Hepburn through to February 25, 2012. And despite the hearings concluding in February 2012, that judge didn't deliver her ruling until May 30, 2014.

The appellate judges said that was "inexcusable" and said the delay "may well have contributed to the judge inadequately dealing with matters which have given rise to this appeal."

Nonetheless, in her ruling, Justice Hepburn found a number of properties in Abaco, including one that generates some $12,000 in income annually; two Rolex watches, one for a man and one for a woman; two fishing boats; three shotguns; 50 percent of one company and 40 percent of another construction company to be matrimonial assets on the husband's side.

Justice Hepburn also found a home in Florida to be treated as a matrimonial asset on Mrs Sawyer's side. She also found that a gold set of Indian head coins; 200 African Kruggerands; Mrs Sawyer's cash holdings, a fur coat and a wedding ring; and a construction company were held as "disputed assets".

According to the appellate ruling, after some discussion of the law, Justice Hepburn said she was "satisfied" the matter was a "proper case for making an order that the matrimonial assets to be divided shared equally by the husband and the wife."

She also found that such a division "would take care of the wife's needs without the need for any further maintenance order or lump sum payment."

"The wife may have to reduce her standard of living somewhat, but she will be able to enjoy a comfortable lifestyle if she properly invests and manages her share of the matrimonial (assets)," Justice Hepburn said. "The same goes for the husband."

Justice Hepburn also said in her ruling the matrimonial assets would have to be appraised, which was not done for the hearing. Concerning the disputed assets, Justice Hepburn said she found it "impossible to make a determination on the evidence before me."

The man filed a notice of appeal on June 12, 2014 notwithstanding that as of that date the judge hadn't supplied a written copy of her ruling, the appellate judges said. The notice of appeal was later amended.

"Distilled to its essence," the appellate judges said, Mr Sawyer's grounds of appeal were the judge included in the matrimonial assets two properties in Abaco and that those assets should not have been included as they were property owned by him prior to the marriage; that the judge failed to discharge her duty by failing to make a finding on and accounting for the disputed assets; that the judge failed to take into account Mrs Sawyer's interest in a trust in which she was a beneficiary; the judge erred when she failed to give effect to an oral agreement between the parties; and the judge erred when she found the assets should be divided equally.

Concerning the "disputed assets," the appellate judges stated in the "ordinary course of events" an appellate court would not interfere with actual findings of fact by a trial judge who would have had the benefit of seeing the witnesses."

However, the appellate judges said they were "apprehensive" that Justice Hepburn's "failure" to make a determination on the disputed assets is not from the difficulty to make a determination on the evidence "as much as because of the two-year delay between the taking of the evidence and the delivery of the judgment."

"The judge does not indicate the basis of her difficulty which resulted in it being 'impossible to make a determination,'" the appellate judges said. "It must be recalled that the role of a judge in ancillary relief litigation is quasi inquisitorial and the judge where he has insufficient information to determine an important fact should make an extra effort to obtain that additional information."

The appellate judges further said it is "difficult" to understand the difficulty Justice Hepburn had that made her task "impossible." The judges said the disputed assets were primarily either in a safety box over which the wife had "sole control exclusive of the husband" or monies in a bank account that was in the sole name of the wife over which the husband had no authority.

Thus, the appellate judges said Mr Sawyer could not access the box without his wife, but she could access the box without her husband.

"On a balance of probabilities, it is our view that the judge ought to have found that the wife was obliged to account for those assets which were in the safety deposit box in the division of the property," the appellate judges said. "In any division of property, the wife should be regarded as having already acquired those assets."

The appellate judges said the same applied to the $4m stored in the Canadian bank account in Mrs Sawyer's sole name.

"The husband could not access those monies by himself," the appellate judges said. "The wife's evidence that she gave blank authorisations to the husband to move money out of her US dollar account clearly related to her US dollar account in (Abaco) where the husband was living and did not apply to the US dollar account in Canada.

"There does not appear to us to be any reason why the judge should not have treated those monies in the same way that we have held that she should have treated the property in the safety deposit box.

"The money in the bank account was under the exclusive control of the wife and she must account for them in any equitable division of the assets."

The appellate judges further noted towards the end of their ruling that Mr Sawyer's appeal of Justice Hepburn's ruling was allowed only to the extent that they considered themselves "at liberty to make a finding on the evidence which the judge declined to do," thus resulting in them varying that judge's judgment "to the extent that we have included the disputed assets."

"Save for that we did not think that we were at liberty to interfere with the judge's ruling," the appellate judges said.