The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A Supreme Court judge has denied a man’s attempts to secure an interest in his ex-wife’s $4m home and her 12 condominiums, while ordering his ex-wife to pay him $100,000 to “ease his transition” into living without a partner.

Justice Ian Winder, in a written ruling, shot down Garth Bethel’s assertions that he had a one-half interest in both Veronica Bethel’s Ocean West Limited-owned condominium complex and the marital home on West Bay Street.

However, Justice Winder ruled that due to the “unequal financial position” of both parties brought on by the divorce, and in accordance with Section 29 of the Matrimonial Causes Act (MCA), Mrs Bethel will have to make a “lump sum payment” of $100K to Mr Bethel within 90 days.

Mr Bethel had submitted that his right to claim half of the home in question were justified by the collective $4,520,000 worth of repairs he claimed he pumped into refurbishing Mrs Bethel’s home when he first moved in with her.

Further, Mr Bethel argued that because Mrs Bethel used the home in question to secure a $2.5m loan from the Royal Bank of Canada (RBC) to build the 12 condos, he could thus assert an interest in the complex.

However, Justice Winder shot down the former assertion, stating that based on the evidence, Mr Bethel had failed to prove that he was a “man of means” capable of producing such a sum, and that he actually produced 1.8 per cent of the $4.52m, or approximately $80,000.

“This was a man, who at the time of meeting the wife, lived in a home on East Street South with his mother and his siblings,” Justice Winder said. “The lack of credible evidence makes it difficult to accept that the husband was a man of means capable of providing the sums he alleges to have contributed to the matrimonial home”.

Justice Winder’s decision stems from a Court of Appeal-ordered retrial of an application for ancillary relief borne out of the dissolution of Mr Bethel’s and Mrs Bethel’s marriage of some eight years.

According to the ruling, Mr Bethel describes himself as a businessman, while Mrs Bethel is a dentist by profession.

The two first met at a basketball camp hosted by Mr Bethel, who was a former professional basketball player. At the time, Mrs Bethel was a dentist operating a dental practice with a partner.

The two lived together in Mrs Bethel’s home prior to their marriage on May 15, 1999, which marked Mrs Bethel’s second marriage and Mr Bethel’s first.

Throughout their marriage the former couple resided at West Bay Street in Mrs Bethel’s home. Mrs Bethel had secured the full interest in the marital home following her divorce from her first husband in 1993.

The decree dated June 2, 1993 specifically stated that “the ownership rights and interest in all that lot of land situate in the Western District affectionately called “Crab Hill” upon which the proposed new matrimonial home is being built shall be that of the said wife to the exclusion of the said husband”.

Mrs Bethel said the transfer was made to her by her first husband on the understanding that the home would be held for the benefit of their two children.

According to the ruling, Mrs Bethel had completed the home and subsequently moved into it by 1994, but there was still “considerable work” to be done on the house after she would have moved in.

However, Mrs Bethel said the work was completed by the time she got married to Mr Bethel in 1999. Nonetheless, immediately to the north of the property was a “large vacant section”.

Meanwhile, prior to marrying Mrs Bethel, Mr Bethel lived with his mother and siblings at a home situated on East Street south.

He said he agreed to move in with his former wife at her behest to assist her with her bills, claiming that she was in arrears on mortgage payments at the time.

Additionally, Mr Bethel described the condition of the home as a “shell” with no landscaping when he initially moved. His evidence was that the only room that was completed in the home was the master bedroom.

He said after three weeks of moving in, he began to “plough” money into the home’s renovation and refurbishment.

According to Justice Winder’s ruling, Mr Bethel’s calculation of the contributions he made to the home, according to four affidavits filed in August 2007, April 2008, July 2008 and January 2011, were respectively as followed: $220,000; $1.8m; $300,000 and $2.2m, making for a total of $4.52m.

Mr Bethel claimed those sums were attained by selling his coin collection along with two homes and his business in Washington, D.C.

Mrs Bethel, in response, denied the home was a shell; conversely, she maintained that the home was complete when she moved in. She accepted that there were contributions made to the home, but denied the amounts Mr Bethel claimed.

Rather, she said the amount he contributed was merely $30,000.

Nonetheless, Justice Winder’s ruling said “unhappy differences” arose and the two separated in September 2005. On September 4, 2006, a petition for a divorce was filed.

The Decree Nisi was granted on March 15, 2007, and was made absolute on June 19, 2007.

Subsequent to the couple’s separation and the decree nisi being made absolute, Mrs Bethel and her children embarked on a business venture that transferred the property to a company, Ocean West Limited, which they owned beneficially.

Ocean West constructed a condominium complex containing 12 units, made possible with the assistance of a $2.5m loan from the Royal Bank of Canada (RBC). Several of the units have since been sold by Ocean West to third parties.

Ancillary proceedings were conducted before then-Chief Justice Sir Michael Barnett in early 2011. At the initial hearing, Mr Bethel asked to be granted half the value of the matrimonial and non-matrimonial assets, specifically the West Bay Street home and the 12 condos.

However, according to his notice of appeal, Mr Bethel only received $75,000 from an estate that should be “grossly valued in around, or in excess of $10,000,000”.

He listed among his grounds for appeal that the chief justice “erred in law and principle by causing bias or the appearance of bias to be unavoidable” – because he failed to disclose prior to the hearing that he knew the parties concerned.

In the notice of appeal, it is claimed Sir Michael attended Mr Bethel’s ex-wife’s mother’s funeral five days before the hearing and was a guest in their home during their marriage.

In January 2013, the Court of Appeal ruled that the case should go back to the Supreme Court as the Chief Justice was wrong in neglecting factors required to be considered under section 29 of the Matrimonial Causes Act.

The appellate court ruled that it would allow the appeal, set aside Sir Michael’s decision and remitted “the matter back to the Supreme Court for rehearing before another judge.”

The rehearing initially was due to be heard before Justice Milton Evans, now an acting appellate judge, who eventually recused himself upon an application by Mr Bethel.

The matter eventually came before Justice Winder, who said the issue for determination was whether Mr Bethel had an interest in the matrimonial homes or the 12 condos on West Bay Street, and if so, what is the interest he held.

However, Justice Winder said having considered the material provided by both parties, and observing the various witnesses as they gave their evidence, he had “no hesitation” in indicating his preference of Mrs Bethel’s evidence and her witnesses.

Conversely, he said he did not find that the evidence supported Mr Bethel’s assertions as to the extent of the funds he provided.

Firstly, Justice Winder said Mr Bethel’s calculation of the contributions he made to the home were “disproportionate and contradictory”. Conversely, Justice Winder said his own assessment is that Mr Bethel’s contribution to the household over the seven-year marriage amounted to approximately $80,000.

“Such contribution was in the nature of payment of utility bills, general maintenance of the home and the like,” Justice Winder said. “Such contributions would have been expected had the parties lived in rented or leased premises.”

Additionally, Justice Winder said while there was a “considerable amount” of cheques provided by Mr Bethel in support of his claims concerning his contributions, there was “little evidence” that those cheques were referable to the marriage.

Rather, Justice Winder said those cheques were more related to Mr Bethel’s “retail business affairs”.

Justice Winder also said there was “very little evidence” among the documents provided to verify Mr Bethel’s allegation of being a “man of means”, to substantiate the level of money he claimed he contributed.

Justice Winder further stated that based on the evidence, he rejected Mr Bethel’s claims that the home was a “shell” at the time of the marriage. He said besides the “direct evidence” of Mrs Bethel and her witnesses concerning the state of the home, there was evidence that “parties and celebratory functions were hosted at the home prior to the marriage”.

Concerning Mr Bethel’s assertions that he had an interest in both the home—via his contributions for repairs, and the 12 condos, which were constructed by way of a loan secured by the home in question, Justice Winder said those submissions were “wholly unsustainable”.

Justice Winder also said the marital home itself was not matrimonial property, but is in fact non-matrimonial property.

This, Justice Winder said, was based on the fact that sole title to the home was acquired by Mrs Bethel as a result of the property adjustment proceedings in her first divorce.

Additionally, Justice Winder said the home remained solely in Mrs Bethel’s name, notwithstanding Mr Bethel co-signing on a loan at the Bank of the Bahamas (BOB) to assist with the “re-funding” of the home.

That BOB loan, Justice Winder said, also settled several debts of approximately $40,000 belonging to Mr Bethel. And the mortgage that secured the loan contained a specific provision to ensure that the title of the home remained vested in Mrs Bethel.

Other than the two loan payments made by Mr Bethel, Justice Winder said he was satisfied that the loan was paid by Mrs Bethel.

Additionally, Justice Winder said notwithstanding the home’s value being placed at $4m in 2006, he could only find that Mr Bethel contributed some $80,000 towards maintenance, upkeep, utility expenses, etc, inclusive of the two BOB loan payments.

And those contributions, the judge noted, were not related to the home’s acquisition, but rather the “nature of general living expenses of the marriage”.

Also, Justice Winder said Mr Bethel and Mrs Bethel’s marriage was “relatively short”, which mitigated against the non-matrimonial property “merging” into matrimonial property.

Additionally, Justice Winder said, according to legal authorities, the time for valuation of a husband’s interest is the date when the marriage broke down and the mutual support ended.

In the present case, the mutual support of the couple broke down in September 2005 when they separated, at which time the condos were not constructed.

Justice Winder said the value of the assets should be determined as of September 2005, exclusive of the 12 condos. A contemporary appraisal, prepared by Robert Brownrigg of Bahamas Realty on August 24, 2006, listed the entire property was then valued at $4,000,000.

Thus, Justice Winder said there “could be no question” that Mr Bethel has “no interest” in the condominiums. And the condos, therefore, could not be classified as matrimonial assets, because the matrimony was “permanently severed”.

Thus, Justice Winder said having regard to all the circumstances, including the “short duration of the marriage”, he was satisfied that Mr Bethel had not acquired an interest in the non-matrimonial property.

However, after consideration of the factors laid out in Section 29 of the MCA, Justice Winder said it is “clear” that both parties are in an “unequal financial position”.

However, he said that was not a product of the breakdown of their marriage, but rather the “collapse” of Mr Bethel’s businesses.

According to Justice Winder, the evidence was that Mr Bethel’s business collapsed and he continued to make some moneys through importing. However, the judge said those moneys had to be “considerably minimal”, as he was unable to afford an attorney to complete the matter or to cover the cost of appraisals in the matter.

Conversely, Justice Winder said Ms Bethel is semi-retired and has remained financially stable in addition to working part-time in her dentist office. He further noted that both parties are “advancing in age”, but on the evidence are in “relatively good health”.

“In all the circumstances therefore whilst I will not award the husband an interest in the matrimonial home or the 12 condominiums, I will order, in accordance with Section 29 of the MCA, that (Mrs Bethel) make a lump sum payment of $100,000 to (Mr Bethel) to ease his transition.

“This sum (is) to be paid within 90 days”.

Both parties are ordered to bear their own legal costs, Justice Winder added.