Collett JA, Georges JA, Zacca JA
IN THE COURT COURT OF APPEAL OF THE CAYMAN ISLANS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
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CAUSE # D 2 OF 1995
C.I.C.A. # 3/95
Before:
The Rt. Hon. Mr. Justice Edward Zacca P.C.，O.J. President
The Rt. Hon. Mr. Justice Telford Georges，P.C.，J.A.
The Hon. Mr. Justice Gerald Collett J.A.
BETWEEN
DONALD WHEELER
PETITIONER/APPELLANT
AND
MYO SOOK WHEELER
RESPONDENT/RESPONDENT
9th April，1996 and 9th August 1996
Mr. Ramon Alberga Q.C. instructed by Mr. S. McCann of
Bruce Campbell & Co for the Appellant
Mr. W. J. Helfrecht of Ian Boxall & Co for the Respondent
GEORGES，J.A.
JUDGMENT
Section 5 of the Matrimonial Causes Law 9 of 1976 (the Law) vests in
the Grand Court the jurisdiction to entertain a suit arising out of
the Law
Where at the time of filing suit or at a time when the suit was
domined the suit，either party to the suit was present or
ciled into part he and within c of three years of the filing suit，being a female，has been
ordinarily resident in the Islands for at least two years immediately preceding the
presentation of the petition."
The respondent in this appeal, Myo Sook Wheeler (Mrs. Wheeler), filed a petition for divorce and related ancillary remedies against her husband, Donald James Wheeler (Mr. Wheeler), on January 12, 1995. On being served with the petition, Mr. Wheeler filed a summons seeking leave to enter conditional appearance and asking that the petition be struck out. The basis of the application was that neither party was domiciled in the Caymans and that Mrs. Wheeler had not been resident in the Caymans for a period of at least two years immediately preceding the presentation of the petition. Smellie J. held that Mrs. Wheeler had met the requirements of being "ordinarily resident" for the period prescribed in the Law and that the Court did have jurisdiction to entertain the petition. From that decision Mr. Wheeler has appealed.
Mr. Wheeler is an American businessman now in semi-retirement. His business commitments required frequent travel. He has, since 1987, to use his own words "enjoyed the privilege of holding permanent residency in the Cayman Islands". A company, the beneficial owners of which are himself and a family member, are the registered proprietors of a house in Grand Cayman, Casa del Mar, which he can use whenever he is here. Photographs indicate that it is a well appointed house, suitable for use as a residence, though also lent for business conduct.
Mrs. Wheeler is a Korean by birth. She moved to the United States of America when she married an American serviceman and became an American citizen. They divorced in 1980. Mr. Wheeler met her in
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1989 while she worked at a Japanese restaurant. They became friends and later lovers. They lived together for a year and got married on September 10, 1990.
Before their marriage they lived at first in a town house - 1715 East las Olas Street in Fort Lauderdale. She moved there with all her belongings. In August 1991 they moved to a bungalow at 1230 Cordova, Fort Lauderdale, which was more convenient for the use of Mr. Wheeler's yacht. Generally Mr. and Mrs. Wheeler divided their time between Casa del Mar and the town house at 1715 East las Olas Street and later the bungalow at 1230 Cordova, Fort Lauderdale. An agreed summary from stamps in Mrs. Wheeler's passport shows that in 1989, starting from September, she spent 59 days in Grand Cayman, in 1990 she spent 193 days, in 1992 151 days and in 1993 139 days.
Her evidence was that she considered the house Casa del Mar as their home. During their absences the house was empty and locked. A housekeeper kept it clean and ready awaiting their return.
In 1992, Mr. Wheeler decided to build a house in North Carolina to be called "The Hideaway". Mrs. Wheeler was involved in selecting the plot and in discussions as to its design and structure. She was actively involved in or directly responsible for the selection of the plot and the design and structure of the house. She was also involved in the landscaping and the grading of the property. The property was owned by a Cayman Corporation, the shares of which were beneficially owned by Mr. Wheeler. Mrs. Wheeler describes The Hideaway as a summer get-away which would also be a good investment. Mr. Wheeler describes it as
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their home in his semi-retirement with Casa del Mar being merely a business and vacation base in the Caymans.
The judge found that, since November 1993, The Hideaway had been occupied by them "for periods longer than and with greater regularity than they spent at Casa del Mar". He also found, that despite this, the entire circumstances remained consistent with petitioner's evidence which he accepted that Casa del Mar was an established home for the parties in the Cayman Islands from the time of their marriage and before the Hideaway was built, and that it was used by them, though at the convenience of Mr. Wheeler at frequent and regular periods as part of the regular and ordinary pattern of their lives. This pattern continued even after The Hideaway was built. These conclusions are supported by the evidence and there can be no ground for interfering with them.
"Ordinary residence" is defined in section 2 (1) of the Law as having "the meaning ascribed to it from time to time in English law". The definition hardly assists having regard to Lord Scarman's statement in Reg v Barnet London Borough Council ex parte Nilish Shah [1983] 2 A.C. 309 at p. 340 that "ordinary residence is not a term of art in English law".
Lord Scarman, case, with the other Lords concurred, adopted the definition formulated by Lord Denning M.R. at the hearing of the matter at the Court of Appeal reported at [1982] Q.B. 688 at p. 720.
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"Traditionally we ought simply to apply the natural and ordinary meaning of the two words 'ordinary resident' in the context of [The Education Act]. If we were to do that here I feel I would apply the test submitted by Mr. Lester. The words 'ordinary resident' mean that the person must be habitually and normally resident here, apart from temporary and occasional absences."
The words "temporary and occasional absences" did not raise problems in the case of **Reg v Barnet London Borough Council ex parte Nilish Shah** (supra). The persons whose status as being "ordinarily resident" were being discussed were students living in England for the purpose of their studies.
They do cause difficulties in cases where the person involved can be said to live in two places in such circumstances that each of them can be described as his or her ordinary residence. The possibility of being ordinarily resident in two places has been recognized. Thus in **Levene v Inland Revenue Commissioners [1928] A.C. 217**, Viscount Cave L.C. stated at p 223 -
"But a man may reside in more than one place. Just as a man may have two homes - one in London and the other in the country - so he may have a home abroad and in the United Kingdom, and in that case he is held to reside in both places and to be chargeable with tax in this country. Thus in **Cooper v Cadwalader** an American resident in New York who had taken a house in Scotland which was at any time available for his occupation, was held to be resident although he had occupied the house for the only occasion during the year."
The facts under discussion there related to tax legislation but the principles enunciated were not being limited to the use of the
word in a tax context. This was made clear by Lord Scarman in Reg v
Barnett London Borough Council ex parte Nilish Shah (supra) at p. 341.
It was urged upon your Lordships ... that these
two decisions of the House were authority only
for a special meaning limited to the Income Tax
Acts. The converse is the case. The true
reading of the speeches delivered is that the
House decided to construe the words in their tax
context as bearing the natural and ordinary
meaning as words of common usage in the English
language."
It may also be noted that although in the passage quoted from
the judgment of Viscount Cave in Levene v Inland Revenue Commissioners
(supra) he discussed the word "reside" rather than the phrase
"ordinarily resident" there are dicta supporting the view that
ordinary residence means no more than that the person held to reside
does so in the ordinary course of his life - see per Lord Buckmaster
in Inland Revenue Commissioners v Lysaght [1928] AC 234 at p. 248.
Thus it may be possible to find that at person is resident in Miami
where that person has settled for 4 months for the purpose of
receiving medical treatment though not ordinarily resident there since
it was not part of the ordinary course of his life.
In this case the trial judge has found that Mrs. Wheeler was
ordinarily resident in Casa del Mar in Grand Cayman and there is
Wheeling their repF lived
period
that ordinary residence there
of the
significant
area
there
During marriage their
spent snt Mrs.
evidenin the cours
Mr. an
tedly ig
at Casa del Mar which was kept at all times ready and available for
their use. That finding cannot, therefore, be disturbed.