Appeal By Richard Alexander Miller In The Cause Catherine Salvadori Or Miller Against Richard Alexander Miller
| Jurisdiction | Scotland |
| Judge | Sheriff Principal M.M. Stephen |
| Court | Sheriff Court |
| Date | 30 April 2014 |
| Docket Number | F311/11 |
| Published date | 06 June 2014 |
| SHERIFFDOM OF LOTHIAN AND BORDERS
Case Number: F311/11 2014SCEDIN15 | |
|
| Judgment by
SHERIFF PRINCIPAL MHAIRI M STEPHEN
in appeal by
RICHARD ALEXANDER MILLER Appellant
in the cause
CATHERINE SALVADORI or MILLER Pursuer and Respondent
against
Richard ALEXANDER Miller Defender and Appellant
___________________________
|
Act: Party, Appellant
Alt: Innes, Advocate for Respondent
EDINBURGH, 30 April 2014
The Sheriff Principal having resumed consideration of the cause of consent allows the appeal quoad the first ground of appeal and appoints interest to run at the judicial rate on the capital sum of £207,607.10 from the date of decree until payment; quoad ultra refuses the appeal and adheres to the sheriff’s interlocutors of 28 June and 7 August 2013; finds the respondent liable to the appellant in the expenses of the appeal up to 1 October 2013 thereafter finds the appellant liable to the respondent in the expenses of the appeal from 2 October 2013; allows an account of expenses to be given in and once lodged remits same to the Auditor of Court to tax and to report.
(signed) Mhairi M Stephen
NOTE:
- This is a divorce action at the instance of the wife who seeks divorce, together with an exclusion order in respect of the husband’s occupancy rights in the former matrimonial home and certain interim and protective orders.The appellant who is the husband seeks certain financial orders.The action commenced in the summer of 2011 and proceeded to proof before the sheriff in Livingston over four days commencing on 5 April 2013.Proof was restricted to the evidence of the parties and each led evidence from a chartered surveyor.By interlocutor of 28 June 2013 the sheriff granted divorce in terms of the pursuer’s first crave and otherwise dismissed the remaining craves and pleas in law for the pursuer.The sheriff granted decree for transfer of the property at St John’s Road, Edinburgh from the pursuer to the appellant and awarded a capital sum to the appellant of £207,607.10.The sheriff continued consideration of expenses and the timescale for payment of the capital sum until a hearing on 26 July 2013.Following certain undertakings given by the pursuer or on her behalf the appellant did not insist on his crave for periodical allowance or the transfer of the motor vehicle
- The appellant’s original ground of appeal relates to the sheriff’s failure to award interest at the judicial rate on the capital sum from the date of decree.That ground of appeal now forms the first ground of appeal in the amended note of appeal.Subsequently, a further 10 grounds have been added by way of amendment.The first and original ground is conceded
- Ground 11 strictly speaking does not articulate any point of law far less an error in law but rather refers to a typographical error.This was accepted by the appellant and, indeed, by the respondent at the outset of proceedings.Nothing turns on this error which relates to the year when the appellant ceased to occupy the former matrimonial home namely 2012 not 2013.Grounds 7 to 10 inclusive relate to the sheriff’s findings on expenses following the hearing on expenses on 26 July 2013.The sheriff’s judgment and reasoning on expenses can be found in the second or supplementary judgment dated 7 August 2013
- The appellant’s sixth ground of appeal challenges the competence of the sheriff’s order dated 28 June 2013 in respect of the deferment of payment of the capital sum.At the commencement of the appeal hearing counsel for the respondent indicated that the sale of the former matrimonial home was due to settle the day following namely, Friday 17 January 2014.She produced an irrevocable mandate from the pursuer whereby the proceeds of sale were to be consigned in the hands of her solicitors in order to discharge any standard security or debts, marketing fees and thereafter to satisfy the decree in respect of the capital sum due to the appellant.Standing the terms of the irrevocable mandate this ground of appeal, although argued by the appellant, was essentially academic
- Grounds of appeal 2 to 5 inclusive relate to incidental orders in respect of interest and the parties’ overdraft (Grounds 2 and 3) and the sheriff’s approach to special circumstances in the division of the matrimonial property (Grounds 4 and 5).
- The record (as further amended) sets out the parties’ respective positions.The pursuer, who is the wife, seeks divorce based on the appellant’s adultery.The appellant has a counter crave for divorce based on the parties’ non-cohabitation for two years.There is a dispute as to the date of separation or “relevant date”. The pursuer maintains that the relevant date is June 2011 whereas the defender contends for February 2009.Clearly this is of some importance not only for the purpose of valuation but also due to the appellant’s contention that divorce should be based on two years separation.Shortly prior to the proof the appellant conceded the relevant date as June 2011 as averred by the pursuer.The relevant date having been conceded it would appear that the pursuer’s live craves for proof related to divorce and expenses.It is not clear from the pleadings on what basis the pursuer was arguing for an unequal share of the matrimonial property as at the relevant date.It is a feature of this case that the preponderance of the matrimonial property is in the sole name of the pursuer.There are averments to the effect that the appellant transferred the title to the heritable property into the name of the pursuer during the marriage for reasons of tax efficiency and to protect or shelter the property against attachment or inhibition in the event of there being a dispute with his business partner.
- The sheriff makes findings in fact with regard to the financial matters
“13 The defender was the main breadwinner and the pursuer was the main carer of the two children. Both contributed equally to the marriage.
14. The defender was in complete charge of the financial affairs of the marriage until the pursuer began to question him about such matters in 2008.
15. The defender made the decisions about title to the various heritable properties purchased throughout the marriage. The Mill House was purchased in joint names but he decided to transfer it into name of the pursuer. He purchased two other properties – a shop at 70/71 Main Street, Newtongrange (“the shop”) and an office at 263B St John’s Road, Edinburgh (“the office”) which he put into name of the pursuer. He did that for tax reasons but also to avoid attachment or inhibition of any heritable property in his name. He also arranged for bank accounts to be in name of the pursuer for the same reasons.”
- The sheriff heard evidence over three days from the parties and their respective surveyors.The sheriff deals with two of three disputed areas briefly. These are the grounds for divorce and the value of the Mill House at Leithhead Farm being the former matrimonial home.The appellant admits his adultery and divorce is granted on the basis of that admission together with the evidence of the pursuer and the corroborating affidavits.With regard to the disputed value of the former matrimonial home the sheriff accepts the valuation given by the appellant’s surveyor who was able to give a valuation as at the relevant date.The pursuer’s surveyor had not valued the property as at the relevant date. The value is therefore £390,000.
- The principal area of dispute relates to the sharing of the matrimonial property.In that regard the sheriff required to apply the statutory rules laid down in the Family Law (Scotland) 1985.(“the 1985 Act”)Section 8 is the operative section and is subject to the principles which follow in sections 9, 10, 11 and 12.In section 8 after enumerating the orders that either party may apply to the court for, the operating provision for the court is sub-section 2 in the following terms:-
“Subject to sections 12 to 15 of this act, where an application has been made under sub-section (1) above, the court shall make such order, if any, as is –
- Justified by the principles set out in section 9 of this act; and
-
Reasonable having regard to the resources of the parties.
Thus before making any order or incidental order in relation to financial provision the court must have regard to the principles set out in section 9 and whether the order is reasonable having regard to the “resources of the parties”.
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Section 14 deals with incidental orders.
- The Sheriff dismisses all of the pleas in law for the pursuer apart from the first plea in law.She repels the sixth plea which seeks an unequal division of the matrimonial property based on section 11(7) of the Act.That section deals specifically with the conduct of either party to the marriage and states that the court shall not take that into account unless that conduct has adversely affected the financial resources which are relevant to the decision of the court.The sheriff rejects the argument that the appellant’s conduct leading to his dismissal from employment as a solicitor with the Registers of Scotland due to gross misconduct has adversely affected the financial resources relevant to the claim.She does so as there was no evidence to link the dismissal with a negative or adverse effect on the net matrimonial property.The sheriff likewise rejects the pursuer’s arguments relating to economic disadvantage there being no averments on record to support a case under s.9(1)(b) of the 1985 Act.The sheriff accepts the contingent CGT (Capital Gains Tax) on the transfer of the office to be a special circumstance in terms of section 10 of the 1985 Act.The sheriff accepts that there are special circumstances advanced on behalf of the appellant such as to warrant an unequal division of the matrimonial property.In particular, the sheriff accepts as a special circumstance the source of funding of the property once owned...
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