May 11, 2021
Supreme Court
No. 2019-394-Appeal. (P 16-5381)
Kellie Sullivan :
v. :
Timothy Sullivan. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Chief Justice Suttell, for the Court. The defendant, Timothy Sullivan,
appeals from a decision pending entry of final judgment terminating his marriage to
the plaintiff, Kellie Sullivan, on the grounds of irreconcilable differences. On
appeal, the defendant asserts that the trial justice made several errors involving
factual findings, marital assets, and marital debt. This case came before the Supreme
Court pursuant to an order directing the parties to appear and show cause why the
issues raised in this appeal should not be summarily decided. After considering the
parties’ written and oral submissions and reviewing the record, we conclude that
cause has not been shown and that this case may be decided without further briefing
or argument. For the reasons set forth in this opinion, we affirm the decision pending
entry of final judgment of the Family Court.
-1- I
Facts and Travel
The parties were married on June 19, 2004, and have two children, born in
2005 and 2007.
In October 2016, plaintiff filed a complaint for divorce in Providence County
Family Court, citing irreconcilable differences that had caused the irremediable
breakdown of the marriage as grounds therefor, and she requested legal custody and
physical placement of the children, child support, and equitable distribution of the
marital assets. The defendant filed a counterclaim in April 2017, requesting that the
parties be awarded joint legal custody of the children with physical placement
assigned to him and child support awarded to him. He also sought medical and
dental insurance coverage for himself and the children under plaintiff’s health plan
and asked the court to order plaintiff “to pay any and all reasonable and necessary
uninsured or underinsured medical, dental, hospital, ophthalmologic and orthodontic
services, including medicines and prescriptions, for the benefit of the said minor
children, in excess of health insurance coverage[.]” The defendant also requested
equitable distribution of the marital assets.
The case was tried over several days in 2018 with testimony by only plaintiff
and defendant, most of which dealt with the parties’ respective contributions to the
-2- marriage—both financially and through household responsibilities—and the
contested assets and debts.
The trial justice issued a written decision on July 3, 2019, granting both
plaintiff’s complaint and defendant’s counterclaim for divorce. The trial justice
began his decision by reviewing the parties’ testimony; he indicated that plaintiff’s
“testimony was both candid and credible[,]” whereas defendant’s testimony “was
less than candid, not credible, and unworthy of belief[.]” He made a total of
forty-one findings of fact.
The trial justice awarded the parties joint custody of the children, with
physical placement awarded to plaintiff; plaintiff was given the opportunity to buy
out defendant’s interest in the marital domicile or, in the alternative, she and the
children could occupy the marital domicile until the younger child attains the age of
eighteen and completes high school. The trial justice found that plaintiff “was both
the primary breadwinner during the marriage and also the primary homemaker” and
that “[d]efendant’s efforts to find employment over the last several years,
commensurate with his education and experience, have been less than admirable,
and border on lethargic[.]” He found that plaintiff earned a salary of approximately
$100,000 and that defendant had an annual earning capacity of $85,000; the trial
justice therefore directed that defendant pay to plaintiff $302 per week in child
support. The trial justice additionally found that plaintiff had contributed to the
-3- acquisition of defendant’s MBA and that plaintiff had contributed substantial
premarital assets to the marital estate.
With regard to the marital domicile, the trial justice found that the fair market
value was $305,000, based upon the appraisals presented by both parties. He noted
that, although “[d]efendant’s parents contributed towards the acquisition of the
marital estate, * * * it was [p]laintiff’s efforts which were largely responsible for the
preservation and appreciation in value of the same[.]” He set defendant’s interest in
the marital domicile at $152,500 “based upon the facts of this case and the
application of the equitable distribution statute[.]”
The trial justice further found that defendant’s parents had held a promissory
note and a recorded mortgage encumbering the marital domicile in the amount of
$150,000, which mortgage had been “paid in full on May 17, 2007[.]” He also found
that defendant’s mother had filed a collection suit against the parties in
Massachusetts for $140,000, which the Massachusetts Superior Court had
dismissed. The trial justice characterized the Massachusetts suit as “a nullity” and
directed that defendant pay “reasonable costs or fees incurred by the [p]laintiff in
the defense of said litigation[.]” The trial justice also directed that defendant obtain
a discharge of the mortgage and promissory note from his mother.
The trial justice thereafter found that any and all pension assets and bank
accounts acquired by plaintiff during the term of the marriage were marital assets;
-4- he also found that all pension assets and bank accounts not converted into a joint
account during the marriage, acquired by plaintiff prior to marriage, were not marital
assets. He awarded 70 percent of said marital assets to plaintiff and 30 percent to
defendant. Furthermore, the trial justice directed defendant to pay plaintiff his
contribution towards running the marital domicile during the pendency of the case,
which was set at $77,020.17 as of May 9, 2019. He additionally found that
defendant’s $39,000 credit-card debt was “not a marital debt, and should be assigned
to the [d]efendant[.]”
A decision pending entry of final judgment, reflecting the directives of the
written decision, entered on August 19, 2019. The defendant filed a timely notice
of appeal on August 29, 2019.
II
Standard of Review
“This Court ‘will not disturb findings of fact made by a trial justice or
magistrate in a divorce action unless he or she has misconceived the relevant
evidence or was otherwise clearly wrong.’” Boschetto v. Boschetto, 224 A.3d 824,
828 (R.I. 2020) (quoting Vieira v. Hussein-Vieira, 150 A.3d 611, 615 (R.I. 2016)).
“Consequently, unless it is shown that the trial justice either improperly exercised
his or her discretion or that there was an abuse thereof, this Court will not disturb
the trial justice’s findings.” Id. (quoting Vieira, 150 A.3d at 615).
-5- “The justices of the Family Court are vested with broad discretion as they seek
to fairly divide marital property between the parties in divorce proceedings.”
Boschetto, 224 A.3d at 828 (quoting Vieira, 150 A.3d at 618). “It is well established
that the equitable distribution of property is a three-step process.” Id. (quoting
Vieira, 150 A.3d at 618). “The trial justice first must determine which assets are
marital property, then must consider the factors set forth in [G.L. 1956]
§ 15-5-16.1(a), and, finally, he or she must distribute the property.” Id. (quoting
Vieira, 150 A.3d at 619).
III
Discussion
A
Findings of Fact
On appeal, defendant first contends that the trial justice misconceived
evidence and/or was clearly wrong in reaching several of his findings. Specifically,
he argues that the trial justice erred in his findings regarding (1) the parties’
respective contributions to the marriage; (2) plaintiff’s contribution to defendant’s
acquisition of his MBA; (3) defendant’s credit-card debt; and (4) defendant’s
earning capacity. We address each claim of error seriatim.
The defendant first argues that the trial justice erred in his findings on the
parties’ respective contributions to the marriage; he asserts that he contributed
-6- substantial premarital assets to the marital estate, including $380,000 from the sale
of his two premarital condominiums. He additionally contends that he contributed
to the marital expenses until he lost his job and his unemployment benefits ran out
in 2015 and that he contributed to the marriage with “non-monetary contributions.”
Accordingly, he argues that he deserves more of the marital estate than he was
awarded.
In his decision, the trial justice thoroughly reviewed the testimony of the
parties regarding specific assets, their respective employment histories, and the
division of household labor and child care. While it is true that defendant contributed
to the marital expenses until he became unemployed, the trial justice found that
defendant’s “efforts to find employment over the last several years, commensurate
with his education and experience, have been less than admirable, and border on
lethargic[.]” The defendant additionally indicated in his testimony that his parenting
style was “hands-off” and that he does not “actively pursue helping [the children]
with things; but, if they need help, [he]’ll help them”—he testified that he gets as
“involved as they’ll let me.” The plaintiff, on the other hand, testified that she was
the children’s “primary caretaker as far as preparing meals, laundering their
uniforms, pressing their uniforms, laundering their clothes[,]” making appointments,
transporting them to extracurricular activities and medical appointments, helping
-7- with schoolwork, volunteering at school weekly, and attending parent-teacher
conferences.
Furthermore, while plaintiff’s testimony regarding income, assets, and marital
and family expenditures was detailed and specific, defendant’s testimony regarding
these topics was vague. It is clear from the testimony that the trial justice was correct
in finding that plaintiff “was both the primary breadwinner during the marriage and
also the primary homemaker[.]” Accordingly, we are of the opinion that the trial
justice’s findings regarding each party’s marital contributions are amply supported
by the record.
The defendant next contests the trial justice’s finding that plaintiff contributed
to the acquisition of his MBA. This argument is without merit; although defendant’s
father financed defendant’s graduate-school education, plaintiff held a full-time job
and was the primary homemaker and child-care provider during that time.
Additionally, plaintiff testified that she was supportive of defendant in this endeavor,
even though it took “away from time with the children and with [herself.]”
Therefore, the trial justice did not misconceive relevant evidence, nor was he
otherwise clearly wrong, when he found that plaintiff had contributed to defendant’s
acquisition of his MBA.
The defendant next argues that the trial justice erred in assigning his $39,000
credit-card debt to defendant, rather than finding that debt to be a marital debt.
-8- Although defendant claims that the credit card was used for household expenses, he
was unable to provide any credit-card statements or any other evidence identifying
the charges, nor could he articulate what charges were for marital expenses and what
charges were for business expenses. We also note that defendant agreed that plaintiff
had previously paid off an $18,000 debt on a credit card in defendant’s name, and
he did not dispute that plaintiff had asked him to cut up the credit card. In light of
the trial justice’s credibility findings, we are satisfied that he acted within his
discretion in assigning the $39,000 credit-card debt to defendant.
The defendant also asserts that the trial justice erred in finding that defendant
has an annual earning capacity of $85,000. The defendant notes that there were no
“vocational experts” at trial and that, therefore, it is unclear how the trial justice was
able to determine his earning capacity. The trial justice, however, considered
defendant’s educational background, the fact that he holds an MBA, and his
employment history, noting that defendant’s highest annual earnings during the
marriage were approximately $52,000, while he was employed by his family’s
business. Critically, the trial justice found that defendant had not been employed
full-time since 2012, and that his efforts to find employment had been woefully
inadequate. The trial justice did not misconceive evidence, nor was he clearly
wrong, in ascribing to defendant an annual earning capacity of $85,000.
-9- B
Debt Owed to Defendant’s Parents
The defendant additionally contends that the trial justice erred in addressing
the debts owed to his parents.
The defendant first asserts that the decision pending entry of final judgment
does not address an undocumented $168,000 loan from his parents purportedly used
to fund the acquisition of his premarital condominium, which later became the
parties’ initial marital home. However, the trial justice did address defendant’s claim
that the “undocumented loan” was transmuted into a marital debt, and he rejected it.
The trial justice noted that plaintiff had testified that “[s]aid mortgage was paid off
in part during the course of their marriage” and, during the trial, defendant provided
no documentation of the loan or of the payments made to his parents. Accordingly,
the trial justice deemed defendant’s testimony and the alleged loan, with no
documentation, as “poppycock.” Because no evidence of such a loan was provided,
other than defendant’s testimony, we find no error with the trial justice’s
determination.
The defendant also claims error in the trial justice’s decision ordering that
defendant pay plaintiff’s attorneys’ fees accrued from defending the suit that
defendant’s mother filed against the parties in Massachusetts to secure payment on
the purported mortgage.
- 10 - It is well-settled that “determining what constitutes marital property and
dividing it in an equitable fashion ‘is within the sound discretion of the trial court.’”
Palin v. Palin, 41 A.3d 248, 256 (R.I. 2012) (quoting Curry v. Curry, 987 A.2d 233,
238 (R.I. 2010)). “Although § 15-5-16.1 does not explicitly permit a trial justice to
assign marital debt, we previously have reviewed lower courts’ assignments of
marital debt in the same fashion as assignments of marital assets.” Id.; see Curry,
987 A.2d at 239, 240 (affirming trial justice’s assignment of student-loan debt, taken
out by husband for son’s education, to husband); Koutroumanos v. Tzeremes, 865
A.2d 1091, 1098-99 (R.I. 2005) (affirming classification of credit-card debt as
marital debt and assignment of such debt to husband). “[A] trial justice properly
may consider all the circumstances surrounding the debt, including the purpose of
the debt, the receipt of the benefits, the conduct of the parties concerning the debt,
the consent or lack thereof by the nonsignatory spouse, and the knowledge of the
debt by said spouse at the time the debt was incurred.” Palin, 41 A.3d at 256.
Furthermore, “as long as this Court is able to review a lower court’s decision and to
determine therefrom that all the necessary facts and statutory factors were
considered, the trial justice need not explicitly list his or her findings on each factor.”
Id. (brackets omitted) (quoting Curry, 987 A.2d at 238).
Although he did not explicitly name it as such in his decision, it is clear to us
that the trial justice classified the attorneys’ fees incurred by plaintiff as a marital
- 11 - debt. See Palin, 41 A.3d at 256. The trial justice found that “[p]laintiff was forced
to retain counsel to defend against” defendant’s mother’s collection suit in the
Commonwealth of Massachusetts, which suit “th[e] [c]ourt considers a nullity[.]”
He further found that “[d]efendant allowed his suit to be defaulted, without any
reasonable explanation[,]” and concluded that “[b]ased upon the facts and
circumstances leading up to said Massachusetts lawsuit, and [d]efendant’s actions
or lack thereof, * * * any and all reasonable costs or fees incurred by the [p]laintiff
in the defense of said litigation, should be borne by the [d]efendant.” One such
circumstance, he found, was defendant’s failure to obtain his parents’ discharge of
the $150,000 mortgage and promissory note. It is evident that the trial justice
considered “all the circumstances surrounding the debt” before assigning the debt to
defendant. Id. Accordingly, we hold that the trial justice did not err in assigning to
defendant the attorneys’ fees incurred by plaintiff.
The defendant additionally argues that the trial justice erred when he
determined that defendant is responsible for obtaining a mortgage discharge from
defendant’s mother with respect to the loan taken by the parties to purchase the
marital domicile. Although defendant asserts that the trial justice attempted to
compel a nonparty to discharge a mortgage, the trial justice provided an alternative
route by authorizing plaintiff to commence suit in Superior Court to quiet title “[i]n
the event the [d]efendant is unable to obtain said discharge[.]” It is clear to us that
- 12 - the trial justice was not attempting to compel nonparty action; he was merely seeking
an efficient resolution of this issue. We therefore hold that the trial justice did not
err in ordering defendant to secure a mortgage discharge from his mother or, in the
alternative, by making him responsible “for all reasonable fees and costs necessary
to clear said title as it pertains to the yet undischarged mortgage to [d]efendant’s
parents.”
C
Premarital and Marital Assets
The defendant next argues that the trial justice erred in failing to accord him
any of the marital appreciation of plaintiff’s premarital accounts.
This Court has held that “[t]he appreciation of the value of an investment
account may be subject to equitable distribution pursuant to § 15-5-16.1(b).”
Boschetto, 224 A.3d at 829. The relevant portion of § 15-5-16.1(b) states that “the
court may assign the appreciation of value from the date of the marriage of property
or an interest in property which was held in the name of one party prior to the
marriage which increased in value as a result of the efforts of either spouse during
the marriage.” (Emphasis added.)
In the decision pending entry of final judgment, the trial justice awarded
plaintiff all right and title to her premarital pension assets, including appreciation in
value, because the “increase was passive and not due to the efforts of either party
- 13 - during the marriage[.]” He also awarded plaintiff all right and title in her premarital
bank accounts, not converted into joint accounts, and their appreciation in value,
“based upon the facts of this case and the components of the equitable distribution
statute.” He then awarded defendant 30 percent of plaintiff’s pension and bank
account acquired during the marriage.
We discern no error in the trial justice’s application of the equitable
distribution statute or in the division of premarital assets. As evinced by the use of
the word “may[,]” § 15-5-16.1(b) is discretionary in nature—the trial justice was not
required to assign a portion of the appreciation in value of plaintiff’s premarital
pension assets or premarital bank accounts to defendant. See § 15-5-16.1(b).
Furthermore, the trial justice found that any increase in the pension assets was
passive, and not due to the parties’ efforts, putting it squarely outside of the equitable
distribution statute. See id. Accordingly, we hold that the trial justice did not err in
not according defendant any of the appreciation of plaintiff’s premarital accounts.
Finally, the defendant claims that the trial justice erred in preventing him from
exploring the plaintiff’s dissipation of marital assets. The defendant, however, fails
to point to any specific ruling by the trial justice that the defendant challenged in
Family Court by way of objection, or to questions he was prevented from asking the
plaintiff. Thus, we will not disturb the trial justice’s finding that the plaintiff did not
dissipate marital assets and that she was “quite frugal and responsible for the
- 14 - preservation of said assets and was further forthright in her testimony as to numerous
bank accounts and the present status of the same[.]”
IV
Conclusion
For the reasons stated herein, we affirm the decision pending entry of final
judgment of the Family Court. The record may be returned to the Family Court.
- 15 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case Kellie Sullivan v. Timothy Sullivan.
SU-2019-0394-Appeal. Case Number (P 16-5381)
Date Opinion Filed May 11, 2021
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Providence County Family Court
Judicial Officer from Lower Court Associate Justice John E. McCann, III
For Plaintiff:
Thomas M. Dickinson Esq. Attorney(s) on Appeal For Defendant:
Jerome V. Sweeney, III Sean P. Keough, Esq.
SU-CMS-02A (revised June 2020)