Shirley P. Morgan, in her capacity as the Administratrix for the Estate of Lisa A. Bicknell v. Richard C. Bicknell

• Court: Supreme Court of Rhode Island
• Decided: March 2, 2022
• Docket: 20-238
• Status: Published

Opinion

March 2, 2022

Supreme Court

No. 2020-238-Appeal. (WC 19-255)

Shirley P. Morgan, in her capacity as : the Administratrix for the Estate of Lisa A. Bicknell

v. :

Richard C. Bicknell :

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

Shirley P. Morgan, in her capacity as : the Administratrix for the Estate of Lisa A. Bicknell

Richard C. Bicknell. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Goldberg, for the Court. This case came before the Supreme

Court on December 8, 2021, pursuant to an order directing the parties to appear

and show cause why the issues before us should not be summarily decided. The

defendant, Richard C. Bicknell, appeals from a final judgment entered in favor of

the plaintiff, Shirley P. Morgan, in her capacity as Administratrix for the Estate of

Lisa A. Bicknell, following the grant of summary judgment in accordance with

Rule 56 of the Superior Court Rules of Civil Procedure. After examining the

record and memoranda submitted by the parties, we are satisfied that cause has not

been shown and, thus, the appeal may be decided at this time. For the reasons

stated herein, we affirm the judgment of the Superior Court. -1- Facts and Travel

Richard C. Bicknell (Richard or defendant) and Lisa A. Bicknell (Lisa or

decedent) were married on June 29, 1991, and had no children.1 At that time, Lisa

participated in an employee-funded 401(k) retirement plan through The TJX

Companies, Inc. (TJX) (the retirement plan). As required by the retirement plan,

Lisa designated her then-husband, Richard, as contingent death beneficiary.

Richard and Lisa divorced on May 23, 2012, and entered into a property settlement

agreement (the PSA) dated February 22, 2012, in the Family Court. The PSA

contained a provision stating, “WIFE has a 401K’ [sic] retirement plan with The

TJX Companies, Inc. As of 12/31/11 the value of the account was approximately

$102,000.00. HUSBAND waives any and all interest that he may have in said

retirement plan.”2 (Emphasis added.) Furthermore, the PSA included a clause

stating that any modification or waiver of the PSA “shall be effective only if made

in writing and executed with the same formality as this Agreement.” (Emphasis

added.)

On August 5, 2018, Lisa died without a will and without having changed

defendant’s designation as beneficiary of the retirement plan. On May 14, 2019,

1 Throughout this opinion, we sometimes refer to Richard Bicknell and Lisa Bicknell by their first names solely for the sake of clarity. No disrespect is intended. 2 According to the complaint, the retirement plan’s estimated value at the time the action was filed was approximately $190,000. -2- plaintiff filed a complaint seeking a temporary restraining order (TRO) to enjoin

defendant from “disposing of, transferring, or conveying any portion of the money

he has, or may receive from [TJX,]” and seeking judgment for the full value of the

retirement plan, claiming that defendant had waived all interest in the retirement

plan under the PSA. After the trial justice granted plaintiff a TRO, the parties

stipulated that defendant would retain the retirement plan funds that TJX had

released to him in a segregated retirement account, until further order of the

Superior Court. Subsequently, plaintiff filed a motion for summary judgment on

the ground that the PSA constituted a waiver of defendant’s interest in Lisa’s

retirement plan. The trial justice concluded that the PSA clearly and

unambiguously established that defendant had waived any and all interest in the

retirement plan. Therefore, the trial justice granted summary judgment and

ordered that the retirement funds be transferred to plaintiff. The defendant timely

appealed the trial justice’s decision.3

3 As a preliminary matter, it is worth noting that review of this case was complicated by the existence of two documents entitled “Judgment” that contained similar language but were filed on different dates in the Superior Court. The first filing, standing alone, likely may have sufficed as a valid judgment from which an appeal might have been taken; however, taking into consideration all of the circumstances surrounding this matter, we assume without deciding that defendant’s appeal from the later filed “Judgment” was timely, and we proceed to decide this appeal. -3- Standard of Review

“This Court reviews a grant of summary judgment de novo.” Sullo v.

Greenberg, 68 A.3d 404, 406 (R.I. 2013) (brackets omitted) (quoting Sacco v.

Cranston School Department, 53 A.3d 147, 149-50 (R.I. 2012)). “Examining the

case from the vantage point of the trial justice who passed on the motion for

summary judgment, ‘we view the evidence in the light most favorable to the

nonmoving party, and if we conclude that there are no genuine issues of material

fact and that the moving party is entitled to judgment as a matter of law, we will

affirm the judgment.’” Id. at 406-07 (brackets omitted) (quoting Sacco, 53 A.3d at

150). “Summary judgment is appropriate only when the ‘pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.’” Sola v. Leighton, 45 A.3d 502,

506 (R.I. 2012) (brackets omitted) (quoting Plunkett v. State, 869 A.2d 1185, 1187

(R.I. 2005)). “Where the facts suggest only one inference,” the hearing justice may

treat the issue as a matter of law. See Deutsche Bank National Trust Company, for

Registered Holders of Ameriquest Mortgage Securities, Inc. v. McDonough, 160

A.3d 306, 311 (R.I. 2017) (brackets omitted).

“Although summary judgment is recognized as an extreme remedy, * * * to

avoid summary judgment the burden is on the nonmoving party to produce

-4- competent evidence that ‘proves the existence of a disputed issue of material

fact.’” Sullo, 68 A.3d at 407 (brackets omitted) (quoting Mutual Development

Corporation v. Ward Fisher & Company, LLP, 47 A.3d 319, 323 (R.I. 2012)).

However, “summary judgment should enter against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case * * *.” Correia v. Bettencourt, 162 A.3d 630, 635 (R.I. 2017) (quoting

Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016)).

Analysis

The defendant argues that the trial justice erred in granting summary

judgment because a genuine issue of material fact remains: Whether Lisa’s failure

to change the beneficiary on her retirement plan constituted a waiver of

defendant’s “waiver” of his interest in the retirement plan under the PSA. The

defendant claims that waiver is a question of fact. See Haxton’s of Riverside, Inc.

v. Windmill Realty, Inc., 488 A.2d 723, 725-26 (R.I. 1985) (“As a general rule, the

question of whether a party has voluntarily relinquished a known right is one of

fact for a jury.”). He also contends that the party alleging waiver has the burden to

show its existence. See Haydon v. Stamas, 900 A.2d 1104, 1113 (R.I. 2006) (“The

party arguing that there has been a waiver bears the burden of showing clearly its

existence * * *.”). The defendant asserted by way of affidavit that, after the

divorce, the former spouses continued to see each other and that decedent

-5- reassured him that she would never remove him as the beneficiary of the retirement

plan.

On the other hand, plaintiff argues that the PSA is a binding contract

governing the rights of the parties to the retirement plan. She also claims that,

under the Employee Retirement Income Security Act of 1974, Lisa was required to

name her spouse as the death beneficiary, unless Richard signed a waiver

permitting her to designate a nonspouse. Although it was incumbent upon Lisa to

notify the plan administrator of her change in marital status and to complete a new

beneficiary designation, plaintiff contends, Lisa’s failure to comply with this

provision was merely a matter of personal irresponsibility and poor plan

administration. Accordingly, plaintiff avers that, given the clear language in the

PSA setting forth defendant’s waiver of any interest in the account and defendant’s

only evidence of a genuine issue of material fact in the form of a self-serving

affidavit, the trial justice did not err in granting plaintiff’s motion for summary

judgment. We agree.

The decedent’s failure to remove defendant as the beneficiary of the

retirement plan is of no moment in the circumstances of this case because such a

change would not affect defendant’s waiver of “any and all interest” that he may

have had in the account. Therefore, the issue before this Court is whether

defendant waived his interest in the retirement plan in accordance with the PSA’s

-6- waiver provision. This question is a matter of contract interpretation and, thus, is

controlled by the PSA.

“A property settlement agreement ‘that is not merged into a divorce

judgment retains the characteristics of a contract.’” DiPaola v. DiPaola, 16 A.3d

571, 576 (R.I. 2011) (quoting Riffenburg v. Riffenburg, 585 A.2d 627, 630 (R.I.

1991)). With respect to contract interpretation, it is well settled that “[o]ur primary

task * * * is to attempt to ascertain the intent of the parties.” Woonsocket Teachers’

Guild, Local 951 v. School Committee of City of Woonsocket, 117 R.I. 373, 376,

367 A.2d 203, 205 (1976). “[T]he intention of the parties must govern if that

intention can be clearly inferred from” the terms and express language of the

contract. Id. “In the absence of ambiguity, the interpretation of a contract is a

question of law[.]” Andrukiewicz v. Andrukiewicz, 860 A.2d 235, 238 (R.I. 2004).

“In determining whether an agreement is clear and unambiguous, the document

must be viewed in its entirety and its language be given its plain, ordinary and

usual meaning.” Arnold v. Arnold, 187 A.3d 299, 311 (R.I. 2018) (quoting W.P.

Associates v. Forcier, Inc., 637 A.2d 353, 356 (R.I. 1994)). “We have consistently

held that a contract provision is ambiguous if it is ‘reasonably susceptible of

different constructions.’” Carney v. Carney, 89 A.3d 772, 776 (R.I. 2014) (quoting

Paul v. Paul, 986 A.2d 989, 993 (R.I. 2010)).

-7- Here, Richard and Lisa signed a PSA containing a waiver provision with

very specific and clear language to the effect that defendant waived “any and all

interest that he may have” in the retirement plan. (Emphasis added.) Furthermore,

there is no evidence that either party executed a post-divorce modification or

waiver of the PSA in writing. Therefore, we are of the opinion that the defendant

waived any and all interest in the retirement plan and that no genuine issue of

material fact remains in dispute. Accordingly, the trial justice properly granted

summary judgment in favor of the plaintiff.

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court. The papers in this case may be returned to the Superior Court.

-8- STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903

OPINION COVER SHEET

Shirley P. Morgan, in her capacity as the Title of Case Administratrix for the Estate of Lisa A. Bicknell v. Richard C. Bicknell. No. 2020-238-Appeal. Case Number (WC 19-255)

Date Opinion Filed March 2, 2022

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Washington County Superior Court

Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter

For Plaintiff:

Mark T. Buben, Esq. Attorney(s) on Appeal For Defendant:

Steven A. Robinson, Esq.

SU-CMS-02A (revised June 2020)