Terry Ann Smith v. Andrew Smith

• Court: Supreme Court of Rhode Island
• Decided: February 16, 2022
• Docket: 21-42
• Status: Unpublished

Opinion

Supreme Court

No. 2021-42-Appeal. (P 14-2875)

Terry Ann Smith :

v. :

Andrew Smith. :

ORDER

This case came before the Supreme Court on February 2, 2022, 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 appeal may be decided without further briefing or argument. For

the reasons set forth in this order, we affirm the order of the Family Court.

The defendant, Andrew Smith, appeals pro se from a December 3, 2020

Family Court order (1) directing that XYZAS7, LLC be added as an indispensable

party to this matter; (2) determining that defendant attempted to circumnavigate

prior orders of the Family Court by transferring property located at 1703 Pontiac

-1- Avenue in Cranston, Rhode Island (the property), to himself for a nominal amount;

and (3) directing that the transfer of the property be set aside.1

This is defendant’s ninth appeal from the divorce proceedings in the Family

Court in this matter. The factual background and procedural history of the divorce

and property dispute that gave rise to the instant appeal have already been set forth

in this Court’s previous decisions. Smith v. Smith, 207 A.3d 447 (R.I. 2019) (Smith

I); Smith v. Smith, 252 A.3d 246 (R.I. 2021) (mem.) (Smith II).

After reviewing the record, we conclude that, before the Family Court,

defendant failed to object to the joinder of XYZAS7, LLC as an indispensable party,

and that he in fact agreed to it. Accordingly, this issue is waived, and we will not

consider it on appeal. See In re J.T., 252 A.3d 1276, 1282 (R.I. 2021) (explaining

that, “in accordance with this Court’s longstanding ‘raise-or-waive’ rule, if an issue

was not properly asserted, and thereby preserved, in the lower tribunals, this Court

will not consider the issue on appeal”) (quoting Selby v. Baird, 240 A.3d 243, 246

n.9 (R.I. 2020)).

1 In his submissions and argument before this Court, defendant attempts to assert additional claims of error. However, the only matter properly before this Court is defendant’s appeal of the directives of the December 3, 2020 order of the Family Court. Any other assignments of error advanced by defendant are unrelated to the instant appeal, have already been decided by this Court, and/or fail to state a claim upon which relief can be granted.

-2- As to the remaining issues advanced by defendant on appeal, we conclude that

they have already been decided in his previous appeals to this Court. This Court has

already affirmed the Family Court’s finding that the property in question is marital

in nature. Smith II, 252 A.3d at 249. We have also recognized the Family Court’s

authority to set aside the fraudulent conveyance of the property when defendant

attempted to convey the property to his friend for the consideration of one cent. Id.

at 247, 249 (holding that the defendant’s reliance on Britt v. Britt, 119 R.I. 791, 383

A.2d 592 (1978), “is misplaced; * * * [‘]the Family Court [has] the authority to make

assignments of property in divorce proceedings[,]’” including setting aside the

fraudulent conveyance of property) (quoting Brierly v. Brierly, 431 A.2d 410, 415-

16 (R.I. 1981)).

Here, the trial justice found that XYZAS7, LLC is not a bona fide purchaser

for value, the purported consideration being one dollar and the defendant being the

sole owner of the limited liability company. Again, we will not disturb that finding

on appeal. See Boschetto v. Boschetto, 224 A.3d 824, 828 (R.I. 2020) (“This Court

‘will not disturb findings of fact made by a trial justice * * * in a divorce action

unless he or she has misconceived the relevant evidence or was otherwise clearly

wrong.’”) (quoting Vieira v. Hussein-Vieira, 150 A.3d 611, 615 (R.I. 2016)).2

2 We pause to recognize that the trial justice displayed exceptional judicial temperament when faced with a litigant who is extraordinarily defiant in the face of court orders.

-3- For the reasons set forth herein, we affirm the order of the Family Court. The

papers may be returned to the Family Court with instructions that the directives of

the December 3, 2020 order relative to the sale of the property be implemented

forthwith. Should any other appeals to this Court be filed prior to the sale and

distribution of the sale proceeds, then this Court may, upon motion, consider lifting

the automatic stay implemented pursuant to Rule 62 of the Family Court Rules of

Domestic Relations Procedure. See McDonough v. McDonough, 962 A.2d 47, 54-

55 (R.I. 2009) (noting that “there are various exceptions to [the] general rule” that

Family Court proceedings are stayed pending the outcome of an appeal). th Entered as an Order of this Court this 16 day of February, 2022.

By Order,

/s/ Debra A. Saunders, Clerk __________________________ Clerk

-4- STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903

ORDER COVER SHEET

Title of Case Terry Ann Smith v. Andrew Smith.

No. 2021-42-Appeal. Case Number (P 14-2875)

Date Order Filed February 16, 2022

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

Source of Appeal Providence County Family Court

Judicial Officer from Lower Court Associate Justice Patricia K. Asquith

For Plaintiff:

Jesse Nason, Esq. Attorney(s) on Appeal For Defendant:

Andrew Smith, Pro Se

SU-CMS-02B (revised June 2020)