Rosemarie L. Lavallee v. Daniel P. Lavallee , 2016 R.I. LEXIS 50 ( 2016 )

Supreme Court
No. 2015-50-Appeal.
(K 04-664)
Rosemarie L. Lavallee :
v. :
Daniel P. Lavallee. :
ORDER
This case came before the Supreme Court on February 24, 2016, pursuant to an order
directing the parties to appear and show cause why the issues raised in this appeal should not
summarily be decided. We conclude that cause has not been shown and that the appeal may be
decided at this time. For the reasons set forth herein, we affirm the order of the Family Court.
Rosemarie Lavallee, a self-represented plaintiff, appeals from a Family Court order that
denied and dismissed a motion that she filed under Rule 60 of the Family Court Rules of
Procedure for Domestic Relations. She disputes a decision by the Family Court that granted the
defendant, Daniel P. Lavallee, responsibility for coordinating the medical care for their son and
provided that their children not be required to attend family counseling. The trial justice’s
decision was based, in part, on a court-ordered report by the Department of Children, Youth and
their Families (DCYF) and the testimony of the caseworker who authored the report. 1 The
Family Court’s order entered on June 13, 2011.
1
A transcript of this hearing was not provided.
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On April 26, 2013, two years after the DCYF report was completed, and almost two years
after it was submitted into evidence and relied on by the court to determine placement and
control over medical decision-making, plaintiff filed a motion pursuant to Rule 60 entitled,
“Fraud against the Court.” She alleged that the DCYF report was “corrupt” and requested that
multiple court orders be vacated. Specifically, plaintiff challenged the caseworker’s
qualifications to make recommendations about counseling for her children and control by
defendant over medical decisions for them. Beyond challenging the integrity of the report, she
suggested that defendant’s attorney fraudulently colluded with DCYF. That motion was heard
by a justice of the Family Court on May 1, 2013.
Although she did not specify which orders she wished to be vacated in her Rule 60
motion, she did tell the Family Court that her objective was to regain placement of her children.
She asserted that her son’s condition was deteriorating and that, although DCYF had medical
records to substantiate his condition, DCYF was “looking for the dirt on me. I didn’t do
anything. I had – there [was] absolutely no evidence. They went after me to destroy my life. I
lost my home because of this man * * *.” The plaintiff argued that both children needed therapy,
defendant refused to provide it, and their son needed medication.
In response, defendant argued that plaintiff’s motion was time-barred. He argued that
plaintiff’s allegations of fraud occurred in March 2011 and that the one-year limit provided under
Rule 60(b) expired before she filed her motion. Second, defendant argued that plaintiff had
previously filed two motions on these same issues that were heard on September 7, 2011, and
July 31, 2012, and denied. 2
The trial justice denied plaintiff’s Rule 60 motion on the basis that “there [was] not a
scintilla of evidence of any fraud.” He noted that plaintiff alleged the fraud had occurred in
2
Transcripts of these hearings were not provided.
-2-
March 2011, yet nothing was mentioned during an extensive hearing on May 27, 2011, when the
court admitted evidence from DCYF representatives. He recounted that plaintiff was heard
twice after that, on September 7, 2011, and July 31, 2012, and that she never raised the issue of
fraud on those occasions either. He concluded that “[t]his [was] just another attempt to change
the placement back to the mother.” He found that there was no change in circumstances that
would justify a change in placement and, other than mere allegations, there was no evidence of
fraud. The trial justice denied plaintiff’s motion both because there was no evidence to suggest
any fraud and because plaintiff’s motion was untimely.
This Court will not disturb a trial justice’s ruling on a motion to vacate “absent a showing
of abuse of discretion or other error of law.” Tworog v. Tworog, 45 A.3d 1194, 1198 (R.I. 2012)
(quoting Flynn v. Al-Amir, 811 A.2d 1146, 1150 (R.I. 2002)). Rule 60(b) permits relief from a
final judgment on a number of grounds, including fraud. Rule 60(b) says that “the court may
relieve a party * * * from a final judgment, order, or proceeding for the following reasons: * * *
(3) [f]raud, misrepresentation, or other misconduct of an adverse party[.]” However, Rule 60
also includes an important proviso that a motion to vacate a judgment based on fraud “shall be
made within a reasonable time * * * not more than one year after the judgment, order, or
proceeding was entered or taken.” The record is clear that plaintiff did not meet the one-year
deadline because plaintiff did not file her Rule 60(b) motion to vacate until April 26, 2013—
nearly two years after the family court’s order entered. Therefore, the trial justice did not err
when he denied the motion because it was untimely.
Moreover, we agree with the trial justice that the record does not reveal “a scintilla of
evidence to suggest that any fraud was perpetrated upon [the] court.” The trial justice provided
the plaintiff with a full opportunity to argue her Rule 60 motion and found that none of her
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arguments rose above the level of “mere allegations.” In her written submission before this
Court, the plaintiff points to hearings that occurred in the Family Court during 2011 and alleges
that “[t]he court transcripts and documents tell the story.” But, we must note that she has not
provided this Court with transcripts from those hearings. We have said on numerous occasions
that the “deliberate decision to prosecute an appeal without providing the Court with a transcript
of the proceedings in the trial court is risky business.” 731 Airport Associates v. H&M Realty
Associates, LLC ex rel. Leef, 799 A.2d 279, 282 (R.I. 2002). Our review of this record provides
utterly no basis to say that the trial justice abused his discretion when he found that there was no
evidence of fraud that would support granting the plaintiff’s Rule 60 motion to vacate.
We affirm the order of the Family Court.
Entered as an Order of this Court this 14th day of April, 2016.
By Order,
___________/s/_______________
Clerk
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Rosemarie L. Lavallee v. Daniel P. Lavallee.
CASE NO: No. 2015-50-Appeal.
(K 04-664)
COURT: Supreme Court
DATE ORDER FILED: April 14, 2016
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: N/A – Court Order
SOURCE OF APPEAL: Kent County Family Court
JUDGE FROM LOWER COURT:
Associate Justice Raymond E. Shawcross
ATTORNEYS ON APPEAL:
For Plaintiff: Rosemarie Lavallee, Pro Se
For Defendant: Christopher E. Friel, Esq.