Marnee McCollum v. Daniel McCollum

January 19, 2023
Supreme Court
No. 2020-206-Appeal.
(P 15-911)
Marnee McCollum :
v. :
Daniel McCollum. :
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 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
No. 2020-206-Appeal.
(P 15-911)
Marnee McCollum :
v. :
Daniel McCollum. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Lynch Prata, for the Court. In this case, the defendant, Daniel
McCollum (Daniel), appeals from a Family Court decision pending entry of final
judgment, granting both the plaintiff’s, Marnee McCollum (Marnee), complaint for
divorce and Daniel’s counterclaim for divorce.1 On appeal, Daniel challenges the
trial justice’s award of attorneys’ fees to Marnee, arguing that the trial justice
misapplied Connecticut law in enforcing the attorneys’-fee provision contained in
the parties’ postnuptial agreement and otherwise abused his discretion in awarding
attorneys’ fees to Marnee. For the reasons set forth herein, we affirm the decision
of the trial justice and remand this case to the Family Court.
1
The parties will be referred to by their first names for convenience. No disrespect
is intended.
-1-
Facts and Travel
On June 1, 2003, Daniel and Marnee married and subsequently had two
children. 2 At all relevant times, Marnee was employed by Delta Airlines as a New
York-based flight attendant, where she historically earned a salary of approximately
$20,000 per year. Since the birth of the parties’ children, Daniel has been the
family’s primary financial provider.
Daniel received a Bachelor of Arts in Economics from the University of
California Berkeley and a Master’s of Business Administration from Columbia
University. In November 2000, Daniel started a business incorporated in the
Republic of Mauritius, but he no longer has any interest in the business.
Thereafter, Daniel took a job working for Bank of America, where he worked for
approximately four years prior to being terminated in 2007. After his termination
from Bank of America, Daniel was unemployed for approximately three to five
months before accepting a job with a former boss, where he worked for about a year
until September 2008. It was around this time that the parties moved to Darien,
Connecticut, because Daniel was preparing to begin a job located in Stamford,
Connecticut. From October 2008 to December 2012, Daniel worked at Narragansett
Asset Management as a consultant with an annual base salary of $125,000 plus
2
In summarizing the facts of this case, we draw upon the findings made by the trial
justice in his written decisions and as set forth in the record. The parties have not
challenged these underlying facts.
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bonuses. Daniel confirmed that two of the bonuses he received were for $50,000
and $100,000 respectively.
In May 2013, Daniel received a job offer from Brown University, with a start
date of July 1, 2013. Daniel was offered a yearly salary of $350,000, with the
potential to receive bonuses as well as other benefits. Marnee informed Daniel that
she would not be moving with him to Rhode Island and would remain in Connecticut
with their children. Marnee then hired an attorney and filed a complaint for
separation in Connecticut, which was served on Daniel in July 2013.
Shortly thereafter, Marnee decided to move to Rhode Island with Daniel and
their children. During the summer and fall of 2013, the parties began working
together to find a private school for their children in Rhode Island. This included
attending open houses and cocktail parties, contacting school officials, and
researching which Rhode Island school would be the best fit for their children.
In October 2013, however, Marnee amended her complaint for separation in
Connecticut to a complaint for divorce. According to Marnee, she filed the amended
complaint for divorce because she felt that Daniel was not invested in saving their
marriage, despite Daniel’s claims to the contrary. Marnee testified that she learned
Daniel had been visiting websites such as match.com and Craigslist to search for
massages and dates with women. In fact, Daniel testified that he had been unfaithful
to Marnee during this time. Despite this discovery, however, Marnee subsequently
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filed for reconciliation status in Connecticut on November 15, 2013, and the
Connecticut divorce proceedings were placed on hold.
On March 31, 2014, the parties purchased a home in Cranston, Rhode Island,
for approximately $865,000. Marnee and the children visited Rhode Island on the
weekends before moving into the house on June 27, 2014, at the conclusion of the
children’s school year in Connecticut. In the spring of 2014, the parties began
making payments to the Gordon School, located in Rhode Island, in anticipation of
the children’s attendance in September 2014. Over the summer of 2014, however,
Marnee had obtained a one-year lease from the parties’ previous landlord
in Connecticut without informing Daniel. At this time, the children were enrolled
at the Gordon School, with the parties having paid approximately $30,000 in tuition
and committing to pay the full amount of approximately $70,000. In early
September 2014, Marnee informed Daniel that she was leaving Rhode Island and
taking the children back to Connecticut to live in their old home. Daniel was
unaware that Marnee had been paying rent that summer for the home in Connecticut.
Marnee, however, did not move the children back to Connecticut immediately, and
the children attended orientation at the Gordon School.
The children attended their first day of school at the Gordon School on
September 3, 2014. However, later that same day, unbeknownst to Daniel, Marnee
took the children from Rhode Island and drove to a hotel in Westport, Connecticut.
-4-
Consequently, the children did not attend school on September 4 or September 5,
2014. On September 5, 2014, the parties entered into a stipulation in the Connecticut
divorce proceeding, requiring Marnee to return the children to the parties’ residence
in Rhode Island on Sunday, September 7, 2014, and for the children to return to the
Gordon School on Monday, September 8, 2014. In accordance therewith, the
children attended the Gordon School on that Monday and Tuesday. However, the
children did not attend on Wednesday, September 10, 2014. Instead, that morning,
Marnee left Rhode Island with the children again, without informing Daniel, and
enrolled them at the Rogers School in Connecticut.
The next day, the parties engaged in a contested emergency hearing in the
Judicial District of Stamford/Norwalk, Connecticut. The parties engaged a mediator
in an attempt to resolve their dispute, resulting in the parties executing an extensive
Post-Nuptial Agreement (the PNA) on December 31, 2014, and Marnee dismissing
the Connecticut divorce proceedings.3 The PNA was designed to resolve the
previous pending divorce action and to attempt to restore marital relations between
the parties. However, Marnee eventually filed a complaint for divorce in Rhode
3
The dispute between the parties at this time was not limited to Marnee moving back
and forth between Rhode Island and Connecticut. During the time the parties were
litigating in Connecticut, Daniel testified to maintaining a sexual relationship with a
woman he met on a dating website after Marnee filed for separation and before the
parties executed the PNA. Further, in November 2014, Daniel threatened to kill
himself apparently as a tactic to get the parties’ children to move to Rhode Island.
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Island on May 20, 2015, after apparently learning that Daniel had spent the evening
with a woman and had been staying at the woman’s house when her husband was
not present.
After Marnee filed the complaint for divorce in Rhode Island, the parties
engaged in years of litigation. Despite executing the PNA, the parties contentiously
litigated a wide variety of issues relating to their marriage and children over a period
of approximately five years. 4 On December 10, 2018, the trial justice issued a
written decision pursuant to Rule 54(b) of the Family Court Rules of Domestic
Relations Procedure, finding that the PNA, as well as its financial terms and
conditions, was valid and enforceable under both Connecticut and Rhode Island
law. 5 However, that decision did not address issues relating to the children, certain
financial consequences as outlined in the PNA, and attorneys’ and expert fees.
Approximately one year later on December 17, 2019, the trial justice issued a sixty-
six-page decision addressing these remaining issues.6
4
In fact, during the pendency of the instant appeal, the parties requested that this
matter be remanded to the Family Court several times to address remaining issues
such as, among other things, ongoing compliance with visitation orders and the
payment of current expenses and support.
5
The PNA contains a valid Connecticut choice-of-law provision, which neither party
challenges. Moreover, neither party appealed from the trial justice’s Rule 54(b)
decision that the PNA was valid and enforceable.
6
It was represented at oral argument that neither party currently lives in Rhode
Island and that the parties are presently engaged in litigation in Connecticut relative
to the children and outstanding financial issues. While these issues are not the
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As to attorneys’ fees, the trial justice found that Marnee was entitled to
reasonable attorneys’ fees pursuant to the PNA’s fee-shifting provision, as well as
G.L. 1956 § 15-5-16. With respect to the PNA, § 10(h) specifically states that:
“If either of us fails to comply with his or her obligations
hereunder or otherwise breaches this Agreement, or if any
legal action or other proceeding is instituted to challenge,
enforce or interpret this Agreement, the prevailing party
will be entitled to recover from the non-prevailing party,
all costs incurred prior to the suit of action or out of court
settlement, in that action or proceeding or any appeal
thereof, in additional [sic] to any other relief to which the
party may be entitled. Attorneys’ fees include legal
assistant fees, investigative fees, administrative costs, and
other charges paid to the attorney by the prevailing party.”
The trial justice explained that, because Daniel challenged the enforceability of the
PNA and did not prevail, Marnee, as the prevailing party, was entitled to an award
of fees pursuant to § 10(h). Relative to the statute, § 15-5-16 provides that the
“[F]amily [C]ourt may order either of the parties to pay alimony or counsel fees, or
both, to the other” and, in determining the amount, the court must consider: (1) “[t]he
length of the marriage”; (2) “[t]he conduct of the parties during the marriage”;
(3) “[t]he health, age, station, occupation, amount and source of income, vocational
skills, and employability of the parties”; and (4) “[t]he state and the liabilities and
needs of each of the parties.” After considering these factors, the trial justice
subject of the instant appeal, the lengthy and contentious nature of this divorce
proceeding is noteworthy in the context of discussing legal fees.
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determined that Marnee was entitled to attorneys’ fees.7 Thus, pursuant to both the
PNA and § 15-5-16, the trial justice awarded Marnee attorneys’ fees and costs.
An amended decision pending entry of final judgment was entered on
March 10, 2020, which contained, among other things, Marnee’s entitlement to
attorneys’ fees. Specifically, Daniel was ordered to pay Marnee’s “attorneys fees
which include legal assistant fees, investigative fees, administrative costs, and
other charges paid to the attorney[,]” but the trial justice did not specify an exact
amount. Thereafter, Daniel filed a timely notice of appeal, challenging the award
of fees to Marnee.
Standard of Review
“This Court has long adhered to the ‘American rule’ that ‘requires each
litigant to pay its own attorney’s fees absent statutory authority or contractual
liability.’” America Condominium Association, Inc. v. Mardo, 140 A.3d 106, 115
(R.I. 2016) (quoting Moore v. Ballard, 914 A.2d 487, 489 (R.I. 2007)). “We have
repeatedly stated that, in conducting a review of a trial justice’s award of
7
The record is replete with factual findings made by the trial justice relating to these
factors, particularly the parties’ conduct during the marriage. For example, the trial
justice acknowledged in his decision that Daniel admitted there were phone numbers
of escorts, massage therapists, and prostitutes that appeared on his phone. The trial
justice also noted that Daniel created a match.com profile in August 2013, which he
used to meet a women with whom Daniel had sexual intercourse while married to
Marnee. Finally, the trial justice acknowledged that in November 2015, Daniel
wrote a suicide note addressed to the parties’ children, which ultimately resulted in
his hospitalization. Numerous motions were filed to deal with these and other issues.
-8-
attorneys’ fees, ‘the issue of whether there exists a basis for awarding attorneys’ fees
generally is legal in nature, and therefore our review of such a ruling is de novo.’”
Id. (brackets omitted) (quoting Dauray v. Mee, 109 A.3d 832, 845 (R.I. 2015)).
“Accordingly, we have further stated that ‘only if it is determined that there is such a
legal basis, then this Court will review a motion justice’s actual award of
attorneys’ fees for an abuse of discretion.’” Id. (brackets omitted) (quoting Dauray,
109 A.3d at 845).
Discussion
On appeal, Daniel challenges the trial justice’s decision to award Marnee
attorneys’ fees on two points: (1) that the trial justice misapplied Connecticut law in
enforcing the “no-contest” provision contained in the PNA; and (2) that the trial
justice abused his discretion in awarding attorneys’ fees to Marnee by overlooking
several important factors which, according to Daniel, should have been considered
to determine each party’s respective responsibility towards attorneys’ fees and costs.
As to the former, Daniel contends that the trial justice erred in enforcing the fee-
shifting provision contained in the PNA, arguing that the provision is a no-contest
provision. According to Daniel, no-contest provisions are disfavored under
Connecticut law, especially when a contest is initiated in good faith and with
reasonable justification. Daniel argues that his challenge to the PNA was in good
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faith and with reasonable justification and, thus, the trial justice erred in enforcing
the PNA’s no-contest fee-shifting provision.
Marnee, however, argues that Daniel’s position fails because the provision in
question is a prevailing-party fee-shifting provision, rather than a no-contest
provision. Marnee contends that the PNA’s fee-shifting provision is not like a no-
contest provision wherein a party forfeits their rights, usually to an inheritance, by
simply contesting the source of those rights, such as a will. Instead, according
to Marnee, the PNA’s fee-shifting provision is a straightforward prevailing-party
fee-shifting provision, which entitles the prevailing party to recover his or her
attorneys’ fees, as defined in the PNA, in the event “any legal action or other
proceeding is instituted to challenge, enforce or interpret” the PNA. Therefore,
because the trial justice found Marnee to have prevailed in the litigation, Marnee
maintains that the trial justice did not err in ordering Daniel to pay Marnee’s
attorneys’ fees and costs pursuant to § 10(h).
At the outset, we note that the trial justice determined that the PNA was valid
and enforceable, a Rule 54(b) judgment entered, and no appeal was taken therefrom.
Further, the PNA’s fee-shifting provision must be construed in accordance with
Connecticut law in light of the PNA’s Connecticut choice-of-law provision. 8
8
The PNA’s Connecticut choice-of-law clause provides that “the validity,
construction, and enforcement of, and the remedies under, this Agreement are
governed in accordance with the laws of the State of Connecticut * * *.”
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The Supreme Court of Connecticut has made clear that, in interpreting a
contract, “[t]he language used in a contract must be accorded its common, natural,
and ordinary meaning and usage where it can be sensibly applied to the subject
matter of the contract[.]” Afkari-Ahmadi v. Fotovat-Ahmadi, 985 A.2d 319, 324
(Conn. 2009) (brackets omitted) (quoting Eckert v. Eckert, 941 A.2d 301, 305
(Conn. 2008)). “Where the language of the contract is clear and unambiguous, the
contract is to be given effect according to its terms.” Id. (quoting Eckert, 941 A.2d
at 305). “Moreover, the mere fact that the parties advance different interpretations
of the language in question does not necessitate a conclusion that the language is
ambiguous.” Id. (quoting Eckert, 941 A.2d at 305). “Finally, in construing contracts,
we give effect to all the language included therein, as the law of contract
interpretation * * * militates against interpreting a contract in a way that renders
a provision superfluous.” Id. (quoting Isham v. Isham, 972 A.2d 228, 236
(Conn. 2009)). Thus, “when interpreting a contract, we must look at the contract as
a whole, consider all relevant portions together and, if possible, give operative
effect to every provision in order to reach a reasonable overall result.” Id.(brackets omitted) (quoting Office of Labor Relations v. New England Health Care
Employees Union, District 1199, AFL-CIO, 951 A.2d 1249, 1254-55 (Conn. 2008)).
While no-contest provisions are generally considered valid under Connecticut law,
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such clauses are “disfavored by the courts and thus must be construed strictly to
prevent forfeiture.” Salce v. Cardello, 269 A.3d 889, 895 (Conn. App. Ct. 2022).
Applying these contract construction principles to the PNA, it is clear that
§ 10(h) is a prevailing-party fee-shifting provision which provides a sufficient basis
for an award of attorneys’ fees and costs. This is not a no-contest provision, as
argued by Daniel, because he is not forfeiting or otherwise being sanctioned for
challenging the PNA by paying Marnee’s attorneys’ fees. Daniel challenged the
enforceability of the PNA and did not prevail. Thus, the trial justice properly
determined that Daniel was responsible for paying the reasonable attorneys’ fees
incurred by Marnee associated with challenging the enforceability of the PNA as
required by § 10(h).
Daniel next argues that the trial justice abused his discretion in awarding
attorneys’ fees to Marnee by overlooking several factors that should have been
considered in determining each party’s respective responsibility towards attorneys’
fees and costs. More specifically, Daniel contends that he should not be responsible
for the fees associated with Marnee’s failed attempt to enforce the PNA’s financial
penalty provisions in light of the trial justice’s finding that those provisions violated
public policy and were unenforceable. Further, Daniel argues that the trial justice
awarded Marnee attorneys’ fees for the entire litigation and did not differentiate
between fees incurred by Marnee in enforcing the PNA from fees incurred by
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Marnee in litigating child-related issues. Finally, Daniel avers that he should not be
responsible for the fees resulting from Marnee’s failed relationships with her
attorneys throughout the litigation and that the trial justice’s failure to consider this
as part of his attorneys’ fees determination was an abuse of discretion.
Section 15-5-16 provides the Family Court with the ability to order either of
the parties to a divorce action to pay alimony or counsel fees, or both, to the other.
See § 15-5-16(a). Specifically, § 15-5-16(a) states that “[i]n granting any petition
for divorce, divorce from bed and board, or relief without the commencement of
divorce proceedings, the family court may order either of the parties to pay alimony
or counsel fees, or both, to the other.” Id. Although the PNA contains a clause
requiring the application of Connecticut law to the PNA, the parties’ divorce was
filed and heard in Rhode Island and is thus subject to Rhode Island law. Therefore,
Daniel’s contention that the trial justice was obligated to analyze the award of
attorneys’ fees under Connecticut law is unpersuasive. A careful review of this
record makes clear the contentious nature of this divorce proceeding. There was
obvious acrimony between the parties relative to both finances and the welfare of
the children. While this was neither party’s finest hour, the trial justice made
numerous findings of fact in accordance with § 15-5-16(b) to justify an award of
fees to Marnee. See, e.g., Saltzman v. Saltzman, 218 A.3d 551, 560 (R.I. 2019) (“The
award of counsel fees in a divorce action is governed by § 15-5-16.”) (brackets
- 13 -
omitted) (quoting Meyer v. Meyer, 68 A.3d 571, 586 (R.I. 2013)); Wu-Carter v.
Carter, 179 A.3d 711, 722 (R.I. 2018) (noting that § 15-5-16(b) “sets forth certain
factors that a trial justice is required to consider in deciding whether, and in what
amount, to order one spouse to pay counsel fees to the other”); Koutroumanos v.
Tzeremes, 865 A.2d 1091, 1101 (R.I. 2005) (affirming a trial justice’s award of
attorneys’ fees pursuant to § 15-5-16 because “the trial justice engaged in a sufficient
analysis of the appropriate factors and * * * the award of counsel fees was a
sustainable exercise of his discretion”). Specifically, the trial justice found that the
parties had been engaged in a sixteen-year marriage; Daniel, who had both
undergraduate and graduate degrees, was the primary financial provider for the
family, earning approximately $500,000 annually with the opportunity for bonuses,
while Marnee made approximately $20,000 per year; and Daniel and Marnee were
both in their forties and of good health. The trial justice also made numerous factual
findings with respect to the parties’ conduct during the marriage and noted that much
of Daniel’s testimony was not credible. This included the trial justice finding that
Daniel was lacking in candor and attempted to conceal bonuses and additional
funds that he had received to preclude Marnee from making a claim thereto.
Thus, the record amply supports an award of attorneys’ fees in favor of Marnee
pursuant to § 15-5-16.
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After considering the factors enumerated in § 15-5-16(b), as well as § 10(h)
of the PNA, the trial justice determined that Daniel was responsible for the
reasonable attorneys’ fees incurred by Marnee associated with challenging the
enforceability of the PNA. The trial justice also concluded that Marnee was entitled
to “all costs incurred prior to the suit of action or out of court settlement, in that
action or proceeding or any appeal thereof, in addition to any other relief to which
the party may be entitled.” Outside of ordering Daniel to pay these costs, however,
the trial justice did not identify an exact amount of fees to be awarded to Marnee or
make a determination as to whether the amounts to be awarded to Marnee
were reasonable in accordance with the procedures set forth in Tri-Town
Construction Company, Inc. v. Commerce Park Associates 12, LLC, 139 A.3d 480(R.I. 2016). See Tri-Town Construction Company, Inc., 139 A.3d at 480 (requiring
affidavits or expert testimony “from counsel who is a member of the Rhode Island
Bar and who is not representing the parties to the action * * *”).
It is well settled that in a Family Court divorce proceeding, the decision
pending entry of final judgment is the appealable judgment. See, e.g., Palin v. Palin,
41 A.3d 248, 254 (R.I. 2012) (“We consistently have held that a decision pending
entry of final judgment of divorce is appealable pursuant to Rule 4(a).”);
Thompson v. Thompson, 973 A.2d 499, 505 (R.I. 2009) (hearing appeal from
amended decision pending entry of final judgment); see also G.L. 1956 § 14-1-52(a)
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(“A decision granting a divorce shall be appealable upon entry and * * * the
correctness of the decision shall not be reviewable upon an appeal from a final decree
for divorce entered in pursuance of § 15-5-23.”). Upon the issuance of a decision
pending entry of final judgment, a party must appeal within twenty days in order to
properly challenge the findings, rulings, and orders memorialized in the decision
pending entry of final judgment. See, e.g., de Bont v. de Bont, 826 A.2d 968, 970
(R.I. 2003) (noting that, pursuant to Article I, Rule 4(a) of the Supreme Court Rules
of Appellate Procedure, appeal deadline was “twenty days after the decision pending
entry of final judgment was entered”); Craveiro v. Craveiro, 773 A.2d 896, 898
(R.I. 2001) (explaining that “[a] party who contests a divorce must file his or her
appeal within twenty days of the decision pending entry of final judgment”).
In the instant case, Daniel followed the appropriate appellate procedure and
timely appealed the issue of attorneys’ fees from the March 10, 2020 amended
decision pending entry of final judgment. However, although the amended decision
pending entry of final judgment directed that Marnee was entitled to an award of
attorneys’ fees pursuant to the PNA and § 15-5-16, it did not award any specific
amount because the trial justice had not yet conducted hearings or considered
evidence related thereto. Such a hearing is necessary to determine the amount of
attorneys’ fees to which Marnee is entitled, as well as whether such fees are
reasonable. See Tri-Town Construction Company, Inc., 139 A.3d at 479-80.
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For the reasons stated herein, we hold that the trial justice did not abuse his
discretion in awarding Marnee attorneys’ fees and costs as he had both a statutory
and contractual basis to do so. Accordingly, this matter shall be remanded to the
Family Court for a determination of the amount of attorneys’ fees to be awarded to
Marnee. The determination of any remaining financial issues pending in the Rhode
Island Family Court shall be left to the discretion of the trial justice.
Conclusion
For the foregoing reasons, we affirm the decision of the trial justice and
remand this matter to the Family Court for further proceedings consistent with this
opinion. The record shall be returned to the Family Court.
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.STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case Marnee McCollum v. Daniel McCollum.
No. 2020-206-Appeal.
Case Number
(P 15-911)
Date Opinion Filed January 19, 2023
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Erin Lynch Prata
Source of Appeal Providence County Family Court
Judicial Officer from Lower Court Associate Justice Felix E. Gill
For Plaintiff:
Lauren E. Jones, Esq.
Attorney(s) on Appeal
For Defendant:
Jerome V. Sweeney, III, Esq.
SU-CMS-02A (revised November 2022)