Gail M. Bober v. David R. Bober

Supreme Court
No. 2010-409-Appeal.
No. 2011-337-Appeal.
(P 07-637)
Gail M. Bober :
v. :
David R. Bober. :
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 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2010-409-Appeal.
No. 2011-337-Appeal.
(P 07-637)
Gail M. Bober :
v. :
David R. Bober. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. In this contested and at times acrimonious divorce
action, both parties find grist for the appellate mill in the trial justice’s comprehensive decision
dissolving their twenty-four-year marriage. The defendant, David R. Bober, appeals from the
decision pending entry of final judgment on the grounds that: (1) the trial justice overlooked or
misconceived the medical evidence relating to the plaintiff’s medical condition; (2) the trial
justice erred by awarding alimony to the plaintiff that could “turn into ‘lifetime’ alimony”; (3)
the trial justice overlooked or misconceived evidence in arriving at the property distribution
award; and (4) the trial justice erred by retroactively applying a modification of child support in
violation of G.L. 1956 § 15-5-16.2.
The plaintiff, Gail M. Bober, cross-appeals, arguing that the trial justice erred by failing
to award her: (1) attorney’s fees; (2) a sixty-percent share of the equity in a house defendant’s
mother transferred to defendant and his sister; and (3) lifelong medical coverage. Further, she
contends that the trial justice’s “sua sponte amended alimony award” is inequitable to her and
contrary to previous holdings of this Court. For the reasons set forth in this opinion, we affirm in
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part and reverse in part the decision pending entry of final judgment entered by the Family
Court.
I
Facts and Procedural History
The plaintiff and defendant were married on June 22, 1985. They had one child, a
daughter, born February 14, 1994. On March 16, 2007, plaintiff filed a complaint for divorce;
defendant filed an answer asking that the complaint be dismissed, as well as a counterclaim for
divorce. A trial commenced on December 1, 2008. On the fourth day of trial, the trial justice,
having heard testimony from two neurologists concerning the symptoms that plaintiff was
experiencing caused by multiple sclerosis (MS) and having observed plaintiff on the witness
stand, appointed a guardian ad litem (GAL) to assess whether plaintiff “ha[d] the capacity to
continue on with this trial, to understand proposals said to her, to comprehend proposals.” On
February 10, 2009, the GAL reported that plaintiff was “able to proceed fully and competently”
subject to a recommended daily time limitation of three hours to plaintiff’s testimony. 1 Trial
resumed on March 6, 2009, and testimony concluded on March 11, 2009.
After multiple motions and continuances, the trial justice filed a seventy-page written
decision on March 30, 2010. The decision summarized the medical testimony regarding
plaintiff’s diagnosis of MS and reviewed the parties’ assets, income, and expenses. The trial
justice then ordered defendant to pay child support in the amount of $850 per month, including
an adjustment for the difference between that amount and the amount previously paid by
defendant as temporary support, retroactive to June 1, 2009. The trial justice ordered defendant
1
The GAL also recommended that “subject to the rules of evidence, [plaintiff] be allowed to use
any notes she has prepared in order to refresh her recollection” and recommended that the trial
justice consider holding the trial in chambers, an invitation the trial justice declined.
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to pay alimony to plaintiff in the amount of $250 per week, terminating upon the death of
plaintiff or defendant, plaintiff’s remarriage, or upon the retirement of both plaintiff and
defendant. Finally, the trial justice performed an equitable distribution of the marital assets,
awarding sixty percent to plaintiff and forty percent to defendant of all marital assets, save for
the parties’ respective “pension/retirement plans”; those he awarded fifty percent to each party
by means of Qualified Domestic Relations Orders (QDRO).
After the trial justice issued his decision, at least three hearings were held on motions for
clarification of the decision. At one such proceeding on April 21, 2010, the trial justice noted
that plaintiff would continue to receive the benefit of defendant’s medical coverage under his
retirement plan. There was further discussion regarding one bank account (the “Orion” account),
which defendant alleged was a premarital asset and plaintiff argued was a marital asset. The trial
justice directed the parties to refer to the exhibits in order to determine the date the account was
opened.
At a hearing on June 17, 2010, after engaging in a colloquy regarding the termination of
alimony, the trial justice amended his decision to allow for the termination of alimony upon
defendant’s retirement date, irrespective of whether plaintiff is retired. The trial justice ruled
that, upon defendant’s retirement, alimony would cease and plaintiff would receive fifty percent
of defendant’s pension. Also on June 17, 2010, defendant argued that plaintiff’s withdrawal of
$6,000 had not been accounted for in the court’s distribution of marital assets. The defendant
again argued that the Orion account was not a marital asset, and the trial justice granted a brief
adjournment in order for counsel for both parties to find an exhibit that would establish when the
account was opened. Upon returning to the court, plaintiff’s counsel represented that there was
no such exhibit in evidence.
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Further hearings were held on July 20, July 22, and August 3, 2010, during which the
trial justice went through most of the provisions in the proposed decision pending entry of final
judgment. On August 3, 2010, the trial justice entered the decision with the following provisions
pertinent to this appeal: (1) alimony is to terminate on the earliest occurrence of plaintiff’s death
or remarriage, or defendant’s death or retirement; (2) plaintiff was awarded sixty percent of the
Orion account, with the remaining forty percent to the defendant; (3) defendant was awarded all
right, title, interest, and liability in the house he shared with his mother; (4) defendant is to pay
child support of $850 per month, retroactive to June 1, 2009, with a lump sum payment of
$2,077.05 representing the difference between the award of $850 per month and the previous
child support order of $150 per week for the period of June 1, 2009 to April 1, 2010.
A final hearing on an outstanding motion, not pertinent to this appeal, was conducted on
August 12, 2010. At that time, the trial justice made a minor correction to the order and signed
and dated the amendment. The defendant filed a notice of appeal on August 27, 2010, and
plaintiff cross-appealed on August 30, 2010. 2 Final judgment was entered on September 27,
2011. Additional facts will be supplied as necessary.
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.” Palin v. Palin, 41 A.3d 248, 253 (R.I. 2012) (quoting Cardinale v. Cardinale, 889 A.2d
210, 217 (R.I. 2006)). “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
2
The cases were consolidated for briefing and argument.
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trial justice’s findings.” Id. (quoting Cardinale, 889 A.2d at 217-18). “Questions of law in an
appeal from the Family Court, however, are reviewed de novo.” Id.
III
Discussion
On appeal, defendant argues that the trial justice overlooked or misconceived the medical
evidence relating to plaintiff’s medical condition. Further, defendant asserts that the alimony
award was erroneous because it could “turn into ‘lifetime’ alimony” because the termination of
alimony is linked to defendant’s retirement rather than the retirement of both parties. The
defendant also argues that the trial justice overlooked or misconceived the expenses of both
parties in making the award of alimony. Additionally, defendant challenges the property
distribution, contending that the trial justice failed to consider plaintiff’s dissipation of the
marital assets, failed to account for plaintiff’s unilateral withdrawal of marital funds, and
overlooked evidence that the Orion account was a premarital asset. Finally, defendant argues
that the trial justice erred by retroactively applying a modification of child support in violation of
§ 15-5-16.2.
In her cross-appeal, plaintiff argues that the trial justice erred by failing to award her
attorney’s fees and a sixty-percent share of the equity in a house that defendant’s mother
transferred to defendant and his sister. Further, plaintiff asserts that the trial justice erred by
failing to award her lifelong medical coverage.
A. Medical Evidence
The trial justice dedicated eleven pages of his decision to a summary of the testimony
regarding plaintiff’s diagnosis of MS. The plaintiff’s treating physician, Dr. Salvatore Napoli,
testified that plaintiff suffered from “a form of [MS]” that has caused her “some mild to
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moderate cognitive issues” including “difficulties with multitasking [and] processing
information.” Doctor Napoli testified that plaintiff’s illness falls within the “relapsing/remitting”
category of MS and that she will require some form of treatment for the remainder of her life.
According to Dr. Napoli, plaintiff is presently treating her MS with a medication that costs
approximately $10,000 per month, but he stated that the copay for the medication is likely
around $40-$60 per month. Doctor Napoli testified that, in his opinion, plaintiff is not able to
work full-time, but that she could work part-time; he stated that he would consider thirty hours
per week to be part-time. Finally, Dr. Napoli noted that he could not make a prediction about
plaintiff’s prognosis because “[t]hat’s the tricky part of this disease. You can’t make a prediction
about it, about where it can go.”
The defendant’s expert, Dr. Elaine Jones, agreed that plaintiff has the relapsing/remitting
category of MS. Doctor Jones characterized the relapsing/remitting form of MS as the type with
the most favorable prognosis. However, Dr. Jones admitted that there are no generally accepted
tests that can accurately “predict” the prognosis of patients with MS.
In his decision, the trial justice stated that “[Dr. Napoli]’s opinion is that the plaintiff has
primary progressive Multiple Sclerosis.” That is a misstatement; the experts were in accord that
plaintiff has relapsing/remitting MS. The defendant argues that the trial justice misconceived the
evidence of plaintiff’s diagnosis and thus concluded that she had the form of MS with the least
favorable prognosis, leading him to base his property distribution and alimony award on a
fundamental error. Although we agree that the characterization of plaintiff’s expert’s opinion
was an error, in order to conclude that this error is “fundamental,” we would need to disregard
the totality of the trial justice’s analysis. Not only did the trial justice exhaustively and
accurately recount the experts’ testimony concerning both the manifestations of plaintiff’s illness
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and the effects of her disability, but also, in the text leading up to the mischaracterization of her
diagnosis, the trial justice correctly stated:
“Based upon reasonable medical certainty, [Dr. Napoli] was of the
opinion that the current stage in [plaintiff’s] disease of Multiple
Sclerosis is ‘the relapsing category.’ There is a new area of
inflammation. He feels that she is in remission but that there are
hidden things going on which may not be detectable in a relapse.
He has prescribed Copaxon therapy for her gait instability. There
are daily injections to prevent inflammation. With respect to his
prognosis, the doctor testified that this is the tricky part of the
disease as you cannot make predictions.”
In determining the alimony award, the trial justice found that “plaintiff has a need for
supplemental income and that the [d]efendant has the capacity to pay supplemental income in the
nature of spousal support/alimony.” The trial justice noted that plaintiff’s need for support was
due to her working on a part-time basis, and he stated that “[h]er reason has been set forth in
detail by this [c]ourt in its analysis of the [p]laintiff’s health condition and her diagnosis of
multiple sclerosis.” Notably, the seventy-page decision contains multiple references to MS and
several references to relapsing/remitting; the term “primary progressive” appears but once.
It is apparent to us that the trial justice based his decision on the uncontradicted medical
testimony that plaintiff suffers from MS and is capable of working part-time, and that there is no
way to “predict” her prognosis. The mischaracterization of plaintiff’s diagnosis in one sentence
was an unfortunate error, but it was not the basis of the trial justice’s decision. 3
3
We note that, at the April 21, 2010 hearing, when the parties sought clarification of the trial
justice’s decision, defense counsel inquired about this issue, stating somewhat obliquely, “I don’t
recall seeing a specific finding by your Honor to include language that, quote, the [c]ourt found
that her medical condition was permanent in nature.” The trial justice stated twice that he “never
used the word ‘permanent,’” explaining that for both the equitable distribution and alimony
award he referred back to his lengthy discussion of plaintiff’s diagnosis of MS, including
testimony that “if she follows the right regimen and takes the right medication she should be able
to lead a fruitful life.”
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B. Child Support
The defendant contends that the trial justice’s retroactive application of child support was
a modification in violation of § 15-5-16.2(c)(2). 4 On January 28, 2008, a consent order was
entered awarding temporary weekly child support of $150 to plaintiff. This order was made
“without prejudice to the rights of either party to contest the amount of the child support at the
time of the trial on the merits.” On October 16, 2009, plaintiff filed a motion for modification of
the child support award. No hearing was held on the motion for modification. In his decision in
2010, the trial justice made findings of fact and awarded child support of $850 per month, or
$197.67 per week, retroactive to June 1, 2009. 5 The defendant argues that, pursuant to § 15-5-
16.2(c)(2), the 2010 child support order could only be made retroactive to October 16, 2009.
At a hearing on January 8, 2010, the trial justice made clear that he was not acting on any
motion, stating that “[t]here is no motion for modification. * * * This is a hearing de novo as to
what is needed. You never really had a real hearing on the [child support of] 150.” The trial
justice noted that, although the trial had concluded, he had not made an order on child support,
saying:
“yes, you’ve given me some stipulations. Stipulations don’t go to
the essence * * * of the issues * * * I wanted to get evidence in to
show what her needs are. * * * That’s what I’m doing here in this
hearing, getting financial data up to date, because it’s changed
from the trial, because the house has been sold.”
4
General Laws 1956 § 15-5-16.2(c)(2) states in pertinent part:
“After a decree for support has been entered, the court may
from time to time upon the petition of either party review and alter
its decree relative to the amount of support and the payment of it,
and may make any decree relative to it which it might have made
in the original suit. The decree may be made retroactive in the
court’s discretion only to the date that notice of a petition to
modify was given to the adverse party * * * .”
5
This date is immediately subsequent to the parties’ submission of posttrial memoranda,
including a Child Support Guideline.
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Although there had been an agreed temporary child support award, no Child Support
Guidelines Worksheet had been submitted and considered until just before June 1, 2009.
“General Laws 1956 § 15-5-16.2(a) provides that the Family Court ‘shall order either or both
parents owing a duty of support to a child to pay an amount based upon a formula and guidelines
adopted by an administrative order of the family court.’” Waters v. Magee, 877 A.2d 658, 665
(R.I. 2005). Therefore, at the January 8, 2010 hearing, the trial justice was considering the
award for the first time and, as he made clear, he was not acting on any motion for modification.
We hold that it was not an abuse of discretion to award child support retroactive to June 1, 2009,
rather than to the date that plaintiff filed a motion for modification.
C. Medical Coverage
In her cross-appeal, plaintiff argues that the trial justice erred in not awarding her
“lifelong health coverage.” The trial justice held that defendant was to maintain plaintiff on his
medical insurance plans; upon defendant’s retirement, he noted, plaintiff would continue to be
covered under defendant’s retirement plan. The plaintiff argues that, due to her MS diagnosis,
she is “irreparably vulnerable” if her medical coverage is terminated by defendant’s remarriage
or “subsequent collective bargaining changes or political climate.” In declining to make the
health coverage award permanent, the trial justice noted that medical insurance is a form of
alimony and, should plaintiff’s health coverage be terminated, “[n]othing provided in * * * § 15-
5-16[] shall affect the power of [the] [c]ourt as subsequently provided by law to alter, amend, or
annul any order of alimony previously entered.”
“While a Family Court justice has the discretion to enter an award of continuing health
care coverage, * * * once such an award has been entered, [G.L. 1956] § 27-20.4-1 is triggered,
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regardless of whether § 27-20.4-1 specifically has been referenced in the final judgment of
divorce.” 6 L’Heureux v. L’Heureux, 770 A.2d 854, 856 (R.I. 2001). We have stated that:
“The clear and unambiguous language of § 27–20.4–1 requires that
health insurance benefits, when provided for in a final decree of
divorce, continue at no cost to the former spouse of the party
participating in the plan as long as the plan participant is still a
member of the plan and until (1) either party remarries, or (2) a
time provided by the judgment of divorce. Furthermore, the
continuation of the original plan coverage shall cease when the
former spouse becomes eligible to participate in a comparable
health plan through his or her own employment.” L’Heureux, 770
A.2d at 857.
Given the dictates of § 27-20.4-1, it would appear that the only avenue open to plaintiff,
should her medical coverage cease, would be to seek a modification of alimony. Even were we
to, as plaintiff asks, “specifically state that she has a need for lifelong health insurance” and that
“she is not foreclosed from seeking health coverage (or additional alimony to cover the cost
thereof),” the effect would be no different—plaintiff would still need to seek a modification of
her alimony award. Accordingly, it was not error for the trial justice to decline to award lifelong
medical coverage.
D. Equitable Assignment of Property
The defendant argues that the property distribution was erroneous because the trial justice
erred by: (1) failing to consider plaintiff’s dissipation of the marital assets; (2) failing to credit
6
General Laws 1956 § 27-20.4-1(a) states in pertinent part:
“[T]he person who was the spouse of the party prior to the entry of
judgment for divorce may remain eligible for continuing benefits
* * * as long as the original member is a participant in the plan
* * * and until either one of the following shall take place: (1) the
remarriage of either party to the divorce, or (2) until a time as
provided by the judgment for divorce.”
Further, “[i]f the person who was the spouse * * * becomes eligible to participate in a
comparable plan * * * through his or her own employment, the continuation of the original plan
coverage shall cease.” Section 27-20.4-1(a).
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defendant for monies he paid towards marital debt; (3) failing to consider that plaintiff
unilaterally withdrew funds and used the marital line of credit to pay her attorney’s fees; (4)
overlooking evidence that the Orion account was premarital property; and (5) failing to include
the value of the marital furnishings in the sixty/forty equitable distribution equation.
1. Dissipation of Marital Assets
The defendant asserts that plaintiff dissipated marital assets by not responding to a
would-be buyer’s offer of $300,000 for the marital domicile. Because the house eventually sold
for $279,000, defendant argues that plaintiff’s “stonewalling tactics” cost the marital estate
$21,000. The house had been listed at a price agreed to by the parties of $354,900. The plaintiff
asserts that this lapse was due to both parties’ complete inability to communicate, and she notes
that, when a later offer was made on the house, defendant counter-offered at $317,000. It seems
clear that whatever loss may have been realized on the sale of the house was due to the
lamentable and all-too-typical acrimony that accompanies a divorce, rather than any willful
dissipation of assets. The defendant also asserts that plaintiff’s refusal to file joint income tax
returns in 2008 resulted in a loss to the marital estate, because she received a refund of $2,066,
whereas he owed $4,481. However, plaintiff acted within her rights in electing to file separately,
and again, the loss suffered is part of the sad cost of a contentious divorce, not a willful
dissipation of the marital estate.
2. Payments Made From Marital Assets
The defendant next argues that the trial justice erred by overlooking evidence that
plaintiff paid her attorney’s fees out of the marital line of credit and by not crediting defendant
for the $40,851 he paid towards marital expenses, as well as the $6,000 unilateral withdrawal
that plaintiff made prior to filing for divorce. Specifically, defendant takes issue with the trial
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justice’s decision to split sixty/forty the $74,694.96 that defendant withdrew unilaterally from the
marital accounts, without first subtracting those sums.
In his decision, the trial justice addressed this issue, stating:
“The [c]ourt has already noted that the defendant has
removed assets that are marital assets from the marital estate.
However, the [c]ourt, in fashioning a remedy, has available
sufficient assets to take care of this improper act on the part of the
defendant. Likewise, the plaintiff has removed some assets and
has also imposed an equity loan upon the former marital domicile.
The court will fashion an appropriate remedy so that both parties
will not be adversely affected by the activities that each took
unilaterally against the interests of the other.
“The [c]ourt [o]rder of January 28, 2007 * * * is
particularly significant, wherein the defendant was ordered not to
pay child support from joint funds. ‘2. The payments to be made
by [defendant] to [plaintiff] shall not be paid out of the parties’
joint funds or those joint funds removed by [defendant] from the
parties’ joint accounts prior to or at the commencement of these
divorce proceedings, but shall be paid from defendant’s salary or
his own funds.’”
The defendant admitted that, after discovering that plaintiff had withdrawn $6,000 (roughly sixty
percent of the balance) from a marital account, he proceeded to withdraw a total of $74,694.96
from four marital accounts. In a court order dated June 27, 2007, defendant was ordered to
“provide an accounting for the funds * * * he removed from the [p]arties[’] joint account in
March 2007 and further, the [d]efendant shall forthwith return all said funds to a joint account.
Neither [p]arty shall access the said funds without an [o]rder of this [c]ourt.” The defendant
admitted that he never returned the funds, as ordered, and claimed that he spent the money on
“marital bills and [his] attorney[’]s fees.”
The plaintiff argues that, as a result of defendant taking full control of the proceeds of the
marital accounts, she was forced to use the marital line of credit to pay living expenses. We have
no reason to believe that the trial justice overlooked any of the evidence of the parties’ conduct
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regarding the marital assets. On the contrary, we are convinced that the trial justice considered
all of the testimony and properly exercised his discretion in ordering a sixty/forty distribution of
the $74,694.96 that defendant removed and retained for years, in contravention of a court order.
3. Orion Account
The defendant next argues that the trial justice overlooked the “uncontradicted and
reliable evidence” that the Orion account was premarital property. Principally, defendant argues
that because plaintiff listed the account as his premarital property in one of her exhibits, that
exhibit constitutes an admission on her part that the account is his. The trial justice, however, on
several occasions requested the parties to submit an exhibit that would establish the date that the
Orion account was opened. In the absence of such evidence, it was not error for the trial justice
to hold that the account was a marital asset, subject to equitable distribution.
4. Household Furnishings
The defendant also argues that the trial justice erred by awarding the household
furnishings to plaintiff without including their value in the equitable distribution equation. The
defendant mischaracterizes the trial justice’s ruling. The trial justice did not deny defendant a
share in the household furnishings outright; rather, he ordered that “[i]f the parties have not
divided the household furniture, furnishings and effects, formerly contained in the marital
domicile, then all such items are awarded to the [p]laintiff.” 7 It is unclear from the record what
effects, if any, defendant removed from the house prior to its sale. Again, it was not error for the
trial justice to award to plaintiff whatever furnishings had not been divided.
7
It is worth noting that, at the time of the decision in August 2010, defendant had been out of the
marital domicile for over three years, and the house had been sold the previous year.
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5. Pawtucket Real Estate
In her cross-appeal, plaintiff argues that the trial justice erred in failing to award her a
share in the equity value of the house that defendant shared with his sister. The trial justice
found that defendant held a sixty-percent interest in real estate located in the City of Pawtucket,
Rhode Island. He further found that this property had been transferred by defendant’s mother to
defendant and his sister in exchange for a promissory note in the amount of $275,000 plus
interest and that it was neither a gift nor an inheritance but was a marital asset subject to
equitable distribution. The defendant’s mother testified that the note was enforceable by her
estate; defendant testified that he had made no payments on the note. The trial justice awarded
defendant his interest and liability in that property. The plaintiff argues that, because the
property is part of the marital estate, she should receive sixty percent of the equity in the
property. “[M]arital ‘[a]ssets are to be divided equitably, though not necessarily equally.’”
Ruffel v. Ruffel, 900 A.2d 1178, 1193 (R.I. 2006) (quoting Perreault v. Perreault, 540 A.2d 27,
30 (R.I. 1988)). It is likely that there is very little equity in the Pawtucket property, 8 and it is
subject to a $1-per-year lease to defendant’s mother. We are convinced that the trial justice
appropriately considered all the relevant factors and properly exercised his discretion in
awarding defendant his interest and liability in the property.
6. Alimony Award and Pension Benefits
The one issue upon which both parties seem to agree, albeit for different reasons, is that
the trial justice’s sua sponte modification of his written decision concerning the termination of
alimony was inequitable. In the original decision, one of the conditions terminating defendant’s
obligation to pay alimony was “[w]hen payments under all of the retirement plans (both Plaintiff
8
There was no testimony regarding the fair market value of the Pawtucket house.
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and Defendant) commence.” The trial justice subsequently modified this provision such that
alimony would terminate, inter alia, upon only defendant’s retirement. Exhibits introduced at
trial indicate retirement accounts in defendant’s name, exclusive of his firefighters’ pension and
accrued vacation time, in the amount of approximately $101,000, and accounts in plaintiff’s
name in the amount of approximately $62,500.
The defendant argues that the trial justice erred as a matter of equity by modifying his
original decision because it effectively awards plaintiff lifetime alimony. He contends that
because his salary less the $250 weekly alimony payments “is so much more” than the one-half
of the pension benefit that he would receive upon retiring, he “will not be able to afford to
retire.” Thus, he argues that equity compels that both parties’ “pensions be in place for alimony
to terminate.”
The plaintiff finds inequity in the decision pending entry of final judgment for other
reasons. She views defendant’s pension as a marital asset subject to equitable distribution, yet an
asset over which defendant has been given full control concerning the timing of such
distribution. The uncontroverted evidence at trial was that defendant would be eligible to receive
his maximum retirement benefit of sixty percent after completing twenty-three years and four
months of service, a milestone that he has likely since passed. It is clearly conceivable, however,
that defendant, who is now fifty-four years old, could continue to work for some time. 9
The equitable distribution of a working spouse’s pension, or its value, can be a vexing
problem under the best of circumstances. A trial justice must balance one spouse’s right to
continue working against the other spouse’s desire, or need, for immediate access to his or her
9
At oral argument it was suggested that the mandatory retirement age for firefighters in the City
of Pawtucket is sixty-five.
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share of marital property. It is, however, a situation that we have had an opportunity to consider
on several occasions.
The parties in Furia v. Furia came before this Court on two occasions; in Furia v. Furia,
638 A.2d 548, 553 (R.I. 1994) (Furia I), we held that the husband was entitled to collect his
portion of the value of the wife’s pension benefit and that he need not wait until she retires to
receive those benefits because “the employee/spouse should not unilaterally deprive the
nonemployee/spouse of his or her property * * * .” In Furia v. Furia, 692 A.2d 327, 328 (R.I.
1997) (Furia II), after the Family Court ordered the wife to pay the husband one-half of the value
of the pension, in the form of a lump sum of $30,000 with a promissory note for the remainder,
we held that it was inequitable to require the wife to pay out the value of the pension before or at
the time of her retirement; rather, we held that the proper distribution was a monthly payment
from the wife to the husband equal to one-half of the pension benefits that she would have
received had she retired.
In Janson v. Janson, 773 A.2d 901, 903 (R.I. 2001), we interpreted a property settlement
agreement that was silent as to the date when the wife would be entitled to receive her share of
the husband’s pension benefit. We held that, “in the absence of a clear agreement specifying
how and when the husband’s pension was to be valued and distributed to the wife, * * * it was
inequitable for the trial justice to allow the husband to ‘unilaterally deprive’ the wife of her share
of the pension by delaying his retirement” until some uncertain future date. Id. at 904.
Likewise, in Hagopian v. Hagopian, 960 A.2d 250, 252 (R.I. 2008), the husband was a
police officer who was eligible for retirement after twenty years of service and who faced
mandatory retirement after twenty-five years of service. The trial justice in that case ordered the
husband to make monthly payments to his wife equal to the value of her share of his pension,
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commencing on the date when he became eligible to retire. Id. The wife would then receive the
actual pension benefits when the husband actually retired. Id. In affirming this decision, we
stated that “[t]he trial justice observed the demeanor of the parties from the bench and detected
such a high level of hostility” that to allow the husband to unilaterally control the distribution
date of his pension benefits would allow the possibility of “a grave injustice.” Id. at 253.
In the case under review, the trial justice initially conditioned the termination of alimony
upon the eligibility of both parties to receive benefits under their retirement plans. He then
explained his reasoning at the April 21, 2010 hearing on the motions for clarification, and he also
exhorted the parties to negotiate a different resolution:
“Now, the smartest thing, as I feel -- but this is not my decision --
for Mrs. Bober to do is to say, okay, if my husband retires, I want
my portion of the pension because that’s going to be more than the
alimony. And from Mr. Bober’s point of view, there is no more
alimony.
“***
“I strongly feel, I think I made it clear two or three times
today, * * * that because of the fact that the [d]efendant * * * has
chosen not to retire, it’s not for me to say to retire or not to retire, I
feel it would benefit both parties if through counsel and the
decision that the [d]efendant can only make if he chooses to retire,
then it seems that at that particular point the parties could agree to
end alimony and start getting benefits under the retirement plan
because that would absolutely benefit both parties. It’s a win-win
situation. If for whatever reason they chose not to, that’s their
decision to make.
“***
“[I]f they choose not to do that, then she gets her alimony payment
until all pensions are in a status that they can be drawn on.
“***
“My order says until both * * * pension plans are in a pay status or
eligibility status is a better word to use, she gets her 250 * * * .
But if they agree that he’s going to retire, then you can draft an
amendment to that so that alimony ends and he only has to share
his pension with her and then she has to share -- unless you make a
different agreement -- her pension with him when she’s in a status
that she can get it.
“***
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“So unless payment commences under all of the retirement
plans of both [p]laintiff and [d]efendant, she continues getting
alimony, but the alimony figure is less than what she would get if
she got a straight payment from her 50 percent of his pension. But
he hasn’t retired yet, and I’m not going to force him to retire, and
she’s not eligible to get her payments yet. But if you make an
amendment to it, * * * then what happens is, she starts getting 50
percent of his pension and she doesn’t get alimony anymore, and
the 50 percent turns out to be more than the $250 a week alimony.
It’s kind of a simple solution, but that’s your decision to talk about.
* * * But she continues to get alimony until all, hers and his,
pension plans are, according to this, commenced.
“***
“[M]y intent is clear, for the record, she’s not going to get ten cents
of his pension while she is getting $250 a week alimony.”
At the June 17, 2010 hearing, however, the trial justice modified the award, stating:
“There is one substantive issue that if you can’t do it I’m going to
sua sponte do it because I think all I’ve done is create more
problems than the parties are entitled to, and that’s with respect to
the pensions.
“***
“I’m not changing anything about the 50/50. I’m not changing
anything about QDROs. What I am changing is with relation to
the alimony. As soon as Mr. retires or -- retires without waiting
for Mrs. to have her pension plans in a pay status, then she will
start getting his -- the 50 percent from his pension because it turns
out to be more than $250 a week alimony and alimony ends.”
In the context of this case, we are of the opinion that this aspect of the trial justice’s
decision is inequitable, and we deem it to be error insofar as it misconceives the nature of
defendant’s pension plan as a marital asset. Our case law makes clear that a pension is akin to a
“forced savings account whose funds will become available to the parties upon retirement.”
Moran v. Moran, 612 A.2d 26, 33 (R.I. 1992) (quoting Stevenson v. Stevenson, 511 A.2d 961,
965 (R.I. 1986)). Pension benefits are thus marital property subject to equitable distribution. Id.
We have also said that “one spouse should not be allowed to defeat the other spouse’s interest in
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an asset earned and accumulated during the marriage by invoking a condition wholly within his
or her control.” Allard v. Allard, 708 A.2d 554, 558 (R.I. 1998).
In Furia II, 692 A.2d at 328, we opined that “the proper distribution of plaintiff’s pension
is the payment each month by plaintiff to defendant of an amount equal to one-half of the
monthly pension benefits that plaintiff would have received had she chosen to retire * * * .” In
Janson, 773 A.2d at 904, we expanded upon that principle and held that “it was inequitable for
the trial justice to allow the husband to ‘unilaterally deprive’ the wife of her share of the pension
by delaying his retirement until some uncertain date in the future when he might decide to
retire.”
Here, the trial justice seemingly recognized that plaintiff’s receipt of alimony in lieu of
her interest in the firefighters’ pension was not in her best interest, yet he failed to articulate the
potential option of requiring defendant to pay to plaintiff her share of the pension benefits, either
at the time of the divorce or upon defendant attaining full eligibility. Pension benefits are not in
the nature of support; rather, they are marital property in which plaintiff was awarded a fifty-
percent interest.
We are mindful of the vast discretion with which a trial justice is imbued in equitably
distributing marital assets. This was clearly a bitterly contested and acrimonious divorce. Sadly,
we see such cases from time to time, and they are all too frequent occurrences in Family Court.
We note the following comment by the no doubt exasperated trial justice during testimony
concerning payment of tuition for the parties’ minor daughter:
“You know, this case gets more disturbing every day. * * *
What troubles me is this case has been going on so long, how you
as attorneys and the parties did not split up at least a percentage of
these assets. * * * [I]f you don’t agree, I will make that decision,
but how do you keep all of this money tied up, the kid could go to
this school. No one is talking to each other. Obviously the
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lawyers aren’t talking to each other [either] because some of this
money would have gone for that child.”
We commend the trial justice for his equanimity in presiding over, not only the lengthy trial, but
also the plethora of pre- and posttrial motions.
One factor in the record, however, strikes us as unusual, disconcerting, and out of all
proportion to the size of the marital estate or the complexities of the issues involved, and that is
the enormity of the legal fees. We emphasize that the trial justice did not pass upon the
reasonableness of the attorneys’ fees; nor do we, other than to note that the record contains an
attorney’s lien that was filed on September 3, 2010 in excess of $239,000.
As these parties have clearly exhausted their funds waging this “War of the Roses,” we
shall not instruct the Family Court to conduct further proceedings consistent with this opinion.
Rather, we invoke our own supervisory authority and direct that upon remand the Family Court
enter an order directing defendant to pay to plaintiff one-half the value of his pension benefit at
such time as he becomes eligible to receive his maximum pension benefit. 10 Such order shall be
prospective from the date of this opinion, and not retroactive. Upon commencement of said
payments, defendant’s obligation to pay alimony shall cease. We affirm the decision pending
entry of final judgment in all other respects.
In light of our holding in this opinion, the defendant’s challenge to the award of alimony
becomes moot. Finally, we affirm the trial justice’s denial of the plaintiff’s request for attorney’s
fees. In Family Court, “[a]n award of attorney’s fees is not punitive in nature but serves to
ensure that a spouse who lacks financial stability is still able to secure competent representation
in the divorce proceeding.” Thompson v. Thompson, 642 A.2d 1160, 1165 (R.I. 1994). We
review a trial justice’s decision whether to award attorney’s fees under an abuse-of-discretion
10
We understand defendant’s maximum pension benefit to be sixty percent.
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standard. See Ruffel, 900 A.2d at 1193. In this case, it is difficult to discern how either party can
bear the burden of the legal fees to which they have become exposed. In any event, we are
satisfied that the trial justice did not abuse his discretion in declining to award attorney’s fees to
the plaintiff.
IV
Conclusion
Our review of the record reveals that the trial justice took great pains to consider all of
the evidence before him. We have no doubt that the parties, given the opportunity, would
continue to challenge aspects of the decision indefinitely (or at least until both they and the
marital estate are exhausted); but, with deference to the trial justice’s discretion, and not a little
admiration for his patience, we affirm in part and reverse in part the decree of the Family Court.
The record shall be remanded to the Family Court. Upon remand, we direct the Family Court to
enter an order directing the defendant to pay to the plaintiff one-half the value of his pension
benefits at such time as he becomes eligible to receive his maximum pension benefits; such
payments shall be made monthly. The defendant’s obligation to pay alimony shall cease upon
the commencement of such payments. Upon the defendant’s retirement, the plaintiff shall
receive one-half of the defendant’s pension benefits pursuant to a qualified domestic relations
order. The decision pending entry of final judgment is affirmed in all other respects. The record
of this case shall be returned to the Family Court.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Gail M. Bober v. David R. Bober.
CASE NO: No. 2010-409-Appeal.
No. 2011-337-Appeal.
(P 07-637)
COURT: Supreme Court
DATE OPINION FILED: June 6, 2014
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Chief Justice Paul A. Suttell
SOURCE OF APPEAL: Providence County Family Court
JUDGE FROM LOWER COURT:
Associate Justice Howard I. Lipsey
ATTORNEYS ON APPEAL:
For Plaintiff: Colleen M. Crudele, Esq.
For Defendant: Lauren E. Jones, Esq.