Thomas Giddings v. Nicole Arpin

Supreme Court

No. 2016-074-Appeal.
(K 13-191M)
Thomas Giddings :

v. :

Nicole Arpin. :

ORDER

Thomas Giddings (plaintiff or Giddings) appeals a Family Court order that modified

custody in response to an emergency motion for custody brought by the child’s mother, Nicole

Arpin (defendant or Arpin). This case came before the Supreme Court on May 2, 2017, 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 hearing counsels’ arguments and reviewing the parties’

memoranda, we are satisfied that cause has not been shown. Accordingly, we shall decide this

appeal at this time without further briefing or argument. For the reasons set forth herein, we

affirm the order of the Family Court.

On May 4, 2015, defendant called the Warwick Police Department to request a well-

being check on her son because she was concerned that plaintiff was driving while intoxicated

with their son in his vehicle. Officer John Curley of the Warwick Police Department arrived at

the scene and found plaintiff sitting in a parked vehicle with the motor running, while the child

played basketball in the parking lot. After plaintiff failed a field sobriety test, he was removed

from the vehicle and the child was taken to a family friend’s house. Eileen Cook, a Child

Protective Investigator at the Department of Children, Youth, and Families (DCYF), was

assigned to the case and placed the child with his mother, defendant.

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On May 5, 2015, defendant filed a pro se emergency motion for custody. 1 That same

day, a justice of the Family Court entered an ex parte order that awarded defendant temporary

custody and placement of the child. On May 6, 2015, plaintiff moved to vacate the order, which

the justice denied. In her order denying the motion to vacate, the justice scheduled the matter for

a full hearing to address the issue of child placement and “all issues presenting.” On May 15,

2015, prior to the hearing, the Family Court justice entered a consent order that addressed

visitation and ordered five-day alcohol screens for both parties.

On June 8, 2015, another justice of the Family Court conducted a hearing on defendant’s

motion for custody. At the hearing, defendant testified and presented three witnesses: Officer

Curley, Eileen Cook, and Charlene Vincent, a friend of both plaintiff and defendant. At the

conclusion of defendant’s case, plaintiff moved to dismiss the motion and argued that defendant

failed to prove that plaintiff, as the parent with “custody and physical possession of the minor

child,” was unfit. The hearing justice reserved decision on this motion.

On June 15, 2015, the hearing justice issued a bench decision on defendant’s custody

motion. She noted that defendant’s burden was “to prove a substantial change of circumstances

in order to change custody on a permanent basis.” The hearing justice made multiple factual

findings, including that, at the time plaintiff was granted sole custody of the child, defendant

“was in active addiction.” She noted, however, that defendant had been sober since November

10, 2013, and has had her two other children returned to her. The hearing justice pointed out that

she conducted an in-camera interview with the child; and, based on that interview, she believed

1
Although not specifically cited in defendant’s original motion or the papers before this Court,
during oral argument the parties stated that the motion was made pursuant to Rule 65 of the
Family Court Rules of Domestic Relations Procedure.

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that the child had missed plaintiff and had a close bond with him. She found that the child also

had a good relationship with defendant.

Based on the close bond between plaintiff and the child and the length of time that the

child had lived with him, the hearing justice returned placement to plaintiff, with the following

conditions imposed: five-day alcohol screens for the next three months; continued Family Care

Community Partnership (FCCP) services for the child; and a requirement that neither party say

anything derogatory about the other party to the child or discuss the court proceedings with him.

Additionally, if plaintiff was subsequently arrested for driving while impaired with the child in

the car, he could lose placement of the child. The hearing justice then stated that she thought that

there should be joint custody and a fixed visitation schedule. When asked whether plaintiff

objected to joint custody, his counsel responded, “My client, prior to the hearing today, indicated

that he wanted to have the court order of 2013 maintained and that he would provide her

visitation.” In reply, the hearing justice noted that “the [c]ourt can certainly give any relief that it

wants that was less than was asked for, the [c]ourt is going to change the order [to] joint

custody.” She then referred the parties to mediation to work out a visitation schedule.

On December 27, 2015, the hearing justice entered an order that restated much of her

bench decision. In pertinent part, the order: returned placement of the child to plaintiff under

the above-mentioned conditions, granted joint legal custody of the child to the parties, and

ordered that defendant be advised of and given access to all medical, educational, social,

religious, and extracurricular activity information. That same day, another order was entered that

set forth the visitation schedule.

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On January 12, 2016, plaintiff appealed to this Court. 2 On appeal, plaintiff maintains that

a hearing was held on December 15, 2015, regarding his objection to the proposed order,

wherein he argued “that he was being deprived of procedural due process of law” and that the

hearing justice “awarded [defendant] more relief than she prayed for or was deserving of.” The

plaintiff also argues that “he was denied notice of the pendency of any other relief prayed for and

was likewise denied the opportunity to prepare and defend[.]” He asks this Court to vacate the

order as to the relief granted to defendant, which she did not request in her motion for custody.

On July 5, 2016, defendant moved to dismiss plaintiff’s appeal on the grounds that his

prebriefing statement did not comply with Article I, Rule 12A of the Supreme Court Rules of

Appellate Procedure. 3 Specifically, defendant argued that plaintiff’s unnumbered, three-page

prebriefing statement failed to: identify any specific provision of the hearing justice’s order that

he is challenging, note where in the record he raised the issue below, set forth an argument

supported by specific facts and law, and develop a “meaningful discussion” of the issues alleged.

The defendant also argued that plaintiff, in addition to erroneously citing to a hearing date that

never occurred (December 15, 2015), failed to provide this Court with a transcript of the

December 7, 2015 hearing where plaintiff allegedly raised the issues below. On October 14,

2016, this Court denied defendant’s motion to dismiss this appeal.

In her statement to this Court, defendant again challenges plaintiff’s inadequate and

unsupported prebriefing statement, as it required defendant’s counsel to guess what plaintiff is

arguing on appeal. Nonetheless, defendant maintains that the hearing justice correctly

2
The Family Court docket reveals that the notice of appeal was amended on January 19, 2016.
3
Article I, Rule 12A(1) of the Supreme Court Rules of Appellate Procedure requires an appellant
to “file a statement of the case and a summary of the issues proposed to be argued * * * .”

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recognized that a substantial change of circumstances justified a modification of the custody

arrangement, including defendant’s sobriety and the return of her other children to her.

The plaintiff’s sparse prebriefing statement fails to articulate the issues he is raising on

appeal. He puts forth undeveloped arguments alleging that he was denied procedural due

process of law because he did not receive “notice of the pendency of any other relief prayed for.”

The plaintiff then references, again without development or analysis, the due process clause of

the Fourteenth Amendment to the United States Constitution and Rule 4 of the Family Court

Rules of Domestic Relations Procedure. As noted above, plaintiff asserts that at a hearing on

December 15, 2015, he objected to the proposed order on the grounds that he was denied

procedural due process. The record reveals and the parties confirmed at oral argument, however,

that the hearing actually occurred on December 7, 2015, and plaintiff failed to provide us with a

transcript of this hearing. Thus, we cannot determine whether he raised any challenges below. 4

Without belaboring the point, the plaintiff has failed to develop his arguments or provide

any facts or law to support the inartfully raised issues. His three-page prebriefing statement

contains only a handful of sentences on the issue of notice and “has not directed our attention

with specificity to any error that he alleges has been committed in that regard or otherwise.”

Nuzzo v. Nuzzo Campion Stone Enterprises, Inc., 137 A.3d 711, 717 (R.I. 2016). This Court has

held that “[s]imply stating an issue for appellate review, without a meaningful discussion thereof

or legal briefing of the issues, does not assist the Court in focusing on the legal questions raised,

and therefore constitutes a waiver of that issue.” Giammarco v. Giammarco, 151 A.3d 1220,

1222 (R.I. 2017) (quoting McMahon v. Deutsche Bank National Trust Co., 131 A.3d 175, 176

4
As this Court has stated, the decision to pursue an appeal without providing a transcript of the
prior proceedings is “risky business.” Bellevue-Ochre Point Neighborhood Association v.
Preservation Society of Newport County, 151 A.3d 1223, 1229 n.8 (R.I. 2017) (quoting Holden
v. Salvadore, 964 A.2d 508, 513 (R.I. 2009)).

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(R.I. 2016) (mem.)). Given the cursory and undeveloped nature of his prebriefing statement, and

its failure to apprise either this Court or the defendant of the issues he is arguing on appeal, we

deem these issues waived.

For the reasons set forth, we affirm the order of the Family Court. The record may be

remanded to that tribunal.

Entered as an Order of this Court this 22nd day of May, 2017.

By Order,

____________________________________
/s/

Clerk

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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

ORDER COVER SHEET

Title of Case Thomas Giddings v. Nicole Arpin.
No. 2016-074-Appeal.
Case Number
( 13-191M)

Date Order Filed May 22, 2017

Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Kent County Superior Court
Source of Appeal

Judicial Officer From Lower Court Associate Justice Sandra A. Lanni
For Plaintiff:

Gary E. Blais, Esq.
Donald R. Lembo, Esq.
Attorney(s) on Appeal
For Defendant:

Lauren E. Jones, Esq.

SU-CMS-02B (revised November 2016)