Kellie Sullivan v. Timothy Sullivan

May 11, 2021

Supreme Court

No. 2019-394-Appeal.
(P 16-5381)

Kellie Sullivan :

v. :

Timothy Sullivan. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
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Supreme Court

No. 2019-394-Appeal.
(P 16-5381)

Kellie Sullivan :

v. :

Timothy Sullivan. :

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

OPINION

Chief Justice Suttell, for the Court. The defendant, Timothy Sullivan,

appeals from a decision pending entry of final judgment terminating his marriage to

the plaintiff, Kellie Sullivan, on the grounds of irreconcilable differences. On

appeal, the defendant asserts that the trial justice made several errors involving

factual findings, marital assets, and marital debt. This case came before the Supreme

Court 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 case may be decided without further briefing

or argument. For the reasons set forth in this opinion, we affirm the decision pending

entry of final judgment of the Family Court.

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I

Facts and Travel

The parties were married on June 19, 2004, and have two children, born in

2005 and 2007.

In October 2016, plaintiff filed a complaint for divorce in Providence County

Family Court, citing irreconcilable differences that had caused the irremediable

breakdown of the marriage as grounds therefor, and she requested legal custody and

physical placement of the children, child support, and equitable distribution of the

marital assets. The defendant filed a counterclaim in April 2017, requesting that the

parties be awarded joint legal custody of the children with physical placement

assigned to him and child support awarded to him. He also sought medical and

dental insurance coverage for himself and the children under plaintiff’s health plan

and asked the court to order plaintiff “to pay any and all reasonable and necessary

uninsured or underinsured medical, dental, hospital, ophthalmologic and orthodontic

services, including medicines and prescriptions, for the benefit of the said minor

children, in excess of health insurance coverage[.]” The defendant also requested

equitable distribution of the marital assets.

The case was tried over several days in 2018 with testimony by only plaintiff

and defendant, most of which dealt with the parties’ respective contributions to the

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marriage—both financially and through household responsibilities—and the

contested assets and debts.

The trial justice issued a written decision on July 3, 2019, granting both

plaintiff’s complaint and defendant’s counterclaim for divorce. The trial justice

began his decision by reviewing the parties’ testimony; he indicated that plaintiff’s

“testimony was both candid and credible[,]” whereas defendant’s testimony “was

less than candid, not credible, and unworthy of belief[.]” He made a total of

forty-one findings of fact.

The trial justice awarded the parties joint custody of the children, with

physical placement awarded to plaintiff; plaintiff was given the opportunity to buy

out defendant’s interest in the marital domicile or, in the alternative, she and the

children could occupy the marital domicile until the younger child attains the age of

eighteen and completes high school. The trial justice found that plaintiff “was both

the primary breadwinner during the marriage and also the primary homemaker” and

that “[d]efendant’s efforts to find employment over the last several years,

commensurate with his education and experience, have been less than admirable,

and border on lethargic[.]” He found that plaintiff earned a salary of approximately

$100,000 and that defendant had an annual earning capacity of $85,000; the trial

justice therefore directed that defendant pay to plaintiff $302 per week in child

support. The trial justice additionally found that plaintiff had contributed to the

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acquisition of defendant’s MBA and that plaintiff had contributed substantial

premarital assets to the marital estate.

With regard to the marital domicile, the trial justice found that the fair market

value was $305,000, based upon the appraisals presented by both parties. He noted

that, although “[d]efendant’s parents contributed towards the acquisition of the

marital estate, * * * it was [p]laintiff’s efforts which were largely responsible for the

preservation and appreciation in value of the same[.]” He set defendant’s interest in

the marital domicile at $152,500 “based upon the facts of this case and the

application of the equitable distribution statute[.]”

The trial justice further found that defendant’s parents had held a promissory

note and a recorded mortgage encumbering the marital domicile in the amount of

$150,000, which mortgage had been “paid in full on May 17, 2007[.]” He also found

that defendant’s mother had filed a collection suit against the parties in

Massachusetts for $140,000, which the Massachusetts Superior Court had

dismissed. The trial justice characterized the Massachusetts suit as “a nullity” and

directed that defendant pay “reasonable costs or fees incurred by the [p]laintiff in

the defense of said litigation[.]” The trial justice also directed that defendant obtain

a discharge of the mortgage and promissory note from his mother.

The trial justice thereafter found that any and all pension assets and bank

accounts acquired by plaintiff during the term of the marriage were marital assets;

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he also found that all pension assets and bank accounts not converted into a joint

account during the marriage, acquired by plaintiff prior to marriage, were not marital

assets. He awarded 70 percent of said marital assets to plaintiff and 30 percent to

defendant. Furthermore, the trial justice directed defendant to pay plaintiff his

contribution towards running the marital domicile during the pendency of the case,

which was set at $77,020.17 as of May 9, 2019. He additionally found that

defendant’s $39,000 credit-card debt was “not a marital debt, and should be assigned

to the [d]efendant[.]”

A decision pending entry of final judgment, reflecting the directives of the

written decision, entered on August 19, 2019. The defendant filed a timely notice

of appeal on August 29, 2019.

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.’” Boschetto v. Boschetto, 224 A.3d 824,

828 (R.I. 2020) (quoting Vieira v. Hussein-Vieira, 150 A.3d 611, 615 (R.I. 2016)).

“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 trial justice’s findings.” Id. (quoting Vieira, 150 A.3d at 615).

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“The justices of the Family Court are vested with broad discretion as they seek

to fairly divide marital property between the parties in divorce proceedings.”

Boschetto, 224 A.3d at 828 (quoting Vieira, 150 A.3d at 618). “It is well established

that the equitable distribution of property is a three-step process.” Id. (quoting

Vieira, 150 A.3d at 618). “The trial justice first must determine which assets are

marital property, then must consider the factors set forth in [G.L. 1956]

§ 15-5-16.1(a), and, finally, he or she must distribute the property.” Id. (quoting

Vieira, 150 A.3d at 619).

III

Discussion

A

Findings of Fact

On appeal, defendant first contends that the trial justice misconceived

evidence and/or was clearly wrong in reaching several of his findings. Specifically,

he argues that the trial justice erred in his findings regarding (1) the parties’

respective contributions to the marriage; (2) plaintiff’s contribution to defendant’s

acquisition of his MBA; (3) defendant’s credit-card debt; and (4) defendant’s

earning capacity. We address each claim of error seriatim.

The defendant first argues that the trial justice erred in his findings on the

parties’ respective contributions to the marriage; he asserts that he contributed

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substantial premarital assets to the marital estate, including $380,000 from the sale

of his two premarital condominiums. He additionally contends that he contributed

to the marital expenses until he lost his job and his unemployment benefits ran out

in 2015 and that he contributed to the marriage with “non-monetary contributions.”

Accordingly, he argues that he deserves more of the marital estate than he was

awarded.

In his decision, the trial justice thoroughly reviewed the testimony of the

parties regarding specific assets, their respective employment histories, and the

division of household labor and child care. While it is true that defendant contributed

to the marital expenses until he became unemployed, the trial justice found that

defendant’s “efforts to find employment over the last several years, commensurate

with his education and experience, have been less than admirable, and border on

lethargic[.]” The defendant additionally indicated in his testimony that his parenting

style was “hands-off” and that he does not “actively pursue helping [the children]

with things; but, if they need help, [he]’ll help them”—he testified that he gets as

“involved as they’ll let me.” The plaintiff, on the other hand, testified that she was

the children’s “primary caretaker as far as preparing meals, laundering their

uniforms, pressing their uniforms, laundering their clothes[,]” making appointments,

transporting them to extracurricular activities and medical appointments, helping

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with schoolwork, volunteering at school weekly, and attending parent-teacher

conferences.

Furthermore, while plaintiff’s testimony regarding income, assets, and marital

and family expenditures was detailed and specific, defendant’s testimony regarding

these topics was vague. It is clear from the testimony that the trial justice was correct

in finding that plaintiff “was both the primary breadwinner during the marriage and

also the primary homemaker[.]” Accordingly, we are of the opinion that the trial

justice’s findings regarding each party’s marital contributions are amply supported

by the record.

The defendant next contests the trial justice’s finding that plaintiff contributed

to the acquisition of his MBA. This argument is without merit; although defendant’s

father financed defendant’s graduate-school education, plaintiff held a full-time job

and was the primary homemaker and child-care provider during that time.

Additionally, plaintiff testified that she was supportive of defendant in this endeavor,

even though it took “away from time with the children and with [herself.]”

Therefore, the trial justice did not misconceive relevant evidence, nor was he

otherwise clearly wrong, when he found that plaintiff had contributed to defendant’s

acquisition of his MBA.

The defendant next argues that the trial justice erred in assigning his $39,000

credit-card debt to defendant, rather than finding that debt to be a marital debt.

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Although defendant claims that the credit card was used for household expenses, he

was unable to provide any credit-card statements or any other evidence identifying

the charges, nor could he articulate what charges were for marital expenses and what

charges were for business expenses. We also note that defendant agreed that plaintiff

had previously paid off an $18,000 debt on a credit card in defendant’s name, and

he did not dispute that plaintiff had asked him to cut up the credit card. In light of

the trial justice’s credibility findings, we are satisfied that he acted within his

discretion in assigning the $39,000 credit-card debt to defendant.

The defendant also asserts that the trial justice erred in finding that defendant

has an annual earning capacity of $85,000. The defendant notes that there were no

“vocational experts” at trial and that, therefore, it is unclear how the trial justice was

able to determine his earning capacity. The trial justice, however, considered

defendant’s educational background, the fact that he holds an MBA, and his

employment history, noting that defendant’s highest annual earnings during the

marriage were approximately $52,000, while he was employed by his family’s

business. Critically, the trial justice found that defendant had not been employed

full-time since 2012, and that his efforts to find employment had been woefully

inadequate. The trial justice did not misconceive evidence, nor was he clearly

wrong, in ascribing to defendant an annual earning capacity of $85,000.

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B

Debt Owed to Defendant’s Parents

The defendant additionally contends that the trial justice erred in addressing

the debts owed to his parents.

The defendant first asserts that the decision pending entry of final judgment

does not address an undocumented $168,000 loan from his parents purportedly used

to fund the acquisition of his premarital condominium, which later became the

parties’ initial marital home. However, the trial justice did address defendant’s claim

that the “undocumented loan” was transmuted into a marital debt, and he rejected it.

The trial justice noted that plaintiff had testified that “[s]aid mortgage was paid off

in part during the course of their marriage” and, during the trial, defendant provided

no documentation of the loan or of the payments made to his parents. Accordingly,

the trial justice deemed defendant’s testimony and the alleged loan, with no

documentation, as “poppycock.” Because no evidence of such a loan was provided,

other than defendant’s testimony, we find no error with the trial justice’s

determination.

The defendant also claims error in the trial justice’s decision ordering that

defendant pay plaintiff’s attorneys’ fees accrued from defending the suit that

defendant’s mother filed against the parties in Massachusetts to secure payment on

the purported mortgage.

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It is well-settled that “determining what constitutes marital property and

dividing it in an equitable fashion ‘is within the sound discretion of the trial court.’”

Palin v. Palin, 41 A.3d 248, 256 (R.I. 2012) (quoting Curry v. Curry, 987 A.2d 233,

238 (R.I. 2010)). “Although § 15-5-16.1 does not explicitly permit a trial justice to

assign marital debt, we previously have reviewed lower courts’ assignments of

marital debt in the same fashion as assignments of marital assets.” Id.; see Curry,

987 A.2d at 239, 240 (affirming trial justice’s assignment of student-loan debt, taken

out by husband for son’s education, to husband); Koutroumanos v. Tzeremes, 865

A.2d 1091, 1098-99 (R.I. 2005) (affirming classification of credit-card debt as

marital debt and assignment of such debt to husband). “[A] trial justice properly

may consider all the circumstances surrounding the debt, including the purpose of

the debt, the receipt of the benefits, the conduct of the parties concerning the debt,

the consent or lack thereof by the nonsignatory spouse, and the knowledge of the

debt by said spouse at the time the debt was incurred.” Palin, 41 A.3d at 256.

Furthermore, “as long as this Court is able to review a lower court’s decision and to

determine therefrom that all the necessary facts and statutory factors were

considered, the trial justice need not explicitly list his or her findings on each factor.”

Id. (brackets omitted) (quoting Curry, 987 A.2d at 238).

Although he did not explicitly name it as such in his decision, it is clear to us

that the trial justice classified the attorneys’ fees incurred by plaintiff as a marital

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debt. See Palin, 41 A.3d at 256. The trial justice found that “[p]laintiff was forced

to retain counsel to defend against” defendant’s mother’s collection suit in the

Commonwealth of Massachusetts, which suit “th[e] [c]ourt considers a nullity[.]”

He further found that “[d]efendant allowed his suit to be defaulted, without any

reasonable explanation[,]” and concluded that “[b]ased upon the facts and

circumstances leading up to said Massachusetts lawsuit, and [d]efendant’s actions

or lack thereof, * * * any and all reasonable costs or fees incurred by the [p]laintiff

in the defense of said litigation, should be borne by the [d]efendant.” One such

circumstance, he found, was defendant’s failure to obtain his parents’ discharge of

the $150,000 mortgage and promissory note. It is evident that the trial justice

considered “all the circumstances surrounding the debt” before assigning the debt to

defendant. Id. Accordingly, we hold that the trial justice did not err in assigning to

defendant the attorneys’ fees incurred by plaintiff.

The defendant additionally argues that the trial justice erred when he

determined that defendant is responsible for obtaining a mortgage discharge from

defendant’s mother with respect to the loan taken by the parties to purchase the

marital domicile. Although defendant asserts that the trial justice attempted to

compel a nonparty to discharge a mortgage, the trial justice provided an alternative

route by authorizing plaintiff to commence suit in Superior Court to quiet title “[i]n

the event the [d]efendant is unable to obtain said discharge[.]” It is clear to us that

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the trial justice was not attempting to compel nonparty action; he was merely seeking

an efficient resolution of this issue. We therefore hold that the trial justice did not

err in ordering defendant to secure a mortgage discharge from his mother or, in the

alternative, by making him responsible “for all reasonable fees and costs necessary

to clear said title as it pertains to the yet undischarged mortgage to [d]efendant’s

parents.”

C

Premarital and Marital Assets

The defendant next argues that the trial justice erred in failing to accord him

any of the marital appreciation of plaintiff’s premarital accounts.

This Court has held that “[t]he appreciation of the value of an investment

account may be subject to equitable distribution pursuant to § 15-5-16.1(b).”

Boschetto, 224 A.3d at 829. The relevant portion of § 15-5-16.1(b) states that “the

court may assign the appreciation of value from the date of the marriage of property

or an interest in property which was held in the name of one party prior to the

marriage which increased in value as a result of the efforts of either spouse during

the marriage.” (Emphasis added.)

In the decision pending entry of final judgment, the trial justice awarded

plaintiff all right and title to her premarital pension assets, including appreciation in

value, because the “increase was passive and not due to the efforts of either party

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during the marriage[.]” He also awarded plaintiff all right and title in her premarital

bank accounts, not converted into joint accounts, and their appreciation in value,

“based upon the facts of this case and the components of the equitable distribution

statute.” He then awarded defendant 30 percent of plaintiff’s pension and bank

account acquired during the marriage.

We discern no error in the trial justice’s application of the equitable

distribution statute or in the division of premarital assets. As evinced by the use of

the word “may[,]” § 15-5-16.1(b) is discretionary in nature—the trial justice was not

required to assign a portion of the appreciation in value of plaintiff’s premarital

pension assets or premarital bank accounts to defendant. See § 15-5-16.1(b).

Furthermore, the trial justice found that any increase in the pension assets was

passive, and not due to the parties’ efforts, putting it squarely outside of the equitable

distribution statute. See id. Accordingly, we hold that the trial justice did not err in

not according defendant any of the appreciation of plaintiff’s premarital accounts.

Finally, the defendant claims that the trial justice erred in preventing him from

exploring the plaintiff’s dissipation of marital assets. The defendant, however, fails

to point to any specific ruling by the trial justice that the defendant challenged in

Family Court by way of objection, or to questions he was prevented from asking the

plaintiff. Thus, we will not disturb the trial justice’s finding that the plaintiff did not

dissipate marital assets and that she was “quite frugal and responsible for the

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preservation of said assets and was further forthright in her testimony as to numerous

bank accounts and the present status of the same[.]”

IV

Conclusion

For the reasons stated herein, we affirm the decision pending entry of final

judgment of the Family Court. The record may 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 Kellie Sullivan v. Timothy Sullivan.

SU-2019-0394-Appeal.
Case Number
(P 16-5381)

Date Opinion Filed May 11, 2021

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

Written By Chief Justice Paul A. Suttell

Source of Appeal Providence County Family Court

Judicial Officer from Lower Court Associate Justice John E. McCann, III

For Plaintiff:

Thomas M. Dickinson Esq.
Attorney(s) on Appeal For Defendant:

Jerome V. Sweeney, III, Esq.
Sean P. Keough, Esq.

SU-CMS-02A (revised June 2020)