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Protection from Domestic Abuse - The Rhode Island Process is Fraught with Peril for Men.

Who Needs the Protection?

By:  Christopher A. Pearsall, RI Divorce and Family Law Attorney*

There are laws in virtually every state that protect the abused.  In Rhode Island we have protection from abuse laws and it is important and appropriate that we have them. 

However, they are not only laws but mindsets that are badly in need of revision and reconsideration.

These laws are codified in Chapter 15-15 of the  Rhode Island General Laws § 15-15-1* et seq. and entitled "Domestic Abuse Prevention."

Rhode Island also has Chapter 15-15.1. The Uniform Interstate Enforcement of Domestic Violence Protection Orders Act which relates to the power within our state to seek the enforcement of Protection from Abuse Orders and Judgments made by foreign tribunals.  For the sake of brevity, these are orders that are generally those issued by courts and tribunals other than the State of Rhode Island. 

For this article though, let's concentrate are Rhode Island's own Domestic Abuse Prevention laws.

Rhode Island's Domestic Abuse Prevention laws cover abuse between a variety of persons.  Specifically, to be within the jurisdiction of the family to court to hear the matter any acts considered "Domestic Abuse" must occur between 1) present or former family members, 2) parents, 3) stepparents, 4) persons who are or have been in either a substantive dating or engagement relationship within the past one year in which at least one of the persons is a minor.  RI Gen. Laws Rhode Island General Laws § 15-15-1(2)

According to the reading of the statute abuse can occur between any combination of these particular classes of people.  That covers quite a bit of ground as it relates to "family" that might be involved.

The statue goes on to describe what constitutes "domestic abuse."

Domestic Abuse is any one or more of the following actions perpetrated by a person in one of the four classes of people identified above:

(1)     Attempting to cause or causing physical harm;
(2)     Placing another in fear of imminent serious physical harm; or
(3)     Causing another to engage involuntarily in sexual relations by force, threat of force, or duress.
(4)     Stalking or cyberstalking

While the individual definitions of these actions causes serious problems in themselves, perhaps the most problematic part of the Domestic Abuse Protection statutes is the the process itself.

In essence, a Person files a Protection from Abuse Complaint to obtain an immediate Ex Parte Temporary Protection from Abuse Order a person only needs to swear to an affidavit that 1) identifies herself or himself as a member of one of the four classes of people identified above, and 2) allege anything that falls within the four categories of domestic abuse with enough convincing language (notice I did not say facts) that gives the judge a reasonable belief that domestic abuse is likely occur to the person if the Temporary Protection from Abuse Order is not issued.

An Ex Parte Protection from Abuse Order is essentially a restraining order that usually often gives the applicant 1) immediate exclusive use and possession of the home and all the things in it, 2) no contact from the party alleged to have abused them at home, work or elsewhere , 3) sole legal and physical custody of any minor children the parties may have together, and 4) relinquishing any firearms to local authorities.  The Order may include other things depending upon what is requested and whether the judge granting such an Ex Parte Order deems it appropriate in his or her discretion.

It is, unfortunately, all too easy to obtain one of these Ex Parte Orders against a man.  Notwithstanding assertions to the contrary, men are perceived as the stronger sex.  Somehow, because we are considered the stronger sex has somehow equated into the fact that by being the stronger sex we are more prone to use that strength to abuse. There is, however, no legal, factual or scientific basis for making this leap in logic.  However, realistically that is what happens. 

In speaking with several police officers this year, I discovered that when they are called to a "domestic disturbance" they are taught to enter the situation with the presumption that the man is the aggressor.  This approach is no different in the court system.  If a woman presents a Complaint for a Protection from Abuse against a man with the accompanying affidavit signed under oath, the Family Court Judge is likely to grant it if it appears the items in the statute have been alleged and the judge forms a reasonable belief that domestic abuse is likely to continue to occur or that occur again if the Ex Parte Order is granted.

The Ex Parte Order can last for up to 21 days before the court hears the matter based solely on the allegations made by the complainant.  For purposes of this article only, let us assume that the complainant is a woman since very few men, in fact, make such complaints for fear that they won't be taken seriously or that they will be viewed as less than men if they do so.

The Case of Donald's Turmoil 

Donald and Teresa were married.  Teresa moved into an apartment that was solely in Donald's name right after they got married.  They had a son about 10 months later.  Donald came home from work one day and was served with an Ex Parte Protection from Abuse Order from the Rhode Island Family Court. The police informed Donald that he had been ordered out of the house and he would be given time to get some of his things.   The police escorted Donald through his own house to the couple's bedroom where he was given 15 minutes to stuff a few essentials into a garbage bag.  Donald was lead outside and the officers told Teresa they would stay outside and wait until Donald had driven away.

Donald was in shock and stopped in a parking lot to read the paperwork.  The order was specific.  Donald was ordered to stay out of the home.  He was ordered to have no contact with Teresa.  Teresa was temporarily awarded sole legal and physical custody of their son.  In three weeks there would be a hearing to find out if the order should be continued for up to 3 years.

Then Donald read Teresa's sworn statement.  Teresa had alleged that Donald had placed her in fear for her life by getting into a rage and throwing a coffee cup at her head causing it to strike the wall and shatter into pieces all while she was holding their son.  Teresa claimed that this put her in fear for her life and the life of their child. 

Donald was incredulous. Teresa had lied.  Not a single allegation was true.  Donald did not understand why Teresa was doing this. Donald had some clothes and toiletries and that was it.

He couldn't contact Teresa.  He couldn't go home.  He had no relatives or friends that he could stay with or call on for help.  He had no way to make arrangements to see their two (2) year old son without breaking the Ex Parte Order.

So Donald did the only thing he could do.  He slept in his car and clean up as best he could in the bathroom at work.  Donald got paid and used the little money he had to get a lawyer thinking it was going to be just one hearing.  On the day of the court proceedings, Teresa showed up saying she needed time to get a lawyer.  Donald's attorney objected.  The judge would not hear the case and continued the hearing another month to Teresa to get an attorney.

Fast forward a month.  Donald had still been living in his car and cleaning up at work.  Teresa got a lawyer just before the court date at no fee to her.  However, now Teresa's attorney needed time to meet with her and to get up to speed on the case so the attorney asked for another continuance.  Donald's attorney vehemently objected stating that he was being denied his due process rights as well as access to his son and his home.  The judge granted 1 hour per week of supervised visitation for Donald at the courthouse as if he were some criminal.  The judge also ordered Donald to continue paying the rent for the apartment until the court could hear the matter regarding child support.  All of this was over the objections of Donald's attorney.  The judge gave Teresa's lawyer a 5 week continuance.

During the ensuing 5 weeks Donald continued to live in his car as before.  Out of the 5 weeks of visits that Donald was supposed to receive, he received 2 when Teresa claimed that she could find no transportation to get the baby to the courthouse the other (3) times.

Fast forward 3 months.... Donald had been ordered to pay child support without the underlying protection from abuse matter being heard.  Again Donald's attorney had objected.  Donald had seen his son a total of 10 hours in 6 months.  Donald had lived in his car for 6 months because Teresa insisted on pressing the Protection from Abuse Complaint.  Each and every time there was an excuse by Teresa or her attorney why the matter could not be heard.  Either Teresa was sick, there was a death in the family, she didn't have a ride to court or the Attorney was on vacation.  Still the court denied Donald his opportunity to testify or to try to prove that no Domestic Abuse was committed.  Each time either Donald or his attorney tried to speak about the substance of the case the court refused to let them speak.  Donald was served with divorce papers immediately after one of his supervised visits with his son.

Fast forward again to 6 months, Donald and his lawyer went into court.  5 continuances had already been granted to Teresa and her lawyer.  This time, Teresa's lawyer stated that income documents had been subpoenaed from Donald's employer but that his employer had not come in with the documents so a continuance was needed since child support depended upon them.  Donald's lawyer objected angrily.  The judge was frustrated.  However, the judge and was going to grant yet another continuance. 

This time Donald's lawyer wasn't going to be silenced.  Donald's attorney told the court how they had intended from the very start to prove that this court had been duped.  We are prepared to give evidence of how Teresa lied on her affidavit, that she was having an affair, that she had moved her boyfriend into the house within hours after Donald had been forced out of the house by the Ex Parte Order. 

The judge told Donald's attorney to stop or he would be found in contempt.  The attorney didn't stop.  He continued to describe how the court had helped Teresa because preventing the truth from coming out sooner allowed the boyfriend live in the apartment at Donald's expense. The attorney quickly described how this boyfriend had been "playing daddy" for the last 6 months while the court kept buying the excuses given by Teresa and her attorney.  Donald's attorney expressed his outrage at how the court was denying his client his home AND his right to be the child's father AND particularly his client's right to be heard on this matter without reasonable due process.

Teresa's lawyer immediately asked the judge to speak with Teresa outside the courtroom.  The judge called for a 15 minute court recess.

Donald and his attorney took a seat.

Twenty minutes later the judge came back out and Teresa and her lawyer came back in.

Teresa voluntarily dropped her Complaint for the Protection from Abuse.  Teresa asked that Donald not return to the apartment until tomorrow.  Donald agreed.

The next day Donald returned to the apartment.  Everything was gone.  Beds, big screen television, appliances, all of their son's things.  He was left his clothes, one bureau a livingroom area rug.  There was junk and pizza boxes strewn about the apartment, a few broken windows and several holes made in the walls.  Donald had no idea where his son was.

If you have read this story, excellent.  Now you are enlightened.  This is not dramatized.  In fact, it is minimalized because the entire story would be too long for most people to endure personally let alone to read.

The Protection from Domestic Abuse laws are too easily manipulated.  They work on the presumption that when people swear under oath to the court that they will be honest and tell the truth, in context, so that the court can do the right thing for truly abused men and women.  I'm an optimist at my center, but I realistically know that people lie every day.  Many people lie on their taxes. Some lie when they are angry.  Some lie just to get their way or because they have an ulterior motive.  To many people it doesn't matter whether the lie is made before a clerk, judge or a notary. 

This story is not out of the ordinary.  All you have to do is lie on the affidavit to the court and for at least 3 weeks you can get a person thrown out of their own home, you keep them away from their children, you can keep them from all their possessions.  In the end, even if you prove that the story they have given the court is fabricated, in 28 years in law in the courts of this state as well as Massachusetts, Vermont and New Hampshire I have not once seen a single person punished for committing perjury even though it is a crime.

Perjury in these types of cases is the most aggregious I can imagine.  You are denied your home, your children, your property .... and all it takes is 3 to 5 sentences of lies phrased in just the right way.  This does such a tremendous disservice to the people who are truly abused and who these laws were intended to serve and protect.

Most of all I would like to caution men.  Protection from Domestic Abuse Complaints are the most frequently used tool of women who want to maintain control in a divorce and sometimes in other proceedings.  By filing for this first it allows them to gain both control of the house, belongings and children and to taint the court into believing that the male spouse is an abuser.  If a judge were to be tainted in this way, might a judge believe that a man who could commit domestic abuse would have no problem lying to the court? 

Yet aren't we innocent until proven guilty you might think.  Not under the Protection from Domestic Abuse Laws. 

So is it possible to taint a judge by presenting a man as an abuser in such a way? 

Hey, anyone can be tainted! 

Can You Get Out Of a RI Agreement in a Divorce That Wasn't On Paper?

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Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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You get into court for your divorce and you're trying to work things out to get the divorce done with, so you agree to something "on the record" which is taken down by a court stenographer as something you agreed to.  It's not in writing though.  Are you stuck with that agreement or can you get out of it"?

A recent case gives us the answer at least about a particular set of circumstances relating to an agreement about keeping an ex-spouse on the health insurance when one spouse claims the agreement wasn't on a written settlement agreement.

Keep in mind that each case is a story about the lives of different people that are thrown out in front of us (sometimes reluctantly and embarrassingly) for everyone to see.  

This is the story of the O'Donnell's.  It's a fairly important story in my estimation because I've seen this happen several times before in family court and it's not uncommon.  It is even something that is suggested by judges in order to bring a long and drawn out case to an end.  Take a look at what happened here.

Welcome to the case of O'Donnell vs. O'Donnell, No. 2012-52-Appeal decided on November 18, 2013 by the Rhode Island Supreme Court.

The body of the case is below but let's summarize the case and what it has to say to us all based upon the facts the RI Supreme Court was presented with.


 Plaintiff and Defendant each had their own attorney.  They entered into a Marital Settlement Agreement and the judge had the fundamentals of this agreement spelled out to the court and read into the court record.  

Both parties testified under oath that they understood the terms of the agreement and agreed to the terms.  However, details are things attorneys are always concerned about because you can state the basics of the agreement between the parties, but the details matter significantly.  The husband may be thinking the details will work one way while the wife may be thinking they will work in exactly the opposite way.  Sometimes, because of the details a person will not agree to one of the fundamentals because the details don't provide him or her with any security or reassurance.  Anyway, at the attorneys' request the Court allowed the attorneys to come back at a later time with a written Marital Settlement Agreement (with all the details0 signed by both parties which would later be incorporated by reference but not merged into the decision just as the oral agreement was on the record.  The attorney's returned to court but they did not have a separate Marital Settlement Agreement.  The decision does not state why this happened but my guess from several cases I've had like this is that the parties could not reach agreement on the details.  So all the attorneys could do was agree to submit the transcript of the hearing.  So the attorneys presented the hearing transcript to the court signed by both sides as a Joint Exhibit representing the parties' agreement.  The parties acknowledged that they were aware of the agreement and it's terms as stated in the transcript and they did not object to the transcript being used as the agreement.

One of the terms of the Marital Settlement Agreement was that the Plaintiff Husband had to provide health insurance for the Defendant Wife until she reached age 65 and after that he would provide for a Medicare Supplement.

The Plaintiff husband got remarried and notified that he was taking his ex-wife off the insurance.  The wife was the Defendant and filed a Motion to Enforce the Agreement which she said required her ex-husband to provide her with insurance... plain and simple.  Both sides submitted legal trial memorandum and briefs to the trial judge who decided that the ex-husband was bound by his Oral agreement in the transcript to provide health insurance.  Therefore, the trial judge ordered the ex-husband to arrange for replacement insurance for his ex-wife.

The Plaintiff husband was not happy with the decision and appealed the trial court's decision to the Rhode Island Supreme Court.  The full case is below.  It can be summarized briefly though.  The husband's primary argument was that because they never reached a formal Written Marital Settlement Agreement between the two parties, which was clearly contemplated by the lawyers and made clear to the court, there was no "meeting of the minds" and therefore there was no written contract between them and so the ex-husband was not bound to the oral statements he made in court.  So the wife could not enforce a contract that didn't exist.

The R.I. Supreme Court looked at it much differently than the ex-husband.  The parties stated that part of the agreement on the record and agreed to it.  They agreed to be bound by it.  Even though the court let the parties come back later with a detailed agreement, they did not do that.  Instead they presented the very same transcript in which the parties had given their testimony.  Not only that, but both sides signed it and agreed that it was their Agreement and they were bound by it.  It was, in fact, made a joint exhibit without any objection by either party.  

The court found that the agreement was clear on the record and the ex-husband was bound by it and even if he were not bound by it, submitting the transcript as a signed joint exhibit confirmed "in writing" that the parties intended to be bound by what they said.

The case was returned to the family court.  

Since the family court judge's decision was affirmed, the family court judge would most likely continue upon the path of enforcing the agreement by requiring the ex-husband to provide insurance for the ex-wife.

Though there are tangential issues present, they are technical to the matter but for the significance of the case over all, the main point to be taken here is that when you make agreement before the court and agree to be bound by it.... expect to be bound by it and held to it by the court and the parties.

If you are interested in reading the entire case, you will find it detailed below:



John C. O'Donnell, III
Anne A. O'Donnell.
No. 2012-52-Appeal
Supreme Court of Rhode Island
November 18, 2013

         Newport County Family Court No. N 99-537 Associate Justice Karen Lynch Bernard

          For Plaintiff: Allen M. Kirshenbaum, Esq.

          For Defendant: Robert S. Parker, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


          Maureen McKenna Goldberg Associate Justice

         This case came before the Supreme Court on September 25, 2013, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. The plaintiff, John C. O'Donnell, III (John or plaintiff), appeals from a Family Court order directing him to comply with a provision in a divorce settlement agreement that requires him to maintain health insurance for the defendant, Anne A. O'Donnell[1] (Anne or defendant). After hearing the arguments of counsel and carefully examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal may be decided at this time. For the reasons elucidated below, we affirm the judgment of the Family Court.

         Facts and Travel

         The parties to this appeal were married on September 6, 1980. Two children, now adults, were born of the marriage. On December 15, 1999, plaintiff filed a complaint for divorce based on irreconcilable differences, in response to which defendant filed a similar counterclaim. The case was not reached for trial for almost three years; then, on November 12, 2002, the parties indicated that they had reached a settlement. Counsel for plaintiff stated that he was prepared to read the terms of the parties' agreement into the record, but he also requested that the case be continued so that a written property-settlement agreement could be prepared. The Family Court justice presiding over the hearing stated that

"it is my understanding the parties have in fact settled all of the terms and conditions. I want to continue it to December 6 for the actual divorce to go through for the attorneys in the interim to prepare a written Property Settlement Agreement in which the Court will approve and incorporate, not merge; it will be a separate and independent contract. The outlines of the settlement will be read in the record today and the parties are bound by the outlines of the settlement. They can't come back to court and say, 'Gee, we changed our mind. I thought it over. I don't want to do that.'"

         The plaintiff's attorney then proceeded to relate the terms of the parties' agreement. One provision obligated plaintiff to provide health insurance for defendant until she reached the age of sixty-five, with a Medicare supplement thereafter. This provision was somewhat detailed; specifically, plaintiff was required to maintain coverage for defendant under the health and dental insurance plan in effect at the time of their divorce, or provide coverage under an equivalent plan.[2]

         After the parties' agreement was read into the record, the Family Court justice asked both parties whether they had been afforded a sufficient opportunity to reflect on the terms, whether they were entering into the agreement voluntarily, and whether they understood that they would be bound by those terms. Both parties—who were seated with their lawyers—answered affirmatively to each question posed by the Family Court justice. The case was then continued to allow the attorneys to prepare a written agreement, which was to be incorporated but not merged into the final divorce decree.

         At the scheduled hearing date on December 6, 2002, however, a written agreement had not been consummated.[3] Instead, plaintiff's attorney presented the transcript of the November 12, 2002 hearing as an exhibit evidencing the terms of the parties' agreement. He asked that it be marked as a joint exhibit, and defendant's attorney concurred.

         Counsel for plaintiff then proceeded to question his client about the terms of the agreement that had been read into the record at the November 12, 2002 hearing. Specifically regarding health insurance coverage, plaintiff affirmed his understanding that he "will provide [his] current Blue Cross Dental II or equivalent for [his] wife until age 65, and after age 65, Medicare supplement[.]" The plaintiff also acknowledged his obligation to pay any copay expenses in the event defendant was offered health insurance by an employer at a reduced cost. When asked whether he had read the transcript that was entered as a joint exhibit, plaintiff stated, "many times." The plaintiff's attorney then asked whether plaintiff understood the terms of the agreement and if he "agreed it will become a binding agreement between you and your wife, " to which he answered, "yes, I do." On cross-examination, defendant similarly stated that the terms of the agreement had been fully explained to her and that she agreed with those terms.

         Having the benefit of the parties' testimony, the Family Court justice determined that the parties had settled all outstanding issues between them by means of the agreement that had been read into the record by plaintiff's counsel at the November 12, 2002 hearing. The trial justice approved the marital settlement agreement, noting that it was presented as a joint exhibit in the form of a transcript, and ordered it incorporated but not merged into the final divorce decree. A decision pending entry of final judgment was entered on December 17, 2002, which reiterated the trial justice's findings of fact that both parties had accepted the agreement that was read into the record at an earlier hearing and presented to the court as a joint exhibit in the form of a transcript. The decision also specified that the agreement was to remain a separate and independent contract between the parties and was to be incorporated by reference but not merged into the final decree of divorce. The final judgment of divorce, which entered on June 5, 2003, also refers to the parties' marital settlement agreement, and provides that it was incorporated by reference but not merged into the judgment, and is to remain a separate and independent contract between the parties.

         On June 21, 2011, defendant filed a motion to enforce the provisions of the parties' agreement respecting plaintiff's obligation to pay for health insurance.[4] The defendant claimed that she had received a certified letter from plaintiff stating that, as of July 1, 2011, he would no longer provide defendant with medical insurance because he had remarried and was enrolling his new spouse in his health insurance plan. By way of answer, plaintiff challenged the validity of the marital settlement agreement, claiming that the mere reading of an agreement's outline on the record, without a written agreement having been executed by the parties that was incorporated but not merged into the final divorce decree, was not binding. Significantly, plaintiff did not move to vacate or amend the agreement nor did he seek any other relief. In essence, plaintiff alleged that because the parties failed to execute a written settlement agreement, there was no real meeting of the minds between the parties. Finally, plaintiff cited L'Heureux v. L'Heureux, 770 A.2d 854 (R.I. 2001), for the proposition that the Insurance Continuation Act, found in G.L. 1956 chapter 20.4 of title 27, required plaintiff to stop providing health insurance to his former spouse once he remarried.[5]

         At the hearing on defendant's motion, the parties rested on their respective memoranda. The Family Court justice issued a bench decision, finding that the parties had stipulated that the November 12, 2002 hearing transcript that was submitted as a joint exhibit was the written agreement. She determined that at the time of the nominal hearing on December 6, 2002, the parties intended that the transcript would serve as the marital settlement agreement. The Family Court justice also found that there was "no mention anywhere" of the Rhode Island Insurance Continuation Act and that it was clear that the "intent and the clear agreement between the parties was that [plaintiff] was to continue to cover [defendant] with her health insurance except for those conditions of her getting employment that allowed health insurance."

         An order reflecting the bench decision was entered on January 6, 2012. That order specifically stated that the L'Heureux case did not apply because there was a property settlement agreement, and "the clear intent of the parties was that [husband] would be responsible for providing [wife] with health insurance, subject to the other provisions or conditions in the agreement." The order required plaintiff "to comply with the terms of the agreement and to obtain and maintain the health insurance pursuant to the parties' agreement." The plaintiff filed a timely appeal.[6]

         Standard of Review

         It is well settled that 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)). Thus, "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 Cardinale, 889 A.2d at 217-18). However, this Court reviews all questions of law presented in an appeal from the Family Court de novo. Zharkova v. Gaudreau, 45 A.3d 1282, 1290 (R.I. 2012) (citing Curry v. Curry, 987 A.2d 233, 238 (R.I. 2010)).


         On appeal, plaintiff claims that the parties never truly reached an agreement.[7] The plaintiff contends that there was no meeting of the minds between the parties and that, if an agreement had in fact been reached, additional provisions would have been included within its terms.[8] The plaintiff argues that the agreement to which defendant points was not a writing signed by the parties and that it is therefore nothing more than stenographic notes. As a result, plaintiff maintains that a stenographic record of an oral agreement reached in open court is not sufficient to form a nonmodifiable marital settlement agreement. The plaintiff's arguments are without merit.

         It is well settled that in order to form an enforceable agreement, "[e]ach party must have and manifest an objective intent to be bound by the agreement." Opella v. Opella, 896 A.2d 714, 720 (R.I. 2006) (citing Weaver v. American Power Conversion Corp., 863 A.2d 193, 198 (R.I. 2004)); Rhode Island Five v. Medical Associates of Bristol County, Inc., 668 A.2d 1250, 1253 (R.I. 1996). Thus, "a litigant must prove mutual assent or a 'meeting of the minds between the parties.'" Opella, 896 A.2d at 720 (quoting Mills v. Rhode Island Hospital, 828 A.2d 526, 528 (R.I. 2003) (mem.)).

         In the present case, the Family Court justice found that the parties intended and agreed that plaintiff was to provide health insurance coverage to defendant, with only limited exceptions concerning employer-provided health insurance. The Family Court justice reached this conclusion after reviewing the transcript from the November 12, 2002 hearing, where plaintiff's counsel—without objection—read this provision into the record. The Family Court justice noted that, after plaintiff's attorney submitted that transcript as a joint exhibit at the December 6, 2002 hearing, both plaintiff and defendant testified under oath and confirmed their assent to its terms. At no time did either party object or voice any disagreement with the health insurance coverage provisions. Accordingly, the parties are bound by the agreement which they affirmed in open court.

         The plaintiff also contends that, because the agreement was neither drafted nor signed by the parties, it is nothing more than stenographic notes and not a binding agreement. The plaintiff suggests that a stenographic record of a judicial proceeding cannot form the basis of a nonmodifiable marital settlement agreement. We reject this contention.

         In pertinent part, Rule 1.4 of the Family Court Rules of Practice, entitled "Agreements, " provides that "[a]ll agreements of parties or attorneys touching the business of the court shall be in writing, unless orally made or assented to by them in the presence of the court when disposing of such business, or they will be considered of no validity." (Emphasis added.)

         In Ruffel v. Ruffel, 900 A.2d 1178 (R.I. 2006), this Court—as a matter of first impression—likened Rule 1.4 of the Family Court Rules of Practice to its "identical" counterpart, Rule 1.4 of the Superior Court Rules of Practice. Ruffel, 900 A.2d at 1185. In Ruffel, we held that although parties to a divorce may enter into an agreement to change the valuation date for equitable distribution, in order to comply with Rule 1.4, that agreement must be evidenced by a writing or placed on the record. Ruffel, 900 A.2d at 1186. In so holding, this Court cited to prior decisions declaring that the only way parties may preserve an agreement within the rules of practice is to place that agreement on the record "in the presence of the court, " or reduce it to an agreed-upon writing. See id. at 1185 (citing E.W.H. & Associates v. Swift, 618 A.2d 1287, 1288-89 (R.I. 1993) (holding unenforceable an alleged oral settlement agreement that was not in writing or placed on the record); DiLuglio v. Providence Auto Body, Inc., 755 A.2d 757, 776-77 (R.I. 2000) (declining to uphold an alleged bifurcation agreement that was not in writing nor placed on the record); Melucci v. Berthod, 687 A.2d 878, 879 (R.I. 1997) (purported settlement agreement not placed on the record or reduced to writing held unenforceable)). These holdings comport with this Court's reasoning that "[r]equiring stipulated agreements either to be placed on the record or to be reduced to an agreed-upon writing ensures that the agreement itself does not become a source of further controversy and litigation." Ruffel, 900 A.2d at 1185 (quoting Swift, 618 A.2d at 1288-89). On the other hand, a stipulation of counsel, whether in writing or made in open court, "is conclusive upon the parties and removes the issue from the controversy." In re McBurney Law Services, Inc., 798 A.2d 877, 881-82 (R.I. 2002).

         Here, plaintiff's efforts to be relieved of the terms of the agreement that was set forth on the record and later introduced as an exhibit are wholly without merit. It is undisputed that plaintiff's attorney recited the terms of the parties' agreement to the Family Court justice in open court. Each party then assented to those terms. At the later nominal hearing, the transcript was admitted as a written exhibit, evidencing the parties' agreement. Each party testified, and once again declared their assent to the terms set forth in the transcript, without objection. Accordingly, plaintiff's argument that the parties' agreement is unenforceable because it was not drafted and signed by the parties is rejected.

         Moreover, the claim that plaintiff would have included many more provisions if an agreement had actually been reached similarly is unavailing. Whatever reason the parties failed to execute a separate settlement agreement before the nominal hearing is of no moment. The trial justice noted that the parties had drafted several revisions, but that no written agreement was ever executed by the parties.[9] However, she determined that at the time of the nominal hearing on December 6, 2002, the parties intended that the transcript of the agreement made in open court would serve as the settlement agreement. We refuse to disturb this finding.

         We also reject plaintiff's claim that the stenographic record of an agreement reached in open court does not rise to the level of a nonmodifiable marital settlement agreement. This Court is cognizant that contractual agreements between spouses are entitled to special judicial attention based on equitable concerns arising from the marital relationship. Gorman v. Gorman, 883 A.2d 732, 737 (R.I. 2005). However, the record establishes that the parties freely entered into and agreed to be bound by the terms that were submitted on the record in open court. We do not overlook the fact that it was plaintiff who offered the transcript as written evidence of the parties' stipulated agreement and who then testified that he understood fully that he would be bound by that agreement. He may not retreat from that agreement simply by entering into a new marriage.

         The Family Court justice who presided over the divorce proceedings specified—without objection—that the terms of the parties' agreement would be incorporated but not merged into the final divorce decree. This provision was then included in both the decision pending entry of final divorce and the final judgment of divorce. The record reflects that the parties intended for the terms of their agreement, embodied in the transcript, to remain a separate and binding contract. As such, it is well settled that "a marital settlement agreement * * * that has been 'incorporated by reference, but not merged into the final divorce decree, retain[s] the characteristics of a contract.'" Hazard v. Hazard, 45 A.3d 545, 550 (R.I. 2012) (quoting Zaino v. Zaino, 818 A.2d 630, 637 (R.I. 2003)); see also Esposito v. Esposito, 38 A.3d 1, 5 (R.I. 2012); Paul v. Paul, 986 A.2d 989, 995 (R.I. 2010); Riffenburg v. Riffenburg, 585 A.2d 627, 630 (R.I. 1991). Accordingly, "[i]t is not the function of this Court, or the Family Court, to set aside a property settlement agreement * * * simply because a party no longer wishes to be bound by its terms or is unhappy with the result." Vanderheiden v. Marandola, 994 A.2d 74, 78 (R.I. 2010).


         For the reasons set forth in this opinion, we affirm the order of the Family Court. The record in this case may be returned to the Family Court.



[1] After her divorce from plaintiff, defendant resumed her maiden name and is currently known as Anne Alexandra deBaun Allardt. However, for the sake of clarity throughout this opinion, the Court will refer to defendant as Anne or defendant and plaintiff as John or plaintiff. We intend no disrespect.

[2] Counsel for plaintiff clarified that this obligation would cease if defendant were to receive health insurance from an employer at no cost. Alternatively, if defendant were to be offered comparable health insurance coverage from an employer at a reduced cost, plaintiff could instead provide the copay if it was less expensive than directly providing defendant with health insurance through his existing plan.

[3] At the time of the hearing, no explanation was provided for this lapse.

[4] The defendant's motion was styled as a "complaint after entry of final judgment to enforce." The plaintiff's response to defendant's motion was entitled "answer to complaint/motion for summary judgment and other affirmative relief." On July 28, 2011, defendant replied by filing a "memorandum in support of defendant's motion for continuing health coverage, in reply to plaintiff's motion for summary judgment and in support of her cross motion for summary judgment." The defendant then filed a "motion for relief" on August 24, 2011, which was then followed by "plaintiff's memorandum in support of his defense against defendant's complaint to enforce and her subsequent motion for relief, and in further support of his answer and motion for summary judgment and other affirmative relief." On October 21, 2011, defendant filed another document entitled, "reply memorandum of defendant Anne Alexandra deBraun to plaintiff's memorandum in support of his defense against defendant's complaint to enforce, etc." During the time the parties filed these competing memoranda the case had been continued numerous times. However, when the case finally came before the Family Court on November 4, 2011, the justice treated the motion as defendant's motion to enforce, and plaintiff's objection thereto, and not a motion for summary judgment.

[5] The plaintiff does not raise this argument on appeal to this Court. Accordingly, based on this failure to raise and our conclusion that a contract exists between the parties which was incorporated but not merged into the final divorce decree, we need not analyze this argument.

[6] The plaintiff also filed a petition for certiorari seeking review of the order; however, that petition was denied on the grounds that the Family Court order was properly appealable.

[7] We note that plaintiff's current counsel is not the same attorney who represented plaintiff in the original divorce action.

[8] For example, plaintiff contends that the provisions regarding health insurance and alimony would have been made modifiable, and that consequences relating to the death of either party would have been included.

[9] Notably, each draft of the proposed written settlement agreement—submitted to this Court by plaintiff's attorney—contained the same, unchanged provisions regarding plaintiff's obligation to provide health insurance coverage to defendant, analogous to those read into the record at the November 12, 2002 hearing by plaintiff's attorney.


Must Witnesses keep showing to Court if a Family Court judge Continues all Subpoenas in Full Force and Effect?

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Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  The Rhode Island Divorce Coach℠ 

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Here is a legal snippet that many lawyers and witnesses who have been subpoenaed in family court cases might have wondered.  After being asked about it I believe I have found the answer.  Or at least I haven't found any statute or case law that says that my answer is incorrect which is a good sign.

There you are, you've been subpoenaed to court and you've been paid a lousy $12 to $15 as a miniscule witness fee to attend on a particular hearing date and give testimony.  This includes a fee of $10.00 for the day and 10 cents per mile round trip from your home for your attendance.

So imagine that you get through the day or whatever part of it the court hears and the judge doesn't have time to hear any more of the case so it is continued to another date.  Do you have to attend the next time?

It's actually a loaded question because family court judges do this all the time.  Practically speaking it makes sense, otherwise the party who subpoenaed you would have to do so each and every time the matter was continued and would have to pay the constable or sheriff all over again in order to get you to attend.  Therefore, as a practical matter it makes sense.

Yet my thoughts are from the perspective from the person who has to return to court 3, 4, 5, 12, 15 or even more times and they feel they are bound to do so because the judge keeps saying, "All subpoenas shall continue in full force and effect."  Naturally the lawyer who issued the subpoena makes sure that language appears in the Court's Order otherwise they believe they have to re-subpoena you all over again.

However, have you ever questioned whether a Judge has the power to continue all subpoeanas in "full force and effect" just by saying those words?  I mean, we want to respect the judge and generally speaking, what the family court judge says is considered law in that case.  Plus, people are afraid to be found in contempt of a subpoena by the court for disobeying it.

There is one exception where the Judge's word or Order is not necessarily law and that is when the legislature has spoken on the same issue in the statutes.

Here's where I think many judges are "out of bounds" but they don't know it when it comes to this little addition to the orders.  Or, at least, they are out of bounds if the attorney issuing the subpoena doesn't follow through on what the statute requires.

Payment of Subpoena Witness Fees Under Rhode Island General Laws § 9-29-7 the Witness Fees for a Subpoena are spelled out as follows:

The fees of witnesses shall be:

For every day's attendance before the supreme or superior court, or before any other tribunal

or magistrate, including attendance in giving depositions $10.00

For every mile's travel .10

For every day's commitment in jail upon default to enter into recognizance with surety 2.00

In addition to the fees above provided, witnesses summoned and testifying as experts in behalf

of the state, or any person acting as an interpreter, before the supreme, superior, or district

court, may be allowed and paid such sum as such court may deem just and reasonable.


The statute is fairly straight-forward as to how much a witness gets paid for each day's attendance before the tribunal including mileage.  

Yet here is where the issue arises.  What if the judge keeps continuing "All Subpoenas in Full Force and Effect" so you have to keep coming back over and over and over again and you are missing work, spending mileage, jeopardizing you job, finding a babysitter, etc....

It's no secret that it is a tact of many unscrupulous attorneys to try to arrange for continuances with just that language from the judge so that eventually any witnesses friendly to you will "bow out" or they will, in fact, ignore the subpoena because they can't afford any more personal time from work, can't get a sitter or don't want to lose their job.  Then what happens?  A person's case goes down the tubes.  Usually the person who subpoenaed the people to begin with.

So, does the judge have the power to do this or not?  Let's look at another statute.  

Rhode Island General Laws § 9-17-5 Duty to Attend When Subpoenaed states:

Every witness who shall be duly served with a subpoena in behalf of any party to a suit or

proceeding, civil or criminal, and shall have his or her lawful fees tendered to him or her for his or

her travel from his or her place of abode to the place at which he or she shall be summoned to

attend, and for one day's attendance, shall be obliged to attend accordingly. [Emphasis Added.]


Here's where the issue raises it's ugly head.  When you are subpoenaed the law says that you must be paid the lawful fees which are essentially stated in Rhode Island General Laws § 9-29-7.  Now note the last line in 9-17-5 that is underlined.  "[h]e or she shall be summoned to attend, and for one day's attendanance, shall be obligated to attend accordingly."

Do you see the problem?  The law says you are to be paid for at least that one day's attendance and you must attend accordingly.  How would you read that?  If you have been summoned for ONE day, and paid for ONE day, then aren't you obligated to attend for ONE day accordingly?  That's my professional interpretation based upon the plain and unambiguous reading of the statute itself.

Court Order on Witness SubpoenaSo, let's answer the question.  Can a judge or magistrate in the family court continue in full force and effect a subpoena issued by a party?  It is unclear without any further word from the Rhode Island Supreme Court or the Rhode Island General Assembly by a new law.  However, I believe that as a matter of caution that you take the position that they CAN do so.

What's the catch?  If the attorney who subpoenaed you does not follow the law and pay you $10 plus statutory mileage for each and every day that you are expected to return to court because of that statement "All subpoenas are continued in full force and effect." Then  the law has not been met by the lawyer issuing the subpoena and therefore you do not have to attend.

That's right.  As petty as the amount may be, if you are not paid that amount before each time you are supposed to be required to appear at court it is just as if the lawyer served you with a subpoena for a single day without paying you.  No payment and the subpoena is worthless.  

So what do you do if you are a witness and the party who subpoenaed you keeps dragging you back into court by having it put in the Order, "All Supoenas are to remain in full force and effect."  If you don't get paid before the next time you go to court, then according to the laws by the 'Rhode Island General Assembly of our state you have not violated the subpoena.  Also, since you are not a party to the action then the judge does not have authority to compel you to be in court unless you have been paid by the attorney who originally subpoena you.

This is a problem attorneys have been dealing with for years.  Myself included and I am happy the a recent inquiry caused me to analyze this problem to give attorneys and witnesses, and judges what I believe to be the correct answer under the law.  I am happy to be able to provide a solution that makes perfect sense and is consistent both with a judge's discretitionary power as well as the Rhode Island General Laws.

What is the Downside of a Family Court Appeal from a RI Divorce Decision?

You file for divorce and go all the way through with a trial but the results don't go your way so you consider appealing the judge's decision.  Should you?

Perhaps you should if you and your attorney both review the law and consider the consequences of the appeal and whether both the trial court record and existing law support a position that the judge went beyond his or her discretion, that the law supports a contrary decision or that your case is significant enough to make a strong argument for a change in the law.

There is, however, another aspect that prudent litigants and attorneys should consider, namely the workings of the system.

Depending upon the circumstance it is possible that our supreme court could simply reverse the decision and no proceedings or very little proceedings will be necessary if the case is returned to the Family Court for additional proceedings.

One possible consideration is this.  Judges are human and as humans we come with certain predispositions, notions and perhaps even biases that relate to our own experience.  

Assume for the sake of argument that you win your appeal and the surpreme court finds that the judge went beyond the scope of his or her authority and your case is remanded back to the family court where it was originally heard and most likely before the same judge.

Logically, wouldn't it seem to make sense to you that if a judge has already taken his or her time to hear the trial on your case then he or she has made his or decision based upon his or her best judgment. Might the judge be offended if his or her judgment were questioned and a new trial or further proceedings were required by the RI Supreme Court?  It's certainly possible.

 Let's take this a step further.  Might the judge, in compliance with the supreme court's rulings, now conduct further proceedings and endeavor to reach the same result as his or her initial decision within the bounds that the supreme court's findings and directives.

The end result?  You could spend thousands on an appeal only to arrive at the same result once your matter returns to the lower court.

If you read the supreme court decisions with repeated appeals you find that this is not the case in every instance, but it is certainly a downside to consider in any appeal.

My Very Best to You in Addressing Your Family Law Issues,

Attorney Christopher A. Pearsall aka "The Rhode Island Divorce Coach."®

Serving Rhode Island Families exclusively in the Rhode Island Family Courts throughout our State for more than 12 years.

Call (401) 632-6976 for your low-cost paid advise session to make sure you know your rights.

Rhode Island Divorce Tip: Accept the fact that Witnesses Lie!

Whether in a Rhode Island Divorce Case or any other family court proceeding it is perhaps one of the hardest things for a Rhode Island Divorce Attorney to do.  What is it?  It is explaining to your client that he or she lost his divorce or family law case because witnesses got up on the witness stand, swore an oath to tell the truth and then lied to the detriment of your client.

Like it or not, there are all too many people, including spouses, ex-spouses and family members who will wear to tell the truth by an oath that means nothing to them.  Then the witness  for whatever the underlying reason will testify to whatever promotes either his or her personal interest or the interest of the family member or friend they have appeared on behalf of.

As a Rhode Island Divorce Attorney it becomes it difficult task to be synical and advise a client that there is every possibility that the opposing party will call to the stand witnesses that may lie on the record of the court or creatively omit the truth regarding an event in such a fashion that critical information is omitted for the judge's consideration.  In most instances, the deceptions of witnesses are to the surprise of the client and even more so to the surprise of the attorney.

In the vast majority of cases, witness lies are such that cross-examination is often ineffective to factually disprove the false statements to the court because the false statements relate to a conversation containing an admission that never occurred or an event with no one present to confirm or deny the accuracy of the event or statement other than your client.  It then becomes a matter of the family court judge determining who is telling the truth and who isn't.  Usually there aren't frequent inconsistencies in the testimony so the end result may come down to whether your client's truthful testimony or the testimony of other witnesses who may be lying are better actors and more convincing to the judge.

When you are in a divorce or family law proceeding clients need to understand and accept that witnesses can and do lie to further their own interests and there may be little or nothing your family law attorney can do about it.


Authored By:

  Christopher A. Pearsall, Esquire
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West Warwick, RI 02893

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