Krivitsky v. Krivitsky

• Decision Date: 17 April 2012
• Docket Number: Nos. 2010–267–Appeal, 2010–415–Appeal.,s. 2010–267–Appeal, 2010–415–Appeal.
• Citation: 43 A.3d 23
• Parties: Jo–An KRIVITSKY v. Brian D. KRIVITSKY.
• Court: Rhode Island Supreme Court

43 A.3d 23

Jo–An KRIVITSKY ¹

v.Brian D. KRIVITSKY.

Nos. 2010–267–Appeal, 2010–415–Appeal.

Supreme Court of Rhode Island.

April 17, 2012.

Robert S. Parker, Esq., Providence, for Plaintiff.

Brian Krivitsky, pro se, defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

The defendant, Brian D. Krivitsky, appeals pro se from two Family Court orders authorizing a commissioner to sell the defendant's real property to satisfy the child-support arrearage he owes to the plaintiff, Jo–An Krivitsky. Brian ² argues that the Family Court's ordered sale of his home was error because (1) the Family Court lacked jurisdiction over the case; (2) the commissioner was without proper authority to sell Brian's home; and (3) there had been no prior precise determination of Brian's child-support arrearage. Further, Brian alleges that various judicial improprieties occurred in the Family Court throughout the course of the litigation. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After reviewing the record and considering the parties' written and oral submissions, we are satisfied that this appeal may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the orders of the Family Court.

IFacts and Procedural History

On May 15, 2006, a final judgment of divorce was entered dissolving the marriage of Brian and Jo–An. At that time, defendant was ordered to pay $200 per month in child support for the parties' minor children. The defendant's child-support obligation later was modified by the then-chief judge in an order entered on December 10, 2007, thereby increasing Brian's support payments to $250 per week. On December 31, 2007, Brian petitioned this Court for a writ of certiorari to review the order modifying his child support.

On March 28, 2008, we issued an order granting Brian's petition and instructing that “[t]he papers in the case” were to be retained in the Family Court so that, “on the earliest date practicable,” the hearing justice could issue an appropriate decision, “contain[ing] the necessary findings of fact and conclusions of law” on Jo–An's motion to modify Brian's child-support obligation. This Court also indicated that the Family Court was entitled to supplement the record with additional testimony or evidence. The order specified that the December 10, 2007 order, requiring Brian to pay $250 per week in support, “remain[ed] in effect pending further proceedings before the Family Court and this Court.” Lastly, the order instructed that “[f]ollowing the Family Court's decision, the papers in the case shall be transmitted to this Court pursuant to the writ. Pending the decision, further proceedings on certiorari are hereby ordered stayed.”

Pursuant to this Court's directive, on May 6, 2008, a hearing was held in the Family Court before the chief judge for the parties to present additional evidence concerning Jo–An's motion for modification of child support. At this hearing, Brian was questioned about his income, assets, and expenses pertinent to the December 10, 2007 modification order. Specifically, Brian was pressed on how he could afford $10,000 a year for travel expenses, $2,400 a month for a mortgage payment, $8,000 a year for property taxes, and $290 a week for personal spending money, in addition to credit-card debt, on a salary of little more than $1,000 a month. In response, Brian indicated that he had obtained money from the sale of family-owned real property in Massachusetts and had also borrowed money from a friend. Counsel for Jo–An argued that defendant had an ability to earn an annual income of $86,906. In contrast, Brian stated that he did not believe he should owe any child support in light of Jo–An's “very strong” financial standing.

On February 19, 2009, the chief judge entered an order appointing a commissioner authorized to sell Brian's thirty-one-foot boat to satisfy Brian's outstanding obligations to Jo–An, Jo–An's counsel, and the guardian ad litem.³ The commissioner subsequently became involved with the marketing and sale of Brian's home located on Middlebrook Lane in Lincoln.⁴ On November 17, 2009, an order was entered, declaring: “[Brian] and Your Commissioner will work in conjunction with the real estate agent to execute a listing agreement with the sales price in the amount of Six Hundred Ninety–Nine Thousand ($699,000.00). All offers will be made to [Brian] and/or Your Commissioner.” ⁵ Notably, Brian signed the order, indicating his assent thereto.⁶

On November 20, 2009, the chief judge issued a written decision in response to this Court's order requesting specific findings to support the December 10, 2007 modification order. The decision stated that “[t]here has been a substantial change of circumstances to warrant a modification of child support based upon the increase in income of [Brian].” The chief judge supported his decision by finding: (1) Brian was inconsistent concerning his finances and, therefore, was not credible; (2) Brian was “underemployed and c[ould] earn Eighty–Five Thousand ($85,000) dollars a year considering his education and experience in business;” and (3) Brian had “the ability to pay the increase in child support.” ⁷ As a result, an order was entered on January 5, 2010, requiring Brian to pay Jo–An $250 per week to support the parties' minor children.⁸

Thereafter, the litigation in Family Court transformed into a quest to liquidate assets to satisfy Brian's outstanding support obligations—the sale of the Middlebrook Lane property being the central focus. After already having reduced the listing price of the property to $649,000, the chief judge held a hearing on April 1, 2010, to determine whether an additional listing reduction was prudent.⁹ At the hearing, Carol Lamontagne, the real estate broker for Brian's property, testified that her updated “market analysis” of the property resulted in a recommendation that the Middlebrook Lane property be listed at $548,600. Ms. Lamontagne explained that her recommendation was based on her analysis of the current real estate market, as indicated by comparable home sales in the area, as well as the condition of the home's roof.¹⁰ Additionally, Ms. Lamontagne noted that the only significant interest or activity concerning the property had been an offer for purchase in the amount of $525,000. Ultimately, an order was entered on May 14, 2010, stating that “[t]he [c]ourt [would] only consider offers of $550,000.00 or more to purchase [Brian's] property located in Lincoln, Rhode Island.”

Another hearing was held on May 21, 2010, concerning the Middlebrook Lane property, this time before a different hearing justice. The hearing justice was presented with two appraisals of the property: one estimating the market value of the property at $570,000, and the other at $575,000. Brian urged that such prices were not “fair” to him and that, in any event, his property should not be sold at all. To that end, he suggested that the case was not properly before the Family Court because, according to Brian, the case file should have been returned to this Court.¹¹

Brian's argument prompted the hearing justice to inquire how “the order for sale of this particular domicile [came] to pass.” In response, the commissioner explained that he became involved in the marketing and sale of the Middlebrook Lane property because it “was the only * * * asset that existed in order to pay [Brian's] obligation,” considering that the insurance policies already had been liquidated and Brian's boat had proved unmarketable. The hearing justice then directed the parties to present him with a specific order authorizing the commissioner to sell the home without Brian's consent. No order was presented to his satisfaction,¹² leaving the hearing justice to conclude that there was no “order authorizing [Brian's] home to be sold without his permission for a given price.” The hearing justice then stated that he would permit Brian two weeks to determine with this Court whether “anything further should be done here.” Thereafter, Jo–An filed a motion to authorize the commissioner to sell the Middlebrook Lane property for any sum determined reasonable by the court.

The hearing justice held a hearing on Jo–An's motion on July 1, 2010. At this hearing, the commissioner informed the court that an offer to purchase the Middlebrook Lane property had been made for $570,000—a price the commissioner noted was remarkably close to the property's appraised value. The hearing justice then explained that he interpreted the November 17, 2009 order ¹³ as enabling the commissioner to execute a purchase and sale agreement without the consent of Brian. He further determined that $570,000 was “a fair and reasonable price, taking into consideration the fact [that] this property ha[d] been on the market * * * between a year, and a year-and-a-half.” Accordingly, the hearing justice ruled that the commissioner was “hereby authorized to enter into any type of contract, if necessary, to liquidate that property for $570,000.” On July 9, 2010, a written order was entered to the same effect.¹⁴ Brian filed a notice of appeal from this order on July 28, 2010. By an order entered August 19, 2010, the commissioner was authorized to close on the sale of the Middlebrook Lane property on August 31, 2010.¹⁵ On August 25, 2010, this Court ordered a temporary stay of the July 9, 2010 order authorizing the commissioner to sell the Middlebrook Lane property.¹⁶ Thereafter, on August 30, 2010, Brian filed a notice of appeal from the Family Court's August 19, 2010 order.

On December 17, 2010, this Court entered a corrected order. In that order, we stated: “the Family Court having satisfied our directive to render an appropriate decision...