Vickers Antone v. Vickers

• Decision Date: 03 July 1992
• Docket Number: No. 90-533-A,90-533-A
• Citation: 610 A.2d 120
• Parties: Frances VICKERS ANTONE v. Thomas R. VICKERS. ppeal.
• Court: Rhode Island Supreme Court

Page 120

610 A.2d 120

Frances VICKERS ANTONE v. Thomas R. VICKERS.

No. 90-533-Appeal.

Supreme Court of Rhode Island.

July 3, 1992.

Michael R. McElroy, Schacht & McElroy, Providence, for plaintiff.

Gilbert T. Rocha, East Providence, Constance M. Pannone, Smithfield, for defendant.

OPINION

KELLEHER, Justice.

This civil matter comes before us as a result of an appeal by the plaintiff, Frances Vickers Antone (Frances), from a Family Court order denying her motion to adjudge the defendant and former husband, Thomas R. Vickers (Thomas), in contempt for failure to comply with the final judgment of the divorce. Frances also appeals the granting of Thomas's motion to modify the final divorce judgment. We affirm.

On May 19, 1985, Thomas and Frances were divorced by final judgment after twenty-four years of marriage. In the hearing on the merits at which Thomas was not represented by counsel, the trial justice accepted and approved a property-settlement agreement (agreement) reached between the parties and merged the agreement into the decision and judgment. Paragraph 4 of the agreement, which comprises the nucleus of this dispute, provides:

"Forthwith, upon execution of this Agreement, the Husband shall execute and deliver to wife a deed in form satisfactory to the Wife's counsel, conveying all of his right, title and interest in and to property at 70 Holland Avenue, in said East Providence, including all of the buildings and improvements thereon, subject to the existing mortgage of the same.

"The wife shall pay all of the expenses related to said Holland Street property including but not limited to mortgage payments, taxes and insurance from the date of the delivery of said Deed, and the husband shall have no liability to pay the same.

"The Husband shall save the Wife harmless with respect to the claims of any creditors of the Husband asserted against said real property and shall promptly cause any attachments on said property made with respect to claims against the Husband to be discharged, excluding the balance of the curbing bill owed to the City of East Providence, for which Husband and Wife will each pay one-half ( 1/2) of the balance.

"In the event that said real property is sold, one-half ( 1/2) of the proceeds of sale (less all reasonable closing expenses) shall belong to each of the parties and, notwithstanding the provisions of the tax code in effect at the time of sale both parties shall be responsible for one-half ( 1/2) of any said capital gain and the tax resulting therefrom. In addition, there shall be deducted from the Husband's one-half ( 1/2) share, one-half ( 1/2) of the present value of the Husband's pension plan as of the date of this Agreement. The present value is approximately $5,150.00.

"The Wife shall have sole authority to agree to any sales price for the real property that she feels is reasonable and may select the Broker, Attorney, etc. and otherwise take all steps necessary to sell said property without obtaining the consent of the Husband."

In violation of the above portion of the agreement, Thomas failed to convey his interest in the property to his wife. Frances continued to pay the mortgage, taxes, and related expenses for the property. However, it must be noted that in 1989 Frances remarried and no longer resides in the house in question. Moreover, the parties' minor daughter has completed her college education and has moved away. In fact, the property is rented, and Frances is collecting money therefrom, a practice prohibited under the initial financing arrangement for the property with Rhode Island Housing and Mortgage Finance Corp. (RIHMFC), which required that the mortgaged property be occupied by an owner. Subsequently RIHMFC demanded that Frances repay the RIHMFC mortgage on the property. In order to discharge this debt, Frances initiated suit against her former husband and demanded that Thomas convey his interest to her so that she could attempt to obtain refinancing.

On October 10, 1990, the trial justice denied Frances's motion to hold Thomas in contempt and granted in part Thomas's motion to modify and/or amend the final judgment. The trial justice concluded that the failure to sell the house would result in the enforcement of an illusory promise, as the agreement evidenced an intent of both parties to sell the property in the future. Further the trial justice ordered Frances to put the property up for sale and to disburse the proceeds in accordance with paragraph 4 of the final judgment.

Both statutory and case law establish the principle that the Family Court has broad jurisdiction over equitable matters that arise as a result of the familial relationship. General Laws 1956 (1985 Reenactment) § 8-10-3(a), as amended by P.L.1988, ch. 84, § 7 marks the ambit of the Family Court's authority

"[t]o hear and determine all petitions for divorce * * * and other matters arising out of petitions and motions relative to real and personal property in aid thereof, including * * * such other equitable matters arising out of the family relationship, wherein jurisdiction is acquired by the court by the filing of petitions for divorce * * * property settlement agreements and all other contracts between persons, who at the time of execution of said contracts, were husband and wife." See also Lubecki v. Ashcroft, 557 A.2d 1208, 1211-12 (R.I.1989); Fox v. Fox, 115 R.I. 593, 596, 350 A.2d 602, 603 (1976).

In this instant controversy, the trial justice correctly determined that it was within the Family Court's jurisdiction to enforce the agreement. A thorough examination of the record indicates that the trial justice observed that he did not consider his order as amending the agreement but...