494 A.2d 1179 | R.I. | 1985
OPINION
This is plaintiff’s appeal from a judgment entered in the Family Court on March 29, 1983. Prior to entrance of this judgment, from which the plaintiff presently appeals, we remanded the case to the Family Court (in an order issued by us on June 30, 1982) as a result of the plaintiff's original appeal from a prior judgment entered by the same Family Court justice on February 19, 1981. We affirm the Family Court justice’s judg
The relevant factual history is the following. The plaintiff and defendant were married on September 27,1959. They separated for a short time in April, 1979, reconciled thereafter and separated again although this time, permanently, in September 1979, when the court ordered defendant out of the marital domicile. Such court order was issued primarily as a result of defendant’s violent and abusive treatment of plaintiff which the trial justice found commenced in February of 1979 and concluded on July 14, 1980. The trial justice also found that plaintiff was not at fault. The parties purchased real estate on August 8, 1974, as joint tenants, which they now own as tenants in common.
The instant appeal involves a dispute concerning the trial justice’s assignment of the marital property described above. In the initial divorce decree of February 19, 1981 (which granted the wife’s petition for an absolute divorce on the grounds of extreme cruelty and also on the grounds of irreconcilable differences) the trial justice stated his belief that an equitable division of the property was in order. The plaintiff, however, sought an assignment of all defendant’s interest (including the equity) in the land and the two buildings. The trial justice directed and ordered defendant to execute a quitclaim deed of his interest in the property to plaintiff upon her deposit of a lump-sum payment in the amount of $7,843.42 with the registry of the court.
Subsequent to the entrance of judgment on February 19, 1981, plaintiff appealed to this court, which appeal was sustained, resulting in our remand order of June 30, 1982. In that order, we instructed the trial justice to reconsider the assignment of marital property since we found that in assigning the family residence, the judge failed to take into account the conduct of the husband during the marriage, despite his finding that the husband was guilty of extreme cruelty. We also found fault with the judge’s failure to establish that the wife had the financial ability to provide the requested lump-sum payment of $7,843.42 in exchange for her one-half interest in the real estate (which was given to her “in lieu of alimony.”) Consequently, we concluded that the judge overlooked material considerations that should have guided his determination in making equitable distribution pursuant to G.L. 1956 (1981 Reenactment) § 15-5-16.1. Thus, the case was remanded
Consequently, the trial justice issued the second pertinent order of March 29, 1983 from which the instant appeal was taken. In that order, the trial justice stated that plaintiff had no ability to make a lump-sum payment to defendant in return for defendant’s interest in the real estate. The judge also found that defendant’s bad conduct had really started in February of 1979 and concluded on July 14, 1980, with defendant’s being ordered out of the marital domicile in September of 1979. The judge further found that the assignment of defendant’s ownership interest in the “subject real estate” carried with it an indefinite alimony award equal to $30 a week. Thus, he concluded that the only asset of any real value not assigned to plaintiff was defendant’s equity in the real estate and that such an assignment would be an injustice in this case even in light of the husband’s misconduct which he emphasized had lasted for a limited period of time only.
Two issues are presented by plaintiff in her present appeal. The first issue is whether the trial justice reconsidered the issue of assignment in addition to a lump-sum payment as mandated by the order of this court of June 30, 1982.
The plaintiff’s argument regarding this issue is that the trial justice ignored both the mandates of our assignment statute as well as the directions in our order of June 30, 1982. We conclude that the trial justice addressed all relevant and necessary factors, outlined in § 15-5-16.1, that went into formulating his decision regarding the equitable division of the real estate. He made the necessary finding regarding the wife’s ability (or inability, as was the case here) to make a lump-sum payment and he addressed the issue of assignment in a thorough fashion (as articulated above), which we find to be completely acceptable.
The second issue presented by plaintiff is “whether the trial justice committed reversible error in revoking his prior assignment of the marital property by taking into consideration the support needs of the parties prior to making said assignment.”
The plaintiff’s argument on this point is that (1) the restoration of alimony to plaintiff presented “an empty cup” since the restoration of alimony in the form of rents amounted to a right she already had by the prior decision and (2) the trial justice was wrong to consider the support needs of the parties in distributing marital assets.
With regard to the first part of plaintiff’s argument, we find that the alimony award is not an illusory award as plaintiff would have us believe. The trial justice specifically addressed this award in his order of March 29, 1983, which stated “The Court further finds that the assignment of the Defendant’s ownership interest in the subject real estate carries with it an alimony award equal to $30. a week.”
We conclude that the trial justice addressed and disposed of all of the relevant and necessary factors relating to the assignment of marital property as mandated in our statutes. He also complied in an acceptable fashion with our remand order of June 30, 1982.
For these reasons, the judgment of the Family Court justice is affirmed and the plaintiff’s appeal is denied and dismissed.
. The joint tenancy was severed and converted into a tenancy in common in 1980 as a result of the husband’s conveyance of his one-half interest to his former attorney’s secretary (a "straw”), who retransferred the property to him.
. The trial justice stated in his decision that the reason he was requiring plaintiff to deposit this sum with the registry of this court (which was equivalent to defendant’s equity in the real estate) prior to the entry of the final decree was “in order to protect the minor child from being abandoned in her support by the respondent.” This arrangement was based upon the judge's written finding that the father was moving to Italy and had no intention of supporting his minor daughter. Upon the daughter attaining the age of eighteen, upon emancipation, or death prior to her eighteenth birthday, the judge ordered that "the then unencumbered balance plus interest remaining in the registry of the court shall be paid to the respondent."
. The judge stated that the good conduct of defendant for over nineteen years should not be outweighed by his misconduct that lasted for a much shorter period. This fact, in conjunction with the other factors to be taken into consideration upon assignment pursuant to G.L. 1956 (1981 Reenactment) § 15-5-16.1 led the judge to draw the above conclusion.