 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Sullivan v. Sullivan3/17/2000
ORDER
This case came before us for oral argument March 7, 2000, pursuant to an order that had directed both parties to appear in order to show cause why the issues raised by this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by the appeal should be decided at this time.
The plaintiff, Margaret P. Sullivan (Margaret or plaintiff), has appealed from an order entered by a justice of the Family Court that permitted the defendant, Timothy L. Sullivan (Timothy or defendant), to cash in his pension following his termination of employment by the Federal Bureau of Investigation (FBI). The facts insofar as pertinent to this appeal are as follows.
The parties, Margaret and Timothy, were divorced by virtue of a Family Court final judgment dated October 27, 1995. On or around May 31, 1995, the parties entered into a Property Settlement Agreement (PSA), which was incorporated by reference into the divorce decree, but not merged with the final judgment. Paragraph fourteen of the PSA, the subject of this appeal, granted to plaintiff sixty percent of defendant's pension benefits.
The defendant was employed by the Federal Bureau of Investigation as an agent for approximately twenty-two years. In January of 1998, defendant was terminated from the FBI when he was charged and convicted for driving under the influence and leaving the scene of the accident. At the time of his termination, his pension was valued at approximately $79,000. The defendant testified that he had no funds, except his unemployment compensation check in the amount of $862 every two weeks. He was unable to make his support payments.
The defendant filed a motion, which was heard on August 27, 1998, requesting, among other things, to cash in his federal pension subject to payment of plaintiff's share. The plaintiff objected, stating a preference that the pension be left in place until defendant attained an age for it to be distributed. Upon a finding of financial need, a Family Court justice granted defendant's request for relief. The plaintiff then filed this instant appeal.
On appeal, plaintiff argues that her situation is analogous to one where a party applies for an increase or decrease in alimony or support. She asserts that the trial justice did not have authority to order the early liquidation of defendant's pension fund because the provision was part of a property-settlement agreement, incorporated by reference, but not merged with the final decree. The plaintiff also argues that defendant did not satisfy his burden of proof to show that a premature liquidation would not result in prejudice to plaintiff.
In support of her arguments, plaintiff relies, in part, on this Court's decision in Borden v. Borden, 649 A.2d 1028, 1030 (R.I. 1994), for the proposition that a trial justice has no authority to modify property-settlement agreements that are incorporated by reference, but not merged into the final divorce decree. However, the instant case is distinguishable from Borden. In Borden, the Court was faced with a motion to modify an alimony provision in a nonmerged property-settlement agreement in view of plaintiff's psychiatric disability. See id. at 1029. In the instant case, the trial justice noted that defendant's complaint with respect to paragraph fourteen was "not as much a motion to modify as a request to approve an early distribution to the laintiff of her interest in his pension so that he can get his interest now." Unlike alimony provisions, defendant did not seek to modify the amount that plaintiff s
Page 1 2 Rhode Island DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|