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Sullivan v. Sullivan3/17/2000
hould receive from his pension or the formula to be applied in determining said amount.
Paragraph fourteen of the PSA specifically provides that defendant "shall be restrained and enjoined from cashing or terminating said pension without Court approval." (Emphasis added.) Consequently, the plain language of the agreement affords to a justice of the Family Court discretion concerning whether and when defendant may cash in or seek early distribution of his pension fund.
In reviewing this exercise of discretion, we do not make de novo findings and conclusions of fact based on the evidence presented at trial. Schaffner v. Schaffner, 713 A.2d 1245, 1247 (R.I. 1998). The appropriate standard of review is abuse of discretion or misconception of material evidence. Thompson v. Thompson, 642 A.2d 1160, 1162 (R.I. 1994).
In the case at bar, the trial justice appropriately considered defendant's testimony regarding his significant change in financial condition since his termination as an employee of the FBI. She also took into account his inability to pay to his former wife alimony or support since May of 1998, his lack of medical coverage, his inability to contribute annually to his daughter's private school education, his $30,000 debt to three credit card companies, and a further $25,000 credit union loan. The trial justice found as a fact that defendant would need "a significant chunk of money to satisfy the outstanding obligations to his wife and children, to say nothing of creditors."
The plaintiff presented no evidence to establish that she would be injured by defendant's cash in of his pension fund. The plaintiff merely testified that her "preference" was to leave the money in the fund until defendant turned 62 and could draw on his retirement. Taking all of this evidence into account, the trial justice found as a fact that plaintiff would not be prejudiced and would indeed receive the benefit of obtaining back support payments from defendant's share. Our review of the record indicates that the trial justice did not overlook or misconceive relevant evidence and that she did not abuse her discretion in allowing defendant to cash in his pension fund in accordance with his request and in accordance with the authority given to the trial justice by the PSA.
Consequently, the plaintiff's appeal is denied and dismissed. The order entered by the justice of the Family Court is hereby affirmed.
Entered as an Order of Court this 17th day of March 2000.
By Order,
Clerk
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