Opinion
No. 2022-179-Appeal. No. 2022-223-Appeal. P 14-2875
05-19-2023
Terry Ann SMITH v. Andrew SMITH.
Jesse Nason, Esq., for Plaintiff. Andrew Smith, pro se.
Jesse Nason, Esq., for Plaintiff.
Andrew Smith, pro se.
ORDER
These consolidated appeals came before the Supreme Court for oral argument on April 11, 2023, pursuant to an order directing the parties to appear and show cause why the issues raised in these appeals should not be summarily decided. In No. 2022-179-A, the defendant, Andrew Smith (Andrew), appeals pro se from a Family Court order granting the plaintiff's, Terry Ann Smith (Terry Ann), motion for instructions permitting Terry Ann to select a commissioner to sell real property and authorizing monies to be released to her from the proceeds of the sale. Similarly, in No. 2022-223-A, Andrew appeals pro se from a Family Court order denying his motion to reopen his divorce action on the issue of Terry Ann's retirement pension. After considering the parties’ written and oral submissions and carefully reviewing the record, we conclude that cause has not been shown and that these appeals may be decided without further briefing or argument. For the reasons set forth herein, we dismiss as moot Andrew's appeal from the order of the Family Court relative to Terry Ann's motion for instructions, and vacate the order of the Family Court relative to Andrew's motion to reopen his divorce action on the issue of Terry Ann's State of Rhode Island pension.
These two appeals were consolidated on September 23, 2022.
The parties will be referred to by their first names for convenience. No disrespect is intended.
This is a prolonged divorce action which has come before this Court on several occasions. See Smith v. Smith , 207 A.3d 447 (R.I. 2019) ( Smith I ); Smith v. Smith , 252 A.3d 246 (R.I. 2021) ( Smith II ); Smith v. Smith , 268 A.3d 563 (R.I. 2022) ( Smith III ). In fact, the consolidated appeals presently before us represent the tenth and eleventh appeals filed by Andrew in this divorce dispute. The factual background and procedural history of this case have already been set forth in this Court's previous decisions. See Smith I , 207 A.3d at 448-49 ; Smith II , 252 A.3d at 247-48.
On February 20, 2022, Terry Ann filed a motion for instructions, seeking permission from the Family Court to: (1) select a commissioner to sell real property located at 1703 Pontiac Avenue, Cranston, Rhode Island (the Property), in the event the parties could not agree on who the commissioner should be; and (2) distribute to Terry Ann $158,575.86 from the proceeds received from the sale of the Property. On April 27, 2022, the Family Court issued an order granting Terry Ann's motion for instructions. Specifically, this order permitted Terry Ann to select a commissioner to sell the Property, ordered that Terry Ann was to receive $158,575.86 from the proceeds of the sale, and permitted counsel for Terry Ann to disburse to the commissioner the fees and costs incurred by them in effectuating the sale of the Property. Andrew filed the instant appeal challenging that order. We had previously stated in Smith III that "[s]hould any other appeals to this Court be filed prior to the sale and distribution of the sale proceeds, then this Court may, upon motion, consider lifting the automatic stay implemented pursuant to Rule 62 of the Family Court Rules of Domestic Relations Procedure." Smith III , 268 A.3d at 564.
Andrew filed a premature notice of appeal on April 14, 2022, prior to the April 27, 2022 order being entered. Because the order ultimately entered, the Court treats this appeal as timely. Murray v. Jones , 250 A.3d 562, 564 n.2 (R.I. 2021).
On July 11, 2022, Terry Ann filed a motion for relief to proceed with the directives set forth in the April 27, 2022 order. On September 23, 2022, this Court granted Terry Ann's motion for relief and stated that "[t]he automatic stay in effect pursuant to Rule 62 of the Family Court Rules of Domestic Procedure is hereby lifted. The appellee may carry out the dictates of the April 27, 2022 order of the Family Court." In accordance therewith, on October 28, 2022, Terry Ann filed an emergency motion in the Family Court for an expedited hearing to establish a commissioner for the purpose of selling the Property. This motion was granted, and a consent order was subsequently entered into by the parties on November 18, 2022, pursuant to which Andrew paid Terry Ann her awarded portion of the proceeds from the sale. Therefore, in light of these events, Andrew's appeal regarding the appointment of a commissioner to sell the Property and to release the proceeds to Terry Ann is moot. Consequently, Andrew's appeal related thereto is denied and dismissed.
Turning to Andrew's appeal concerning his motion to reopen this divorce action on the issue of Terry Ann's retirement pension, we affirmed the trial justice's equitable distribution of the parties’ marital assets in Smith I , as well as in Smith II . Smith I , 207 A.3d at 450-51 ; Smith II , 252 A.3d at 247. Specifically, we concluded in Smith I that "[t]he record establishe[d] that the trial justice issued a meticulous ninety-five-page written decision" and did not abuse her discretion in any way in distributing the parties’ marital assets. Smith I , 207 A.3d at 450-51.
Andrew refers to "retirement pension" in both his written submission to this Court and at oral argument. An extensive review of the record reveals that all retirement vehicles of the parties were divided by the trial justice and affirmed by this Court, save Terry Ann's State of Rhode Island pension, which was identified as a marital asset but not distributed in either the Family Court's decision pending entry of final judgment or final judgment. As such, we are unable to address the issue raised by Andrew on appeal relative to Terry Ann's State of Rhode Island pension without a final distribution from the Family Court. To be clear, this—in no way—alters or otherwise affects this Court's affirmation of the trial justice's equitable distribution of the remainder of the marital estate. Consequently, the order of the Family Court denying Andrew's motion to reopen his divorce action as to Terry Ann's retirement pension is vacated, and this matter is remanded to the Family Court for the limited purpose of distributing Terry Ann's State of Rhode Island pension. The parties are precluded from raising any other matters.
Of note, this issue was not raised by Andrew in his papers or argument either in this Court or the Family Court. Although this constitutes a waiver of that issue, this Court cannot affirm a distribution that did not occur.
Lastly, as we noted in Smith III , the trial justice in this matter displayed tremendous judicial patience and admirable temperament in the face of an extremely difficult litigant, and any complaints by Andrew about the ethics and behavior of the trial justice are baseless and summarily rejected. See Smith III , 268 A.3d at 564 n.2. Those allegations, and any other issues raised by Andrew in his papers or at oral argument related thereto, are wholly without merit.
Accordingly, we dismiss the appeal of the order of the Family Court relative to Terry Ann's motion for instructions, and vacate the order of the Family Court relative to Andrew's motion to reopen his divorce action on the sole issue of distributing Terry Ann's pension from the State of Rhode Island. We direct the Family Court to enter the order relative to the pension distribution nunc pro tunc to the date of the decision pending entry of final judgment. The record shall be returned to the Family Court for proceedings consistent with this order.
Entered as an Order of this Court this day of May 19, 2023.