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Southworth v. Southworth

Superior Court of Rhode Island

August 5, 2014

ROBERT G. SOUTHWORTH Plaintiff
v.
WILLIAM H. SOUTHWORTH, individually and in his capacity as Executor of the Estate of Richard B. Southworth, MATTHEW SCHULMAN, ANDREW SCHULMAN and CHRISTOPHER SCHULMAN Defendants

Newport County Superior Court

For Plaintiff: Jeremiah C. Lynch, III, Esquire

For Defendant: Marc DeSisto, Esquire Jeremiah R. Leary, Esquire

DECISION

Gallo, J.

This matter is before the Court following a nonjury trial. The Plaintiff, Robert G. Southworth (Robert), filed the instant action against his uncle, William H. Southworth (William)—both in his individual capacity and as Executor of the Estate of Robert's deceased father, Richard B. Southworth (Richard or the Decedent)—and Robert's three cousins, beneficiaries of the Estate (collectively Defendants). Robert seeks specific performance of a Property Settlement Agreement (the Agreement) executed by his parents incidental to their divorce in 1976, pursuant to which Richard was to devise any interest he had in real estate located in Little Compton, Rhode Island at the time of his death to his son, Robert. Robert also seeks a declaratory judgment that the Decedent's Estate, not Robert, is responsible for paying any estate tax due to the State of Rhode Island by reason of his inheritance. William, on behalf of Richard's Estate, has filed a counterclaim asserting that it has suffered damages as a consequence of alleged negligent or intentional misrepresentation on the part of Robert. Jurisdiction is pursuant to Super. R. Civ. P. 52(a) and G.L. 1956 § 9-30-1.

I

Facts and Travel

Robert was born on December 2, 1969 to Anne Gregory (Anne) and Richard B. Southworth, now deceased. In 1976, following a lengthy separation, Robert's parents divorced. Incidental to the divorce, Anne and Richard executed the Agreement that gives rise to this action. (Joint Ex. 5) The Agreement provides generally for the division of marital property, payment of outstanding obligations, and custody of Robert. Of particular importance to the case at bar is the following provision:

"Husband agrees that if he shall own at his death any interest in the land and buildings thereon described in the deed of William T. Peckham to Franklin Chester Southworth dated October 9, 1920, recorded in Book 23, at Page 39 of the Records of Deeds in the Town of Little Compton, Rhode Island, he will devise all of said interest to Child if Child survives him. Husband further agrees that if he shall sell said interest or any part of it during his lifetime and the Child is living at the date of sale, Husband will turn over all of the proceeds of the sale to said Child if said Child shall have reached the age of 18." (Ex. 5 at 5.)

Anne testified that Richard had told her "flatly, [he was] not going to pay child support and [he was] not going to get a job." (Tr. 23, Mar. 24, 2014.) Therefore, according to Anne's testimony, it was agreed that in exchange for not paying child support, Richard would convey his interest in his land as described above. Id. at 21.

The Agreement also provided that Anne was to have custody of Robert, while Richard was to have Robert "at all reasonable times and places which shall include reasonable weekend visits, vacation visits, and holiday visits as shall be mutually agreed upon between the Husband and the Wife." (Ex. 5 at 6.) Additionally, Richard was to "bear all costs of Child's transportation incurred in connection with such visits." Id. at 7. Anne testified that as best as she could recollect, from the time Anne and Richard separated until the divorce was finalized in 1976, Robert spent every other weekend with his father. (Tr. 3.) Anne testified that when the Agreement was signed in May of 1976, she had a post-doctoral program arranged in Ohio. Id. at 4. Anne stated: "when [the Agreement] was signed, everybody knew that I was going out to Ohio and that Robert was going with me." Id. She further testified that Richard knew of her plans to move. Id. at 6. Anne and Robert were already living in Ohio by the time the divorce was finalized. Id. at 5.

Anne testified that while living in Ohio, she would send Robert to visit with his father and Anne's parents, who lived in Massachusetts, over school vacations, Thanksgiving and Christmas breaks, spring breaks, and summer vacations. Id. at 5. Robert also testified that he remembers visiting with his father in the summertime and holidays. Id. at 40. Once Anne's post-doctorate program in Ohio was over, she and Robert moved to Michigan so Anne could complete a second post-doctorate program. Id. at 6. Anne recalls that not only did Richard know she was moving to Michigan, but that she gave Richard the choice of having Robert move to Michigan with her or move back to Little Compton to be with his father. Id. Richard instructed her to take Robert to Michigan. Id. Anne and Robert both testified that Robert continued to visit the east coast from Michigan in the same manner he had visited from Ohio. Id. at 40-41. William's testimony verified Anne and Robert's memories of visitation: he testified that Robert "would come and spend at least several weeks every summer, and he was also there sometimes at other times, I think there were school vacations and things like that." (William's Dep. at 17.)[1] Despite the explicit provision in the Agreement that Richard would bear the costs of travel, Anne testified that she paid all of Robert's transportation costs. (Tr. 8.)

In 1986, when Robert was sixteen, he and his mother moved to Ireland. Id. at 2, 9, 41. Before making this move, however, Anne recalled asking Richard if he would like her to make arrangements for Robert to stay in Little Compton with him. Id. at 9. Anne's testimony was that Richard responded: "No. Take him with you." Id. Except for approximately a four-month period during which he studied in Budapest, Robert spent the next year in Ireland. Id. at 42-43. Although Robert does not recall receiving a single letter or phone call from his father, he testified that his father always knew where he was prior to the move to Ireland. Id. He further testified that his father knew he was studying in Budapest. Id. at 42. This testimony was corroborated by William: William testified that Richard knew Robert was in Hungary for the summer and that this fact was well-known throughout the family. (William's Dep. at 25.) In the fall of 1987, Robert moved to California to begin college at Cal Tech; his testimony was that his father knew he had enrolled in the school. (Tr. 43.)

At the time of the divorce and the execution of the Agreement, the Little Compton real estate consisted of seventy acres and was owned in equal, undivided shares by Richard, William, their sister, Alice, and their brother, Franklin (collectively the siblings). (William's Dep. at 8-9.) Two houses were located on the land: the "big house" and a smaller farmhouse. Id. at 9. Following Anne and Richard's divorce, Richard moved to Little Compton to live year round. Id. at 9-10. He would live in the big house during the winter then move to the farmhouse in the summer while the big house was rented for a "considerable sum." Id. at 10. The rental income was used for maintenance, taxes, and insurance; Richard also received some of the money for his use in maintaining the property. Id. at 11. Eventually, the four siblings wanted to divide the property into equal shares. Id. However, this proved "a very difficult thing to do, to get four lots that were of equal value because some of the ...


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