Carol A. Maccarone
Raymond J. Maccarone, Jr
Providence County Family Court. (P 94-3292). Associate Justice Laureen D'Ambra.
For Plaintiff: Russell Bramley, Esq.
For Defendant: Thomas M. Petronio, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ. Justice Flaherty did not participate.
The defendant, Raymond J. Maccarone, Jr. (Raymond or defendant), appeals from a Family Court judgment entered in favor of the plaintiff, Carol A. Maccarone (Carol or plaintiff), enforcing a property settlement agreement that was incorporated but not merged into the parties' final judgment of divorce. The plaintiff also appeals the denial of her motion to dismiss the defendant's appeal. This case came before the Supreme Court on December 2, 2014, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and reviewing the memoranda submitted on behalf of the parties, we are satisfied that cause has not been shown. Accordingly, we shall decide the appeals at this time without further briefing or argument. For the reasons set forth herein, we affirm the judgment of the Family Court as to the pension benefits and interest due plaintiff, and we remand the issue of attorney's fees to that tribunal.
Facts and Travel
On July 11, 1996, the parties were both granted a divorce on the grounds of irreconcilable differences, which led to the irremediable breakdown of the marriage, and their jointly executed property settlement agreement (the agreement) was approved by a justice of the Family Court. When the divorce became final, the agreement was incorporated but not merged into the final judgment. Among other things, the agreement sets forth the distribution of Raymond's retirement benefits with the State of Rhode Island as well as with the United States Army Reserve.
Section III of the agreement refers to the scenario in which the parties are currently situated. Under section III, Carol was to receive 50 percent of the amount Raymond was entitled to upon retirement from state service, but that section also contemplates Raymond not retiring upon reaching the age of retirement eligibility. Section III C.7 provides, in pertinent part: " It is understood by the Husband and Wife that $25,000.00 of the proceeds to which the Husband is entitled from the sale of the marital domicile shall be placed in an escrow account * * * to secure pension payments to the Wife. * * * In the event that the Husband does not retire within three months after the attainment of age 60, the escrow agent shall pay to the Wife from the escrow account a sum equal to one-half of the Husband's normal retirement benefit calculated as if the Husband had left State service on April 2, 1996 retroactive to the Husband's 60th birthday
of October 5, 2007, and each and every month thereafter until the Husband retires and the Wife receives said payments from the Plan * * *."
On October 5, 2007, his 60th birthday, Raymond chose not to retire. The record indicates that Raymond did not establish an escrow account for the $25,000, as per the terms of the agreement, and that no pension payments to Carol were ever made. On September 4, 2012, having not received her share of Raymond's pension, Carol filed a motion to enforce the agreement. On September 13, 2012, Raymond responded by sending Carol a lump sum payment of $25,000. Notwithstanding this payment, Carol sought the commencement of monthly payments in the amount of $928.56 retroactive to October 2007, plus interest, less the lump sum payment of $25,000. Carol also sought enforcement of the provision that sets forth Raymond's obligation to make payments to her from his pension with the United States Army Reserve. Finally, Carol sought attorney's fees and costs incurred in enforcing the agreement based on the alleged breach and because Raymond had no justiciable defense under G.L. 1956 § 9-1-45.
On June 4, 2013, the hearing justice issued a written decision as to Carol's motion to enforce. In her decision, she found that Raymond had no justiciable defense for failing to establish the escrow account and that he failed to disburse funds in accordance with the agreement upon reaching retirement eligibility. The hearing justice concluded that Carol was entitled to retroactive payments dating back to October 2007 and that Raymond, although not yet retired from state service, was obligated to make monthly payments to Carol in the amount of $928.56. She also found that, as a result of the delay in monthly payments pursuant to section III of the agreement, Carol was entitled to statutory interest of twelve percent (12%) per annum from October 2007 to the date ...