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Vieira v. Hussein-Vieira

Supreme Court of Rhode Island

December 21, 2016

Michael Vieira
v.
Amy Hussein-Vieira.

         Providence County Family Court No. 13-2045 John E. McCann, III Associate Justice

          For Plaintiff: Michael Vieira, Pro Se

          For Defendant: Frederick A. Costello, Esq.

          Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

          OPINION

          Suttell, Chief Justice

         The plaintiff, Michael Vieira, appeals from a Family Court final decree granting both his complaint for divorce and Amy Hussein-Vieira's (defendant) counterclaim for divorce on the grounds of irreconcilable differences. In addition to dissolving the parties' marriage, the decree awarded them joint custody of their two minor children, granted the defendant physical placement of both children, ordered the plaintiff to pay child support, and partitioned the marital assets. On appeal, the plaintiff takes issue with various aspects of the trial justice's decision. This case came before the Supreme Court 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 considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the decree of the Family Court in part and vacate in part.

         I

         Facts and Procedural History

         The parties were married on October 13, 2006; they have two children, ages eight and five at the time of trial. Although both parties worked throughout the marriage, plaintiff was the primary breadwinner in the family. During the course of the marriage, they acquired two parcels of real estate. Initially, they purchased a two-unit dwelling on Waterman Avenue in Johnston (the Johnston property) as an investment. Subsequently, they purchased and resided at a second property on Matteo Drive in North Providence (the North Providence property), which was in foreclosure at the time of trial.

         In 2010, the couple began having marital problems. The relationship gradually worsened and on August 14, 2013, defendant obtained a restraining order against plaintiff.

         The couple separated and plaintiff filed for divorce on August 28, 2013, citing irreconcilable differences. In his complaint, plaintiff requested physical placement of the children with joint custody, child support, and equitable distribution of the marital assets. The defendant counterclaimed for sole custody of the children, alimony, child support, and equitable distribution of the marital assets. Preliminarily, a temporary order was issued granting plaintiff supervised visitation with his children on Tuesday and Thursday evenings and Sundays from 10 a.m. to 7 p.m. In addition, plaintiff was ordered to continue paying the mortgage, insurance, and taxes on both the North Providence and Johnston properties, and defendant was allowed to collect the rent from the second-floor unit of the Johnston property "for child support purposes."

         From the outset, the parties have had a contentious divorce. In October 2013, plaintiff sought to adjudge defendant in contempt for allegedly entering his apartment at the Johnston property in violation of a restraining order. Subsequently, plaintiff was arrested for violating a restraining order after defendant alleged he called her cell phone over fifty times. On another occasion, plaintiff was again arrested for allegedly violating a restraining order when he wrote defendant's father a letter. The plaintiff pled nolo contendere to the violations and was briefly incarcerated on both occasions, resulting in the termination of his employment. On September 3, 2014, the parties stipulated to unsupervised visitation on Wednesdays from 5 p.m. to 7 p.m. and Sundays from 1 p.m. to 4 p.m., with pickups and drop-offs to be at the North Providence police department.

         A trial in the Family Court commenced on December 5, 2014. In his testimony, plaintiff averred that he had been unable to find work to comply with the temporary order because his criminal convictions for violating the restraining order prevented him from passing a background check; thus, he was forced to start his own business, in which he earned about $1, 200 a month. The plaintiff acknowledged that he did not see his children for a period of 287 days because he "felt [he] didn't need" the supervision. The defendant testified that she was employed throughout the marriage except when she gave birth to the children, and that she had acquired $50, 350 of debt as a result of the marriage.[1]

         On May 19, 2015, the trial justice filed a written decision. The trial justice found that plaintiff's trial testimony was "convenient, incredulous at times, and for the most part, unworthy of belief." The trial justice further found that plaintiff's explanation or lack of knowledge of the marital debt was "absolutely incredulous." The trial justice also noted that "[p]laintiff's actions exhibited conduct of concern to the [c]ourt and may provide an obstacle to him to facilitate a relationship between the parties in the future." The defendant's testimony, however, was found to be credible.

         The trial justice found that plaintiff had, on several occasions, violated the temporary order. For instance, he found that plaintiff failed to pay the bills on both the Johnston and North Providence properties, causing defendant to utilize the rents to pay the mortgage. In addition, the trial justice found that plaintiff, during the pendency of the divorce, withdrew more than $7, 000 from his ADP[2] account and Tiffany & Co. pension account, and that he had no "reasonable explanation" as to the whereabouts of this money when examined at trial.

         In addition, the trial justice found that joint custody was in the best interest of the children but awarded physical possession to defendant. Specifically, the trial justice found that "[d]efendant presented evidence that the children [were] doing quite well in their current environment and ha[d] adjusted and that they are involved. On the other hand, [p]laintiff ha[d] provided no evidence as to any stability other than the fact that he is currently living with his girlfriend in a one bedroom apartment." At the time the written decision was issued, the then-current visitation schedule was continued until such time as the trial justice would have an opportunity to evaluate "any and all" reports from the therapists treating the children. The transfers of the children were to take place at the home of defendant's mother.

         The trial justice further determined that plaintiff had the ability to earn at least $30, 000, and he ordered plaintiff to pay defendant $646 monthly for the support of the children, plus $125 per month towards medical insurance. Furthermore, the trial justice found that plaintiff had "dissipated marital assets during the pendency of this divorce case in the amount of approximately $7, 000, " and ordered him to transfer one-half of the remaining balance in his retirement accounts to defendant. The defendant was awarded "any and all retirement benefits from her recent * * * or previous employment" free of any claim from plaintiff, in the event she was entitled to any. The trial justice's decision was again memorialized in a decision pending entry of final judgment, which summarized the findings made in his decision. Final judgment entered on September 15, 2015.

         The plaintiff filed a timely notice of appeal to this Court. On appeal, plaintiff contends that the trial justice's visitation, child-support, and distribution of marital property findings were incorrect and not supported by evidence or law.

         II Standard of Review

         We "will not disturb findings of fact made by a trial justice or magistrate in a divorce action unless he or she has misconceived the relevant evidence or was otherwise clearly wrong." Palin v. Palin, 41 A.3d 248, 253 (R.I. 2012) (quoting Cardinale v. Cardinale, 889 A.2d 210, 217 (R.I. 2006)). "Consequently, 'unless it is shown that the trial justice either improperly exercised his or her discretion or that there was an abuse thereof, this Court will not disturb the trial justice's findings.'" Id. (quoting Cardinale, 889 A.2d at 217-18). "Questions of law in an appeal from the Family Court, however, are reviewed de novo." Id.

         III

         Discussion

         A

         Custody ...


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