County Family Court No. 13-2045 John E. McCann, III Associate
Plaintiff: Michael Vieira, Pro Se
Defendant: Frederick A. Costello, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
Suttell, Chief Justice
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.
and Procedural History
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.
2010, the couple began having marital problems. The
relationship gradually worsened and on August 14, 2013,
defendant obtained a restraining order against plaintiff.
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."
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.
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
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.
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 account and
Tiffany & Co. pension account, and that he had no
"reasonable explanation" as to the whereabouts of
this money when examined at trial.
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.
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.
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.
Standard of Review
"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.