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Decurtis v. Visconti, Boren & Campbell Ltd.

Superior Court of Rhode Island, Providence

January 28, 2019

SERGIO A. DeCURTIS, Plaintiff,
v.
VISCONTI, BOREN & CAMPBELL LTD. and RICHARD A. BOREN, Defendants.

          Providence County Superior Court

          For Plaintiff: Stephen J. Brouillard, Esq.

          For Defendant: J. Renn Olenn, Esq.; Michael B. Forte, Jr., Esq.; Joseph F. Penza, Jr., Esq.

          DECISION

          CARNES, J.

         Before this Court are cross-motions for partial summary judgment. Plaintiff Sergio A. DeCurtis (DeCurtis) moves for partial summary judgment on four matters to find 1) that Marsocci v. Marsocci, 911 A.2d 690 (R.I. 2006) did not preclude DeCurtis from protecting certain earnings in the prenuptial and postnuptial agreements; 2) that Defendant Richard A. Boren (Boren) erred in drafting the prenuptial and postnuptial agreements, as they were not properly constructed to protect DeCurtis' earnings; 3) that the voluntary payment defense does not preclude DeCurtis from recovering damages; and 4) that this Court certify the Marsocci issue to the Rhode Island Supreme Court. Defendants filed a timely objection and cross-motion for partial summary judgment asserting that 1) as a matter of law, Boren did not err in drafting the prenuptial and post nuptial agreements; 2) Boren is protected by judgmental immunity with respect to the language he chose to use in the prenuptial and postnuptial agreements; 3) Marsocci changed the state of the law in Rhode Island such that marital income may not be excluded from the equitable distribution process in a divorce, regardless of any prenuptial or postnuptial agreement; 4) DeCurtis cannot prove the damages element of his negligence-based legal malpractice claim; and 5) DeCurtis was a voluntary payer, and thus may not recover from Defendants. In this context, the Court will decide the narrow issue of Boren's alleged professional negligence in drafting prenuptial and postnuptial agreements for DeCurtis. This matter is before this Court pursuant to Super. R. Civ. P. 56.

         I Facts and Travel

         In 2000, DeCurtis and Michelle Tondreault (Michelle)[1] agreed to enter into a prenuptial agreement in contemplation of their marriage. DeCurtis spoke to his corporate attorney, Stephen Brusini (Brusini), who was an associate at Visconti, Boren & Campbell Ltd. (VBC). Brusini introduced DeCurtis to Boren. Boren and VBC [2] drafted the prenuptial agreement. The prenuptial agreement was delivered to Michelle and her attorney and signed by Michelle and DeCurtis on or about March 22, 2000. On March 28, 2000, Michelle and DeCurtis were married. The couple has two children together.

         On December 2, 2003, Michelle filed the first of several actions in Family Court. Boren represented DeCurtis, and the parties reconciled. On August 5, 2005, Michelle filed another complaint-this time for divorce-in Family Court. DeCurtis hired Boren again, and the action ended in a settlement in which the parties agreed to enter into a postnuptial agreement. Michelle again filed for divorce in Family Court on June 18, 2010, and again, DeCurtis hired Boren to represent him. During that litigation the question arose as to whether the prenuptial and postnuptial agreements were applicable-specifically, whether assets created during a marriage could be protected via a prenuptial or postnuptial agreement under Rhode Island law.

         The divorce trial was scheduled to begin on June 21, 2011 in the Family Court before Judge John E. McCann, III (Judge McCann). Settlement negotiations began before and continued after this scheduled date. At the outset of the first day of the trial, Judge McCann stated:

"Well, before we get started, I just wanted to set the stage, so everyone knows, I've re-read all of the pretrial memorandums, and the Court's interpretation of the Uniform Premarital Agreement Act, and, more specifically, 15-17-1 through 15-17-11, and, more specifically, the issue addressed by Defendant's counsel relative to the term "property" which is in the definition clause set forth in 15-17-1.
"As to the issue, as I understand it, the threshold issue is whether or not any income that was derived during the period of marriage is excluded by the prenup agreement. I'll advise you that I have read the statute, and it's the Court's interpretation that it does not. In fact, the Court does not find that 15-17-1, under the Section entitled "Property" excludes any income or earnings that were derived during the marriage, in terms of the argument posed by Defendant's counsel in his memorandum.
"I further have reviewed the prenup agreement and the post-nup agreement and do not find that the provisions of the contract, as read by the Court at this juncture without further testimony or evidence that would supplement the contract, would indicate that the income derived during the period of marriage is excluded. . . ." (Pl.'s Ex. 9, Tr. 3:16-25-4:1-16, June 21, 2011; see also Defs.' Ex. M, Tr. 3:16-25-4:1-16, June 21, 2011.)

         Judge McCann then asked DeCurtis whether he understood, but DeCurtis' response was "the exact opposite" of what Judge McCann had said; therefore, Judge McCann rephrased it in simpler terms, and conversed with DeCurtis and the attorneys:

"THE COURT: What I just indicated to you is any income that you derived during the period of your marriage, in accordance with the Uniform Premarital Agreement Act, 15-17-1 through 15-17-11, does not provide, in my opinion, based upon a reading of the statute and reading of the agreement and a reading of the definitions as set forth in 15-17-1, provide you one iota of protection concerning income that was derived during the period of the marriage. It would be the Court's interpretation, in reading both the prenup and the post-nup agreement, and further reading what I think is a very well-prepared memorandum by your counsel, would it indicate that the Court is going to exclude any income during the period of marriage. That's exactly opposite of what your understanding of it is, so you know ahead of time. I thought you should be aware of that and that the contract has now been marked as a full exhibit. I'm assuming further neither counsel is going to provide any type of oral testimony to explain the contract, is that correct?
MR. ORTOLEVA: That's correct, Your Honor.
"THE COURT: You want a few moments? Do you understand what we're talking ...

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