SERGIO A. DeCURTIS, Plaintiff,
VISCONTI, BOREN & CAMPBELL LTD. and RICHARD A. BOREN, Defendants.
Providence County Superior Court
Plaintiff: Stephen J. Brouillard, Esq.
Defendant: J. Renn Olenn, Esq.; Michael B. Forte, Jr., Esq.;
Joseph F. Penza, Jr., Esq.
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.
Facts and Travel
2000, DeCurtis and Michelle Tondreault
(Michelle) 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  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
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.
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.)
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
"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 ...