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Giarrusso v. Giarrusso

Supreme Court of Rhode Island

April 16, 2019

Diane Giarrusso
Paul Giarrusso.

          Providence County Family Court (P 15-1845) Patricia K. Asquith Associate Justice.

          For Plaintiff: Jesse Nason, Esq.

          For Defendant: John L. Quigley, Jr., Esq.

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



         Before us are former spouses who disagree about the ex-husband's entitlement to visitation with the two dogs that they acquired during their marriage. This case came before us 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 order of the Family Court.

         I Facts and Procedural History

         In October 2016, after twenty-three years of marriage, the plaintiff, Diane Giarrusso, and the defendant, Paul Giarrusso, entered into a Marital Settlement Agreement (MSA), formalizing the terms of the dissolution of their marriage.[1] A final judgment officially dissolving the marriage entered in January 2017; the judgment incorporated the MSA without merging it. Paragraph fourth of the MSA gave Diane "all right title and interest in and to [the two dogs:] the greyhound 'Marox' and the Chihuahua 'Winnie.' [Paul] [was] permitted to take the dogs for visits from Tuesday morning at 8 a.m. through Thursday morning at 8:00 a.m."[2]

         Paul enjoyed his weekly visitation with Marox and Winnie from October 2016 until the end of March 2017, when this simple arrangement went awry and Diane unilaterally ceased allowing the weekly visits. In May 2017, Paul filed a motion for post-final judgment relief, claiming that Diane had denied his visitation time with the dogs for several weeks. Paul requested that the Family Court enforce the MSA by ordering Diane to comply with the visitation schedule, provide makeup visits for the weeks denied to him, and award him attorney's fees for his pursuit of the court-enforcement order. Diane objected to Paul's motion and, in July 2017, filed her own motion for relief. Diane claimed that Paul had not properly cared for the dogs when they were with him and had attempted to keep the dogs away from her, thereby breaching the MSA. Diane sought to enjoin and restrain Paul from having any time with the dogs.

         A justice of the Family Court held a hearing on December 4, 2017; Paul and Diane testified, and the hearing justice reviewed text messages and emails exchanged between the parties as well as veterinary bills and records. Diane testified that Paul had not taken proper care of the dogs since the couple's separation and that his failure to properly care for the dogs constituted a breach of the MSA. She testified that Marox returned from one visit with one of his claws damaged, hanging and bleeding. Marox returned from another visit with a "huge bubble on his lip." Diane took Marox to the vet both times. According to Paul, the MSA gave Diane complete control over the care of the dogs, such that he could not take them to the vet or make any decisions about their care. He testified that all he could do was play with them. He also testified that he heard about the damaged claw for the first time while in court and that the bubble on Marox's lip had appeared while he was away for a two-week work-related trip.

         According to Diane, the final straw for her occurred on March 29, 2017, the last day she allowed Paul his visitation with Marox and Winnie. That afternoon, Paul had contacted Diane because the dogs were acting strangely and Winnie was whimpering. Paul testified that he knew something was wrong with Winnie because he "let out a cry" when Paul picked him up to put him on Paul's bed.[3] Paul called Diane and held the phone close to Winnie so Diane could hear the tone of the whimper. The erstwhile spouses argued through text messages about whether Diane would pick up only Winnie to take him to the vet or whether she would pick up both dogs because, according to Diane, the dogs became anxious when they were separated. Diane and Paul eventually agreed that Diane would pick up both dogs so she could take Winnie to the vet.

         When Diane arrived at Paul's house, however, Marox was missing. Paul testified that he had let the dogs out to relieve themselves and he thought both dogs had returned inside the house, but then he could not find Marox.[4] Diane testified that Marox's disappearance was posted on Facebook and that she, friends, and neighbors spent an hour and a half looking for the greyhound. Paul testified that his sister helped in the search as well. Diane testified that she "was so upset and hysterical" during the search effort that she "was puking on the side of the road." Eventually, Paul found Marox, who had apparently been in his house the entire time, stuck in a closet. Paul had been tipped off by Winnie, who was sitting outside the closed closet door. According to Diane, when she saw Marox, the dog was in Paul's arms, "violently shaking, like it was traumatized." Diane testified that she "was already hysterical at that point[, ] [but] then [she] went right over the top, screaming and yelling and swearing at the top of [her] lungs."[5]

         Paul also testified that he was emotional on March 29, crying over Marox's disappearance both before Diane arrived and throughout the search for Marox. He stated that he had not tried to trick Diane by hiding Marox in a closet and then claiming Marox had run off, and that he had been genuinely confused because, after he had spoken with Diane on the phone, he had let the dogs out to relieve themselves and thought that both dogs had come back inside. He testified that he had tried to see the dogs in the weeks following March 29, but Diane had not responded to his communications. During his testimony, Paul's distress about the litigation over the dogs was palpable.

         At the end of the hearing, Diane argued that the hearing justice should withdraw the court's approval of the MSA because, in light of the incidents described during the testimony, the MSA provision allowing Paul weekly visitation was inequitable. For his part, Paul argued that Diane had breached the terms of the MSA, which she had ...

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