Michelle Andrade v. Christano Andrade

June 16, 2021

June 16, 2021

Supreme Court

No. 2019-467-Appeal.
(P 15-1228)

Michelle Andrade :

v. :

Christano Andrade. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
 Supreme Court

No. 2019-467-Appeal.
(P 15-1228)

Michelle Andrade :

v. :

Christano Andrade. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Chief Justice Suttell, for the Court. The plaintiff, Michelle Andrade,

appeals from two Family Court orders—the first denying her motion to relocate with

the parties’ minor child, and the second granting the motion of the defendant,

Christano Andrade, to modify child support. 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 order denying

the plaintiff’s motion to relocate and vacate the order granting the defendant’s

motion to modify child support.

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 I

Facts and Travel
The parties were married on November 14, 2009, and have one child, a

daughter born in 2007. In July 2015, plaintiff filed a complaint for divorce alleging

that irreconcilable differences had arisen between them, causing the irremediable

breakdown of the marriage. The matter was heard before a Family Court magistrate

on September 17, 2015, on which date plaintiff’s complaint was granted; the parties

were awarded “joint custody of the minor child with physical placement to be with”

plaintiff, and defendant was granted “all reasonable rights of visitation.” The

magistrate also found that the parties had freely and voluntarily entered into a

property settlement agreement (PSA) dated September 17, 2015, which was

“incorporated by reference but not merged into the final decree.” These provisions

were reflected in the decision pending entry of final judgment entered on September

29, 2015, and the final judgment of divorce entered on December 23, 2015.

The PSA provided for “joint custody of the minor child with physical

placement to be with [plaintiff] and [defendant] to have all reasonable rights to

visitation * * * on a schedule of two days, two days, three days per week, alternating

weekly.”1 The defendant was to pay child support “in compliance with Rhode Island

1
On cross-examination, plaintiff acknowledged that the parties had changed the
visitation schedule, such that each parent was with the child on alternating weeks.

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law and federal statutory guidelines.” The amount of child support was established

at $1,471 per month in accordance with a child-support guideline worksheet filed

with the court on September 17, 2015. 2

On June 1, 2018, plaintiff filed a motion to relocate with the minor child. The

plaintiff stated that “[f]or purposes related to her employment, and otherwise related

to the welfare and happiness of herself and the parties’ minor child, [plaintiff] wishes

to relocate with the minor child to New Jersey in the near future.” The plaintiff also

asserted that “[i]t is the [sic] best interest of the parties’ minor child for the minor to

relocate with [plaintiff] to New Jersey for multiple reasons, including considerations

related to the financial and emotional well-being of the child.” On June 29, 2018,

defendant filed an objection to plaintiff’s motion, emphasizing the shared parenting

plan in place, his responsibilities of taking the child to health-related visits, and the

fact that the parties’ families were located in Rhode Island.

On the same day as the filing of his objection, defendant also filed a motion

to modify child support. In support of that motion, defendant stated that “the parties

have for years maintained a shared parenting arrangement [and, therefore,] the

calculation of the child support should be done in such a fashion to take into

2
The defendant testified that, at the time of the trial, he was paying plaintiff $1,350
per month in child support. The plaintiff’s counsel also represented that defendant
had reduced the original child-support obligation, but that a motion to adjudge him
in contempt had not been filed.

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consideration the shared parenting arrangement of the parties[.]” The plaintiff

objected to this motion. The parties subsequently agreed to the appointment of

Attorney Kerry I. Rafanelli as the guardian ad litem for the minor child in relation

to these proceedings.

A hearing on both motions was held on September 25, 2019, at which the

parties and Attorney Rafanelli were the only witnesses. The plaintiff testified that

she wanted to relocate to New York or New Jersey because that is where the

insurance industry, in which she works, is primarily located and it would help her

professionally in her “career growth[.]” She further stated that her goal was to

become a compliance officer, but that she had been unsuccessful in her efforts to

secure such employment in Rhode Island. The plaintiff also testified that she had

been offered a position with New York Life in White Plains, New York. Although

the job would have increased her salary by $16,000, she did not accept the offer

because she could not relocate with the child. The plaintiff’s current employer,

however, agreed to match that offer, ultimately increasing plaintiff’s salary by the

same amount. The plaintiff also submitted a proposed visitation schedule into

evidence that would allow defendant to see the child “as close to half” of the time as

possible.

Attorney Rafanelli testified that, in his report, he “recommended that the

motion for relocation be denied.” He summarized his report, stating that he

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 “received, reviewed and considered information from each
of the parties to include their self[-]reporting, school
records, medical records, position statements in the form
of Guardian Ad Litem worksheets; and then, utilizing all
the facts and circumstances as presented, as well as
conducting a home study of each parent’s home wherein I
met the child * * *, I applied the Pettinato[ v. Pettinato,
582 A.2d 909, 913-14 (R.I. 1990)] factors, so-called, and
the Dupré[ v. Dupré, 857 A.2d 242, 257 (R.I. 2004)]
factors, so-called, against the facts as presented by mother
in support of her motion for relocation and father in
opposition to that. So, I weighed the facts and
circumstances as presented and applied, through my eyes
as a Guardian Ad Litem, the appropriate case law factors.”

Attorney Rafanelli also recommended that “the parents recognize the fact that it’s a

shared parenting arrangement” between them.

The defendant testified that, although the rotation of when he and plaintiff had

possession of the child had changed since the initial arrangement, they each still had

the child for the same amount of days in a calendar year. The defendant also testified

that he had a number of concerns regarding their child relocating:

“[O]ne of which is continuity with schools. She went to
three different elementary schools. She’s been now in a
middle school. In terms of stability within her own family
structure, my family is very actively engaged. My mother,
my father, my grandparents, they have ongoing,
continuous relationships with them, where being in New
York City would be prohibitive for her to maintain. I
personally am actively involved in all elements of [the
child’s] life, in addition to [plaintiff]. I’ve been to every
school event that she’s had. * * * I maintain continuity
with her social relationships by hosting sleepovers,
bringing her to the bowling alley, and doing all the things
a kid generally does[.]”

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The defendant further testified that he did not believe he could have the same

relationship with the child if she were to relocate with plaintiff.

On October 8, 2019, the trial justice rendered a bench decision. He found that

plaintiff had “failed to sustain her burden of proof under either Dupré or Pettinato

relative to a request to relocate; and * * * that it’s not in [the child’s] best interest to

relocate to either the New Jersey or New York area.” As to defendant’s motion to

modify child support, the trial justice found that “the [g]uideline as presented [in the

initial divorce] was in error at that time and completely unfair to the [d]efendant. As

indicated, it took no consideration for the shared placement and should have.” The

trial justice modified defendant’s child-support obligation from $1,300 per month to

$765 per month, retroactive to June 29, 2018. He then further reduced the ongoing

support payments by $383 per month, until such time as the amount defendant had

“overpaid” since June 29, 2018—$15,165—is satisfied.

Orders were entered reflecting the trial justice’s decision. On appeal, plaintiff

contends that the Family Court erred both in denying her motion to relocate and in

granting defendant’s motion to modify. We address her arguments in turn.

II

The Denial of the Motion to Relocate

The plaintiff argues that the trial justice erred in denying her motion to

relocate by “overlooking and/or misconceiving evidence.” The plaintiff contends

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that the trial justice misstated and misunderstood the evidence presented in

determining that an increase in income was her sole motivating factor in wanting to

relocate, when she presented evidence that she was looking to move forward in her

career path towards becoming a compliance officer in the life insurance industry.

She also argues that the trial justice overlooked evidence that the child desired to

relocate and that moving would enhance the overall quality of their lives. Lastly,

plaintiff argues that the trial justice erred in ruling against the admissibility of

evidence that plaintiff had attempted to present regarding alleged prior acts of

domestic violence by defendant.

A

Standard of Review

“On review, this Court will not disturb the findings of fact made by a justice

of the Family Court with respect to the issue of custody and the best interests of the

child unless the hearing justice abused his or her discretion in making such findings.”

DePrete v. DePrete, 44 A.3d 1260, 1270 (R.I. 2012). “It is the trial justice who is

in the best position to determine what factors [regarding relocation] may be relevant

on a case-by-case basis, and [his or her] discretion in this regard should not be unduly

constrained.” Dupré, 857 A.2d at 257. We will affirm the trial justice’s award

concerning custody and the best interests of the child unless his or her “factual

findings ‘overlooked or misconceived material evidence or were clearly wrong.’”

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DePrete, 44 A.3d at 1270 (quoting McDonough v. McDonough, 962 A.2d 47, 52

(R.I. 2009)).

B

Discussion

This Court has articulated the relevant factors to be considered when a motion

for relocation is at issue as follows:

“[P]arties either seeking or opposing the relocation of their
minor children should present relevant evidence
concerning[:]

“(1) The nature, quality, extent of involvement, and
duration of the child’s relationship with the parent
proposing to relocate and with the non-relocating parent.
***
“* * *
“(2) The reasonable likelihood that the relocation will
enhance the general quality of life for both the child and
the parent seeking the relocation, including, but not
limited to, economic and emotional benefits, and
educational opportunities. * * *
“(3) The probable impact that the relocation will have on
the child’s physical, educational, and emotional
development. * * *
“(4) The feasibility of preserving the relationship between
the non-relocating parent and child through suitable
visitation arrangements, considering the logistics and
financial circumstances of the parties. * * *
“* * *
“(5) The existence of extended family or other support
systems available to the child in both locations. * * *
“(6) Each parent’s reasons for seeking or opposing the
relocation.
“* * *

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 “(7) In cases of international relocation, the question of
whether the country to which the child is to be relocated is
a signatory to the Hague Convention on the Civil Aspects
of International Child Abduction[.] * * *
“(8) To the extent that they may be relevant to a relocation
inquiry, the Pettinato factors also will be significant.”
Dupré, 257 A.2d at 257-59.

This Court has also repeatedly recognized that “no single Dupré factor is dispositive

and that each case will present its own unique circumstances that a trial justice must

balance and weigh as he or she deems appropriate.” Saltzman v. Saltzman, 218 A.3d

551, 557 (R.I. 2019) (quoting Ainsworth v. Ainsworth, 186 A.3d 1074, 1082 (R.I.

2018)). Further, “[i]t is a firmly established principle in family law that the

‘paramount consideration’ in relocation cases is the best interests of the child or

children.” DePrete, 44 A.3d at 1271.

This Court has reiterated the “identifiable factors that must be weighed in the

best interests of the child analysis when relevant[,]” also known as the “Pettinato

factors.” Pettinato, 582 A.2d at 913. Those factors are:

“1. The wishes of the child’s parent or parents regarding
the child’s custody.
“2. The reasonable preference of the child, if the court
deems the child to be of sufficient intelligence,
understanding, and experience to express a preference.
“3. The interaction and interrelationship of the child with
the child’s parent or parents, the child’s siblings, and any
other person who may significantly affect the child’s best
interest.
“4. The child’s adjustment to the child’s home, school, and
community.

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 “5. The mental and physical health of all individuals
involved.
“6. The stability of the child’s home environment.
“7. The moral fitness of the child’s parents.
“8. The willingness and ability of each parent to facilitate
a close and continuous parent-child relationship between
the child and the other parent.” Id. at 913-14 (footnotes
omitted).

The trial justice weighed several of the applicable Dupré factors in coming to

his decision. First, he considered plaintiff’s reason for seeking relocation, which he

found was primarily “for the purpose of enhancing her career.” However, he

determined that the economic argument as to this career change had been

undermined by the fact that plaintiff now makes an amount equal to what she would

have made at a new job after relocating. Second, he noted that “the child is

performing quite well here in Rhode Island.” The trial justice also stated that he had

reviewed Attorney Rafanelli’s report, which indicated that “[t]here’s no evidence of

a significant family support network system in the New York/New Jersey area.

Maternal grandparents and relatives live in Rhode Island. Paternal relatives live in

Rhode Island[.]”

We disagree with plaintiff’s assertion that the trial justice misconceived

evidence regarding her purpose for relocating. The trial justice weighed plaintiff’s

reason for relocating—primarily for “enhancing her career”—against other Dupré

factors, including that relocating would not provide an economic benefit to plaintiff

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and the child. These were both appropriate considerations, as separate Dupré

factors, that the trial justice balanced and weighed. See Saltzman, 218 A.3d at 557.

As to plaintiff’s assertion that the trial justice overlooked evidence that the

child wanted to relocate, “we have said that ‘the trial justice need not refer to every

piece of evidence, rather he must refer to the specific evidence that prompted his

decision.’” Saltzman, 218 A.3d at 558 (brackets omitted) (quoting H.J. Baker &

Bro., Inc. v. Orgonics, Inc., 554 A.2d 196, 202 (R.I. 1989)). It is clear that the trial

justice considered the best interest of the child in focusing on the child’s support

system in Rhode Island and the fact that she was performing well in Rhode Island.

Although the parties agreed that the child had expressed a desire to relocate with

plaintiff, the trial justice clearly found that these other factors outweighed this desire

and contributed more substantially to the child’s overall wellness.

Lastly, we address plaintiff’s argument that the trial justice overlooked

evidence regarding past instances of domestic violence. However, this issue was

only briefly touched upon at the trial. That colloquy went as follows:

“[PLAINTIFF’S COUNSEL:] * * * Briefly, what led to
the breakdown of the marriage?

“[DEFENSE COUNSEL]: Objection, Your Honor.

“THE COURT: Sustained.

“[DEFENSE COUNSEL]: No relevance whatsoever.

“THE COURT: Sustained.

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 “[PLAINTIFF’S COUNSEL:] Did you have a drinking
problem around that time?

“[DEFENSE COUNSEL]: Objection, Your Honor.

“THE COURT: Sustained.

“[PLAINTIFF’S COUNSEL:] Was there ever an instance
of physical abuse to my client?

“[DEFENSE COUNSEL]: Objection, Your Honor.

“THE COURT: Sustained.

“[PLAINTIFF’S COUNSEL:] Did you ever assault my
client?

“[DEFENSE COUNSEL]: Objection, Your Honor.

“THE COURT: Sustained.

“[PLAINTIFF’S COUNSEL]: Nothing further.”

The plaintiff has not presented any argument, here or in the trial court, regarding

why these questions were relevant to her motion to relocate. She was not attempting

to relocate out of fear of defendant, nor was she seeking sole custody, nor even to

reduce defendant’s time with the child significantly. She, in fact, had submitted a

proposed visitation schedule that would allow defendant to be with the child “as

close to half [the time] as [she] could get[.]”

The plaintiff has not only failed to articulate why this line of questioning was

relevant, she has also failed to preserve the issue for appellate review. “This Court

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has long adhered to an important jurisprudential principle commonly referred to as

‘the raise or waive rule.’” In re Shy C., 126 A.3d 433, 434 (R.I. 2015). “That

venerable rule provides that ‘an issue that has not been raised and articulated

previously at trial is not properly preserved for appellate review.’” Id. at 434-35

(quoting State v. Gomez, 848 A.2d 221, 237 (R.I. 2004)). Thus, because plaintiff

did not articulate any argument at trial regarding the admissibility of such evidence,

she is precluded from raising the issue on appeal.

The trial justice clearly considered the relevant Dupré factors, weighing and

balancing them to conclude that relocation was not in the best interest of the child.

“As we have held, we accord great deference to the sound discretion of the trial

justice in assessing and weighing these factors because ‘it is the trial justice who is

in the best position to determine what factors may be relevant on a case-by-case

basis.’” Saltzman, 218 A.3d at 558 (quoting Ainsworth, 186 A.3d at 1083). The trial

justice in the present case clearly found that the factors weighing in favor of

relocation did not outweigh the benefits of the child remaining in Rhode Island. For

these reasons, we find that the trial justice did not overlook or misconceive material

evidence in denying plaintiff’s motion to relocate.

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 III

Motion to Modify Child Support

The plaintiff also contends that the trial justice erred in failing to consider the

relevant factors under G.L. 1956 § 15-5-16.2(a)3 and by failing to make the findings

required by §§ 15-5-16.2(a), 15-5-16.2(c)(2), 4 15-5-16.2.4,5 and 15-5-16.7.6

3
General Laws 1956 § 15-5-16.2(a) states:

“In a proceeding for divorce, divorce from bed and board,
a miscellaneous petition without the filing of divorce
proceedings, or child support, the court shall order either
or both parents owing a duty of support to a child to pay
an amount based upon a formula and guidelines adopted
by an administrative order of the family court. If, after
calculating support based upon court established formula
and guidelines, the court, in its discretion, finds the order
would be inequitable to the child or either parent, the court
shall make findings of fact and shall order either or both
parents owing a duty of support to pay an amount
reasonable or necessary for the child’s support after
considering all relevant factors including, but not limited
to:

“(1) The financial resources of the child;
“(2) The financial resources of the custodial parent;
“(3) The standard of living the child would have
enjoyed had the marriage not been dissolved;
“(4) The physical and emotional condition of the child
and his or her educational needs; and
“(5) The financial resources and needs of the
non-custodial parent, provided, that in establishing a
child-support order, incarceration may not be treated as
voluntary unemployment.”

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4
Subsection 15-5-16.2(c)(2) states:

“After a decree for support has been entered, the court
may, from time to time upon the petition of either party, or
by the state in accordance with subsection (c)(3) of this
section, review and alter its decree relative to the amount
of support and the payment of it, and may make any decree
relative to it that it might have made in the original suit.
The decree may be made retroactive in the court’s
discretion only to the date that notice of a petition to
modify was given to the adverse party if the court finds
that a substantial change in circumstance has occurred;
provided, that the court shall set forth in its decision the
specific findings of fact that show a substantial change in
circumstances and upon which findings of facts the court
has decided to make the decree retroactive. In modifying
the order, incarceration may not be treated as voluntary
unemployment that would prevent the motion from being
heard or result in a denial of the motion. The child-support
order shall continue in full force and effect, by wage
withholding, after the youngest child is emancipated, and
shall be applied towards any arrearage due and owing, as
indicated on the child-support computer system. Upon
satisfaction of the arrears due and owing the child-support
order shall be automatically suspended and wage
withholding terminated without the necessity of returning
to family court.”
5
Section 15-5-16.2.4 states, in part:

“Notwithstanding the provisions of § 15-5-16.2, the court,
in its discretion, may modify a child support order
retroactively only to the date that notice of a petition to
modify was given to the adverse party if it finds that a
substantial change in circumstances has occurred. The
court shall set forth in its decision the specific findings of
fact which show a substantial change in circumstances and
upon which findings of fact the court has decided to make
its order of modification retroactive.”

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 Before reaching the merits of this issue, we note that “this case should

properly be before us pursuant to a petition for writ of certiorari * * * because an

order that modifies child support is not appealable.” Lentz v. Lentz, 651 A.2d 1242,

1242 (R.I. 1994) (mem.). However, in light of the fact that there is a valid appeal

pending before us and in the interests of judicial economy and efficiency, we will

treat plaintiff’s appeal from this order as a common law writ of certiorari. See id.

“When reviewing modification decrees, we have consistently adhered to the

majority view that ‘the rights of the parties are settled by the existing decree and

cannot be altered unless the moving party by a fair preponderance of the evidence

shows that subsequent to the entry of that decree a change of circumstances or

conditions occurred.’” McCann v. McCann, 121 R.I. 173, 175, 396 A.2d 942, 944

(1979) (quoting Heatherton v. Heatherton, 110 R.I. 144, 145, 290 A.2d 912, 913

6
The relevant portion of § 15-5-16.7 states:

“(c) In the case of a request for a review * * * upon the
request of either party * * * the amount of support may, in
the court’s discretion, be modified if the court finds that a
substantial change in circumstances has occurred in
accordance with § 15-5-16.2. The court, in its discretion,
may modify a child-support order retroactively only to the
date that notice of a petition to modify was given to the
adverse party if the court finds that a substantial change in
circumstances has occurred; provided, that the court shall
set forth in its decision the specific findings of fact that
show a substantial change in circumstances and upon
which findings of facts the court has decided to make the
decree retroactive.”

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(1972)). “Consistent with this view, the moving party must show that subsequent to

the final decree, there has been a change in either the needs of the minor child or his

[or her] own ability to meet those needs.” Id. at 175-76, 396 A.2d at 944. “The

decision of a trial justice with respect to the modification of support obligations will

not be disturbed on appeal unless the findings on which his [or her] decision is based

are clearly wrong, or unless, in making such findings, he [or she] overlooked

material evidence or misconceived the applicable law.” Hull v. Hull, 120 R.I. 77,

79-80, 384 A.2d 1065, 1067 (1978).

In his decision, the trial justice found that “[t]he parties have enjoyed joint

custody since the entry of the [initial] decision which was heard by this [c]ourt back

on September 17th of 2015[.]” He went on to explain that

“if one reads the [PSA] which was entered on the same day
the divorce was heard, it takes into consideration a
two-day, two-day, three-day, three-day alternate week
shared possession agreement between the parties; and, if
the [c]ourt reviews the [g]uideline that was also presented
on September 15th of 2015, there was absolutely no
consideration whatsoever given to the fact that there was
a shared possession. The [c]ourt would find that the
[g]uideline as presented was in error at that time and
completely unfair to the [d]efendant.”

There were, however, a dearth of findings by the trial justice regarding a change of

circumstances in either the child’s needs or defendant’s ability to pay child support.

Indeed, the parties, without amending the PSA or seeking court approval, had altered

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the placement schedule to alternating weeks; the end result, however, was the

same—the child was placed with each parent an equal amount of time.

Whether or not the guidelines were prepared in error in 2015, the

child-support order was agreed to by defendant, approved by the court, and

incorporated but not merged into the decision pending entry of final judgment and

final judgment of divorce. Any modification of that order under § 15-5-16.2(c)(2)

must be supported by a finding that a substantial change in circumstances has

occurred. We conclude, therefore, that the trial justice erred by failing to consider

the circumstances, or any change thereof, concerning the child’s needs or

defendant’s ability to pay child support. Instead, the trial justice based his decision

on the initial agreement being “completely unfair” to defendant; this was not proper.

See McCann, 121 R.I. at 176, 396 A.2d at 944 (holding that “[t]he decision [of the

trial justice] was based solely upon his opinion that the burden imposed by the prior

decree was ‘too onerous’ without considering the possible impact of the

modification order upon the mother or child”).

Accordingly, we vacate the order granting the defendant’s motion to modify

child support.

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 IV

Conclusion

For the reasons stated herein, we affirm the order entered by the Family Court

denying the plaintiff’s motion to relocate, and we vacate the order entered by the

Family Court granting the defendant’s motion to modify child support. The case is

remanded to the Family Court.

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 STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Michelle Andrade v. Christano Andrade.

No. 2019-467-Appeal.
Case Number
(P 15-1228)

Date Opinion Filed June 16, 2021

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Chief Justice Paul A. Suttell

Source of Appeal Providence County Family Court

Judicial Officer from Lower Court Associate Justice John E. McCann, III

For Plaintiff:

Alyssa M. Volpi, Esq.
Attorney(s) on Appeal
For Defendant:

Robert M. Brady, Esq.

SU-CMS-02A (revised June 2020)