March 2, 2022
Supreme Court
No. 2020-238-Appeal.
(WC 19-255)
Shirley P. Morgan, in her capacity as :
the Administratrix for the Estate of
Lisa A. Bicknell
v. :
Richard C. Bicknell :
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before publication in the Rhode Island Reporter. Readers
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Supreme Court
No. 2020-238-Appeal.
(WC 19-255)
Shirley P. Morgan, in her capacity as :
the Administratrix for the Estate of
Lisa A. Bicknell
v. :
Richard C. Bicknell. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Goldberg, for the Court. This case came before the Supreme
Court on December 8, 2021, pursuant to an order directing the parties to appear
and show cause why the issues before us should not be summarily decided. The
defendant, Richard C. Bicknell, appeals from a final judgment entered in favor of
the plaintiff, Shirley P. Morgan, in her capacity as Administratrix for the Estate of
Lisa A. Bicknell, following the grant of summary judgment in accordance with
Rule 56 of the Superior Court Rules of Civil Procedure. After examining the
record and memoranda submitted by the parties, we are satisfied that cause has not
been shown and, thus, the appeal may be decided at this time. For the reasons
stated herein, we affirm the judgment of the Superior Court.
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Facts and Travel
Richard C. Bicknell (Richard or defendant) and Lisa A. Bicknell (Lisa or
decedent) were married on June 29, 1991, and had no children.1 At that time, Lisa
participated in an employee-funded 401(k) retirement plan through The TJX
Companies, Inc. (TJX) (the retirement plan). As required by the retirement plan,
Lisa designated her then-husband, Richard, as contingent death beneficiary.
Richard and Lisa divorced on May 23, 2012, and entered into a property settlement
agreement (the PSA) dated February 22, 2012, in the Family Court. The PSA
contained a provision stating, “WIFE has a 401K’ [sic] retirement plan with The
TJX Companies, Inc. As of 12/31/11 the value of the account was approximately
$102,000.00. HUSBAND waives any and all interest that he may have in said
retirement plan.”2 (Emphasis added.) Furthermore, the PSA included a clause
stating that any modification or waiver of the PSA “shall be effective only if made
in writing and executed with the same formality as this Agreement.” (Emphasis
added.)
On August 5, 2018, Lisa died without a will and without having changed
defendant’s designation as beneficiary of the retirement plan. On May 14, 2019,
1
Throughout this opinion, we sometimes refer to Richard Bicknell and Lisa
Bicknell by their first names solely for the sake of clarity. No disrespect is
intended.
2
According to the complaint, the retirement plan’s estimated value at the time the
action was filed was approximately $190,000.
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plaintiff filed a complaint seeking a temporary restraining order (TRO) to enjoin
defendant from “disposing of, transferring, or conveying any portion of the money
he has, or may receive from [TJX,]” and seeking judgment for the full value of the
retirement plan, claiming that defendant had waived all interest in the retirement
plan under the PSA. After the trial justice granted plaintiff a TRO, the parties
stipulated that defendant would retain the retirement plan funds that TJX had
released to him in a segregated retirement account, until further order of the
Superior Court. Subsequently, plaintiff filed a motion for summary judgment on
the ground that the PSA constituted a waiver of defendant’s interest in Lisa’s
retirement plan. The trial justice concluded that the PSA clearly and
unambiguously established that defendant had waived any and all interest in the
retirement plan. Therefore, the trial justice granted summary judgment and
ordered that the retirement funds be transferred to plaintiff. The defendant timely
appealed the trial justice’s decision.3
3
As a preliminary matter, it is worth noting that review of this case was
complicated by the existence of two documents entitled “Judgment” that contained
similar language but were filed on different dates in the Superior Court. The first
filing, standing alone, likely may have sufficed as a valid judgment from which an
appeal might have been taken; however, taking into consideration all of the
circumstances surrounding this matter, we assume without deciding that
defendant’s appeal from the later filed “Judgment” was timely, and we proceed to
decide this appeal.
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Standard of Review
“This Court reviews a grant of summary judgment de novo.” Sullo v.
Greenberg, 68 A.3d 404, 406 (R.I. 2013) (brackets omitted) (quoting Sacco v.
Cranston School Department, 53 A.3d 147, 149-50 (R.I. 2012)). “Examining the
case from the vantage point of the trial justice who passed on the motion for
summary judgment, ‘we view the evidence in the light most favorable to the
nonmoving party, and if we conclude that there are no genuine issues of material
fact and that the moving party is entitled to judgment as a matter of law, we will
affirm the judgment.’” Id. at 406-07 (brackets omitted) (quoting Sacco, 53 A.3d at
150). “Summary judgment is appropriate only when the ‘pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Sola v. Leighton, 45 A.3d 502,
506 (R.I. 2012) (brackets omitted) (quoting Plunkett v. State, 869 A.2d 1185, 1187
(R.I. 2005)). “Where the facts suggest only one inference,” the hearing justice may
treat the issue as a matter of law. See Deutsche Bank National Trust Company, for
Registered Holders of Ameriquest Mortgage Securities, Inc. v. McDonough, 160
A.3d 306, 311 (R.I. 2017) (brackets omitted).
“Although summary judgment is recognized as an extreme remedy, * * * to
avoid summary judgment the burden is on the nonmoving party to produce
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competent evidence that ‘proves the existence of a disputed issue of material
fact.’” Sullo, 68 A.3d at 407 (brackets omitted) (quoting Mutual Development
Corporation v. Ward Fisher & Company, LLP, 47 A.3d 319, 323 (R.I. 2012)).
However, “summary judgment should enter against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case * * *.” Correia v. Bettencourt, 162 A.3d 630, 635 (R.I. 2017) (quoting
Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016)).
Analysis
The defendant argues that the trial justice erred in granting summary
judgment because a genuine issue of material fact remains: Whether Lisa’s failure
to change the beneficiary on her retirement plan constituted a waiver of
defendant’s “waiver” of his interest in the retirement plan under the PSA. The
defendant claims that waiver is a question of fact. See Haxton’s of Riverside, Inc.
v. Windmill Realty, Inc., 488 A.2d 723, 725-26 (R.I. 1985) (“As a general rule, the
question of whether a party has voluntarily relinquished a known right is one of
fact for a jury.”). He also contends that the party alleging waiver has the burden to
show its existence. See Haydon v. Stamas, 900 A.2d 1104, 1113 (R.I. 2006) (“The
party arguing that there has been a waiver bears the burden of showing clearly its
existence * * *.”). The defendant asserted by way of affidavit that, after the
divorce, the former spouses continued to see each other and that decedent
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reassured him that she would never remove him as the beneficiary of the retirement
plan.
On the other hand, plaintiff argues that the PSA is a binding contract
governing the rights of the parties to the retirement plan. She also claims that,
under the Employee Retirement Income Security Act of 1974, Lisa was required to
name her spouse as the death beneficiary, unless Richard signed a waiver
permitting her to designate a nonspouse. Although it was incumbent upon Lisa to
notify the plan administrator of her change in marital status and to complete a new
beneficiary designation, plaintiff contends, Lisa’s failure to comply with this
provision was merely a matter of personal irresponsibility and poor plan
administration. Accordingly, plaintiff avers that, given the clear language in the
PSA setting forth defendant’s waiver of any interest in the account and defendant’s
only evidence of a genuine issue of material fact in the form of a self-serving
affidavit, the trial justice did not err in granting plaintiff’s motion for summary
judgment. We agree.
The decedent’s failure to remove defendant as the beneficiary of the
retirement plan is of no moment in the circumstances of this case because such a
change would not affect defendant’s waiver of “any and all interest” that he may
have had in the account. Therefore, the issue before this Court is whether
defendant waived his interest in the retirement plan in accordance with the PSA’s
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waiver provision. This question is a matter of contract interpretation and, thus, is
controlled by the PSA.
“A property settlement agreement ‘that is not merged into a divorce
judgment retains the characteristics of a contract.’” DiPaola v. DiPaola, 16 A.3d
571, 576 (R.I. 2011) (quoting Riffenburg v. Riffenburg, 585 A.2d 627, 630 (R.I.
1991)). With respect to contract interpretation, it is well settled that “[o]ur primary
task * * * is to attempt to ascertain the intent of the parties.” Woonsocket Teachers’
Guild, Local 951 v. School Committee of City of Woonsocket, 117 R.I. 373, 376,
367 A.2d 203, 205 (1976). “[T]he intention of the parties must govern if that
intention can be clearly inferred from” the terms and express language of the
contract. Id. “In the absence of ambiguity, the interpretation of a contract is a
question of law[.]” Andrukiewicz v. Andrukiewicz, 860 A.2d 235, 238 (R.I. 2004).
“In determining whether an agreement is clear and unambiguous, the document
must be viewed in its entirety and its language be given its plain, ordinary and
usual meaning.” Arnold v. Arnold, 187 A.3d 299, 311 (R.I. 2018) (quoting W.P.
Associates v. Forcier, Inc., 637 A.2d 353, 356 (R.I. 1994)). “We have consistently
held that a contract provision is ambiguous if it is ‘reasonably susceptible of
different constructions.’” Carney v. Carney, 89 A.3d 772, 776 (R.I. 2014) (quoting
Paul v. Paul, 986 A.2d 989, 993 (R.I. 2010)).
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Here, Richard and Lisa signed a PSA containing a waiver provision with
very specific and clear language to the effect that defendant waived “any and all
interest that he may have” in the retirement plan. (Emphasis added.) Furthermore,
there is no evidence that either party executed a post-divorce modification or
waiver of the PSA in writing. Therefore, we are of the opinion that the defendant
waived any and all interest in the retirement plan and that no genuine issue of
material fact remains in dispute. Accordingly, the trial justice properly granted
summary judgment in favor of the plaintiff.
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court. The papers in this case may be returned to the Superior 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
Shirley P. Morgan, in her capacity as the
Title of Case Administratrix for the Estate of Lisa A. Bicknell v.
Richard C. Bicknell.
No. 2020-238-Appeal.
Case Number
(WC 19-255)
Date Opinion Filed March 2, 2022
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Washington County Superior Court
Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter
For Plaintiff:
Mark T. Buben, Esq.
Attorney(s) on Appeal
For Defendant:
Steven A. Robinson, Esq.
SU-CMS-02A (revised June 2020)