Supreme Court
No. 2022-228-Appeal.
(P 17-4447)
Nancy Robayo :
v. :
Luis Robayo. :
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. 2022-228-Appeal.
(P 17-4447)
Nancy Robayo :
v. :
Luis Robayo. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Chief Justice Suttell, for the Court. The plaintiff, Nancy Robayo, appeals
from a Family Court judgment in favor of the defendant, Luis Robayo.1 In addition
to granting the defendant’s motion for summary judgment, the Family Court denied
the plaintiff’s motion and amended motion for relief from judgment, as well as her
motion to adjudge the defendant in contempt. At the heart of the plaintiff’s several
arguments on appeal is a belief that her marital settlement agreement with the
defendant, her ex-husband, entitles her to survivor benefits in his federal civilian
pension. 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 plaintiff’s written and oral submissions
and reviewing the record, we conclude that cause has not been shown and that this
1
The defendant did not participate in these proceedings and was defaulted.
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case may be decided without further briefing or argument. For the reasons set forth
in this opinion, we affirm the judgment of the Family Court.
I
Facts and Travel
According to their marital settlement agreement, the parties were married in
1990 and lived in Virginia until 2002, when plaintiff moved to Rhode Island. The
defendant remained in Virginia; and, by 2010, the couple’s marital relationship had
ended for all practical purposes. In 2017 and 2018, the parties filed claims and
counterclaims for divorce, which were based on irreconcilable differences that led
to the irremediable breakdown of their marriage.
The parties presented the agreement as a joint exhibit in the Family Court,
during a nominal divorce hearing, on July 2, 2018. The agreement contained several
provisions regarding the distribution of benefits related to defendant’s service in the
United States military and his civilian employment with the federal government.
The parties agreed, for example, that plaintiff was entitled to 50 percent of the
marital portion of defendant’s military pension—which he was receiving at the
time—calculated from the date of their marriage to defendant’s retirement from the
military in 2000.
As for defendant’s federal civilian employment, the agreement contained two
provisions regarding the distribution of benefits associated with the Federal
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Employee Retirement System (FERS). One provision concerns a retirement-savings
plan and is not at issue here. The other provision concerns defendant’s federal
civilian pension, which, in contrast to his military pension, he was not receiving at
the time. The provision reads, in relevant part, “in the event that [defendant] is
entitled to receive a pension * * * as a result of his employment as a civilian with
the federal government, [plaintiff] shall be entitled to receive one-half [sic] of his
civilian retirement plan from the date of his employment until June 30, 2018.”
Two weeks after the nominal divorce hearing, on July 16, 2018, the Family
Court entered a decision pending entry of final judgment, presented by defendant’s
attorney, that incorporated the agreement “as a separate, independent contract.”
Nevertheless, the provisions relating to defendant’s pensions were included in the
decision pending entry of final judgment, prefaced by the following statement: “The
parties have inserted this paragraph into the Interlocutory Decision and upcoming
Final Judgment for convenience purposes only, and the following shall not be
modifiable[.]” The wording was essentially the same as in the marital settlement
agreement with one notable change. The decision pending entry of final judgment
contained an additional sentence concerning defendant’s federal civilian pension, to
wit, “The [p]laintiff shall be entitled to receive any benefits such as COLAs and
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pre-retirement options attributable to her share.”2 This sentence is the crux of the
appeal.3
The Family Court entered final judgment, and the marriage was dissolved, on
October 15, 2018. Eleven months later, on September 9, 2019, plaintiff filed a
motion for relief from judgment under Rule 60(b)(1) of the Family Court Rules of
Domestic Relations Procedure. She alleged that, when negotiating the terms of their
divorce, the parties were unaware that defendant’s federal civilian pension contained
survivor benefits and therefore did not address whether to distribute them.
According to plaintiff, she was entitled not only to relief from judgment under the
doctrine of mutual mistake, but to a fair and equitable share of the survivor benefits
as well. Soon thereafter, on October 22, 2019, plaintiff filed a motion to adjudge
defendant in contempt for refusing to grant plaintiff a 50 percent share of the
survivor benefits.
This second motion expanded on plaintiff’s argument for being entitled to a
share of the survivor benefits in defendant’s federal civilian pension. Her argument
hinged on the sentence, quoted above, that the parties added to the relevant provision
2
“COLAs” are cost-of-living adjustments. See Black’s Law Dictionary 438 (11th
ed. 2019).
3
Although the marital settlement agreement was incorporated but not merged into
the court judgment, we are satisfied from the parties’ testimony at the nominal
divorce hearing that they intended the additional sentence to constitute a
modification of the original agreement.
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of the decision pending entry of final judgment and which, in turn, was reflected in
the final judgment. To reiterate, the amendment provided that plaintiff was “entitled
to receive any benefits such as COLAs and pre-retirement options attributable to her
share.” According to plaintiff, the express reference to certain benefits should not
mean the exclusion of others, and “[i]t was the clear intent of the parties” for plaintiff
to “receive any and all benefits” to which she was otherwise entitled. Therefore,
even though the provision referred only to “COLAs and pre-retirement [options],”
plaintiff argued that her entitlement to survivor benefits, should they exist, was
implied.
The case saw few developments until defendant filed a motion for summary
judgment on September 9, 2021. In addition to noting that he had since remarried,
defendant argued in his motion that there was no genuine issue of material fact that
“would illustrate clear and convincing evidence of mutual mistake.”
The plaintiff filed an objection to defendant’s motion for summary judgment
on September 20, 2021. The next day, hours before a hearing on the parties’
motions, plaintiff filed an amended motion, styled as an “amended motion for relief
from judgment and to compel entry of QDRO with survivorship language,” 4 under
Rule 60(b). In the amended motion, plaintiff focused less on the express reference
to COLAs and pre-retirement options and more on the language that she was entitled
4
A “QDRO” is a qualified domestic relations order.
-5-
to “any benefits such as” those expressly stated. “A survivorship annuity,” she
reasoned, “falls into that category of ‘any benefit.’” In the alternative, plaintiff
argued that the agreement was “ambiguous regarding the issue of the entitlement to
a survivorship option.”
The plaintiff’s motions for relief from judgment, contempt, entry of a
qualified domestic relations order, and amended motion for relief from judgment, as
well as defendant’s motion for summary judgment, all came for hearing before the
Family Court on September 21, 2021. By agreement of the parties, the transcript of
the July 2, 2018 nominal divorce hearing was marked as a joint exhibit. During the
2018 hearing, on direct examination, defendant confirmed that he understood that,
with respect to his federal civilian pension, plaintiff would be entitled to one half of
the pension’s value as of the hearing date, and that, moving forward, while his
pension would grow as he “continue[d] to work, * * * hers [would] end as of [that]
date[.]” According to his attorney, defendant found it “very hard to wrap his head
around the fact that” plaintiff was entitled to a 50 percent share of his federal civilian
pension even though they had not lived together during the entire sixteen years that
he had been a federal civilian employee. Nevertheless, because he and plaintiff had
been legally married during that time, he understood the agreement’s terms.
The July 2, 2018 transcript also revealed that, during a lunchtime recess, the
parties negotiated and agreed upon the additional language regarding plaintiff’s
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entitlement to benefits in defendant’s federal civilian pension. On direct
examination, plaintiff acknowledged that, “should there be any” cost-of-living
adjustments or early retirement benefits associated with defendant’s federal civilian
pension, she would “receive [her] marital share of those[.]”
At the hearing on the parties’ motions, plaintiff restated the arguments she
made in her amended motion with the added contention that, because defendant’s
attorney presented the decision pending entry of final judgment, the language therein
should be construed against defendant. In response, defendant noted that plaintiff
was entitled under the terms of the agreement to 50 percent of his federal civilian
pension “from the date of his employment until June 30, 2018.” The plaintiff’s share
was thus frozen in time, according to defendant, and could not reach a survivor
benefit because it would not accrue until his death. According to plaintiff, however,
the agreement assigned her a “separate interest” in defendant’s federal civilian
pension and not just a share of the payments made from the pension. This separate
interest in defendant’s pension, plaintiff argued, entitled her to a share of “everything
in the plan, which means all the bells and whistles that come under the plan[,]”
including any survivor benefits that may accrue.
The hearing concluded with the trial justice allowing plaintiff to supplement
her objection to defendant’s motion for summary judgment with a supporting
memorandum, which she filed on December 13, 2021. In addition to opposing
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summary judgment, plaintiff argued in her memorandum that the trial justice should
grant not only her amended motion for relief from judgment, but also her motion to
adjudge defendant in contempt, which the trial justice had denied, without prejudice,
during the hearing.
On April 26, 2022, the trial justice rendered a bench decision granting
defendant’s motion for summary judgment and denying plaintiff’s motions for relief
from judgment and for contempt. After recounting the facts and travel, the trial
justice found that there had been no mutual mistake regarding the existence of
survivor benefits in defendant’s federal civilian pension. From there, she examined
plaintiff’s revised claim that the agreement clearly entitled her to a share of any
survivor benefits. The trial justice began with four observations. “I do think this
[c]ourt [has] to consider,” she said, that the agreement “was negotiated over eight
months with very competent attorneys, that the parties had been separated for 15
years,” that defendant’s entire federal civilian pension “was earned during that
separation,” and that the attorneys and parties knew all of this when executing the
agreement. The trial justice also noted that “[b]oth parties at all times had counsel.
In fact, they each had very good counsel.”
With these observations in mind, and after reviewing both the agreement and
the transcript of the nominal divorce hearing, the trial justice found that there was
no issue of material fact regarding plaintiff’s entitlement to the survivor benefits in
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defendant’s federal civilian pension. For one, plaintiff had made no showing “of
any facts that would illustrate clear and convincing evidence of mutual mistake.”
Furthermore, “[t]he plain language is clear,” the trial justice explained, that plaintiff
“has a right up until June 3[0], 2018, and anything that came with it up until that
date. After that, there are no rights.” In other words, because “an end date was
attached” to plaintiff’s rights, the trial justice found that she was not entitled to any
survivor benefits in defendant’s federal civilian pension, which had not accrued as
of that date.
On July 1, 2022, judgment entered granting defendant’s motion for summary
judgment, the court finding that there was no mutual mistake, and denying plaintiff’s
motion and amended motion for relief under Rule 60(b) and also denying her motion
to adjudge defendant in contempt. The plaintiff filed a timely notice of appeal on
July 19, 2022.
II
Discussion
The plaintiff makes three arguments on appeal. First, plaintiff asserts that the
“plain language of the agreement dictates” that she is entitled to any survivor benefits
in defendant’s federal civilian pension. Second, plaintiff argues in the alternative
that the terms of the agreement, if ambiguous, should be construed against
defendant, and therefore she is entitled to any survivor benefits. Third, she contends
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that the trial justice took judicial notice of counsel for defendant’s experience
litigating in the Family Court and erred in so doing.5
As a first order of business, we attempt to untangle the various motions from
the procedural morass that confronted the trial justice. The initial post-final-
judgment motion was plaintiff’s motion for relief from judgment under Rule
60(b)(1) based upon a theory of mutual mistake. In response thereto, defendant filed
a motion for summary judgment denying the existence of any fact that would
demonstrate a mutual mistake. It is clear, however, that plaintiff undeniably
abandoned this argument at the September 21, 2021 hearing. Consequently, we
deem plaintiff’s appeal from the denial of her original motion for relief and from the
grant of defendant’s motion for summary judgment to be moot. Nor does plaintiff
appeal from the denial of her motion to adjudge defendant in contempt. We confine
our analysis, therefore, to the denial of plaintiff’s “amended motion for relief from
judgment and to compel entry of QDRO with survivorship language.”6
5
The plaintiff also asserts, with a one-sentence analysis, that the judgment from
which she appeals is “final and appealable.” The defendant has not challenged its
appealability; nor do we.
6
Rule 60(b)(1) of the Family Court Rules of Domestic Relations Procedure provides
that a “court may relieve a party or a party’s legal representative from a final
judgment, order, or proceeding for * * * reasons” of “[m]istake, inadvertence,
surprise, or excusable neglect[.]” We question whether a motion under Rule
60(b)(1) is an appropriate vehicle to resolve what is essentially a question of contract
interpretation. The defendant has defaulted, however, and thus has waived any
objection to the motion’s procedural propriety.
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Marital Settlement Agreement
The plaintiff’s first argument is brief and to the point: “[plaintiff] should
receive the survivorship benefit because that is what the contract says.” Contrary to
plaintiff’s argument, however, the “contract” does not expressly say that she should
receive the survivorship benefits; rather, it is silent on the point. Nor was the issue
discussed at the nominal divorce hearing; it simply was not addressed. The final
judgment of divorce states that the agreement was “incorporated, but not merged,”
into the final judgment and “remain[s] as a separate, independent contract.” “It is
well settled that a property settlement agreement * * * retains the characteristics of
a contract” under these circumstances. Giarrusso v. Giarrusso, 204 A.3d 1102, 1107
(R.I. 2019) (quoting Esposito v. Esposito, 38 A.3d 1, 5 (R.I. 2012)). The plaintiff’s
arguments therefore raise a question of contract interpretation, which requires that
we “attempt to ascertain the intent of the parties.” Morgan v. Bicknell, 268 A.3d
1180, 1183 (R.I. 2022) (quoting Woonsocket Teachers’ Guild, Local 951 v. School
Committee of City of Woonsocket, 117 R.I. 373, 376, 367 A.2d 203, 205 (1976)). If
the parties’ intention “‘can be clearly inferred from’ the terms and express language
of the contract,” then that intention governs. Id. at 1184 (quoting Woonsocket
Teachers’ Guild, 117 R.I. at 376, 367 A.2d at 205). If, however, a contract provision
is “reasonably susceptible of different constructions,” then it is ambiguous. Id.
(quoting Carney v. Carney, 89 A.3d 772, 776 (R.I. 2014)). “When a provision in a
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settlement agreement is ambiguous, * * * the practice of this Court is to adopt that
construction which is most equitable and which will not give to one party an
unconscionable advantage over the other.” Maccarone v. Maccarone, 108 A.3d
1053, 1057 (R.I. 2015) (quoting Janson v. Janson, 773 A.2d 901, 903 (R.I. 2001)).
“In the absence of ambiguity, the interpretation of a contract is a question of law.”
Morgan, 268 A.3d at 1184 (brackets omitted) (quoting Andrukiewicz v.
Andrukiewicz, 860 A.2d 235, 238 (R.I. 2004)).
Based upon our de novo review of the record, we find the marital settlement
agreement, as amended by the provision added to the decision pending entry of final
judgment, to be ambiguous with respect to its inclusion, or not, of survivor benefits
under defendant’s federal civilian pension. The agreement speaks in terms of “any
benefits such as COLAs and pre-retirement options attributable to her share,” yet it
omits any specific reference to survivor benefits. (Emphasis added.) We conclude,
therefore, that it is susceptible to two reasonable meanings and is ambiguous.
It thus becomes necessary “to adopt th[e] construction which is most equitable
and which will not give to one party an unconscionable advantage over the other.”
Maccarrone, 108 A.3d at 1057 (quoting Janson, 773 A.2d at 903). We begin our
analysis by “examin[ing] both the circumstances surrounding the development of
the ambiguous terms and the intentions of the parties.” DiPaola v. DiPaola, 16 A.3d
571, 577 (R.I. 2011) (quoting Flynn v. Flynn, 615 A.2d 119, 121 (R.I. 1992)). The
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parties acknowledge in the marital settlement agreement that, as of the date of that
agreement, plaintiff had been living in Rhode Island and defendant in Virginia for
sixteen years and that there had not been a “marital relationship” for eight years.
Consequently, the parties had been living separate and apart during the entire period
when defendant had been contributing to his federal civilian pension.
We also consider the transcript of the nominal divorce hearing, which was
held on July 2, 2018. At the hearing, plaintiff affirmed that she would be receiving
her marital share of any cost-of-living adjustments or early retirement benefits
associated with “the retirement accounts.” She did not mention any survivor
benefits, however. Moreover, during defendant’s direct examination, the following
exchange transpired:
“Q: You also understand with respect to the FERS plan,
your wife will be entitled to one-half [sic] of what
that pension would be worth as of today’s date.
“A: Yes.
“Q: So as you continue to work, yours continues to
grow, hers will end as of this date?
“A: Yes.”
The plaintiff made no attempt to cross-examine defendant or refute his testimony in
any way.
We also consider the significance of the calculation end date, which the trial
justice determined to be dispositive. Although the existence of the end date does not
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automatically foreclose the possibility that plaintiff retains an interest in any survivor
benefits, it is indicative of the parties’ intention that plaintiff’s interest in defendant’s
pension terminate as of June 30, 2018.
We next consider the significance of the sentence that the parties added to the
pension provision during the nominal divorce hearing on July 2, 2018, which reads:
“The [p]laintiff shall be entitled to receive any benefits such as COLAs and
pre-retirement options attributable to her share.” It is unclear whether the express
reference to benefits “such as COLAs and pre-retirement options” makes it more or
less likely that a survivor benefit is included. The provision is not just “reasonably
susceptible of different constructions,” Morgan, 268 A.3d at 1184, but indeed beset
with ambiguities. We have on occasion employed the Latin maxim “expressio unius
est exclusio alterius” for the “canon of construction holding that to express or include
one thing implies the exclusion of the other, or of the alternative.” Black’s Law
Dictionary 726 (11th ed. 2019); see, e.g., Ryan v. City of Providence, 11 A.3d 68,
75 (R.I. 2011). Because the agreement is ambiguous regarding whether plaintiff is
entitled to a share of any survivor benefits in defendant’s federal civilian pension,
we must adopt the construction of the agreement that is most equitable to the parties
in the case. Maccarone, 108 A.3d at 1057. This requires that we interpret the
provision in the context of the parties’ overall agreement, mindful of both the
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circumstances surrounding the development of the provision and the intentions of
the parties. Id.; DiPaola, 16 A.3d at 577.
Notwithstanding her statement about the plain language of the agreement, the
trial justice appears to have followed these requirements when she made the four
observations that anchored her analysis. First, the agreement “was negotiated over
eight months with very competent attorneys * * *.” Second, “the parties had been
separated for 15 years * * *.” Third, defendant’s entire federal civilian pension “was
earned during that separation * * *.” And fourth, the attorneys and parties knew this
information when drafting the agreement. These are factual findings of the trial
justice and are entitled to deference. See Maccarone, 108 A.3d at 1056.
As for plaintiff’s argument that the provision, if ambiguous, should be
construed against defendant, she has cited no case in which a court has applied this
rule of construction to a marital settlement agreement. Even if she had, whether
plaintiff’s proposed rule of construction applies to this case is another question
altogether. The defendant’s attorney presented to the Family Court the decision
pending entry of final judgment, to be sure, but the parties presented the agreement
as a joint exhibit during the nominal divorce hearing. As the trial justice noted, the
agreement was negotiated by the parties, with counsel, over an eight-month period.7
7
We also note that the trial justice made no finding as to which counsel was
responsible for preparing the agreement.
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Under these circumstances, we see no clear reason to conclude that defendant is the
sole drafter of the agreement, much less that it should be construed against
defendant.
With these observations in mind, and consistent with the holding of the Family
Court, it is our opinion that plaintiff’s interpretation of the ambiguous provision—
entitling her to a share of any survivor benefits in defendant’s federal civilian
pension—does not provide the most equitable construction of the agreement. See
DiPaola, 16 A.3d at 578. Rather, our de novo review of the marital settlement
agreement and the undisputed facts lead us to conclude that the most equitable
construction of the agreement does not entitle plaintiff to survivor benefits.
We are confronted in this case with a twenty-eight-year marriage during the
final sixteen years of which the parties lived separately in different states—plaintiff
in Rhode Island and defendant in Virginia. As they both acknowledged in the marital
settlement agreement, they have “not had a marital relationship since 2010[.]” On
July 2, 2018, they did execute said agreement, which purports “to adjust and settle
between themselves all property rights and obligations growing out of the marital
relationship * * *.”
At the nominal divorce hearing, also on July 2, 2018, the parties agreed to add
a provision to the agreement concerning any benefits attributable to plaintiff’s share
of defendant’s federal civilian pension “such as COLAs and pre-retirement options
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* * *.” The agreement was silent, however, on the issue of survivor benefits. The
trial justice found that the agreement “is a fair and equitable distribution of all of the
marital assets and debts, and it shall be incorporated but not merged with the Final
Judgment.”
The trial justice also found “that the language is very plain that there is no
survivorship, that all of [p]laintiff’s rights to [d]efendant’s pensions end on June
3[0], 2018.” Although we disagree as to the clarity of the agreement with respect to
survivor benefits, we are satisfied that the most equitable resolution, under these
circumstances, is to declare that such benefits, if any, remain with defendant.
Judicial Notice
Finally, we arrive at the plaintiff’s argument that the trial justice erred in
taking judicial notice of defense counsel’s experience litigating in the Family Court.
This argument appears to concern the trial justice’s observation that “[b]oth parties
at all times had counsel. In fact, they each had very good counsel.” Only certain
kinds of facts are capable of judicial notice. R.I. R. Evid. 201(b). Just because the
trial justice used the colloquialism, “[i]n fact,” before expressing her opinion of the
parties’ respective counsel, however, does not constitute judicial error.
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III
Conclusion
For the foregoing reasons, the judgment of the Family Court is affirmed.8 The
papers in this case may be remanded to the Family Court.
8
Our analysis is hampered by the failure of defendant/appellee to participate in this
appeal. He is unrepresented by counsel, has not filed any written submissions, and
indeed has been defaulted. It is the robust dialogue of appellate advocacy that tends
to sharpen issues and expose the meanings obscured in a party’s agreement.
Moreover, the record is silent with respect to the details of defendant’s federal
civilian pension. Facts that would be helpful to our analysis might include whether
the payee receives a reduced sum during his lifetime if he elects the survivor benefit
and if the election of survivor benefits can be made at any time during employment
or only at the time of retirement. We stress, therefore, that our holding herein is
predicated upon the unique circumstances of this case.
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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 Nancy Robayo v. Luis Robayo.
No. 2022-228-Appeal.
Case Number
(P 17-4447)
Date Opinion Filed March 12, 2024
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 Patricia K. Asquith
For Plaintiff:
Christopher M. Lefebvre, Esq.
Attorney(s) on Appeal
For Defendant:
Luis Robayo, pro se
SU-CMS-02A (revised November 2022)