Terry Ann Smith v. Andrew Smith ( 2022 )

Supreme Court
No. 2021-42-Appeal.
(P 14-2875)
Terry Ann Smith :
v. :
Andrew Smith. :
ORDER
This case came before the Supreme Court on February 2, 2022, 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 appeal may be decided without further briefing or argument. For
the reasons set forth in this order, we affirm the order of the Family Court.
The defendant, Andrew Smith, appeals pro se from a December 3, 2020
Family Court order (1) directing that XYZAS7, LLC be added as an indispensable
party to this matter; (2) determining that defendant attempted to circumnavigate
prior orders of the Family Court by transferring property located at 1703 Pontiac
-1-
Avenue in Cranston, Rhode Island (the property), to himself for a nominal amount;
and (3) directing that the transfer of the property be set aside.1
This is defendant’s ninth appeal from the divorce proceedings in the Family
Court in this matter. The factual background and procedural history of the divorce
and property dispute that gave rise to the instant appeal have already been set forth
in this Court’s previous decisions. Smith v. Smith, 207 A.3d 447 (R.I. 2019) (Smith
I); Smith v. Smith, 252 A.3d 246 (R.I. 2021) (mem.) (Smith II).
After reviewing the record, we conclude that, before the Family Court,
defendant failed to object to the joinder of XYZAS7, LLC as an indispensable party,
and that he in fact agreed to it. Accordingly, this issue is waived, and we will not
consider it on appeal. See In re J.T., 252 A.3d 1276, 1282 (R.I. 2021) (explaining
that, “in accordance with this Court’s longstanding ‘raise-or-waive’ rule, if an issue
was not properly asserted, and thereby preserved, in the lower tribunals, this Court
will not consider the issue on appeal”) (quoting Selby v. Baird, 240 A.3d 243, 246
n.9 (R.I. 2020)).
1
In his submissions and argument before this Court, defendant attempts to assert
additional claims of error. However, the only matter properly before this Court is
defendant’s appeal of the directives of the December 3, 2020 order of the Family
Court. Any other assignments of error advanced by defendant are unrelated to the
instant appeal, have already been decided by this Court, and/or fail to state a claim
upon which relief can be granted.
-2-
As to the remaining issues advanced by defendant on appeal, we conclude that
they have already been decided in his previous appeals to this Court. This Court has
already affirmed the Family Court’s finding that the property in question is marital
in nature. Smith II, 252 A.3d at 249. We have also recognized the Family Court’s
authority to set aside the fraudulent conveyance of the property when defendant
attempted to convey the property to his friend for the consideration of one cent. Id.
at 247, 249 (holding that the defendant’s reliance on Britt v. Britt, 119 R.I. 791, 383
A.2d 592 (1978), “is misplaced; * * * [‘]the Family Court [has] the authority to make
assignments of property in divorce proceedings[,]’” including setting aside the
fraudulent conveyance of property) (quoting Brierly v. Brierly, 431 A.2d 410, 415-
16 (R.I. 1981)).
Here, the trial justice found that XYZAS7, LLC is not a bona fide purchaser
for value, the purported consideration being one dollar and the defendant being the
sole owner of the limited liability company. Again, we will not disturb that finding
on appeal. See Boschetto v. Boschetto, 224 A.3d 824, 828 (R.I. 2020) (“This Court
‘will not disturb findings of fact made by a trial justice * * * in a divorce action
unless he or she has misconceived the relevant evidence or was otherwise clearly
wrong.’”) (quoting Vieira v. Hussein-Vieira, 150 A.3d 611, 615 (R.I. 2016)).2
2
We pause to recognize that the trial justice displayed exceptional judicial
temperament when faced with a litigant who is extraordinarily defiant in the face of
court orders.
-3-
For the reasons set forth herein, we affirm the order of the Family Court. The
papers may be returned to the Family Court with instructions that the directives of
the December 3, 2020 order relative to the sale of the property be implemented
forthwith. Should any other appeals to this Court be filed prior to the sale and
distribution of the sale proceeds, then this Court may, upon motion, consider lifting
the automatic stay implemented pursuant to Rule 62 of the Family Court Rules of
Domestic Relations Procedure. See McDonough v. McDonough, 962 A.2d 47, 54-
55 (R.I. 2009) (noting that “there are various exceptions to [the] general rule” that
Family Court proceedings are stayed pending the outcome of an appeal).
th
Entered as an Order of this Court this 16 day of February, 2022.
By Order,
/s/ Debra A. Saunders, Clerk
__________________________
Clerk
-4-
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
ORDER COVER SHEET
Title of Case Terry Ann Smith v. Andrew Smith.
No. 2021-42-Appeal.
Case Number
(P 14-2875)
Date Order Filed February 16, 2022
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Source of Appeal Providence County Family Court
Judicial Officer from Lower Court Associate Justice Patricia K. Asquith
For Plaintiff:
Jesse Nason, Esq.
Attorney(s) on Appeal
For Defendant:
Andrew Smith, Pro Se
SU-CMS-02B (revised June 2020)