State v. Judith Rosenbaum ( 2015 )

Supreme Court
No. 2014-17-C.A.
No. 2014-18-C.A.
(N2/09-161A)
State :
v. :
Judith Rosenbaum. :
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 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2014-17-C.A.
No. 2014-18-C.A.
(N2/09-161A)
State :
v. :
Judith Rosenbaum. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court.
“And my more-having would be as a sauce
To make me hunger more; that I should forge
Quarrels unjust against the good and loyal,
Destroying them for wealth.” 1
The defendant, Judith Rosenbaum, appeals from a judgment of the Superior Court
denying her request to reduce the amount of her monthly restitution obligation. The defendant
was ordered to pay $95,000 in restitution to the victim of a crime, in monthly installments of
$500; she now claims that she is able to pay only $237 2 per month and that, therefore, her
payments should be reduced by $263.
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
1
William Shakespeare, Macbeth, act 4, scene 3.
2
In defendant’s motion to reduce her restitution payments, she argued for a reduced amount of
$237 per month. On appeal, she has changed this amount to $235.
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briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court.
I
Facts and Procedural History
On June 23, 2009, defendant was charged by criminal information with four counts of
uttering or delivering checks in an amount exceeding $1,500 with intent to defraud, in violation
of G.L. 1956 § 19-9-25 (counts 1-4); one count of misappropriating property, in violation of G.L.
1956 § 11-41-11.1 (count 5); and one count of obtaining goods valued at more than $500 by false
pretenses with intent to cheat or defraud, in violation of § 11-41-4 and § 11-41-5 (count 6). The
charges stemmed from defendant having issued and then stopped payment on several checks
paid to James Sangiovanni, d/b/a Design House Bath and Kitchen Studio, in connection with a
$129,592 home renovation that Sangiovanni performed for defendant and her husband, on
property that the couple owned in Portsmouth, Rhode Island. 3
The defendant pled nolo contendere before a Superior Court justice to counts 1, 5, and 6;
the remaining counts were dismissed by the state. On August 10, 2010, defendant was sentenced
to two years suspended with two years of probation on count 1, and seven years suspended with
seven years of probation on counts 5 and 6, and she was ordered to pay $95,000 in restitution
relating to count 5 (misappropriation of property, to wit, custom kitchen cabinets). The issue of
payment of restitution was referred to a Superior Court magistrate. In January 2011, the
magistrate set defendant’s monthly restitution payments at $500. The defendant submitted $500
payments in February, March, April, June, August, September, October, and December 2011, as
3
This property was subsequently foreclosed upon.
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well as an additional $1,000 payment in October 2011. 4 In 2012, defendant made $1,000
payments in January, May, and August, as well as a $500 payment in September and a $2,000
payment in December.
On January 17, 2013, defendant appeared before the magistrate on a motion to reduce her
monthly payments. 5 The defendant argued that her payments should be reduced to $237, which
was the amount that she received monthly from a pension benefit. She asserted that the
remainder of her income consisted of $907 per month in social security benefits, and that it
would be a violation of federal social security law to require her to allot any portion of this
money to her restitution obligation.
During the hearing on January 17, 2013, defendant testified that her husband had lost his
job as a physician in June 2012 and that, therefore, her financial circumstances had changed
since she was originally ordered to pay $500 per month in restitution. The majority of this
hearing consisted of defendant’s testimony relating to a financial statement that was introduced
into evidence. This testimony revealed that she and her husband were apparently attempting to
maintain their erstwhile lifestyle, one which their income no longer supported.
The defendant disclosed at the hearing that she and her husband resided in a waterfront
house located in Portsmouth, Rhode Island, valued at $950,000. 6 Although they had purchased
this house in the early 1990s for approximately $600,000, the mortgage balance as of January
2013 was $1,300,000; thus, after owning the property for roughly twenty years, they had accrued
4
Additionally, a settlement check in the amount of $12,742.51 was released to Sangiovanni in
July 2011 and credited as partial payment of restitution.
5
The defendant’s motion to reduce her monthly restitution payments was also dated January 17,
2013.
6
The defendant’s waterfront residence in Portsmouth was not the same home in which the
kitchen cabinets had been installed.
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negative equity in the amount of $350,000. 7 The financial statement revealed that the monthly
mortgage payment for this property was $8,850, with a monthly property tax obligation of
$1,542. She and her husband, however, were more than one year in arrears on their payments
and were currently in the midst of foreclosure proceedings. 8 She testified that they were not
currently making their monthly mortgage payments and that the bank was paying their property
taxes.
The defendant’s financial statement also revealed that she and her husband owned two
cars, a 2007 Toyota Highlander and a 2008 Toyota Prius, and were making monthly payments of
$865 and $680, respectively. The loans on these vehicles showed balances of $32,000 and
$21,000, with no equity in either car. The defendant testified that her husband drove the Prius
and that she had previously been using the Highlander but now had an “incredible difficulty
driving” because of a back injury. 9 In addition to the vehicle loan payments, defendant and her
husband spent $174 per month on car insurance and $256 per month on gas.
The defendant’s additional monthly expenditures included $804 on homeowner’s
insurance; $745 on life insurance; $200 on clothing and shoes; $150 on cable television/internet;
and $100 on charitable donations. Additionally, she and her husband owed $11,000 on a line of
credit with Harris Furs and had been making $600 monthly payments on this account until her
husband became unemployed. When asked at the hearing whether defendant had considered
selling some of the furs so that she could pay restitution, she admitted that this “was a
7
According to defendant, she and her husband invested a significant amount of money into
“fixing up the house,” which renovations included installing an indoor pool, because it was “the
only rehab [defendant] could use” after she had been involved in a “serious car accident.”
8
According to a document admitted into evidence at the hearing, defendant and her husband
were $457,877.49 in arrears on their mortgage as of June 29, 2012.
9
When asked at the hearing, “[w]hen was the last time you drove the [Highlander]?” defendant
responded, “[i]t was last week for a distance of five minutes. * * * I don’t drive long distances
* * * .”
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possibility.” The defendant did not indicate that she had seriously considered selling the
Highlander, canceling her cable subscription, or reducing her monthly expenditures on charity,
clothing, or shoes 10 in order to pay her restitution obligation. She also testified that she owned
jewelry but had not thought about selling any of it. 11
At the conclusion of defendant’s testimony, the magistrate issued a bench decision
denying defendant’s motion to reduce her monthly restitution payments and ordering her to
continue making monthly payments of $500. 12 The magistrate found that defendant had failed to
“present[] any indication to the court that [she was] financially unable to make [the restitution]
payments” without dipping into her social security funds. The magistrate noted that defendant
was paying nearly $900 per month on a vehicle that she barely used, and that her expenditures on
cable television, charity, clothing, and shoes were resources that could be allocated toward her
restitution obligation. Additionally, the magistrate noted that defendant had not presented
evidence regarding the value of her assets in personal property, such as her jewelry or the
furnishings in her “million dollar home.” An order reflecting the magistrate’s decision was
entered on February 1, 2013, and defendant appealed the matter to the Superior Court.
The defendant made two payments of $500 in March and May of 2013 and then moved
on May 21, 2013 to stay the restitution order pending appeal. The magistrate denied this motion
and ordered defendant to pay $2,000 by May 28, 2013, and to continue to pay $500 per month
thereafter. On May 30, 2013, a justice of the Superior Court entered an order that stayed the
10
When asked about her expenditure on clothing and shoes, defendant stated: “I[] had to replace
my shoes because I can’t even wear heels. I can’t wear even boots with heels because it is
impossible for me to walk.”
11
The defendant explained: “I gave a lot of my jewelry to my youngest daughter because she
didn’t have money at all.”
12
The magistrate also denied a motion by the state to increase defendant’s monthly restitution
payments to $1,000.
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previous order pending a hearing on June 6, 2013, on the condition that defendant pay $1,000 by
9:30 a.m. on May 30, 2013. The defendant complied with this order.
A hearing was held in Superior Court on June 6, 2013, on the appeal of the magistrate’s
decision denying defendant’s motion to reduce her restitution payments. The hearing justice
noted that she had reviewed the transcript of the previous hearing before the magistrate, as well
as the filings of defendant and the state. She then explained that the standard of review for this
matter was set forth in G.L. 1956 § 42-35-15, which was a “very deferential standard[] to the
decision of * * * the magistrate as to questions of fact.” The hearing justice further explained
that, under this limited standard of review, factual findings would be overturned if clearly
erroneous, and issues of law would be reviewed de novo.
The defendant argued that the magistrate had erroneously concluded that she had
sufficient assets, aside from her social security benefit, to pay $500 per month. The defendant
also reminded the court that her husband was not obligated to pay restitution and, therefore, that
his assets could not be counted toward defendant’s ability to make the required payments. The
state, for its part, argued that defendant had access to numerous assets that could be liquidated,
and that she could easily reallocate some of the funds she was spending on unnecessary expenses
in order to satisfy her restitution obligation.
The hearing justice began her bench decision by noting that defendant had borne the
burden of proof in seeking to show that she was unable to make the $500 monthly payments, and
that she had “willfully failed to meet” this burden. Next, the hearing justice briefly summarized
the potential areas that could yield additional funds for the payment of restitution, including the
furs, the Highlander, insurance on the Highlander, cable television, life insurance, clothing,
shoes, and charitable donations. The hearing justice also noted that defendant had
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“acknowledged being in possession of numerous items of jewelry,” and that “it was her burden
to establish that that jewelry could not be sold and to establish the value and what amount of
money could be yielded from that.” Similarly, defendant had failed to account for the
furnishings inside her home. The hearing justice also noted that defendant had failed to provide
any tax returns relating to years after 2007, which “further mudd[ied] the record” as to her
potential assets. Accordingly, the hearing justice denied defendant’s appeal. She also vacated
the previously imposed stay and ordered defendant to pay the additional $1,000 pursuant to the
magistrate’s order. 13 Judgment reflecting the hearing justice’s decision was entered on October
1, 2013, and defendant filed a timely appeal. 14
II
Standard of Review
General Laws 1956 §§ 8-2-11.1(e) and 8-2-39(f) provide that final orders of the Superior
Court entered in a proceeding to review an order of a magistrate may be appealed to the Supreme
Court. On appeal, this Court will not disturb the factual determinations of the Superior Court
justice unless he or she made clearly erroneous findings or misconceived or overlooked material
evidence. See Wilby v. Savoie, 86 A.3d 362, 372 (R.I. 2014). The hearing justice may “draw
inferences from the testimony of witnesses, and such inferences, if reasonable, are entitled on
review to the same weight as other factual determinations.” Rhode Island Mobile
Sportfishermen, Inc. v. Nope’s Island Conservation Association, Inc., 59 A.3d 112, 118 (R.I.
13
The defendant made payments of $1,000 in June, August, October, and December 2013. In
2014, she paid $500 in April and May, $1,000 in February, August, and October, and $1,500 in
September. According to the Superior Court docket and the parties’ assertions during oral
arguments before this Court, defendant has not made any restitution payments since October
2014.
14
The defendant filed two notices of appeal in this case: one from a June 6, 2013 order denying
defendant’s appeal and confirming the magistrate’s decision, and one from the October 1, 2013
final judgment. These two appeals were consolidated by this Court.
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2013) (quoting Cahill v. Morrow, 11 A.3d 82, 86 (R.I. 2011)). Furthermore, we shall “accord
great weight to a [hearing] justice’s determinations of credibility, which, inherently, are the
functions of the trial court and not the functions of the appellate court.” Wilby, 86 A.3d at 372
(quoting Cullen v. Tarini, 15 A.3d 968, 976 (R.I. 2011)). “We will, however, review questions
of law de novo.” Id.III
Discussion
On appeal, defendant argues that the findings of the magistrate and the hearing justice
“were clearly erroneous in view of the reliable, probative, and substantial evidence on the whole
record * * * .” According to defendant, the financial statement introduced into evidence at the
hearing showed that defendant’s only source of income was from her social security and pension
benefits, and she contends that this proved her inability to pay more than the amount of the
pension benefit. The defendant avers that “there was no evidence in the record that established
that [she] had such other assets that would fund $500.00 per month in restitution,” and that most
of the monthly expenses listed on the financial statement were being paid by her husband.
The state argues that there was “ample evidence in the record to support” the decisions of
the magistrate and the hearing justice. The state asserts that the magistrate and the hearing
justice did not err in concluding that defendant had sufficient sources of income, aside from her
social security benefit, to make $500 monthly restitution payments. The state also notes that
“defendant’s continued expenditure of money to litigate the restitution obligations she incurred
as a result of her [nolo contendere] plea would seemingly belie her claim that she worries
continually about having money to feed herself and her husband.”
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We have previously held that a defendant who claims an inability to comply with a
restitution order bears the burden of proving that he or she has made sufficient efforts to acquire
the necessary funds. See State v. LaRoche, 883 A.2d 1151, 1155 (R.I. 2005). We are convinced
that the hearing justice did not err in determining that the defendant has failed to meet this
burden of proof. As described above, her testimony revealed numerous assets that could
potentially be liquidated and significant expenses that could be reduced in order to direct more
funds toward her restitution obligation. When asked about these expenses and assets, she
responded elusively, at no time presenting the court with evidence that she had made a good-
faith effort to procure the additional $263 that was purportedly missing from her monthly budget.
Similarly, she now makes a vague claim that her husband is paying her monthly expenses, but
she has not supported this assertion with any evidence. Indeed, the financial statement upon
which she relied below does not indicate how she is paying any of her enumerated expenses. 15
Additionally, she failed to provide the court with tax returns for any years after 2007, despite
being instructed to do so on January 25, 2011; nor did she provide any documents to support the
various expenses listed on her financial statement. After reviewing the record of this case, we
think it is clear that the defendant has patently failed to meet her burden of proving an inability to
maintain payments of $500 per month.
15
Furthermore, it became apparent at the hearing that the financial statement was not entirely
accurate. Although the financial statement was dated and notarized on January 17, 2013 and
included the expenses of a mortgage payment, property taxes, and an installment payment to
Harris Furs, defendant revealed at the hearing that she and her husband were not actually making
payments on any of these obligations.
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IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
The record of this case shall be returned to the Superior Court.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: State v. Judith Rosenbaum.
CASE NO: No. 2014-17-C.A.
No. 2014-18-C.A.
(N2/09-161A)
COURT: Supreme Court
DATE OPINION FILED: April 17, 2015
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Chief Justice Paul A. Suttell
SOURCE OF APPEAL: Newport County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Judith C. Savage
General Magistrate Patricia L. Harwood
ATTORNEYS ON APPEAL:
For State: Jane M. McSoley
Department of Attorney General
For Defendant: Joseph F. Hook, Esq.