                                                     Supreme Court

                                                     No. 2013-1-Appeal.
                                                     (P05-2770)


Stephen Carney, Jr.             :

        v.                      :

  Sandra Carney.                :




  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 Tel. 222-3258 of any typographical or other
  formal errors in order that corrections may be made before the opinion is
  published.
                                                                Supreme Court

                                                                No. 2013-1-Appeal.
                                                                (P05-2770)


            Stephen Carney, Jr.               :

                     v.                       :

              Sandra Carney.                  :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

        Justice Flaherty, for the Court. The defendant, Sandra Carney, appeals an order of the

Family Court in favor of the plaintiff, her former husband, Stephen Carney, Jr. 1 On February 26,

2014, 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 summarily be decided.

We have considered the record as well as the written and oral submissions of the parties,

conclude that cause has not been shown, and proceed to decide the appeal without further

briefing or argument. For the reasons set forth in this opinion, we affirm in part and reverse in

part the order of the Family Court, and we remand the case to that tribunal for further findings of

fact.




1
  We refer to the parties by their first names for clarity and convenience to the reader. No
disrespect is intended.


                                             -1-
                                                   I

                                          Facts and Travel

         On November 22, 2006, a justice of the Family Court entered final judgment on the

divorce between Stephen and Sandra Carney, ending a marriage of nearly seventeen years.

When final judgment entered, the couple were the parents of two boys, aged four and eight. The

parties had entered into a marriage settlement agreement (MSA), which the Family Court had

approved and incorporated by reference, but not merged, into the final judgment.            A dispute

over the interpretation of a particular paragraph of this agreement has led the parties to this

Court.

         At the time of divorce, the parties were joint owners of their home at 12 Starbrook Drive

in Barrington. Under the terms of the MSA, Stephen agreed to convey his interest in the marital

domicile to Sandra via quitclaim deed. In return, Sandra agreed that she would be responsible

for all costs associated with the house; she also agreed to refinance the property so that Stephen

would be released from any obligation on the promissory note financing the property and the

mortgage securing the note. Particular to the issues confronting us in this appeal, paragraph

seven of the MSA contained the following provision:

                “Further still it is agreed that the defendant shall pay to the plaintiff
                as equitable distribution the sum of $100,000.00 at the end of
                calendar year 2024. Provided however, in the event that the
                defendant/wife shall cohabit for more than sixty (60) consecutive
                days with a member of the opposite sex or, in the event she
                remarries she shall have the obligation to pay to the
                plaintiff/husband the aforementioned sum of $100,000.00 at that
                time. In the event that the sale price of former marital domicile,
                when sold should be less than $475,000.00 then it is agreed by and
                between the parties that the plaintiff/husband’s equitable
                distribution amount relative to this piece of property shall be




                                                -2-
               reduced by 50% of the difference between the sale price and the
               sum of $475,000.00.” 2

The MSA also included an “Enrichment Activities” provision which stated that “[t]he parties

shall be responsible on a pro rata basis, based upon their respective incomes for sporting

equipment/fees, school field trips, camps, enrichment lessons and tutorial services * * * .”

       In 2011, Sandra, after apparently tiring of maintaining such a large house, entered into a

purchase and sale agreement to sell the property and sold it on May 23, 2011, for $356,250. 3 On

June 30, 2011, Stephen filed a motion to enforce the MSA or, in the alternative, to adjudge

Sandra in contempt. In his motion, Stephen argued that Sandra had failed to comply with the

MSA because she did not pay the equitable distribution to him upon the sale of the former

marital domicile. Sandra then filed her own motion, in which she alleged that, in violation of the

MSA, Stephen had failed to pay alimony, contribute to the college education funds for their two

children, and cover expenses for child care and camp.

       After conducting a hearing, a justice of the Family Court issued an order on February 10,

2012, that disposed of several points of contention between the parties and outlined the

remaining issues, including those before us on appeal, for which the court needed either further

documentation or hearing. On May 30, 2012, the trial justice heard arguments on those issues.

After concluding that the parties would not be able to resolve their differences by agreement, the

trial justice interpreted paragraph seven of the MSA to mean that when the agreement was

executed, it was the intent of the parties that Sandra and the two children would remain in the

marital domicile and that the property would not be sold during the minority of the children.




2
 Notably, the couple’s youngest son will attain the age of twenty-two in the year 2024.
3
  Stephen employed several procedural maneuvers to prevent the sale of the former marital
domicile, all of which proved to be unsuccessful.


                                             -3-
         The trial justice then focused on the two triggering events that would provide for

immediate payment to Stephen, namely, if Sandra were to remarry or cohabit. The trial justice

also determined that the third provision of paragraph seven, which laid out a formula for

payment to Stephen in the event of the sale of the property, functioned as another triggering

event that would entitle Stephen to payment immediately. The trial justice reasoned that the

parties intended immediate equitable distribution in the event of a sale occurring before 2024

because it would have been illogical for them to assume that the value of the property would be

only $475,000 in 2024 “[g]iven what we know about real estate[.]” Next, the trial justice applied

the formula and concluded that the amount Sandra was to pay Stephen was one-half of the

difference between the sale price of $356,250 and $475,000, which would result in a payment to

Stephen of $59,375. The trial justice gave Sandra until September 2012 to produce that amount.

Finally, the trial justice concluded during the hearing that the responsibility for paying for the

children’s “enrichment activities” would be divided evenly between the parties. The trial justice

issued an order memorializing her findings on October 2, 2012. Sandra timely appealed to this

Court.

                                                II

                                      Standard of Review

         A marriage settlement agreement “that is not merged into a divorce judgment retains the

characteristics of a contract.” Riffenburg v. Riffenburg, 585 A.2d 627, 630 (R.I. 1991). “The

existence of ambiguity in a contract is a question of law.” Paul v. Paul, 986 A.2d 989, 993 (R.I.

2010) (citing Young v. Warwick Rollermagic Skating Center, Inc., 973 A.2d 553, 558 (R.I.

2009)). “[T]he holding of a trial court (including the Family Court) about the existence or

nonexistence of ambiguity in the terms of the contract is freely reviewable by this Court.” Id.




                                             -4-
(quoting Gorman v. Gorman, 883 A.2d 732, 738 n.8 (R.I. 2005)). Therefore, the trial justice’s

conclusions on questions of law are reviewed de novo. Beacon Mutual Insurance Co. v. Spino

Brothers, Inc., 11 A.3d 645, 649 (R.I. 2011) (citing International Brotherhood of Police Officers

v. City of East Providence, 989 A.2d 106, 108 (R.I. 2010)). Conversely, we afford deference to

the trial justice’s findings of fact and will disturb them only if she “misconceived the relevant

evidence or was otherwise clearly wrong.” Horton v. Horton, 891 A.2d 885, 888 (R.I. 2006)

(quoting Koutroumanos v. Tzeremes, 865 A.2d 1091, 1097 (R.I. 2005)).

                                               III

                                           Discussion

       On appeal before this Court, Sandra presses three arguments. First, she contends that the

trial justice erred when she determined that Sandra was required to pay Stephen when the

property was sold, and not in 2024. Second, Sandra maintains that the trial justice erred in

calculating the amount of money she owes to Stephen from the sale of the property. Finally,

defendant argues that the trial justice improperly modified the terms of the MSA when she

ordered the parties to equally share in the costs of extracurricular and child-enrichment activity

expenses.

                                                A

                                    Is the MSA ambiguous?

       Before this Court, Sandra argues that the trial justice misconstrued the language of the

MSA when she found paragraph seven to be ambiguous and when she ordered Sandra to pay

Stephen upon the sale of the property.       Although the trial justice did not use the term

“ambiguous” in her ruling, her analysis of the parties’ intent can lead to no other conclusion. To

the contrary, Sandra maintains that the language of paragraph seven states clearly and




                                             -5-
unambiguously that the equitable-distribution payment owed to Stephen is not to be disbursed

until 2024 unless either of the two triggering events occurs before then. Sandra supports this

contention by indicating that paragraph seven encompasses but two events that would accelerate

payment to Stephen prior to 2024, neither of which involves the sale of the property. Therefore,

Sandra reasons, she may sell the property whenever she wishes and, unless she remarries or

cohabits, is free from paying Stephen the equitable distribution set forth in the MSA until “the

end of calendar year 2024.”

       Conversely, Stephen argues that the language in the MSA about the timing of the

payment of the equitable distribution is ambiguous.         He maintains that because the MSA

provides for acceleration of the payment in two circumstances that are economically beneficial to

Sandra (cohabitation or remarriage), sale of the property also would provide an economic

benefit, and it therefore should be construed as a third triggering event.

       “A reviewing court has no need to construe contractual provisions unless those terms are

ambiguous.” A.F. Lusi Construction, Inc. v. Peerless Insurance Co., 847 A.2d 254, 258 (R.I.

2004). We have consistently held that a contract provision is ambiguous if it is “reasonably

susceptible of different constructions.”     Paul, 986 A.2d at 993 (quoting Andrukiewicz v.

Andrukiewicz, 860 A.2d 235, 238 (R.I. 2004)). We determine ambiguity by “view[ing] the

agreement in its entirety and giv[ing] to its language its ‘plain, ordinary and usual meaning.’”

Vickers Antone v. Vickers, 610 A.2d 120, 123 (R.I. 1992) (quoting Amica Mutual Insurance Co.

v. Streicker, 583 A.2d 550, 552 (R.I. 1990)). Such amphibology is not in the eye of the beholder

“[with] ambiguity lurk[ing] in every word, sentence, and paragraph in the eyes of a skilled

advocate * * * but whether the language has only one reasonable meaning when construed, not

in a hypertechnical fashion, but in an ordinary, common sense manner.” Paul, 986 A.2d at 993




                                              -6-
(quoting Garden City Treatment Center, Inc. v. Coordinated Health Partners, Inc., 852 A.2d 535,

542 (R.I. 2004)).

       After reviewing paragraph seven of the MSA, and after giving the terms employed their

plain and ordinary meanings, we are of the opinion that paragraph seven is susceptible of two

reasonable meanings and therefore is ambiguous. See Paul, 986 A.2d at 994. It would be

reasonable to so conclude because there are only two triggering events specified that would

accelerate the payment to Stephen and that any other discussion in the MSA about the

distribution, including the formula, would affect only the amount of the payment and not the

timing of its distribution. On the other hand, paragraph seven provides a distribution formula in

the event the property is sold, but lists no events or occurrences that would permit a sale.

Certainly, however, the term “when sold” appears to contemplate the possibility of a sale before

2024. Because the MSA does not specify when Sandra is to pay Stephen in the event of a sale,

one could reasonably conclude that Stephen would receive the equitable distribution upon the

sale of the property.   In our opinion, paragraph seven is not susceptible to merely “one

reasonable meaning” when read in a “common sense manner” and it is, therefore, ambiguous.

See Garden City Treatment Center, Inc., 852 A.2d at 542 (emphasis omitted) (quoting Textron,

Inc. v. Aetna Casualty and Surety Co., 638 A.2d 537, 541 (R.I. 1994)).

       Once a contract has been found to be ambiguous as a matter of law, the intent of the

parties must be determined. This is a finding of fact. See O’Connell v. Finlay, 583 A.2d 546,

549 (R.I. 1990). “In construing an ambiguous contract provision, it is necessary to examine both

the circumstances surrounding the development of the ambiguous terms and the intention of the

parties.” Flynn v. Flynn, 615 A.2d 119, 121 (R.I. 1992). According to Rule 52(a) of the Family

Court Rules of Procedure for Domestic Relations, the court “shall find the facts specially and




                                            -7-
state separately its conclusions of law.” Cf. Connor v. Schlemmer, 996 A.2d 98, 109 (R.I. 2010)

(citing Rule 52(a) of the Superior Court Rules of Civil Procedure and the similar requirement of

the Superior Court to make findings of fact). Here, the trial justice apparently assumed that it

was the intent of the parties that their children remain in the marital domicile until 2024, when

their youngest child would turn twenty-two years old. The trial justice also concluded that a

logical reading of the provision would require an immediate payment to Stephen if the property

was sold because the parties would not have believed that the property would be worth less than

$475,000 in 2024, given that real estate historically appreciates. Even though we defer to the

trial justice’s findings of fact, it is our opinion that the trial justice did not make sufficient factual

findings on the record with respect to the intent of the parties, and the matter consequently

cannot be accorded deference. Therefore, we remand the case to the Family Court to make

findings of fact about the intent of the parties at the time they entered into the agreement with

respect to the timing of the payment of the equitable distribution. In so doing, the trial justice

may hear additional testimony or supplement the record with further documentation.

                                                    B

                          The Calculation of the Equitable Distribution

        Secondly, Sandra argues that the trial justice erred in her calculations about the amount

that defendant owed to plaintiff when the house was sold. The trial justice determined that

Sandra was indebted to Stephen in the amount of $59,375, which is one-half of the difference

between the sale price and $475,000. Sandra maintains that the unambiguous language of the




                                                -8-
MSA can mean only that the amount owed to Stephen is $40,625. 4 On this point, we agree with

defendant that the trial justice erred in her calculations.

        The MSA says that Sandra will pay Stephen the sum of $100,000 as his equitable

distribution for the marital domicile in 2024. Next, the MSA provides that, should the sale price

of the property be for less than $475,000, Stephen’s equitable distribution “shall be reduced by

50% of the difference between the sale price and the sum of $475,000.00.” The trial justice

stated that the “only logical interpretation and plain meaning” of that language would be to

deduct the sale price of $356,250 from $475,000 and take fifty percent of the resulting number,

which produces $59,375. We disagree. “When contract language is clear and unambiguous,

words contained therein will be given their usual and ordinary meaning and the parties will be

bound by such meaning.” Singer v. Singer, 692 A.2d 691, 692 (R.I. 1997) (mem.). In our

opinion, the trial justice was correct in her conclusion that the language is unambiguous.

However, we disagree with her application of the formula expressed by that unambiguous

language. See McCulloch v. McCulloch, 69 A.3d 810, 829-30 (R.I. 2013).

        In our view, the only reasonable interpretation of the contractual provision is that

Stephen’s equitable distribution amounts to $40,625. That sum is arrived at by taking fifty

percent of the difference between the sale price ($356,250) and $475,000, the result of which is

$59,375. At that point, the formula is clear that the $100,000 is reduced by $59,375. The

resulting total is $40,625. The trial justice appears to have simply divided the difference in half

which overlooks the final step in the calculation. We have consistently held that “every word of

the contract should be given meaning and effect; an interpretation that reduces certain words to



4
  We note that in the briefings filed with this Court, Stephen acknowledges defendant’s
argument, but does not respond or provide a counterargument to Sandra’s contention. However,
during oral argument, Stephen maintained that the trial justice correctly applied the formula.


                                               -9-
the status of surplusage should be rejected.” Andrukiewicz, 860 A.2d at 239. Therefore, the trial

justice erred in her calculation, and Sandra is obligated to pay to Stephen the amount equaling

$40,625 as his equitable distribution for the property. The timing of the payment, however, is

dependent upon the trial justice’s findings of fact following remand.

                                                C

                                 The Modification of the MSA

       Finally, defendant contends that the trial justice erred when she ordered the parties to

share equally in the payment of extracurricular activities and child-care expenses because this

order improperly modified the terms of the MSA. 5 However, it is our opinion that this issue has

not been properly preserved for our review. It is well settled under our raise-or-waive rule that

“issues that are raised for the first time on appeal will not be reviewed by this Court.” DeAngelis

v. DeAngelis, 923 A.2d 1274, 1280 (R.I. 2007). During the hearing on May 30, the trial justice

said on the record that the parties had reached an agreement that the enrichment activities would

be split by Sandra and Stephen equally. Sandra did not object to the trial justice’s open-court

assertion that the parties had agreed to share in these costs equally, nor was any objection raised

when an order to that effect was entered. Consequently, this issue has been waived, and we will

not address it on appeal.

                                                IV

                                           Conclusion

       For the reasons set forth in this opinion, we affirm in part and reverse in part the order of

the Family Court. We remand this case to the Family Court to allow the trial justice to make

findings of fact with respect to the intent of the parties regarding when Stephen should receive

5
  The MSA says that such expenses are to be divided pro rata, based on the respective incomes of
the parties.


                                            - 10 -
the equitable distribution in the event of a property sale before 2024. The record may be

returned to that tribunal.




                                        - 11 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Stephen Carney, Jr. v. Sandra Carney.

CASE NO:              No. 2013-1-Appeal.
                      (P05-2770)

COURT:                Supreme Court

DATE OPINION FILED: April 25, 2014

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Providence County Family Court

JUDGE FROM LOWER COURT:

                      Associate Justice Laureen A. D’Ambra

ATTORNEYS ON APPEAL:

                      For Plaintiff: Cristine L. McBurney, Esq.

                      For Defendant: Barbara E. Grady, Esq.
