                                                          Supreme Court

                                                          No. 2013-236-Appeal.
                                                          (N07-8)


    Anne duPont Corbin               :

             v.                      :

Richard Beverley Corbin, III.        :




NOTICE: This opinion is subject to formal revision before publication in the
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                                                                   Supreme Court

                                                                   No. 2013-236-Appeal.
                                                                   (N07-8)


              Anne duPont Corbin                 :

                        v.                       :

         Richard Beverley Corbin, III.           :


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

                                            OPINION

          Justice Flaherty, for the Court. This case came before the Supreme Court on appeal by

the defendant, Richard Beverley Corbin, III (Bev), from an order of the Family Court on two

post-final-judgment motions filed by the plaintiff, Anne duPont Corbin. 1             The defendant

contends that the trial justice erred when she determined that the post-employment compensation

that he received from his employer was marital property and therefore her award of 50 percent of

it to Anne was also error. Alternatively, the defendant maintains that, should this Court affirm

the trial justice’s findings with regard to the post-employment compensation, then in that case

the fee that he paid to an attorney for negotiating that compensation should be considered marital

debt, of which Anne should pay half. Additionally, the defendant argues that the trial justice

erred when she awarded counsel fees to Anne for her prosecution of a motion to modify child

support, after she made a specific finding that the defendant did not adequately notify Anne

when he regained employment. For the reasons set forth in this opinion, we affirm the judgment

of the Family Court.

1
    To avoid confusion, we will refer to the parties by their first names. No disrespect is intended.


                                                  -1-
                                                I

                                       Facts and Travel

       The parties were married on September 27, 1997. Two children and a decade later, Anne

filed for divorce.   While divorce proceedings progressed, the parties pursued settlement

negotiations that resulted in the signing of a property settlement agreement (PSA) 2 on January 9,

2009. The PSA was incorporated by reference, but not merged, into the Family Court final

judgment dated April 9, 2009. Thereafter, both parties filed several post-judgment motions, two

of which are the subject of this appeal. After numerous hearings on the various motions were

conducted over an extended period of time, the trial justice issued her decision on April 16,

2013, and entered her final order on February 17, 2014. In her seventy-page decision, among

other grants and denials, the trial justice granted Anne’s motion to modify child support, awarded

her counsel fees, and granted her motion to compel specific performance and/or to adjudge Bev

in contempt regarding paragraph 7(E) of the PSA, awarding Anne 50 percent of the

$138,937.29 3 amount Bev received from his former employer, Wells Fargo, upon his

termination.

                                       PSA Negotiations

       In December 2008, while Bev was bargaining with his employer, he also was negotiating

the terms and conditions of a PSA with Anne. On December 30, 2008, after Anne’s counsel

provided Bev’s divorce counsel with a draft PSA, Bev’s divorce counsel responded, proposing

various changes. Significantly, counsel proposed a change to paragraph 7(E) explaining:




2
  The parties often refer to this agreement as the marriage settlement agreement, i.e., the MSA.
For purposes of accuracy and consistency, we shall refer to this agreement as the property
settlement agreement, i.e., the PSA.
3
  This was the sum after deductions for taxes.


                                              -2-
               “This paragraph was not discussed and is unacceptable; as you are
               aware, Kirk v. Kirk has specifically excluded from division in a
               divorce the recovery of damages for future earnings which exceed
               the duration of the marriage; any claim which Bev may receive
               (which is apparently highly speculative at this point) is in lieu of
               future earnings, and will be counted as income for child support
               purposes but is not divisible as a marital asset. This is
               distinguishable from the economic benefits earned by Anne at
               Square Mile, all of which were earned during the marriage, but are
               deferred in terms of payment. Therefore, subparagraph (e) should
               be excluded.”

Paragraph 7(E) of the final PSA, which was executed on January 9, 2009, articulated:

                       “E. Husband’s Wells Fargo Claim. The Husband has a
               claim against his prior employer, Wells Fargo. In the event the
               claim is settled and the Husband receives any settlement sum as a
               result of said claim, for any work performed by him for Wells
               Fargo prior to the entry of the Final Judgment of Divorce in this
               matter, the Husband shall pay to the Wife forty (40%) percent of
               the settlement, net any taxes and litigation expenses.”

Additionally, paragraph 10(A) declared, “[a]t such time as the Husband obtains employment, he

shall notify the Wife and the parties shall calculate the appropriate child support sum based upon

the parties’ then respective incomes and the Child Support Guidelines and visitation travel

expenses.”

                             Bev’s Employment with Wells Fargo

       In June 2006, Bev entered into a two-year agreement as an at-will employee with Acordia

RE, Inc., a division of Wells Fargo, with a start date of July 17, 2006, and an annual salary of

$175,000. In addition, he signed a two year nonsolicitation agreement with Acordia. A week

later, he signed another document; this one contained a one-year nonsolicitation clause. 4




4
  Paragraph VIII of the subsequent agreement articulated that “[t]his Agreement supersedes any
prior written or verbal agreements pertaining to the subject matter herein.” Effectively, this
statement nullified the prior two year noncompete agreement.


                                               -3-
       By June 2008 problems began to develop between Bev and Wells Fargo, and as of July

2008, his initial two year employment agreement with Acordia was over. By this time, Bev had

engaged the services of an employment attorney to advise him on his rights as an employee.

       In August 2008 Bev was assigned to work under a new supervisor in another Wells Fargo

affiliate. Bev testified that his new supervisor was very hostile to him and made it clear to him

that his job was in jeopardy due to his poor performance. Despite those admonitions, Bev

received an offer of continued employment in a letter dated August 19, 2008. Nonetheless,

conversations regarding the offer of continued employment did not go very well and by

September 2008, the parties were unable to come to any sort of agreement as to Bev’s continued

employment at Wells Fargo. Consequently, Bev engaged in the Wells Fargo dispute resolution

process.

       To begin that process, Bev sent an email to a Wells Fargo department head on September

17, 2008, requesting a review of his performance and inquiry of the department head about his

“fair compensation” for, significantly, 2007 and 2008. In a follow-up email sent to a Wells

Fargo human resources employee on September 26, 2008, Bev maintained that he was seeking to

be compensated “fairly” for his work. Shortly thereafter, Bev was placed on administrative leave

with pay. About a month later, Bev was terminated via a phone call received from the human

resources department.

       Bev then emailed another Wells Fargo human resources employee, again inquiring about

the dispute resolution process determination of his compensation for 2007 and 2008. In her

response, the human resources employee indicated that the results of the dispute resolution

process had already been communicated on the telephone to him, that the inquiry did not

substantiate his claims, and that he had been paid what was owed to him in compensation for




                                              -4-
2007 and 2008. Shortly thereafter, the same human resources employee sent Bev a copy of a

departure agreement and release of claims. As part of the agreement, Bev would receive the sum

of $175,000.

       Bev testified that his main concern with the departure agreement was how many

nonsolicitation agreements would be incorporated as part of the departure agreement.           He

maintained that one nonsolicitation agreement provided for a one-year term while another

provided for two years. He claimed that he was concerned because the firm, in return for his

promise not to compete against it for two years, would be compensating him with only one

year’s salary.

       In response to the receipt of the departure agreement, Bev’s employment attorney sent

Wells Fargo’s senior counsel a letter on December 22, 2008. The letter summarized Bev’s

tumultuous discharge from Wells Fargo and demanded that Wells Fargo provide Bev with the

opportunity to understand the departure agreement. If not provided with that opportunity, then

Bev would have “no choice but to bring suit for the full amount he is owed.” The senior counsel

sent Bev’s employment attorney a response letter rejecting his claims and extending the deadline

for the execution of the departure agreement until January 16, 2009. Through counsel, Bev later

corresponded that he was “willing to resolve this matter on terms very similar to those that Wells

Fargo ha[d] proposed.” Attached to the email were suggested changes to paragraphs 4(a), 9, and

10 of the departure agreement.

       On January 21, 2009, after the amount to be paid to Bev in the departure agreement had

been negotiated from $175,000 to $218,000, and after it was specified that the one-year

nonsolicitation agreement would be incorporated, Bev signed the departure agreement. On

February 4, 2009, Wells Fargo sent Bev’s employment attorney the fully executed departure




                                              -5-
agreement, along with a check in the amount of $138,937.29. The check and the departure

agreement were mailed by the attorney to Bev on March 4, 2009. Bev testified that he did not

deposit the check when he received it because he “did not know what [he] wanted to do with the

money at the time” and that “[a]ll the banks * * * were failing.” It is significant, however, that

between January 2009 and May 2009, he did deposit a considerable sum of money, $175,000, in

his bank account. Those funds came from Anne, who remitted that sum representing his share of

the proceeds derived from the sale of their home.

                         Bev’s Employment with EquiSales Associates

       In April 2009, Bev began working for EquiSales. He received his first paycheck from

that company the following month. Anne contended that Bev failed to inform her of his securing

new employment, but Bev testified that Anne had received adequate notice of his new

employment through the report of the guardian ad litem, through the children’s therapist, and

through his own divorce counsel. Specifically, the guardian ad litem’s report indicated that

“[d]efendant informed the [g]uardian that he was now working for a consulting company * * *.”

                                      Family Court Decision

       After several days and many hours of hearings, the Family Court rendered its decision in

April 2013. In her seventy-page decision, the trial justice made a number of findings of fact.

Significantly, the trial justice found that Bev

               “believed that he was entitled to additional compensation for work
               performed during 2007 and 2008; [Bev’s] Post Final Judgment
               protests that his dispute with Wells Fargo was not about
               compensation [was] not credible; Wells Fargo’s offer to settle the
               employment dispute was for a lump sum of $175,000 and a
               complete Departure Agreement and not for compensation for
               future earnings.”




                                                  -6-
By finding that the lump sum of $175,000 was not for compensation for future earnings, the trial

justice dispelled Bev’s heavy reliance on Kirk v. Kirk, 577 A.2d 976 (R.I. 1990). Indeed, she

indicated that the court’s “result [was actually] consistent with the Supreme Court’s holding in

Kirk.”

         Furthermore, the trial justice found that Bev, “his divorce attorney[,] and his employment

attorney were in contact prior to the execution of the [P]SA regarding the relationship between

the Departure Agreement and divorce issues.” Although she had found that all parties on Bev’s

side had been well informed, the trial justice concluded that Bev’s divorce attorney had not

advised Anne’s attorney that Bev had indeed received a settlement offer prior to the divorce trial.

She said, “[t]here is a limit to what can be considered sharp and shrewd lawyering, especially

during negotiations leading to a [property] settlement agreement. In this case, the limit has been

exceeded and pushed too far.”        With that said, the trial justice held “that the concerted

contrivance of language to avoid [p]laintiff’s claim to equitable distribution [was] a distorted and

contrived breach of * * * [d]efendant’s fiduciary duty.”

         With respect to Anne’s motion to modify child support, the trial justice ruled that “[i]n

the [P]SA it [was] clear that the parties had agreed that when [Bev] obtained new employment he

would notify [Anne] so they could calculate the appropriate child support in accordance with the

Child Support Guidelines based on their increased income.” She added “that no other person

was named as an intermediary to advise [Anne] of [Bev’s] employment.”

         Moreover, when Bev was asked when he gave notice to Anne of his new employment, he

dodged the question by responding, “[T]hat was done in the process in April when I met with

[the guardian ad litem] and [the children’s therapist].” The trial justice found “that the so-called

‘process’ [was] not proper or adequate notice to [Anne] that [Bev] was employed.” Accordingly,




                                                -7-
the trial justice granted both of Anne’s motions. Significantly, in her order, the trial justice

specified that Bev was “entitled to a credit of $22,211.25 for his litigation expenses for

negotiating the settlement.” However, she concluded that “given the sharp dealing and trickery

of prior counsel and [Bev], [Bev] shall not profit therefrom and shall be solely responsible for

said expense.” After final judgment was entered, Bev timely appealed.

                                                 II

                                       Standard of Review

       It is well established that this Court “will not disturb findings of fact made by a trial

justice or magistrate in a divorce action unless he or she has misconceived the relevant evidence

or was otherwise clearly wrong.”       Palin v. Palin, 41 A.3d 248, 253 (R.I. 2012) (quoting

Cardinale v. Cardinale, 889 A.2d 210, 217 (R.I. 2006)). Accordingly, “[U]nless it is shown that

the trial justice either improperly exercised his or her discretion or that there was an abuse

thereof, this Court will not disturb the trial justice’s findings.” Id. (quoting Cardinale, 889 A.2d

at 217-18). Nevertheless, “[q]uestions of law in an appeal from the Family Court * * * are

reviewed de novo.” Id. (citing Curry v. Curry, 987 A.2d 233, 238 (R.I. 2010)).

                                                III

                                             Analysis

       On appeal, Bev argues that the trial justice erred when she determined that his post-

employment compensation was marital property. He contends that, under prevailing law, the

post-employment compensation was nonmarital because Wells Fargo paid it to him as future

compensation. Alternatively, Bev maintains that, should this Court affirm the trial justice’s

findings, then in that event, the attorney fee that he incurred for negotiating the departure

agreement should be considered marital debt, of which Anne should pay half. Additionally, Bev




                                               -8-
claims that the trial justice erred when she awarded counsel fees to Anne for his failure to notify

her of his new job because she received timely notice of his new position from the guardian ad

litem.

                               The Post-Employment Compensation

         Black’s Law Dictionary defines “severance pay” as “[m]oney (apart from back wages or

salary) that an employer pays to a dismissed employee.” Black’s Law Dictionary 1583 (10th ed.

2014). The definition includes that “[t]he payment may be made in exchange for a release of any

claims that the employee might have against the employer.” Id. Here, based on the trial justice’s

extensive review of the record, as evidenced by her lengthy decision, she made a finding of fact

that the amount Wells Fargo paid Bev was to settle his claims for compensation for 2007 and

2008, i.e., “back wages,” and not for future payments. Because the trial justice found the amount

paid to be for compensation from 2007 and 2008, she determined that it was not severance pay.

         It is undisputed that Bev was an at-will employee at Wells Fargo. Because no reason is

required to terminate an at-will employee, an employer has no obligation to pay an at-will

employee severance pay if the parties have not created a valid contractual provision for it. See

D’Oliveira v. Rare Hospitality International, Inc., 840 A.2d 538, 541 (R.I. 2004) (“[W]e are

satisfied that the plaintiff has failed to provide any evidence to establish that [the employer]

intended to promise or be bound by an offer to provide severance * * *.”). After reviewing the

record, we are satisfied that it is indeed silent about the presence of any Wells Fargo severance

policy with respect to Bev’s at-will employment with the company.

         Furthermore, it is significant to us that the trial justice, after hearing Bev’s testimony and

reviewing the documentary evidence, concluded that his testimony was not credible. Weighing a

witness’s credibility is within the province of the trial justice. See Zaino v. Zaino, 818 A.2d 630,




                                                 -9-
638 (R.I. 2003) (“We will not disturb a trial justice’s * * * credibility determinations unless he or

she overlooked or misconceived material evidence or was otherwise clearly wrong.”).

       Nonetheless, Bev has consistently argued that “a review of the documentary evidence in

its entirety show[ed] that [his] separation pay under the departure agreement was precisely that –

traditional severance pay which was to serve as a salary substitute for Bev while he searched for

a new job and was subject to the one year noncompete clause.” In his brief, Bev cited to

numerous cases from other jurisdictions holding that severance pay was nonmarital property.

However, the trial justice’s extensive review of the documentary evidence led her to conclude

that the post-employment compensation was not severance pay. As a result of the trial justice’s

finding that this amount was not severance pay, we need not, and shall not, address whether

severance pay is marital property or not, as it is superfluous to our analysis of this appeal.

Therefore, we need not discuss the myriad cases cited to in Bev’s brief. After a thorough review

of the record, we cannot say that the trial justice overlooked the evidence or was otherwise

clearly wrong, and we perceive no error in the trial justice’s reasoning.

       Because we are affirming the trial justice’s finding that the amount Bev received was

marital property, we must briefly address Bev’s alternate argument that the attorney fees he paid

for negotiating the departure agreement should be considered marital debt, and that Anne should

pay half of it. We do not agree. Although not addressed in any detail in her decision, the trial

justice did conclude that Bev should have been “entitled to a credit of $22,211.25 for his

litigation expenses for negotiating the settlement.” However, the trial justice also pointed out

that, “given the sharp dealing and trickery of prior counsel and [Bev], [Bev] shall not profit

therefrom and shall be solely responsible for said expense.” In other words, she correctly

considered the amount expended to secure the settlement to be a marital debt but nonetheless




                                               - 10 -
deemed Bev to be undeserving of reimbursement. Given the finding of the trial justice in this

case, and her credibility determination, we perceive no error in the trial justice’s decision to

withhold the credit claimed by Bev.

                                  The Award of Counsel Fees

        Lastly, it is well settled that “[t]he Family Courts have jurisdiction to award attorney’s

fees with respect to petitions for divorce.” Centazzo v. Centazzo, 556 A.2d 560, 562 (R.I. 1989)

(citing G.L. 1956 § 8-10-3 and G.L. 1956 § 15-5-16). “A trial justice is vested with discretion in

determining the need for and amount of counsel fees. Unless such discretion is abused, the trial

justice’s decision will not be disturbed.” Id. (citing Smith v. Smith, 88 R.I. 17, 21-22, 143 A.2d

309, 312 (1958)).      Here, Bev argued that Anne had received adequate notice of his new

employment through the report of the guardian ad litem, through the children’s therapist, and

through his own divorce counsel. However, the trial justice found the PSA to be clear in “that

the parties had agreed that when [Bev] obtained new employment he would notify [Anne] so

they could calculate the appropriate child support * * *.” Furthermore, the trial justice indicated

that, when Bev “was directly asked when he gave notice to [Anne] of his new employment, he

evaded answering by stating, ‘that was done in the process in April when I met with [the

guardian ad litem] and [the children’s therapist].’” She found that this “so-called ‘process’” was

not adequate notice to Anne. After considering the record and the arguments raised by the

parties, we hold that the trial justice was not clearly wrong, nor did she overlook or misconceive

the evidence, when she held that the PSA required Bev to notify his wife personally and directly

when he obtained new employment and that he failed to do so. Thus, we will not disturb the

decision of the trial justice.




                                              - 11 -
                                              IV

                                          Conclusion

       For the foregoing reasons, the defendant’s appeal is denied and the order appealed from

is affirmed. The papers in this case are remanded to the Family Court.




                                             - 12 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Anne duPont Corbin v. Richard Beverley Corbin, III.
                                     No. 2013-236-Appeal.
Case Number
                                     (N07-8)
Date Opinion Filed                   January 31, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Newport County Family Court

Judicial Officer From Lower Court
                                     Associate Justice Haiganush R. Bedrosian

                                     For Plaintiff :

                                     Robert S. Parker, Esq.
Attorney(s) on Appeal
                                     For Defendant:

                                     Lauren E. Jones, Esq.
                                     Robert S. Thurston, Esq.




SU-CMS-02A (revised June 2016)
