                                                                Supreme Court

                                                                No. 2013-340-Appeal.
                                                                (PC 09-6095)


              David Loppi                    :

                    v.                       :

United Investors Life Insurance Co. et al.   :




             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. 2013-340-Appeal.
                                                                      (PC 09-6095)


                  David Loppi                    :

                        v.                       :

    United Investors Life Insurance Co. et al.   :


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

                                            OPINION

          Justice Robinson, for the Court.       The defendant, Marilyn Loppi,1 appeals from a

declaratory judgment entered in Providence County Superior Court on April 25, 2012, declaring

that she had no right to the proceeds of a life insurance policy of her late husband, Robert Loppi.

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 a close

review of the record and careful consideration of the parties’ arguments (both written and oral),

we are satisfied that cause has not been shown and that this appeal may be decided at this time.

For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.




1
        The other named defendant, United Investors Life Insurance Co. (United Investors), filed
a “Motion for Leave to File a Counterclaim and Cross-Claim for Interpleader, to Deposit Funds
into the Court Registry and to be Discharged.” The Superior Court issued an order on March 6,
2012, granting the motion filed by United Investors. Thus, after depositing the disputed funds in
the registry of the Superior Court, United Investors ceased to be a party to this action and,
accordingly, is not a party to this appeal.


                                                 -1-
                                                I

                                       Facts and Travel

        In 2003, Robert Loppi purchased a life insurance policy from United Investors Life

Insurance Co. (United Investors), in which, the parties agree, he initially named his wife,

Marilyn Loppi, as the beneficiary. In 2008, Marilyn2 filed for divorce from Robert. On July 19,

2008, Robert was served with the summons and complaint in that divorce action. However, on

July 17, 2008, before the service of the divorce summons and complaint, Robert had applied

(through a signed written request) to United Investors to change the beneficiary on his life

insurance policy; the new beneficiary was Robert’s uncle, David Loppi, who is the plaintiff in

this action.3

        On March 27, 2009, in the course of the divorce proceeding, an interlocutory order was

entered in Family Court ordering that life insurance policies, annuities, and investment policies

be “cashed in forthwith” and that the cash surrender value be divided equally between Robert

and Marilyn. That interlocutory order instructed Robert and Marilyn to “execute any and all

documents as needed to cash in said accounts, inclusive of any and all authorizations necessary

for the attorneys to obtain information or for the policies to be liquidated and/or powers of

attorney so that counsel for the parties may do so for the parties.” However, on May 28, 2009,

before he had complied with that part of the just-referenced interlocutory Family Court order

relating to the cash value of the life insurance policy at issue and before a final judgment was

entered in the divorce action, Robert passed away.



2
        Due to the fact that the persons involved in this case share the same last name, we shall
refer to them by their first names. In doing so, we intend no disrespect.
3
       It is important to note that the United Investors insurance policy states that changes in
beneficiaries “take effect on the date the request was signed[.]”


                                              -2-
       According to the complaint filed by David in Superior Court, after Robert’s death United

Investors declined to pay the life insurance death benefit, the face amount of which was

$375,000, to either David or Marilyn, even though United Investors acknowledged that David

was the named beneficiary. In consequence, on October 21, 2009, David filed the instant action

in Superior Court, seeking a declaratory judgment that he alone was entitled to the life insurance

policy death benefit. On December 1, 2011, Marilyn filed a document which indicated that it

constituted both an objection to David’s complaint seeking a declaratory judgment and a cross-

motion for declaratory judgment. On March 8, 2012, David filed a “Motion to Close Record and

Submit for Decision.”

       On April 17, 2012, the hearing justice issued a bench decision. Subsequently, on April

25, 2012, final judgment was entered, granting David’s “Petition for Declaratory Judgment” and

denying Marilyn’s “Cross-Motion for Declaratory Judgment.” The final judgment specifically

stated that David was “entitled to 100% of the policy proceeds” and that Marilyn was “entitled to

no portion of the proceeds of the life insurance policy.” Marilyn filed a timely notice of appeal

on May 11, 2012.

                                                 II

                                       Standard of Review

       On appeal, Marilyn has opted not to submit a transcript of the April 17, 2012 bench

decision rendered by the hearing justice in this case. We have previously remarked as follows

about a party’s failure to provide this Court with a transcript of what transpired below:

                       “The deliberate decision to prosecute an appeal without
               providing the Court with a transcript of the proceedings in the trial
               court is risky business. Unless the appeal is limited to a challenge
               to rulings of law that appear sufficiently on the record and the
               party accepts the finding of the trial justice as correct, the appeal
               must fail.” Adams v. Christie’s, Inc., 880 A.2d 774, 778 (R.I.



                                               -3-
               2005) (quoting 731 Airport Associates, LP v. H & M Realty
               Associates, LLC, 799 A.2d 279, 282 (R.I. 2002)).

While we remain convinced that our “risky business” admonition is well-founded, we are

satisfied that this particular appeal is the exception to the rule; this case presents us with a pure

question of law which we are able to address sufficiently on the basis of the Superior Court

record before us.     See, e.g., In re Estate of Griggs, 63 A.3d 867, 869-70 (R.I. 2013).

Accordingly, we shall apply a de novo standard of review, as we customarily do “[w]hen

reviewing an appeal based on an alleged error of law.” Warwick Sewer Authority v. Carlone, 45

A.3d 493, 498 (R.I. 2012) (internal quotation marks omitted); see Medeiros v. Bankers Trust

Co., 38 A.3d 1112, 1117 (R.I. 2012); see also Ashley v. Kehew, 992 A.2d 983, 987 (R.I. 2010).

                                                III

                                             Analysis

       The discrete issue which this Court is tasked with determining on appeal is whether

Marilyn should be entitled to any portion of the life insurance proceeds at issue.

       Marilyn contends that she has an ownership and equitable interest in the life insurance

policy, “notwithstanding Robert’s unilateral change of beneficiary.” She posits that the life

insurance policy was marital property and that its proceeds should therefore be subject to

equitable division. Additionally, she avers that, had Robert survived, the change in beneficiary

on the life insurance policy “would certainly have been ruled invalid by the Family Court.”

Moreover, according to Marilyn, the interlocutory Family Court order requiring a fifty-fifty

division of the cash value of the life insurance policy is “akin” to an alimony or support order;

and, on the basis of that predicate, she submits that equity mandates that she be awarded at least

fifty percent of the death benefit. It is her contention that the Superior Court erred when it did




                                                -4-
not give deference to the Family Court’s order concerning the division of the life insurance

policy.

          In response, David argues that, at the time of the change in beneficiary, the Family Court

did not have jurisdiction over Robert; David further argues that, at that time, Robert was not

subject to any automatic court orders prohibiting any altering or alienation of marital assets,

since he had not yet been served with the divorce summons and complaint. He further avers that

the divorce action and any interlocutory orders issued by the Family Court during the pendency

of the divorce action abated upon Robert’s death. Accordingly, he contends that, as the named

beneficiary, he is entitled to the entirety of the life insurance death benefit.

          This case is by no means one of first impression. In Keidel v. Keidel, 119 R.I. 726, 729,

383 A.2d 264, 266 (1978), this Court held that “it is universally accepted that, divorce being a

personal action, the death of one of the parties before the entry of the final decree thereon abates

the action.” In Keidel, we then proceeded to a discussion of interlocutory orders issued during a

divorce proceeding. Id. at 730-32, 383 A.2d at 266-67. We began our analysis with the fact that

it was (and still is) well settled that the Family Court is a “statutory court of special jurisdiction”

and its authority to act must be derived from statute. Id. at 731, 383 A.2d at 266; see also Rogers

v. Rogers, 98 R.I. 263, 268-69, 201 A.2d 140, 143-44 (1964). Moreover, the Family Court’s

jurisdiction over “real and personal property of the parties is ‘ancillary’ and an ‘adjunct to its

divorce jurisdiction.’” Keidel, 119 R.I. at 731, 383 A.2d at 267 (quoting Rogers, 98 R.I. at 268-

69, 201 A.2d at 143-44). We also noted in our opinion in that case that there was “substantial

authority to the effect that the death of one of the parties abates the entire divorce action,

including all ancillary or interlocutory decrees, orders, etc.”        Id. at 730, 383 A.2d at 266.

Ultimately, we looked approvingly upon that “substantial authority” and held that “[a]n




                                                  -5-
interlocutory decree to partition real estate, being ancillary to the court’s divorce jurisdiction,

must abate when the divorce action itself abates.” Id. at 730, 732, 383 A.2d at 266, 267.

       Several years later, in Centazzo v. Centazzo, 556 A.2d 560 (R.I. 1989), we clarified and

reiterated our holdings in Keidel. We restated that “[i]n accordance with the maxim actio

personalis moritur cum persona, the cause of action of divorce terminates on the death of one of

the parties.”4 Id. at 562 (internal quotation marks omitted). Crucially, we then proceeded to

address the question of whether the Family Court had jurisdiction over property matters in a

divorce action when an interlocutory order involving property distribution had been issued but

one of the spouses died before the final judgment of divorce was issued. Id. We cited Keidel for

the principle that “an interlocutory judgment granting property rights [during a divorce

proceeding] could not be enforced because the judgment’s temporary nature was statutorily

prescribed.” Id. at 563. Accordingly, we held that the abatement of a divorce petition in Family

Court results in the abatement of any “action with respect to the division of property” that is not

encompassed in a final judgment of divorce. Id.

       When we apply our clear precedent to the case before us, we come to the inescapable

conclusion that the divorce action in the Family Court abated at the time of Robert’s death and

that any interlocutory orders with respect to the division of property also abated. The instant

case raises the same question that we answered in Keidel and Centazzo; it has been our

consistent holding that, when a divorce action abates due to the death of one of the spouses, so

too do any interlocutory orders with respect to property division. See Centazzo, 556 A.2d at

563; Keidel, 119 R.I. at 732, 383 A.2d at 267. Consequently, the March 27, 2009 Family Court




4
       The Latin maxim quoted by the Court in Centazzo v. Centazzo, 556 A.2d 560, 562 (R.I.
1989), may be translated as follows: “A personal action dies with the person.”


                                               -6-
order with respect to the division of the cash value of the life insurance policies held by Marilyn

and Robert abated at the time of Robert’s death, when the divorce action itself abated.

       It is further our opinion that Robert was within his rights when he changed the

beneficiary of his life insurance policy on July 17, 2008 because he had not yet been served with

Marilyn’s divorce complaint.      General Laws 1956 § 15-5-14.1(f) prohibits changing the

beneficiary of a life insurance policy during the pendency of a divorce action, but that section

does not take effect until service of the divorce complaint on the defendant—who in this case

was Robert. See § 15-5-14.1(a). In the instant case, service of the divorce complaint on Robert

occurred two days after he changed the beneficiary of the life insurance policy at issue.

Moreover, under the terms of the life insurance policy itself, the beneficiary is “as stated in the

application, unless subsequently changed by the Owner.” The policy requires joint action to

change the beneficiary only when there is more than one owner. And the crucial fact is that

Robert is the only listed owner of the policy. Accordingly, his change of beneficiary was within

his rights as the sole policy owner. Therefore, David is the rightful beneficiary of the life

insurance death benefit because Robert was completely within his rights to change the

beneficiary on his life insurance policy at the time that he named David as beneficiary. And, in

view of the ultimate abatement of the divorce action and of any interlocutory orders relative to

the division of property, that change in beneficiary was not altered by anything which transpired

in the Family Court prior to Robert’s death.

       Marilyn contends that the Family Court order which required the liquidation of any life

insurance policies and the fifty-fifty split in the cash value of any such policies was “akin” to an

alimony or support order; and, on that basis, she argues that the order did not abate on Robert’s

death. We need not address whether her contention has a valid legal basis since it does not have




                                               -7-
a valid factual basis.   After a thorough review of the May 27, 2009 Family Court order

addressing Marilyn and Robert’s life insurance policies, we are convinced that it is not, nor was

it ever intended to be, an order of alimony or support. It is clear on its face that it is an order

dealing with the division of property; the order addresses the sale of real estate and the cashing in

of life insurance policies, annuities, and investment policies, but at no point does it reference

support or alimony. Accordingly, it is our view that Marilyn has advanced no argument which

convinces us that this case is not governed by our clear precedent. Therefore, we hold that the

hearing justice did not err in granting David one hundred percent of the life insurance death

benefit.

                                                 IV

                                            Conclusion

       For the reasons stated in this opinion, we affirm the judgment of the Superior Court. We

remand the record to that tribunal.




                                                -8-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        David Loppi v. United Investors Life Insurance Co. et al.

CASE NO:              No. 2013-340-C.A.
                      (PC 09-6095)

COURT:                Supreme Court

DATE OPINION FILED: November 16, 2015

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

WRITTEN BY:           Associate Justice William P. Robinson III

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Sarah Taft-Carter

ATTORNEYS ON APPEAL:

                      For Plaintiff: Timothy J. Dodd, Esq.

                      For Defendant: Thomas M. Dickinson, Esq.
