Supreme Court
No. 2001-437-Appeal.
(PC 00-2489)
Viriato Rose et al.
:
v.
:
Jane G. Shaw et al.
:
Present: Williams, C.J., Lederberg, Flanders and Goldberg, JJ, and Weisberger, C.J. (Ret.)
OPINION
PER CURIAM.
This case came before the Court on December 9, 2002 for oral
argument, pursuant to an order that had directed all parties to appear before the Court in order to
show cause why the issues raised in this appeal should not be summarily decided. After hearing
the arguments of counsel and examining the memoranda filed by the parties, we are of the
opinion that cause has not been shown and that the case should be decided at this time.
Facts and Procedural History
On or about April 30, 1984, the plaintiffs Viriato Rose and Emily Rose established a trust
known as “Sail Realty Trust” (trust), which was recorded in the land evidence records of the
Town of Barrington. The plaintiffs were the sole beneficiaries of the trust and each owned a 50
percent undivided interest in the trust. On or about April 30, 1984, the trust purchased a parcel
of real estate, a single-family home at 56 Hawthorne Road, Barrington, Rhode Island at the cost
of $108,000. The purchase was financed by a down payment provided by plaintiffs, with a
balance borrowed from Seacoast Mortgage Company in the amount of $86,400 secured by a
mortgage on the property.
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The plaintiffs’ son, Jeffrey Rose, and Jane G. Shaw (Jane), had been married on May 21,
1983.
Neither Jane nor Jeffrey Rose contributed to the purchase price of this property.
However, on April 30, 1984, the trust agreed to allow Jeffrey Rose and his wife, Jane, to occupy
the property under an agreement wherein they would maintain the property, pay the utilities, and
also pay an amount sufficient to cover the mortgage payments and related expenses.
On or about March 12, 1993, Jane (then Jane Rose) filed a complaint for divorce against
Jeffrey Rose. In the course of this proceeding, she alleged by affidavit and sworn testimony that
the subject property was a marital asset. The plaintiffs and the trust were not named parties in
that litigation. The plaintiffs allege that Jeffrey Rose never entered an appearance during the
course of this divorce proceeding. Relying upon the allegations of Jane that the property was a
marital asset, a justice of the Family Court entered a judgment which placed the subject property
in trust, and ordered plaintiffs and the trust to convey a 50 percent interest in the subject property
to Jane. The plaintiffs and the trust complied as a result of fear of being held in contempt of
court. At that time, Jeffrey Rose was held at the Adult Correctional Institutions for contempt for
failure to pay child support. The plaintiffs alleged that the approximate value of the equity
transferred to Jane was between $80,000 and $100,000.
On May 15, 1996, the Family Court ordered Jeffrey Rose to pay $1,200 per month in
child support to Jane and ordered that the subject property not be sold until the youngest child of
Jane and Jeffrey became eighteen years of age.
On or about February 1998, plaintiffs and the trust agreed to convey the remaining 50
percent interest in the property to Jane in consideration of her waiving all past and future child
support payments then due or to become due to Jane. The agreement was executed on June 11,
1998. The agreement was implemented by transferring plaintiffs’ interest in the property to Jane
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and her new husband, John K. Shaw. Thereafter, Jane and John Shaw sold the property and
purchased a new home. Subsequently, Jane filed a motion in the Family Court to adjudge Jeffrey
Rose in contempt for failure to pay child support. The court entered an order holding Jeffrey
Rose in contempt.
The plaintiffs brought an action in the Superior Court which contained the foregoing
allegations. The defendants filed a motion in the Superior Court to dismiss plaintiffs’ complaint
for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be
granted. A justice of the Superior Court, after hearing, granted the motion and dismissed
plaintiffs’ action on the ground that the Family Court would be in a better position to adjudicate
this complaint since plaintiffs’ allegations sought to “collaterally attack and undo in the Superior
Court the Family Court’s adjudication awarding Jane a fifty-percent beneficial interest in the
marital domicile * * *.” Although the Superior Court justice conceded that she had jurisdiction
over the breach of contract action, she was of the opinion that she had no power to set aside a
judgment of the Family Court by reason of a fraud committed upon that court. She held in effect
that this case should be brought by plaintiffs in the Family Court in the first instance in attempt
to remedy the alleged fraud, pursuant to Rules 24 and 60(b) of the Family Court Rules of
Procedure for Domestic Relations. With this determination, we respectfully disagree.
The Family Court has no jurisdiction to determine a breach of contract action between
these plaintiffs and Jane Shaw. Since the subject property has been sold, neither the Family
Court nor the Superior Court can restore that property to plaintiffs. The only remedy which
plaintiffs have or could seek would be money damages based upon the breach of contract
wherein Jane Shaw had promised to forego present and future child support in consideration of
the transfer to her and her new husband of plaintiffs’ interest in the subject property.
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It is true that a Family Court judge might consider the transfer of this property as an
element of determining whether Jeffrey Rose was relieved of his obligation of child support in a
motion to adjudge Jeffrey Rose in contempt. However, even if the allegations of plaintiffs are
proven in the Family Court, there is no certainty that Jeffrey Rose would be absolved from his
obligation to support his children.
We are of the opinion that the Superior Court has jurisdiction to consider the breach of
contract action as well as the allegations of fraud and deception. We are further of the opinion
that the allegations of fraud and deception on the Family Court may have been waived by
plaintiffs in their agreement, pursuant to which they transferred their interest in the property to
Jane Shaw and her husband John. Jane Shaw’s decision to proceed against Jeffrey Rose might
well be determined in the Superior Court to be a breach of her contract, which could be remedied
by pecuniary damages. The plaintiffs had a right to pursue this remedy in the Superior Court as
opposed to seeking an uncertain remedy in the Family Court. Consequently, we sustain the
appeal of plaintiffs and remand this case to the Superior Court with directions to reinstate
plaintiffs’ action and for further proceedings in respect thereto, consistent with this opinion.
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COVER SHEET
______________________________________________________________________________
TITLE OF CASE:
Viriato Rose et al v. Jane G. Shaw et al
_____________________________________________________________________________
DOCKET NO:
2001-437-A.
______________________________________________________________________________
COURT:
Supreme
______________________________________________________________________________
DATE OPINION FILED:
December 27, 2002
______________________________________________________________________________
Appeal from
SOURCE OF APPEAL:
Superior
County:
Providence
______________________________________________________________________________
JUDGE FROM OTHER COURT:
Gibney, J.
______________________________________________________________________________
JUSTICES:
Williams, C.J., Lederberg, Flanders, Goldberg, JJ. and Weisberger, C.J. (Ret.)
Not Participating
Dissenting
______________________________________________________________________________
WRITTEN BY:
Per Curiam
______________________________________________________________________________
ATTORNEYS:
David S. Cass
For Plaintiff
______________________________________________________________________________
ATTORNEYS:
Barbara E. Grady
For Defendant
______________________________________________________________________________
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