By Gregory N. Hoffman and Rui P. Alves
Recently, the Rhode Island Supreme Court issued an opinion reaffirming the case law regarding the enforcement of marital settlement agreements and upholding the right of a party to exercise visitation with a pet set forth in the agreement. If you or someone you know has pets and is contemplating divorce proceedings, it is important to understand your legal rights associated with pet visitation agreements. Please contact experienced family court attorneys Gregory N. Hoffman at email@example.com and Rui P. Alves at firstname.lastname@example.org or by phone at 888.273.9903 to discuss your situation and determine what type of agreement, if any, regarding your pets is best for you.
Giarrusso v. Giarrusso, No. 2018-53-Appeal
In Giarrusso v. Giarrusso, the parties were married for approximately twenty-three (23) years before entering into a Marital Settlement Agreement (“MSA”) during the course of their divorce that memorialized the terms of the dissolution of their marriage. In particular, the MSA provided that wife would be awarded all right, title and interest in and to the parties’ two (2) dogs and that husband was permitted to take the dogs for visitation every Tuesday morning to Thursday morning. The MSA was incorporated but not merged with the final judgment of divorce that entered in January 2017.
Husband enjoyed his agreed-upon visitation with the dogs for approximately five (5) months after the parties entered into the MSA. However, starting in March 2017, wife began to unilaterally denied husband visitation with the dogs.
As a result, husband filed a post-final motion for relief in the Family Court seeking, in part, an order enforcing the dog visitation schedule set forth in the MSA as well as an award of attorney’s fees. Wife objected and filed a motion for relief seeking to restrain and enjoin husband from having time with the dogs alleging that husband had failed to properly care for the dogs and tried to keep them away from wife.
A hearing was held on the parties’ motions wherein the court heard testimony from both husband and wife. In addition, the court reviewed certain documentary evidence submitted by the parties. In essence, husband asked the court to enforce the terms of the MSA while wife asked the court to withdraw its prior approval of the MSA because allowing husband visitation with the dogs would be inequitable.
The hearing justice found that the MSA unambiguously gave husband visitation with the dogs. In addition, the hearing justice found that both parties clearly loved the dogs and wanted to care for them. As such, the court ordered that husband was permitted to exercise his visitation with the dogs as set forth in the MSA and awarded husband his attorney’s fees.
On appeal, the Supreme Court reaffirmed its well-established case law surrounding MSAs. Specifically, the Court stated that when a MSA is incorporated by reference but not merged with a final judgment of divorce, the MSA retains the characteristics of a valid and enforceable contract. Thus, in order to change or reform a MSA, the court must find a mutual mistake meaning there was a misconception between the parties regarding identical terms of the written agreement. Here, the Supreme Court found that the hearing justice properly treated the MSA as a contract and the dogs as personal property assigned therein. Further, the Court found there was no mutual mistake between the parties regarding the terms of the MSA; thus, the MSA was upheld. Notably, the Court stated that a MSA cannot be set aside merely because one party no longer wants to be bound by it or is unhappy with the result. Finally, the Court upheld the award of attorney’s fees in favor of husband.
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Gregory focuses his practice on complex family law, personal injury law and criminal law. He actively practices in the courts of Massachusetts and Rhode Island litigating cases such as divorce, child custody, grandparents visitation, domestic violence, criminal defense and personal injury. In addition, Greg devotes a significant amount of time developing comprehensive and cost-effective solutions in the drafting of a variety of domestic relations agreements such as Separation Agreements, Marital Settlement Agreements and Antenuptial Agreements.
Rui is an experienced Rhode Island and Massachusetts litigator and advocate in family law, criminal law and government relations matters in both state and federal court. Rui concentrates his practice on helping individuals and corporations craft solutions for complex issues related to domestic relations, criminal defense and government affairs.