Supreme Court

No. 2020-238-Appeal.

(WC 19-255)

Shirley P. Morgan, in her capacity as 

the Administratrix for the Estate of 

Lisa A. Bicknell

:

v. :

Richard C. Bicknell :

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 (401) 222-3258 or 

Email: opinionanalyst@courts.ri.gov, of any

typographical or other formal errors in order that 

corrections may be made before the opinion is published. 

March 2, 2022
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Supreme Court

No. 2020-238-Appeal.

(WC 19-255)

Shirley P. Morgan, in her capacity as 

the Administratrix for the Estate of 

Lisa A. Bicknell

:

v. :

Richard C. Bicknell. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

O P I N I O N

Justice Goldberg, for the Court. This case came before the Supreme 

Court on December 8, 2021, pursuant to an order directing the parties to appear 

and show cause why the issues before us should not be summarily decided. The 

defendant, Richard C. Bicknell, appeals from a final judgment entered in favor of

the plaintiff, Shirley P. Morgan, in her capacity as Administratrix for the Estate of 

Lisa A. Bicknell, following the grant of summary judgment in accordance with

Rule 56 of the Superior Court Rules of Civil Procedure. After examining the 

record and memoranda submitted by the parties, we are satisfied that cause has not 

been shown and, thus, the appeal may be decided at this time. For the reasons 

stated herein, we affirm the judgment of the Superior Court.
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Facts and Travel

Richard C. Bicknell (Richard or defendant) and Lisa A. Bicknell (Lisa or 

decedent) were married on June 29, 1991, and had no children.

1

 At that time, Lisa 

participated in an employee-funded 401(k) retirement plan through The TJX 

Companies, Inc. (TJX) (the retirement plan). As required by the retirement plan, 

Lisa designated her then-husband, Richard, as contingent death beneficiary. 

Richard and Lisa divorced on May 23, 2012, and entered into a property settlement 

agreement (the PSA) dated February 22, 2012, in the Family Court. The PSA 

contained a provision stating, “WIFE has a 401K’ [sic] retirement plan with The 

TJX Companies, Inc. As of 12/31/11 the value of the account was approximately 

$102,000.00. HUSBAND waives any and all interest that he may have in said 

retirement plan.”

2

(Emphasis added.) Furthermore, the PSA included a clause

stating that any modification or waiver of the PSA “shall be effective only if made 

in writing and executed with the same formality as this Agreement.” (Emphasis 

added.)

On August 5, 2018, Lisa died without a will and without having changed 

defendant’s designation as beneficiary of the retirement plan. On May 14, 2019, 

1 Throughout this opinion, we sometimes refer to Richard Bicknell and Lisa 

Bicknell by their first names solely for the sake of clarity. No disrespect is 

intended.

2 According to the complaint, the retirement plan’s estimated value at the time the 

action was filed was approximately $190,000.
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plaintiff filed a complaint seeking a temporary restraining order (TRO) to enjoin 

defendant from “disposing of, transferring, or conveying any portion of the money 

he has, or may receive from [TJX,]” and seeking judgment for the full value of the

retirement plan, claiming that defendant had waived all interest in the retirement 

plan under the PSA. After the trial justice granted plaintiff a TRO, the parties

stipulated that defendant would retain the retirement plan funds that TJX had 

released to him in a segregated retirement account, until further order of the

Superior Court. Subsequently, plaintiff filed a motion for summary judgment on 

the ground that the PSA constituted a waiver of defendant’s interest in Lisa’s

retirement plan. The trial justice concluded that the PSA clearly and 

unambiguously established that defendant had waived any and all interest in the 

retirement plan. Therefore, the trial justice granted summary judgment and 

ordered that the retirement funds be transferred to plaintiff. The defendant timely 

appealed the trial justice’s decision.

3

3 As a preliminary matter, it is worth noting that review of this case was 

complicated by the existence of two documents entitled “Judgment” that contained 

similar language but were filed on different dates in the Superior Court. The first 

filing, standing alone, likely may have sufficed as a valid judgment from which an 

appeal might have been taken; however, taking into consideration all of the 

circumstances surrounding this matter, we assume without deciding that 

defendant’s appeal from the later filed “Judgment” was timely, and we proceed to 

decide this appeal.
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Standard of Review 

“This Court reviews a grant of summary judgment de novo.” Sullo v. 

Greenberg, 68 A.3d 404, 406 (R.I. 2013) (brackets omitted) (quoting Sacco v. 

Cranston School Department, 53 A.3d 147, 149-50 (R.I. 2012)). “Examining the 

case from the vantage point of the trial justice who passed on the motion for 

summary judgment, ‘we view the evidence in the light most favorable to the 

nonmoving party, and if we conclude that there are no genuine issues of material 

fact and that the moving party is entitled to judgment as a matter of law, we will 

affirm the judgment.’” Id. at 406-07 (brackets omitted) (quoting Sacco, 53 A.3d at 

150). “Summary judgment is appropriate only when the ‘pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law.’” Sola v. Leighton, 45 A.3d 502, 

506 (R.I. 2012) (brackets omitted) (quoting Plunkett v. State, 869 A.2d 1185, 1187 

(R.I. 2005)). “Where the facts suggest only one inference,” the hearing justice may 

treat the issue as a matter of law. See Deutsche Bank National Trust Company, for 

Registered Holders of Ameriquest Mortgage Securities, Inc. v. McDonough, 160 

A.3d 306, 311 (R.I. 2017) (brackets omitted).

“Although summary judgment is recognized as an extreme remedy, * * * to 

avoid summary judgment the burden is on the nonmoving party to produce 
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competent evidence that ‘proves the existence of a disputed issue of material 

fact.’” Sullo, 68 A.3d at 407 (brackets omitted) (quoting Mutual Development 

Corporation v. Ward Fisher & Company, LLP, 47 A.3d 319, 323 (R.I. 2012)).

However, “summary judgment should enter against a party who fails to make a 

showing sufficient to establish the existence of an element essential to that party’s 

case * * *.” Correia v. Bettencourt, 162 A.3d 630, 635 (R.I. 2017) (quoting 

Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016)).

Analysis 

The defendant argues that the trial justice erred in granting summary 

judgment because a genuine issue of material fact remains: Whether Lisa’s failure 

to change the beneficiary on her retirement plan constituted a waiver of 

defendant’s “waiver” of his interest in the retirement plan under the PSA. The 

defendant claims that waiver is a question of fact. See Haxton’s of Riverside, Inc. 

v. Windmill Realty, Inc., 488 A.2d 723, 725-26 (R.I. 1985) (“As a general rule, the 

question of whether a party has voluntarily relinquished a known right is one of 

fact for a jury.”). He also contends that the party alleging waiver has the burden to 

show its existence. See Haydon v. Stamas, 900 A.2d 1104, 1113 (R.I. 2006) (“The 

party arguing that there has been a waiver bears the burden of showing clearly its 

existence * * *.”). The defendant asserted by way of affidavit that, after the 

divorce, the former spouses continued to see each other and that decedent 
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reassured him that she would never remove him as the beneficiary of the retirement 

plan.

On the other hand, plaintiff argues that the PSA is a binding contract 

governing the rights of the parties to the retirement plan. She also claims that,

under the Employee Retirement Income Security Act of 1974, Lisa was required to 

name her spouse as the death beneficiary, unless Richard signed a waiver 

permitting her to designate a nonspouse. Although it was incumbent upon Lisa to 

notify the plan administrator of her change in marital status and to complete a new 

beneficiary designation, plaintiff contends, Lisa’s failure to comply with this 

provision was merely a matter of personal irresponsibility and poor plan 

administration. Accordingly, plaintiff avers that, given the clear language in the 

PSA setting forth defendant’s waiver of any interest in the account and defendant’s 

only evidence of a genuine issue of material fact in the form of a self-serving 

affidavit, the trial justice did not err in granting plaintiff’s motion for summary 

judgment. We agree.

The decedent’s failure to remove defendant as the beneficiary of the 

retirement plan is of no moment in the circumstances of this case because such a 

change would not affect defendant’s waiver of “any and all interest” that he may 

have had in the account. Therefore, the issue before this Court is whether 

defendant waived his interest in the retirement plan in accordance with the PSA’s 
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waiver provision. This question is a matter of contract interpretation and, thus, is 

controlled by the PSA.

“A property settlement agreement ‘that is not merged into a divorce 

judgment retains the characteristics of a contract.’” DiPaola v. DiPaola, 16 A.3d 

571, 576 (R.I. 2011) (quoting Riffenburg v. Riffenburg, 585 A.2d 627, 630 (R.I.

1991)). With respect to contract interpretation, it is well settled that “[o]ur primary 

task * * * is to attempt to ascertain the intent of the parties.” Woonsocket Teachers’

Guild, Local 951 v. School Committee of City of Woonsocket, 117 R.I. 373, 376, 

367 A.2d 203, 205 (1976). “[T]he intention of the parties must govern if that 

intention can be clearly inferred from” the terms and express language of the 

contract. Id. “In the absence of ambiguity, the interpretation of a contract is a 

question of law[.]” Andrukiewicz v. Andrukiewicz, 860 A.2d 235, 238 (R.I. 2004). 

“In determining whether an agreement is clear and unambiguous, the document 

must be viewed in its entirety and its language be given its plain, ordinary and 

usual meaning.” Arnold v. Arnold, 187 A.3d 299, 311 (R.I. 2018) (quoting W.P. 

Associates v. Forcier, Inc., 637 A.2d 353, 356 (R.I. 1994)). “We have consistently

held that a contract provision is ambiguous if it is ‘reasonably susceptible of 

different constructions.’” Carney v. Carney, 89 A.3d 772, 776 (R.I. 2014) (quoting

Paul v. Paul, 986 A.2d 989, 993 (R.I. 2010)).
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Here, Richard and Lisa signed a PSA containing a waiver provision with

very specific and clear language to the effect that defendant waived “any and all

interest that he may have” in the retirement plan. (Emphasis added.) Furthermore, 

there is no evidence that either party executed a post-divorce modification or 

waiver of the PSA in writing. Therefore, we are of the opinion that the defendant 

waived any and all interest in the retirement plan and that no genuine issue of 

material fact remains in dispute. Accordingly, the trial justice properly granted

summary judgment in favor of the plaintiff.

Conclusion 

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

Superior Court. The papers in this case may be returned to the Superior Court.
SU-CMS-02A (revised June 2020)

STATE OF RHODE ISLAND 

SUPREME COURT– CLERK’S OFFICE

Licht Judicial Complex

250 Benefit Street

Providence, RI 02903

OPINION COVER SHEET

Title of Case

Shirley P. Morgan, in her capacity as the 

Administratrix for the Estate of Lisa A. Bicknell v. 

Richard C. Bicknell.

Case Number No. 2020-238-Appeal.

(WC 19-255)

Date Opinion Filed March 2, 2022

Justices Suttell, C.J., Goldberg, Robinson, Lynch Prata, and 

Long, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Washington County Superior Court 

Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter

Attorney(s) on Appeal

For Plaintiff: 

Mark T. Buben, Esq.

For Defendant:

Steven A. Robinson, Esq.