Supreme Cou rt
N o. 2020

- 238

- A ppeal

. ( W C 1 9

- 255 )

Shirley P. Morgan, in her capacity as the Admin istra tr i x for the Est ate of Lisa A. Bicknell :

v. : Richard C. Bicknell :

NOTICE : This opinion is subject to formal revision before publi cation i n the Rhode Island Reporter. R e a der s are requested to not ify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Teleph one (401) 222

- 3258 or Email: o pinionanalyst@courts.ri.gov , o f any typo graphical or othe r f ormal errors in order that corrections may be made before the opinion is published. March 2, 2022- 1

- Supreme Cou rt
N o. 2020

- 238

- A ppeal

. ( W C 1 9

- 255 )

Shirley P. Morgan, in her capacity as t he Admin istra tr i x for the Est ate of Lisa A. Bickn ell :

v. : Richard C. Bicknell

. :

P res ent: Suttell, C.J., Goldbe rg, R obinson, Lyn ch Pra ta , and Long, JJ.
O P I N I O N
Ju st ice Goldberg , for the Court
. This case came before the Supreme
Cou r t on Decemb er 8 , 2021, pursuan t to an order directin g the parti es to app e ar and show cause w hy the issues before us should not be summar ily decided

. The
defendant , R ichard C. Bicknell, appeal s from a final judgment entered in favor of the plaintiff, Shi r l ey P. Morgan , in her capacity as Administrat r ix for the Estate of
Lisa A. B icknell , foll owing the grant of summary judgmen t in accordance with Rule 56 of the Superior Court Rules of C ivil Pro cedure

. After examinin g the
record and memoranda submit te d by t h e parties, we are satisfied that cause has not
been show n and, thus, the a ppeal may be decid e d at this time. For the reasons

st ated herein, we affirm the j udgment of the Superior Court.- 2

- Fact s and Travel
Richard C. Bicknell ( Richard o r defendant) and L i s a A. Bicknell ( Lisa or dece dent ) were married on June 29, 199 1 , and had no childr en
. 1 At that time , L isa participated in an em ployee

- funded 401 ( k ) retirement plan through The TJX Companies, Inc

. (TJX) (the retirement plan)

. As require d by the retirem en t p la n , Lisa designate d her then

- husband, Richard, as contin gent death beneficiary

. Richard and Lisa divorced o n May 23, 2012 , and entered into a p roperty s ett l emen t

a greement ( the PSA) dated Februar y 22, 20 12 , in the Family Court

. T he PS A
contained a pro v i si on stating, “ WIF E has a 401K ’ [ sic ] ret irement plan with T he
TJX C ompanies, Inc. As of 12/31/11 the value of the account was approximately $102,000.00. HUSBAND waives any an d all interest that he may have in said retirement pla n
. ” 2 ( E mphasis a dded

. ) F urthermo r e, the PSA included a clause stating that a ny mod ification or waiver of the PSA “ shall be effective only if made
in writing and executed with the same formalit y as this Agreement

. ” ( E m phasis
add ed

. )
O n August 5, 2018 , Li sa di ed withou t a will an d without having ch anged
defe n dant ’ s d esignation as beneficiary of the retire ment plan

. On May 14, 2019,

1 Through out this opinion, we sometimes refer to Richard Bick nel l and Lisa Bic knell by their first names s ole ly f or th e sa ke of clari ty . No dis respect i s inte nded

.
2 According to the complaint, t he r etirement pla n ’ s estimated val ue at the time the a ction was f

iled was approximately $ 190 ,000

.- 3

-

plaintiff filed a complaint seeking a temporary re stra ining order (TRO) to enjoin
defendant from “ disposin g of, transferr ing, or conveying a ny p ort ion o f the money he ha s , or may receive from [ TJX , ] ” and seeking judgment for the full val ue o f the retirement plan , claiming that defendant had waived all inter est in th e retirement plan under the PSA

. After the tr ial j ustice granted plaintiff a TRO , t he pa r ties stipulated that defen d ant would ret ain the retirement plan fu nds that T JX had
rel ea sed to him in a segregated retirement account , until further order of the Superior Court

. Subseq uently, plaintiff filed a mot ion for summary judgment on the ground th a t the PSA constituted a waiv er of defendant ’ s i nterest in Lisa ’ s retirem en t plan

. The t rial justice concluded that the PSA cl ea r ly and unambiguous ly established that defendant had waived any a nd all in terest in the retirement plan

. Theref ore, the trial j us tice grant ed summary jud gment and
ord ered tha t the ret irement f unds be transferred to pl aintiff

. T he def endant timely appealed the trial justice ’ s decision

. 3

3 As a preliminar y mat ter , it is worth noting that review of this case w as 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 m a y ha ve sufficed as a valid judgment from which an app e al 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 “J udgment” was tim e ly, and we proceed to decide this appeal.- 4

- St an dard of Revi ew

“ T his Co urt rev iews a grant of summary judgment de nov o . ” Sullo v.
Green b erg , 68 A.3d 404, 406 (R. I. 2 013 ) (bracket s omitted) (q u oti ng Sacco v. Cra nston Scho ol Department , 53 A.3d 147, 14 9

- 50 (R.I. 2012 ) )

. “ Examining the case from the vantage point of the trial just i ce who passed on the motion for
summary judgment, ‘ w e view t h e evid ence i n the light most favorable t o the
nonmovi n g p arty, and if we conclude that there are no genuine issu es of material fact and that the moving party is en titled to judgment as a m atte r of law , we wi ll affirm the judgment

. ’ ” Id

. at 4 06

- 07 (bracket s omit ted) (qu oting Sacco , 53 A.3d at
150 ). “ Summary ju dgment i s appr opria te only w hen th e ‘ pleadi n gs, depositions,
answers to in terrogatories, and admissions on file, together with the affidavits, if
any, sho w that there is no genui ne issue as to any mat e rial f ac t and that the movin g party is entitled to judg ment as a matt er of law. ’ ” Sola v . Leight on , 45 A.3d 502,
506 (R.I. 2012 ) ( b rac ket s omitted) ( quoting Plunkett v. State , 869 A.2d 1185, 1187 (R.I. 2005 ) )

. “ Where the facts sug gest only one inference, ” the heari ng ju stice may
treat t he issue as a matter o f law. See Deutsc he Bank Nat iona l Tr u s t C o mpany , for Registered Holders of Ameriquest Mor tg age Sec uri ties , Inc . v. McDo nough , 160 A.3d 306, 311 (R.I. 2017 ) ( brackets omitted)

.

“ Although summary judgmen t is recogniz ed as an extreme remedy, * * * to

av oid su mma ry judgment the bur den is on the nonmoving party to pr odu ce- 5

-

co mpetent evidence that ‘ prove s th e existence of a d isputed issu e of mate ri al
fac t

. ’ ” Sullo , 68 A.3d at 407 ( br a cket s omi tted ) ( qu oting Mu t ual Devel opment Corp oration v. Ward Fish er & Co mp any, 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 es t ab lis h t he existence of an element e ssen tial to that part y’ s

ca s e * * *

. ” C

orrei a v. Be ttencourt , 162 A.3d 630, 635 (R.I. 2017 ) (quoting
Newst one Development, LLC v. East Pacific, LLC , 140 A.3d 100, 103 (R.I. 20 16 ) ). Analysis
The defe ndant argues that the trial justice erred in gr anting summary judgment because a ge n uine issu e of material fact remains: W hether Lisa ’ s failure

t o change the ben eficiary on her re tirement plan c ons tituted a waiver of
defendant ’ s “ waiv er ” of his interest in the ret irement plan under the PSA

. The
defendant cl aims th at waiver is a question of fact

. See Haxton ’ s of Riverside, Inc. v. Windmill Realty, Inc. , 488 A.2 d 723 , 725

- 26 ( R.I. 1 985 ) ( “ As a general rule, the
qu estion of whether a party has voluntarily relinquished a known right is one of
fact for a jury. ” )

. He also contends that the pa r ty all eging waiver h as the burden to
sh o w i ts existence

. See Haydon v. Stamas , 90 0 A.2d 1104 , 1 113 (R.I. 200 6 ) ( “ The party argu ing that ther e has been a wai ver bears the burden of showing clearly its
existence * * *. ” )

. The defendant assert ed by way of a f fidavit t hat , afte r t he
divorce , the for mer sp ouses cont inued to see each oth er and that decedent- 6

-

r eassured h im that she would never remove him as the benefic iary of the retirem ent plan

. On the other hand, plaintiff arg ues t hat th e PSA is a binding contr a ct
govern ing the rights of t he par ties to the retirement plan

. Sh e also cl aims that , under the Employee Retirement Income Security Act of 1974 , Lisa was require d to

name her spo use as the death beneficiar y, unless R ichard signed a waiver permitti n g her t o designat e a non spouse
. Although it was incum bent upon Lisa to notify the p lan administrat or of her change in m arital status and to complete a new beneficiary desi gna tion , plaintiff contends , Lisa ’ s failure t o comply with this
p rovision w as merel y a matt er of per sonal irresponsibility and po o r plan

a dmi nistrat ion

. Acco rdingly, p laintiff a vers that , given the clear l anguage in the
PSA sett ing fo rth defendant ’ s waiver of any interest in the account and defendant ’ s only evidence of a genuine issue o f materi al fact in the fo r m of a self

- serving
affidavi t , th e tri al just ice did not err in granting p laint iff ’ s motion for s ummary judgment

. We a gree. The decedent ’ s failure to remove defendant as the beneficiary of the

ret irement p lan is of no moment in t he cir c umstanc es of this case bec ause such a change wo uld not affect defendant ’ s waiver of “ a ny an d all interest ” that he may have had in the account

. The refore, the issue before this C o urt is wh ether defendan t waived his interest in the ret irement plan i n acc or dance w ith the PSA ’ s- 7

-

waiver provision

. This qu estion i s a matter o f contr act interpr e tation and, thu s, is
control led by the PSA

.

“ A property settlement agreement ‘ that is not merged into a d ivorce judgment retains the characteristics of a contrac t

. ’ ” DiP aola v. DiPaola , 16 A.3d 571, 576 (R.I. 2011 ) ( quotin g Riffe nburg v. Riffenburg , 58 5 A.2d 6 27, 630 (R .I.
1991 ) )

. With respect to co ntr act interpretation, it is well sett led that “ [ o ] ur prim ary task * * * is to attemp t to ascertain the intent of t he part ies .” Woonsocket Teachers ’
Guild , Local 951 v. Sch oo l C omm ittee of Cit y of Woonsocket , 117 R.I. 373, 376,
367 A.2 d 203, 205 (1976 ). “ [ T ] he intenti on of the parties must govern if that
intention can be c learly inferred from ” the terms and express l a nguage of t he

contract. Id

. “ I n the absence of ambigu ity , the in terpretation o f a contract is a question of l aw [.] ” Andrukiewic z v. Andrukiewicz , 860 A.2d 235 , 2 38 (R.I. 2004 )

.

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

m ust be vi ewed in its enti rety and its language be give n its plain, ordinary an d usual meaning. ” Arnold v. Arn old , 187 A.3d 299 , 311 (R.I. 2018 ) (qu oting W .P. Associates v. Forcier, Inc. , 637 A.2d 353, 356 (R .I. 1994 ) )

. “ We have consistently
held that a c o ntract provision is ambiguous if it is ‘ reasonably sus ceptib le of
different constructio ns. ’ ” Carney v. Carn ey , 89 A.3d 772, 776 (R.I. 2014 ) (qu oting
Paul v. Paul , 986 A.2d 989, 993 (R.I. 2010 ) ).- 8

-

Here, Ric hard a nd Lisa signed a PSA containing a waiver prov i sion wi th
very sp ecific and c lear language to the ef fe ct that defendant w a ived “ any and all
in tere st that he may have ” in the retirement plan

. ( E mphasis ad ded

. ) Fu rthermore,

t here is no evidence that either party exe cuted a post

- divorce modification or

w a iver of the PSA in writing

. Therefor e, we a re of t he opinion that the de fendant
waiv ed any and all interest in the retirement plan and that no genuine issue of
material fact remains in disp ute . Accordingly, the trial justice properly granted

summar y jud g ment in favor of the plainti ff.
Co nclusion
For t he re as ons s et forth in t his op inion, we affirm the j udgmen t of th e Su perior C ourt. The papers in this case may be returned to the S uperior Court.SU

- CMS

- 02 A (revis e d J une 20 20 ) STATE OF RHODE ISLAND SUPREME COURT

– CLERK’S OFFICE L icht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET

Title of Case Shirley P. Morgan, in her capacity as the Administr a trix for the Estate of Lisa A. Bicknell v. Rich ard C

. Bicknell

. Case Number No. 2020

- 238

- Appeal. (WC 1 9

- 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 W ashin g ton 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, E sq.