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Supreme Court
No.   2002-9-Appeal.
(P 00-2027)
Walter M. DeLuca                                                      :
v.                                                                    :
Linda Lee DeLuca.                                                     :
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.   2002-9-Appeal.
(P 00-2027)
Walter M. DeLuca                                                                                       :
v.                                                                                                     :
Linda Lee DeLuca.                                                                                      :
Present:  Williams, C.J., Flanders, Goldberg, Flaherty, and Suttell, JJ.
O P I N I O N
PER CURIAM.  In this divorce action, the defendant, Linda Lee DeLuca (wife), appeals
from a Family Court order denying her motion to vacate the decision granting her and her
husband a divorce pending entry of a final judgment.   She also appeals from the order denying
her motion for a new trial and other relief.
This couple was married for more than thirty years, during which they raised one child,
who was over the age of majority when the Family Court ruled on this case.   After problems in
the marriage arose, plaintiff, Walter M. DeLuca (husband), filed a complaint for divorce in
Family Court and the wife counterclaimed.
Initially, the parties were unable to agree on issues of spousal support and property
distribution.   When the Family Court reached the case for a contested trial, the parties’ attorneys
indicated to the court that substantial discovery remained to be completed.   Specifically, the
parties had not obtained an appraisal of their former marital domicile, and their depositions were
not yet concluded.  At a pretrial hearing held on May 3, 2001, the magistrate assigned to the case
ordered an appraisal of the house to be scheduled during a Family Court recess, and he ordered
that the wife be deposed immediately following the conclusion of the pretrial hearing.  After that
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order, the parties recessed with the intent to appear for a contested trial that would begin the next
day.   But when they reconvened on May 4, 2001, the parties advised the court that the case had
become nominal (that is, it no longer was a contested divorce), and the court proceeded with a
nominal divorce hearing.
At the hearing, both parties indicated that they had reached an agreement with respect to
distribution of their marital property, alimony, support of their adult child, and treatment of their
debts.  Both parties waived their rights to alimony.   The husband also agreed to submit to a post-
hearing deposition.  The husband’s attorney said he understood that the purpose of the deposition
would be to determine whether the husband had failed to disclose any assets.    The wife’s
attorney procured the husband’s agreement that, if during the course of the deposition relevant
“information  comes  out,”  the  agreement  logically  would  be  altered  in  light  of  any  new
information about his assets.
At the conclusion of the nominal divorce hearing, the presiding magistrate was satisfied
that a divorce should be granted on the grounds of irreconcilable differences that caused the
irremediable breakdown of the marriage.  In relevant part, he said:
“A certain agreement has been placed on the record.   It is to be
reduced to writing then properly signed freely and voluntarily by
the parties.   It will then be introduced to the Court and marked
exhibit Number 1 * * *, to be incorporated but not merged herein.
“The Court is satisfied that based upon the testimony presented as
well  as  its  involvement  within  these  proceedings  that  the
agreement fairly and equitably disposes of the total marital estate.
The agreement is to be reduced to writing, is to be one with full
disclosure.   Failing that, the parties would be entitled to reopen or
otherwise.”
The magistrate also said that the husband’s attorney may include within the decision pending
entry of final judgment “anything testified to by the parties under oath that the Court did not deal
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with by way of specificity in its decision.”   The husband’s attorney then referred, on the record,
to the wife’s waiver of alimony.
The husband’s deposition began on June  20,  2001, but the wife’s counsel did not
complete her questioning of him because the parties could not agree on the scope of the
husband’s testimony.   Thereafter, the wife refused to sign the draft of a property settlement
agreement that the husband’s counsel prepared.  It was only after the husband moved to enter the
decision of May 4, 2001, pending entry of final judgment — six months later — that the wife
moved to vacate the decision and to obtain a new trial and other relief.
In her motion, she asserted that the verbal orders that the court issued at the nominal
hearing were subject to completing a post-trial deposition of plaintiff.  Moreover, she understood
that the court had suspended the hearing until she completed taking the husband’s deposition.
Thus, she objected to the finality of the “so-called agreements” reached at the nominal hearing.
Finally, the wife asserted that at the time of the nominal hearing she had been under the influence
of prescription drugs that clouded her understanding of what occurred.   Thus, she alleged, she
was unable to appreciate the consequences that would follow from the hearing, including her
alimony waiver.
Based on his review of the transcripts from the previous proceedings, the magistrate ruled
that there was no basis for the wife’s request to vacate the proposed decision pending entry of
final judgment.  Thus, he denied the wife’s motion to vacate as well as her motion for a new trial.
On appeal, we ordered the parties to show cause why we should not decide this case
summarily.  Because they have not done so, we proceed to resolve the appeal at this time.
The wife raises several issues.   First, she alleges that the magistrate committed reversible
error when he denied her an opportunity to introduce expert testimony to support her motions.
Second, she contests the Family Court’s so-called  “rubber-stamp approval” of the alimony
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waiver because, she maintains, the magistrate did not specifically approve of the waiver or cite to
any of the factors upon which he based his decision.   Third, she objects to the magistrate’s
decision to proceed with a nominal hearing because the outcome of the husband’s post-trial
deposition could have affected the agreement that the court approved at the hearing.   Finally, the
wife alleges that the magistrate failed to fulfill his obligation to make specific factual findings
pursuant to Rule 52 of the Family Court Rules of Procedure for Domestic Relations and that he
inappropriately  allowed  entry  of  the  decision  pending  entry  of  final  judgment  when  the
conditions upon which it was based never were satisfied.
An appeal from an order granting or denying a motion to vacate under the Rules of
Procedure for Domestic Relations presents only the issue of the correctness of that order.  Pari v.
Pari, 558 A.2d 632, 637 (R.I. 1989).   Such an appeal does not raise questions concerning the
propriety of the decision or judgment itself.   Id.   Furthermore, because both Rule 60(b) of the
Rules of Procedure for Domestic Relations and Rule 60(b) of the Superior Court Rules of Civil
Procedure are nearly identical in wording and identical in purpose, Superior Court precedent may
be consulted to interpret both rules.   Pari, 558 A.2d at 634-35.                                       “A motion to vacate a judgment
rests within the sound discretion of the trial court and a trial court’s ruling on such a motion will
be reversed only upon a demonstrated and clear abuse of discretion.”   Id. at  634; see also
Friendly Home, Inc. v. Shareholders and Creditors of Royal Homestead Land Co., 477 A.2d 934,
937 (R.I. 1984).
The wife alleges that the magistrate committed reversible error when, at the hearing on
the motion to vacate, he not only refused her offer to return to the court with expert medical
testimony at some unspecified date in the future, but also he summarily denied her motion based
only on the record transcripts.   Her attorney sought the opportunity to present medical testimony
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at some time in the future, from a physician, to support the wife’s contention that prescription
drugs had impaired her cognizance of what occurred at the nominal hearing.
Rule  60(b) of the Rules of Procedure for Domestic Relations is almost identical in
language to the corresponding Rule 60(b) of the Superior Court Rules of Civil Procedure, and
allows a party to move for relief from a final judgment, order, or proceeding for a variety of
reasons.  Here, the wife contended that she was suffering from a mental defect when the nominal
hearing occurred.  As a result, she alleged that she did not fully understand the content or finality
of the proceedings.   Consequently, she argued, the decision pending entry of final judgment was
void.  Because this is a void decision, she concludes, she did not need to present any affidavits or
other evidence to the magistrate at the hearing on the motion; rather, she was entitled to rely
solely on the unsworn statements and allegations of her attorney to support her motion.
This argument is flawed for several reasons.   First, a void judgment or decision is one in
which the court entering the judgment lacked jurisdiction over the matter or when the court’s
action violated a procedural requirement so substantial that it amounted to “a plain usurpation of
power constituting a violation of due process.”   Allstate Insurance Co. v. Lombardi, 773 A.2d
864, 869 (R.I. 2001) (quoting Hoult v. Hoult, 57 F.3d 1, 6 (1st Cir. 1995)).                            “For a judgment to
be void * * * it must be determined that the rendering court was powerless to enter it.”   V.T.A.,
Inc. v. Airco, Inc., 597 F.2d 220, 224 (10th Cir. 1979).                                                “A void judgment is from its inception a
legal nullity.”   United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990).   To
preserve the finality of judgments, courts must construe the concept of voidness narrowly.  Id.
Contrary  to  the  wife’s  assertions,                                                                  “‘[a]  judgment  is  not  void  merely  because  it  is
erroneous.’”   Allstate Insurance Co., 773 A.2d at 869 (quoting Jackson v. Medical Coaches, 734
A.2d 502, 506 (R.I. 1999) (per curiam)).   Rather, a court will declare a judgment to be void only
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in “‘rare instance[s] of a clear usurpation of power.’”   Boch Oldsmobile Inc., 909 F.2d at 661-
62.1
The wife does not allege that the Family Court lacked jurisdiction over her case.   She
does allege, however, a deprivation of due process resulting from the magistrate’s denial of an
evidentiary hearing on whether she was mentally competent during the nominal proceeding.  The
Family Court clearly has authority to grant or deny relief from its orders and proceedings under
Rule 60(b) of the Rules of Procedure for Domestic Relations.2  Here, the magistrate simply chose
to deny the motion to vacate based on the facts submitted to him at the hearing on that motion.
The wife does not allege that she received inadequate notice of the proceedings.  On the contrary,
she had the opportunity to present evidence to the magistrate about her mental-incompetence
claim, but she simply failed to submit any such evidence on the date that the magistrate heard the
motion.   Given this failure by the wife to prove her alleged mental incompetence on the date of
1                                                                                                    This Court has found significant procedural defects amounting to a “clear usurpation of
power” and a violation of due process when substantial defects in notice, service of process, and
representation by counsel existed.   See Nisenzon v. Sadowski, 689 A.2d 1037, 1049 (R.I. 1997)
(holding judgment was void as against individual partners in a business partnership because they
were not named as parties to the suit, were not served with process, and did not waive service of
the summons and complaint);   May v. Penn T.V. & Furniture Co., 686 A.2d 95, 100 (R.I. 1996)
(“[F]undamental due-process considerations — and bedrock principles of agency law — prevent
us from punishing an unserved party defendant for the misdeeds of a lawyer he never engaged in
a lawsuit about which he was never notified.”).
2                                                                                                    Rule 60(b) of the Family Court Rules of Procedure for Domestic Relations provides:
“[T]he court may relieve a party or a party’s legal representative
from a  final  judgment,  order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule
59(b); (3) fraud * * * , misrepresentation, or other misconduct of
an adverse party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or it is no
longer  equitable  that  the  judgment  should  have  prospective
application;  or                                                                                     (6)  any  other  reason  justifying  relief  from  the
operation of the judgment.”
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the hearing, the action of the magistrate in denying her motion to vacate did not amount to a
deprivation of the wife’s due-process rights, much less did it justify a finding that the decision
pending entry of a final judgment was void.
Additionally,  unsworn  statements  of  counsel  supporting a  motion  to  vacate  do  not
constitute evidence, nor are they a viable predicate to an evidentiary hearing.   To trigger an
evidentiary hearing supporting such a motion, the moving party should present affidavits, sworn
testimony, or witnesses who are prepared to testify at the hearing thereon to grounds that, if
found to be true, would support a vacation of the judgment, order, or decision in question.   See
State v. Whitmire, 791 So.2d 1192, 1193 (Fla. Dist. Ct. App. 2001); BN1 Telecommunications,
Inc. v. Cybernet Communications, Inc., 694 N.E.2d 148, 151 (Ohio Ct. App. 1997) (per curiam);
Hatfield v. Hatfield, No. 94CA2046, 1995 WL 332234, at *2 (Ohio Ct. App. May 31, 1995);
Housden v. Housden, No. CA90-08-160, 1991 WL 71986, at *2 (Ohio Ct. App. May 6, 1991);
Havely v. Havely, No. E2000-02275-COA-R3-CV, 2001 WL 920220, at *3 (Tenn. Ct. App.
Aug. 15, 2001).   But see Gore v. First National Supermarkets, No. 77026, 2000 WL 1231474, at
*3 (Ohio Ct. App. Aug. 31, 2000); In re Wood, No. 97APE01-77, 1997 WL 467338, at *2 (Ohio
Ct. App. Aug. 12, 1997).   Other than the attorney’s unsworn allegations contained in the motion
to vacate, the magistrate only had the transcripts of the nominal proceeding upon which to rely in
ruling on the motion.
The magistrate was satisfied that competent counsel represented both parties at the
nominal hearing and that the parties were not entitled to “two bites at the apple.”   Nevertheless,
he made clear on several occasions his willingness to consider all testimony and evidence
properly before the court.   But the wife appeared at the hearing on the motion to vacate without
any supporting evidence, such as affidavits or expert witnesses, and she did not request a
continuance at the hearing.   Thus, the magistrate chose to consider the motion before him as
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presented and summarily denied the defendant’s request for relief based only on the transcripts
on record.  In doing so, we hold, he did not err.
This Court decided an appeal based on similar facts in Van Thiel v. Albani, 736 A.2d 84
(R.I. 1999) (mem).   In Van Thiel, the parties had reached an agreement before trial, and the trial
court heard the case as a nominal divorce.   Id.   At the hearing, the appellant testified about the
agreement and acknowledged that he understood its terms, and that his approval was free and
voluntary.   Id. at 85.   The Family Court incorporated but did not merge the agreement into its
decision pending entry of final judgment.    Id.    The defendant husband then appealed the
decision, claiming that “he was suffering from some kind of a ‘nervous breakdown’ when he
approved of the settlement agreement, and that he never has had his day in court.”   Id. at 86.
Because the parties reached this settlement agreement before trial and the divorce hearing was
nominal, this Court ruled that the orders the husband later sought to challenge were subsumed
within the decision pending entry of final judgment and they had become moot.   Id.   See also
Gaccione v. Gaccione, 112 R.I. 676, 678, 314 A.2d 423, 424 (1974) (appeal of decision pending
entry of final judgment denied for appellant who claimed to be “confused and did not realize that
a divorce had been granted” at nominal divorce hearing, because appellant was present and
represented by counsel).
Here, the parties also had reached an agreement before proceeding with the nominal
hearing.   Moreover, the trial transcript indicates that counsel represented the wife at the hearing,
the wife was responsive to questioning, and she clearly articulated her intent to enter into the
agreement.   Thus, we conclude, the magistrate did not abuse his discretion when he denied the
wife’s motion to vacate because it was devoid of any evidentiary support.
The  wife  also  contested  the  magistrate’s  supposed                                                 “rubber-stamp  approval”  of  the
alimony waiver.   She requested a new trial on the basis that he should have ruled specifically on
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the waiver and stated what factors supported his decision.   In considering a ruling on a motion
for a new trial, this Court will overturn the outcome only “if the judge was obviously mistaken or
has overlooked or misconceived material evidence.”   Lapre v. Ruggieri Brothers, Inc., 688 A.2d
1298, 1299-1300 (R.I. 1997) (per curiam) (citing Ruggieri v. Big G Supermarkets, 114 R.I. 211,
330 A.2d 810 (1975)).   Here, the husband correctly stated that the case proceeded as a nominal
divorce hearing, not a contested trial on the merits.  The magistrate did not sift through questions
of fact or settle issues of law, but rather read into the record an agreement that the parties
themselves already had reached.3   Thus, a motion for a new trial was not the appropriate method
for challenging the terms of this nominal divorce decision.
The  defendant  cites  Reynolds  v.  Reynolds,                                                         53  R.I.                       326,                                                   166  A.  686  (1933)  and
Ramsbottom v. Ramsbottom, 542 A.2d 1098 (R.I. 1988) to support her argument that the parties’
agreement, as read into the record, cannot trump the Family Court’s jurisdiction to approve or
order alimony.   Reynolds and later cases, however, indicate that independent agreements entered
into freely by the parties in divorce proceedings will be enforced if they appear to the court to be
“reasonable and fair to the parties and not collusive.”   Reynolds, 53 R.I. at 329, 166 A. at 688;
see also Masse v. Masse, 112 R.I. 599, 603, 313 A.2d 642, 645 (1974).   Pursuant to G.L. 1956
§ 15-5-16, some factors that the Family Court should consider in reviewing the alimony issue
include the health, age, station, occupation, amount and source of income, vocational skills, and
employability of the parties.
At the nominal hearing, both parties answered questions about their ability to support
themselves, revealing where they worked, how much they were earning, and the extent of their
3                                                                                                      Thus, the magistrate stated:   “And what we are going to do is read  [the agreement
between plaintiff and defendant] into the record.   It’s going to be reduced to a contract which in
fact will be a contract * * * [and] will remain an independent agreement outside of the orders of
this [c]ourt.”
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education or job skills.   When asked whether she thought she could support herself, the wife
replied, “I’m trying to the best of my ability right now,” and added that she was working toward
earning a teaching certificate.   She then waived alimony and said that she understood she could
not change her mind in the future.  Based on this testimony, the magistrate was satisfied that “the
agreement fairly and equitably disposes of the total marital estate.”   In doing so, the magistrate,
we hold, did not overlook or misconceive material evidence.   Thus, we affirm the order denying
the wife’s motion for a new trial.
The wife’s remaining issues are based upon her interpretation of what happened at the
nominal hearing.   First, she objects to the magistrate’s decision to proceed with a nominal
hearing because the post-hearing depositions could have affected the parties’ agreement.   In
particular, she asserts that without full knowledge of the husband’s assets, it was impossible for
her to enter into an agreement knowing that it encompassed all the marital assets.   Her attorney
addressed this issue, however, when he procured the husband’s assent that, if during the course
of his deposition, relevant “information comes out,” then the agreement could be altered in light
of the new information.    Moreover, the parties’ agreement anticipated the existence of any
potentially hidden assets by providing that the party from whom the asset was concealed “shall
have right, title and interest to those assets.”   Finally, the magistrate stated that the parties’
agreement should be reduced to writing with full disclosure, and “[f]ailing that, the parties would
be entitled to reopen or otherwise.”   Thus, we hold that the provision for post-hearing discovery
did not constitute reversible error and we affirm the magistrate’s ruling in this respect.
Finally, the wife alleges that the magistrate inappropriately allowed entry of the decision
pending entry of final judgment when the purported conditions upon which it was based were
never satisfied.  In particular, the wife alleges that entry of the decision was subject to a complete
deposition of the husband and to a freely and voluntarily signed property-settlement agreement
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in accord with the agreement reached at the nominal hearing.   Thus, the wife submits, the
magistrate erroneously entered a decision that was not a final adjudication of the issues.
The magistrate addressed the wife’s attorney about the purported conditions at the
hearing on the motion to vacate.   With respect to her discovery argument, a deposition of the
husband would have no bearing on the agreement the parties had reached, even if additional
assets were uncovered.   As the magistrate stated, “[i]f [the assets] were uncovered * * * you
don’t even need depositions [because] if * * * there is something hidden by one [or] the other of
the parties the other person [will] receiv[e] all of it.”   Furthermore, the magistrate clarified that
he did not order the parties to execute the property settlement agreement; rather, the parties were
to reduce it to writing and then sign it “freely and voluntarily.”   Therefore, our review of the
transcript suggests that the post-hearing depositions and the parties’ entry into a written property
settlement agreement were not intended to function as conditions precedent placed on the entry
of the magistrate’s decision pending entry of final judgment.
Nevertheless, we caution the parties, their counsel, and the Family Court that we do not
believe that proceeding in this piecemeal fashion constituted the best way to achieve a final
resolution in this type of case.  We fail to see how a purported property settlement agreement that
was neither drafted nor signed — and that may never be signed or agreed upon by the parties —
can be incorporated by reference into a decision pending entry of a final divorce judgment.   By
proceeding in this manner and by allowing the parties to engage in additional discovery from
each other, the court was only inviting future disputes and motions to reopen the proceedings.
Consequently, this practice should be discouraged.
As noted, the wife appears to be appealing from the denial of her motion to vacate, and
we conclude that no grounds exist for reversing the magistrate’s ruling.   But even if we viewed
her appeal as one from the decision pending entry of final judgment itself, we are of the opinion
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that she has failed to suggest any reason why that decision should be disturbed.   For these
reasons, we affirm the decision pending entry of the final judgment, the order denying the
motion to vacate, and the order denying a new trial, and remand the papers in this case to the
Family Court for further proceedings not inconsistent with this opinion.
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COVER SHEET
TITLE OF CASE:   Walter M. DeLuca v. Linda Lee DeLuca
DOCKET NO:                                                              2002-0009-Appeal
COURT:                                                                  Supreme
DATE OPINION FILED:   January 23, 2004
Appeal from
SOURCE OF APPEAL:      Superior                                                                  County:  Providence
JUDGE FROM OTHER COURT:                                                 Master John J. O’Brien
JUSTICES:  Williams, C.J., Flanders, Goldberg, Flaherty, Suttell, JJ.
Not Participating -
Concurring
Dissent   -
WRITTEN BY:      Per Curiam
ATTORNEYS:
For Plaintiff      Colleen Crudale, Esq.
ATTORNEYS:
For Defendant    Allen M. Kirshenbaum, Esq.
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