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25 June 2007

By Tracy Breton

PROVIDENCE - Superior Court Judge Alice B. Gibney has scheduled a hearing tomorrow to determine whether Francine Ardito, the Virginia daughter of Laurette Borduas Eifrig, should be held in contempt for trying to withdraw money that her mother's guardian needs for Eifrig's assisted living in Providence.

But Ardito wants at least a nine-week postponement. In papers filed with Gibney late last week - before Gibney denied her bid to take over as her mother's guardian - Ardito says she plans to act as her own lawyer and needs time to adequately prepare for the contempt hearing, as well as court action she has started in Virginia to wrest control of her mother's money from Eifrig's guardian, North Providence lawyer Paula M. Cuculo. Ardito also asserts that Gibney has no authority to hold her in contempt.

Gibney - who ruled Friday that Cuculo should remain as Eifrig's guardian - says she expects Ardito to show up to argue her motion. "If she's going to object to the hearing going forward, she needs to be here," the judge said.

But whether she shows up or not, Cuculo says "there's no way I'm going to agree to" a nine-week continuance, adding that that she'll ask Gibney to immediately adjudge Ardito in contempt.

"If she's not going to give me money for her mother's care … you've got to play hardball in this situation," Cuculo said in an interview yesterday. "Nothing she has done is in her mother's best interest … I'm definitely not going to cut her any slack."

Last month, Eifrig, a 90-year-old retired schoolteacher who is blind and suffers from dementia, testified that she wanted to remain at Capitol Ridge, on Smith Street.

Days later, Ardito, acting under a power of attorney and as co-trustee of her mother's trust, began instructing Virginia financial institutions that only she had authority to withdraw her mother's trust funds and that they were not to release any of the money to Cuculo. Cuculo said yesterday that if the Smith/Barney brokerage doesn't release funds to her by the end of the month, she won't have enough to pay the July bill at Capitol Ridge, where Eifrig has resided since February.

Both Cuculo and lawyer James T. McCormick, who represents Ardito's older sister, Suzette Gebhard, assert that Ardito's request to postpone tomorrow's hearing is just a stalling tactic. They say she is trying to buy time so she can attempt in the Virginia courts what she has been unable to do in Rhode Island: to get control over her mother's trust money so she can freeze Eifrig out of her residence at Capitol Ridge and move her back to Virginia.

Cuculo says that Eifrig has told her she does not want to move to the facility for the sight-impaired that Ardito has found for her in Virginia. Eifrig is happy where she is, says Cuculo, and does not want to be put somewhere "where everyone has the same disability as she has. That just screams in her face 'I'm disabled,' and she doesn't want that. She knows she struggles with her eyesight and she doesn't want that reinforced," Cuculo said.

Cuculo says Ardito's recent actions have been detrimental to Eifrig. She says she's been stalled in her attempt to move Eifrig into a bigger unit at Capitol Ridge that Eifrig wants, and to a monthly rate plan that costs less than a per-day plan. It is currently costing Eifrig $175 a day to live in a one-room unit at Capitol Ridge.

Eifrig's Providence lawyer, Richard A. Boren, has filed a motion - also scheduled to be heard by Gibney tomorrow - to remove Ardito as her mother's trustee. Cuculo is joining in that motion.

But Ardito, in papers faxed to Gibney last week, claims that because her mother established her trust in Virginia, the Rhode Island courts have no jurisdiction over the money in it - or any right to remove her as a trustee. She says that Rhode Island courts "have no authority to provide funds" to anyone from her mother's trust, and that she can't be held in contempt here for exercising her rights under the laws of Virginia. She maintains that her action in Virginia stems from her desire to fulfill her fiduciary responsibilities to her mother, and that her duty is "to conserve and preserve the trust assets and to manage and distribute them only to the terms of the trust and Virginia law."

Cuculo, she asserts, "has no authority to access any trust funds" belonging to her mother - no matter what Gibney has decreed. She says her mother carefully established her trust in 1995 "when she was of sound mind," and that it is unlawful for Rhode Island lawyers to attempt to remove her as co-trustee because that would "negate" and "subvert the wishes" of her mother.

Ardito, 54, of Reston, Va., has been trying for more than a year to bring her mother back to Virginia, where she had lived for 13 years before she was abruptly moved to Rhode Island by her older daughter, Gebhard. After moving Eifrig here in May 2006, Gebhard secreted her in her house and refused to let Ardito or Cuculo visit. In late January, the Warren police had to knock down Gebhard's door to gain access to Eifrig, who was briefly hospitalized and then moved by Cuculo to Capitol Ridge. Gibney says she has acclimated well there.

Gibney appointed Cuculo temporary guardian for Eifrig last summer because of the bitter tug of war between the two sisters over what is in the best interest of their mother. On Friday, she made Cuculo's guardianship permanent, saying neither daughter was suitable to take over that role because there was too much animosity between them.

The judge has ordered that Eifrig remain at Capitol Ridge until further order of the court. In her 33-page written decision, she said only Cuculo has authority to access Eifrig's money. Because of Ardito's actions in Virginia to block payments to Cuculo, Gibney has barred her from visiting her mother. Gebhard, former head of the Rhode Island League of Women Voters, had been blocked from visiting, too, but was given back supervised visitation last week.

Copyright 2007. Used with permission from The Providence Journal.