Electronically Filed
Supreme Court
SCWC-29553
13-FEB-2014
08:20 AM
SCWC-29553
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
HIROKAZU NAKAJIMA,
Petitioner/Plaintiff-Appellant,
vs.
AKI NAKAJIMA,
Respondent/Defendant-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29553; FC-DIVORCE NO. 05-1-0587)
ORDER VACATING INTERMEDIATE COURT OF APPEALS’ ORDER
DISMISSING APPEAL AND REMANDING APPEAL TO ICA
(By: Nakayama, Acoba, McKenna and Pollack, JJ.,
with Recktenwald, C.J., concurring and dissenting)
Upon consideration of petitioner/plaintiff-appellant
Hirokazu Nakajima’s application for writ of certiorari, which was
filed on April 9, 2013, and accepted on May 21, 2013, the
documents attached thereto and submitted in support thereof, and
the record, it appears that the Intermediate Court of Appeals
(“ICA”) has jurisdiction to render a decision in the appeal.
The “Decree Granting Absolute Divorce”, filed on June
24, 2008 (“Divorce Decree”), did not fully and finally determine
that part of the divorce concerning the division and distribution
of property and debts. See Schiller v. Schiller, 120 Hawai#i
283, 289, 205 P.3d 548, 554 (App. 2009) (divorce cases involve
four discrete parts: (1) dissolution of the marriage; (2) child
custody, visitation and support; (3) spousal support; and
(4) division and distribution of property and debts). Instead,
the Divorce Decree sets forth a procedure for determining the
valuation of the property to be distributed. The procedure was
not completed until after the Divorce Decree was filed. See
generally Black v. Black, 6 Haw. App. 493, 494, 728 P.2d 1303,
1304 (1986) (the property distribution portion of the divorce
decree was not fully and finally decided until after the family
court decided the valuation issue of a contested property). The
“Motion for Clarification of Divorce Decree Entered on June 24,
2008”, filed on July 7, 2008, was a motion that was necessary to
effectuate the Divorce Decree, and the “Order (Re: Hearing on
Plaintiff’s Motion for Clarification of Divorce Decree Entered on
June 24, 2008, Filed on July 7, 2008 and Other Matters)”, filed
on November 26, 2008 (“Post-Decree Order”), was therefore the
final, appealable order on the issue of the division and
distribution of property and debts. See Aoki v. Aoki, 105
Hawai#i 403, 404, 98 P.3d 274, 275 (App. 2004) (the part of the
divorce concerning the division and distribution of property and
debts is separately final and appealable when decided). The
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Notice of Appeal, which was filed on December 26, 2008, was filed
within thirty days from the entry of the Post-Decree Order and,
therefore, was timely. Accordingly,
IT IS HEREBY ORDERED that the ICA’s “Order Dismissing
Appeal”, filed on February 22, 2013, is vacated, and the appeal
is remanded to the ICA for disposition on the merits.
DATED: Honolulu, Hawai#i, February 13, 2014.
Blake T. Okimoto, Esq. /s/ Paula A. Nakayama
for petitioner/plaintiff-
appellant Hirokazu Nakajima /s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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