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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-SEP-2020
08:07 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ST, Plaintiff-Appellee, v.
KT, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 16-1-0816)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
This appeal arises out of divorce proceedings between
Defendant-Appellant KT (Wife) and Plaintiff-Appellee ST
(Husband). Wife appeals from the "Decree Granting Divorce and
Awarding Child Custody" (Divorce Decree), entered on March 13,
2019, by the Family Court of the First Circuit (Family Court).1/
Wife also challenges the Family Court's: (1) September 27, 2018
"Order Re Defendant's Motion To Continue Trial And All Trial
Related Dates" (Order Re Motion to Continue); (2) October 23,
2018 Order Re Defendant's Motion To Compel Discovery And/Or For
Sanctions" (Order Re Motion to Compel); (3) October 23, 2018
Order Denying Defendant's Motion To Add Additional Witness"
(Order Re Motion for Additional Witness); (4) December 17, 2018
"Decision and Order"; and (5) February 5, 2019 "Order Denying
Defendant's Motion for Reconsideration of Decision and Order
Filed 12/17/2018" (Order Re Motion for Reconsideration).2/
1/
The Honorable Kevin T. Morikone presided.
2/
The Honorable Jessi L.K. Hall issued the Order Re Motion to
Continue, the Order Re Motion to Compel, and the Order Re Motion for
Additional Witness. The Honorable Kevin T. Morikone issued the Decision and
Order and the Order Re Motion for Reconsideration.
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Wife raises five points of error on appeal, arguing that the
Family court erred in: (1) denying Wife's request for an award of
attorney’s fees and costs in connection with her pretrial motion
to compel discovery; (2) finding that valid and relevant
considerations (VARCs) existed to justify excluding Husband's
premarital student loan debt in the court's property chart and
property division, and not charging Husband for his student loan
debt that was paid during the marriage; (3) crediting Wife's
unpaid debt for attorney's fees and costs as an asset to her on
the court's property chart and property division, instead of
debiting it as a liability to Wife; (4) setting a payment
schedule for Husband's payment of his property division debt owed
and awarded to Wife; and (5) failing to make any orders
concerning Wife's claim for certain reimbursements owed by
Husband.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve Wife's
contentions as follows.
I. Background
Husband and Wife were married on February 24, 2007, and
are the legal parents of two minor children. Husband and Wife
were married for approximately 106 months (9 years) before
physical separation. On June 21, 2016, Husband filed his
Complaint for Divorce against Wife, stating that the marriage was
irretrievably broken.
On November 5 and 8, 2018, the divorce proceeding came
on for trial. Husband and Wife testified on the issues of
alimony, child support, marital waste, and property division. On
December 17, 2018, the Family Court entered the Decision and
Order, which provided as follows: (1) the divorce was effective
as of the date of the filing of the Divorce Decree; (2) the
Family Court incorporated the terms of the Stipulated Order Re:
Custody, Timesharing and other Trial Issues, filed December 4,
2018; (3) no alimony was awarded to Wife; (4) the parties'
property was be divided as provided in the Property Division
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Chart (PDC) attached to the Decision and Order; (5) Husband's
category 1 claims were denied and his bank accounts and Ford
Explorer were not included in the PDC; (6) Wife's category 1
claim was denied and the amount paid toward Husband's student
loans during the marriage was not included in the PDC; (7) Wife's
wasting claims were granted, Husband's wasting claims were
denied; (8) Husband's military pension was divided pursuant to
applicable law; (9) all attorneys' fees and costs were to be
equally split between Husband and Wife; (10) based on the PDC,
Husband was to pay Wife a property equalization payment in the
total amount of $33,738.11, to be paid by Husband in four
installments over two years; (10) each party was awarded his or
her own personal effects, clothing, and jewelry, as well as
household furniture, furnishings, and effects in his or her
possession; (11) Wife was to have the option to retain her
married name or resume her former maiden name; and (12) the court
granted the divorce, and a Divorce Decree was to be submitted to
the court for approval.
On December 27, 2018, Wife timely filed her motion for
reconsideration of the Decision and Order (Motion for
Reconsideration). The Family Court denied the Motion for
Reconsideration in its entirety on February 5, 2019. The Family
Court entered the Divorce Decree on March 13, 2019, and its
Findings of Facts and Conclusions of Law (FOFs/COLs) on May 20,
2019. This appeal followed.
II. Discussion
A. Wife's Request for Attorney's Fees and Costs
Wife contends that the Family Court erred in denying
her request for an award of attorney's fees and costs in
connection with her pretrial motion to compel discovery and/or
for sanctions (Motion to Compel).
On October 12, 2018, Wife filed the Motion to Compel,
which sought an order compelling Husband to produce statements
and online printouts of all account activity for an American
Express card that he held (Amex account statements). The Motion
to Compel also sought a variety of sanctions against Husband,
including orders: (1) establishing that all of Husband's
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expenditures on the card be deemed marital waste and be charged
to Husband in the property division; (2) establishing that
Husband not be permitted to oppose Wife's claims for marital
waste; (3) awarding Wife her reasonable attorney's fees and costs
relating to the Motion to Compel and a separately filed motion to
continue trial;3/ (4) holding Husband in summary criminal
contempt for allegedly providing false information to the court;
(5) holding Husband in civil contempt; and (6) continuing trial
or adding an additional trial date.4/
It appears that Husband produced all or nearly all of
the requested Amex account statements to Wife on October 22,
2018. On October 23, 2018, the Family Court held a hearing on
Wife's Motion to Compel, as well as her pending Motion for
Additional Witness. After hearing both sides, the court denied
the Motion for Additional Witness, and granted in part and denied
in part the Motion to Compel, stating:
With regards to [Wife's] motion to compel discovery,
the court's gonna grant in part and deny in part. The
court's gonna deny the contempt sanctions and at this point,
getting any American Express statements, you guys are too
close to trial. It would have been better if they were
subpoenaed originally and then there would have been no
doubts.
But what's going to happen is [Husband] is not
permitted to use the American Express statements to show
that waste did not occur.
In order for him to show that waste did not occur, he
will have to try to use other evidence that has already been
presented if it was requested through discovery. Otherwise,
[Wife] will be permitted to state that those funds were
wasted and try to prove the same.
With regards to continuing or adding on time for
trial, that's going to be denied.
And based on the court's ruling over the two motions,
the court's going to deny attorneys' fees by both –-
requests by both sides as they cancel each other out at this
point.
On the same date, and consistent with the court's oral
3/
On September 26, 2018, Wife filed a motion to continue trial and
all trial-related dates (Motion to Continue), based in part on Husband's
"incomplete production of documents[.]" Following a hearing on September 27,
2018, the Family Court denied the Motion to Continue and ordered Husband to
produce certain documents that are not at issue in this appeal.
4/
Wife filed a separate motion to add an additional witness at trial
(Motion for Additional Witness) on the same date as the Motion to Compel.
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ruling, the Family Court entered the Order Re Motion to Compel.
The Family Court further explained its decision in its "Findings
of Fact and Conclusions of Law Re: Defendant's Motion to Continue
Trial and All Trial Related Dates Filed September 26, 2018,
Defendant's Motion to Compel Discovery and/or for Sanctions Filed
October 12, 2018, and Motion to Add Additional Witness Filed
October 12, 2018," entered on May 31, 2019.
On appeal, Wife does not challenge any of the May 31,
2019 findings of fact or conclusions of law. The findings are
therefore binding on appeal and support the court's conclusions
of law, which largely mirror the court's conclusions as stated in
its October 23, 2018 oral ruling and written orders. See State
v. Rapozo, 123 Hawai#i 329, 334 n.4, 235 P.3d 325, 330 n.4 (2010)
(citing Kelly v. 1250 Oceanside Partners, 111 Hawai#i 205, 227,
140 P.3d 985, 1007 (2006)).
Moreover, on this record, we cannot conclude that the
Family Court abused its discretion in denying Wife's request for
an award of attorney's fees and costs. In ruling on the Motion
to Compel, the court noted that the motion was filed late in the
pretrial process – "too close to trial" – and, in fact, the court
declined to order Husband to produce any of the requested Amex
account statements.5/ Instead, the court imposed a sanction that
it considered appropriate under the circumstances – an order
precluding Husband from using his Amex Account statements at
trial to show that he did not commit marital waste. Having
granted in part and denied in part the Motion to Compel, and
having denied Wife's related Motion to Continue, the Family Court
denied the parties' competing requests for attorney's fees, as
"they cancel[ed] each other out." We conclude that, under these
circumstances, the denial of Wife's request for attorney's fees
and costs was well within the Family Court's discretion. See
Weinberg v. Dickson-Weinberg, 123 Hawai#i 68, 71, 229 P.3d 1133,
1136 (2010) ("The imposition of a sanction is generally within
5/
At the hearing on the Motion to Compel, Wife argued: "[O]f course
the first thing is to order him to produce the statements. Well, it seems
like he's produced most of it, but we're still asking the court that he be
ordered to produce his September 2018 statement because that was not included
in what was provided last evening."
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the discretion of the trial court." (quoting Ek v. Boggs, 102
Hawai#i 289, 299, 75 P.3d 1180, 1190 (2003))).
Wife argues that the Family Court disregarded Hawai#i
Family Court Rules (HFCR) Rule 37(a)(4)(A)6/ in denying Wife's
request for attorney's fees and costs. However, under HFCR Rule
37(a)(4)(A), the family court need not award the moving party
reasonable expenses incurred in making a motion to compel, where
the court finds, inter alia, that such an award is "unjust." In
addition, HFCR Rule 37(a)(4)(C) provides that if a motion to
compel is granted in part and denied in part, the court "may,
after affording an opportunity to be heard, apportion the
reasonable expenses incurred in relation to the motion among the
parties and persons in a just manner."
Here, the Family Court's denial of the parties'
competing fee requests, based on the circumstances previously
stated, resolved the requests in a just manner. On this record,
we cannot conclude that the Family Court disregarded HFCR Rule
37(a)(4) or otherwise abused its discretion in making this
decision.
B. Husband's Student Loan Debt
Wife contends that the Family Court erred in finding
that VARCs existed to justify excluding Husband's premarital
student loan debt in the court's PDC and property division, and
in not charging Husband for $68,770 of his student loan debt that
was paid during the marriage. In connection with this point of
error, Wife challenges FOF Nos. 53, 56, and 58, and COL Nos. 22,
23, and 24.
6/
HFCR Rule 37(a)(4)(A) provides:
If the motion [to compel] is granted or if the
disclosure or requested discovery is provided after the
motion was filed, the court shall, after affording an
opportunity to be heard, require the party or deponent whose
conduct necessitated the motion or the party or attorney
advising such conduct or both of them to pay to the moving
party the reasonable expenses incurred in making the motion,
including attorney’s fees, unless the court finds that the
motion was filed without the movant's first making a good
faith effort to obtain the disclosure or discovery without
court action, or that the opposing party's nondisclosure,
response, or objection was substantially justified, or that
other circumstances make an award of expenses unjust.
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At trial, Husband testified that he attended the
University of California at Los Angeles (UCLA) for four and a
half years, earning a bachelor's degree in psychology in 2004.
To pay for his education, Husband obtained an ROTC scholarship
that covered tuition, books and educational expenses. Husband
stated that it was necessary to obtain student loans to pay for
his day-to-day expenses such as room and board, food and car
payments. Husband further testified that his student loan debt
on the date of marriage was $111,000.
FOF Nos. 53 through 59 relate to Husband's student loan
debt. The Family Court found the following:
53. The Court does not find credible evidence as to
amounts paid towards Husband's student loans during the
marriage.
54. Wife claimed that a total of $68,779.00 was paid
towards Husband's student loan debt during the marriage.
55. The Court received credible evidence that both
parties benefitted from Husband's employment.
56. Husband obtained said employment as a result of
the student loan debts that he incurred.
57. Thus, although there were payments made towards
Husband's student loans during the marriage, both parties
benefitted from the same in that Wife was able to engage in
her photography business and was not required to work on a
full-time basis.
58. As a result, the Court denies Wife's request to
include the claimed amount, $68,779.00 in the PDC.
Notwithstanding, the Court included the line item "Navient
Student Loan, Payoff During Marriage" as an item in "PART C"
of the PDC.
59. Further, Husband will be responsible for all of
his unpaid student loans after the divorce.
Findings of fact are reviewed under the clearly
erroneous standard and will not be overruled unless "(1) the
record lacks substantial evidence to support the finding, or (2)
despite substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake had been made. 'Substantial evidence'
is credible evidence which is of sufficient quality and probative
value to enable a person of reasonable caution to support a
conclusion." LC v. MG, 143 Hawai#i 302, 310, 430 P.3d 400, 408
(2018) (quoting Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d
355, 360 (2006)).
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Wife contends that FOF No. 53 is clearly erroneous
because Husband testified at trial that $68,770 of his $111,000
student loan debt was paid off during the parties' marriage, and
there was no credibility issue because Husband freely admitted
these facts during his testimony. The record supports Wife's
contention. Indeed, on appeal, Husband confirms that he admitted
these facts at trial, and argues only that the Family Court was
correct in ruling, based on VARCs, that it would be fair and
equitable to exclude Husband's student loan debt amount as a
negative capital contribution on Husband's part. Given that
Husband admitted that $68,770 of his student loan debt was paid
during the parties' marriage, the record lacks substantial
evidence to support FOF No. 53, and we conclude that it is
clearly erroneous. We address below the Family Court's
conclusions of law excluding Husband's student loan debt from the
court's PDC.
Wife next asserts that FOF No. 56 is clearly erroneous
because "[t]here was no testimony that Husband obtained his
employment as a military service member as a result of the
student loans that he incurred." However, the record contains
substantial evidence that Husband used his student loans to help
pay living expenses while attending UCLA, and that he obtained
his employment as a naval officer and aviator as a result of
earning his UCLA degree. The record thus supports the Family
Court's finding that Husband obtained his employment as a result
of the student loan debts that he incurred, and we are not left
with a definite and firm conviction that a mistake has been made.
We therefore conclude that FOF No. 56 is not clearly erroneous.
Although Wife lists FOF No. 58 in her points of error,
she states that she "does not particularly challenge this FOF 58,
but points out that the Court's finding that [] the student loan
payoff was included in Part C of the Court's PDC is meaningless,"
because the amount that the Court entered in Part C of the PDC
was "0.00." Given the lack of argument on this issue, we
disregard FOF No. 58 as a point of error. See Hawai#i Rules of
Appellate Procedure Rule 28(b)(7). To the extent Wife's
observation concerns her challenge to COL Nos. 22, 23, and 24, we
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address those COLs below.
COL Nos. 22, 23, and 24 provide as follows:
22. With regard to Wife's claim that Husband should
be charged with $68,779.00 for payments made during the time
of the marriage towards his student loans, the Court finds
insufficient evidence to support said claim and in the
alternative, finds that there are [VARCs] that justif[y]
equitable deviation from Partnership Model Division.
23. As mentioned supra, the Court finds that, inter
alia, both parties benefitted from Husband's employment;
Husband obtained said employment as a result of the student
loan debts he incurred; Wife was able to engage in her
photography business and not required to work on a full-time
basis; all of Husband's remaining student loan debt
(approximately $42,221.00) has been allocated to him; Wife
made no reasonable efforts to secure employment;
notwithstanding her lack of efforts, Wife is living a
comfortable life; Wife will receive $33,738.11 as an
equalization payment as a result of the divorce; and
considering the effects of the PDC which will leave Husband
in the negative of over $-55,000.00 and Wife will receive
assets totaling approximately $50,000.00.
24. "VARC[s] permit the family court to equitably
deviate from the Partnership Model in dividing the parties'
Marital Partnership Property." Kakinami[v. Kakinami, 127
Hawai#i 126,] 130 n.4, 276 P.3d [695,] 699 n.4 [(2012)]. As
a result of such findings, the Court finds that it would be
fair and equitable to exclude said amount as a negative
capital contribution on the part of Husband.
Wife argues that COL No. 22 is wrong in part because
both the amount of Husband's student loan debt of $111,000 on the
date of marriage, and the $68,000 paid off during the marriage,
were admitted by Husband at trial. As previously stated, the
record supports Wife's contention. To the extent that COL No. 22
rejects Wife's claim based on "insufficient evidence" of the
amount of Husband's student loan debt that was paid during the
marriage, we conclude that: (1) COL No. 22 presents a mixed
question of fact and law, and (2) that part of COL No. 22 is
clearly erroneous.
COL No. 22 also states that VARCs justify equitable
deviation from partnership model division. Wife argues that this
part of COL No. 22 is wrong because the factors identified by the
court in COL No. 23 "did not constitute actual or proper VARCs
under Hawaii law[.]" Wife challenges COL Nos. 23 and 24 on the
same basis.7/
7/
In addition, Wife argues that COL No. 23 is wrong to the extent
the court found that "the effects of the PDC . . . will leave Husband in the
(continued...)
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In divorce proceedings, marital property is divided
according to partnership principles, which distinguish between
property brought into the marriage and property acquired during
the marriage, and which assign category values based on these
considerations. Gordon v. Gordon, 135 Hawai#i 340, 349, 350
P.3d 1008, 1017 (2015) (citing Tougas v. Tougas, 76 Hawai#i
19, 26, 868 P.2d 437, 444 (1994)). The partnership model
requires the family court to: (1) find all facts necessary to
properly categorize the property into one of five categories and
assign the property the relevant net market values;8/ (2)
identify any equitable considerations justifying deviation from
an equal distribution between the parties; (3) decide whether
there will be a deviation; and (4) decide the extent of any
deviation. Gordon, 135 Hawai#i at 350, 350 P.3d at 1018 (citing
and quoting Jackson, 84 Hawai#i at 332, 933 P.2d at 1367). A
property division chart or similar document is "a valuable and
important tool for the family court to properly divide property
and afford transparency to the parties and reviewing court." See
7/
(...continued)
negative of over $-55,000.00 and Wife will receive assets totaling
approximately $50,000.00."
8/
In Gordon, the Hawai#i Supreme Court explained that the categories
consist of:
Category 1 includes the net market value of property
separately owned by a spouse on the date of marriage;
Category 2 includes the increase in the net market value of
Category 1 property during the marriage;
Category 3 includes the net market value of property
separately acquired by gift or inheritance during the
marriage;
Category 4 includes the increase in the net market value of
Category 3 property during the marriage; and
Category 5 includes the net market value of the remaining
marital estate at the conclusion of the evidentiary part of
the trial.
135 Hawai#i at 349, 350 P.3d at 1017 (footnotes omitted) (citing Tougas, 76
Hawai#i at 26, 868 P.2d at 444). "Each partner's individual contributions to
the marriage, i.e., the values of Category 1 and Category 3, are to be repaid
to the contributing spouse absent equitable considerations justifying a
deviation." Id. (citing Tougas, 76 Hawai#i at 26, 868 P.2d at 444). "[T]he
values of Category 2, Category 4, and Category 5 are awarded one-half to each
spouse absent equitable considerations justifying deviation from a 50/50
distribution." Id. at 350, 350 P.3d at 1018 (citing Jackson v. Jackson, 84
Hawai#i 319, 332, 933 P.2d 1353, 1366 (App. 1997)).
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Gordon, 135 Hawai#i at 351, 350 P.3d at 1019 (citing Higashi v.
Higashi, 106 Hawai#i 228, 230, 103 P.3d 388, 390 (App. 2004)).
To determine whether equitable considerations justify a
deviation from the partnership model, a family court must
consider the following: "the respective merits of the parties,
the relative abilities of the parties, the condition in which
each party will be left by the divorce, the burdens imposed upon
either party for the benefit of the children of the parties, and
all other circumstances of the case." Id. at 352-53, 350 P.3d at
1020-21 (citing HRS § 580-47(a)(2006)); see also Hamilton v.
Hamilton, 138 Hawai#i 185, 206, 378 P.3d 901, 922 (2016). "Other
than relative circumstances of the parties when they entered into
the marital partnership and possible exceptional situations,
. . . HRS § 580–47(a) requires the family court to focus on the
present and the future, not the past." Gordon, 135 Hawai#i at
353, 350 P.3d at 1021 (quoting Jackson, 84 Hawai#i at 333, 933
P.2d at 1367). "In other words, deviation from the partnership
model should be based primarily on the current and future
economic needs of the parties rather than on punishing one party
for financial misconduct." Id.
Here, the Family Court concluded that VARCs justified
equitable deviation from the partnership model division, i.e.,
the exclusion of the amount of Husband's student loan debt that
was paid during the marriage from the court's PDC. In reaching
this conclusion, the court identified the following VARCs: (1)
both parties benefitted from Husband's employment, which he
obtained as a result of his student loan debt; (2) Wife was able
to engage in her photography business and was not required to
work on a full-time basis; (3) all of Husband's remaining student
loan debt (approximately $42,221.00) has been allocated to him;
(4) Wife made no reasonable efforts to secure employment after
the separation,9/ but is living a comfortable life; (5) Wife will
receive $33,738.11 as an equalization payment as a result of the
divorce; and (6) the court's property division "will leave
9/
This VARC appears to be based on FOF No. 46, which Wife does not
dispute, and which states: "The Court finds that Wife failed to make
reasonable efforts to obtain employment after the separation." (Emphasis
added.)
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Husband in the negative of over $-55,000.00 and Wife will receive
assets totaling approximately $50,000.00."
Wife argues that these six factors improperly focus on
the parties' past and their relative conduct during the marriage.
And we recognize that divorce "is not a vehicle by which one
spouse is compensated for having given more than he or she
received during the marriage[.]" Gordon, 135 Hawai#i at 353, 350
P.3d at 1021 (quoting Hatayama v. Hatayama, 9 Haw. App. 1, 11-12,
818 P.2d 227, 282 (1991)).
Considering these six factors in context, however, we
conclude that they focus primarily on the condition in which each
party will be left by the divorce and, in particular, the
disparity between Husband and Wife's post-divorce assets and
liabilities. Indeed, the sixth factor recognizes a $105,000.00
disparity in post-divorce assets. In Selvage v. Moire, the
supreme court stated that "[t]he vast disparity in the parties'
circumstances after the divorce, and the limited assets with
which [one party] will be left, constitutes an equitable
consideration justifying deviation" from the partnership model.
139 Hawai#i 499, 511, 394 P.3d 729, 741 (2017). Here, the Family
Court properly considered Husband and Wife's financial
circumstances after the divorce in deciding that deviation from
the partnership model was appropriate.
Nevertheless, we are unable to discern from the Family
Court's findings and our review of the record how the Family
Court calculated the $105,000.00 post-divorce asset disparity
between Husband and Wife. Without further findings or
explanation from the Family Court, we cannot determine whether
the asserted disparity is supported by substantial evidence.
Thus, without more, the Family Court erred in relying on this
disparity as a VARC to justify the exclusion of Husband's student
loan debt that was paid during the marriage from the court's PDC.
C. Wife's Unpaid Attorney's Fees and Costs
Wife contends that the Family Court erred in crediting
her unpaid debt of $14,961.00 for attorney's fees and costs as an
asset to her on the court's PDC, instead of debiting it as a
liability to Wife.
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In its Decision and Order, the Family Court granted
"Wife's request to equally split all attorneys' fees and costs
and thus, items '11.09', through and including '11.11' are
included in the PDC." This ruling was carried over into the
Divorce Decree, which stated that "[t]he attorney's fees have
been allocated in the PDC." Specifically, "Part A" of the PDC
sets out Wife's unpaid attorney's fees of $14,961.00 on line
11.09, Wife's paid attorney's fees of $3,500.00 on line 11.10,
and Husband's paid attorney's fees of $16,293.52 on line 11.11.
Upon review of the record, it appears that line 11.09
contains a typographical error in the "Wife" column, which shows
Wife's unpaid attorney's fees in the amount of $14,961.00 as a
positive number, i.e., an asset. It is undisputed that this
amount should have been reflected as a liability. As a result of
this error, the "Total . . . Partnership Property to Wife" set
out in Part A of the PDC is correspondingly greater than it would
otherwise be. This erroneous total is then carried over into the
PDC's "Part B: Calculation of Equalization Payment," resulting in
an incorrect calculation of the equalization payment to be made
by Husband to Wife.
Wife also argues that COL No. 30 contradicts the
Decision and Order, which grants Wife's request "to equally split
all attorneys' fees and costs," as well as the PDC and the
Divorce Decree, which reflect the same ruling. Specifically, COL
No. 30 states: "The Court finds that in light of the attorneys'
fees and costs incurred by each party, Husband - $16,293.52 and
Wife - $18,461.30, it is fair and equitable that each party bear
their own attorneys' fees and costs incurred in this matter."
The Family Court's conclusion that each party will bear
their own attorney's fees and costs is inconsistent with: (1) the
court's stated intention to equally split all attorneys' fees and
costs, as reflected in the Decision and Order, the PDC, and the
Divorce Decree; and (2) FOF No. 50, which references and attaches
the Decision and Order and the PDC. We therefore conclude that
COL No. 30, which presents a mixed question of fact and law, is
clearly erroneous.
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D. Payment Schedule for Husband's Equalization Payment
Wife contends that the Circuit Court erred in setting a
payment schedule for Husband's equalization payment owed to Wife.
In its Decision and Order, the Family Court ordered, in
relevant part:
Husband shall pay [W]ife a total of $33,738.11. Said amount
shall be paid as follows:
a. $8,434.52 on or before June 30, 2019;
b. $8,434.52 on or before December 31, 2019;
c. $8,434.52 on or before June 30, 2020; and
d. $8,434.55 on or before December 31, 2020.
Wife asks this court to set aside the payment schedule, and
remand the matter to the Family Court with instructions that
Wife's property division be entered nunc pro tunc to the date of
divorce, that she be awarded prejudgment interest from that date,
and that the entire amount owed be entered as a lump sum judgment
against Husband.
Initially, we reject Husband's argument that Wife is
barred from raising the payment-schedule issue on appeal. In her
Motion for Reconsideration of the Decision and Order, Wife argued
that the Family Court "should reconsider its order for
installment payments, and enter an order that the full amount of
the equalization payment is due and owing from and after the
[date of the completion of the evidentiary part of the trial],
the date of the Court's Decision and Order, or the date of the
parties' Divorce Decree, such that postjudgment interest will
begin to run on the entire amount owing until it is paid."
Because the Family Court ordered the payment schedule sua sponte
after trial, Wife did not have an earlier opportunity to contest
the schedule. Her argument was therefore properly raised in her
Motion for Reconsideration, and may be considered by this court.
See Tagupa v. Tagupa, 108 Hawai#i 459, 465, 121 P.3d 924, 930
(App. 2005).
As to the merits of Wife's argument, HRS § 580-47
provides, in relevant part:
(a) Upon granting a divorce, . . . the [family] court may
make any further orders as shall appear just and equitable .
. . (3) finally dividing and distributing the estate of the
parties, real, personal, or mixed. . . . In making these
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further orders, the court shall take into consideration:
the respective merits of the parties, the relative abilities
of the parties, the condition in which each party will be
left by the divorce, the burdens imposed upon either party
for the benefit of the children of the parties, the
concealment of or failure to disclose income or an asset, or
violation of a restraining order issued under section
580-10(a) or (b), if any, by either party, and all other
circumstances of the case.
Wife contends that the Family Court's discretion in
determining the parties' property division does not extend to
setting "an installment payment plan" for Husband's equalization
payment. However, Wife provides no authority supporting her
position, and HRS § 580-47 expressly grants the court authority
to make any orders "as appear just and equitable" in "finally
dividing and distributing" the parties' property.
Here, the Family Court concluded that "it [was] fair
and equitable to allow Husband to pay the equalization payment
($33,738.11) in four installment payments." In fashioning this
payment schedule, the court "t[ook] into consideration inter
alia, the following factors: Husband's monthly child support
obligation to wife ($3,000.00/month); Husband is being left to
pay his remaining student loan debts; Husband's lack of liquidity
following the divorce; and the lack of significant debts that
Wife is responsible for following the divorce." These factors
properly focused on Husband and Wife's financial circumstances
after the divorce and the limited assets with which Husband was
left. On this record, we conclude that the Family Court did not
abuse its discretion in setting a payment schedule for Husband's
equalization payment to Wife.
E. Wife's Reimbursement Claim
Wife contends that the Family Court erred in failing to
make any orders regarding her claim for certain reimbursements
allegedly owed by Husband. Specifically, at trial, Wife
requested an order that Husband reimburse her for, among other
things, half of the costs she paid for their son's therapy and a
multiple-day school field trip (Reimbursement Claim).10/ It
appears that the Family Court did not decide whether Wife was
10/
Wife testified at trial to therapy expenses totaling $2,470, and
school field-trip costs totaling $350.
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entitled to reimbursement for these expenses, as the Decision and
Order and the subsequent Divorce Decree were both silent on this
subject. In her December 27, 2018 Motion for Reconsideration of
the Decision and Order, Wife noted that the Family Court had not
ruled on Wife's Reimbursement Claim, and requested a ruling. The
Family Court denied the motion without explanation, and the
subsequent Divorce Decree did not address Wife's Reimbursement
Claim.
In RC v. MC, this court ruled that "[t]he Family Court
abused its discretion in denying without explanation Father's
request for reimbursement of his Visa credit card debt and joint
cell phone bill." No. CAAP-XX-XXXXXXX, 2019 WL 338344, at *7
(Haw. App. 2019). There, the family court denied Father's
request for reimbursement because "he retained all of his
interest and any appreciation thereon on his condominium, which
was the marital residence." Id. Father argued that "the
property was worth less than his mortgage, and that the mortgage
had been refinanced, in part, to pay off marital debt." Id.
However, neither the divorce decree, the decision and order, nor
the findings of fact and conclusions of law issued by the family
court listed the property's mortgage or net market value of the
mortgage. Id. As a result, this court was unable to
"meaningfully review whether the Family Court correctly
calculated its overall property division or the distribution of
the overall marital estate." Id. Accordingly, we ruled that,
without more, the family court abused its discretion when it
denied Father's specific reimbursement requests. Id.
Here, the Family Court did not include the expenses
that are the subject of Wife's Reimbursement Claim on the PDC,
did not specifically address the claim in connection with the
health care coverage and therapy sections of the Divorce Decree,
and did not otherwise provide any explanation for denying Wife's
Motion for Reconsideration as to her Reimbursement Claim.
Without further findings or explanation from the Family Court, we
are unable to meaningfully review the court's decision, if any,
regarding Wife's Reimbursement Claim. Thus, without more, the
Family Court abused its discretion when it failed to resolve
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Wife's request for reimbursement of one-half of the costs she
paid for their son's therapy and school field trip.
III. Conclusion
For these reasons, we vacate: (1) that portion of
Paragraph 10 of the Decision and Order denying "Wife's request to
include the amount paid towards Husband's student loans during
the marriage . . . in the PDC," as well as the related parts of
the PDC, the Decision and Order, and the Divorce Decree; (2) FOF
No. 53, and COL Nos. 22, 23, and 24; (3) that portion of
Paragraph 13 of the Decision and Order awarding attorneys' fees
and costs as set out in the PDC, as well as the related parts of
the PDC, the Decision and Order, and the Divorce Decree; and (4)
COL No. 30. We remand the case to the Family Court for: (1)
determination of whether and to what extent it will exercise its
discretion in deviating from the partnership model with respect
to the payments made on Husband's student loan debt during the
marriage, and to enter appropriate findings on the record; (2)
determination of the award of attorneys' fees and costs; (3)
determination of Wife's Reimbursement Claim; and (4) further
proceedings consistent with this Memorandum Opinion. We affirm
in all other respects.
DATED: Honolulu, Hawai#i, September 30, 2020.
On the briefs:
/s/ Katherine G. Leonard
Steven J. Kim Presiding Judge
(Law Office of Steven J. Kim)
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Kendal A. Luke, Associate Judge
Gavin K. Doi, and
Grace U. Lee
(Doi/Luke, AAL, LLLC) /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
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