Jacoby v. Jacoby.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
27-OCT-2021
11:52 AM
Dkt. 11 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---
________________________________________________________________

NICOLETA JACOBY,
Petitioner/Plaintiff-Appellee,

vs.

BENNETT JACOBY,
Respondent/Defendant-Appellant.
________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX; FC-D NO. 08-1-281K)

OCTOBER 27, 2021

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This consolidated appeal arises from the rulings of the

Family Court of the Third Circuit (“family court”) on remand
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from a published opinion of the Intermediate Court of Appeals

(“ICA”).1

The family court entered a divorce decree on July 5, 2011,

after a November 2009 divorce trial between petitioner Nicoleta

Jacoby (“Nicoleta”) and respondent Bennett Jacoby (“Bennett”).2

In relevant part, the family court awarded Nicoleta

indeterminate spousal support of $4,000 per month. The family

court calculated the spousal support award partly based on a

finding that Bennett’s total gross monthly income was $29,402,

which included $9,064 in investment income. The family court

had, however, also awarded half of the assets generating the

subject investment income to Nicoleta as part of the property

division.

In a 2014 published opinion, the ICA affirmed in part and

vacated in part the July 5, 2011 divorce decree and remanded

several issues, which included the issue of spousal support, to

the family court for further proceedings. Jacoby v. Jacoby

(Jacoby I), 134 Hawaiʻi 431, 341 P.3d 1231 (App. 2014), as

corrected (Mar. 24, 2015).3 In relevant part, the ICA concluded

1 The Honorable Aley K. Auna, Jr., presided over this remanded case.
Judge Auna also presided over the 2009 divorce proceedings.

2 Because the parties share the same surname, their first names are used
for purposes of clarity. No disrespect is intended.

3 The opinion, authored by Associate Judge Katherine G. Leonard, was
joined in by Chief Judge Craig H. Nakamura and then Associate Judge Lisa M.
Ginoza.

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that the family court erroneously included the entire investment

income in Bennett’s income instead of allocating half to

Nicoleta because the family court had awarded half of the assets

generating the income to Nicoleta.

On remand, the family court recalculated the income of the

parties; Nicoleta’s monthly income was recalculated as $4,532,

half of $9,064, and Bennett’s monthly income was recalculated as

$24,870. The family court also reaffirmed Nicoleta’s reasonable

monthly expenses as $6,237. The family court concluded,

however, that “it would be just and equitable to continue the

award of permanent spousal support of $4,000 per month.”

Nicoleta’s resulting total monthly income from the investment

income and spousal support was $8,532, exceeding her $6,237

monthly reasonable expenses.

Bennett appealed, arguing in relevant part that the family

court abused its discretion and erred as a matter of law in

awarding spousal support to Nicoleta that exceeded her $6,237

monthly reasonable expenses.

In its April 20, 2021 summary disposition order (“SDO”),

the ICA ruled in favor of Bennett. See Jacoby v. Jacoby (Jacoby

II), Nos. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, 2021 WL 1554197

(App. Apr. 20, 2021) (SDO). The ICA did so, however, on the

basis that in Jacoby I, it had remanded for the family court to

redetermine spousal support in light of the corrected income

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assumptions for investment income. The ICA ruled the family

court therefore erred by engaging in a new just and equitable

determination on remand, as it was not a part of the remand

order in Jacoby I.

On certiorari, Nicoleta argues the ICA erred by ruling the

family court was precluded on remand from engaging in a new just

and equitable determination for spousal support.

We hold the ICA erred by setting aside the amended spousal

support award order on the basis that the family court was

prohibited from doing so on remand because Hawaiʻi Revised

Statutes (“HRS”) § 580-47(a) (2006 & Supp. 2011) provides family

courts with continuing jurisdiction to address issues of spousal

support. We also hold, however, that the family court erred, on

remand, by maintaining spousal support at $4,000 a month because

it awarded more spousal support than it determined was required

to satisfy Nicoleta’s demonstrated needs. We also hold,

however, that the family court abused its discretion by not

holding a hearing on remand to determine whether the spousal

support amount should have been amended because Nicoleta showed

good cause for a redetermination.

Hence, we vacate in part and affirm in part the ICA’s May

24, 2021 judgment on appeal, and we remand this case to the

family court for further proceedings consistent with this

opinion.

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II. Background4

A. Factual background

Nicoleta was born in Romania in 1969. She suffered various

medical ailments in her youth. In November 1990, Nicoleta moved

to the United States. Nicoleta met Bennett, a periodontist, in

California in May 1992 and they married on June 12, 1993.

Nicoleta worked at Bennett’s periodontal clinic for some time

without pay. Their son was born in June 1995 and their daughter

in January 1997.

Nicoleta continued to suffer from numerous medical ailments

throughout her life, which impacted her employability. She was

diagnosed with multiple sclerosis (“MS”) in late 1997. The

Jacobys moved to Hawaiʻi in May 1998 and they purchased a house

in August 1998. Nicoleta continued to have MS flare-ups, for

which she consulted specialists in Hawaiʻi and California. By

the time of trial, she had also developed optic neuritis, brain

hemorrhaging, carpal tunnel syndrome, and left shoulder

problems.

Thus, for the majority of the marriage, Bennett provided

sole financial support for the family. His income included

funds from a periodontal endoscope he developed and had patented

in 1993. Bennett developed myofascial pain dysfunction syndrome

4 Only the background relevant to the issues on certiorari is discussed.
See Jacoby I for further details not relevant to the issues on certiorari.

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after a 1996 surfing accident and began receiving disability

benefits. He was able, however, to continue working part-time

as a periodontist.

B. Procedural background

1. Pre-Jacoby I proceedings

On December 9, 2008, Nicoleta filed for divorce. The

divorce trial was held on November 12, 13, 19, and 27, 2009.

On April 14, 2011, the family court filed its findings of

fact and conclusions of law (“divorce trial order”). In

relevant part, the family court found (1) Nicoleta suffered

numerous medical ailments; (2) Nicoleta was “medically unable to

pursue any gainful employment as a result of the multiple and

serious chronic medical conditions from which she has suffered

since the age of 16 years”; (3) Nicoleta’s $3,327 household and

transportation expenses, excluding her automobile loan payments,

and her $2,910 personal monthly expenses, including medical and

dental, for a total of $6,237 in monthly expenses, were

reasonable; (4) Bennett’s total gross monthly income was

$29,402, which included: (a) $16,343 per month from partial, tax

free disability payments; (b) $9,064 per month from the

investment income; (c) $1,267 per month from royalty income; and

(d) $2,728 per month from his part-time periodontist work; (5)

Bennett, for the majority of the sixteen-year marriage, was the

sole financial support for the family and had the greater

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earning capacity; and (6) the parties had a high standard of

living.

The family court concluded “it would be just and equitable

to award [Nicoleta] permanent spousal support of $4,000 per

month” that would “terminate upon the death of either party or

upon the remarriage or cohabitation of [Nicoleta].” The family

court calculated the spousal support award based, inter alia, on

its finding that Bennett’s total gross monthly income before

deductions for support awards and medical premiums was $29,402,

which included the entire investment income.5

On July 5, 2011, the family court filed its Decree Granting

Absolute Divorce and Awarding Child Custody (“divorce decree”),

which dissolved the parties’ marriage and incorporated the

divorce trial order. On August 3, 2011, Bennett appealed the

divorce trial order and divorce decree to the ICA, arguing in

relevant part that the family court erred by awarding Nicoleta

$4,000 monthly spousal support. On August 17, 2011, Nicoleta

cross-appealed from the divorce decree.

5
Regarding property division, the family court prepared an allocation
chart of the $3,564,440 marital estate. Of this amount, the assets producing
the $9,064 monthly investment income had a total value of $2,691,452. The
family court awarded the parties half each, or $1,345,726 each. Further,
although based on marital partnership principles, Bennett would have been
awarded $2,027,403, the family court awarded marital assets of $1,438,726 to
him. Likewise, although Nicoleta would have received $1,537,037, the family
court allocated $2,125,714 to her. Although Bennett would then be entitled
to a $588,677 equalization payment from Nicoleta, the family court determined
there were sufficient “valid and relevant considerations” to deviate from
marital partnership principles and waived Nicoleta’s equalization payment.

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2. Jacoby I

In a 2014 published opinion, the ICA ruled in relevant part

that the family court did not err by awarding Nicoleta permanent

spousal support, and that Bennett did not meet his burden on

appeal to demonstrate the family court erred in determining the

amount of Nicoleta’s reasonable monthly expenses. Jacoby I, 134

Hawaiʻi at 446, 341 P.3d at 1246. The ICA noted the family court

had found (1) Nicoleta suffered from numerous ailments since the

age of sixteen, citing to the family court’s findings in its

divorce trial order; (2) as a result of these ailments, Nicoleta

was “medically unable to pursue any gainful employment”; and (3)

Bennett had been the sole financial support for the family for

the majority of the parties’ sixteen-year marriage. Id.

The ICA concluded:

However, as Bennett argues, the Family Court included
the entire amount of the Investment Income ($9,064) as part
of Bennett’s income and none of it as part of Nicoleta’s
income, even though the Family Court awarded 50% of the
Accounts, the underlying assets generating this Investment
Income, to Nicoleta. The Family Court clearly erred in
this regard and, therefore, utilized erroneous income
assumptions for both parties when it determined that
Nicoleta was entitled to $4,000 per month in spousal
support.

. . . .

The Family Court’s findings show that it carefully
considered all of the factors provided in HRS § 580–47(a)
when it determined that Nicoleta was entitled to spousal
support. However, the Family Court abused its discretion
in ordering Bennett to pay $4,000 per month in spousal
support to Nicoleta based on the erroneous allocation of
the Investment Income generated by the parties’ Accounts,
which were divided equally between them.

Id.

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The ICA remanded to the family court for further

proceedings consistent with its opinion. 134 Hawaiʻi at 458, 341

P.3d at 1258. No certiorari application was filed.

3. Family court proceedings on remand

On May 14, 2015, Nicoleta filed a memorandum to request an

evidentiary hearing on, inter alia, the spousal support issue.

She asserted that the spousal support issue could not be

resolved “by just some recalculations based on the ICA’s

assumptions.” She argued that circumstances had changed since

the initial calculation of spousal support. Specifically,

Nicoleta contended that since the July 5, 2011 divorce decree,

she had not received the investment income presumed to be

allocated to her, and that Bennett had been receiving the

investment income, which was not a circumstance contemplated by

the family court or ICA. Nicoleta contended that although the

ICA assumed the underlying assets generating the investment

income were divided equally, they were not; thus, an evidentiary

hearing was necessary to determine who received what share of

the investment income to accurately determine how much, if any,

of a recalculation was necessary. Nicoleta also argued it would

be manifestly unjust to attribute income to her that she never

received, and to reduce the spousal support obligation by not

attributing the income to Bennett.

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In response, Bennett argued Jacoby I did not instruct or

suggest the family court should hold an evidentiary hearing to

determine what investment income the parties actually received

during the years since the divorce decree; the family court’s

duty on remand, Bennett contended, was simply to correct its

error by issuing an amended divorce decree “as it would have

read if the error had not been made.” Bennett contended

Nicoleta’s argument that he received her portion of the

investment income was “simply not a proper consideration even if

it were true.” Bennett argued that Nicoleta never brought a

motion to enforce or otherwise objected that she did not receive

half of the assets underlying the investment income. According

to Bennett, if Nicoleta was unable to generate the same level of

investment income, her remedy would have been a motion to modify

the support orders during the pendency of the appeal, which was

an issue separate from the family court’s obligation to correct

its errors in the divorce decree. Bennett asserted that Jacoby

I ruled on the basis of the record only and its instructions on

remand were based on the record; opening the record to consider

new evidence would essentially amount to a new trial and would

invite a possible new, costly, and time-consuming appeal.

In a June 29, 2015 order, the family court stated it would

not conduct an evidentiary hearing but ordered the parties to

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file, inter alia, arguments based upon the evidence presented at

trial and Jacoby I.

In her July 27, 2015 memorandum, Nicoleta argued that the

investment income should also have been divided equally, as the

ICA noted the family court equally allocated the assets

generating the investment income. To be consistent with Jacoby

I, Nicoleta contended, the parties’ monthly income should

reflect the allocation of the investment income.

Nicoleta stated that, as noted in Jacoby I, the $4,000

monthly spousal support was based only in part on Bennett’s

$29,402 monthly income, and that once the family court allocated

half of the investment income to each party, it should still

perform an HRS § 580-47(a) analysis. Nicoleta maintained that,

in addition to the reasons the family court considered in

awarding spousal support, given her numerous health problems,

her expenses would “undoubtedly” increase as her medical

conditions worsened over time. Thus, Nicoleta asserted that

even after considering the HRS § 580-47(a) factors and the

allocation of the investment income to her, the family court

could not reasonably find that Nicoleta was able to meet her

basic needs and maintain her standard of living without spousal

support.

Nicoleta argued that reallocation of the investment income

did not automatically require a downward modification of the

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spousal support award. She maintained her expenses would

inevitably increase and even if the $4,000 spousal support was

awarded to her, there was still a large income disparity between

the parties. Nicoleta asserted that, accordingly, the family

court should reconsider the HRS § 580-47(a) factors and reaffirm

the $4,000 monthly spousal support award. Doing so would also

prevent manifest injustice, Nicoleta stated, because Bennett’s

counsel had suggested he might attempt to recoup “overpayment”

of spousal support in a later motion.

In response, Bennett maintained that the mandate in Jacoby

I directed the family court to revise its findings of fact and

conclusions of law, which would now require Nicoleta to

reimburse him for overpayment of the spousal support. Bennett

also maintained that the family court could not consider “new

evidence.”

On February 8, 2016, the family court filed its Order on

Issues on Remand (“remand order”). The family court found and

concluded as to spousal support as follows:

1. Wife’s household, transportation, and personal monthly
expenses total $6,237 (Decree, Findings of Fact 108 and
109; hereinafter “FOF”).
2. Wife’s income is based upon spousal support and $290
payment made by Husband for her medical insurance premiums
(FOF 122).
3. Accrued interest of bonds and Certificates of Deposit is
$9,064 per month (FOF 114).
4. Pursuant to the Decree, the investment accounts that
generated the $9,06[4] monthly income were divided equally.
Accordingly, each party is to receive $4,532 per month
($9,064 ÷ 2) in income generated from these investment
accounts. The Court did not take this into account when it
issued its Decree.

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5. Child support is not considered income for the purposes
of calculating spousal support.
6. Husband was ordered to pay $290 per month towards Wife’s
medical insurance premium (FOF 122).
7. Husband’s total monthly income, excluding the deduction
of Wife’s medical insurance premium, is recalculated to
$24,870 ($29,402 - $4,532; see FOF 117).
8. Wife’s total monthly income, excluding the medical
insurance premium, is recalculated to $4,532.
9. The parties continue to have a large disparity in
income; a little over $20,300 difference.
10. All FOFs made in the Decree inconsistent [sic] with the
findings herein continue to be relevant to the Court’s
decision regarding spousal support.
11. Under the circumstances of this case, it would be just
and equitable to continue the award of permanent spousal
support of $4,000 per month.

On May 2, 2017, the family court filed its Amended Decree

Granting Absolute Divorce and Awarding Child Custody (“amended

divorce decree”), which incorporated the remand order.

On June 1, 2017, Bennett appealed from the remand order and

amended divorce decree, initiating CAAP-XX-XXXXXXX.

On March 20, 2019, Nicoleta filed a motion to enforce, in

relevant part, the divorce decree and amended divorce decree; to

establish the manner of spousal support payments; and for an

order directing Bennett to pay her attorney fees and costs. On

August 28, 2019, the family court6 entered its Order and Judgment

in Favor of Plaintiff Nicoleta Jacoby and Against Defendant

Bennett Jacoby for Attorney’s Fees and Costs (“attorney fees

order”). On September 20, 2019, the family court entered its

Order Following Hearing on Plaintiff’s March 20, 2019 Motion to

Enforce July 5, 2011 Decree and May 2, 2017 Amended Decree, for

6 The Honorable Wendy M. DeWeese presided.

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Order Establishing Manner of Alimony Payments to Plaintiff, and

for Order Directing Defendant to Pay Plaintiff’s Attorney’s Fees

and Costs (“enforcement order”).

On September 27, 2019, Bennett appealed from the August 28,

2019 attorney fees order and the September 20, 2019 enforcement

order, initiating CAAP-XX-XXXXXXX.

4. ICA proceedings

The ICA consolidated CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

under CAAP-XX-XXXXXXX.7

On appeal, Bennett argued in relevant part that the family

court abused its discretion and erred as a matter of law in

awarding spousal support to Nicoleta in an amount that grossly

exceeded the family court’s calculation of her reasonable needs

in its remand order.8 He argued that if Nicoleta’s “reasonable

needs were met with a $4,000 award of monthly spousal support

prior to considering and accounting for that $4,532 in dividend

7 In CAAP-XX-XXXXXXX, Bennett argued the family court (1) abused its
discretion by awarding Nicoleta attorney fees without inquiring into the
parties’ current economic condition; (2) abused its discretion in entering
certain FOFs relating to Nicoleta’s medical issues when no evidence was
presented during the motion to enforce hearing; (3) erred by awarding
attorney fees to Nicoleta because “this was not an enforcement action on
which [Nicoleta] prevailed;” and (4) abused its discretion by awarding
attorney fees to Nicoleta because the award was excessive, not fair and
reasonable, and made without an evidentiary hearing. These issues are not
relevant on certiorari and therefore not further discussed.

8 Bennett also argued the family court erred as a matter of law in (1)
allocating the values of the parties’ respective bank and checking and
savings accounts to them twice; and (2) failing to recalculate post-judgment
interest based on the corrected allocation of the values of the parties’
accounts. These issues are not relevant on certiorari and therefore not
further discussed.

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and interest income, she did not continue to need $4,000 per

month to meet her reasonable needs, once that $4,532 in income

was properly accounted for.” Nicoleta responded that the family

court properly continued the $4,000 monthly spousal support

given her needs, health conditions, Bennett’s ability to pay,

and the significant disparity in the parties’ incomes.

The ICA concluded Bennett’s argument had merit. Jacoby II,

SDO at 3. The ICA stated that the family court, on remand,

although having applied the corrected income assumptions, still

arrived at the same $4,000 monthly spousal support level after

engaging in a new just and equitable determination, which the

ICA held was not part of the orders on remand. Jacoby II, SDO

at 3-4. The ICA vacated the spousal support award and remanded

to the family court to recalculate the award using the corrected

investment income figure of $4,532 for each party, taking into

account Nicoleta’s $6,237 reasonable monthly expenses that were

affirmed in Jacoby I.9 Jacoby II, SDO at 3, 13.

The ICA filed its judgment on appeal on May 24, 2021.10

9 See Jacoby II, SDO at 6-13, for the ICA’s other rulings not relevant on
certiorari.

10 The judgment on appeal was signed by Associate Judge Karen T. Nakasone.
Associate Judge Leonard, who authored Jacoby I, was on the panel for Jacoby
II, along with now Chief Judge Ginoza, who was also on Jacoby I.

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5. Supreme court proceedings

On certiorari, Nicoleta argues the ICA erred because Jacoby

I did not prohibit the family court, on remand, from again

considering the HRS § 580-47(a) factors. Nicoleta asserts

Jacoby II “contradicts the language, spirit, and intent of HRS §

580-47 in all respects.” Nicoleta points out that there is no

mathematical formula or model to use in calculating spousal

support; the application of simple math does not ensure a

spouse’s needs will be met, which is why the family court is

required to consider the HRS § 580-47(a) factors. As such,

Nicoleta asserts that even if the family court factored in the

investment income, the family court could still have concluded

that she was entitled to $4,000 monthly spousal support based on

its consideration of the HRS § 580-47(a) factors.

Nicoleta argues that by concluding the family court erred

by engaging in a new just and equitable determination and by

requiring the family court to apply simple math to the

determination of spousal support, Jacoby II undermined the

family court’s discretion to determine spousal support.

Nicoleta asserts that if Jacoby II is left to stand, it would

negatively impact her ability to support herself, as Jacoby II

appeared to dictate that the spousal support amount should have

been $1,705 per month (Nicoleta’s reasonable monthly expenses of

$6,237 – investment income of $4,532 = $1,705). Nicoleta

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asserts that Bennett could therefore demand that she reimburse

him the amount he paid her over $1,705 each month for the past

ten years, which, if ordered by the family court, would be

financially disastrous for her.

III. Standards of review

A. Family court decisions

Generally, the family court possesses wide discretion
in making its decisions and those decisions will not be set
aside unless there is a manifest abuse of discretion.
Thus, we will not disturb the family court's decision on
appeal unless the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant and its decision clearly exceeded the
bounds of reason.

Brutsch v. Brutsch, 139 Hawaiʻi 373, 381, 390 P.3d 1260, 1268

(2017).

It is well established that a family court abuses its
discretion where “(1) the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant; (2) the family court failed to
exercise its equitable discretion; or (3) the family
court's decision clearly exceeds the bounds of reason.”

Id. (emphasis omitted).

B. Family court’s findings of fact and conclusions of law

This courts reviews the family court’s findings of fact

under the “clearly erroneous” standard. W.N. v. S.M., 143

Hawaiʻi 128, 133, 424 P.3d 483, 488 (2018) (citation omitted).

A [finding of fact] is clearly erroneous when (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 has 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.

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Id. (citation omitted). On appeal, the family court’s

conclusions of law are reviewed de novo under the right/wrong

standard. Id.

IV. Discussion

A. The ICA erred by ruling Jacoby I prohibited the family
court from reconsidering the HRS § 580-47(a) factors on
remand to determine a just and equitable spousal support
amount

HRS § 580-47(a) provides:

(a) Upon granting a divorce, or thereafter if, in
addition to the powers granted in subsections (c) and (d),
jurisdiction of those matters is reserved under the decree
by agreement of both parties or by order of court after
finding that good cause exists, the court may make any
further orders as shall appear just and equitable . . . (2)
compelling either party to provide for the support and
maintenance of the other party . . . . In making these
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. . . . .

In addition to any other relevant factors considered,
the court, in ordering spousal support and maintenance,
shall consider the following factors:

(1) Financial resources of the parties;
(2) Ability of the party seeking support and
maintenance to meet his or her needs independently;
(3) Duration of the marriage;
(4) Standard of living established during the
marriage;
(5) Age of the parties;
(6) Physical and emotional condition of the parties;
(7) Usual occupation of the parties during the
marriage;
(8) Vocational skills and employability of the party
seeking support and maintenance;
(9) Needs of the parties;
(10) Custodial and child support responsibilities;
(11) Ability of the party from whom support and
maintenance is sought to meet his or her own needs

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while meeting the needs of the party seeking support
and maintenance;
(12) Other factors which measure the financial
condition in which the parties will be left as the
result of the action under which the determination of
maintenance is made; and
(13) Probable duration of the need of the party
seeking support and maintenance.

The court may order support and maintenance to a
party for an indefinite period or until further order of
the court; provided that in the event the court determines
that support and maintenance shall be ordered for a
specific duration wholly or partly based on competent
evidence as to the amount of time which will be required
for the party seeking support and maintenance to secure
adequate training, education, skills, or other
qualifications necessary to qualify for appropriate
employment, whether intended to qualify the party for a new
occupation, update or expand existing qualification, or
otherwise enable or enhance the employability of the party,
the court shall order support and maintenance for a period
sufficient to allow completion of the training, education,
skills, or other activity, and shall allow, in addition,
sufficient time for the party to secure appropriate
employment.

(Emphases added.)

Thus, the family court has wide discretion when making its

decision regarding spousal support. See Brutsch, 139 Hawaiʻi at

381, 390 P.3d at 1268. “When deciding in a divorce case whether

one party must pay periodic support to the other, for how long,

and how much, the family court must consider all of the factors

enumerated in HRS § 580-47(a).” Hamilton v. Hamilton, 138

Hawaiʻi 185, 209, 378 P.3d 901, 925 (2016). This discretion,

moreover, continues after the initial determination of spousal

support. HRS § 580-47(a) specifically provides that “[t]he

court may order support and maintenance to a party for an

indefinite period or until further order of the court . . . .”

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(Emphasis added.) Thus, family courts have continuing

jurisdiction to address spousal support.

Thus, we agree with Nicoleta that the ICA erred by ruling

the family court, on remand, could not exercise its discretion

and issue a new just and equitable order for spousal support.

We also agree with Nicoleta that, in any event, Jacoby I did not

prohibit the family court, on remand, from again considering the

HRS § 580-47(a) factors to maintain the $4,000 monthly spousal

support award.

“The scope of remand is determined not by formula, but by

inference from the opinion as a whole.” In re Haw. Elec. Light

Co., 149 Hawaiʻi 239, 241, 487 P.3d 708, 710 (2021) (cleaned up);

see also Chun v. Bd. of Trs. of Emps.’ Ret. Sys., 106 Hawaiʻi

416, 439, 106 P.3d 339, 362 (2005) (stating “(1) that it is the

duty of the trial court, on remand, to comply strictly with the

mandate of the appellate court according to its true intent and

meaning, as determined by the directions given by the reviewing

court, and (2) that when acting under an appellate court’s

mandate, an inferior court cannot vary it, or examine it for any

other purpose than execution; or give any other or further

relief; or intermeddle with it, further than to settle so much

as has been remanded.” (cleaned up)).

With respect to the remand order, in Jacoby I, the ICA

ruled:

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However, as Bennett argues, the Family Court included
the entire amount of the Investment Income ($9,064) as part
of Bennett’s income and none of it as part of Nicoleta’s
income, even though the Family Court awarded 50% of the
Accounts, the underlying assets generating this Investment
Income, to Nicoleta. The Family Court clearly erred in
this regard and, therefore, utilized erroneous income
assumptions for both parties when it determined that
Nicoleta was entitled to $4,000 per month in spousal
support.

. . . .

The Family Court’s findings show that it carefully
considered all of the factors provided in HRS § 580-47(a)
when it determined that Nicoleta was entitled to spousal
support. However, the Family Court abused its discretion
in ordering Bennett to pay $4,000 per month in spousal
support to Nicoleta based on the erroneous allocation of
the Investment Income generated by the parties’ Accounts,
which were divided equally between them.

134 Hawaiʻi at 446, 341 P.3d at 1246. The ICA also then

concluded:

The Family Court clearly erred in FOF 114 by attributing
the total $9,064 Investment Income to Bennett when it had
awarded Nicoleta one-half of the underlying income-
generating assets. The Family Court should have attributed
to Nicoleta the monthly income generated by her one-half
share of these assets when determining her monthly income
in FOF 124, and decreased Bennett’s monthly income in FOF
125 accordingly.

134 Hawaiʻi at 447, 341 P.3d at 1247. The ICA affirmed in part

and vacated in part the divorce decree, and indicated it was

remanding to the family court “for further proceeding consistent

with this Opinion.” 134 Hawaiʻi at 458, 341 P.3d at 1258.

As argued by Nicoleta, Jacoby II appears to indicate that

the spousal support under the 2011 divorce decree should have

been $1,705 per month (Nicoleta’s reasonable monthly expenses of

$6,237 – investment income of $4,532 = $1,705). If the ICA in

Jacoby I had intended to have the family court so adjust the

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spousal support amount without further consideration of the

factors set forth in HRS § 580-47(a), presumably it would have

said so explicitly.11 But such a remand order would have been

erroneous because, as noted, a family court has continuing

discretion under HRS § 580-47(a) to address and adjust the

amount of spousal support. Thus, the family court’s discretion

continued.

The ICA in Jacoby II set aside the amended spousal support

order on the sole basis that the family court was prohibited

from doing so based on the remand. As the family court had

continuing jurisdiction to address spousal support in any event,

the ICA erred.

B. The family court abused its discretion by maintaining the
$4,000 monthly spousal support award in light of the $4,532
investment income allocation to Nicoleta because, added
together, Nicoleta’s monthly income exceeded Nicoleta’s
$6,237 monthly reasonable expenses

Thus, the ICA erred in setting aside the spousal support

order based on its erroneous conclusion of law that the Jacoby I

remand order prohibited a reconsideration. Bennett had not even

argued such a basis for setting aside the spousal support

amount. Instead, Bennett had only argued that the family court

11 The ICA could have done the simple math of adjusting the spousal
support to $1,705. HRS § 580-47(a) still provided the family court with
discretion to amend the spousal support award based on a material change in a
spouse’s physical or financial circumstances or if good cause indicated it
was just and equitable to do so. In this case, for example, more than six
years had passed from the November 2009 divorce trial to the February 2016
ruling on remand. In her July 27, 2015 memorandum on remand, Nicoleta had
pointed out circumstances that differed from 2009.

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abused its discretion and erred as a matter of law in awarding

spousal support in an amount that grossly exceeded the family

court’s calculation of Nicoleta’s reasonable needs.

Nicoleta notes that under Hawaiʻi law, there is no

mathematical formula or model to use in calculating spousal

support. Nicoleta asserts that even after the family court

allocated the $4,532 investment income to her, the family court

could have maintained the same $4,000 monthly spousal support

based on its reconsideration of the HRS § 580-47(a) factors.

Nicoleta points out that if the family court were to adjust the

monthly spousal support to $1,705, Bennett could demand that she

reimburse him the amount he paid her over and above $1,705 a

month for the last ten years.

Although the family court did not err by engaging in a new

just and equitable determination on remand, under the

circumstances, the family court abused its discretion by

arriving at the same $4,000 monthly spousal support award

without providing sufficient justification. We have recognized

that a family court can abuse its discretion if it orders more

spousal support than is required to satisfy the spouse’s

demonstrated needs. See Gordon v. Gordon, 135 Hawaiʻi 340, 356,

350 P.3d 1008, 1024 (2015) (“Even if Ira is able to pay the

additional amount of alimony, Susan is not entitled to more

spousal support than is required to satisfy her demonstrated

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needs.”). So has the ICA. See Cassiday v. Cassiday, 6 Haw.

App. 207, 215, 716 P.2d 1145, 1151 (1985), aff’d in part, rev’d

in part on other grounds, 68 Haw. 383, 716 P.2d 1133 (1986) (“If

there is no need for spousal support, then there is no

obligation to pay. Here, since Wife admits that $3,500 per

month is sufficient to meet her need, she is not entitled to

more than that even if Husband is able to pay more.”).

Thus, Bennett’s assertion on appeal, that the maintenance

of the $4,000 monthly spousal support was an abuse of discretion

as it exceeded Nicoleta’s demonstrated needs, may have merit.

On remand, the family court maintained the $4,000 monthly

spousal support award, despite finding that Nicoleta’s monthly

reasonable expenses were still $6,237. Although the court cited

the parties’ “large disparity in income[,] a little over $20,300

difference,” in its findings of fact, that factor standing alone

was insufficient to support its holding. Additional findings

were necessary to demonstrate that the judge had appropriately

considered the HRS § 580-47(a) factors in deciding the amount to

award in spousal support. Thus, based on the record, the family

court abused its discretion by awarding more money than

Nicoleta’s demonstrated needs required.

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C. The family court abused its discretion by not holding a
hearing on remand to determine whether the spousal support
amount should have been adjusted

The family court did have discretion to order an amended

spousal support award on remand. However, the family court

failed to make a finding of any increased spousal support needs

in maintaining the $4,000 monthly spousal support amount after

the allocation of half of the investment income to Nicoleta.

HRS § 580-47(d) (2006) provides the family court with

further discretion to “amend or revise any order” if it

determines there is “a material change in the physical or

financial circumstances of either party, or upon a showing of

other good cause . . . .” Therefore, a spousal support award is

always subject to amendment upon a showing of good cause. See

Amii v. Amii, 5 Haw. App. 385, 391, 695 P.2d 1194, 1198 (1985)

(“Spousal support . . . is always subject to revision upon a

substantial and material change in the relevant

circumstances.”).

After the Jacoby I remand, Nicoleta had requested an

evidentiary hearing to determine, inter alia, the amount of

spousal support, asserting she never received the investment

income since the 2011 divorce decree. In her July 27, 2015

memorandum, Nicoleta asserted she had not been receiving the

investment income since the 2011 divorce decree. Nicoleta

contended that this was not a circumstance contemplated by the

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family court or the ICA, as the ICA assumed the investment

income was divided equally because the assets generating that

income were divided equally.

Under the circumstances, the family court abused its

discretion by denying Nicoleta’s request for an evidentiary

hearing. If Nicoleta did not receive her allocation of the

investment income from the time of the 2011 divorce decree,

Nicoleta showed good cause to have a hearing. Therefore, on

remand, the family court should conduct an evidentiary hearing

to address the issues discussed herein.

V. Conclusion

For the foregoing reasons, the ICA’s May 24, 2021 judgment

on appeal is affirmed in part and vacated in part. We remand

this case to the family court for further proceedings consistent

with this opinion.

Charles T. Kleintop and /s/ Mark E. Recktenwald
Naoko C. Miyamoto
for petitioner /s/ Paula A. Nakayama

Michael S. Zola /s/ Sabrina S. McKenna
for respondent
/s/ Michael D. Wilson

/s/ Todd W. Eddins

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