Sanchez v. Sanchez

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-OCT-2021
01:52 PM
Dkt. 220 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

BETTY LOU SANCHEZ, Plaintiff-Appellee/Cross-Appellant, v.
GERALD M. SANCHEZ, Defendant-Appellant/Cross-Appellee

APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
(FC-D NO. 02-1-0149)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)

This appeal arises out of divorce proceedings between
Defendant-Appellant and Cross-Appellee Gerald M. Sanchez
(Husband) and Plaintiff-Appellee and Cross-Appellant Betty Lou
Sanchez (Wife). Husband appeals from the May 2, 2017 Divorce
Decree (Divorce Decree) and the October 12, 2017 "Order Granting
[Wife's] Motion for Reconsideration, Alteration or Amendment of
Divorce Decree Entered May 2, 2017 Filed Ex Officio May 10, 2017"
(Order Granting Motion for Reconsideration), both entered in the
Family Court of the Fifth Circuit (Family Court).1/ Husband
contends that the Family Court erred in: (1) denying him credit
for $418,000 in Category 1 and 3 contributions to the marital
estate, because of the creation of a marital trust; 2) deviating
from partnership principles, because of Husband's alleged
financial misconduct during the marriage; and 3) granting Wife's
post-judgment motion to amend the Divorce Decree five months
after the motion was filed. Wife cross-appeals from the Divorce
Decree, contending that the Family Court erred in failing to

1/
The Honorable Edmund D. Acoba presided.
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award her post-divorce spousal support.
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 the
parties' contentions as follows.

(1) Category 1 and Category 3 Contributions

Husband contends that the Family Court erred in denying
him credit for $418,000 in Category 1 and 3 contributions to the
marital estate, "when [the court] presumed a gift of [two]
properties to wife or the marital estate" based on the creation
of the 2009 Sanchez Revocable Living Trust (Trust). Husband
maintains that he conveyed these separately-owned properties to
the Trust "to placate Wife and provide for his four children to
inherit the . . . properties," and he never intended to give the
properties to Wife or the marital estate.
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)). Family courts use the
following five categories of net market values (NMV) in dividing
property:

Category 1. The [NMV], plus or minus, of all property
separately owned by one spouse on the date of marriage (DOM)
but excluding the NMV attributable to property that is
subsequently legally gifted by the owner to the other
spouse, to both spouses, or to a third party.

Category 2. The increase in the NMV of all property whose
NMV on the DOM is included in category 1 and that the owner
separately owns continuously from the DOM to the DOCOEPOT
[date of the conclusion of the evidentiary part of the
trial].
Category 3. The date-of-acquisition NMV, plus or minus, of
property separately acquired by gift or inheritance during
the marriage but excluding the NMV attributable to property
that is subsequently legally gifted by the owner to the
other spouse, to both spouses, or to a third party.

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Category 4. The increase in the NMV of all property whose
NMV on the date of acquisition during the marriage is
included in category 3 and that the owner separately owns
continuously from the date of acquisition to the DOCOEPOT.
Category 5. The difference between the NMVs, plus or minus,
of all property owned by one or both of the spouses on the
DOCOEPOT minus the NMVs, plus or minus, includable in
categories 1, 2, 3, and 4.

Selvage v. Moire, 139 Hawai#i 499, 507, 394 P.3d 729, 737 (2017)
(citing Tougas, 76 Hawai#i at 27, 868 P.2d at 445).
"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." Gordon, 135 Hawai#i at
349, 350 P.3d at 1017 (footnote omitted); see Selvage, 139
Hawai#i at 507, 394 P.3d at 737 ("The NMVs 'in Categories 1 and 3
are the parties' "capital contributions," and pursuant to general
partnership law, they are returned to each spouse.'" (quoting
Kakinami v. Kakinami, 127 Hawai#i 126, 138, 276 P.3d 695, 707
(2012)).
Here, Husband contends that the Family Court erred in
denying him credit for Category 1 and Category 3 capital
contributions to the marital estate. Specifically, in its
December 7, 2017 Findings of Fact and Conclusions of Law
(FOFs/COLs), the Family Court found, and neither party disputes,
the following:

FOF 17 5956 Kuamoo Road, 5990 Kuamoo Road and 210 Kamalu
Road

The real property located at 5956 Kuamoo Road,
Kapaa, Kauai 96746 ("5956 Kuamoo Road") was separately owned
by Defendant Husband on the DOM.
The real property located at 210 Kamalu Road, Kapaa,
Kauai 96746 ("210 Kamalu Road") was separately acquired by
Defendant Husband by gift on April 7, 1992. . . .

Husband asked the Family Court to credit him for the Category 1
net market value of 5956 Kuamoo Road on the date of marriage,
which was $125,000, and the Category 3 net market value of 210
Kamalu Road on the date of the gift, which was $292,000, for
total contributions to the marital estate of $417,000.
Instead, the Family Court denied Husband credit for
these asserted capital contributions on the ground that they had

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been gifted by Husband to the parties and were thus Category 5
property. Specifically, in FOF 17, the Family Court made the
following additional findings of fact (which are actually mixed
findings of fact and conclusions of law) regarding the two
properties:

Both properties were subsequently gifted by Defendant
Husband to the parties by creating a joint revocable trust
[i.e., the Trust].
Both parties were the trustee of the Trust. Moreover,
if one party was not alive or disabled or had resigned as
Trustee, the other party would be Trustee.

While both were alive and not disabled, distributions
of income and principal would be made at their direction.
If either of them was unable to so direct, distributions of
income and principal could be made at the other's direction.

Defendant Husband and Plaintiff Wife were both
beneficiaries of the [T]rust. While either party was alive,
both were entitled to distributions of income and principal
from the Trust.
The parties further reserved the power acting alone to
revoke the Trust, to alter or amend the Trust in any manner
and to withdraw from the Trust all or any portion of the
trust assets.
Defendant Husband claimed [sic] that he did not
understand the trust document when he signed it is not
credible because Defendant Husband made changes to the trust
document in removing Plaintiff Wife's children as
beneficiaries of the [T]rust.
The [NMV] of 5956 Kuamoo Road is $259,548.73, while
the NMV of 210 Kamalu Road is $781,740.24.

Based on these findings, the Family Court concluded in
COL 11: "Both the real property located at 5956 Kuamoo Road
. . . and the real property located at 210 Kamalu Road . . . are
Category 5 properties." On this basis, the Family Court denied
Husband credit for any Category 1 and 3 contributions to the
marital estate, computed $1,041,288 in Category 5 real estate
(i.e., the sum of the NMVs of 5956 Kuamoo Road ($259,548.73) and
210 Kamalu Road ($781,740.24)), and divided that amount, among
other amounts, between Husband and Wife in the Divorce Decree.
As set forth above, Category 1 marital partnership
property includes property separately owned by one spouse on the
date of marriage, but excludes the net market value attributable
to property "that is subsequently legally gifted by the owner to
the other spouse, to both spouses, or to a third party."

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Selvage, 139 Hawai#i at 507, 394 P.3d at 737 (citing Tougas, 76
Hawai#i at 27, 868 P.2d at 445). Similarly, Category 3 marital
partnership property includes property separately acquired by
gift during the marriage, but excludes the net market value
attributable to property "that is subsequently legally gifted by
the owner to the other spouse, to both spouses, or to a third
party." Id. (citing Tougas, 76 Hawai#i at 27, 868 P.2d at 445).
Thus, the issue here is whether the Family Court erred in finding
that Husband gifted the two identified properties to the parties
by creating the Trust.
This court has held:

[W]hen one marital partner conveys Category 1 and/or
Category 3 property to the other marital partner or to both
marital partners, there is no presumption of a gift of
Category 1 and/or Category 3 net market value (NMV) and the
marital partner who alleges the gift has the burden of
proving a gift.

Wong v. Wong, 87 Hawai#i 475, 482, 960 P.2d 145, 152 (App. 1998).
"To constitute a gift, there must be: (1) donative intent; (2)
delivery; and (3) acceptance." Hamilton v. Hamilton, 138 Hawai#i
185, 204, 378 P.3d 901, 920 (2016) (citing Tougas, 76 Hawai#i at
27, 31, 868 P.2d at 445, 449).
In Gussin v. Gussin, 73 Haw. 470, 836 P.2d 484 (1992),
the family court did not make any findings as to donative intent
or any other issue bearing on whether the husband had gifted his
separate property on the date of marriage to his wife or the
marital estate. Id. at 488, 836 P.2d at 493. "Because the
family court failed to make any findings as to donative intent or
any other element bearing on whether a legal gift had been made,"
the supreme court concluded that this court "erred in not
remanding the issue of gift for the family court to decide." Id.
at 489, 836 P.2d at 494; see also Tougas, 76 Hawai#i at 31, 868
P.2d at 449 ("In Gussin, failure by the family court to make any
finding as to donative intent or any other element bearing on
whether a legal gift had been made constituted grounds to remand
the decision.")
Here, as in Gussin, the Family Court did not make
findings on the elements of a legal gift, i.e., (1) donative
intent; (2) delivery; and (3) acceptance. While some of the

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findings in FOF 17 appear to bear on these elements, because the
Family Court did not tie any of its findings regarding the
provisions of the Trust to, for example, Husband's donative
intent, it is unclear whether the Family Court found that in
signing the Trust documents, Husband intended to gift the two
properties at issue to Wife or the parties. Thus, without
further findings from the Family Court, we are unable to
meaningfully review the court's conclusions that the properties
were gifted by Husband to the parties and were thus Category 5
properties. Accordingly, we vacate the Family Court's property
division award, as reflected in the Divorce Decree and COL 11,
relating to the division of 5956 Kuamoo Road and 210 Kamalu Road,
and remand this case to the Family Court to make specific
findings as to the elements of whether these two properties were
a gift from Husband to Wife or the parties. See Gussin, 73 Haw.
at 489, 836 P.2d at 494.
Given our conclusion, we do not reach the remaining
issues raised by Husband regarding his contention that the Family
Court erred in denying him credit for $418,000 in Category 1 and
3 contributions to the marital estate.

(2) Deviation from Partnership Principles

Husband contends that the Family Court erred in
deviating from partnership principles because of Husband's
alleged financial misconduct, based on the transfer of cattle to
his sons, during the marriage.
The partnership model requires the family court to:
(1) find all facts necessary to categorize marital partnership
property into one of the five categories identified above, and to
assign the property the relevant net market values; (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 v. Jackson, 84 Hawai#i 319, 332, 933 P.2d 1353, 1366
(App. 1997)). To determine whether equitable considerations
justify a deviation from the partnership model, a family court

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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 Hawaii Revised Statutes (HRS) § 580-47(a)
(2006)); see also Hamilton, 138 Hawai#i at 206, 378 P.3d at 922.
"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 in COL 16 that a
"[v]alid and relevant consideration [(VARC)] exists to deviate
from the partnership model." On this basis, the court further
concluded and ordered:

[I]n addition to Defendant Husband's equalization payment to
Plaintiff Wife, Defendant Husband shall pay Plaintiff Wife
an additional ONE HUNDRED TWO THOUSAND TWO HUNDRED NINETY-
THREE AND 31/100 DOLLARS ($102,293.31) for one-half of the
total value of the cattle that Defendant Husband transferred
to his children, or a total of EIGHT HUNDRED TEN THOUSAND
FIVE HUNDRED THIRTEEN AND 85/100 DOLLARS ($810,513.85).

In reaching these conclusions, the Family Court made
the following findings of fact:

FOF 22 Valid And Relevant Consideration

In 2012 Defendant Husband gave away approximately
247 heads of cattle to his children in anticipation of
divorce. Plaintiff Wife found out about the gift during
Defendant Husband's deposition in 2014. The average value
per head of cattle sold in 2012 was $828.29. Thus, total
value of the cattle that Defendant Husband transferred to
his children was $204,587.63.

Relying on Gordon, Husband argues that his alleged
financial misconduct during the marriage "should not have been
considered by the family court when deciding whether to deviate
from an equal division of marital partnership property in the

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absence of a finding of extraordinary circumstances." 135
Hawai#i at 353, 350 P.3d at 1021. Wife, on the other hand,
argues that extraordinary financial misconduct during the
marriage may be the basis for equitable deviation, and that
Husband's transfer of cattle to his children in 2012 constituted
extraordinary financial misconduct.
The Family Court, however, did not make "a finding of
extraordinary circumstances" in connection with Husband's
transfer of cattle to his children. Gordon, 135 Hawai#i at 353,
350 P.3d at 1021. Absent such a finding, Husband's alleged
financial misconduct should not have been considered by the
Family Court in deciding to deviate from partnership principles.
Id. Deviation based on this consideration improperly focused on
the parties' past and on punishing Husband for his alleged
misconduct. See id.; see also Selvage, 139 Hawai#i at 511, 394
P.3d at 741 ("[the family court] cannot punish a party for
misconduct when deciding whether deviation from the partnership
model is appropriate.") Accordingly, the Family Court's
conclusion that Husband's 2012 transfer of cattle to his children
constituted a VARC authorizing a deviation from the partnership
model, as stated in COL No. 16, is wrong. The Family Court thus
abused its discretion in relying on this factor as a VARC to
justify such deviation and to order Husband to pay Wife an
additional $102,293 for one-half of the total value of the cattle
that Husband transferred to his children.2/ See Gordon, 135
Hawai#i at 353, 350 P.3d at 1021.
Given our conclusion, we do not reach the remaining
issues raised by Husband regarding his contention that the Family
Court erred in deviating from partnership principles.

2/
We note that in Gordon, the Hawai#i Supreme Court distinguished
the doctrine of dissipation of marital assets described in Higashi v. Higashi,
106 Hawai#i 228, 241, 103 P.3d 388, 401 (App. 2004), from the deviation from
partnership principles based on equitable considerations described in Jackson,
84 Hawai#i at 332, 933 P.2d at 1366. See Gordon, 135 Hawai #i at 352, 350 P.3d
at 1020. "Although financial misconduct is not a proper consideration in
determining a deviation from partnership principles in the absence of a
finding of exceptional circumstances, our law does allow a court to charge a
divorcing party for marital waste during the pendency of a divorce[.]" Id. at
353-354, 350 P.3d at 1021-22. Here, the Family Court made no finding that
Husband committed marital waste during the pendency of the divorce.

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(3) Order Granting Motion for Reconsideration

On May 10, 2017, Wife filed "[Wife's] Motion for
Reconsideration, Alteration or Amendment of Divorce Decree
Entered May 2, 2017" (Motion for Reconsideration), seeking an
order that Husband reimburse her in the amount of $18,532 for
taxes she paid on pre-trial spousal support. On October 12,
2017, the Family Court entered the Order Granting Motion for
Reconsideration.
Husband contends that pursuant to Hawai#i Rules of
Appellate Procedure (HRAP) Rule 4(a)(3), the Motion for
Reconsideration was deemed denied 90 days after it was filed, and
therefore, the Family Court lacked jurisdiction to later enter
the Order Granting Motion for Reconsideration.
It is undisputed that Wife's post-judgment Motion for
Reconsideration was a tolling motion pursuant to HRAP Rule
4(a)(3). HRAP Rule 4(a) (2020) provides, in relevant part:

Rule 4. APPEALS - WHEN TAKEN.

(a) Appeals in civil cases.

(1) TIME FOR FILING. When a civil appeal is permitted
by law, the notice of appeal shall be filed within 30 days
after entry of the judgment or appealable order.

. . . .
(2) PREMATURE FILING OF APPEAL . If a notice of appeal is
filed after announcement of a decision but before entry of
the judgment or order, such notice shall be considered as
filed immediately after the time the judgment or order
becomes final for the purpose of appeal.

(3) TIME TO APPEAL AFFECTED BY POST -JUDGMENT MOTIONS. If any
party files a timely motion for judgment as a matter of law,
to amend findings or make additional findings, for a new
trial, to reconsider, alter or amend the judgment or order,
or for attorney's fees or costs, and court or agency rules
specify the time by which the motion shall be filed, then
the time for filing the notice of appeal is extended for all
parties until 30 days after entry of an order disposing of
the motion. The presiding court or agency in which the
motion was filed shall dispose of any such post-judgment
motion by entering an order upon the record within 90 days
after the date the motion was filed. If the court or agency
fails to enter an order on the record, then, within 5 days
after the 90th day, the clerk of the relevant court or
agency shall notify the parties that, by operation of this
Rule, the post-judgment motion is denied and that any orders
entered thereafter shall be a nullity. The time of appeal
shall run from the date of entry of the court or agency's
order disposing of the post-judgment motion, if the order is
entered within the 90 days, or from the filing date of the

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clerk's notice to the parties that the post-judgment motion
is denied pursuant to the operation of the Rule.
The notice of appeal shall be deemed to appeal the
disposition of all post-judgment motions that are timely
filed after entry of the judgment or order.

The 90-day period shall be computed as provided in
Rule 26 of these Rules.
. . . .
(5) ENTRY OF JUDGMENT OR ORDER DEFINED . A judgment or
order is entered when it is filed in the office of the clerk
of the court.

(Emphasis added.)
Husband filed a notice of appeal from the Divorce
Decree on May 11, 2017, and Wife filed a notice of cross-appeal
from the Divorce Decree on May 30, 2017.
Pursuant to HRAP Rule 4(a)(3), the Family Court was
required to dispose of the Motion for Reconsideration by entering
an order by the end of the day on August 8, 2017, the ninetieth
day after the Motion for Reconsideration was filed. The Family
Court failed to do so. As discussed below, prior to the 2016
amendment to HRAP Rule 4(a)(3), the failure of a trial court to
enter an order within 90 days constituted a denial of such a
post-judgment motion, i.e., the motion was deemed denied.3/

3/
In 2016, HRAP Rule 4(a)(3) was amended as follows (deleted
material is bracketed and stricken; new material is underscored):

(3) TIME TO APPEAL AFFECTED BY POST -JUDGMENT MOTIONS. If any
party files a timely motion for judgment as a matter of law,
to amend findings or make additional findings, for a new
trial, to reconsider, alter or amend the judgment or order,
or for attorney’s fees or costs, and court or agency rules
specify the time by which the motion shall be filed, then
the time for filing the notice of appeal is extended for all
parties until 30 days after entry of an order disposing of
the motion. [; provided, that the failure] The presiding
court or agency in which the motion was filed shall [to]
dispose of any such post-judgment motion by entering an
order [entered] upon the record within 90 days after the
date the motion was filed [shall constitute a denial of the
motion]. If the court or agency fails to enter an order on
the record, then, within 5 days after the 90th day, the
clerk of the relevant court or agency shall notify the
parties that, by operation of this Rule, the post-judgment
motion is denied and that any orders entered thereafter
shall be a nullity. The time of appeal shall run from the
date of entry of the court or agency's order disposing of
the post-judgment motion, if the order is entered within the
90 days, or from the filing date of the clerk’s notice to
continued . . .

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In Ass'n of Condo. Homeowners of Tropics at Waikele v.
Sakuma, 131 Hawai#i 254, 318 P.3d 94 (2013), as clarified by
Deutsche Bank Nat. Trust Co. v Amasol, 135 Hawai#i 357, 351 P.3d
584 (2015), the Hawai#i Supreme Court held that the deadline for
filing a notice of appeal, stemming from a (pre-2016-amended)
HRAP Rule 4(a)(3) "deemed denial" of a timely post-judgment
tolling motion, was not triggered until the filing of an order
disposing of such motion.
Prior to the supreme court's ruling in Sakuma, the
Intermediate Court of Appeals interpreted HRAP Rule 4(a)(3)
consistent with Justice Nakayama's dissent in Sakuma, 131 Hawai#i
at 256-57, 381 P.3d at 96-97, and her concurring and dissenting
opinion in Amasol, 135 Hawai#i at 360-61, 351 P.3d at 587-88,
opining that the deemed denial of a post-judgment tolling motion,
resulting from a trial court's failure to enter an order by the
ninetieth day, triggered the 30-day deadline for filing an
appeal. Problems with the supreme court's interpretation of the
pre-2016 version of HRAP Rule 4(a)(3) in Sakuma/Amasol, as
articulated by Justice Nakayama in Amasol, included that it
"[led] to the impracticable result that long periods of time
could pass before a motion that has been deemed denied becomes
appealable, and the finality of cases may be delayed
indefinitely." Amasol, 135 Hawai#i at 361, 351 P.3d at 588.
However, as Chief Justice Recktenwald pointed out in his
concurring opinion in Amasol, 135 Hawai#i at 359-60, 351 P.3d at
586-87, although Justice Nakayama "raised strong arguments in
support of a contrary result, those arguments did not prevail"

. . . continued
the parties that the post-judgment motion is denied pursuant
to the operation of the Rule.

The notice of appeal shall be deemed to appeal the
disposition of all post-judgment motions that are timely
filed after entry of the judgment or order.
The 90-day period shall be computed as provided in
Rule 26 of these Rules.

Order Amending Rule 4 of the Hawai#i Rules of Appellate Procedure, SCRU-10-
0000012 (Haw. Mar. 7, 2016) (2016 Order Amending Rule 4).

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and addressing the matter through a rule amendment would be a
better course of action than overruling Sakuma.
The 2016 amendment to HRAP Rule 4(a)(3) addressed the
delayed entry of a written order on a post-judgment tolling
motion somewhat differently. The 2016 amendment maintained the
requirement that the trial judge enter an order disposing of such
motion within 90 days after the motion was filed, but deleted the
operative language stating that the failure to do so constituted
a deemed denial of the motion. See 2016 Order Amending Rule 4
("[; provided, that the failure] The presiding court or agency
in which the motion was filed shall [to] dispose of any such
post-judgment motion by entering an order [entered] upon the
record within 90 days after the date the motion was filed [shall
constitute a denial of the motion]."). Instead, the 2016 Order
Amending Rule 4 added a new trigger for a "deemed denial" of a
post-judgment tolling motion, i.e., notification from the clerk
of the court (or agency) that by operation of HRAP Rule 4(a)(3),
the post-judgment motion is denied and subsequent orders are a
nullity. See 2016 Order Amending Rule 4 ("If the court or agency
fails to enter an order on the record, then, within 5 days after
the 90th day, the clerk of the relevant court or agency shall
notify the parties that, by operation of this Rule, the post-
judgment motion is denied and that any orders entered thereafter
shall be a nullity."). This procedure clearly dispenses with the
Sakuma/Amasol requirement that the trial court enter a further
order at some further point in time by providing that any orders
entered after the clerk's notification are a nullity. However,
the deemed denial and the nullification of future orders stem not
just from the trial court's failure to timely take action, but
from two steps: (1) the trial court's failure to enter an order
disposing of a timely-filed post-judgment tolling motion; and (2)
the clerk of the court's notification to the parties that the
post-judgment motion is deemed denied by operation of the rule
and that any orders entered thereafter shall be a nullity.
This interpretation is supported by the next sentence
of HRAP Rule 4(a)(3), which sets forth alternative deadlines for

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the filing of a notice of appeal, which was added as part of the
2016 amendment to the rule:

The time of appeal shall run from the date of entry of the
court or agency's order disposing of the post-judgment
motion, if the order is entered within the 90 days, or from
the filing date of the clerk's notice to the parties that
the post-judgment motion is denied pursuant to the operation
of the Rule.

Thus, if a trial court enters an order within 90 days
of a timely-filed post-judgment, the notice of appeal must be
filed within 30 days after the entry of that order. However, if
the trial court fails to do so, it is the clerk's notice that
effectuates the denial of the motion and the 30-day deadline for
filing the notice of appeal, as well as the nullification of any
subsequent orders.
In the case at bar, however, the Family Court failed to
enter an order within 90 days and the clerk of the court failed
to send the required notification to the parties that the Motion
for Reconsideration is deemed denied by operation of the rule and
that any orders entered thereafter shall be a nullity. HRAP Rule
4(a)(3) does not contemplate this dual failure of both the court
and the court's clerk to execute the requirements of the rule.
Husband's interpretation of HRAP Rule 4(a)(3), as
"automatically" deeming the Motion for Reconsideration as being
denied 90 days after it was filed, renders superfluous the
requirement that the clerk provide notice to the parties of the
deemed denial. In the circumstances of this case, such an
interpretation would unfairly disadvantage Wife, essentially
telling her that she would have had to appeal the deemed denial
of a motion that the Family Court purportedly granted, despite
not receiving the notice required by the rule. In addition,
Husband's interpretation would nullify the subsequently-filed
Order Granting Motion for Reconsideration without authority to do
so, as the rule provides that "any order entered thereafter[,]"
i.e., entered after the clerk's notice to the parties, "shall be
a nullity." Under the proper reading of HRAP Rule 4(a)(3), under

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the circumstances of this case, the Order Granting the Motion for
Reconsideration was not nullified.4/
Husband's May 11, 2017 Notice of Appeal is deemed to
appeal the disposition of the Motion for Reconsideration, i.e.,
the Order Granting the Motion for Reconsideration. See HRAP Rule
4(a)(3) ("The notice of appeal shall be deemed to appeal the
disposition of all post-judgment motions that are timely filed
after entry of the judgment or order."). However, Husband's only
argument on appeal is that the Family Court lacked jurisdiction
to grant the Motion for Reconsideration pursuant to HRAP Rule
4(a)(3). Having no other argument before us, we affirm the Order
Granting Motion for Reconsideration.

(4) Post-Divorce Spousal Support

In Wife's cross-appeal, she argues that the Family
Court erred in failing to award her post-divorce spousal support.
She challenges COL 4, which states:

COL 4 Alimony
After considering the factors in Hawaii Revised
Statutes Section 580-47 especially considering the parties'
ages, their physical health, the duration of the marriage,
needs of the parties, the financial condition in which the
parties will be left as the result of this divorce action,
no alimony will be awarded.

According to Wife, the Family Court abused its discretion in
failing to award post-divorce spousal support because it "failed
to consider the most relevant factual questions" and "because its
decision clearly exceeded the bounds of reason."
We are vacating in part the Family Court's property
division award. As any need for spousal support will be related
to the property division, we also vacate the Family Court's
decision denying Wife an award of post-divorce spousal support.

4/
We note that in her answering brief, "Wife concedes that, pursuant
to [HRAP Rule] 4([a])(3), Wife's Motion for Reconsideration . . . was deemed
denied as a result of the Family Court's failure to enter an order on the
record within 90 days after Wife's Motion for Reconsideration was filed."
However, we are "not bound by a party's 'apparent concession of law.'"
Umberger v. Dep't of Land & Nat. Res., 140 Hawai #i 500, 520, n.38, 403 P.3d
277, 297 n.38 (2017) (quoting Ass'n of Apartment Owners of Newtown Meadows ex
rel. its Bd. of Dirs. v. Venture 15, Inc., 115 Hawai #i 232, 254, 167 P.3d 225,
247 (2007)).

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See Hamilton, 138 Hawai#i at 209, 378 P.3d at 925. On remand,
the Family Court should consider whether any changes in its
property division award impact its decision regarding spousal
support, in light of the criteria and factors set out in HRS
§ 580-47(a). See id.; JZ v. JZ, No. CAAP-XX-XXXXXXX, 2020 WL
257558, at *20 (Haw. App. May 21, 2020) (Mem.).

(5) Conclusion

For these reasons, we: (1) vacate the Family Court's
property division award, as reflected in the Divorce Decree and
COL 11, relating to the division of 5956 Kuamoo Road and 210
Kamalu Road, and remand this case to the Family Court to make
specific findings as to the elements of whether these two
properties were a gift from Husband to Wife or the parties; (2)
vacate the Family Court's property division award, as reflected
in the Divorce Decree and COL 16, relating to the Family Court's
conclusion that Husband's 2012 transfer of cattle to his children
constituted a VARC authorizing a deviation from the partnership
model; (3) affirm the October 12, 2017 "Order Granting [Wife's]
Motion for Reconsideration, Alteration or Amendment of Divorce
Decree Entered May 2, 2017 Filed Ex Officio May 10, 2017"; and
(4) vacate the Family Court's decision denying Wife an award of
post-divorce spousal support, as reflected in the Divorce Decree
and COL 4, and remand for the Family Court to consider whether
any changes in its property division award impact its decision
regarding spousal support, in light of the criteria and factors
set out in HRS § 580-47(a).

DATED: Honolulu, Hawai#i, October 13, 2021.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Peter Van Name Esser
for Defendant-Appellant/
Cross-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
Ronald P. Tongg
(Tongg and Tongg)
for Plaintiff-Appellee/ /s/ Karen T. Nakasone
Cross Appellant. Associate Judge

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