Weinberg v. DICKSON-WEINBERG

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IN THE SUPREME COURT OF THE STATE OF HAWAfI

p---o0o---

JAN MICHAEL WEINBERG,

Petitioner/Plaintiff-Appellee, 23

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BRENDA IRENE DICKSON-WEINBERG, 15
Respondent/Defendant-Appellant. m_

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No. 279`84 m

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(Fc-n No. 04-1-3936)
APRIL 7, 2010
MOON, C.J., NAKAYAMA, ACOBA, AND RECKTENWALD, JJ., AND
CIRCUIT JUDGE WILSON, IN PLACE OF DUFFY, J., RECUSED
OPINION OF THE COURT BY MOON, C.J.

On March l9, 20lO, this court accepted petitioner/
plaintiff-appellee Jan Michael Weinberg’s application for a writ
of certiorari, filed February 8, 20lO, seeking review of the
Intermediate Court of Appeals' (ICA) November l0, 2009 judgment
on appeal, entered pursuant to its October l4, 2009 published
opinion, Weinberq v. Dickson-WeinberQ, 121 HawaFi 40l, 220 P.3d
264 (App. 2009). Therein, the ICA, inter alia: (l) reversed the

03'\|.:£

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Family Court of the First Circuit's1 April 7, 2006 order denying
respondent/ defendant-appellant Brenda Irene Dickson-Weinberg's
(Dickson) motion to extend pretrial deadlines; (2) affirmed that
part of the May l8, 2006 divorce decree granting Weinberg’s
divorce but vacated those parts of the divorce decree denying
Dickson's alimony and dividing the former couple’s marital
property; and (3) vacated the family court’s findings of facts
(FOFs) and conclusions of law (COLs) filed August l6g 2006.
Briefly stated, this case centers around Weinberg's
high-profile, multi-million dollar divorce from Dickson.l During
the extensive pretrial proceedings, Dickson filed two motions to
extend pretrial deadlines, arguing that she was not consistently
represented by an attorney and required more time to prepare for
trial. The family court, however, denied Dickson's motions and,
thereafter, granted Weinberg's motion in limine to bar Dickson
from presenting any evidence at trial that she had failed to
provide in violation of the pretrial submission deadlines.
Dickson appealed, arguing, inter alig, that the family
court abused its discretion in refusing to extend the pretrial
deadlines and precluding her from introducing evidence at trial.
The ICA agreed and, ultimately, vacated the FOFs and COLS,
remanding the case to the family court for further proceedings.

Notwithstanding the ICA's conclusion and resulting remand, the

1 'I‘he Honorable Darryl Y. C. Choy presided over the trial and entered
the divorce decree.

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ICA went on to address ~~ for purposes of providing “guidance on
remand” -- Dickson’s contentions that the family court
incorrectly valued Weinberg’s law practice in section G. of the
“Discussion” and also opined regarding the validity of a
premarital individual retirement account (IRA) agreement, which
was not admitted into evidence, in section C. of the
“Discussion.”

On application, weinberg primarily argues that the ICA
gravely erred in reversing the family court’s denial of Dickson's
motion to extend pretrial deadlines in spite of Dickson's
“delaying tactics” and the prejudice to Weinberg. We agree with
the ICA that the family court abused its discretion in denying
Dickson's motions to extend pretrial deadlines and, thereafter,
sanctioning her by precluding her from proffering evidence that
was adduced in violation of the pretrial deadlines. However, we
believe that the ICA erred when it engaged in additional analysis
based in part on its speculation as to the facts that will be
adduced on remand. Therefore, we vacate sections C. and G. of
the “Discussion” in the ICA's opinion and affirm in all other

respects.2

2 We observe the ICA’s November lO, 2009 judgment on appeal states in
part that “the case is remanded for further proceedings consistent with its
opinion.” Inasmuch as this court is vacating portions of the ICA’s opinion
and entering a separate opinion, we vacate the ICA's November lO, 2009
judgment on appeal, and a new judgment on appeal will be entered at the
appropriate time.

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I. BACEU3ROLDU
Inasmuch as we take issue with only sections C. and G.
of the “Discussion” in the ICA's opinion, we adopt and
incorporate herein by reference the facts regarding the
“Background,” “Pretrial Proceedings,” “Trial Proceedings,” and
“Post-Decree Proceedings” set forth in the ICA's opinion.
II. STEEUDARDS CN? REVlEWV
A. Family Court Decisions

General1y, the family court possesses wide discretion

in making its decisions. ee In re Jane Doe, Born June 16, 1994,
101 HawaiH.220, 227, 65 P,3d 167, 174 (2003). Specifically,

[the family court’s] decisions will not be set aside unless
there is a manifest abuse of discretion. Thus, [this court]
will not disturb the family court’s decisions 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 exceed[ed] the
bounds of reason.

;Q4 (internal quotation marks and citations omitted) (some
brackets and ellipsis in origina1).

B. Motions to Extend Pretria1 Deadlines

Hawai‘i Revised statutes (HRS) § 571-8.5(@1) (5) (2006)

provides that “district family judges may . . . [g]rant
continuances in proceedings before them.” This court has stated
that “[a] court has the discretion to grant or refuse a
continuance of a proceeding in the orderly administration of

justice. This discretion is a judicial one and is subject to

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review for abuse.” Sapp v. Wonq, 62 Haw. 34, 41, 609 P.2d 137,
142 (l980) (citations omitted).
C. Sanctions

q“The imposition of a sanction is generally within the
discretion of the trial court.” 'Ek v. Boggs, 102 HawaiH.289,
299, 75 P.3d l180, 1190 (2003) (citation omitted). In reviewing

whether a trial court’s dismissal of a claim as a discovery

isanction constitutes an abuse of discretion, appellate courts

consider the following five factors: “(1) the public's interest
in the expeditious resolution of litigation; (2) the court’s need
to manage its docket; (3) the risk of prejudice to the [party
moving for sanctions]; (4) the public policy favoring disposition
of cases on their merits; and (5) the availability of less
drastic sanctions.” W.H. Shipman, Ltd. v. Hawaiian HolidaV
Macadamia Nut Co., 8 Haw. App. 354, 362, 802 P.2d 1203, 1207
(l990) (quoting Unfted States ex rel. Wiltec Guam, Inc. v.
Kahaluu Constr. Co., 857 F.2d 600, 603 (9th Cir. 1988) ( other
citations and internal quotation marks omitted).
III. DISCUSSION
Weinberg argues on application that the ICA erred in

reversing the family court’s denial of Dickson’s motion to extend
pretrial deadlines in spite of Dickson’s “delaying tactics” and
the prejudice to Weinberg. Preliminarily, we observe that, with
respect to such argument, weinberg points out an alleged

“internal[] inconsisten[cy]” within the ICA's opinion, arguing

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that the ICA erred “when it overruled the [family] court’s order
denying an extension of all pretrial deadlines, relied on aQma of
the 276 [FOFs] entered below but then vacated all [FOFs] and
substituted its judgment for that of the ffamily] court in
determining issues of fact and credibility.” Specifically,

weinberg argues:

In vacating the 276 [FOFs] signed by three [f]amily [c]ourt
judges, the ICA gave no explanation as to how or why the
[FOFs] were clearly erroneous. Moreover, it clearly relied
on some of the [FOFs] in its rulings on various orders it
affirmed. At best, the ICA's opinion is internally
inconsistent on its face and[,] therefore[,] warrants the
granting of certiorari. At worst, the ICA's opinion is a
destructive invasion of the [family] court’s wide discretion
to decide facts and credibility. with this opinion looming
as precedent over their heads, trial judges throughout the
state will be reluctant to exercise their inherent power to
control their courtrooms and cases. . . . The ICA’s
opinion will encourage abusive behavior by litigants and
trial by ambush. Court rules will be increasingly ignored,
trials delayed, and appeals fomented, all because trial
judges will be mindful of the ICA's opinion here which
undermined their authority.

The ICA cobbled together “facts” upon which it relied
for its conclusion, citing to some [FOFs] and misstating
facts unsupported by the record. The ICA's [o]pinion did
not state how or why aay of the [FOFs] were clearly "
erroneous.

The ICA's opinion ignores the [f]amily [c]ourt’s fact
and credibility determinations, is internally inconsistent
in that it relies on certain jFOFs] but then vacates all 276
[FOFs], relies on “facts” which are not record evidence, and
publishes a legal precedent with far-reaching negative

consequences not only for [f]amily [c]ourt judges, but civil
and criminal judges in this [s]tate.

(Emphasis in original.)

In making his “internal inconsistency” argument,
weinberg apparently believes that it was inappropriate for the
ICA to vacate the FOFs and then rely on them. However, weinberg

incorrectly reads the ICA's opinion. The ICA correctly reviewed

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the record -- including the family court’s FOFs -- and concluded,
based on the relevant FOFs, that the family court, in;a; alia,
abused its discretion in denying Dickson’s motion to extend
pretrial deadlines and in sanctioning her, As a result, the ICA
remanded the case for further proceedings, iaaa, a new trial,
thereby necessitating the vacating of the FOFs and COLs.
Consequently, contrary to weinberg's belief, the ICA did not rely
on vacated FOFs. In our view, weinberg's “internal
inconsistency” argument is a weak attempt to discredit the
entirety of the ICA's opinion as he raises the same argument
throughout his application.

Nevertheless, the ICA's conclusion that the family

court abused its discretion in denying Dickson’s motion to extend

pretrial deadlines, as well as in sanctioning her, and subsequent
remand is dispositive of the issues raised on application.
Accordingly, we first turn to weinberg's additional arguments/
with respect to Dickson’s motion to extend pretrial deadlines.
A. Motion to Extend Pretrial Deadlines

On direct appeal, the ICA held that the family court
abused its discretion in denying Dickson any extension of
pretrial deadlines and in, thereafter, precluding her from
introducing evidence that she did not produce by those deadlines.
weinberg, 121 Hawafi at 403, 220 P.3d at 266. In so holding,

the ICA stated:

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In addition to refusing to grant [Dickson] an
extension of pretrial deadlines, the family court sanctioned
[Dickson] for failing to meet the deadlines by granting
[weinberg]'s motion to exclude all of [Dickson]'s expert
witnesses, expert reports, trial exhibits, evidence not
provided in discovery, and claims not raised by [Dickson] in
her position statement. [Dickson] could therefore only
defend her positions with very limited evidence and oral
testimony and was severely prejudiced in adducing proof for
her claims to the marital estate.

Id. at 435, 220 P.3d at 298. In supporting its holding, the ICA

looked to cases from other jurisdictions and stated:

Other courts have concluded that a trial court abuses
its discretion when it fails to consider relevant factors
before sanctioning a party for submitting statements or
reports after a discovery deadline.

In Kamhi v. waterview Towers Condo. Ass’n, 793 So.2d
1033, 1035 (Fla. Dist. Ct. App. 20010, waterview Towers
Condominium Association (waterview) filed an action for
injunctive relief against Marjorie Kamhi (Kamhi), a _
condominium-unit owner, for violating a pet-control rule.
The trial court set the matter for trial on February 21,
2000 and imposed various pretrial deadlines, including a
December lO, 1999 deadline for submission of witness and
exhibit lists. laa Prior to the deadline, Kamhi’s attorney
filed a motion to withdraw due to irreconcilable
differences, which was granted on December 13, 1999. lQa
Kamhi's attorney did not file any witness and exhibit lists
before the required deadline. ;aa Kamhi's new counsel
appeared at a January 11, 2000 status conference and moved
to continue trial, but the trial court denied the motion. 1
lQa On January 12, 2000, waterview moved to compel Kamhi to
file and serve her witness and exhibit lists that had been
due on December 10, 1999. gai Kamhi’s second counsel
agreed to file the lists no later than January 20, 2000,
Laa However, without filing the lists, Kamhi's second
counsel filed a motion to withdraw, which was granted. ;aa
Thereafter, the trial court sanctioned Kamhi by precluding
her from presenting evidence or proffering testimony at
trial. ;aa at 1035-36. Kamhi then moved, pga aa, for a
continuance, claiming that she had found an attorney willing
to represent her if she could get a continuance in order to
accommodate the attorney's trial schedule. ;aa at 1036.
The trial court denied Kamhi's request and ordered that the
case proceed as scheduled. ;aa At trial, Kamhi was unable
to present any evidence or proffer testimony in defense of
waterview's claim, and the trial court enjoined her from
violating the pet-control rule. ;aa

On appeal, the Florida District Court of Appeals
reversed, stating:

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when a party fails to comply with an order, the trial
court has a broad spectrum of sanctions to impose,
although the sanction chosen must be commensurate with
the offense. Although striking a party’s pleadings is
the most severe sanction, it is appropriate where the
offending conduct is flagrant, willful or persistent.
“A deliberate and contumacious disregard of the
court’s authority will justify application of this
severest of sanctions, as will bad faith, willful
disregard or gross indifference to an order of the
court, or conduct which evinces deliberate
callousness.” Absent evidence of a willful failure to
comply or extensive prejudice to the opposition,
however, the granting of such an order constitutes an
abuse of discretion. It also has been found to be an
abuse of discretion to strike pleadings where a
litigant is punished for the failure of counsel, or
where there is only a single failure to comply which
did not result in extreme prejudice to the other side.

Although the trial court in this case did not strike
Kamhi's pleadings, its order prohibiting her from
presenting evidence and proffering testimony was
tantamount to the severest of sanctions. In its
motion for sanctions, waterview never pled prejudice
or any basis for sanctions which included the striking
of Kamhi's answer, entering a default or preventing
Kamhi from presenting evidence or testimony at trial.
At no time did the court make any findings that Kamhi
consciously and deliberately disregarded the trial
court’s order to submit her witness and exhibit lists
or that she acted in bad faith. Moreover, her failure
to timely comply with the court’s order was more a
failure by her attorneys. In each instance, Kamhi was
still represented by counsel when she failed to timely
serve her witness and exhibit lists.

Id. at 1036-37 (emphasis added[) (]citations omitted).

weinberg, 121 Hawaid.at 435-37, 220 P.3d at 298-300. The ICA
also discussed, inter alia, Maddox v. 8tone, 921 A.2d 912, 919-21
(Md. Ct. Spec. App. 2007) (holding that, in determining whether a
discovery violation warrants the sanction of exclusion of
evidence, a court must look to whether the violation was
substantial, the timing of the violation, the reason for the
violation, the degree of prejudice to the parties, whether such
prejudice may be cured by a postponement, and the desirability of

a continuance) and Long v. Steepro, 213 F.3d 983, 986 (7th Cir.

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2000)

(holding that “[t]he choice of appropriate sanctions is

primarily the responsibility of the district court,” but that

“the sanction selected must be one that a reasonable jurist,

apprised of the circumstances, would have chosen proportionate to

the infraction”).

Relying on such cases and the record in the

instant case, the 1CA concluded that:

weinberg,

In this case, [weinberg] did not object to a
continuance of pretrial deadlines as long as the trial date
remained the same. Nevertheless, the family court denied a
continuance. There is no indication in the record that the
family court weighed any factors in acting upon [Dickson]'s
motion for a continuance of pretrial deadlines. Moreover,
based on the family court’s oral statements and the
[FOFs]/[COLs], it appears that the family court, in denying
[Dickson]'s motion to extend the pretrial deadlines, treated
the deadlines as statutes of limitations, “chiseled in
concrete,” and therefore sanctionable if violated.

Scheduling orders are clearly valuable tools for
promoting the efficient management of a trial court’s
docket. However, as the Maryland Court of Special Appeals
recognized in Maddox:

[T]he imposition of a sanction that precludes a
material witness from testifying, and, consequently,
effectively dismisses a potentially meritorious claim
without a trial, should be reserved for egregious
violations of the court’s scheduling order; and should
be supported by evidence of willful or contemptuous or
otherwise opprobrious behavior on the part of the
party or counsel.

921 A.2d at 922. See also Revco, D.S., Inc. v. Cooper, 873
S.w.2d 391, 397 (Tex. App. l994) (holding that discovery
sanctions “so severe they prevent a trial on the merits are
warranted only where the record reflects a party’s flagrant
bad faith or counsel's callous disregard for the discovery

rules”).

Based on our review of the record and the
circumstances of the instant case, we conclude that the
family court abused its discretion when it refused to extend
any pretrial deadlines and thereafter sanctioned [Dickson] '
by precluding her from proffering evidence that was adduced
in violation of the pretrial deadlines.

121 Hawafi at 438, 220 P.3d 301.

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On application, weinberg generally argues that the 1CA
erred in reversing the family court’s denial of Dickson’s motion
to extend pretrial deadlines because Dickson engaged in delaying
tactics -- which weinberg alleges are indicated by voice mail
messages entered into evidence3 -- and any further continuance
would have prejudiced him. Related to his internal inconsistency
argument, weinberg argues that the ICA ignored the family court’s
FOFs and clearly erroneous standard of review. weinberg further
contends that the ICA's decision, which cites “inapposite cases
from other jurisdictions,” conflicts with Hawafi case law
“support[ing] the broad powers of trial courts to control the
litigation before them.” Specifically, he argues that the ICA’s
decision is inconsistent with Glover v. Grace Pacific Corp., 86
Hawaid.154, 948 P.2d 575 (App. 1997), “where the ICA affirmed a
trial court’s decision to strike an expert witness because the
expert had failed to furnish his final opinion before the
discovery cutoff date.”

In her response, Dickson argues that the ICA “properly
concluded that the family court imposed sanctions so severe they
prevented a trial on the merits, without considering a lesser

sanction or finding that [Dickson] acted deliberately or in bad

3 weinberg references voice mail messages left by Dickson between
November and December 2005 in which Dickson stated, inter alia, that: (1) she
was seeing a psychiatrist and was not well enough to go through with trial;

(2) she did not want to continue with her current attorney, Everett Cuskaden;
(3) she wanted weinberg to “let go of her life” and “let [her] go home”; and
(4) “[t]he marriage just keeps getting longer and longer.”

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faith.” She also asserts that weinberg “grossly exaggerates the
import of the family court’s [FOFs] by claiming they found
[Dickson] intended to delay the court proceedings by obtaining a
continuance,” when, in fact, there is no indication in the FOFs
or COLs that she intentionally delayed this case or acted in bad
faith.~ (Internal quotations omitted.) Dickson indicates her
agreement with the ICA’s reversal based on the family court’s
treatment of the pretrial deadlines as “statutes of limitations”
and submits that it is an abuse of discretion when a trial court
fails to consider other relevant factors before sanctioning a
party for submitting documents after a deadline. we first turn
to address weinberg's argument that the ICA “ignored” the family
court’s FOFs and, instead, “assumed” certain facts.

Specifically, weinberg states:

In the ICA's opinion, four assumed “facts” are recited to
support the ICA's conclusion that the [f]amily [c]ourt
abused its discretion: (1) Dickson had no attorney from
December 14, 2005 until January 2006 and needed a
continuance to complete discovery; (2) [t]he case was
complex and voluminous; (3) [Purcell] had a conflict on the
trial date and much work still needed to be done; and (4)
Dickson was financially unable to retain new counsel until
funds weinberg had been ordered to pay were released by the
[family c]ourt.

In direct contradiction to the ICA's assumed facts,
the actual record shows: (1) Dickson announced aaa intent
to fire [Cuskaden] as early as November[] 2005; (2) [h]er
threats to deliberately delay trial were admitted into
evidence as tape recorded voicemail messages; (3) Cuskaden's
[a]ffidavit in support of his motion to withdraw also
described Dickson’s disregard of court orders and his
advice; (4) Dickson never submitted an affidavit,
declaration, or testimony describing any effort to retain a
new attorney; (5) Dickson managed to retain seven different
attorneys, contrary to her claims of having difficulty
retaining attorneys; (6) [d]etailed discovery had been done;
(7) Purcell failed to provide a declaration detailing her
alleged conflicts and delayed filing a [m]otion to
[c]ontinue [t]rial for over a month, during a critical time

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period; and (8) [i]n November . . . and December[] 2005,
Dickson received $6,000 a month in spousal support and
deposited $72,089.71 into personal accounts while residing
at the Royal Hawaiian Hotel and enjoying a multi-thousand
dollar shopping spree.

(Emphases in original.) (Internal citations omitted.)
Preliminarily, we observe that the four “assumed

‘facts'” referred to by weinberg are described in the ICA

opinion; however, they are stated as a summary of the arguments

advanced by Dickson. Specifically, the ICA stated:

In seeking a continuance of trial in this case,
[Dickson] argued, in summary, that (1) she did not have an
attorney during a crucial time period between December 14,
2005 and late January 2006 and needed a continuance to
complete discovery, retain experts, and prepare for trial;
(2) her case was complex and the files were voluminous for a
new attorney to sort through; (3) the attorney whom she
wished to retain could not begin trial preparation without a
continuance because the attorney had a conflict on the
scheduled trial date and had ascertained from a preliminary
review of wife's files that much work remained to be done to
be ready for trial; and (4) [Dickson] could not retain an
attorney or a business evaluator until the family courts
released the $40,000.00 that [weinberg] had deposited into
court to cover her attorney’s fees and costs.

weinberg, 121 Hawafi at 438-39, 220 P.3d at 301-02. Although
acknowledging Dickson’s arguments in support of her contention
that the family court abused its discretion in denying her
request for a continuance of the trial date, the ICA -- more
importantly -- then indicated:

Our conclusion that the family court abused its
discretion in refusing to extend pretrial deadlines and in
sanctioning [Dickson] for missing the deadlines renders it
unnecessary to address [Dickson's] contention that the
family court abused its discretion in failing to continue
the trial date,

Id. at 439, 220 P.3d at 302 (emphasis added). Clearly, not only

did the ICA not “assume[] ‘facts,'” it never even considered

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Dickson’s arguments inasmuch as its prior conclusion with respect
to the pretrial deadline issue was dispositive.

Next, we address whether the family court abused its
discretion in denying Dickson’s motion to extend pretrial
deadlines and, thereafter, precluding her from submitting any
evidence at trial that was not produced during discovery,

Hawafi Family Court Rules (HFCR) Rule 16 (2000) states
in relevant part that “[t]he [family] court in its discretion may
establish a pretrial calendar on which actions may be placed for
consideration[.]” (Emphasis added.). Further, trial courts have
broad powers to control the litigation process before them,

including the presentation of evidence. See Richardson v. Sport

Shinko §waikiki Co;p.), 76 Hawafi 494, 507, 880 P.2d 169, 182
(1994). In Richardson, this court stated that:

Among courts’ inherent powers are the powers “to create a
remedy for a wrong even in the absence of specific statutory
remedies[,]” and “to prevent unfair results.” The courts
also have inherent power to curb abuses and promote a fair
process which extends to the preclusion of evidence and may
include dismissal in severe circumstances. lt follows that
if the trial court has the inherent power to level the
“ultimate sanction” of dismissal, it necessarily has the

power to take all reasonable steps short of dismissal,
depending on the egaities of the case.

Id. at 507, 800 P.2d at 182 (citations omitted) (emphases added).

As pointed out by the ICA,

the trial court has a broad spectrum of sanctions to impose,
although the sanction chosen must be commensurate with the
offense. Although striking a party’s pleadings is the most
severe sanction, it is appropriate where the offending
conduct is flagrant, willful or persistent. “A deliberate
and contumacious disregard of the court’s authority will
justify application of this severest of sanctions, as will
bad faith, willful disregard or gross indifference to an
order of the court, or conduct which evinces deliberate
callousness.” Absent evidence of a willful failure to

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comply or extensive prejudice to the opposition, however,
the granting of . . . an order [striking a party’s
pleadings] constitutes an abuse of discretion.

weinbe:g_, 121 Hawai‘i at 43'7, 220 P.3d at 300 <¢iting gear 793
So. 2d at 1036) (emphases added); aaa a1aa Maddox, 921 A.2d at
919 (stating that “the more draconian sanctions[] of dismissing a
claim or precluding the evidence necessary to support a claim[]
are normally reserved for persistent and deliberate violations
that actually cause some prejudice, either to a party or to the
court.”); United States v. Mavrokordatos, 933 F.2d 843 (10th Cir.
1991). Accordingly, the imposition of a sanction -- in this
'case, precluding Dickson from submitting any evidence not
previously disclosed -- requires “an analysis of the relevant
facts and circumstances that resulted in the exercise of
discretion.” Maddox, 921 A.2d at 919.

Here, the record indicates that, after a failed attempt
at mediation, Dickson made several requests to extend the
pretrial deadlines, as evinced by: (1) Dickson’s ppa aa January
11, 2006 motion to cancel trial, which was never set for hearing;
(2) her February 24, 2006 motion requesting a continuance of
trial (set for March 2006) and pretrial deadlines (which had
already expired), which was denied; as well as (3) her April 4,
2006 motion to extend pretrial deadlines, which was also denied.
The record further indicates that, throughout the pretrial

proceedings, Dickson was frequently without counsel, had no

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continuous representation, and was constantly unable to pay her
attorneys' fees.

3 Although weinberg argues that Dickson employed
“delaying tactics” throughout the proceedings, his only support
for such allegation was the voice mail messages Dickson left for
him in late 2005, in which Dickson told him to “let go of her
life” and “let [her] go home,” and that “[t]he marriage just
keeps getting longer and longer.” Dickson’s voice messages --
contrary to,weinberg's assertions -- tend to demonstrate
Dickson’s desire to end the marriage (as opposed to prolonging

it) and to get on with her life in California. weinberg fails to

_point to anything in the record to support his bald assertion

that Dickson acted in “bad faith,” “willful[ly] disregard[ed]” an
order of the court, or conducted herself in a way that evinces
“deliberate callousness[,]” §amhi, 793 So. 2d at 1036, and the
family court made no findings that to that effect.

Despite the lack of FOFs, COLs, or any evidence in the
record that Dickson acted in bad faith or willfully disregarded
the court’s authority, the family court denied Dickson’s motion
to extend pretrial deadlines and, thereafter, sanctioned her for
failing to meet the deadlines by granting weinberg's motion in
limine. The family court’s ruling effectively precluded Dickson
from presenting any expert witnesses and reports, as well as

other documentary evidence, including the thirty-two exhibits she

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brought with her on the morning of trial.4 1n support of its
ruling and sanction, the family court cited the financial
prejudice that would result to weinberg from any further
continuances; however, it appears that the family court failed to

consider the prejudice that the aforementioned sanctions would

have on Dickson. Indeed, the prejudice to Dickson resulting from'

her inability to secure experts and present any documentary
evidence at trial was tantamount to entering a default against
her. Given the severity of such a sanction, without any finding,
conclusion, or evidence in the record that Dickson acted
willfully and in bad faith, the ICA was correct in concluding
that the family court abused its discretion in refusing to extend
the pretrial deadlines.5

without reiterating the ICA's analysis in its entirety,
we agree with the ICA that “the sanction chosen must be
commensurate with the offense” and “should be supported by

evidence of willful or contemptuous or otherwise opprobrious

4 _we note that Dickson did present two witnesses at trial -- one who
testified about sharing fees with weinberg and another who testified as to his
role in drafting the IRA agreement.

5 Relatedly, weinberg argues that the ICA ignored the clearly erroneous
standard in vacating the FOFs. The family court’s FOFs are reviewed on appeal
under the clearly erroneous standard -- i.e., whether (1) the record lacks
substantial evidence to support the challenged findings, or (2) despite
substantial evidence in support of the challenged findings, this court is
nonetheless left with a definite and firm conviction that a mistake has been
made. In re Jane Doe, 101 Hawai‘i at 227, 65 P.3d at 174. Although the 1CA
did not engage in the requisite clearly erroneous analysis, such analysis is,
in our view, implicit in the ICA's analysis. In other words, implicit in the
ICA's conclusion that the harsh sanctions imposed on Dickson by the family
court extensively prejudiced her (and, essentially, outweighed the prejudice
to weinberg) is that the relevant FOFs to the contrary are clearly erroneous.

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behavior” and that the family court “treated the [pretrial]
deadlines as statutes of limitations, ‘chiseled in concrete,' and
therefore sanctionable if violated.” Absent any evidence of bad
faith on the part of Dickson, we believe the prejudice to Dickson
outweighed any financial prejudice to weinberg that may have
resulted from a continuance of the trial date and the attendant
extensions of the various pretrial deadlines. Indeed, lesser
sanctions -- such as monetary sanctions against Dickson for costs
resulting from delays due to a continuance that were suffered by
weinberg -- may have been more commensurate with the offense.
§§ i<_am_i_i_i, 793 s@. 2a at 1036,- §§ a_i§_g w.H. shit>man, Lta. v.
Hawaiian Holiday Macadamia Nut Co., 8 Haw. App. at 362, 802 P.2d
at 1207 (listing “the availability of less drastic sanctions” as
one of five factors considered by an appellate court when
reviewing whether a trial court abused its discretion in issuing
sanctions). Consequently, on remand, the family court should
determine what, if any, lesser sanctions would be appropriate.6

Finally, weinberg argues, as previously indicated, that
the ICA’s opinion is inconsistent with Glover, wherein the ICA
reviewed the issue whether the trial court abused its discretion
in striking an expert witness because the expert, without

explanation, had failed to furnish his final opinion before the

6a If the family court decides that monetary sanctions against Dickson
for costs resulting from delays are appropriate, then, weinberg should be
allowed an opportunity to provide the family court with such information.

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discovery cutoff date. 86 HawaFi at 164, 948 P.2d at 585. In
Glover, the expert produced documents pursuant to a subpoena
duces tecum four days after the discovery deadline but such

documents did not contain his final opinions pursuant to HawaiT.

Rules of Civil Procedure (HRCP) Rule 34 (1997) (governing
production of documents during discovery). lay A week after the
expert produced the documents, the expert indicated at his
deposition that he still had not reached his final opinion. gay
Consequently, the trial court struck from the witness list the
expert that failed to comply. lay

On direct appeal, Glover challenged this sanction,
among other things. lay Addressing the issue, the 1CA held

that,

[i]n this context, we believe that the fair import of the
policies underlying the discovery cutoff date is that an
expert should have arrived at his or her final opinions by
that date. Otherwise, the party seeking discovery of such
opinions would be prevented from adequately preparing for
trial. As a result, the [trial] court could determine that
[the expert’s] failure to furnish his final opinion before
the discovery cutoff date constituted Glover's undue
interference with the orderly pretrial procedures of the
court under [Rules of the Circuit Court of Hawafi\(]RCCH[)]
Rule 12(t) [(2007) (“Failure of a party or his attorney to
comply with any section of this rule is deemed an undue
interference with orderly procedures and unless good cause
is shown, the court may, in its discretion, impose
sanctions.”)]. we conclude, then, that the court acted
within its discretion when it entered the economic loss
order striking [the expert] as a witness.

Glover, in our view, is distinguishable from the
instant case because the striking of one expert witness -- whose

value to the outcome of trial was unknown inasmuch as neither the

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trial court nor the parties knew what the expert's as yet
unfurnished final opinion would have been -- does not have the
same effect of essentially barring nearly an entire body of
evidence, as in this case. Because the sanctions levied in the
instant case were far harsher than that imposed in Glover, we
believe, contrary to weinberg's view, that the lCA’s opinion is
not inconsistent with Glover.7
Based on the foregoing, we conclude that the ICA did

not err in vacating the FOFs/COLs and remanding the case for
further proceedings. However, even though the ICA concluded that
the family court’s failure to extend pretrial deadlines
“render[ed] it unnecessary to address [Dickson]'s remaining
issues on appeal,” the ICA went on to address -- for purposes of
providing “guidance on remand” -- Dickson’s contention that the
family court incorrectly valued weinberg's law practice in

section G. of the “Discussion,” as well as opined regarding the

7 weinberg also argues that the 1CA “failed to cite a single HawaiH_
case on the consequences of missed pre-trial deadlines” and, instead,
“erroneously relied on Long[.]” In Long, the trial court aaa sponte dismissed
an action brought by the plaintiff against prison employees because the
plaintiff failed to file his evidentiary lists by the deadline set in a
scheduling order. 213 F.3d at 985. The plaintiff appealed, essentially
arguing that this was too harsh of a sanction. lay The Seventh Circuit Court
of Appeals held that the trial court abused its discretion in imposing
dismissal as a sanction, stating that “the interests of justice are best
served by resolving cases on their merits,” and, thus, “the sanction of
dismissal with prejudice must be infrequently resorted to by district courts
in attempting to control their dockets and extirpate nuisance suits.” lay at
986 (citations and internal quotation marks omitted). we disagree with
weinberg that Long is inapposite. In the instant case, Dickson was not only
severely hampered in defending her position with very limited evidence and
oral_testimony, she was effectively precluded from producing any evidence to
prove her claims to the marital estate. As such, any affirmative claims she
may have pursued -- like the plaintiff in Long -- were essentially dismissed.

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validity of a premarital individual retirement account (IRA)
agreement (which was never admitted into evidence) in section C.
of the “Discussion.”

Because the FOFs/COLs have been properly vacated, the
family court, on remand, will inevitably enter new findings and
conclusions based on the evidence presented at the new trial.
Thus, any further analysis with respect to weinberg's law
practice and the premarital 1RA agreement [hereinafter,
collectively, the “guidance” issues] was premature and
speculative. Keeping the foregoing in mind, we now turn to
specifically address weinberg's contentions on application with
respect to those issues.

B. weinberg's Remaining Contentions
1. Va1uation of weinberg's Pending Contingency Fee Cases

At trial, evidence was presented via expert testimony
regarding the valuation of weinberg's law firm for the purposes
of dividing the couple’s marital property. In making its
decision, the family court did not consider weinberg's
contingency fee cases that remained pending since weinberg filed
for divorce. weinberg, 121 HawaFi at 447-48, 220 P.3d at 310-
11. On appeal, Dickson argued that the family court erred when
it grossly undervalued weinberg's law firm by refusing to
consider his pending unliquidated contingency fee cases. In
reviewing Dickson’s contention, the ICA held that, as a matter of
first impression, an attorney spouse's contingency-fee cases are

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marital property subject to division. weinberg, 121 Hawafi at
448, 220 P.3d at 311. More specifically, the ICA concluded that
it would be proper for the family court to estimate the value of
weinberg's unliquidated contingency-fee cases using methodology
set forth in a treatise relating to valuation of specific assets
in divorce. lay at 450, 220 P.3d at 313.

0n application, weinberg argues that the ICA erred in
the approach it adopted for the valuation of an attorney’s
contingency fee cases inasmuch as it “ignored HawaFi law and
relevant case law from other jurisdictions” and instead “adopted
an approach taken from a treatise, an approach no other state has
adopted.” Specifically, weinberg contends that: (1) “the ICA
fashioned an unworkable approach, not grounded in reality, that
will have the disastrous effect of adding years to the duration
of litigation, multiplying the expense of litigation, fostering
inequity and injustice, and increasing the number of appeals,”
which would “not be limited to contingent fee cases[] but would
apply to all situations where there could be financial gain after
the date of divorce”; and (2) “the ICA's newly created approach
is . .;. profoundly unfair in that it fails to account for the
individual nature of pending cases.”

lnasmuch as the ICA recognized, and we agree, that it
was “unnecessary to address” the contingency fee issue based on
its conclusion with respect to the pretrial deadlines and related

sanctions, the lCA's discussion regarding the contingency fee

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issue was premature. Additionally, the ICA based its entire
analysis on the assumption that the facts will remain the same on
remand, which -- based on the ICA's vacatur of the FOFs,
requiring aaa FOEs -- is highly unlikely. Therefore, the ICA's
discussion of the contingency fee issue was also speculative;
2. The IRA Agreement
At trial, Dickson testified that she spoke with

weinberg about an agreement for the division of his IRAs, and her
understanding was that, in the event that the couple divorced,
she was to get half of his IRAs, annuities, Charles Schwab
securities accounts, and the 401(k)s. According to Dickson,
“[t]here were no contingencies.” On cross-examination, weinberg
testified that he had never unconditionally agreed to give
Dickson one-half of his IRAs. Rather, he asserted, Dickson was
concerned about being exposed to his tax liability and about not
being reimbursed for monies advanced by her from her personal
bank account and, thus, he made an agreement with her to protect
her with one-half of his IRAs if he did not reimburse her. Both
parties testified that Dickson was reimbursed for all of the
monetary advances she had made. Because Dickson was precluded
from introducing her exhibits at trial, the actual lRA agreement
was not admitted, and the family court specifically declined to

consider it.

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On appeal, Dickson argued, inter alia, that the family

court erred when it refused to enforce an IRA agreement that
would award her one-half of weinberg's IRAs inasmuch as the
family court (1) abused its discretion, as discussed aap;a, in
excluding the agreement from evidence, and (2) had no authority
to impose conditions on a written agreement based on parol
evidence. The ICA recognized that “[its] conclusion that the
family court abused its discretion in failing to extend pretrial
deadlines is dispositive of [Dickson]'s claim that the family
court erred in refusing to enforce the IRA [a]greement on the
basis of [Dickson]'s failure to provide the IRA [a]greement to
[weinberg] by the deadline set forth in Pretrial Order No. 1.”
weinberq, 121 Hawafi at 432, 220 P;3d at 295. Nevertheless, the
ICA reviewed the record and the parol evidence rule and held,
laaa; alla, that “[t]he IRA [a]greement clearly and unambiguously
provided that [Dickson] would get one-half of four of
[weinberg]'s lRAs in the event of divorce” and, inasmuch as “the
family court did not determine that the IRA [a]greement was
unconscionable, abandoned, or entered into pursuant to fraud[,]
it was improper for the family court to allow [weinberg] to
testify about conditions outside the four corners of the IRA
[a]greement that would render the lRA [a]greement unenforceable.”

ld. at 433, 220 P.3d 296.

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On application, weinberg argues that: (1) Dickson.
failed to raise the alleged IRA agreement in her answer to the
complaint as a “defense, in law or fact, to a claim for relief,”
as required by HFCR 12(b); and (2) the lRA agreement was never
admitted into evidence, is not part of the record, and should not
have been reviewed by the ICA.8 weinberg additionally asserts
that the ICA erroneously held that the family court erred in
allowing weinberg“s testimony as to the conditions precedent to
the IRA agreement because such testimony was barred by the parol
evidence rule inasmuch as (1) Dickson not only failed to object
to the admission of such evidence but affirmatively elicited it
during her cross-examination of weinberg and (2) evidence of
conditions precedent to a contract, pursuant to the Restatement
(Second) of Contracts § 2179 is a well-recognized exception to

the parol evidence rule.”

3 As correctly pointed out by weinberg, the IRA agreement, which was
appended as an exhibit to Dickson’s opening brief, was not reviewable inasmuch
as the agreement was not admitted into evidence and, therefore, was not part
of the record. aaa HRS § 641-2 (1993) (“Every appeal shall be taken on the
record[j] and no new evidence shall be introduced in the [appellate] court.”)

9 Restatement (Second) of Contracts § 217 states that, “[w]here the
parties to a written agreement agree orally that performance of the agreement
is subject to . . . a stated condition, the agreement is not integrated with
respect to the oral condition.”

w we note that weinberg additionally argues that the lCA gravely erred
in “vacating the FOFs/COLs regarding the IRA agreement” and “ignored clear
legal authority and the [f]amily [c]ourt's finding that weinberg was the more
credible party.” Inasmuch as these arguments, again, relate to weinberg's
unfounded “internal inconsistency” argument, we do not address them further.

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As stated above, the lCA recognized the pretrial
deadline issue to be dispositive, but, nevertheless, continued
with its analysis as to the IRA agreement and the parol evidence
rule. ,Such analysis appears to have been based on an assumption
by the ICA that the written IRA agreement, which was barred from
evidence in the instant case, would be presented by Dickson and
admitted into evidence on remand. However, whether Dickson-will
comply with the pretrial deadlines on remand and offer the IRA
agreement as evidence and whether the family court will admit the
IRA into evidence are merely speculative. Because the parol
evidence rule -- which bars the testimony of prior
contemporaneous negotiations and agreements that vary or alter
the terms of a written instrument, Cosmopolitan Fin. Corp. v.
Runnels, 2 Haw. App. 33, 625 P.2d 390 (1981) -- will only apply
on remand if the actual IRA agreement instrument is admitted into
evidence, it was premature for the ICA to address this issue.

l IV . CONCLUSION

Based on the foregoing, we agree with the ICA that the
family court abused its discretion with respect to the pretrial
deadlines and sanctions barring Dickson’s evidence. Thus, on
remandy the family court should determine what, if any, lesser
sanctions would be appropriate. In so doing, the family court
should also, if appropriate, allow weinberg to provide
information regarding costs suffered by him as a result of the

delays§

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we also believe that the lCA erred when it engaged in

additional analysis based in part on its speculation as to the

facts that will be adduced on remand.

section C.

(relating to the IRA agreement)

Therefore, we vacate

and section G.

(relating to weinberg's law practice) of the “Discussion” in the

ICA's opinion and affirm in all other respects.

Charles T. Kleintop and Dyan M.

Medeiros (of Kleintop, Luria &
Medeiros) and Margaret C.
Jenkins, for petitioner/

plaintiff-appellee weinberg

Peter van Name Esser, for
respondent/defendant-appellant
Dickson-weinberg

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