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Electronically Filed
Supreme Court
SCWC-28977
24-AUG-2011
08:37 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
BONNIE MACLEOD KAKINAMI, Respondent/Plaintiff-Appellee,
vs.
AARON K.H. KAKINAMI, Petitioner/Defendant-Appellant.
NO. SCWC-28977
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 28977; FC-D. NO. 06-1-0040)
AUGUST 24, 2011
RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND McKENNA JJ.
OPINION OF THE COURT BY DUFFY, J.
Petitioner/Defendant-Appellant Aaron K.H. Kakinami
(Aaron) filed a timely application for a writ of certiorari
(Application), urging this court to review the Intermediate Court
of Appeal’s (ICA) March 30, 2011 judgment on appeal in support of
its February 28, 2011 summary disposition order (SDO), which
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affirmed the Family Court of the Fifth Circuit’s (family court)
October 1, 2007 decree granting absolute divorce.1
Aaron’s Application presents the following questions:
A. Did the [ICA] commit grave error when it changed the
burden of proof for bifurcation in divorce cases from
exceptionally compelling circumstances to good cause,
thereby opening the floodgates for bifurcated divorce
trials, in derogation of both ICA and Supreme Court
precedent?
B. Did the [ICA] commit grave error when it affirmed an
arbitrary and unnecessary bifurcation of a Kauai divorce
case, where the family court utterly failed to indentify
[sic] exceptionally compelling circumstances or good cause?
We accepted the Application on August 1, 2011 in order
to clarify that the statutory requirement of “good cause” for
bifurcation of a divorce case set forth in Hawai#i Revised
Statutes (HRS) § 580-47(a) has not been abrogated. We hold that
the family court may bifurcate divorce proceedings upon a finding
of good cause. In this case, the family court’s finding of good
cause to bifurcate the divorce proceedings was supported by
evidence in the record and was not an abuse of discretion.
I. BACKGROUND
This case arises from the divorce proceedings between
Aaron and Respondent/Plaintiff-Appellee Bonnie MacLeod Kakinami
(Bonnie).
1
The Honorable Calvin K. Murashige presided.
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A. Procedural History
Bonnie filed a complaint for divorce on March 9, 2006,
alleging that the marriage was irretrievably broken. In his
answer, Aaron admitted that the marriage was irretrievably
broken.
Trial was originally set for August 10, 2007. Aaron
moved to continue the trial, arguing that he needed more time to
complete discovery because third parties had been slow to respond
to his discovery requests. During the hearing on the motion to
continue, the family court had the following discussion with
Bonnie’s counsel:
I think the bottom line is that [Aaron’s counsel] is seeking
a continuance. And it appears that, for reasons which I
certainly don’t understand, his subpoenas have been served,
the responses have been slow in coming. And I think the
last time we spoke . . . I had asked whether your client
wanted to be divorced, we would bifurcate the division of
assets and debts to a later time. That is still an option
that is available to her if she chooses to do so. . . .
Because she may, just from a psychological emotional
standpoint, just want to get divorced. . . . And that would
certainly make her a little more tolerable of the delays
that [Aaron’s counsel] is encountering in getting the
records.
The family court granted the continuance and reset the trial for
December 7, 2007. The court also twice reminded Bonnie that she
could file a motion to bifurcate if she wanted to obtain a
divorce decree prior to the trial date.
Bonnie filed a motion to bifurcate on August 15, 2007,
in which she argued, inter alia, as follows:
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. . .
3. It has been 18 months since Plaintiff filed her
complaint for divorce.
4. It has been close to 12 months since Plaintiff filed
her Motion to Set.
5. Because of extensive discovery and alleged lagging
discovery compliance by third parties, this matter has been
in litigation for a year and a half.
6. Plaintiff desires to be divorced from Defendant.
7. Plaintiff requests that this court bifurcate the
dissolution of her marriage from the final division of
certain property and certain debts until the evidentiary
portion of the divorce trial is concluded, presently
scheduled for December 7, 2007.
. . .
Bonnie also requested the division of certain items of real and
personal property prior to the trial.
The family court held a hearing on Bonnie’s motion to
bifurcate on August 27, 2007, and granted her request. During
the same hearing, the court heard testimony from Bonnie regarding
the dissolution of marriage. The court found that Bonnie had
proven the material allegations of the complaint and was entitled
to a divorce. The effective date of the decree granting absolute
divorce was October 1, 2007. The decree: (1) dissolved Aaron and
Bonnie’s marriage; (2) terminated Aaron from Bonnie’s medical
insurance coverage; (3) allowed each party to change beneficiary
designations on his or her insurance policies and retirement
plans; (4) assigned possession of Aaron and Bonnie’s vehicles;
and (5) awarded the marital home to Aaron, provided that Aaron
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buy out Bonnie’s interest. The family court reserved the
division of property and debts not decided by the divorce decree
until the December 7, 2007 trial.
On March 11, 2008, the family court entered its
findings of fact and conclusions of law. The court made the
following findings of fact:
. . .
3. The parties became embroiled in a series of discovery
disputes through Defendant’s Motions to Compel Discovery
against Plaintiff and third parties and through Plaintiff’s
Motion for Protective Order.
4. The Court intervened on a number of occasions in order
to resolve the discovery disputes.
5. Per Memorandum of Family Court . . . the trial of this
matter was scheduled for August 10, 2007. . . .
6. On July, 10, 2007 Defendant filed a Motion to Continue
Trial . . .
. . .
13. Plaintiff objected to the motion for continuance as
the divorce proceedings at point [sic] had taken almost a
year and a half and the personal attack and viciousness of
the proceedings had taken an emotional toll on Plaintiff.
. . .
17. The Court granted Defendant’s motion to continue the
trial. The trial date was re-set to December 7, 2007. . . .
18. Plaintiff filed a Motion to Bifurcate Divorce on
August 15, 2007.
. . .
21. As of August 27, 2007 the parties had been in
litigation for approximately 18 months.
22. On August 27, 2007 the court granted Plaintiff’s
motion to bifurcate the divorce.
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23. On August 27, 2007 Plaintiff made her prima facie case
for divorce.
24. On August 27, 2007 the Court granted Plaintiff’s
complaint for divorce from Defendant, effective
prospectively on October 1, 2007. At that hearing the court
also made certain orders regarding division of property and
debts.
. . .
26. On September 27, 2007 the order granting Plaintiff’s
Motion to Bifurcate was entered.
27. On October 1, 2007 the divorce decree was entered.
. . .
29. From the outset of this litigation, the parties have
been extremely litigious.
30. Accusations against Plaintiff and/or her counsel by
Defendant and his first counsel . . . fueled by charges of
wrongdoing and bad faith left Plaintiff emotionally
drained[.]
31. The litigiousness appeared to be unnecessarily
dissipating the estate of the parties.
32. Of the four discrete parts of a divorce, the only
contested issue was the division of property and debts. As
to those issues, the only contested issue at the time of the
bifurcation hearing was division of the investment assets
titled solely in Plaintiff’s name.
. . .
3[7]. The parties are permitted to name their designated
beneficiary on their insurance and retirement plans.
38. Defendant is entitled to medical insurance coverage
under the COBRA plan for 36 months after the entry of the
divorce decree, provided he makes the monthly premiums.
39. The monthly premiums are approximately $272.00 per
month.
40. Defendant is an attorney licensed to practice law in
the state of Hawaii.
41. Defendant has the financial ability to make those
monthly payments.
42. Defendant is already paying his share of the medical
insurance premiums under Plaintiff’s plan.
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. . .
45. Defendant has not been prejudiced by the bifurcation
of the divorce.
The family court’s conclusions of law stated:
1. The Court has jurisdiction to bifurcate the divorce
pursuant to HRS 580-56 and for good cause.
2. The standard for granting or denying a motion to
bifurcate is abuse of discretion.
3. Based on the totality of the evidence, the files and
the records herein, the Court has good cause to grant
Plaintiff’s motion to bifurcate the divorce and reserve the
division of property and debt for the trial on December 7,
2007.
4. Defendant has not been jeopardized by the bifurcation.
B. Appeal to the ICA
Aaron filed his opening brief with the ICA on August 5,
2008, in which he challenged a number of the family court’s
findings of fact and conclusions of law.
In its SDO, the ICA stated that HRS § 580-47(a) allows
the family court, upon entering a divorce decree, to reserve
jurisdiction over property division and distribution upon a
finding of good cause. SDO at 3. The ICA noted that in Eaton v.
Eaton, 7 Haw. App. 111, 748 P.2d 801 (1987), it stated that “we
recommend that, except in exceptionally compelling circumstances,
all parts [of a divorce case] be decided simultaneously . . . .”
SDO at 3 (quoting Eaton, 7 Haw. App. at 118, 748 P.2d at 805)
(emphasis and brackets in original). The ICA, however, concluded
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that the Eaton court’s recommendation did not modify the good
cause requirement established by HRS § 580-47(a). Id. at 3-4.
The ICA further concluded that evidence in the record
supported the family court’s finding that good cause existed to
bifurcate the proceedings. Id. at 6. Thus, the family court did
not abuse its discretion by bifurcating the proceedings and
entering the October 1, 2007 divorce decree. Id.
Aaron filed his Application on June 27, 2011. Bonnie
filed a response on July 12, 2011.
II. 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 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 exceeded the bounds of
reason.
Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)
(quoting In re Doe, 95 Hawai#i 183, 189-90, 20 P.3d 616, 622-23
(2001)).
B. Family Court’s Findings Of Fact And Conclusions Of Law
The family court’s [findings of fact (FOFs)] are reviewed on
appeal under the “clearly erroneous” standard. A FOF 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
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to enable a person of reasonable caution to support a
conclusion.
On the other hand, the family court’s [conclusions of law
(COLs)] are reviewed on appeal de novo, under the
right/wrong standard. COLs, consequently, are []not binding
upon an appellate court and are freely reviewable for their
correctness.
Id. (quoting In re Doe, 95 Hawai#i at 190, 20 P.3d at 623)
(brackets added).
III. DISCUSSION
Aaron argues that the ICA erred by concluding that the
family court need only find good cause, rather than
“exceptionally compelling circumstances”, to bifurcate divorce
proceedings. Aaron further argues that, even if good cause is
the appropriate standard, the record does not support a finding
of good cause to bifurcate the proceedings in this case.
A. The Family Court Was Correct To Apply The Good Cause
Standard For Bifurcating The Divorce Proceedings.
The family court entered the divorce decree on
October 1, 2007, which dissolved Aaron and Bonnie’s marriage and
divided a portion of their marital property. The court reserved
jurisdiction to divide the remainder of Aaron and Bonnie’s
marital property in a trial scheduled for December 7, 2007.
HRS § 580-47(a), which governs the family court’s
ability to bifurcate divorce proceedings, states in relevant
part:
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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 (1) compelling the parties or
either of them to provide for the support, maintenance, and
education of the children of the parties; (2) compelling
either party to provide for the support and maintenance of
the other party; (3) finally dividing and distributing the
estate of the parties, real, personal, or mixed, whether
community, joint, or separate; and (4) allocating, as
between the parties, the responsibility for the payment of
the debts of the parties whether community, joint, or
separate, and the attorney’s fees, costs, and expenses
incurred by each party by reason of the divorce.
HRS § 580-47(a) (2006) (emphases added).2
Aaron acknowledges that HRS § 580-47(a) recites a good
cause standard for bifurcation, but argues that numerous ICA
cases have added a stricter standard. Aaron cites the following
passage from Eaton in support of his argument:
Hawaii divorce cases involve a maximum of four discrete
parts: (1) dissolution of the marriage; (2) child custody,
visitation, and support; (3) spousal support; and (4)
division and distribution of property and debts. Black v.
Black, 6 Haw. App. [493], 728 P.2d 1303 (1986). In
Cleveland v. Cleveland, 57 Haw. 519, 559 P.2d 744 (1977),
the Hawaii Supreme Court held that an order which finally
decides parts (1) and (4) is final and appealable even if
part (2) remains undecided. Although we recommend that,
except in exceptionally compelling circumstances, all parts
be decided simultaneously and that part (1) not be finally
decided prior to a decision on all the other parts, [3] we
2
HRS § 580-47(a) was recently amended; however, the amendments do
not pertain to the standard for bifurcating divorce proceedings. See 2011
Haw. Sess. L. Act 140 § 2.
3
The ICA further noted that “[i]n light of Boulton v. Boulton, 69
Haw. [1], 730 P.2d 338 (1986), our recommendation applies especially to part
(4).” Eaton, 7 Haw. App. at 118 n.8, 748 P.2d at 805 n.8. In Boulton, we
concluded that, pursuant to HRS § 580-56(d), a divorced spouse shall not be
entitled to any share of the former spouse’s personal estate following the
elapse of one-year after entry of a decree reserving the final distribution of
continue...
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conclude that an order which finally decides part (1) is
final and appealable when decided even if parts (2), (3),
and (4) remain undecided; that parts (2), (3), and (4) are
each separately final and appealable as and when they are
decided, but only if part (1) has previously or
simultaneously been decided; and that if parts (2), (3),
and/or (4) have been decided before part (1) has been
finally decided, they become final and appealable when part
(1) is finally decided.
Eaton, 7 Haw. App. at 118-19, 748 P.2d at 805 (emphasis added,
footnote omitted); see also Aoki v. Aoki, 105 Hawai#i 403, 404,
98 P.3d 274, 275 (App. 2004) (quoting Eaton); Camp v. Camp, 109
Hawai#i 469, 477, 128 P.3d 351, 359 (App. 2006) (same); Ferreira
v. Ferreira, 112 Hawai#i 225, 229, 145 P.3d 768, 772 (App. 2006)
(same).
In Eaton, the family court had ordered the dissolution
of marriage and spousal support, but had not “fully and finally
divided and distributed all of the property and debts of the
Plaintiff and the Defendant over which it had jurisdiction.”
Eaton, 7 Haw. App. at 119, 748 P.2d at 805. Because the family
court’s decisions and orders regarding the division of property
and debts were not final, the ICA sua sponte concluded that it
did not have jurisdiction to review them. Id. at 118-19, 748
P.2d at 805-06.
3
...continue
property. Boulton, 69 Haw. at 3-4, 730 P.2d at 339.
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The Eaton court’s decision did not address whether
bifurcation was appropriate.4 Rather, its analysis focused on
whether it had appellate jurisdiction to review the family
court’s non-final property division decisions. Thus, its
“recommendation” that dissolution of marriage should not be
finally decided prior to a decision on all other parts of a
divorce case “except in especially compelling circumstances” is
dictum. See Black’s Law Dictionary 1177 (9th ed. 2009) (defining
“obiter dictum” as “[a] judicial comment made while delivering a
judicial opinion, but one that is unnecessary to the decision in
the case and therefore not precedential (although it may be
considered persuasive).”).
Likewise, the decisions in Ferreira, Aoki, and Camp
were not decided on the issue of bifurcation, despite quoting the
“exceptionally compelling circumstances” language in Eaton. See
Ferreira, 112 Hawai#i at 229-231, 145 P.3d at 772-774 (concluding
that because the family court’s amended decree did not specify
the dollar amount of child support to be paid or provide for the
division and distribution of all marital property, the amended
decree was not final and appealable with respect to these
issues); see also Aoki, 105 Hawai#i at 413-14, 98 P.3d at 284-85
4
The Eaton opinion does not cite to the good cause standard in HRS
§ 580-47(a).
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(concluding that there was no appellate jurisdiction over an
order dividing marital property and debts because that order
promised future action by the family court and was therefore not
final); Camp, 109 Hawai#i at 469-80, 128 P.3d at 351-62
(concluding that the family court did not have jurisdiction to
enter a divorce decree where husband died prior to entry of the
divorce decree, but after the family court entered a decision and
order finding that the husband was entitled to a divorce.)
In the present case, the ICA, citing HRS § 580-47(a),
concluded that “[t]he Family Court may bifurcate dissolution and
final property distribution upon agreement of the parties or a
finding of good cause.” SDO at 3. The ICA further concluded
that
Eaton evinces a recommendation and not a new standard. It
does not expressly or implicitly modify the “good cause”
requirement established by statute. Aaron has not cited,
and we have not found, any cases adopting the “exceptionally
compelling circumstances” language as a new standard,
separate from the good cause requirement. We therefore
conclude that the Family Court did not err in failing to
find exceptionally compelling circumstances.
Id. at 3-4. Based on the foregoing analysis, we agree with the
ICA’s conclusion that good cause is the proper standard for
bifurcating the dissolution of marriage from the remaining parts
of a divorce case. The “exceptionably compelling circumstances”
recommendation in Eaton does not supplant the good cause standard
established by HRS § 580-47(a).
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Aaron further argues that this court adopted the
“exceptionally compelling circumstances” standard in Johnson v.
Murakami, No. 30409, 2010 WL 1697182 (April 26, 2010). In
Johnson, the family court denied the petitioner’s motion to
bifurcate the proceedings and grant an immediate divorce.
Johnson, 2010 WL 1697182 at *1. In our order granting the
petition for writ of mandamus, we found that the petitioner had
presented “clear and convincing evidence that [she was]
terminally ill and that [the] divorce action could be abated by
[her] death.” Id. We further stated that
[t]he possible abatement of the divorce action constitutes:
(1) good cause under HRS § 580-47(a) (2006) for granting
petitioner a divorce and reserving jurisdiction over all
other matters; (2) an exceptionally compelling circumstance
for dissolving petitioner’s marriage before deciding all
other parts of the divorce; see Camp v. Camp, 109 Hawai#i
469, 477, 128 P.2d 351, 359 (App. 2006); and (3) a basis for
bifurcating petitioner’s divorce action under HFCR [Hawai#i
Family Court Rules] 42(b) to avoid prejudice.
Id. (emphasis added). Aaron argues that, absent this court’s
finding of exceptionally compelling circumstances, bifurcation
would not have been ordered. We disagree.
Our citation to Camp is instructive. In Camp, one of
the parties died after the family court entered a decision and
order stating that “a divorce . . . shall be granted to Plaintiff
effective upon the signing and filing of a Divorce Decree to be
prepared by Plaintiff[,]” but before the family court entered the
decree of absolute divorce. Camp, 109 Hawai#i at 469-75, 128
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P.3d at 351-57. The ICA concluded that the party’s death
extinguished the family court’s jurisdiction to enter the divorce
decree, and that the divorce case should be dismissed. Id. at
478-80, 128 P.3d at 360-62. Thus, the clear and convincing
evidence in Johnson that the petitioner was terminally ill and
that the divorce action could be abated by petitioner’s death was
“an exceptionally compelling circumstance” to bifurcate the
proceedings. However, the reference to “exceptionally compelling
circumstance[s]” in Johnson was not intended to replace the good
cause standard for bifurcation mandated by HRS § 580-47(a).
Aaron further argues that “a majority of other states
similarly disfavors bifurcation and restricts its use to unusual
or exceptional circumstances.” As discussed above, HRS § 580-
47(a) states that good cause is the standard for bifurcation in
divorce cases. Thus, the fact that other states have adopted a
more stringent standard is irrelevant.
Finally, Aaron argues that “[s]trong policy reasons
support requiring family courts to decide all four parts [of a
divorce case] at the same time[]” absent exceptional
circumstances. Such reasons include avoiding “piecemeal divorce
trials”, which could “result in multiple appeals, clogging both
trial calendars and appellate dockets.” Though there may be
valid policy reasons for imposing a stricter standard for
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bifurcation in divorce proceedings, HRS § 580-47(a) states that
the appropriate standard to be applied is good cause.5 See HRS §
580-47(a). As the ICA correctly stated, “[i]t is not the role of
this court to alter a statutory requirement in order to effect
policy considerations that are vested in the legislature.” SDO
at 4 (citing TMJ Hawaii, Inc. v. Nippon Trust Bank, 113 Hawai#i
372, 384 n.6, 153 P.3d 444, 455 n.6 (2007)).
Accordingly, the family court was correct to apply the
good cause standard in deciding whether to bifurcate the
dissolution of Aaron and Bonnie’s marriage from the remaining
parts of the divorce proceeding.6 See HRS § 580-47(a); see also
Fisher, 111 Hawai#i at 46, 137 P.3d at 360.
5
The good cause standard itself requires a substantial reason for
the family court to order bifurcation. Cf. Doe v. Doe, 98 Hawai#i 144, 154,
44 P.3d 1085, 1095 (2002) (“As a general rule, ‘good cause’ means a
substantial reason[.]” (quoting State v. Estencion, 63 Haw. 264, 267, 625 P.2d
1040, 1042-43 (1981))). Regarding the good cause standard of HRS § 580-47(a),
the Senate Judiciary Committee stated:
Your committee amended the bill to change the standard upon
which the court may order the reservation of issues from
“appropriate circumstances” to “good cause.” Since the
reservation of issues should be the exception rather than
the rule, the court should carefully consider its necessity
based on the circumstances of the case. This language will
so direct the court.
Stand. Com. Rep. No. 470, in 1983 Senate Journal, at 1246 (emphasis added).
6
The family court concluded that it had “jurisdiction to bifurcate
the divorce pursuant to HRS 580-56 and for good cause.” This is an incorrect
statement of law because the power to bifurcate the dissolution of marriage
from the remaining parts of a divorce proceeding is governed by HRS § 580-
47(a). See HRS § 580-47(a). However, as discussed above, good cause is the
correct standard governing bifurcation. Id.
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B. The Family Court Did Not Abuse Its Discretion By Finding
That Good Cause Existed To Bifurcate The Proceedings In This
Case.
Aaron argues that, “[r]egardless of whether good cause
or exceptional compelling circumstances justify bifurcation,
Bonnie did not show, and the court did not find, any reasons to
have separate dissolution and property trials in this case.”
Specifically, Aaron argues that the following factors weigh
against a finding of good cause: (1) bifurcation did nothing to
speed resolution of the case or reduce its “litigiousness”; (2)
the emotional welfare of one of the parties may not be the basis
for a finding of good cause because emotional difficulties are
present in every divorce case; (3) “[g]ranting bifurcation
because Aaron did not show prejudice improperly shifts the burden
to him to show there was no reason not to order bifurcation,
which is contrary to law[;]” and (4) “Bonnie did not argue, and
[the family court] did not find, that bifurcation was necessary
to avoid real or imagined injury.”
The family court made the following findings of fact
relevant to this discussion:
. . .
3. The parties became embroiled in a series of discovery
disputes through Defendant’s Motions to Compel Discovery
against Plaintiff and third parties and through Plaintiff’s
Motion for Protective Order.
4. The Court intervened on a number of occasions in order
to resolve the discovery disputes.
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5. Per Memorandum of Family Court . . . the trial of this
matter was scheduled for August 10, 2007. . . .
6. On July, 10, 2007 Defendant filed a Motion to Continue
Trial . . .
. . .
13. Plaintiff objected to the motion for continuance as
the divorce proceedings at point [sic] had taken almost a
year and a half and the personal attack and viciousness of
the proceedings had taken an emotional toll on Plaintiff.
. . .
17. The Court granted Defendant’s motion to continue the
trial. The trial date was re-set to December 7, 2007. . . .
18. Plaintiff filed a Motion to Bifurcate Divorce on
August 15, 2007.
. . .
21. As of August 27, 2007 the parties had been in
litigation for approximately 18 months.
22. On August 27, 2007 the court granted Plaintiff’s
motion to bifurcate the divorce.
23. On August 27, 2007 Plaintiff made her prima facie case
for divorce.
24. On August 27, 2007 the Court granted Plaintiff’s
complaint for divorce from Defendant, effective
prospectively on October 1, 2007. At that hearing the court
also made certain orders regarding division of property and
debts.
. . .
26. On September 27, 2007 the order granting Plaintiff’s
Motion to Bifurcate was entered.
27. On October 1, 2007 the divorce decree was entered.
. . .
29. From the outset of this litigation, the parties have
been extremely litigious.
30. Accusations against Plaintiff and/or her counsel by
Defendant and his first counsel . . . fueled by charges of
wrongdoing and bad faith left Plaintiff emotionally
drained[.]
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31. The litigiousness appeared to be unnecessarily
dissipating the estate of the parties.
32. Of the four discrete parts of a divorce, the only
contested issue was the division of property and debts. As
to those issues, the only contested issue at the time of the
bifurcation hearing was division of the investment assets
titled solely in Plaintiff’s name.
. . .
3[7]. The parties are permitted to name their designated
beneficiary on their insurance and retirement plans.
38. Defendant is entitled to medical insurance coverage
under the COBRA plan for 36 months after the entry of the
divorce decree, provided he makes the monthly premiums.
39. The monthly premiums are approximately $272.00 per
month.
40. Defendant is an attorney licensed to practice law in
the state of Hawaii.
41. Defendant has the financial ability to make those
monthly payments.
42. Defendant is already paying his share of the medical
insurance premiums under Plaintiff’s plan.
. . .
45. Defendant has not been prejudiced by the bifurcation
of the divorce.
These findings are supported by substantial evidence.
The record shows numerous discovery disputes. These
disputes contained allegations of bad faith by Aaron against
Bonnie, including allegations that Bonnie destroyed or
deliberately withheld documents, and committed fraud on the
court.
Though the trial was originally set for August 10,
2007, Aaron moved to continue the trial based on these discovery
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disputes. The family court granted the continuance and reset the
trial for December 7, 2007. When the trial court heard Bonnie’s
motion to bifurcate on August 27, 2007, the divorce proceedings
had lasted nearly a year and a half.
When asked why she filed for divorce, Bonnie testified
that “[o]ur marriage is over emotionally, physically, mentally.
It’s over.” Aaron admitted in his answer to Bonnie’s complaint
for divorce that the marriage was irretrievably broken. In his
Application, Aaron further admits that “[b]ecause both parties
wished to divorce, the couple’s two children were grown, and
neither requested alimony, the only dispute between them involved
property division and distribution.”
During the bifurcation hearing, Aaron argued that he
would be prejudiced by immediate entry of the divorce decree
because he would be terminated from Bonnie’s health insurance.
The family court found that
at some point in time, whether the divorce is granted today,
tomorrow, next month, next year, [Aaron], upon divorce,
would be responsible for his own insurance, could no longer
be carried under [Bonnie’s] coverage.
The court further found that Aaron was entitled to keep his
medical coverage for 36 months under the Consolidated Omnibus
Reconciliation Act (COBRA) following entry of the divorce decree,
provided he paid the monthly premiums. The court found that,
based on the fact that Aaron had previously paid the amount of
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the premiums to Bonnie, and that he was a licensed attorney,
Aaron had the financial ability to make the monthly COBRA
payments. Thus, Aaron would not be prejudiced by bifurcation and
entry of the divorce decree.7
Contrary to Aaron’s argument, the family court did not
find that good cause existed to bifurcate the proceedings solely
because of the absence of prejudice to Aaron. Rather, the family
court considered prejudice to Aaron in addition to above-cited
factors that supported a finding of good cause.
Based on the evidence in the record, the family court’s
findings of fact were not clearly erroneous. Fisher, 111 Hawai#i
at 46, 137 P.3d at 360. Accordingly, the family court did not
abuse its discretion in finding that good cause existed to
bifurcate the proceedings and enter the October 1, 2007 decree
granting absolute divorce. Id.
7
Before the ICA, Aaron also argued that the family court’s decision
to divide some of the marital property in the bifurcation order was
prejudicial because it diminished the value of his marital property within
Bonnie’s control. The ICA found that the family court had considered whether
Aaron’s economic interests would be prejudiced by the bifurcation, stating
that
[t]he divorce decree protected Aaron’s interests: it placed
Bonnie’s share of the marital residence in escrow pending
final property distribution and retained jurisdiction to
enter injunctive relief enjoining any improper dissipation
of the marital estate.
SDO at 5.
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IV. CONCLUSION
Based on the foregoing analysis, we conclude that the
ICA was correct to affirm the family court’s entry of the
October 1, 2007 decree granting absolute divorce.
Peter Van Name Esser /s/ Mark E. Recktenwald
for petitioner/defendant-
appellant /s/ Paula A. Nakayama
Robert M. Harris /s/ Simeon R. Acoba, Jr.
(Marianita Lopez
(Saccoccio & Lopez) /s/ James E. Duffy, Jr.
with him on the
brief) for respondent/ /s/ Sabrina S. McKenna
plaintiff-appellee
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