Au-Hoy v. Au-Hoy

DISSENTING OPINION OF

KIDWELL, J.

I dissent in this case because I see our responsibility to review property divisions in divorce actions quite differently from the majority. In Carson v. Carson, 50 Haw. 182,436 P.2d 7 (1967), we reversed a property division saying:

We conclude that the trial court abused its discretion in not fully and properly considering the provisions of Sec. 324-37 [now HRS § 580-47] in reaching its decision concerning the division and distribution of property.

50 Haw. at 187, 436 P.2d at 11.

In Carson, the trial court referred to the acquisitions of certain separate property of the husband before the marriage, and stated that “from these facts” it had concluded that the wife should not share in that property. Since the facts to which the court referred did not include those required by the statute to be considered, we attributed to the court an abuse of discretion.

In the present case, the family court revealed that a major consideration in the property division was the fact that the parties had maintained separate accounts. As § 580-47 read at the time of the divorce in this case, and as it reads today, the circumstances which the family court must take into consideration in dividing the property of the parties to a divorce action are 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. There is no indication that the *360family court weighed these circumstances in arriving at the property division, other than the implication that the award was found to be “fair and equitable under the circumstances.” The distinction between this case and Carson, in the majority’s view, apparently lies in the presence of these words in the decision of the family court. This is said to be sufficient to show that the family court’s decision was implicitly based upon the statutory requirement, and the majority expresses itself as satisfied that the family court “fully and properly” considered the statutory criteria. The case is thus brought within the general principle that an abuse of discretion will not be found unless all objective appraisals of the evidence would lead to a different finding.

Carson survives as a standard for appellate review of property divisions in divorce actions only where it affirmatively appears that the family court failed to consider the statutory criteria, the risk of which can effectively be avoided by the ritualistic inclusion in all family court decisions of a recital that the division is “fair and equitable under the circumstances.” The judges of the family court are presented with factual situations which resist analysis under the statutory criteria, and are entitled to sympathetic consideration by this court. The parties to divorce actions must nevertheless be able to look to this court for appellate review which will assure them that property divisions conform to the statute, or at least do not lose touch with the statute. The standards laid down in this case do not provide what I consider to be meaningful appellate review.1

In Carson we said that “undue emphasis on a particular factor” in arriving at a property division constitutes an abuse of discretion by the trial court. The emphasis placed by the family court in this case upon the manner in which the parties kept their accounts during marriage is not made substantially *361less emphatic by the obscure and conclusory finding that the division was “fair and equitable under the circumstances.” The circumstance upon which the family court placed emphasis ih this case, as in Carson, was not one of those specifically mandated for consideration by the statute. The present case appears to me to be clearly one for reversal under the standard of appellate review we laid down in Carson and I view the modification of that standard by the court’s opinion as unwise and unfortunate. I would set aside the property division and remand the case for reconsideration under the standards provided by HRS § 580-47.

Rule 52(a) of the Hawaii Family Court Rules, which became effective after the appeal of this case, requires that the family court enter its findings of fact and conclusions of law in all cases appealed to this court. I do not read the opinion of the court in this case as providing the standard of specificity which should govern the findings of fact and conclusions of law in property divisions appealed to this court under these rules.