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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
27-OCT-2021
11:52 AM
Dkt. 11 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
NICOLETA JACOBY,
Petitioner/Plaintiff-Appellee,
vs.
BENNETT JACOBY,
Respondent/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX; FC-D NO. 08-1-281K)
OCTOBER 27, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This consolidated appeal arises from the rulings of the
Family Court of the Third Circuit (“family court”) on remand
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from a published opinion of the Intermediate Court of Appeals
(“ICA”).1
The family court entered a divorce decree on July 5, 2011,
after a November 2009 divorce trial between petitioner Nicoleta
Jacoby (“Nicoleta”) and respondent Bennett Jacoby (“Bennett”).2
In relevant part, the family court awarded Nicoleta
indeterminate spousal support of $4,000 per month. The family
court calculated the spousal support award partly based on a
finding that Bennett’s total gross monthly income was $29,402,
which included $9,064 in investment income. The family court
had, however, also awarded half of the assets generating the
subject investment income to Nicoleta as part of the property
division.
In a 2014 published opinion, the ICA affirmed in part and
vacated in part the July 5, 2011 divorce decree and remanded
several issues, which included the issue of spousal support, to
the family court for further proceedings. Jacoby v. Jacoby
(Jacoby I), 134 Hawaiʻi 431, 341 P.3d 1231 (App. 2014), as
corrected (Mar. 24, 2015).3 In relevant part, the ICA concluded
1 The Honorable Aley K. Auna, Jr., presided over this remanded case.
Judge Auna also presided over the 2009 divorce proceedings.
2 Because the parties share the same surname, their first names are used
for purposes of clarity. No disrespect is intended.
3 The opinion, authored by Associate Judge Katherine G. Leonard, was
joined in by Chief Judge Craig H. Nakamura and then Associate Judge Lisa M.
Ginoza.
2
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that the family court erroneously included the entire investment
income in Bennett’s income instead of allocating half to
Nicoleta because the family court had awarded half of the assets
generating the income to Nicoleta.
On remand, the family court recalculated the income of the
parties; Nicoleta’s monthly income was recalculated as $4,532,
half of $9,064, and Bennett’s monthly income was recalculated as
$24,870. The family court also reaffirmed Nicoleta’s reasonable
monthly expenses as $6,237. The family court concluded,
however, that “it would be just and equitable to continue the
award of permanent spousal support of $4,000 per month.”
Nicoleta’s resulting total monthly income from the investment
income and spousal support was $8,532, exceeding her $6,237
monthly reasonable expenses.
Bennett appealed, arguing in relevant part that the family
court abused its discretion and erred as a matter of law in
awarding spousal support to Nicoleta that exceeded her $6,237
monthly reasonable expenses.
In its April 20, 2021 summary disposition order (“SDO”),
the ICA ruled in favor of Bennett. See Jacoby v. Jacoby (Jacoby
II), Nos. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, 2021 WL 1554197
(App. Apr. 20, 2021) (SDO). The ICA did so, however, on the
basis that in Jacoby I, it had remanded for the family court to
redetermine spousal support in light of the corrected income
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assumptions for investment income. The ICA ruled the family
court therefore erred by engaging in a new just and equitable
determination on remand, as it was not a part of the remand
order in Jacoby I.
On certiorari, Nicoleta argues the ICA erred by ruling the
family court was precluded on remand from engaging in a new just
and equitable determination for spousal support.
We hold the ICA erred by setting aside the amended spousal
support award order on the basis that the family court was
prohibited from doing so on remand because Hawaiʻi Revised
Statutes (“HRS”) § 580-47(a) (2006 & Supp. 2011) provides family
courts with continuing jurisdiction to address issues of spousal
support. We also hold, however, that the family court erred, on
remand, by maintaining spousal support at $4,000 a month because
it awarded more spousal support than it determined was required
to satisfy Nicoleta’s demonstrated needs. We also hold,
however, that the family court abused its discretion by not
holding a hearing on remand to determine whether the spousal
support amount should have been amended because Nicoleta showed
good cause for a redetermination.
Hence, we vacate in part and affirm in part the ICA’s May
24, 2021 judgment on appeal, and we remand this case to the
family court for further proceedings consistent with this
opinion.
4
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II. Background4
A. Factual background
Nicoleta was born in Romania in 1969. She suffered various
medical ailments in her youth. In November 1990, Nicoleta moved
to the United States. Nicoleta met Bennett, a periodontist, in
California in May 1992 and they married on June 12, 1993.
Nicoleta worked at Bennett’s periodontal clinic for some time
without pay. Their son was born in June 1995 and their daughter
in January 1997.
Nicoleta continued to suffer from numerous medical ailments
throughout her life, which impacted her employability. She was
diagnosed with multiple sclerosis (“MS”) in late 1997. The
Jacobys moved to Hawaiʻi in May 1998 and they purchased a house
in August 1998. Nicoleta continued to have MS flare-ups, for
which she consulted specialists in Hawaiʻi and California. By
the time of trial, she had also developed optic neuritis, brain
hemorrhaging, carpal tunnel syndrome, and left shoulder
problems.
Thus, for the majority of the marriage, Bennett provided
sole financial support for the family. His income included
funds from a periodontal endoscope he developed and had patented
in 1993. Bennett developed myofascial pain dysfunction syndrome
4 Only the background relevant to the issues on certiorari is discussed.
See Jacoby I for further details not relevant to the issues on certiorari.
5
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after a 1996 surfing accident and began receiving disability
benefits. He was able, however, to continue working part-time
as a periodontist.
B. Procedural background
1. Pre-Jacoby I proceedings
On December 9, 2008, Nicoleta filed for divorce. The
divorce trial was held on November 12, 13, 19, and 27, 2009.
On April 14, 2011, the family court filed its findings of
fact and conclusions of law (“divorce trial order”). In
relevant part, the family court found (1) Nicoleta suffered
numerous medical ailments; (2) Nicoleta was “medically unable to
pursue any gainful employment as a result of the multiple and
serious chronic medical conditions from which she has suffered
since the age of 16 years”; (3) Nicoleta’s $3,327 household and
transportation expenses, excluding her automobile loan payments,
and her $2,910 personal monthly expenses, including medical and
dental, for a total of $6,237 in monthly expenses, were
reasonable; (4) Bennett’s total gross monthly income was
$29,402, which included: (a) $16,343 per month from partial, tax
free disability payments; (b) $9,064 per month from the
investment income; (c) $1,267 per month from royalty income; and
(d) $2,728 per month from his part-time periodontist work; (5)
Bennett, for the majority of the sixteen-year marriage, was the
sole financial support for the family and had the greater
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earning capacity; and (6) the parties had a high standard of
living.
The family court concluded “it would be just and equitable
to award [Nicoleta] permanent spousal support of $4,000 per
month” that would “terminate upon the death of either party or
upon the remarriage or cohabitation of [Nicoleta].” The family
court calculated the spousal support award based, inter alia, on
its finding that Bennett’s total gross monthly income before
deductions for support awards and medical premiums was $29,402,
which included the entire investment income.5
On July 5, 2011, the family court filed its Decree Granting
Absolute Divorce and Awarding Child Custody (“divorce decree”),
which dissolved the parties’ marriage and incorporated the
divorce trial order. On August 3, 2011, Bennett appealed the
divorce trial order and divorce decree to the ICA, arguing in
relevant part that the family court erred by awarding Nicoleta
$4,000 monthly spousal support. On August 17, 2011, Nicoleta
cross-appealed from the divorce decree.
5
Regarding property division, the family court prepared an allocation
chart of the $3,564,440 marital estate. Of this amount, the assets producing
the $9,064 monthly investment income had a total value of $2,691,452. The
family court awarded the parties half each, or $1,345,726 each. Further,
although based on marital partnership principles, Bennett would have been
awarded $2,027,403, the family court awarded marital assets of $1,438,726 to
him. Likewise, although Nicoleta would have received $1,537,037, the family
court allocated $2,125,714 to her. Although Bennett would then be entitled
to a $588,677 equalization payment from Nicoleta, the family court determined
there were sufficient “valid and relevant considerations” to deviate from
marital partnership principles and waived Nicoleta’s equalization payment.
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2. Jacoby I
In a 2014 published opinion, the ICA ruled in relevant part
that the family court did not err by awarding Nicoleta permanent
spousal support, and that Bennett did not meet his burden on
appeal to demonstrate the family court erred in determining the
amount of Nicoleta’s reasonable monthly expenses. Jacoby I, 134
Hawaiʻi at 446, 341 P.3d at 1246. The ICA noted the family court
had found (1) Nicoleta suffered from numerous ailments since the
age of sixteen, citing to the family court’s findings in its
divorce trial order; (2) as a result of these ailments, Nicoleta
was “medically unable to pursue any gainful employment”; and (3)
Bennett had been the sole financial support for the family for
the majority of the parties’ sixteen-year marriage. Id.
The ICA concluded:
However, as Bennett argues, the Family Court included
the entire amount of the Investment Income ($9,064) as part
of Bennett’s income and none of it as part of Nicoleta’s
income, even though the Family Court awarded 50% of the
Accounts, the underlying assets generating this Investment
Income, to Nicoleta. The Family Court clearly erred in
this regard and, therefore, utilized erroneous income
assumptions for both parties when it determined that
Nicoleta was entitled to $4,000 per month in spousal
support.
. . . .
The Family Court’s findings show that it carefully
considered all of the factors provided in HRS § 580–47(a)
when it determined that Nicoleta was entitled to spousal
support. However, the Family Court abused its discretion
in ordering Bennett to pay $4,000 per month in spousal
support to Nicoleta based on the erroneous allocation of
the Investment Income generated by the parties’ Accounts,
which were divided equally between them.
Id.
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The ICA remanded to the family court for further
proceedings consistent with its opinion. 134 Hawaiʻi at 458, 341
P.3d at 1258. No certiorari application was filed.
3. Family court proceedings on remand
On May 14, 2015, Nicoleta filed a memorandum to request an
evidentiary hearing on, inter alia, the spousal support issue.
She asserted that the spousal support issue could not be
resolved “by just some recalculations based on the ICA’s
assumptions.” She argued that circumstances had changed since
the initial calculation of spousal support. Specifically,
Nicoleta contended that since the July 5, 2011 divorce decree,
she had not received the investment income presumed to be
allocated to her, and that Bennett had been receiving the
investment income, which was not a circumstance contemplated by
the family court or ICA. Nicoleta contended that although the
ICA assumed the underlying assets generating the investment
income were divided equally, they were not; thus, an evidentiary
hearing was necessary to determine who received what share of
the investment income to accurately determine how much, if any,
of a recalculation was necessary. Nicoleta also argued it would
be manifestly unjust to attribute income to her that she never
received, and to reduce the spousal support obligation by not
attributing the income to Bennett.
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In response, Bennett argued Jacoby I did not instruct or
suggest the family court should hold an evidentiary hearing to
determine what investment income the parties actually received
during the years since the divorce decree; the family court’s
duty on remand, Bennett contended, was simply to correct its
error by issuing an amended divorce decree “as it would have
read if the error had not been made.” Bennett contended
Nicoleta’s argument that he received her portion of the
investment income was “simply not a proper consideration even if
it were true.” Bennett argued that Nicoleta never brought a
motion to enforce or otherwise objected that she did not receive
half of the assets underlying the investment income. According
to Bennett, if Nicoleta was unable to generate the same level of
investment income, her remedy would have been a motion to modify
the support orders during the pendency of the appeal, which was
an issue separate from the family court’s obligation to correct
its errors in the divorce decree. Bennett asserted that Jacoby
I ruled on the basis of the record only and its instructions on
remand were based on the record; opening the record to consider
new evidence would essentially amount to a new trial and would
invite a possible new, costly, and time-consuming appeal.
In a June 29, 2015 order, the family court stated it would
not conduct an evidentiary hearing but ordered the parties to
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file, inter alia, arguments based upon the evidence presented at
trial and Jacoby I.
In her July 27, 2015 memorandum, Nicoleta argued that the
investment income should also have been divided equally, as the
ICA noted the family court equally allocated the assets
generating the investment income. To be consistent with Jacoby
I, Nicoleta contended, the parties’ monthly income should
reflect the allocation of the investment income.
Nicoleta stated that, as noted in Jacoby I, the $4,000
monthly spousal support was based only in part on Bennett’s
$29,402 monthly income, and that once the family court allocated
half of the investment income to each party, it should still
perform an HRS § 580-47(a) analysis. Nicoleta maintained that,
in addition to the reasons the family court considered in
awarding spousal support, given her numerous health problems,
her expenses would “undoubtedly” increase as her medical
conditions worsened over time. Thus, Nicoleta asserted that
even after considering the HRS § 580-47(a) factors and the
allocation of the investment income to her, the family court
could not reasonably find that Nicoleta was able to meet her
basic needs and maintain her standard of living without spousal
support.
Nicoleta argued that reallocation of the investment income
did not automatically require a downward modification of the
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spousal support award. She maintained her expenses would
inevitably increase and even if the $4,000 spousal support was
awarded to her, there was still a large income disparity between
the parties. Nicoleta asserted that, accordingly, the family
court should reconsider the HRS § 580-47(a) factors and reaffirm
the $4,000 monthly spousal support award. Doing so would also
prevent manifest injustice, Nicoleta stated, because Bennett’s
counsel had suggested he might attempt to recoup “overpayment”
of spousal support in a later motion.
In response, Bennett maintained that the mandate in Jacoby
I directed the family court to revise its findings of fact and
conclusions of law, which would now require Nicoleta to
reimburse him for overpayment of the spousal support. Bennett
also maintained that the family court could not consider “new
evidence.”
On February 8, 2016, the family court filed its Order on
Issues on Remand (“remand order”). The family court found and
concluded as to spousal support as follows:
1. Wife’s household, transportation, and personal monthly
expenses total $6,237 (Decree, Findings of Fact 108 and
109; hereinafter “FOF”).
2. Wife’s income is based upon spousal support and $290
payment made by Husband for her medical insurance premiums
(FOF 122).
3. Accrued interest of bonds and Certificates of Deposit is
$9,064 per month (FOF 114).
4. Pursuant to the Decree, the investment accounts that
generated the $9,06[4] monthly income were divided equally.
Accordingly, each party is to receive $4,532 per month
($9,064 ÷ 2) in income generated from these investment
accounts. The Court did not take this into account when it
issued its Decree.
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5. Child support is not considered income for the purposes
of calculating spousal support.
6. Husband was ordered to pay $290 per month towards Wife’s
medical insurance premium (FOF 122).
7. Husband’s total monthly income, excluding the deduction
of Wife’s medical insurance premium, is recalculated to
$24,870 ($29,402 - $4,532; see FOF 117).
8. Wife’s total monthly income, excluding the medical
insurance premium, is recalculated to $4,532.
9. The parties continue to have a large disparity in
income; a little over $20,300 difference.
10. All FOFs made in the Decree inconsistent [sic] with the
findings herein continue to be relevant to the Court’s
decision regarding spousal support.
11. Under the circumstances of this case, it would be just
and equitable to continue the award of permanent spousal
support of $4,000 per month.
On May 2, 2017, the family court filed its Amended Decree
Granting Absolute Divorce and Awarding Child Custody (“amended
divorce decree”), which incorporated the remand order.
On June 1, 2017, Bennett appealed from the remand order and
amended divorce decree, initiating CAAP-XX-XXXXXXX.
On March 20, 2019, Nicoleta filed a motion to enforce, in
relevant part, the divorce decree and amended divorce decree; to
establish the manner of spousal support payments; and for an
order directing Bennett to pay her attorney fees and costs. On
August 28, 2019, the family court6 entered its Order and Judgment
in Favor of Plaintiff Nicoleta Jacoby and Against Defendant
Bennett Jacoby for Attorney’s Fees and Costs (“attorney fees
order”). On September 20, 2019, the family court entered its
Order Following Hearing on Plaintiff’s March 20, 2019 Motion to
Enforce July 5, 2011 Decree and May 2, 2017 Amended Decree, for
6 The Honorable Wendy M. DeWeese presided.
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Order Establishing Manner of Alimony Payments to Plaintiff, and
for Order Directing Defendant to Pay Plaintiff’s Attorney’s Fees
and Costs (“enforcement order”).
On September 27, 2019, Bennett appealed from the August 28,
2019 attorney fees order and the September 20, 2019 enforcement
order, initiating CAAP-XX-XXXXXXX.
4. ICA proceedings
The ICA consolidated CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
under CAAP-XX-XXXXXXX.7
On appeal, Bennett argued in relevant part that the family
court abused its discretion and erred as a matter of law in
awarding spousal support to Nicoleta in an amount that grossly
exceeded the family court’s calculation of her reasonable needs
in its remand order.8 He argued that if Nicoleta’s “reasonable
needs were met with a $4,000 award of monthly spousal support
prior to considering and accounting for that $4,532 in dividend
7 In CAAP-XX-XXXXXXX, Bennett argued the family court (1) abused its
discretion by awarding Nicoleta attorney fees without inquiring into the
parties’ current economic condition; (2) abused its discretion in entering
certain FOFs relating to Nicoleta’s medical issues when no evidence was
presented during the motion to enforce hearing; (3) erred by awarding
attorney fees to Nicoleta because “this was not an enforcement action on
which [Nicoleta] prevailed;” and (4) abused its discretion by awarding
attorney fees to Nicoleta because the award was excessive, not fair and
reasonable, and made without an evidentiary hearing. These issues are not
relevant on certiorari and therefore not further discussed.
8 Bennett also argued the family court erred as a matter of law in (1)
allocating the values of the parties’ respective bank and checking and
savings accounts to them twice; and (2) failing to recalculate post-judgment
interest based on the corrected allocation of the values of the parties’
accounts. These issues are not relevant on certiorari and therefore not
further discussed.
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and interest income, she did not continue to need $4,000 per
month to meet her reasonable needs, once that $4,532 in income
was properly accounted for.” Nicoleta responded that the family
court properly continued the $4,000 monthly spousal support
given her needs, health conditions, Bennett’s ability to pay,
and the significant disparity in the parties’ incomes.
The ICA concluded Bennett’s argument had merit. Jacoby II,
SDO at 3. The ICA stated that the family court, on remand,
although having applied the corrected income assumptions, still
arrived at the same $4,000 monthly spousal support level after
engaging in a new just and equitable determination, which the
ICA held was not part of the orders on remand. Jacoby II, SDO
at 3-4. The ICA vacated the spousal support award and remanded
to the family court to recalculate the award using the corrected
investment income figure of $4,532 for each party, taking into
account Nicoleta’s $6,237 reasonable monthly expenses that were
affirmed in Jacoby I.9 Jacoby II, SDO at 3, 13.
The ICA filed its judgment on appeal on May 24, 2021.10
9 See Jacoby II, SDO at 6-13, for the ICA’s other rulings not relevant on
certiorari.
10 The judgment on appeal was signed by Associate Judge Karen T. Nakasone.
Associate Judge Leonard, who authored Jacoby I, was on the panel for Jacoby
II, along with now Chief Judge Ginoza, who was also on Jacoby I.
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5. Supreme court proceedings
On certiorari, Nicoleta argues the ICA erred because Jacoby
I did not prohibit the family court, on remand, from again
considering the HRS § 580-47(a) factors. Nicoleta asserts
Jacoby II “contradicts the language, spirit, and intent of HRS §
580-47 in all respects.” Nicoleta points out that there is no
mathematical formula or model to use in calculating spousal
support; the application of simple math does not ensure a
spouse’s needs will be met, which is why the family court is
required to consider the HRS § 580-47(a) factors. As such,
Nicoleta asserts that even if the family court factored in the
investment income, the family court could still have concluded
that she was entitled to $4,000 monthly spousal support based on
its consideration of the HRS § 580-47(a) factors.
Nicoleta argues that by concluding the family court erred
by engaging in a new just and equitable determination and by
requiring the family court to apply simple math to the
determination of spousal support, Jacoby II undermined the
family court’s discretion to determine spousal support.
Nicoleta asserts that if Jacoby II is left to stand, it would
negatively impact her ability to support herself, as Jacoby II
appeared to dictate that the spousal support amount should have
been $1,705 per month (Nicoleta’s reasonable monthly expenses of
$6,237 – investment income of $4,532 = $1,705). Nicoleta
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asserts that Bennett could therefore demand that she reimburse
him the amount he paid her over $1,705 each month for the past
ten years, which, if ordered by the family court, would be
financially disastrous for her.
III. Standards of review
A. Family court decisions
Generally, the family court possesses wide discretion
in making its decisions and those decisions will not be set
aside unless there is a manifest abuse of discretion.
Thus, we will not disturb the family court's decision on
appeal unless the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant and its decision clearly exceeded the
bounds of reason.
Brutsch v. Brutsch, 139 Hawaiʻi 373, 381, 390 P.3d 1260, 1268
(2017).
It is well established that a family court abuses its
discretion where “(1) the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant; (2) the family court failed to
exercise its equitable discretion; or (3) the family
court's decision clearly exceeds the bounds of reason.”
Id. (emphasis omitted).
B. Family court’s findings of fact and conclusions of law
This courts reviews the family court’s findings of fact
under the “clearly erroneous” standard. W.N. v. S.M., 143
Hawaiʻi 128, 133, 424 P.3d 483, 488 (2018) (citation omitted).
A [finding of fact] is clearly erroneous when (1) the
record lacks substantial evidence to support the finding,
or (2) despite substantial evidence in support of the
finding, the appellate court is nonetheless left with a
definite and firm conviction that a mistake has been made.
“Substantial evidence” is credible evidence which is of
sufficient quality and probative value to enable a person
of reasonable caution to support a conclusion.
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Id. (citation omitted). On appeal, the family court’s
conclusions of law are reviewed de novo under the right/wrong
standard. Id.
IV. Discussion
A. The ICA erred by ruling Jacoby I prohibited the family
court from reconsidering the HRS § 580-47(a) factors on
remand to determine a just and equitable spousal support
amount
HRS § 580-47(a) provides:
(a) Upon granting a divorce, or thereafter if, in
addition to the powers granted in subsections (c) and (d),
jurisdiction of those matters is reserved under the decree
by agreement of both parties or by order of court after
finding that good cause exists, the court may make any
further orders as shall appear just and equitable . . . (2)
compelling either party to provide for the support and
maintenance of the other party . . . . In making these
further orders, the court shall take into consideration:
the respective merits of the parties, the relative
abilities of the parties, the condition in which each party
will be left by the divorce, the burdens imposed upon
either party for the benefit of the children of the
parties, the concealment of or failure to disclose income
or an asset, or violation of a restraining order issued
under section 580-10(a) or (b), if any, by either party,
and all other circumstances of the case. . . . .
In addition to any other relevant factors considered,
the court, in ordering spousal support and maintenance,
shall consider the following factors:
(1) Financial resources of the parties;
(2) Ability of the party seeking support and
maintenance to meet his or her needs independently;
(3) Duration of the marriage;
(4) Standard of living established during the
marriage;
(5) Age of the parties;
(6) Physical and emotional condition of the parties;
(7) Usual occupation of the parties during the
marriage;
(8) Vocational skills and employability of the party
seeking support and maintenance;
(9) Needs of the parties;
(10) Custodial and child support responsibilities;
(11) Ability of the party from whom support and
maintenance is sought to meet his or her own needs
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while meeting the needs of the party seeking support
and maintenance;
(12) Other factors which measure the financial
condition in which the parties will be left as the
result of the action under which the determination of
maintenance is made; and
(13) Probable duration of the need of the party
seeking support and maintenance.
The court may order support and maintenance to a
party for an indefinite period or until further order of
the court; provided that in the event the court determines
that support and maintenance shall be ordered for a
specific duration wholly or partly based on competent
evidence as to the amount of time which will be required
for the party seeking support and maintenance to secure
adequate training, education, skills, or other
qualifications necessary to qualify for appropriate
employment, whether intended to qualify the party for a new
occupation, update or expand existing qualification, or
otherwise enable or enhance the employability of the party,
the court shall order support and maintenance for a period
sufficient to allow completion of the training, education,
skills, or other activity, and shall allow, in addition,
sufficient time for the party to secure appropriate
employment.
(Emphases added.)
Thus, the family court has wide discretion when making its
decision regarding spousal support. See Brutsch, 139 Hawaiʻi at
381, 390 P.3d at 1268. “When deciding in a divorce case whether
one party must pay periodic support to the other, for how long,
and how much, the family court must consider all of the factors
enumerated in HRS § 580-47(a).” Hamilton v. Hamilton, 138
Hawaiʻi 185, 209, 378 P.3d 901, 925 (2016). This discretion,
moreover, continues after the initial determination of spousal
support. HRS § 580-47(a) specifically provides that “[t]he
court may order support and maintenance to a party for an
indefinite period or until further order of the court . . . .”
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(Emphasis added.) Thus, family courts have continuing
jurisdiction to address spousal support.
Thus, we agree with Nicoleta that the ICA erred by ruling
the family court, on remand, could not exercise its discretion
and issue a new just and equitable order for spousal support.
We also agree with Nicoleta that, in any event, Jacoby I did not
prohibit the family court, on remand, from again considering the
HRS § 580-47(a) factors to maintain the $4,000 monthly spousal
support award.
“The scope of remand is determined not by formula, but by
inference from the opinion as a whole.” In re Haw. Elec. Light
Co., 149 Hawaiʻi 239, 241, 487 P.3d 708, 710 (2021) (cleaned up);
see also Chun v. Bd. of Trs. of Emps.’ Ret. Sys., 106 Hawaiʻi
416, 439, 106 P.3d 339, 362 (2005) (stating “(1) that it is the
duty of the trial court, on remand, to comply strictly with the
mandate of the appellate court according to its true intent and
meaning, as determined by the directions given by the reviewing
court, and (2) that when acting under an appellate court’s
mandate, an inferior court cannot vary it, or examine it for any
other purpose than execution; or give any other or further
relief; or intermeddle with it, further than to settle so much
as has been remanded.” (cleaned up)).
With respect to the remand order, in Jacoby I, the ICA
ruled:
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However, as Bennett argues, the Family Court included
the entire amount of the Investment Income ($9,064) as part
of Bennett’s income and none of it as part of Nicoleta’s
income, even though the Family Court awarded 50% of the
Accounts, the underlying assets generating this Investment
Income, to Nicoleta. The Family Court clearly erred in
this regard and, therefore, utilized erroneous income
assumptions for both parties when it determined that
Nicoleta was entitled to $4,000 per month in spousal
support.
. . . .
The Family Court’s findings show that it carefully
considered all of the factors provided in HRS § 580-47(a)
when it determined that Nicoleta was entitled to spousal
support. However, the Family Court abused its discretion
in ordering Bennett to pay $4,000 per month in spousal
support to Nicoleta based on the erroneous allocation of
the Investment Income generated by the parties’ Accounts,
which were divided equally between them.
134 Hawaiʻi at 446, 341 P.3d at 1246. The ICA also then
concluded:
The Family Court clearly erred in FOF 114 by attributing
the total $9,064 Investment Income to Bennett when it had
awarded Nicoleta one-half of the underlying income-
generating assets. The Family Court should have attributed
to Nicoleta the monthly income generated by her one-half
share of these assets when determining her monthly income
in FOF 124, and decreased Bennett’s monthly income in FOF
125 accordingly.
134 Hawaiʻi at 447, 341 P.3d at 1247. The ICA affirmed in part
and vacated in part the divorce decree, and indicated it was
remanding to the family court “for further proceeding consistent
with this Opinion.” 134 Hawaiʻi at 458, 341 P.3d at 1258.
As argued by Nicoleta, Jacoby II appears to indicate that
the spousal support under the 2011 divorce decree should have
been $1,705 per month (Nicoleta’s reasonable monthly expenses of
$6,237 – investment income of $4,532 = $1,705). If the ICA in
Jacoby I had intended to have the family court so adjust the
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spousal support amount without further consideration of the
factors set forth in HRS § 580-47(a), presumably it would have
said so explicitly.11 But such a remand order would have been
erroneous because, as noted, a family court has continuing
discretion under HRS § 580-47(a) to address and adjust the
amount of spousal support. Thus, the family court’s discretion
continued.
The ICA in Jacoby II set aside the amended spousal support
order on the sole basis that the family court was prohibited
from doing so based on the remand. As the family court had
continuing jurisdiction to address spousal support in any event,
the ICA erred.
B. The family court abused its discretion by maintaining the
$4,000 monthly spousal support award in light of the $4,532
investment income allocation to Nicoleta because, added
together, Nicoleta’s monthly income exceeded Nicoleta’s
$6,237 monthly reasonable expenses
Thus, the ICA erred in setting aside the spousal support
order based on its erroneous conclusion of law that the Jacoby I
remand order prohibited a reconsideration. Bennett had not even
argued such a basis for setting aside the spousal support
amount. Instead, Bennett had only argued that the family court
11 The ICA could have done the simple math of adjusting the spousal
support to $1,705. HRS § 580-47(a) still provided the family court with
discretion to amend the spousal support award based on a material change in a
spouse’s physical or financial circumstances or if good cause indicated it
was just and equitable to do so. In this case, for example, more than six
years had passed from the November 2009 divorce trial to the February 2016
ruling on remand. In her July 27, 2015 memorandum on remand, Nicoleta had
pointed out circumstances that differed from 2009.
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abused its discretion and erred as a matter of law in awarding
spousal support in an amount that grossly exceeded the family
court’s calculation of Nicoleta’s reasonable needs.
Nicoleta notes that under Hawaiʻi law, there is no
mathematical formula or model to use in calculating spousal
support. Nicoleta asserts that even after the family court
allocated the $4,532 investment income to her, the family court
could have maintained the same $4,000 monthly spousal support
based on its reconsideration of the HRS § 580-47(a) factors.
Nicoleta points out that if the family court were to adjust the
monthly spousal support to $1,705, Bennett could demand that she
reimburse him the amount he paid her over and above $1,705 a
month for the last ten years.
Although the family court did not err by engaging in a new
just and equitable determination on remand, under the
circumstances, the family court abused its discretion by
arriving at the same $4,000 monthly spousal support award
without providing sufficient justification. We have recognized
that a family court can abuse its discretion if it orders more
spousal support than is required to satisfy the spouse’s
demonstrated needs. See Gordon v. Gordon, 135 Hawaiʻi 340, 356,
350 P.3d 1008, 1024 (2015) (“Even if Ira is able to pay the
additional amount of alimony, Susan is not entitled to more
spousal support than is required to satisfy her demonstrated
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needs.”). So has the ICA. See Cassiday v. Cassiday, 6 Haw.
App. 207, 215, 716 P.2d 1145, 1151 (1985), aff’d in part, rev’d
in part on other grounds, 68 Haw. 383, 716 P.2d 1133 (1986) (“If
there is no need for spousal support, then there is no
obligation to pay. Here, since Wife admits that $3,500 per
month is sufficient to meet her need, she is not entitled to
more than that even if Husband is able to pay more.”).
Thus, Bennett’s assertion on appeal, that the maintenance
of the $4,000 monthly spousal support was an abuse of discretion
as it exceeded Nicoleta’s demonstrated needs, may have merit.
On remand, the family court maintained the $4,000 monthly
spousal support award, despite finding that Nicoleta’s monthly
reasonable expenses were still $6,237. Although the court cited
the parties’ “large disparity in income[,] a little over $20,300
difference,” in its findings of fact, that factor standing alone
was insufficient to support its holding. Additional findings
were necessary to demonstrate that the judge had appropriately
considered the HRS § 580-47(a) factors in deciding the amount to
award in spousal support. Thus, based on the record, the family
court abused its discretion by awarding more money than
Nicoleta’s demonstrated needs required.
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C. The family court abused its discretion by not holding a
hearing on remand to determine whether the spousal support
amount should have been adjusted
The family court did have discretion to order an amended
spousal support award on remand. However, the family court
failed to make a finding of any increased spousal support needs
in maintaining the $4,000 monthly spousal support amount after
the allocation of half of the investment income to Nicoleta.
HRS § 580-47(d) (2006) provides the family court with
further discretion to “amend or revise any order” if it
determines there is “a material change in the physical or
financial circumstances of either party, or upon a showing of
other good cause . . . .” Therefore, a spousal support award is
always subject to amendment upon a showing of good cause. See
Amii v. Amii, 5 Haw. App. 385, 391, 695 P.2d 1194, 1198 (1985)
(“Spousal support . . . is always subject to revision upon a
substantial and material change in the relevant
circumstances.”).
After the Jacoby I remand, Nicoleta had requested an
evidentiary hearing to determine, inter alia, the amount of
spousal support, asserting she never received the investment
income since the 2011 divorce decree. In her July 27, 2015
memorandum, Nicoleta asserted she had not been receiving the
investment income since the 2011 divorce decree. Nicoleta
contended that this was not a circumstance contemplated by the
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family court or the ICA, as the ICA assumed the investment
income was divided equally because the assets generating that
income were divided equally.
Under the circumstances, the family court abused its
discretion by denying Nicoleta’s request for an evidentiary
hearing. If Nicoleta did not receive her allocation of the
investment income from the time of the 2011 divorce decree,
Nicoleta showed good cause to have a hearing. Therefore, on
remand, the family court should conduct an evidentiary hearing
to address the issues discussed herein.
V. Conclusion
For the foregoing reasons, the ICA’s May 24, 2021 judgment
on appeal is affirmed in part and vacated in part. We remand
this case to the family court for further proceedings consistent
with this opinion.
Charles T. Kleintop and /s/ Mark E. Recktenwald
Naoko C. Miyamoto
for petitioner /s/ Paula A. Nakayama
Michael S. Zola /s/ Sabrina S. McKenna
for respondent
/s/ Michael D. Wilson
/s/ Todd W. Eddins
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