Epp v. Epp

79 ground Evidence, 14, the car” was a press drive valid July Judg- order- and the 1993 ing Veniegas Mustang. possi- out of the ment.

bility (1985), pro- HRS 708-836 which part

vides relevant as follows: WATANABE, KIRIMITSU, JJ., propelled Unauthorized control of ve- concur. (1) person hicle. A commits the offense of propelled control unauthorized vehicle intentionally

if he exerts unauthorized con- propelled

trol over another’s vehicle

operating the vehicle without the owner’s

consent.... 905 P.2d 54 (4) propelled Unauthorized control of a EPP, Plaintiff-Appellant/Cross- Orlando felony. vehicle is a class C Appellee, Although Officer Criechio ordered Venie- gas out Mustang Veniegas of the because car[,]” “couldn’t drive that he neither nor the EPP, Defendant-Appellee/Cross- Doris Veniegas State has contended that violated Appellant. 708-836. At the March 1992

hearing, upon Officer Criechio testified cross- No. 15732. examination in relevant as follows: of Appeals Intermediate Court of Hawai'i.

Q. you Were aware crime that by using the defendant had committed Oct. somebody rent-a-car that else had rented?

A. No. appears agrees

It that the State our person operates

conclusion that a who a rent-

al permission per- automobile with the renting

son but it without the authorization company

of the rental thereby guilty is not Propelled

the Unauthorized Control of a Ve- Therefore, Veniegas

hicle. could not have lawfully Mustang

been ordered out basis.

this above, light conclude we wrong.

that COL Nos. and 3 are Because unlawful, subsequent exit was order of, for,

plain view search seizure of the

incriminating was evidence tainted and must Joao, suppressed.

be State v. Haw. (citing Wong States,

Sun United 371 U.S. S.Ct. (1963)).

407, L.Ed.2d

CONCLUSION

Accordingly, May we reverse Denying Sup-

Order Defendant’s Motion

82 Tomar, Bradley

Paul A. Law Office of A. Coates, Honolulu, plaintiff-appel- for lanVcross-appellee. (Carolyn T. Kleintop

Charles 0. Tavoularis briefs; him on the and Patrick Naehu with counsel), Honolulu, Kleintop, Stirling & defendant-appellee/cross-appellant. BURNS, C.J., Before and WATANABE andACOBA, JJ.

BURNS, Judge. days DOM, prior Chief gave Eleven Wife Way, Heights, her Tini proper- 99-252 ‘Aiea (Husband) Epp appeals Plaintiff Orlando ty daughter par- her Marcelle. When the 30, August court’s 1991 Decree married, following ties owned real Granting Awarding Divorce and Custo- Child property: Decree) dy (August 1991 Divorce 9,1991 Street, Hearing Palailai Following October “Order 92-608 Makakilo Plaintiffs Motion for Reconsideration Filed Street, Village 4363 Olaloa Foster July 1991” and “Defendant’s Motion for Place, Reconsideration Puahau Ridge Clarification Filed 98-069 Pearl (October Order). July 1991” De- Place, 99-442 Kekoa Heights Hálawa (Wife) Epp fendant Doris cross-appeals the (1) August Boulevard, 1991 Divorce Decree. We of 2211 Apart- one-half Ala Wai vacate division and distribu- ment No. Waikiki1 August 30, tion 1991 Divorce Drive, Heights Heights 99-1161 ‘Aiea ‘Aiea (b) Decree and October 1991 Order proceedings remand for further parties married, When Husband owned opinion. accordance with this Place, 1805 Kumakani Iki. Wai'alae married, parties When Wife moved

BASIC FACTS Heights from her ‘Aiea residence into Hus- Iki parties band’s Wai'alae residence. The in Husband was 1920. bom Wife was born daughters with lived there Wife’s two and (DOM) marriage in 1934. Their of date was 1980, gave two In Husband’s sons. Wife her 19,1978. January There were no of children Heights property daugh- ‘Aiea Drive to her marriage. 1978, ter In the Malia. latter thirty-two years After in the service parties Place, purchased the 19 Kai Nani Army, United States Husband as a retired Kailua beachfront leasehold brigadier and, general in 1974 since that (A/S). $287,328by way Agreement of Sale time, receiving monthly military has been require monthly pay- The did not A/S disability payments forty based a percent on ments. Interest accrued at the rate of nine disability military monthly and retirement percent per annum. the sale From of their payments and benefits. Husband testified (Wife’s Street, properties Palailai that, although disability payments are Street, Place, Olaloa and Puahau and Hus- against payments, offset his retirement Place), parties band’s Kümakani of the each 1979, disability payments are In nontaxable. paid following pur- toward amounts military disability/retirement Husband’s property: chase of the Kai Nani Place Wife $2,900 gross per cash benefit or was month $51,000 paid on the Kai Nani Place inA/S $34,800 1982, per $3,789.08 In annum. it was 1978; $82,162 paid Wife on the Kai Nani $45,469 per per month or annum. 1979; $75,000 paid in Place and Husband A/S Kai Nani in 1980. Place A/S early In years marriage of the Wife’s parties purchased the Kai the fee of Nani taxable income was as follows: $106,174 property in Place 1981 for with debt, money.

borrowed Toward Wife $65,000 $22,000 paid in 1981 in and 1982. Specifically to the Kai Nani F shows property, Place Wife’s Exhibit $17,000 parties from borrowed the Bank 1979, in of Hawaii debt refinanced A/S $90,000 City with a Bank loan of in No. is the number stated in Asset and Debt Statement dated Apartment May 6(b). Finding of Fact Wife’s the number C2, No. Exhibit states that of this apartment pertains a first issue to the division and the Bank of Hawaii debt with refinanced (NMVs) $20,500 in values loan of distribution net market Fort Credit Union Shatter Mortgage with a Honolulu of the real owned one both refinanced $127,000 in a on the on the DOCOE- refinanced with DOM loan of $123,850 in Mortgage loan of Honolulu POT. $15,000 the Hickam Fed- and borrowed respect marriages, three With rele day in eral Credit Union 1987. On the part agreements the marital vant between evidentiary part of the trial conclusion of (1) possible: premarital antenup- ners (DOCOEPOT), mortgage the Kai Nani Place contemplation marriage tial $120,000. debt was (2) agreements); during-the-mar (premarital Wife her Pacific-Hawaii started riage agreements contemplation and Breakfast business. This business Bed (marital agreements); dur client land- involved a referral service to contempla ing-the-marriage agreements (b) tenants, seeking lords bed breakfast (divorce agreements). tion of divorce landlords, and bookkeeping services for client (c) renting two of the Kai Nani Place bed- Prior enactment of Hawai’i Re rooms to bed breakfast tenants. (HRS) (Ha 572D in 1987 vised Statutes ch. Act) Agreement waii's Uniform Premarital that, prior testified since she Wife 572-22, and the 1987 to HRS amendment purchased each own food and Husband their not, partners pre marital could valid and, since prepared their own meals agreement, agreement or di separate approximately they lived in agreement, vorce inhibit the court’s in the Kai residence. bedrooms Nani Place jurisdictional power/authority, pursuant purchased fifty percent interest 580-47(a) (1993), §HRS to “make such fur 404-A, Place, Kailua, Apartment 1030 Aoloa appear just equitable as shall and ther orders in December 1987. (3) finally distributing dividing ... and real, mixed, parties, personal, or Complaint filed his for Divorce estate Husband 4,1989. community, joint, separate!.]” or whether December The was on DOCOEPOT Thus, Lewis, 155, DOCOEPOT, Haw.App. 13, in Lewis v. 7 On June Wife’s (1986), part in 701 generating a bed and breakfast business was aff'd $1,837. $3,805 part, in 748 monthly and vacated 69 Haw. P.2d gross income The of (1988), we that Hawaii’s monthly received in income concluded which she rental (Kekoa § Place, “public policy as in stated HRS 580-47 investment for her Place) right precedence parties’ was takes over Ala Wai Boulevard and Aoloa Now, insurance, agreements.” by monthly antenuptial enforce their mortgage, her offset Lewis, however, true. repair, utility expenses maintenance to- reverse is and 500-01, $3,898 plus Haw. at 748 P.2d at 1365-66. talling applicable gross income DOCOEPOT, Hus- and hotel taxes. On the Similarly, legisla- aas of the 1987 result disability/retirement gross and social band’s passage of ture’s Act which became ef- $5,600 security per cash benefits exceeded upon approval its fective June month. public policy Hawaii’s as stated longer precedence

§ no 580-47 takes over DISCUSSION parties’ right valid to enforce their and agreements and enforceable

I. Act agreements. 194 amended HRS 572- 22 as follows: cash, effects, personal parties’ furni- vehicles, A furnishings, person may union ture and credit Contracts. married accounts, contracts, written, insurance, and debts make and bank life oral sealed unsealed, specified by August [persons were distributed as with other than] 30,1991 spouse, person, Divorce Decree. The distribution her or his or other appeal. not an in this manner or he were sole. these items is issue the same as she [Spouses may other, Furthermore, premarital contract with each agree- as when follows: setting support ment forth

(1) By division in assignment deed or to or in the event of favor divorce is not un- other; voluntarily conscionable and has been en- (2) tered into with By knowledge of agreement settling respec- their prospective financial situation of the rights them,

tive in property owned spouse, them, agreement or either of when enforcement agreement does “just contemplation principle violate the of a made divorce or equitable” judicial separation; award under HRS 580-47. (3) By] agreement An spouses between Lewis, 500-01, 69 Haw. at 748 P.2d at 1365- providing payments periodic for for (footnote emphasis omitted and in origi- support and maintenance of one nal). other, spouse by sup- or for words, In the following footnote of Lewis maintenance, port, and education of emphasizes change: further “Nor it can parties, children of the when the be said inequitable pre- that enforcement of agreement contemplation is made agreements public policy violates as judicial separation[;], divorce or is val- the Hawaii Act itself pub- [Hawaii] reflects a provided agreement id that the shall policy lic in favor of enforcement of such subject approval by be the court in agreements.” Id. 500 n. at 748 P.2d at any subsequent proceeding for divorce n. judicial separation and that future Specifically agree- to marital

payments approved an agree- under agreements, ments and divorce the House subject ment shall nevertheless be Judiciary report increase, decrease, Committee on H.B. termination Haw.Sess.Laws, which became Act upon application time to time 572-22, amending provides §HRS additional showing justi- and a of circumstances support for in relevant Lewis as follows: fying thereof!;]. a modification [(4) By partnership purpose permit of this bill is to purposes;

business spouses to make valid contracts with each provided As in section except 560:2-204.] other in one limited circumstance spouses, All contracts made between ratify any interspousal and to contracts made, whenever whether before or already may af- made which violate the exist- Act, ter the ing effective date this and law. not otherwise invalid because law, other shall valid. be ... Your further Committee finds that in (statu- § 1987 Haw.Sess.L. Act 1 at 434 standards, contemporary view of societal

tory bracketed, repealed material is new spouses longer protec- no need the archaic underscored). statutory material is provided tions from one another in the Although quotation following the addresses current law. premarital agreements, HRS 572D-10 and Your Committee has amended the to bill applies equally it to 572-22 and mari- HRS provision requiring judicial reinstate the agreements agreements. tal and divorce approval support of certain and mainte- Section 10 of the Hawaii [Hawai'i] Act agreements agreement nance when the is specifically pre-marital such states that contemplation of a legal made divorce or and are valid enforceable if separation. provision This was inadver- otherwise valid as contracts. Unless the tently proposed repealed. be agreement rises to the level of unconscio- nability, merely “inequitable” a Hse.Stand.Comm.Rep. contract is No. in 1987 Journal, not unenforceable under contract law. House at 1366.2 respect by longer protections 2. With covered to matters valid and "no need the archaic agreements, premarital provided enforceable one another in the current marital law.” With agreements, agreements, spouses divorce to matters not covered valid and en- and/or 86 (1983).” [390], Haw. at 716 68 P.2d 329 and enforceable

Consequently, all valid thereby that It confirmed P.2d at 1138. agreements, premarital agreements, dividing starting point for the uniform those entered agreements, even and divorce categories 1 and 3 under 6, 1987, market values net must be enforced prior to June into non- 572-22, and 0% to the to the owner §§ is 100% proceedings. in divorce owner. 572D-10. disap- Cassiday, supreme court In

II. starting point for proved a 50-50 uniform At that values under cate- dividing tried in 1991. the net market Epps’ case was Thus, applicable uni- time, or more valid 2 4. except gories modified one and as 51-49 or 100- agreements, starting point mar- could be premarital form and enforceable Considering agreements, any ratio in between. agreements, divorce 0 or ital and/or provided frame- that can be awarded following principles that the maximum the mini- spouse court com- is 50% and which the the non-owner work within 0%, equitable jurisdiction: uniform its we select 75%-25% menced to exercise mum is dividing net market starting point for [Cassiday Cassiday, 68 Haw. In 2 categories values under (1986)], supreme court 716 P.2d may award the court stated that the view, starting point uniform In our spouse no more than 50% non-owner values under dividing the net market categories 2 and market values under net and 50% category to the Husband 5 is 50% under net market values Since to the Wife. generated within 2 and 4 are categories Hashimoto, Haw.App. Hashimoto net market val- marriage, whereas the (1986). 427-28, 725 P.2d generated categories and 3 ues under Epps’ trial of the Subsequent to the marriage, non-owner outside of case, by one or more except as modified claim to equitable an spouse has no less agreements, premarital valid and enforceable categories values under the net market agree agreements, categories 1 and 3. Con- under and than ments, replaced by principles were the above 2,1, categories that sequently, we conclude partnership “The Partnership Model. to maximum 50% 4 are limited appropriate law for the model is the spouse. to the non-owner award exercising their discre apply when courts supreme also Cassiday, court adjudication property division in the tion accepted generally “[i]t stated Tougas, Tougas v. proceedings.” in divorce date divorcing party is entitled to the each (1994). 76 Hawai'i premar- his or her marriage net value of applies during the following statute acquisition date of property and the ital any way inhibit the marriage but does gifts inheritances which value of net upon Partnership Model application of the during marriage. he or she received divorce. Raupp, Haw.App. Raupp v. partner permits to unilater- agree- law a marital premarital agreements, marital

forceable ments, marriage by agreements, divorce. It does ally the Partner- divorce terminate and/or them, spouses ship applies unilaterally and the have partner Model to ter- permit marital to not a protection provided in “just equitable” and the the current law. agreements. law allow Does the minate marital spouse during partner to sue his or her a marital writing agreements and must be in Premarital agreement? marriage to enforce a marital parties. signed by Hawaii Revised Statutes both (Supp.1992) that "A mar- § states HRS 572-28 however, (HRS) agreements, § 572D-2. Marital may the same person sue and be sued in ried Query may or written. HRS 572-22. be oral sole; person this were but manner as if appreciated legislature fully whether suits construed to authorize section shall not be agreements that marital of written and oral kinds only way spouses.” for a Is divorce the between partners possible, will and will what marital are agreement? partner to enforce a marital marital agreements, and say and do for such marital above, in di- light court In actions, words, agreements, and refus- how these ready apply law contract cases must be vorce relationships and agree will affect als equitable divorce law. and proceedings. divorce Separate property. per- Category The real and 1. The 1 and 3 NMVs are the “partner’s contributions” to Marital spouse, upon marriage, sonal that, Partnership Property assuming all spouse’s separate proper- shall remain that equal, valid and relevant considerations are control, ty, management, free from the repaid contributing spouse; are and debts, obligations spouse, of the other 4,2, 2. The and 5 NMVs are receive, for, hold, spouse may receipt that, Partnership Property Marital assum- manage, dispose property, real and ing all valid and relevant considerations personal, in the same manner as equal, are awarded one-half to each spouse were sole. spouse. (1993). 572-25 202, 207-08, Hussey Hussey, 77 Hawai'i (App.1994). 1275-76 categories The five of NMVs of Marital case, Epps’ the relevant Marital Partnership Property Tougas, are stated in Partnership properties, their NMVs on the 76 Hawai'i at 868 P.2d at and Hashi by categories, DOCOEPOT listed and the moto, 425-26, Haw.App. at 725 P.2d at 522. percentage awards of those NMVs Model, Partnership Under the court are as follows: in part III. Model total or excluded and/or categorized some all of the NMVs One or more valid and enforceable Partnership Model. The court premarital agreements, agreements, must enforce all valid and enforceable modifi- modify can and/or Model in total or in cations exclusions. The exclude some or all of the NMVs of the applies categorized Model NMVs parties assets and debts of the from the parties assets and that are not debts Partnership deciding Model. When the scope within the of a valid and enforceable issue, family property division the court first of, from, modification exclusion the and/or must determine whether and to what extent Partnership Model. premarital or more one valid enforceable Solely categorized to NMVs agreements, agreements marital di and/or applies, Partnership Partnership vorce modified the to which the Model the monthly in family consequences premium keep court must consider the to the Plan ef- of, of all valid and enforceable modifications fect for her benefit. from, exclusions Mod- and/or (b) replace, shall not substi- [Husband] deciding el when whether a relevant and tute, any beneficiary(ies) or add under his

valid consideration authorizes deviation from long Survivor Benefit Plan so as is [Wife] Model. beneficiary of the Plan because she is

paying monthly premium. IV. A. family

The court’s oral decision was en- July August tered on 1991. Its allegation Based on his that Wife paragraph Divorce Decree states rele- request anytime failed to such an award at vant as follows: trial, prior during to or Husband contends that have as Wife should been barred from f. Retirement. [Husband] shall be serting post-decision-pre-decree request for separate property awarded as his sole and requiring keep an to as order Husband Wife Army his U.S. retirement. [Husband] beneficiary of the sole his Survivor Benefit may designation [Wife] terminate his as (SBP). disagree. Although Plan We Wife beneficiary Annuity of Survivor’s Ben- express specifies did not of an alternative upon efits the effective date of this Decree. request, fairly it was obvious from her Feb 23,1991, July On Wife moved for reconsid- ruary position that statement her eration, seeking following: contingent nonclaim of Husband’s was SBP position It was that the [Wife’s] Court upon being her awarded all of the NMVs of proceeds dispo- should divide the from the Place, Boulevard, the Kekoa Ala Wai place property Kai sition Nani Aoloa Place and all of the NMV of proportion principal reduction that property excep the Kai Nani Place with the paid have aor 60% vs. 40% tion of Husband’s financial contributions [Wife] division. stated that as one of the thereto. why reasons the Kai Nani Place placed in

was both names at the time of B. acquisition of the fee was that [Hus- The court in divorce cases agreed pri- to name as band] [Wife] pre must enforce all valid and enforceable mary beneficiary under his survivor bene- agreements, agreements, provisions plan. fit under his retirement agreements. In her answer is, therefore, position It that al- [Wife’s] brief, ing cites Wife her uncontradicted evi terminated, though marriage may be dence bargain provisions that for of the sur- remain,

vivor benefit should [Hus- originally planned acquire that she to getting bargain is band] the benefit of his simple fee interest in the Kai Nani Place being since he is awarded 50% of the net property in her name alone. Because residence, proceeds of the Kai Nani put up money [Husband] wouldn’t that [Husband] thereafter should be re- participate purchase in the of the fee sim- quired provide to continue to and be re- interest, ple liquidated [Wife] one of her sponsible providing the Survivor Bene- separate properties in order to raise the plan fits under his retirement for the bene- neces[s]ary acquire funds the fee. It fit [Wife]. only agreed was after to name [Husband] primary beneficiary as the under his [Wife] court’s October 1991 Order agreed place SBP that she the fee in granted Wife’s motion for reconsideration as joint names. follows: (Emphasis original.) shall [Husband] [Wife] ensure beneficiary continued as the of his court Surviv- did decide whether long pays or Benefit Plan so as the Husband and had entered into a valid [Wife] agreement. prior and enforceable marital That divorce and to Wife’s death would have issue must be decided. on Wife’s financial condition that it such equitable against for her to be ensured legal Sufficient and consideration is possibility. an essential element of a valid contract. 17A (1991). § Am.Jur.2d Contracts Without sub-issue, that,

deciding possible this we note V. although placement the of the title to the Kai determining In whether one or more Nani Place separate Wife’s name valid and relevant considerations authorize joint may rather than in names not have family the court to deviate from the Partner impacted upon rights parties the of the Model, ship family the “court shall take into upon divorce, to it and its NMV their respective consideration: the merits of the placement joint the of the title names parties, parties, the relative abilities of the rather than in separate Wife’s name im did party the condition in which each will be left pact upon rights parties the of the with re divorce, imposed the upon burdens spect during marriage. to it See HRS party either for the benefit of the children of § 572-22. parties, and all other circumstances If Husband and Wife entered into 580-47(a) (1993). the case.” HRS Other a valid and agreement, enforceable marital than the relative circumstances of the its terms must In be enforced. the absence they partner when entered into the marital agreement, question of a relevant marital situations, ship possible exceptional family is whether the court has the discretion 580-47(a) quoted part above of HRS re to order Husband to allow Wife to continue quires family pres court to focus on the beneficiary as the expense. the SBP at her future, past. ent not the expense per was month. $468 view, In our in the absence of a valid and VI. premarital agreement, enforceable marital agreement, agreement requir and/or family Husband contends that court order, (b) ing such an a valid and enforceable abused its discretion when it awarded him legal obligation requiring divorcing marital Category none of the 2 NMVs of the Kekoa partner pay support, A to some form of child properties, Place and Ala Wai Boulevard spousal benefits, support, retirement only percent Category ten of the NMV payment divorcing some other marital property. half of the Aoloa Wife’s Place partner divorcing B partner after marital A’s family Wife contends that the court abused (c) death, compelling reason on the its discretion it did not award her when more order, record for such an court fifty percent than 5 NMV of divorcing abuses its discretion when it orders property. the Kai Nani Place partner divorcing marital A to allow marital above, B, As noted Palailai partner divorcing Wife owned the partner at marital B’s Street, Street, prop- Olaloa and Puahao Place expense, beneficiary to continue to be the proper- erties on the DOM. Wife sold these payable divorcing insurance on the death of early years marriage reasons, ties partner marital A. For obvious $220,1623 proceeds pay used the towards give divorcing court should not one purchase of the Kai Nani Place leasehold partner any more motivation to de and fee. divorcing sire the demise the other

partner may already than he or she have. prop- Husband the Kümakani Place owned deciding erty compelling

When rea He sold it in 1980 and the DOM. issue, $125,000. $75,000 son court should determine netted He used to reduce effect, any, what Husband’s death after the the Kai Nani Place debt. above, 22,000 $65,000. $

3. As noted in the Basic Facts section + + $51,000 $82,162 paid following + amounts: otherwise, financially findings purchase of fact court’s relevant (FsOF) (CsOL) monetary made no direct contributions to are as follows: property for the maintenance and DOM, during 8. their Since property, preservation of said made no

year marriage, have treated contributions, repairs mortgage made no earnings separately, sepa- maintained their property, participate to did not in the separate expenses, accumulated es- rate refinancing property, of the and did not returns, tates, separate and filed tax participate management prop- in the following exceptions: erty. title in the Kai Nani Place Joint * * * * * * property. (b) Honfed, joint mortgage A debt regard fifty percent 22. With to the property. Kai Nani secured Place (50%) property in the Aoloa Place interest (c) joint mortgage A second debt December, 1987, purchased by in dur- Wife Union, Hickam Federal Credit secured ing partici- marriage: Husband did not property. the Kai Nani Place pate purchase financially in the or other- (d) joint savings A account at Hickam wise, monetary no made direct contribu- historically in a Federal Credit Union property tions to the for the maintenance amount, opened nominal and inactive for preservation property, of said no made taking joint purposes of out the loan indi- contributions, mortgage repairs no made 8(c) in above. cated property, participate in to the did not (e) joint checking A account for held refinancing property, of the and did not year early less than one from late 1978 or participate management prop- in the of the 1979, through September, 1980. erty. jority band Place of the Kai Nani Place and 1986. (40%). However, 15. Wife (f) purchase price ^[******] Joint tax returns for mortgage. paid of the paid sixty percent payments remaining forty percent Husband made the property on the Kai Nani acquisition price 1983,1984,1985, and Hus- (60%) ma- riage. preservation trial, sets Wife significant manner to the maintenance and 24. Based on the evidence adduced at * ^[*] assets she Husband did not contribute brought * ^[*] purchased during any * ^[*] to the of the * ^[*] marriage, or premarital * ^[*] the mar- * ^[*] any as-

* * * * * * marriage 26. Husband came into the pension. awith substantial retirement regard separately 18. With to Wife’s pension. 27. Wife has no retirement property, titled Kekoa Place Husband did participate financially purchase not 28. Husband has maintained asWife otherwise, monetary made no direct beneficiary plan of his survivor benefit property contributions to the main- since 1981. preservation property,

tenance and of said security being relied on the contributions, mortgage made no no made beneficiary the named of Husband’s sur- repairs property, participate did not plan. vivor benefit refinancing property, in the and did participate management in the CONCLUSIONS OF LAW property. ^{[*] [*] [*] [*] [*]} n * * * * * * regard separately equitable 20. With to Wife’s It is fair and that Hus- (50%) fifty percent Annuity owned interest in the band continue his Bene- Survivor during Army Ala Plan Wai Boulevard fits under the U.S. Retirement marriage: participate primary Husband did not effect and maintain Wife as the thereunder, beneficiary seventy- provided paid Wife cent. that Wife contends she monthly pays premium.... percent paid twenty-sev- associated three and Husband view, percent. dispute en In our irrel- fairness, In the interest of note in we because, Model, Partnership evant under the ignore passing findings that the above finding is not material. of pay the funds to for the sources used family’s personal expenses and household Richards, v. Richards Haw. partners living the marital at while were (1960), P.2d 188 they Kümakani Place after residence and owned 1200 shares Kahua [Husband] moved into the Kai Nani Place residence. [Ranch, at Limited] the time of mar- findings ignore cooper-

The above also riage purchased 1938]. He [in shares partners ation of the marital to with marriage. after There is evidence W-2, financing. example, For which Exhibit he had funds of his make sufficient own to appears prepared to be a financial statement purchase. Inasmuch as Kahua has by early inWife 1979 in with an connection outstanding, purchase 3200 shares loan, application for a states relevant majority made [husband] stockholder as follows: corporation of the 5 shares.

both ADDENDUM TO throughout year. However, 1978 income real estate and taxes ment nor filed. Taxes come. (2) Federal and state consultant (1) Amount estimated. Am involved with CIAL STATEMENT: Present residence have as me and sale; basis. no yet numerous spouse may payments been neither No fixed PERSONAL purchased exceed amount income have been projects of either monthly taxes for computed on FINAN- some on agree- inter- paid. paid in- Id. at paraphernalia, paraphernalia. Except as to household evidence adduced at division that she lent [wife] established meritorious claim [wife] contributed Here, any portion ^[*] 511-13, building up the record does not show that ^[*] property 355 P.2d at 200. any effort to it cannot of such estate. ^[*] any property other than [husband’s] ^[*] be said from the accumulation hearings ^[*] of her own household estate or ^[*] principal est until November 1979. extent, any, re- To the that Richards equity Proceeds on two residences quires partner non-owner marital now market will be used retire prove that or she contributed he to the accu- agreement of pay sale and interest. Category mulation of (4) Explanation partner’s NMVs of the other marital Marital properties: of status of Property Partnership before he or she has a Kümakani residence is now for sale. it, equitable claim to an meritorious share of continue, Mortgage payments of $1240 superseded by Richards has been the Part- income, no until with sold. nership Model. Heights mar- ‘Aiea residence also on the property ket. As of March 15 this will following principle enunciated income; payments no mortgage have small Gussin, this court Gussin 9 Haw. until sold. continue 279, 288-89, App. 836 P.2d 504-05 Hutchinson, property Kansas has been rev’d, (1991), 73 Haw. 836 P.2d and is now in sold escrow. (1992), partner remains valid. Marital A’s listed, properties exception All other management during-the-marriage and main residence, mortgag- Kai of our Nani have partner premarital tenance of marital A’s However, provides posi- rental es. income partner investment are marital considering cash flow when write-offs tive partner during- ship activities. Marital B’s taxes, depreciation. for interest and manage the-marriage noninvolvement in the paid sixty partner of marital A’s court found that ment and maintenance percent purchase price premarital property Kai Nani investment is no more forty per- paid Place and Husband relevant and valid factual consideration 425-118(a) (1985)) (quoted Tougas partner Partnership reducing marital B’s 19, 27-28, partner prepar- Tougas, 76 Hawai'i than marital B’s Model share (1994)). partner doing 445-446 ing all of marital A’s meals all are relevant and valid of the housework Partnership Supreme The Hawaii Court’s increasing marital factual considerations for applies partnership principles Model of law partner B’s Model share. 580-47. Under the Model, if all relevant and valid considerations partnerships equal are “[MJarital equal, Category the division of the 5 partnerships. During marriage, part both Catego- of the Kai Nani Place and the NMV enjoy consequences partner’s ners the of one ry Ala 1 NMVs of the Kekoa Place and Wai partners successes and both suffer the conse properties not an of Boulevard was abuse quences partner’s Hataya of one failures.” discretion, 2 Category but the division 1,12, Hatayama, Haw.App. ma v. 9 818 P.2d NMVs of the Kekoa Place and Ala Wai Bou- (1991). 277, properties Category levard and the 5 NMV partnership appropriate “The model is the properties an of of the Aoloa Place was abuse family apply for the courts to when exer law Therefore, ques- dispositive discretion. cising adjudication their discretion appeal tion on is whether there is evidence of property proceedings.” division divorce or more and valid one relevant considerations 19, 28, Tougas Tougas, 76 Hawai'i 868 P.2d equal that were not that authorized the devi- (1994). 437, 446 Partnership ation from the Model. law, general partnership part- “each Under clearly The record shows repaid to his [or her] ner is entitled be family awarding court’s reasons for allWife partnership property, to the contributions Category Kekoa and 5 NMVs by way capital whether made or ad- Place, Boulevard, Ala and Aoloa Place Wai Partnership vances.” 59A Am.Jur.2d (1) properties applicable were that Uni omitted). (1987) (footnotes § 476 Absent a Starting form Point for 2 NMVs legally permissible binding partner- and seventy-five percent was to the owner and ship agreement contrary, “partners to the (2) non-owner, twenty-five percent to the equally profits part- share in the of their Husband and Wife each handled much of nership, though they may even have con- many their finances and of their unequally capital tributed to or services.” by spouse, without involvement the other and (footnotes omitted). §Id. Hawaii [Ha- (3) prop not Husband was involved with the partnership provides law in relevant waii] brought partner into marital erties Wife part as follows: by ship other than the fact of the marital determining rights Rules and duties partnership. partners. rights The and duties of the (1) Reason is now not the law. Under partners partnership in relation to the Model, Partnership if all relevant and valid determined, subject any shall be equal, Category 2 considerations are NMVs them, agreement by between the follow- equally should divided. be ing rules: partner repaid Each shall be (2) (3) Reasons are not rele contributions, partner’s by way whether vant and valid considerations. As we have capital partnership or advances to the above, except noted one or as modified property equally profits and share premarital agree more valid and enforceable surplus remaining after all liabili- ments, agreements, marital ties, including partners, those to are sat- agreements, Partnership applies. Model isfied; and must contribute towards the case, Epps’ parties In the did not enter losses, otherwise, capital whether of any pre into relevant valid and enforceable according partnership sustained Thus, DOM, agreement. on the all partner’s profits. to the share of the Separate of Husband’s and Wife’s Premarital Gardner, Haw.App. Property Partnership Prop Gardner v. became Marital (quoting erty governed by Partnership 810 P.2d Model. The did not enter into valid and Püpükea court awarded Lots 55 Therefore, agreement. enforceable divorce husband, and 58 to the property the Kona in the absence of a wife, valid and enforceable Püpükea Lot 57 to the husband agreement, the fact that Husband tenants-in-common, subject and the wife as property and Wife conducted their real to the wife’s life interest. they

financial affairs as were not married pertains Model to NMVs. deviating not a valid basis for from the appeal Au-Hoy nothing The issue on had they Model because were mar- Au-Hoy do NMVs. does not men- ried. subject tion the of NMVs. The issue was the Au-Hoy Au-Hoy, 60 Haw. discretionary extent of the court’s au- (1979), authority is not contrary. thority to award each to one or the Au-Hoy, Supreme the Hawaii Court did other of divorcing partners rather than quarrel with the court’s statement awarding divorcing partner each one-half of properties. all family The court resolved the parties, throughout Where the their mar- by concluding issue that “[t]he Court is not riage, have earnings sepa- treated their compelled properties to order the of all sale rately, separate expenses maintained 358, proceeds.” and divide the Id. at 590 separate estates, accumulated it is within at P.2d 83. the discretion of the Court to allow each to keep separate his or her estate where such Reese, Our statement in Reese v. 7 equitable award is fair and under all cir- 163, (1987), Haw.App. 747 P.2d 703 rev’d in cumstances. compelled The Court is not Lewis, 497, part, Lewis 69 Haw. properties to order the sale of all (1988), permissi 1362 that “[t]he court proceeds. divide the bly dealing considered this course of between 358, Id. at at P.2d parties dividing property when case[, parties Hoy Hoy, in this Au ]ees v. Au Au-Hoy, primary In dispute was over (1979)[,]”Reese, 60 Haw. 590 P.2d 80 following properties: real Haw.App. at 747 P.2d at was not suggest

intended to part the marital pattern practice ners’ conducting some property or all of their financial affairs they partners as were not marital is a basis deviating for from the Model or thirty years. The were married for predecessor. its paid separate “Each for his or her needs brief, answering In her Wife contends that during marriage, except that the husband partnership sepa- “[i]f the extends to [Wife’s] paid utility they the costs of food and after property, rate then it must extend to [Hus- Pupukea [Püpükea], [0‘ahu], moved to Oahu separate property, particular in band’s] his They 1964.” Id. at at P.2d military retirement interest. [Husband] together Pupukea [Püpükea] lived Lot 57. clearly agree wouldn’t with that and therein Pupukea [Püpükea] The husband wanted illogical premise argument.” lies the of his Lots and 57 awarded to him and the assertion, Contrary except pro- to Wife’s as property Kona awarded to In the the wife. vided otherwise one or more valid and alternative, he wanted the court to premarital agreements, enforceable “admix all and create a Solomonic agreements, agreements, judgment.” at Id. 590 P.2d at 82. words, partnership also extended to Hus- alternatively requested other he military band’s retirement benefit. Hus- court to award him half of all four military properties, including property, band’s retirement benefit has Cat- the Kona thinking egory may may It invading that his threat of NMV. not have a the title property Category to the Kona 2 NMV. The reason we do not would motivate the wife NMVs, however, agree him Pupukea to let have the three need to know these two is that, properties. unique the fact because of their charac- teristics, governed August The 1991 Divorce Decree interests are retirement special $1,508,0544 rules outlined a total awarded Wife NMV Stouffer Stouffer, Haw.App. 867 P.2d 226 a total and awarded Husband NMV (1994). Model,6 $1,043,350.5 Under the if all relevant and valid considerations view, that her In Wife’s the fact be awarded a NMV of equal, Wife should Category 1 NMVs were direct vital contribu $1,343,7087 and Husband should be awarded acquisition of the Kai Nani Place tions to the $1,207,696.8 question The is total NMV NMV a relevant and valid consideration anything on record that whether there is fifty percent of awarding her more than valid consideration for is a relevant and Category Nani 5 NMV. We the Kai Place $164,3469 awarding than the disagree. Similarly, the fact that Husband’s more NMVs, including military dis his Partnership Model. benefit, ability/retirement were direct and following are relevant and valid con- acquisition indirect vital contributions marriage in siderations. Wife entered the Kai Nani Place NMV is also not a age forty-three property 1978 at with real legal relevant and valid consideration. $261,012.10 unequal principle that contributions Not included that had a NMV of equal partnership partners to an do she this total is the residential change equality partnership ap brought marriage during into the but which plies unequal contributions at the start of marriage gifted daughter by a the she to her unequal partnership and to con the prior marriage. entered the mar- Husband during partnership. the marital tributions age fifty-eight riage at with real Model, $125,000 if Partnership all valid mili-

Under the that had a NMV of and with equal, and relevant considerations Wife’s tary disability/retirement ap- cash benefits of Street, Category 1 of the Palailai NMVs month, $2,900 $34,800 proximately per per or Street, Olaloa and Puahao Place Model, Partnership annum. Under the Wife should be awarded to Wife and Husband’s marriage age fifty- in would leave the 1991 at Category 1 of the Kümakani Place NMV $1,343,708. However, five with a NMV of property should awarded to Husband. be income insuf- there is evidence Wife’s is Although precise no evidence of the there is support and that will ficient to her her deficit Category properties, 1 NMVs of these Nani increase when the Kai Place residence permit finding. facts From the sale of the is sold and she cannot rent two of its bed- Olaloa, Palailai, properties, and Puahao in her bed and breakfast business. rooms proceeds approximately received cash marriage age Husband would leave the at $220,162. From sale of the Kümakani $1,297,952 seventy-one plus with a NMV of property, proceeds Husband received cash military disability/retirement Category 1 $125,000. permit The facts court security cash benefits and social cash bene- assume, find, purposes of this and we month, $5,600 $67,200 per in fits excess of opinion, that these amounts are the relevant Category per year. 1 NMVs. 202, $37,200 $316,652 $3,650 $60,402 Hussey Hussey, 77 Hawai'i 881 P.2d 1270

4. + + + v. = (1994). $52,650 $1,037,500 $1,508,054. + + $220,162 $37,200 $158,326 $3,650 7. + + + = $1,037,500 $1,043,350. $5,850 5. + = $29,250 $864,919 $1,343,- $30,201 + + + $864,919 708. is one-half of the NMV of the Kai Gussin, 470, deducting Category properly 6. Gussin v. 73 Haw. Nani Place after rev’d, (1992), Haw.App. 836 P.2d 498 1 NMVs. (1991), Starting abolished Uniform Points. Tou $30,201 $29,250 $125,000 $158,326 + + + + 8. gas Tougas, 76 Hawai'i 868 P.2d 437 = $864,919 $1,207,696. (1994), approved Partnership Model. If all equal, relevant and valid considerations are - = $1,508,054 $1,343,708 $164,346. 9. Partnership Category Model awards and 5 = $220,162 $37,200 $3,650 $261,012. spouse. Tougas, supra; + NMVs one-half to each 10. + CONCLUSION siderations authorize deviation from the Model; Partnership (1) (a) Accordingly, parts we vacate BO, August Decree, and 7 of the 1991 Divorce 7. If question yes, the answer to 6 is (b) Order, and the October state each relevant and valid consideration remand proceedings for further consistent (b) decide and state the amount of the opinion. with this deviation, any, Partnership Mod- remand, el; proceed On court shall

generally as follows: appropriate 8. Enter an decree. 1. Decide the NMVs real estate Husband brought and Wife into ACOBA, J., part, concurs in dissents in marriage; part. Categorize 2. the NMVs of the assets and ACOBA, Judge, concurring part in debts of the at the time of the di- dissenting part. vorce; I concur remand this case on the application State the of the Partner- grounds determining that in ship the division of categorized Model to the NMVs of the property, employed system court parties; assets and debts of the starting points,” “uniform which was dis- 4. Decide whether one or more valid and approved Gussin, Gussin 73 Haw. enforceable marital have modi- (1992). 836 P.2d 484 fied the part Model in total or in excluded some all catego- and/or I would reverse the October 1991 order Model; rized NMVs from the granting Wife’s Motion for Reconsid- July eration Filed 1991 because on the If question yes, the answer state record there is no valid requiring basis for modification(s) agreement(s), beneficiary Wife continue as the on the exclusion(s), them; and enforce it or policy insuring Husband’s life. Solely respect categorized to the NMVs that are scope not within the aof I would not remand for a determination of of, valid and enforceable modification applicability of the 1987 amendment to and/or from, Model, (HRS) exclusion 572-22, con- § Hawaii Revised Statutes consequences sider the all party valid and en- because any neither claimed contract of, forceable § modifications exclusions existed under HRS 572-22 much less re- and/or from, Model, quested and decide the trial court or this court for en- whether one or more relevant and valid con- of contractual remedies.1 As with forcement party generally It is evident from the briefs par- that neither which declared ”[e]ach dispute argued any premarital in this ties there was should be awarded as his or her sole and retirement, IRA, separate property, pension, post-marital or marital or contract under HRS profit-sharing compensa- regard § other deferred 572-22 with to Husband’s survivor’s (SBP). tion benefits to which he or she plan is entitled to or benefit entitled; may provid- to which he or she become The issue was whether Wife’s claim for such pursuant ed the are distributed to this appropriately benefits was raised. Position Statement." Brief, Opening In his Second Amended Hus- Wife’s brief also contended that Husband’s alleged sought band that Wife an order that counsel raised the SBP issue in direct examina- Husband maintain her as the exclusive beneficia- Husband, tion of and cross-examination and re- ry only under the SBP after the divorce trial was direct examination of Wife. Whether Wife's completed. July On the court had not, timely claim was raised it was raised initially decided not to divide retirement benefits. solely in terms the division of SBP benefits in MR. UKISHIMA: I take I it—do assume that conjunction with the division of other assets of you just—the dividing any Court is not parties, not in terms of a contract which had pension plans? retirement or IRA keep Each will been breached: Well, their own. MR. TOMAR[Husband’s counsel]: keeps THE COURT: Each problem—the their own. reason we submitted an affidavit Wife, hand, on the other request coming asserted that she a new is because if in which trial, properly paragraph raised a claim to the SBP in was not made at if it had been made at February 9 of her 1991 Position Statement trial then we would have come in and offered capacity Thompson, as Trustees contract, in their any purported existence other Bishop, Pauahi the Estate of Bernice § 572-22 con- HRS and enforcement Savings and Loan As Honolulu Federal by party to be raised

tract are matters Hawaii, sociation, 1- Bank of John Does Nothing in the claiming thereunder. relief Partnerships 1-10, 1 Doe Jane Does legislative § 572-22 or its language of HRS 1-10, Corporations Doe “Non- Doe pursuant to HRS history contemplates that Corporations 1-10, and Doe Profit” Gov 572-22, impose may sponte § sua a court Defendants-Ap 1-10, Agencies ernment party obligations on a absent contractual pellees. opposing party. such relief claim for majority, all due With Individually Kay VINCENT, and as Tokie approach adopted it conflicts with Special of the Estate of Administrator legislature’s apparent intent to validate Vincent, Deceased, Albert Vernon themselves agreements which Third-Party Plaintiffs/Appellants, enforce, not make and choose to v. possibly falling may perceive as which we FUKUSHIMA, Henry M. H. Rose Fukushi Many promises § 572-22. under HRS Contracting, ma, Henry Fukushima in the marital context agreements made Sign Co., Ltd., Moon, Oahu Frank Oahu with the consider- meant to be infused never Clayton Building Contractors, Sign and ordinary contacts ations that characterize Builders, Inc., Tom, Mathew K. Master justification casting here for and I see no Kaonohi, Inc., H In Honsador and S & § 572-22 issues the mold of HRS Company, Third-Party Defen surance parties themselves do not. The where the dants/Appellees. controversy which arises under here is one 580-47, not HRS 572-22. FUKUSHIMA, Henry Rose M. Fukushi H. Contracting, Henry

ma and Fukushima Fourth-Party Plaintiffs/Appellees, SHIMOTE, K. Alan Rowland Frederick Snyder Ossipoff, & Rowland Archi SHIMOTE, K. Frederick Fourth-Party Defendants/Ap tects, Inc., Plaintiff-Appellee, pellees. No. 16679. Special Kay VINCENT, as Adminis Tokie Appeals Court of of Hawai'i. Intermediate of the Estate of Albert Vernon trator Vincent, Vincent, Deceased, Kay Tokie Oct. 1995. Defendants-Appellants, and Trustees of Denied Oct. Reconsideration Bishop, the Estate of Bernice Pauahi Denied Nov. Certiorari Lyman, Jr., capacity in his as Richard Bishop the Bernice Pauahi President of Henry Peters,

Estate, Rich William S.

ardson, Myron B. Matsuo Takabuki and argument request keep THE COURT: In her basis also to rebut the her as evidence

beneficiary. being deviation. position statement. It was It is not in their position was the deviation on the Uni- Her They question. even ask her not in the didn't Starting regarding the marital resi- Point form were whether she wanted it. There direct separately property. as her owned dence as well questions on—on cross-examination. It no argue She didn’t for contin- MR. TOMAR: closing argument. just It wasn’t was not in brought benefits, however, as a survivor's ued life time up. annuity in that connection. If it was— No, position was THE COURT: because her brought up in COURT: I think it was THE going something what I to do other than I was Starting— deviating terms Uniform added.) (Emphasis did. brought up only with MR. TOMAR: It was they bought analysis to an of when property.

Case Details

Case Name: Epp v. Epp

Court Name: Hawaii Intermediate Court of Appeals

Date Published: Oct 3, 1995

Citation: 1995 Haw. App. LEXIS 41

Docket Number: 15732

Court Abbreviation: Haw. App.