*1 HATAYAMA, ROBBIN H. v. KENNETH Plаintiff-Appellant, HATAYAMA, M. Plaintiff- Defendant/Third-Party SEE, Appellee, FLORENCE EUGENIA Third-Party Defendant
NO. 15057 (FC-D 90-1348) NO.
OCTOBER BURNS, C.J., HEEN, J., AND CIRCUIT JUDGE YIM
ASSIGNED BY REASON OF VACANCY *3 BURNS, OPINION OF THE COURT BY C.J. In this divorce case commenced Robbin H. plaintiff (Wife) Hatayama (Husband), M. against Kenneth Hatayama issue was the division primary and distribution of the net (NMV) Place, Kahaluu, market value of 47-006 Okana Hawaii (Okana Place). Because the record title to Okana Place was in the Husband, Wife, name mother, and Wife’s Florence Eugenia (Florence), as tenants with full joint rights See survivorship, was to file a permitted third-party complaint against Florence. 24,
Wife the December 1990 Divorce Decree appeals Decree), (Divorce that the court abused its dis contending $50,000 when it her 30% of minus cretion awarded 99% We from the sale of Okana Place. con of the net sales proceeds from the Uniform Starting court’s deviаtion clude that Therefore, (USP) we was based on invalid reasons. Point partially (11) (7), (10)(B), (10)(C), (10)(D), vacate sections 9, 10, 8(b), 8(d), 8(f), 7, 8(a), 8(c), Divorce Decree paragraphs 5,1991 and remand Conclusions of Law and 12 of the March in the of this light decided for reconsideration the issues therein opinion.
FACTS brother, Husband, a residence his and his two sisters inherited *4 and, 1979, it sold used proceeds from their They parents. in and began making Plаce. moved They Okana purchase most completed improvements prior improvements. They and Wife. of Husband 8,1982. on Wife’s two May and were married Husband Wife 10,1973 February bom on from a daughters previous relationship, 29,1976, lived with them. Initially, November respectively, in a lived rented and Wife and Wife’s two daughters Husband 1982, they December of in Kahaluu. In approximately house in, Wife moved Okana Place. Before Husband and moved into weeks the improvements for several to complete worked they and his sisters. brother which had been started the brother’s died. Apparently Husband’s brother subsequently siblings. to the surviving share passed equally Place Okana had a downstairs rental unit. In October of 1990 $575 the rent was month. per
An determined that the market appraisal value of Okana Place $187,000 8, was on 1982. In May 1987 Husband’s sisters filed Thereafter, action him. partition against Okana Place was marketed but did not sell. In of 1987 August Husband purchased $105,000, $5,000 his sisters’ shares for of which was applied costs. Because Husband closing could not for a qualify mortgage, Wife and Florence agreed co-sign note. Since the mortgage owners, lender all three borrowers to required be record title was Husband, Wife, in the placed names оf and Florence. Because the $5,000, costs closing exceeded Florence $500 contributed cash toward the Florence considered Okana purchase. Place to be Hus- band’s and Wife’s.
Husband’s was that Wife understanding would collect the rental payments from the pay mortgage rental payments, her earnings, Husband’s which he earnings turned over to her. In early 1988 Wife failed to pay mortgagе several months. Husband did not learn of this until he received delinquency a fore- Thereafter, closure notice. Husband began collecting the rental payments and paying He also mortgage. satisfied the delin- quency.
The date of final separation of divorce contemplation (DOFSICOD) occurred in 1990 when Husband February moved out. Wife Place, and her children remained at Okana rent-freе. 12,
The case was tried on October 1990. The family court announced its oral decision on October 1990. The family 5,1991 court’s March of Fact state in Findings relevant as fol- part lows:
25. At the time of the out never buy [Husband] promised or indicated to or that he [Wife] [Florence] wanted or intended them have an to interest in ownership [Okana Place].
[*] [*] [*] did not intend to either 27. give [Wife] [Husband] His or an interest in ownership [Florence] [Okana Place]. as was that understanding they co-signed mortgage accommodation to allow him to out his sisters’ buy an interest in Place]. [Okana involvement, Divorce Decree
In consideration of her one of the Okana Place net sales proceeds awarded percent Florence. that Husband’s sisters each
In consideration of the fact Place, $50,000 for thеir share of Okana parties agreed received $50,000 should be Place net sales of the Okana proceeds Decree so ordered. to Husband and the Divorce awarded of the Okana remaining awarded 30% The Divorce Decree It the balance to Husband.1 to Wife and Place net sales proceeds share 30% of Husband from her 30% Wife to reimburse ordered tax, and insurance mortgage, property of Husband’s the excess received during period of the rental in excess payments month the separation, of the the beginning February 31, 1990, Commencing of the trial. end of the month October following division: orders the 1 TheDivorce Decree proceeds to Florence of the net sales 1. 1% $50,000 2. to Wife 30% of the remainder
3. balance to Husband
4. 5,6, of Law is of the Conclusions by paragraphs and 9 sрecified The division as follows: to Florence proceeds 1% of the net sales 1. $50,000 to Husband 2. proceeds to Wife sales of the net 3. 30% to Husband proceeds net sales
4. 69% $50,000. Fortunately, plus 100% Law award' The Conclusions of operative is the document. Decree Divorce *6 sale,
November and until the it authorized Husband to col rent; tax, ordered the lect the him to pay mortgage, propеrty insurance and ordered Wife to reimburse him 30% of payments; his resulting deficiency. Law,
In its March 1991 Conclusions its reasons for the deviation from the USP as expressed follows: concludes, however, 8. The Court it is fair to deviate a 50-50 division from USP equitable for the reasons: following Place] [Okana (a) was initially purchased [Okana Place] and his sisters their inheri- using [Husband] tance prior parties’ marriage;
(b) name was not on until title [Wife’s] (5) than more five after the mar- years parties[’] and had title for been on about riage eighteen (18) months when separated; they
(c) were used dur- earnings [Husband’s] most ing pay mortgage not; were earnings [Wife’s] (d) During period immediately brief the buy after out when was supposedly [Wife] some of mort- contributing earnings her — payments which was also the gage period when was to make the mort- supposed [Wife] from earn- payments combined gage parties’ which were into her ings checking deposited — account she into allowed mortgage go default;
(e) After notice of the default receiving undertook to cur- bring mortgage [Husband] rent, without con- his again using earnings any of her tribution out earnings; [Wife] (f) and her children from a previ- [Wife] ous have lived in relationship [Okana Place] *7 rent-frеe, use of their including [Okana Place] the in after of parties’ separation 1990. February
DISCUSSION the trial At the date of conclusion of the evidentiary part (DOCOEPOT), the NMV the one-fourth of residence that of the on was Husband owned the date of Husband’s Categories 2 The NMV that 1 and NMV. DOCOEPOT of the one-twelfth inherited was 3 Categories from his brother Husband’s the higher, 4 NMV. its actual NMV was Although probably and (one-fourth one-third plus the NMV of this agreed parties $50,000 $50,000. one-twelfth) was court this family The awarded of net The awarded to Husband. court also one family percent Florence The to Florence. one awarded percent sales proceeds 1,2,3, $50,000 and Husband for his and the awarded to Categories not in 4 NMV are dispute. title, owned Florence and Wife each record
According however, evidence, оn the of the remainder. Based one-third decided that both were accommodation merely par- court family Therefore, Cate- remainder was Husband’s ties. NMV of the record much this was NMV. We cannot tell from the how 5 gory 50% was The USP 50% to Husband actual dollars. applicable 70% to awarded this 5 NMV to Wife. The court family Category Husband and 30% Wife. on is whether the court
The
question
appeal
general
of
discretion. The
utilization of
required
Categories
abused its
NMVs, see
of
USPs for the award of the Categories
NMVs and
Gardner,
461,
The USPs how the of NMVs to specify be divided Categories in a distributed divorce case shall be divided if and distributed the evidence in the record establishes date the marriage, divorce, the entitlement to a and the Categories ownership NMVs if there is no evidence relevant to
the merits оf the the respective relative abilities of parties, the the condition in which each will parties, be left party divorce, the the burdens either for imposed upon party the benefit of the children of the and all other cir- parties, cumstances of the case.
Hawai‘i
580-47(a)
1990).
Revised Statutes
The
(Supp.
§
party
who wants the
family court
from
USPs
deviate
the
has the bur
den of
When the
proof.2
appeal challenges a deviation from the
Gardner,
471,
2 In App. 8 Haw. we stated that starting there can be no points, categorization
[i]f uniform then and the uni- form process decisional any meaningful are useful or pur- without exercises pose. in Gardner was an overstatement. The above statement Every judge divid- ing and distributing property starting point. in a divorce case has a judge’s The starting point how judge Category Catego- is the will divide and distribute the or ries of NMVs to be the divided and distributed in divorce if the in case evidence divorce, the record establishes marriage, the date of the the entitlement to a ownership and Categories the of one or party more of NMVs. The who desires an ending point family judge’s different than the has starting point court the burden proof. (A) case, Procedurally, possibilities: there are four the each divorce family judge starting point court does not announce his or or her reasons for devi- USP, whether, (1) the court determines as appellate a matter of law, the factual considerations the family court specified by and USP; the (2) authorized the if any deviation from and the appellant answer is whether the extent of the yes, dеviation was an abuse of the court’s discretion. When the a family refusal appeal challenges USP, (1) from the deviate the court determines appellate whether, law, as a matter of the factual considerations specified by family the court and the authorized deviation from appellant any USP; (2) if and the answer is whether the refusal to yes, deviate was an USP abuse court’s disсretion. The family court reviewing thereby develops uniformly princi applicable distribution, and rules of and range ples, policies, equitable choice, discards the invalid reasons for rejects, exposes, case, (B) ating deviating starting point; or not from that in each divorce starting his or judge point, his or her but does not announce her court announces (C) deviating deviating starting point; fоr or not from that each divorce reasons case, starting point her reasons for judge announces his or case, (D) deviating deviating starting point; or in each divorce for not from that (USP) Starting or judge the Uniform and announces his family court starts at Point Bennett, deviating not In Bennett v. deviating her or from USP. reasons judges concluded that a App. two of this court Haw. P.2d 597 (D). opted judge The priority goal to mandate third con statewide USP was *9 (D). powerless courts to mandate appellate that the Hawai' i are cluded Woodworth, Categories v. 7 Haw. are five of NMVs. Woodworth There 143, 764 Myers Myers, part, 70 Haw. App. 36 overruled in P.2d (1988). Category The 5 NMV is the difference has a USP. Id. P.2d 1237 Each minus, NMVs, by of owned one or both of the plus property the or all between evidentiary part of of the trial minus the spouses on of conclusion the the date the minus, 1,2,3, NMVs, applicable Categories and 4. The USP plus or includable in USP, of spouse. to each In the absence a each Category to the 5 NMV is 50% starting Category 5 judge will the to start family court have discretion at a different family the discretion to judge will have point in each divorce case. The court to the wife one Category starting point of 100% tо the husband and 0% apply a 5 to the husband in Category starting point 5 of 100% to wife and 0% case the ending will be only judge’s point appeal, case. On the court another of discretion standard of under the abuse reviewed and it will be reviewed review.
11 deviation or for to deviate from the USP refusing that some of the court are many family judges using. case,
In this the to have appears overemphаsized (at the the past (during the marriage) underemphasized present divorce) (after divorce). the time of the and future the It appears have abilities of underemphasized relative and the parties condition in which each be left will the divorce. party by 8(a)
Reason is by accommodated USPs to the applicable 1 and of In NMV Okana Place. the absence Category parts circumstances, 8(a) of reason extraordinary does not authorize a deviation from the USP. 8(b)
Reason of the NMV applies only Category of part Okana Place. The part of the NMV Okana Category of Place would be a 5 NMV even if Wife’s name had not been Category Therefore, 8(b) title. placed on the reason does not authorize a deviation from the USP. 8(c) 8(e)
Reasons do not authorize a from deviation USP. also evidence a applicable They fundamental misunder- the economic standing being married. Divorce consequences is not a vehicle which one is spouse compensated having more than he or given she received during or for marriage had suffer having from during the other spouse’s inadvertent, failures, or negligent, intentional or inаdequacies, words, financial or otherwise. In other wrongdoings, evidence that mate, lover, or the husband wife was a bad sex spouse, partner, conversationalist, cook, washer, ironer, protector, housekeeper, host, gardener, social or traveling companion, income provider, investor, producer, money, manager parent, handyperson, in-law, like, or thе is not relevant issue of the division and relevant, distribution evidence If such were each property. be of the mar- spouse would well-advised to the date prepare *10 for the of a divorce score riage possibility by meticulously keeping in a The trial be a contest of daily diary. would diaries experts. it to be such would Allowing a vehicle be contrary public trusting, in favor of harmonious рolicy loving, marriages no-fault divorces.
During a of a absence marriage, legally permissible otherwise, 572D agreement see HRS binding Chapter (Supp. 1990), are marital the husband’s and the wife’s earnings partner Gardner, P.2d Gardner 8 Haw. at App. ship earnings, (1991); a with marital earnings at NMV partnership acquired are and marital equal is marital partnership partnerships property; the conse a pаrtners enjoy both During marriage, partnerships. both suffer partners of successes and partner’s one quences facts that one of the failures. The one partner’s consequences while money work and all generated did all the marital partners money; or nothing, spent other one. things, the other did and not the marriage earnings during marital partner’s the residential most of the during pay were used other’s was taken one the marital of the residence that title mortgage; names; that, he of the other after received notice partner’s default, the residential undertook to bring the husband party’s current, for the marital part he earned using money mortgage wife earned money contribution from without any nership cir not, of extraordinary in the absence do the marital partnership, cumstances, USP. from the authorize deviation from 8(d) not authorize deviation any does
Reason probably circumstances, a spouse’s In extraordinary the absence of the USP. authorize do not to the DOFSICOD errors two years financial prior a deviation. two deviations 8(f) authorizes specific
Reason possibly Wife requiring an order follows: It authorize may the USP as Okana Place pоst- of the net expenses her fair share to pay it to relevant questions, on the answers DOFSICOD. Depending his fair Wife to requiring pay an order authorize may *11 value share rental of Okana Place post-DOFSICOD. Some relevant are: did Wife remain? did questions Why What Wife know or should she have known about the consequences her continued Did Husband ask toWife vacate? What occupancy? would havе been done with Okana Place had Wife If vacated it? residence, had Wife vacated the would she have been for eligible temporary alimony? seek Why did not a court order Wife or her rent evicting charging marital estate? payable
CONCLUSION we (8), (10)(B), (10)(C), vacate sections Accordingly, (10)(D), 24, 1990 (11) of the December Divorce Decree 7, 8(a), 8(b), 8(c), 8(d), 9, 10, 11, 8(f), paragraphs and 12 March Conclusions of Law аnd remand issues decided therein for reconsideration in the light this opinion.
Charles R. Kozak on for the brief plaintiff-appellant. Robert M. Harris and David Brustein on the for brief defendant/third-party plaintiff-appellee. HEEN,
CONCURRING OPINION BY
J.
I concur in the result
of this
for the reasons
opinion,
Bennett,
concurrence in Bennett stated
my
Haw. App.
(1991).
Additionally, further on compelled case, in this In majority case. this has opinion majority to establish a attempted further foundation Uniform Start- (USP) so, Points established In ing by prior opinions. they doing have only served what I an emphasize consider invalid deviation (HRS) 580-47(a) 1990). from Hawai‘i Revised Statutes I (Supp. § we the statute. revisit suggest 580-47(a)
HRS provides pertinent part § *12 alia, such further inter orders making [regarding, [i]n division and distribution the marital property], court shall take into consideration: merits respective of the the relative abilities the con- parties, parties, divorce, dition in which each will be left party by for the benefit burdens either upon party imposed children of the all other circumstances of parties, case. have construed HRS 580-47 to
Our courts appellate consistently § confer wide on the trial courts and have held that each discretion See, must its facts and case be decided own circumstances. upon Carson, (1967). Haw. P.2d 7 Carson v. 50 436 e.g., here, states: the majority In footnote 2 of the majority opinion USP, court will In the of a each family judge absence start- Category have the to start at a different 5 discretion The court judge each divorce case. ing in point to Category starting will discretion apply have the the wife one the husband and 0% to in 100% to point of 100% to the wife case a Category starting point case. On appeal, only 0% the husband another to will be reviewed ending judge’s point under the abuse discretion and it will be reviewed of review. standard correct and is in consonance complete
The statement is entirely the trial court’s deci- is our function to review with the statute. It that sat- it a position to whether leaves the parties sion detеrmine in the It is not our function outlined statute. isfies the factors is mandated which not if started a point determine the court the statute. in order I note that some in the award of provide uniformity child the legislature has uniform support, adopted guidelines 576(D) 1990). the courts’assistance. See HRS If Chapter (Supp. uniform are as as the starting points important considers majority be, them the issue should be for its presented legislature consideration.