Riethbrock v. Lange. ( 2012 )

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Electronically Filed
Supreme Court
SCWC-28289
16-MAR-2012
09:13 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
HEINRICH ALEXANDER RIETHBROCK, Petitioner/Plaintiff-Appellant,
vs.
MARION BARBARA LANGE, Respondent/Defendant-Appellee.
NO. SCWC-28289
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 28289; FC-D. NO. 04-1-0147)
MARCH 16, 2012
RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
Heinrich Alexander Riethbrock and Marion Barbara Lange
were married in 1997. Riethbrock filed a Complaint for Divorce
in 2004. The Family Court of the Second Circuit (family court)1
granted the parties’ stipulated divorce decree on August 8, 2005,
reserving jurisdiction over division of the parties’ assets and
1
The Honorable Simone C. Polak presided.
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debts.
Riethbrock subsequently failed to appear at various
hearings, failed to respond to Lange’s discovery requests, and
requested numerous continuances. On Lange’s motion, the family
court issued a series of orders that indicated its intent to
award Lange a one-half share of the parties’ real property
located in Pukalani, Maui. On June 8, 2006, the family court
granted Lange’s request to list the Pukalani property for sale,
and subsequently filed various orders to effectuate the sale of
the property. On October 5, 2006, Riethbrock filed a motion to
stay the sale of the Pukalani property and to dismiss, in which
he argued that the family court did not have jurisdiction to
order the sale because it had failed to enter judgment or issue a
ruling dividing the Pukalani property within one year of entering
its stipulated divorce decree, as required under this court’s
holding in Boulton v. Boulton, 69 Haw. 1, 730 P.2d 338 (1986),
which interpreted Hawai#i Revised Statutes (HRS) § 580-56(d).2 On
October 26, 2006, the family court filed its Order Denying
Pending Motions, in which it denied Riethbrock’s motion for stay
2
HRS § 580-56(d) (2006) provides:
Following the entry of a decree of divorce, or the
entry of a decree or order finally dividing the
property of the parties to a matrimonial action if the
same is reserved in the decree of divorce, or the
elapse of one year after entry of a decree or order
reserving the final division of property of the party,
a divorced spouse shall not be entitled to dower or
curtesy in the former spouse’s real estate, or any
part thereof, nor to any share of the former spouse’s
personal estate.
2
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and for dismissal. On January 23, 2007, the family court filed
an order authorizing escrow to release a portion of the proceeds
from the sale of the Pukalani property to Lange.
On appeal to the Intermediate Court of Appeals,
Riethbrock argued that: (1) the family court erred in denying his
motion to stay and to dismiss because it did not have
jurisdiction to divide the Pukalani property after the passage of
one year, and (2) the family court’s order releasing the funds
from escrow violated his constitutional rights to due process and
equal protection. The ICA held that the family court implicitly
divided the Pukalani property in its orders prior to the one year
limitation set forth in Boulton and HRS § 580-56(d), and
accordingly had jurisdiction to order the sale of the property to
enforce its prior property division. Riethbrock v. Lange, Nos.
28289 and 28694, 2011 WL 3455829, at *1-2 (Haw. Ct. App. Aug. 8,
2011)(SDO). The ICA further determined that it lacked
jurisdiction to consider Riethbrock’s contention regarding the
order releasing funds from escrow because Riethbrock failed to
appeal that order. Id. at *2.
In his application, Riethbrock presents the following
two questions:
[1.] Did the [ICA] gravely err holding that the
[family court] had jurisdiction to divide the Pukalani
property more than a year after filing the divorce
decree, all in violation of Boulton v. Boulton, 69
Haw. 1, 730 P.2d 338 (1986), and HRS § 580-56(d)?
[2.] Did the ICA gravely err in depriving
[Riethbrock] of due process by holding that the
[c]ourt lacked jurisdiction to decide that the ex
parte motion releasing the sale proceeds from escrow?
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(Formatting altered).
We conclude that HRS § 580-56(d) was intended to apply
only in the narrow context of limiting a spouse’s right to dower
or curtesy in his or her deceased former spouse’s estate.
Accordingly, we overrule Boulton and hold that HRS § 580-56(d)
did not divest the family court of jurisdiction over the property
division in the instant case. We further hold that the ICA did
not have jurisdiction to address the family court’s order
releasing funds from escrow because Riethbrock failed to appeal
that order. Accordingly, we affirm the judgment of the ICA.
I. Background
A. Family Court Proceedings
On July 15, 1997, Riethbrock and Lange, both natives of
Germany, were married in Maui, where they had been living since
1996. The couple had a daughter who was born in 1999.
On April 2, 2004, Riethbrock filed a Complaint for
Divorce on grounds that the marriage was “irretrievably broken.”
Lange filed an Answer on April 13, 2004 stating that the marriage
was “irretrievably broken” and that “[a]ll assets should be
divided in a just and equitable way between the parties.” In his
“Position Statement,” Riethbrock contended that he should be
entitled to the Pukalani property as his “sole and separate
property” because he had acquired the Pukalani property “after
the parties’ separation in July 2001 and [Lange] has made no
monetary contribution and has never resided this [sic] real
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property.” Conversely, in her “Position Statement,” Lange argued
that she and Riethbrock began to live separately when Riethbrock
moved onto the Pukalani property, which was “purchased while the
parties were married and living together[,]” and that the
Pukalani property should “be divided in accordance with Hawai#i
Partnership principles with [Lange] having a one-half interest.”
The family court initially set the case for trial on
November 18 and 19, 2004, but the trial was continued. On
April 1, 2005, Riethbrock filed an amended Position Statement in
which he asserted that awarding him the Pukalani property would
“take[] into consideration the assets of [Riethbrock] existing at
the time of the marriage and assets acquired since that time.”
At an April 8, 2005 hearing, Lange orally moved to continue trial
based on the need for additional information to be provided to
the court regarding the awarding of child custody and visitation.
The family court continued trial to June 24, 2005, and it appears
the trial was subsequently continued again to July 14 and 15,
2005. Riethbrock subsequently moved for another continuance on
grounds that he was in Germany and could not return to Hawai#i
because he did not have a valid visa. Lange opposed the motion.
The family court denied Riethbrock’s motion with respect to the
divorce and custody and visitation rights, but granted it with
respect to the property division. Accordingly, the family court
continued trial on issues relating to the property division to
December 15 and 16, 2005.
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A partial trial on the divorce and child custody issues
was held on July 14, 2005, and on August 8, 2005, the family
court filed its Stipulated Decree Granting Divorce and Awarding
Child Custody, in which it awarded sole legal and physical
custody of their daughter to Lange. The family court “reserved”
“[a]ll other divorce issues, including but not limited to child
support and the division of assets and debts[.]”
On December 13, 2005, Riethbrock sent the family court
a fax requesting a continuance because he was suffering from
pneumonia and pleurisy. It appears that at a December 14, 2005
hearing,3 Lange orally moved that Riethbrock submit to an
independent medical examination and Riethbrock’s counsel orally
moved to continue trial. The family court granted both motions
and trial was continued to February 3, 2006. On December 15,
2005, Riethbrock’s counsel filed a motion to withdraw and for an
order to establish an attorney’s lien pursuant to HRS § 507-81.
On January 12, 2006, Lange filed an “Ex Parte Motion
for an Order Directing [Riethbrock] to do Everything Within His
Power to Have the [Pukalani property] Reconveyed Back to
[Riethbrock] -- by [Alfred Reichardt], in Whose Favor a Quitclaim
Deed was Executed by [Riethbrock] and Recorded on December 23,
2005.” In his declaration, Lange’s counsel stated that he went
on-line to verify the status of the Pukalani property and
3
The transcript of the December 14, 2005 hearing is not in the
record.
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discovered that Riethbrock had quitclaimed it to Reichardt,
Riethbrock’s friend in Germany. Lange asserted that the motion
was being made “within a few hours of . . . learning of the
highly improper and prejudicial transfer of title[.]” Lange
attached a copy of the quitclaim deed to her motion. The family
court subsequently granted the motion and ordered Riethbrock to
do “everything in his power to accomplish the immediate
reconveyance and recording” of the Pukalani property.
Additionally, the court ordered Riethbrock to pay Lange’s
attorney’s fees in connection with the reconveyance.
On January 13, 2006, the family court granted
Riethbrock’s counsel’s motion to withdraw, but denied without
prejudice the request to establish an attorney’s lien.
In a pro se position statement filed on January 27,
2006, Riethbrock contended that he made the down payment on the
Pukalani property with money from his own funds and money gifted
to him by his mother.
On February 1, 2006, Lange filed a motion in limine
requesting that the family court preclude Riethbrock “from
introducing any evidence at the February 3, 2006 trial” and that
Riethbrock be “found to be in default” because Riethbrock had not
cooperated in the discovery process and had “manipulate[d] and
insult[ed] this court” by transferring the Pukalani property.
Additionally, Lange requested the court find that:
Lange has a 50% beneficial interest in said real
property. Said interest is based on [Riethbrock] and
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[Lange] being married and living together at the time
that [Riethbrock] purchased said property; based on
[Riethbrock] and [Lange] having shared their expenses
since 1994; based upon [Lange] having never
quitclaimed or otherwise given away her marital
interest in said property; and based upon
[Riethbrock’s] often expressed intention to have
[Lange] live with [Riethbrock] on said property (at
the time said property was purchased and for years
thereafter).
Riethbrock did not appear at the February 3, 2006
trial. At the start of trial, the family court addressed three
faxes it had received from Riethbrock, one of which the court
interpreted to be a position statement on the property division
issue, and the other two as motions for continuances. The court
noted the many opportunities it had given to Riethbrock to be
present at trial, including an opportunity to participate in the
February 3, 2006 trial by way of video conferencing. However,
the court received no inquiries or requests from Riethbrock to
participate using video conferencing. In addition, with regard
to Riethbrock’s motions for continuances, the family court
stated, in relevant part:
This matter has been pending for quite some
time, and it is this [c]ourt’s position that it has
previously made every effort to allow [] Riethbrock to
attend this trial and that this [c]ourt does no longer
have the ability to wait and see if [] Riethbrock will
ever return to the United States[.]
. . . .
Riethbrock has had numerous continuances and at this
point the [c]ourt is denying any requests for a
continuance of trial.
The family court then took up the property division
issue. The court noted that it was unaware of any motion to
bring in the third party to whom the Pukalani property was
conveyed, and determined that the property was not in the marital
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estate. Lange responded that the family court still had a
“legitimate right and interest to carry out the -- the parties’
interests, particularly [Lange’s] interest in the property[.]”
The family court stated:
I think there needs to be a finding first that
there was a fraudulent transfer. And I think the
person whose interest in that property will be
effected [sic] has a right to participate in that
proceeding, which is why I think that you need to have
that person made part and parcel of this proceeding.
I mean I -- I see it -- two problems I see. Is,
one, I -- I still think that this property no longer
is part of the marital estate. Now, maybe it was
fraudulently transferred out of the marital estate and
maybe there is a way of addressing that, but I think
that the way of addressing that does also include
notice to that person and participation in that
proceeding.
. . . And as I indicated before I can only divide what
is part of the marital estate. And if the property is
not in the marital estate then the first, I think,
order of business would be to get it back in the
marital estate if that can be accomplished.
The family court granted Lange’s February 1, 2006
motion in limine to the extent it requested that Riethbrock be
precluded from presenting evidence. The family court then
defaulted Riethbrock only on the issue of child support, stating
that it would like to deal with each of the remaining issues
separately. Accordingly, the family court did not admit evidence
on the value of the property or whether it was part of the
marital estate, but rather heard testimony from Lange regarding
the parties’ financial situation as it pertained to the issue of
child support. Lange attempted to have an appraiser testify as
to the value of the Pukalani property, but the family court
denied the testimony because it believed the property was no
longer part of the marital estate. The family court reserved
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deciding the property division issue until Reichardt was brought
into the proceeding. The family court continued the property
division portion of the trial until March 8, 2006 to give Lange
“enough time to either file a memorandum or obtain service on
[Reichardt].”
Lange filed a memorandum of law on February 16, 2006,
regarding whether Reichardt needed to be joined. Lange argued
that, even in the absence of Reichardt, the family court had
jurisdiction to determine: (1) whether the transfer of the
Pukalani property to Reichardt was fraudulent; (2) the value of
the Pukalani property; and (3) the value of each spouse’s
interest in said property.
In its March 6, 2006 Order After Trial/Hearing
concerning the February 3, 2006 trial, the family court
determined, in relevant part:
C. Next, the court dealt with the matter of the
real property (located at 241 Hiwalani Loop, Pukalani
Hawaii (TMK(2)2-3-054-034)) that [Riethbrock] had
quitclaimed to a third person ([Riethbrock’s] good
friend [Reichardt] in Germany) on or about December 5,
2005 (ten days before the December 15, 2005 trial date
for which [Riethbrock] had been granted a continuance
to February 3, 2006). Said quitclaim was recorded by
the Bureau of Conveyances on December 23, 2005.
Based on such transfer of the property, the
court makes a finding that said property is not now in
the marital estate.
1. The court finds that it only has
jurisdiction to decide what is in the marital estate.
The court finds that legal notice of these divorce
proceedings (concerning the disposition of said real
property) need be given to [] Reichardt before the
court could have jurisdiction to make orders
concerning: (1) the validity of the transfer of said
property by [Riethbrock]; (2) the [c]ourt’s
jurisdiction to order the Bureau of Conveyances to do
anything concerning said property[;] and (3) whether
the court has jurisdiction to rule that said transfer
by [Riethbrock] was a fraudulent transfer.
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2. The court further determined that it is
premature for [Lange] to ask the court to find that
the transfer from [Riethbrock] to [] Reichardt was
fraudulent.
. . . .
D. Concerning [Lange’s] Supplementary Motion in
Limine; Request #1:
Order #3: Said request is GRANTED:
[Riethbrock] is precluded from introducing any
evidence (as a sanction for [Riethbrock’s]
continuing unwillingness to provide responses to
legitimate discovery; as a sanction for making
false statements in order to obtain
continuances; as a sanction for “giving away”
the major asset that was subject to division by
this court; and as a sanction for [Riethbrock’s]
continuing failure to follow the applicable
laws, court rules and procedures that guide
divorcing parties).
E. As to Request #2 (holding [Riethbrock] in
contempt) and #3 (finding [Riethbrock] in default as
to all remaining issues in the case:
Order #4: The court DENIED, in part, [Lange’s]
Request for Default. Said request was denied in
part pending [] Reichardt being brought into the
case and/or the court receiving legal authority
from [Lange] that the court has the authority to
grant the default without transferee []
Reichardt having an opportunity to participate
in the litigation.
Order #5: The court DENIED, without prejudice
[Lange’s] request to hold [Riethbrock] in
Contempt.
. . . .
G. Concerning Request Number 7 [asking the court to
find that Lange has a 50% beneficial interest in the
Pukalani property] on page 6 of the Memorandum in
Support of [Lange’s] Supplementary Motion in Limine:
Order #7: GRANTED, to the extent that the court
will allow [Lange] to put on evidence at the
trial today in support of [Lange’s] contention
that she has a 50% beneficial interest in said
property. [Riethbrock] is defaulted on this
issue and he precluded [sic] from presenting any
contrary evidence or argument concerning the
extent of [Lange’s] interest in said property.
H. Concerning Request Number 8 [asking the court to
mandate that Riethbrock pay Lange’s attorney’s fees]
on page 7 of the Memorandum in Support of [Lange’s]
Supplementary Motion in Limine:
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Order #8: Said request is GRANTED, as to extent
of [Lange’s] attorney’s fees that [Riethbrock]
shall be responsible for paying. [Lange] will
be allowed to present further evidence at trial,
and by way of affidavit and by way or [sic]
argument. [Riethbrock] is defaulted on the
issue of [Lange’s] attorney’s fees and he is
precluded from presenting any evidence or
argument on this issue.
A hearing was held on March 8, 2006, but no transcripts
of that hearing are contained in the record on appeal. On
March 29, 2006, the family court entered an Order After Hearing
in which the court “reconsidered its position concerning the
[Pukalani] property” after reviewing Lange’s February 16, 2006
memorandum. The family court found that the Pukalani property
was part of the marital estate. The family court further
concluded that it had jurisdiction to decide each spouse’s
interest in the real property without requiring that Reichardt be
made a party. The family court also ordered Riethbrock to
“accomplish” the reconveyance of the Pukalani property by
March 29, 2006, and set a hearing for May 8, 2006 for all further
motions. The family court reserved for decision its
determination of the value of the Pukalani property and the value
of Lange’s interest in the property until May 8, 2006. In regard
to child support, the family court found that Riethbrock “cannot
be relied on to make child support payments to [Lange]” and
accordingly found that “child support payments for a significant
period of time should be paid from [Riethbrock’s] one-half
interest of said real property.” (Emphasis added). In addition,
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the family court determined that Lange was entitled to attorney’s
fees from Riethbrock’s interest in the Pukalani property.
On April 21, 2006, Lange filed a renewed motion for
default on “all the remaining issues[.]” Also on April 21, 2006,
Lange filed a Supplemental Memorandum of Law in which she argued
that Riethbrock had no right to introduce evidence regarding the
property division. Lange argued that she should receive a “fifty
percent interest” in the Pukalani property. Lange noted that she
had testified that she and Riethbrock shared expenses and acted
as an “economic unit” throughout their marriage. Lange
acknowledged that Riethbrock “negotiated for, qualified for and
otherwise arranged to purchase real property in his name alone”
while she and Riethbrock were married and living together. Lange
asserted that Riethbrock kept asking her to move to the Pukalani
property. Lange further asserted that she and Riethbrock
continued to share expenses and act as an “economic unit.” Lange
also argued that her son from a previous marriage lived with
Riethbrock on the Pukalani property and helped to care for the
couple’s minor daughter.
On May 5, 2006, Riethbrock’s new counsel filed a
response to Lange’s motion for default. Riethbrock asserted that
the Pukalani property had been timely transferred back to
Riethbrock. Riethbrock presented arguments regarding the
valuation of the Pukalani property, but did not present any
argument regarding how the property should be divided.
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At the May 8, 2006 hearing, Riethbrock appeared by
phone. Riethbrock’s new counsel recognized that pursuant to the
family court’s prior rulings, “[t]here was a 50 percent
beneficial interest that [Lange] was held to have in his real
property here in Maui.” The family court acknowledged that the
Pukalani property had been returned to the marital estate, and
stated that it would issue a restraining order that Riethbrock
“not convey in any fashion the ownership or any control of the
property to anyone unless it is pursuant to a court ordered
sale.” The family court also ordered that “the property be
listed and placed for sale effective immediately[,]” and asked
the parties to make their best efforts to agree to a listing
agent to sell the property. The family court indicated that,
upon the sale, but “[b]efore distribution of the sale proceeds
from escrow[,] the [c]ourt will make an order detailing such
distribution.” However, Lange’s counsel argued that a hearing on
the distribution of the sale proceeds would only be appropriate
if the parties could not agree. The family court responded, “in
case that distribution of the sales proceeds from escrow is
contested for whatever reason[,] the parties can bring this
matter before the [c]ourt.” The family court advised the parties
to submit “a stipulated order detailing the distribution” or, if
a stipulation could not be reached, a “proposed order,” which the
court would then “pick whichever one.”
On June 8, 2006, the family court issued its Order
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After Hearing, in which it recounted its oral rulings, in
relevant part, as follows:
6. Concerning [Lange’s] [r]equest that the real
property be listed for sale immediately: GRANTED. The
[c]ourt determined that there is no alternative other
than immediately listing said property for sale and
selling it.
. . . .
9. Concerning the matter of final distribution of
the proceeds of escrow:
a) If the parties agree, they shall submit a
proposed Stipulated Order for the [c]ourt’s signature.
b) If there is a dispute between [Riethbrock]
and [Lange] regarding such distribution, each party
shall submit a pleading that includes their [sic]
proposed distribution. Oral argument is waived by the
parties; the matter will be submitted for the
[c]ourt’s written decision.
c) There shall be no final distribution until
the [c]ourt signs such a distribution order.
. . . .
12. Concerning [Lange’s] [r]equest that future child
support for a period of at least ten years be taken
from [Riethbrock’s] share of the proceeds of the real
property sale and placed in an interest bearing trust
account from which monthly child support payments
would be made to [Lange]:
GRANTED. At [Riethbrock’s] suggestion, all
future child support (approximately seventeen years)
plus [Riethbrock’s] one-half share of college expenses
shall be taken from [Riethbrock’s] one-half share of
the property sale proceeds. The trust department of a
major Hawaii Statewide bank shall administer said
trust fund provided [sic] [Lange] with eight hundred
seventy dollars ($870.00) a month payments and shall
also provide to both parties annual reports on the
condition of the fund and its disbursements. Any
funds remaining after the final disbursement of
payments, shall be considered the separate property of
[Riethbrock] and subject to further distribution by
the [c]ourt.
13. Concerning [Lange’s] [r]equest that attorney’s
fees be granted to [Lange] in the amounts that have
already been requested and may be requested throughout
the pendency of this case:
GRANTED in part and deferred in part. GRANTED
as to the latest request for $3,154.31 and deferred as
to the other prior request (for $65,928.51) and as to
future requests for attorney’s fees.
(Formatting altered).
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On June 15, 2006, Lange filed a motion to order the
clerk of the second circuit court to sign the real property
Listing Agreement because Riethbrock had refused to execute it.
On August 14, 2006, Lange, citing HRS § 580-56(d) and Boulton,
filed a motion for the court to promptly enter an order deciding
all remaining or reserved property division issues because
further delay “may cause this court to ultimately lose
jurisdiction to divide the marital property.” Lange then filed a
series of motions to effectuate the sale of the Pukalani
property.
On September 11, 2006, Lange’s counsel filed a motion
for a judgment and an order establishing an attorney’s lien
pursuant to HRS § 507-81 on the sale proceeds of the Pukalani
property.
On September 12, 2006, the family court authorized the
clerk to sign the “Deposit Receipt Offer and Acceptance on
[Riethbrock’s] behalf to accept the pending offer to purchase”
the Pukalani property for $515,000.00. Additionally, on
September 26, 2006, the family court ordered the clerk to sign
“any and all documents on behalf of [] Riethbrock in connection
with the sale and escrow of the parties’ [Pukalani property.]”
In a separate order dated September 26, 2006, the family court
ordered the escrow company to “[d]istribute the payments to
itself, the real estate brokers and all those who were
responsible for the closing of escrow” as well as “[p]ay
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[Lange’s] child support arrearage in the amount of $13,920.00
from [] Riethbrock’s one-half share of the net proceeds of
escrow[.]” In addition, escrow was “restrained and enjoined from
making any other distribution of funds from said escrow until
further order of [the] [c]ourt.”
On October 5, 2006, Riethbrock filed a Motion and
Memorandum for Stay of Orders to Sell Property of [Riethbrock];
and for Dismissal of Action (motion for stay). Riethbrock argued
that the family court did not have jurisdiction to order the sale
of the Pukalani property because it had failed to enter judgment
or issue a ruling dividing the property within one year of
entering its stipulated divorce decree. Riethbrock cited Boulton
to support his assertion that the family court’s failure to
divide the property within one year divested it of jurisdiction
to distribute the sale proceeds. In her opposition to
Riethbrock’s motion, Lange argued that Riethbrock’s reliance on
Boulton was misplaced, that the family court did divide the
property before the lapse of the one year limitation, and that
the litigation was prolonged because Riethbrock had engaged in an
effort to “delay,” “misrepresent,” “stonewall,” “abuse the
litigation process,” “and act in bad faith.”
On October 19, 2006, the family court held a hearing on
Riethbrock’s motion for stay, and Lange’s motion for the court to
promptly decide all remaining or reserved property division
issues. Lange argued, inter alia, that the family court had
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already divided the property by ordering that Riethbrock’s 50%
interest in the sale proceeds be placed in a trust for future
child support payments, and that Boulton was distinguishable from
the present case. Riethbrock argued, inter alia, that
Boulton was applicable to the present case, that the court did
not establish a valuation for the property, and that the court’s
“oblique reference” to a one-half interest did not constitute a
judgment as to the property division issue. The family court
orally ruled as follows:
that it had previously entered on June 8th an order
determining the amount of the child support that shall
be taken from [Riethbrock’s] one-half share of the
sales proceeds. Clearly that -- and -- and this was,
and I previously stated at [Riethbrock’s] suggestion
and agreement that the child support -- the future
child support of approximately 17 years plus college
costs shall be held in trust.
And so, at this point the [c]ourt is not going
to stop the sale [of the Pukalani property]. The
[c]ourt is going to give enforcement to the [c]ourt’s
previous order with respect to the child support.
It appears to the [c]ourt that the [c]ourt may
have implicitly made property division in this case.
Certainly this sentence that I keep referring to from
the June 8th -- June 8th order, paragraph 12. Again,
it indicates that the child support is to be taken
from [Riethbrock’s] one-half share of the property
sale proceeds.
And while I agree with [Riethbrock’s counsel]
that the one-half share of the sale’s proceeds is not
a determined number, in other words we don’t know if
the house is going to sell for $513,000, or $500,000,
or $450,000, whatever that one-half share is the
[c]ourt has previously determined that [Riethbrock] is
entitled to one-half share and consequently [Lange]
appears to be entitled to one-half share.
However, there is no final order which clearly
sets forth determined amounts and detailed division,
but I think implicitly the [c]ourt has made a property
division of 50-50 in this case.
On October 26, 2006, the family court entered its Order
Denying Pending Motions, in which it denied Riethbrock’s motion
for stay and for dismissal. The court stated:
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Although not explicitly stated in the [c]ourt’s
June 8, 2006 Order, it is implicit that the [c]ourt
was dividing the real estate on the basis that each
party would receive a one-half share of the net sale
proceeds of the property, because the [c]ourt ordered
that [] Riethbrock’s one-half share of the proceeds
would initially be placed in a trust fund for past and
future child support payments. Therefore, the [c]ourt
has finally divided the property within the one-year
period as required by HRS § 580-56(d).
Secondly, the [c]ourt denies the motion to make
any additional orders with respect to property
division, because such orders would now be outside the
prescribed period for such orders.
[Riethbrock’s] motion for dismissal of [Lange’s]
property claims on the basis that no property division
order was made is also denied. As noted above, the
[c]ourt implicitly made an order finally dividing the
property in its Order dated June 8, 2006. Because
that motion of [Riethbrock] is denied, it follows that
[Riethbrock] is not entitled to a stay of the sale,
and that motion is also denied.
On November 24, 2006, Riethbrock timely filed his first
Notice of Appeal (Case No. 28289) of the family court’s
October 26, 2006 Order Denying Pending Motions.
On January 23, 2007, Lange filed an Ex Parte Motion
Releasing [Lange’s] Funds from Escrow. Also on January 23, 2007,
the family court granted Lange’s ex parte motion and ordered that
escrow was authorized to release funds totaling $100,000.00 from
Lange’s share of the sale proceeds and $1,740.00 from
Riethbrock’s share of the sale proceeds to cover his child
support payments for December 2006 and January 2007. No Notice
of Appeal was filed from this order.
On July 24, 2007, the family court filed an Order
Pertaining to Request for Attorney’s Fees, which mandated, inter
alia, that Riethbrock pay Lange’s attorney’s fees and costs in
the amount of $65,928.51. The family court referenced its
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previous determinations regarding the awarding of attorney’s fees
to Lange. On August 20, 2007, Riethbrock filed his second Notice
of Appeal (Case No. 28694), in which he challenged the family
court’s July 24, 2007 Order.
B. ICA Appeal
Riethbrock filed two separate Opening Briefs in Case
Nos. 28289 and 28694. Riethbrock, 2011 WL 3455829, at *1. The
ICA consolidated the two appeals for disposition. However, the
ICA’s ruling on Riethbrock’s appeal in Case No. 28694, which
concerned the family court’s order regarding attorney’s fees, is
not challenged in Riethbrock’s questions presented. Accordingly,
the arguments raised in Riethbrock’s Opening Brief in Case No.
28694 are not discussed further. Hawai#i Rules of Appellate
Procedure (HRAP) Rule 40.1(d)(1) (“The application for a writ of
certiorari . . . shall contain . . . [a] short and concise
statement of the questions presented for decision. . . .
Questions not presented according to this paragraph will be
disregarded.”) (emphasis added).
In his Opening Brief to the ICA in Case No. 28289,
Riethbrock asserted two points of error:
A. The family court committed reversible error in
denying Riethbrock’s motion for stay of orders to sell
property of [Riethbrock] and for dismissal of the
action.
. . . .
B. The family court committed reversible and
constitutional error in filing the ex parte order on
January 23, 2007, authorizing escrow to release
$100,000 of the net sale proceeds from the Riethbrock
house to [Lange] and her ex-attorney in violation of
Riethbrock’s constitutional rights to due process and
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equal protection.
Riethbrock argued that his motion to stay the orders to
sell the Pukalani property was impermissibly denied because the
family court lost jurisdiction when it failed to “divide and
distribute” the Pukalani property within one year of its filing
the divorce decree as required under Boulton and HRS § 580-56(d).
Riethbrock contended that the family court did not divide the
Pukalani property in its June 8, 2006 order because the court
explicitly stated that the parties shall submit a proposed
stipulated order, and that “[t]here shall be no final
distribution until the [c]ourt signs such a distribution order.”
Additionally, Riethbrock argued that “[t]he record does not
reveal the existence of any such order filed within one year of
August 8, 2005 in which the [c]ourt finally divided and
distributed [Riethbrock’s] property and the Pukalani house.”
Accordingly, Riethbrock argued that the family court “lacked
jurisdiction of the subject matter to divide and distribute
Riethbrock’s real estate[.]”
Riethbrock also contended that the family court’s
January 23, 2007 ex parte order authorizing escrow to release
$100,000 of the sale proceeds of the Pukalani property to Lange
violated his right to procedural and substantive due process, his
right to equal protection, and Hawai#i Family Court Rules (HFCR)
Rules 5 and 7.
In her Answering Brief, Lange argued that although the
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family court did not explicitly state that it was dividing the
property in its June 8, 2006 order, the family court was not
divested of jurisdiction because it had “defaulted [Riethbrock]
as to [Lange’s] claim of a 50% interest in the property,” “used
that division in making related orders (such as the fund for
child support)[,]” and “fixed the value of the property at the
sum of $513,000.” Alternatively, Lange asserted that the
majority opinion in Boulton improperly characterized the
legislative history of HRS § 580-56(d) as applying to all marital
property, instead of merely “dower and curtesy rights” as
asserted by the dissenting opinion. (Citing Boulton, 69 Haw. at
7, 730 P.2d at 341 (Wakatsuki, J., dissenting)). Lange also
argued that post-Boulton decisions have shown that “a timely
order for property division can be enforced after the one year
period has ended[,]” and that Riethbrock’s misconduct, i.e.,
conveying the Pukalani property, should toll the statute.
(Citing Todd v. Todd, 9 Haw. App. 214, 832 P.2d 280 (1992);
Richter v. Richter, 108 Hawai#i 504, 122 P.3d 284 (App. 2005);
Kano v. Kano, 8 Haw. App. 172, 799 P.2d 55 (1990)). In addition,
Lange argued that the January 23, 2007 order releasing funds from
escrow did not violate Riethbrock’s constitutional rights. Lange
further argued that Riethbrock’s appeal was, in effect, an
untimely appeal of the June 8, 2006 order dividing the property.
In his Reply Brief, Riethbrock argued, inter alia,
that: (1) Boulton is applicable and still valid law; (2) Lange’s
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cited cases were distinguishable from the present situation in
which the family court lacked jurisdiction to divide the Pukalani
property and order the distribution of the sale proceeds; and (3)
the ICA had appellate jurisdiction.
The ICA concluded that because the family court had
“implicitly” divided the property in its June 8, 2006 order,
“Lange’s interest in the Pukalani Property and the methodology by
which she would receive that interest had been timely
determined,” before the one-year limitation set forth in Boulton
and HRS § 580-56(d). Riethbrock, 2011 WL 3455829, at *1-2.
Accordingly, the ICA determined that the family court properly
denied Riethbrock’s motion to stay. Id. at *2. In addition, the
ICA determined that it lacked jurisdiction to address the family
court’s January 23, 2007 order because it “arose two months after
the [first] notice of appeal was filed[,]” and Riethbrock failed
to file a separate notice of appeal from that order. Id.
The ICA affirmed the family court’s October 26, 2006
Order Denying Pending Motions, and entered its Judgment on Appeal
on August 23, 2011. Id. at *3. Riethbrock timely filed his
application on November 16, 2011. Lange did not file a response.
II. Standards of Review
A. Statutory Interpretation
“Statutory interpretation is a question of law
reviewable de novo.” State v. Wheeler, 121 Hawai#i 383, 390, 219
P.3d 1170, 1177 (2009) (internal quotation marks omitted). This
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court’s construction of statutes is guided by the following
rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its
plain and obvious meaning. Third, implicit in the
task of statutory construction is our foremost
obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. Fourth, when there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists.
Id. (quoting Citizens Against Reckless Dev. v. Zoning Bd. of
Appeals of the City & Cnty. of Honolulu, 114 Hawai#i 184, 193,
159 P.3d 143, 152 (2007)).
B. Subject Matter Jurisdiction
The existence of jurisdiction is a question of law
that we review de novo under the right/wrong standard.
Questions regarding subject matter jurisdiction may be
raised at any stage of a cause of action. When
reviewing a case where the circuit court lacked
subject matter jurisdiction, the appellate court
retains jurisdiction, not on the merits, but for the
purpose of correcting the error in jurisdiction. A
judgment rendered by a circuit court without subject
matter jurisdiction is void.
Lingle v. Hawai#i Gov’t Employees Ass’n, AFSCME, Local 152, 107
Hawai#i 178, 182, 111 P.3d 587, 591 (2005) (quoting Amantiad v.
Odum, 90 Hawai#i 152, 158-59, 977 P.2d 160, 166-67 (1999)).
III. Discussion
A. HRS § 580-56(d) does not limit the family court’s
jurisdiction to divide the marital property at issue in the
instant case
Riethbrock argues that pursuant to Boulton, the one
year limitation set forth in HRS § 580-56(d) divested the family
court of jurisdiction to divide the Pukalani property. HRS
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§ 580-56(d) provides:
Following the entry of a decree of divorce, or the
entry of a decree or order finally dividing the
property of the parties to a matrimonial action if the
same is reserved in the decree of divorce, or the
elapse of one year after entry of a decree or order
reserving the final division of property of the party,
a divorced spouse shall not be entitled to dower or
curtesy in the former spouse’s real estate, or any
part thereof, nor to any share of the former spouse’s
personal estate.
(Emphasis added).
In Boulton, this court interpreted HRS § 580-56(d) to
divest the family court of jurisdiction to divide property in the
personal estate of a “former spouse” one year after the filing of
a divorce decree. 69 Haw. at 4-5, 730 P.3d at 340. In his
dissent, Justice Wakatsuki argued that the one year limitation
set forth in HRS § 580-56(d) should be applied only to a spouse’s
dower or curtesy interest in a former spouse’s property. Id. at
6-7, 730 P.3d at 341.
We conclude that Boulton should be overruled. We begin
our analysis with a brief discussion of dower and curtesy, and
the historical context in which HRS § 580-56(d) arose.
1. Dower and Curtesy
Dower is “a provision made by the law for the support
of a wife after the death of the husband.” Richards v. Richards,
44 Haw. 491, 504, 355 P.2d 188, 196 (1960) (emphasis added)
(citing Farm v. Cornn, 31 Haw. 574, at *6 (Haw. Terr. Oct. 9,
1930)); In re Estate of Lorenzo, 61 Haw. 236, 241, 602 P.2d 521,
526 (1979) (“Despite dower’s current statutory form, its purpose
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and effect remain the same as that established at common law as a
marital right created to provide an assured means of support for
the surviving wife.”). At the time HRS § 580-56(d) was enacted
in 1973, HRS § 533-1 (Supp. 1973) provided:
Every woman shall be endowed of one-third part of all
the lands owned by her husband at any time during
marriage, in fee simple, in freehold, or in leasehold,
unless she is lawfully barred thereof. She shall also
be entitled, by way of dower, to an absolute property
in the one-third part of all his remaining property
owned by him at the date of his death, after the
payment of all his just debts.
(Emphasis added).
Although common law dower was limited to a widow’s
interest in her former spouse’s real property, statutory dower
included a widow’s interest in both her deceased spouse’s real
property and his personal property. See In re Castle’s Estate,
25 Haw. 108, at *4 (Haw. Terr. 1919); see also Carter v. Carter,
10 Haw. 687 (Haw. Rep. 1897).
Similar to a woman’s dower interest, curtesy is a
widower’s right to certain property of a deceased wife. See
DeMello v. Home Escrow, Inc., 4 Haw. App. 41, 50, 659 P.2d 759,
765 (1983) (noting that “during the life of the wife the husband
has no curtesy right, inchoate or otherwise”); Iona v. Uu, 1905
WL 1336, at *1-3 (Haw. Terr. Jan. 28, 1905) (noting that a
husband received a curtesy interest upon the death of his wife).
At the time HRS § 580-56(d) was enacted, HRS § 533-16 provided:
In case the wife dies first and intestate, then except
as in this section provided, her property shall
immediately descend to her heirs, but shall be in all
cases, whether she die testate or intestate, subject
to a life interest in the husband in one-third of the
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wife’s lands owned by her in fee simple, in freehold,
or in leasehold, at the date of her death. The
husband shall also, whether the wife die testate or
intestate, be entitled, by way of curtesy to an
absolute property in the one-third part of it all the
wife’s remaining property owned by her at the date of
her death, after the payment of all her just debts.
HRS § 533-16 (Supp. 1973) (emphasis added).
Accordingly, both dower and curtesy described a
spouse’s interest in his or her deceased spouse’s “real property”
and “remaining property.”4
2. Evolution of HRS § 580-56(d)
Revised Laws of Hawai#i (RLH) § 324-45 (1955), the
predecessor statute to HRS § 580-56(d), was entitled “Forfeiture
of dower” and provided: “A wife divorced shall not be entitled to
dower in her husband’s real estate, or any part thereof, nor to
any share of his personal estate.” Accordingly, under RLH § 324-
45, a wife’s dower interest terminated immediately upon her
divorce.5
In 1973, the legislature recodified RLH § 324-45 as HRS
§ 580-56.6 In apparent recognition of the increasingly common
4
In 1977, dower and curtesy were largely eliminated. See DeMello,
4 Haw. App. at 50 n.5, 659 P.2d at 765 n.5 (noting that 1976 Haw. Sess. Laws
Act 200, § 1 at 372, “eliminated dower and curtesy effective July 1, 1977, but
preserved all rights which accrued under case and statutory law relating to
dower and curtesy which vested prior to such date”). Dower was entirely
abolished in 1997. See 1997 Haw. Sess. Laws Act 244, § 17 at 495.
5
There appears to have been no analogous predecessor statute that
would have provided that a husband forfeit his curtesy interest upon divorce.
6
HRS § 580-56 (Supp. 1973) provided, in relevant part:
(a) Every decree of divorce which does not
specifically recite that the final division of the
property of the parties is reserved for further
hearing, decision, and orders shall finally divide the
(continued...)
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practice of a bifurcated divorce, the legislature made several
6
(...continued)
property of the parties to such action.
(b) Following the entry of a decree of divorce in
any matrimonial action in which the final division of
the property of the parties to such action is reserved
for further hearing, decision, and orders, each party
to such action shall continue to have all of the
rights to and interests in the property of the other
party to such action as provided by chapter 533 to the
same extent he or she would have had such rights or
interests if the decree of divorce had not been
entered, until the entry of a decree or order finally
dividing the property of the parties to such
matrimonial action, or as provided in subsection (d).
(c) When a party to a matrimonial action has
remarried following the entry of a decree of divorce,
in which the final division of the property of the
parties is reserved for further hearings, decisions
and orders, but prior to the entry of a decree or
order finally dividing the property owned by the
parties to that action, notwithstanding the provisions
of chapter 533, the spouse of such remarried party
shall have none of the rights or interests in the
former spouse’s real property or personal estate as
provided in chapter 533, or as otherwise provided by
law, until such time as a decree or order finally
dividing the property owned by the parties or either
of them as of the effective date of the entry of the
decree of divorce dissolving his or her prior marriage
shall be entered. Upon the entry of a decree or order
finally dividing the property of the parties to a
matrimonial action in which a decree of divorce has
been entered, the spouse of a party to such action who
has remarried shall have all of the rights of a spouse
as provided by chapter 533, or as otherwise provided
by law, in and to the property of the former spouse
vested in such spouse by such decree or order finally
dividing the property of the parties or either of
them, as of the effective date of the entry of the
decree of dissolution of the prior marriage.
(d) Following the entry of a decree of divorce, or
the entry of a decree or order finally dividing the
property of the parties to a matrimonial action if the
same is reserved in the decree of divorce, or the
elapse of one year after entry of a decree or order
reserving the final division of property of the party,
a divorced spouse shall not be entitled to dower or
curtesy in the former spouse’s real estate, or any
part thereof, nor to any share of the former spouse’s
personal estate.
HRS § 580-56 has not materially changed since 1973. See HRS
§ 580-56 (2006).
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amendments. First, part (b) provided that after a divorce, all
HRS chapter 533 rights, i.e., those rights relating to dower and
curtesy, were preserved until a final order on the division of
the property was issued. HRS § 580-56(b). Second, part (c)
provided that, in a situation where one spouse remarries and then
dies before the property in the first marriage was finally
divided, the new spouse would not have any HRS chapter 533 rights
until after the property division order from the former marriage
was entered. HRS § 580-56(c). However, after the entry of the
property division order, the new spouse would have HRS chapter
533 rights in the property that was awarded to their spouse in
the former divorce. HRS § 580-56(c). Third, part (d) provided
that one year after entry of a divorce decree reserving the final
division of the couple’s property, a divorced spouse “shall not
be entitled to dower or curtesy in the former spouse’s real
estate, or any part thereof, nor to any share of the former
spouse’s personal estate.” HRS § 580-56(d). Notably, although
the predecessor statute applied only to dower, i.e., a woman’s
interest in her husband’s property, the 1973 statute covered the
rights of both spouses.
In a 1973 Committee Report regarding the amendments,
the Senate Judiciary Committee noted:
The purpose of this bill is to establish rights
of divorced persons to dower and curtesy in their
former spouse’s estates when the divorce decree does
not finally divide the property of the parties.
. . . .
The divisible divorce, that is where the
marriage is dissolved but the other rights of the
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parties have not been adjudicated, is quite common.
Under present law, in the event one party to that
divorce were to die before the division of the
property was completed, intervening rights of a new
spouse could have attached. This hiatus should be
eliminated by statutory enactment.
The proposed language reserves to a former
spouse the rights to dower and curtesy presently
granted by Hawaii Revised Statutes until the entry of
a Decree which finally divides the property of the
parties to the former marriage.
. . . .
The bill clearly indicates that this right to
dower or curtesy will extend only for a period of one
year of the entry of a decree or order reserving the
final division of property.
S. Stand. Comm. Rep. No. 852, in 1973 Senate Journal, at 967-68
(emphasis added); see H. Stand. Comm. Rep. No. 618, in 1973 House
Journal, at 1045.
Thus, it appears that the Legislature sought to clarify
who would have a dower or curtesy interest where property
division issues were not resolved, but a divorced spouse
remarried and later died before the property division in the
former marriage was resolved. As this court explained in Magoon
v. Magoon, 70 Haw. 605, 613, 780 P.2d 80, 84-85 (1989), HRS
§ 580-56(c) “serves to prevent the attachment of intervening
dower or curtesy rights in the event a party remarries before the
property division is effected; it bars the right of dower or
curtesy ‘to a subsequently acquired spouse until the property of
the parties [to the pending action] has been finally divided[.]’”
(Brackets in original). Under the 1973 amendments, the
decedent’s former spouse would continue to have a dower or
curtesy right in the deceased spouse’s real and personal estate
for one year after the filing of the divorce decree. 1973 Haw.
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Sess. Laws Act 192, § 2 at 333-34; HRS § 580-56(c)-(d) (1973).
Under the predecessor statute, RLH § 324-45, the subsequent wife
would immediately have rights in the property, although the
former wife may otherwise have been entitled to a share of the
property if her spouse had not died before the property was
finally divided.
Therefore, the legislative history and statutory scheme
indicate that HRS § 580-56(d) was meant to apply solely in the
context of a spouse’s right to dower or curtesy after a divorce.7
2. Boulton should be overruled
In 1986, thirteen years after HRS § 580-56 was
recodified and amended, this court held in Boulton that HRS
§ 580-56(d) divested the family court of jurisdiction to divide a
former spouse’s “personal estate” one year after the filing of a
divorce decree reserving property division. 69 Haw. at 5, 730
P.3d at 340. There, the family court granted a divorce decree in
January 1984, but it did not immediately resolve the issue of
property division. Id. at 3, 730 P.2d at 339. The case “lay
dormant” in the family court for over a year before the husband
served a request for the wife to produce documents. Id. The
7
As mentioned supra note 4, dower and curtesy were sharply
restricted in 1977. However, under the Uniform Probate Code, which was
enacted in 1977, a surviving spouse still has an interest in the estate of a
deceased spouse. See, e.g., HRS §§ 560:2-102 (2006) (concerning a surviving
spouse’s right to an intestate share), 560:2-202 (2006) (concerning a
surviving spouse’s right to an elective share), 560:2-301 (2006) (concerning
the rights of a surviving spouse unprovided for in a will). Because the
question of whether HRS § 580-56(d) extends to the rights of a surviving
spouse under the Uniform Probate Code is not before us, we do not reach that
issue.
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husband sought division of real property that had been owned by
the couple. Id. The wife filed a motion to dismiss based on HRS
§ 580-56(d). Id. The family court construed the statute “to
divest the family court of jurisdiction[,]” and accordingly,
dismissed the case. Id.
On appeal, the husband argued that the phrase “dower or
curtesy” in HRS § 580-56(d) referred to both the “former spouse’s
real estate” and the “former spouse’s personal estate.” 69 Haw.
at 3, 730 P.2d at 339. Under this construction, HRS § 580-56(d)
only applied to dower and curtesy rights, rather than any other
rights that a spouse might have in the other’s property. This
court rejected the husband’s argument, and instead held that the
statute should be read as: “[f]ollowing . . . the elapse of one
year after entry of a decree or order reserving the final
division of property of the party, a divorced spouse shall not be
entitled . . . to any share of the former spouse’s personal
estate.”8 Id. at 4, 730 P.2d at 339.
The husband also argued that “the term ‘personal
8
This court’s analysis was as follows:
The parallel wording of the phrases “to any dower or
curtesy in the former spouse’s real estate” and “to
any share of the former spouse’s personal estate”
indicates that each modifies the previous portion of
the sentence requiring resolution within one year.
Thus, we read the plain wording of the statute to be,
“[f]ollowing ... the elapse of one year after entry of
a decree or order reserving the final division of
property of the party, a divorced spouse shall not be
entitled ... to any share of the former spouse's
personal estate.”
Id. at 3-4, 730 P.3d at 339.
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estate’ only refer[red] to a deceased person’s hereditament,
rather than a living person’s property.” Id. at 4, 730 P.2d at
340. This court noted that it was not clear whether the term
“personal estate” applied to the property of both living and
deceased persons, and noted that the term was not defined in HRS
chapter 580. Id. Furthermore, because there was no legislative
history to guide it in construing the term “personal estate,”
this court looked to case law interpreting the term “personal
estate” in the context of divorce actions, and determined that
“personal estate” in HRS § 580-56(d) included “property of living
persons.” Id. at 4-5, 730 P.2d at 340. This court then held
that real property constituted part of the “personal estate” for
purposes of HRS § 580-56(d), and thus, needed to be divided
within the one year limitation stated in the statute. Id. at 4,
730 P.2d at 340. Accordingly, this court concluded that the
family court did not have jurisdiction to resolve the parties’
property division because it failed to divide the property within
one year of filing the divorce decree. Id. at 5, 730 P.2d at
340.
In his dissent in Boulton, Justice Wakatsuki analyzed
the legislative history of HRS § 580-56(d) and concluded that “it
[wa]s clear [] that the 1973 amendment was directed only at
preserving dower and curtesy rights in the former spouse prior to
property division, and that the one-year period was intended as
an outside time limit on those dower and curtesy rights only.”
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69 Haw. at 7, 730 P.2d at 341 (emphasis in original) (Wakatsuki,
J., dissenting). Justice Wakatsuki continued:
The majority’s application of the “dower or
curtesy” phrase to only real estate and not personal
estate means that under the pre-1973 statute a wife
could not share in any of her husband’s property after
a divorce decree was entered. In other words, the
majority’s construction would make property division
after the dissolution of the marriage impossible.
Therefore, the one-year cut-off should apply
only to dower and curtesy rights in the real and
personal estate of the former spouse. Because neither
dower nor curtesy is involved here, the lower court
improperly dismissed the case.
Id.
We take this opportunity to reexamine HRS § 580-56(d)
and this court’s application of that statute in Boulton. At
best, the language of HRS § 580-56(d) is ambiguous as to whether
it applies only to a dower and curtesy interest in a former
spouse’s personal estate or whether it also applied to the
personal estate of living persons. Where a statute is ambiguous,
we look to the legislative history for guidance to determine the
legislature’s intent. See Wheeler, 121 Hawai#i at 390, 219 P.3d
at 1177 (holding that “the meaning of the ambiguous words may be
sought by examining the context, with which the ambiguous words,
phrases, and sentences may be compared, in order to ascertain
their true meaning. Moreover, the courts may resort to extrinsic
aids in determining legislative intent, such as legislative
history, or the reason and spirit of the law”) (internal
quotation marks and citation omitted). As previously discussed,
the legislative history and statutory scheme of HRS § 580-56
clearly indicate that the limited purpose of the statute was to
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impose a one year limit only on the family court’s jurisdiction
to award dower and curtesy. See 1973 Haw. Sess. Laws Act 192,
§ 2 at 333-34; S. Stand. Comm. Rep. No. 852, in 1973 Senate
Journal, at 967-68; H. Stand. Comm. Rep. No. 618, in 1973 House
Journal, at 1045. Nothing in the legislative history suggests
that the legislature intended the statute to divest the family
court of jurisdiction to divide all of the former spouse’s
property.
In determining that the phrase “dower or curtesy”
applied only to the former spouse’s real estate, the Boulton
majority broadened the scope of HRS § 580-56(d) to apply the
limitations period to the division of the former spouse’s entire
personal estate, rather than only that portion of the personal
estate in which a former spouse had a “dower or curtesy” right.
This interpretation is inconsistent with the legislative history
of HRS § 580-56(d).9
Moreover, the majority’s interpretation effectively
deleted the phrase “dower or curtesy in the former spouse’s real
estate” from HRS § 580-56(d). See Boulton, 69 Haw. at 4, 730
P.2d at 339 (“[W]e read the plain wording of the statute to be,
9
We note that this court’s holding in Boulton also conflicts with
the partnership model of marital property division. Under partnership
principles, property acquired during the marriage that is not marital separate
property belongs to the marital partnership and not to the “former spouse.”
See Hussey v. Hussey, 77 Hawai#i 202, 206-07, 881 P.2d 1270, 1274-75 (App.
1994), overruled on other grounds by State v. Gonsales, 91 Hawai#i 446, 984
P.2d 1272 (App. 1999). However, under the interpretation of HRS § 580-56(d)
set forth in Boulton, marital partnership property that is not distributed
within one year of the divorce decree would default to the spouse in whose
name the property is titled, and thus would not be divided pursuant to
partnership principles.
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‘[f]ollowing . . . the elapse of one year after entry of a decree
or order reserving the final division of property of the party, a
divorced spouse shall not be entitled . . . to any share of the
former spouse’s personal estate.’”). The Boulton majority’s
interpretation essentially rendered the phrase surplusage. See
Potter v. Hawaii Newspaper Agency, 89 Hawai#i 411, 422, 974 P.2d
51, 62-63 (1999) (“Our rules of statutory construction require us
to reject an interpretation of [a] statute that renders any part
of the statutory language a nullity.”).
Furthermore, as Justice Wakatsuki noted, “[t]he
majority’s application of the ‘dower or curtesy’ phrase to only
real estate and not personal estate means that under the pre-1973
statute a wife could not share in any of her husband’s property
after a divorce decree was entered.” Boulton, 69 Haw. at 7, 730
P.2d at 341 (Wakatsuki, J., dissenting). As discussed supra,
prior to its recodification as HRS § 580-56, RLH § 324-45 was
entitled “[f]orfeiture of dower” and provided, “[a] wife divorced
shall not be entitled to dower in her husband’s real estate, or
any part thereof, nor to any share of his personal estate.” This
language was clearly limited only to a wife’s dower interest,
which, as stated above, was an interest that arose only upon the
death of a husband. See Richards, 44 Haw. at 504, 355 P.2d at
196. However, if the Boulton majority’s analysis were applied to
RLH § 324-45, a wife’s interest in all of her former spouse’s
property would cease immediately upon divorce, even if the former
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spouse were still living.10
Accordingly, we disagree with the reasoning of the
Boulton majority. We, therefore, overrule Boulton, and hold that
HRS § 580-56(d) does not limit the family court’s jurisdiction to
divide the property at issue in the instant case.11
B. The ICA lacked jurisdiction to consider Riethbrock’s
contention that the family court erred in granting Lange’s
motion to release funds from escrow
In its SDO, the ICA held that it lacked jurisdiction to
address “Riethbrock’s second point of error . . . concerning the
January 23, 2007 Order Granting Ex Parte Motion Releasing
Defendant’s Funds From Escrow [that] arose two months after the
notice of appeal was filed.” Riethbrock, 2011 WL 3455829, at *3.
10
Contrary to the Boulton majority’s construction, the legislative
history to the 1973 amendments noted that “[t]he divisible divorce, that is
where the marriage is dissolved but the other rights of the parties have not
been adjudicated, is quite common.” S. Stand. Comm. Rep. No. 852, in 1973
Senate Journal, at 967; H. Stand. Comm. Rep. No. 618, in 1973 House Journal,
at 1045.
11
We further note that, even under the holding in Boulton,
Riethbrock’s argument is without merit because the family court implicitly
divided the Pukalani property before the one year limitations period elapsed.
The family court entered its stipulated divorce decree on August 8, 2005. It
subsequently implicitly divided the Pukalani property in various orders,
including its June 8, 2006 order, in which it ruled that: “all future child
support (approximately seventeen years) plus [Riethbrock’s] one-half share of
college expenses shall be taken from [Riethbrock’s] one-half share of the
property sale proceeds.”
The family court also “defaulted” Riethbrock on the issue of
Lange’s interest in the Pukalani property. In defaulting Riethbrock on this
issue and determining in multiple orders that Riethbrock’s one-half share of
the sale proceeds of the Pukalani property should be set aside for child
support, the family court timely and finally divided the Pukalani property
within the one year period required under Boulton.
In Richter, the ICA held that the one year limitation in HRS
§ 580-56(d), as interpreted in Boulton, only applied to the family court’s
jurisdiction to “decide how the property of the parties will be
distributed[,]” but did not limit the family court’s jurisdiction to enforce
the property division orders. 108 Hawai#i at 506-07, 122 P.3d at 286-87
(emphasis added). Here, the family court timely divided the property under
the holding in Boulton, and thus had jurisdiction under the holding in Richter
to enforce its prior orders by ordering the sale of the Pukalani property.
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Riethbrock appears to argue that the ICA “committed grave
constitutional error [in] deciding it lacked jurisdiction”
because his second notice of appeal, which was filed on
August 20, 2007 (Case No. 28694), and which the ICA consolidated
with the present case, “brought up for review . . . one of the
four distinct parts of a divorce case[.]” As discussed below,
the ICA did not err in failing to address Riethbrock’s second
point of error regarding the January 23, 2007 Order because the
ICA lacked jurisdiction to entertain Riethbrock’s contention.
Riethbrock filed two notices of appeal. In his first
Notice of Appeal (Case No. 28289), filed November 24, 2006,
Riethbrock appealed the family court’s October 26, 2006 Order
Denying Pending Motions, in which the court denied Riethbrock’s
motion for stay on the ground that it had implicitly divided the
Pukalani property in its previous orders. On August 20, 2007,
Riethbrock filed his second Notice of Appeal (Case No. 28694), in
which he challenged the family court’s July 24, 2007 Order
Pertaining to Request for Attorney’s Fees that mandated that
Riethbrock pay Lange’s attorney’s fees.12 Neither Notice of
Appeal challenged the family court’s January 23, 2007 Order
Granting Ex Parte Motion Releasing Lange’s Funds From Escrow.
In Cook v. Surety Life Ins., Co., 79 Hawai#i 403, 409,
12
As noted supra, the ICA consolidated Case No. 28694 with Case No.
28289. Inasmuch as Riethbrock does not challenge the ICA’s ruling on the
issues presented in Case No. 28694, we do not discuss them further. See HRAP
Rule 40.1(d)(1).
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903 P.2d 708, 714 (App. 1995), the ICA held that when a party
appeals from a single order, “this court will only consider other
orders which were preliminary rulings upon which the subject
Order was predicated or were part of the series of orders which
collectively led to that Order.” (Emphasis added); cf. Weinberg
v. Mauch, 78 Hawai#i 40, 46, 890 P.2d 277, 283 (1995) (holding
that when an order is properly certified under HRCP Rule 54(b),
the certification “necessarily render[s] every preliminary ruling
upon which it was predicated final and appealable as well”)
(citation omitted); Security Pac. Mortgage Corp. v. Miller, 71
Haw. 65, 71, 783 P.2d 855, 858 (1989) (noting that review is
limited to the scope of the orders appealed from). Here, the
January 23, 2007 Order was not a “preliminary ruling[]” upon
which the subject Order “was predicated[.]” First, the
January 23, 2007 Order cannot be considered a “preliminary”
ruling to the October 26, 2006 Order because it was filed later.
Black’s Law Dictionary 1299 (9th ed. 2009) (defining
“preliminary” as “[c]oming before” and usually “leading up to the
main part of something”). Second, although the January 23, 2007
order was “preliminary” to the July 24, 2007 order, the
January 23, 2007 Order was not an order upon which the July 24,
2007 attorney’s fees order “was predicated” because it dealt with
a separate and unrelated issue, i.e., authorizing escrow to
release funds. Accordingly, the ICA lacked jurisdiction to
address Riethbrock’s arguments relating to the January 23, 2007
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Order.
In addition, Riethbrock’s reliance on Eaton v. Eaton, 7
Haw. App. 111, 748 P.2d 801 (1987), for the proposition that the
second Notice of Appeal brought up for review the January 23,
2007 Order “as one of the four distinct parts of a divorce case”
is misplaced. In Eaton, the ICA determined that there are four
distinct parts of a divorce case: “(1) dissolution of the
marriage; (2) child custody, visitation, and support; (3) spousal
support; and (4) division and distribution of property and
debts.” 7 Haw. App. at 118, 748 P.2d at 805. The ICA also
concluded that “parts (2), (3), and (4) are each separately final
and appealable as and when they are decided, but only if part (1)
has previously or simultaneously been decided[.]” Id. at 118-19,
748 P.2d at 805. Citing Eaton and without more, Riethbrock
appears to argue that the family court’s January 23, 2007 Order
was a “final appealable order or part.” However, Riethbrock
never filed a notice of appeal from this “final appealable order
or part.” As such, Riethbrock’s reliance on Eaton is misplaced.
Inasmuch as the ICA properly concluded that it lacked
jurisdiction to entertain Riethbrock’s contentions, we do not
address Riethbrock’s remaining arguments that the family court’s
January 23, 2007 order violated his due process rights, equal
protection rights, Hawai#i Family Court Rules 5 and 7, and the
family court’s own November 20, 2006 Order.
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IV. Conclusion
In sum, Boulton wrongly held that HRS § 580-56(d)
deprived the family court of jurisdiction to divide all property
one year after the filing of a divorce decree. We therefore
overrule Boulton and hold that HRS § 580-56(d) does not limit the
family court’s jurisdiction to divide the property at issue in
the instant case. Accordingly, the family court properly denied
Riethbrock’s motion for stay and to dismiss. In addition, we
hold that the ICA did not have jurisdiction to address the family
court’s January 23, 2007 order releasing funds from escrow. We
therefore affirm the judgment of the ICA.
On the briefs:
/s/ Mark E. Recktenwald
R. Steven Geshell for
/s/ Paula A. Nakayama
petitioner/plaintiff-
appellant.
/s/ Simeon R. Acoba, Jr.
James P. Brumbaugh and
/s/ James E. Duffy, Jr.
Brian R. Jenkins
(Brumbaugh & Jenkins) for
/s/ Sabrina S. McKenna
respondent/defendant-
appellee.
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