Carvalho v. Carvalho ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-JUN-2021
08:01 AM
Dkt. 120 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
RAYMOND G. CARVALHO, II, Plaintiff-Appellee,
v.
KIM LAN CARVALHO, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(FC-D NO. 10-1-0304)
MEMORANDUM OPINION
(BY: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Kim Lan Carvalho (Kim Lan) appeals
from the August 22, 2016 Decree Granting Absolute Divorce
(Divorce Decree) entered in the Family Court of the Third Circuit
(Family Court).1 The Divorce Decree and the July 26, 2016
Findings of Fact and Conclusions of Law (FOF/COL) allocated to
Kim Lan the entire interest in a property in Vietnam (Vietnam
Property), and denied Kim Lan any spousal support.
On appeal, Kim Lan asserts that the Family Court erred
in the property division by: (1) applying the affirmative
defense of equitable estoppel sua sponte to Kim Lan in allocating
the entire valuation of the Vietnam Property to her; or
alternatively, not allocating a half interest to Plaintiff-
1
The Honorable Lloyd Van De Car presided over the divorce trial and
entered the FOF/COL filed on July 26, 2016. Judge Van De Car retired in July
2016. The Honorable Michael J. Udovic signed the Divorce Decree filed on
August 22, 2016.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Appellee Raymond G. Carvalho II (Raymond); (2) categorizing
certain debts as marital debt, and improperly valuing other
property; (3) determining that no valid and relevant
considerations (VARCs) warranting a deviation from the Marital
Partnership Model existed; and (4) ordering Kim Lan to pay
Raymond a $233,735.25 equalization payment.2 Kim Lan also
asserts that the Family Court erred in not awarding her spousal
support because it failed to comply with Hawai#i Revised Statutes
(HRS) § 580-47(a).3 Because we hold that equitable estoppel was
improperly applied sua sponte and resulted in an erroneous
property division, we affirm in part, and vacate in part.
I. BACKGROUND
Kim Lan and Raymond were married in 2002. They had no
children together. On November 9, 2010 Raymond filed a Complaint
for Divorce requesting a decree for relief, and claimed Kim Lan
was not entitled to spousal support. Kim Lan filed her Answer,
agreeing with the Complaint except asserting that she was
entitled to spousal support.
On February 1, 2016, Kim Lan filed a motion in limine
to preclude any evidence related to the Vietnam Property because
Raymond had not asserted a position as to the Vietnam Property in
his motion to set the case for trial or in any of his position
statements, in violation of Hawai#i Family Court Rules (HFCR)
Rule 94. On February 5, 2016 when trial commenced, the Family
Court stated that it would not address Kim Lan's motion in limine
because Raymond's counsel did not have an opportunity to respond,
and the court indicated it would address the issues as they
arose.
The divorce trial was conducted on February 5, June
2
The challenge to the property division includes FOFs 7, 8, 25-30,
and 32, and COLs 16, 18, 19, 21, 30-34.
3
The challenge to spousal support includes FOFs 7, 8, 37, 38, 39
and COLs 7-10 and 30-33.
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13, and June 14, 2016. Raymond testified that he was 69 years
old at the time of trial, suffered from numerous disabilities and
medical conditions, was retired but performed some handyman
services for cash, and paid $2,000 a month in spousal support to
an ex-wife. It was also stipulated that Raymond had income from
VA benefits and Social Security consistent with his Income and
Expense Statements. Kim Lan testified that she was born in 1949;
was originally from Vietnam; had worked in a papaya factory, a
clothes factory, and as a bartender; and her current monthly
income was $2,133 from her rental property and Social Security.
As to the Vietnam Property, Raymond testified that he
believed he, Kim Lan, and Kim Lan's nephew owned the property
because Kim Lan had told him it was their property. Raymond's
understanding was that the Vietnam Property was repayment for the
$200,000 in loans to Kim Lan's nephew. However, he admitted that
he had not seen any paperwork to that effect and just believed
Kim Lan. Raymond stated that he had bought the lot under which
the house in Vietnam was situated in 2007, using cash. In Kim
Lan's testimony, she agreed that the house on the Vietnam
Property was constructed by her nephew after she sent him the
$200,000, but stated that her nephew owned the home at that time.
Conversely, various members of Raymond's family testified that
Kim Lan had represented that she and Raymond owned the Vietnam
Property. In addition, Raymond's former employee testified that
Kim Lan's sister, Hoa Dang, also represented that Kim Lan and
Raymond owned a home in Vietnam. Raymond's son admitted that he
never saw any documentation that Raymond and Kim Lan owned the
Vietnam Property. Kim Lan's brother-in-law testified that the
Vietnam Property had belonged to Kim Lan's nephew, but now Kim
Lan's brother lived there.
At the conclusion of evidence, the parties filed
written closing arguments. Raymond argued that the evidence
showed that Kim Lan transferred $200,000 to her nephew and that
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Raymond believed Kim Lan's nephew would repay them by building
them a house in Vietnam. Raymond acknowledged that the Vietnam
Property was neither in his nor Kim Lan's name, but argued that
the Vietnam Property, which was later transferred from Kim Lan's
nephew to her brother, was being held in trust for Raymond and
Kim Lan. Raymond also asserted that Kim Lan was not entitled to
spousal support based on his debts, health problems, advanced
age, and his inability to earn extra income. Kim Lan argued that
the Vietnam Property was not properly disclosed in violation of
HFCR Rule 94, and that in any case, the value and ownership of
the property had not been established. Kim Lan further asserted
that the $200,000 loaned to her nephew could not be considered
waste because it occurred during the marriage. Finally, Kim Lan
also argued that she was entitled to $1,000 a month in spousal
support for five years because Raymond earned considerably more
than her, he had almost $2,000 remaining each month after paying
his expenses, and cited her need and length of the marriage. Kim
Lan requested an equalization payment in her favor of $150,000.
On July 26, 2016, the Family Court entered its FOF/COL.
In relevant part, the Family Court found that Raymond was 69
years old at the time of trial, was retired, had numerous health
problems, had a monthly income of $5,400 from VA and Social
Security benefits and from performing small jobs for cash, and
his expenses were $5,100 a month (FOFs 7, 38). The Family Court
found that Kim Lan was 57 years old4 at the time of trial, was
unemployed, had a monthly income of $2,200 a month from rental
income and Social Security benefits, her expenses were $2,200 a
month, and she had worked in a clothes factory, a papaya farm, a
4
This finding (FOFs 8, 37) is erroneous and is based on Kim Lan's
miscalculation of her age in her initial testimony. When Kim Lan testified
that she was 57 years old but also claimed she was born in 1949, the Family
Court contemporaneously pointed out that her 1949 birth year made her "67
years old." Thus, Kim Lan's correct age was 67 years old at the time of
trial.
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bar, and as a gambler (FOF 8). The Family Court concluded that
the parties were meeting their financial obligations (COL 9), and
Kim Lan was not entitled to spousal support (COL 10). As to the
Vietnam Property, the Family Court found that neither party
introduced any records of current or past ownership (FOF 31), but
that the testimony of Raymond and Raymond's witnesses were
credible, while Kim Lan's was not (FOF 32). It then concluded
that there was credible evidence establishing that Kim Lan
induced Raymond into making the $200,000 loan through her
representations to him and their friends and family, and that
Raymond's reliance on those representations were reasonable (COL
18). The Family Court held that Kim Lan was equitably estopped
from disclaiming an interest in the Vietnam Property and that it
would value the property at $200,000 based on the loans (COL 19).
Further, the Family Court concluded there were no VARCs
warranting a deviation from the Marital Partnership Model (COL
32), and ordered Kim Lan to make an equalization payment of
$233,735.25 to Raymond based on the division of property (COL
33). The Family Court entered the Divorce Decree on August 22,
2016, which incorporated the FOF/COL.
II. STANDARDS OF REVIEW
A. Family Court Decisions
"Generally, the family court possesses wide discretion
in making its decisions and those decisions will not be set aside
unless there is a manifest abuse of discretion." Hamilton v.
Hamilton, 138 Hawai#i 185, 197, 378 P.3d 901, 913 (2016) (citing
Kakinami v. Kakinami, 127 Hawai#i 126, 136, 276 P.3d 695, 705
(2012) (quoting Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d
355, 360 (2006)).
It is well established that a family court abuses its
discretion where "(1) the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant; (2) the family court failed to exercise
its equitable discretion; or (3) the family court's decision
clearly exceeds the bounds of reason."
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Kakinami, 127 Hawai#i at 155-56, 276 P.3d at 724-25 (quoting
Tougas v. Tougas, 76 Hawai#i 19, 26, 868 P.2d 437, 444 (1994)).
B. Property Division
"We review the family court's final division and
distribution of the estate of the parties under the abuse of
discretion standard, in view of the factors set forth in HRS §
580–47 and partnership principles." Gordon v. Gordon, 135
Hawai#i 340, 348, 350 P.3d 1008, 1016 (2015) (quoting Tougas, 76
Hawai#i at 26, 868 P.2d at 444).
"The family court's determination of whether facts
present valid and relevant considerations authorizing a deviation
from the partnership model division is a question of law that
this court reviews under the right/wrong standard of appellate
review." Id. (citing Jackson v. Jackson, 84 Hawai#i 319, 332–33,
933 P.2d 1353, 1366–67 (App. 1997)).
C. Family Court's Findings of Fact and Conclusions of Law
"The family court's findings of fact are reviewed under
the clearly erroneous standard, while the court's conclusions of
law are reviewed de novo under the right/wrong standard." Id.
at 348, 350 P.3d at 1016 (citing Kakinami, 127 Hawai#i at 136,
276 P.3d at 705)).
A [finding of fact] is clearly erroneous when (1) the record
lacks substantial evidence to support the finding, or (2)
despite substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made. "Substantial
evidence" is credible evidence which is of sufficient
quality and probative value to enable a person of reasonable
caution to support a conclusion.
Kakinami, 127 Hawai#i at 136, 276 P.3d at 705.
"[W]hen a conclusion of law presents mixed questions of
fact and law, we review it under the 'clearly erroneous' standard
because the court's conclusions are dependent on the facts and
circumstances of each individual case." JW v. RJ, 146 Hawai#i
581, 585, 463 P.3d 1238, 1242 (App. 2020) (citing Estate of Klink
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ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523
(2007)). "A conclusion of law that is supported by the trial
court's findings of fact and reflects an application of the
correct rule of law will not be overturned." Id.D. Imposition of Sanctions
"On appellate review, regardless whether sanctions are
imposed pursuant to [court rules] or the trial court's inherent
powers, such awards are reviewed for abuse of discretion." Enos
v. Pacific Transfer & Warehouse, Inc., 79 Hawai#i 452, 459 n.7,
903 P.2d 1273, 1280, n.7 (1995).
III. DISCUSSION
A. THE FAMILY COURT ERRED IN THE PROPERTY DIVISION AS TO
THE VIETNAM PROPERTY
1. No HFCR Rule 94 error
Kim Lan contends that the Family Court erred in
considering the Vietnam Property in the property division because
Raymond failed to give notice of his position regarding the
Vietnam Property in his motion to set the case for trial and
position statements, in violation of HFCR Rule 94(a)(2).5 HFCR
Rule 94(f) provides that: "If a party (whether represented by an
attorney or not), or an attorney . . . unjustifiably fails to
comply with any requirements enunciated in this Rule, sanctions
may be imposed . . . ." Kim Lan moved in limine to preclude
Raymond's evidence regarding the Vietnam Property as a sanction
under HFCR Rule 94(f). The Family Court declined to address Kim
5
HFCR Rule 94(a), in pertinent part, requires that the movant for a
motion to set case for trial must attach the following information to the
motion:
(1) the movant's current income and expense and asset and
debt statements,
(2) a written statement containing a statement of facts, a
description of the movant's position on all of the issues,
and the factual and legal bases of the movant's positions;
and
(3) such other documents as may be required by the court.
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Lan's request for sanctions on the grounds that Raymond did not
have an opportunity to file a response. Kim Lan does not
indicate where in the record she renewed her motion in limine
thereafter or subsequently obtained a ruling. The factual
disputes regarding the Vietnam Property were fully litigated at
trial. We conclude that Kim Lan has not demonstrated that the
Family Court's failure to rule on the motion and sanction Raymond
constituted an abuse of discretion. See Enos, 79 Hawai#i at 459
n.7, 903 P.2d at 1280 n.7. Thus, this contention is without
merit.
2. The Vietnam Property was jointly owned and subject
to equal division
As to the findings the Family Court entered regarding
the Vietnam Property, i.e. FOFs 25-30 and 32,6 which Kim Lan
6
These FOFs regarding the Vietnam Property are as follows:
25. During the marriage Defendant proposed to Plaintiff
that they live part time in Vietnam. She suggested that in
exchange for investing in her nephew's business he would build
them a home on land adjacent to her mother's home.
26. Relying on Defendant's representations, Plaintiff
agreed to send $200,000 to Defendant's nephew. The transfer of
funds occurred in July, 2008. Exhibits 46 and 47.
27. Defendant repeated her representations about the
Vietnam home to Plaintiff's sister Maria, his brother Mark,
Plaintiff's son Akoni, his daughter Nicole, and to Kathryn
Victorino, Plaintiff's employee.
28. The home Defendant described to Plaintiff was built
next to Defendant's mother's home in Vietnam. After it was
completed Plaintiff and Akoni traveled to Vietnam to see the
home for the first time. That visit was memorialized in a
video commissioned by Defendant. Exhibits 27 and 27A.
29. After the parties and Akoni returned from Vietnam
they showed the video to members of Plaintiff's family,
explaining that the home in the video was their home.
30. At trial Defendant denied any ownership interest
in the home and denied that the money sent to her nephew was in
any way connected to the construction of the home in the video.
31. Neither party introduced records reflecting the
current or past ownership of the Vietnam home.
32. The Court finds that Plaintiff's testimony concerning
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challenges, we conclude they are not clearly erroneous. Kim Lan
argues that these FOFs are erroneous due to the HFCR Rule 94
violation, which we have already rejected supra. In these
findings, the Family Court found that both parties agreed that
they had transferred $200,000 to Kim Lan's nephew in Vietnam to
invest in his business. However, the parties disputed whether a
home was built by the nephew next to Kim Lan's mother's home in
exchange for the $200,000, and presented conflicting testimony
from themselves and through additional witnesses in this regard.
The Family Court found in FOF 32 that: "Plaintiff's [Raymond's]
testimony concerning the $200,000 and the home in Vietnam is
credible and that Defendant's [Kim Lan's] testimony is not."
"It is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of evidence; this is the province of the trier of
fact." Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360
(2006) ((quoting In re Doe, 95 Hawai#i 183, 190, 20 P.3d 616, 623
(2001)). The Family Court acknowledged in FOF 31 that while
"[n]either party introduced records reflecting the current or
past ownership of the Vietnam home[,]" the credible testimony
nevertheless established that the home, i.e. the Vietnam
Property, was built for Raymond and Kim Lan in exchange for the
$200,000 transferred to the nephew, and that the Vietnam Property
belonged to both of them. In FOF 25, the Family Court found the
agreement was that in exchange for the $200,000, the nephew would
"build them a home . . . . " (Emphasis added). FOF 29 stated
that Raymond and Kim Lan showed a video to Raymond's family
members, "explaining that the home in the video was their home."
(Emphasis added). These findings are not clearly erroneous and
were supported by substantial evidence which the Family Court
the $200,000 and the home in Vietnam is credible and that
Defendant's testimony is not.
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found credible. See Kakinami, 127 Hawai#i at 136, 276 P.3d at
705. Thus, we affirm these FOFs regarding the parties' joint
ownership interest in the Vietnam Property, and the inclusion of
the property in the marital estate pursuant to FOFs 25-30 and 32.
See id.
3. The sua sponte application of the doctrine of
equitable estoppel to Kim Lan's detriment was
error
Kim Lan contends that the Family Court erred in the
property division by applying equitable estoppel to preclude Kim
Lan from denying an interest in the Vietnam Property, and
allocating the entire value of the property to her, when the
defense of equitable estoppel was never raised or argued by
Raymond. Kim Lan challenges COLs 16, 18, and 19, which state:
16. In this case the Court must also determine
whether equitable estoppel applies in assessing Plaintiff's
claims concerning the home in Vietnam.
. . . .
18. Here, the credible evidence leads the Court to
conclude that Defendant [sic] statements to Plaintiff concerning
living part time in Vietnam, purchasing land adjacent to her
mother's home, and lending money to her nephew in exchange
for building the home caused Plaintiff to assent to sending
$200,000 to Vietnam. The Court concludes that Defendant's
statements to Plaintiff's siblings, his children, and his
employee establish that her statements to Defendant were
more than wishful thinking but willful attempts to influence
Plaintiff's behavior. The Court also concludes that
Plaintiff's reliance on Defendant's representations was
reasonable, given the fact he and Defendant were married and
ostensibly working towards the same goal.
19. The Court, therefore, concludes that Defendant
is estopped from denying an interest in the Vietnam home,
and further concludes that the only measure of its value is
the amount of money the parties sent to Vietnam in order to
build that home.
(emphases added). Kim Lan's challenge has merit with regard to
the underscored portions above.
We affirm portions of COLs 16, 18, and 19 as follows.
As to COL 18, the first sentence is a factual finding consistent
with FOFs 25-30 and 32, and this finding is not clearly erroneous
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for the same reasons that we upheld these FOFs supra. The Family
Court found in COL 19, that with respect to the Vietnam Property,
"the only measure of its value is the amount of money the parties
sent to Vietnam in order to build that home." This factual
assessment of value was based in part on credibility
determinations which we do not disturb on appeal. See Fisher,
111 Hawai#i at 46, 137 P.3d at 360. Therefore, the assessment of
a $200,000 value for the Vietnam Property was not clearly
erroneous. See FOFs 26, 32. As to the remaining portions of
COLs 18 and 19, and COL 16, Kim Lan's contentions regarding the
equitable estoppel defense have merit.
"Equitable estoppel is a defense requiring 'proof that
one person wilfully caused another person to erroneously believe
a certain state of things, and that person reasonably relied on
this erroneous belief to his or her detriment.'" Herrmann v.
Herrmann, 138 Hawai#i 144, 155 n.11, 378 P.3d 860, 871 n.11
(2016) (quoting Maria v. Freitas, 73 Haw. 266, 273, 832 P.2d 259,
264 (1992)). "[A]bsent manifest injustice, 'the party invoking
equitable estoppel must show that he or she has detrimentally
relied on the representation or conduct of the person sought to
be estopped, and that such reliance was reasonable.'" County of
Kaua#i v. Scottsdale Ins. Co., Inc., 90 Hawai#i 400, 403 n.1, 978
P.2d 838, 841 n.1 (1999) (emphasis in original) (citations
omitted).
In this case, Raymond did not raise the affirmative
defense of equitable estoppel in any of his filings in the Family
Court, and thus the defense was waived. HFCR Rule 8(c);7 see
State ex rel. Office of Consumer Prot. v. Honolulu Univ. of Arts,
Scis. & Humanities, 110 Hawai#i 504, 516, 135 P.3d 113, 125
(2006) (holding that a party's failure to affirmatively plead an
affirmative defense under Hawai#i Rules of Civil Procedure (HRCP)
7
HFCR Rule 8(c) requires affirmative defenses, including "estoppel,"
to be pled.
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Rule 8(c),8 or raise it during the trial court proceedings,
waived the affirmative defense). The Family Court, however,
applied equitable estoppel to Kim Lan, foreclosing her ability to
deny an interest in the Vietnam Property, and allocating the
entire Vietnam Property to her after setting its value at
$200,000. See COLs 18 and 19. The Family Court also ordered Kim
Lan to pay a corresponding equalization payment of over $233,000,
to Kim Lan's detriment. The Family Court did not provide the
parties any notice that it would be applying the doctrine of
equitable estoppel in COLs 16, 18 and 19, and did so sua sponte.
We conclude that the Family Court was wrong to sua sponte apply
the doctrine of equitable estoppel and to allocate the Vietnam
Property entirely to Kim Lan. See Gordon, 135 Hawai#i at 348,
350 P.3d at 1016 (citing Kakinami, 127 Hawai#i at 136, 276 P.3d
at 705).
We thus vacate the portions of COLs 16, 18, and 19
relating to equitable estoppel. However, we do not disturb the
finding in COL 18 which states: "18. Here, the credible
evidence leads the Court to conclude that Defendant [sic]
statements to Plaintiff concerning living part time in Vietnam,
purchasing land adjacent to her mother's home, and lending money
to her nephew in exchange for building the home caused Plaintiff
to assent to sending $200,000 to Vietnam." We also do not
disturb the finding in COL 19 which states: "19. The Court
further concludes that the only measure of its value is the
amount of money the parties sent to Vietnam in order to build
that home." We affirm the Family Court's assessment of $200,000
as the value of the Vietnam Property in COLs 18 and 19.
While the Vietnam Property was properly included in the
marital estate pursuant to FOFs 25-30 and 32, and its value
assessed as $200,000 in COLs 18 and 19, the Family Court erred in
8
HRCP Rule 8(c) and HFCR Rule 8(c) are identical provisions requiring
the pleading of affirmative defenses.
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not applying an equal division. See Tougas, 76 Hawai#i at 28,
868 P.2d at 446 ("[I]f there is no agreement between the husband
and wife defining the respective property interests, partnership
principles dictate an equal division of the marital estate where
the only facts proved are the marriage itself and the existence
of jointly owned property.") (internal quotation marks omitted).
Therefore, under the marital partnership model of property
division, half of the $200,000 value of the Vietnam Property
should have been allocated to Raymond. On remand, the Family
Court must apply an equal division.
4. Kim Lan's remaining contentions regarding errors
in the property division
Kim Lan contends that the Family Court made additional
errors in the division and distribution of property that
improperly benefitted Raymond, and these errors "impacted the
lower court's calculation of an equalization payment in his
favor." These contentions are without merit.
Kim Lan argues that all of Raymond's debts (Liv
Lindeland loan, American Savings Bank Visa, Sears, Chase Bank in
FOFs 65, 67, 68, 69) should have been considered his separate
debt and not included in the property division because of
Raymond's practices of "hiding income, inflated spending," and
waste that Kim Lan claims Raymond committed. The Family Court
did not abuse its discretion in including these debts that were
acquired during the marriage in the property division and in
allocating these debts to Raymond. See Baker v. Bielski, 124
Hawai#i 455, 464, 248 P.3d 221, 230 (App. 2011) (determining that
a debt was not a party's separate property because it was
acquired during the marriage); HRS § 580-47(a) (Supp. 2016)
(providing that the family court may allocate responsibility for
the payment of joint or separate debt as it deems just and
equitable). FOFs 65, 67, 68 and 69, which are actually combined
findings of fact and conclusions of law, are supported by
substantial evidence and are not clearly erroneous, and reflect a
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correct application of the relevant law to the facts. See JW,
146 Hawai#i at 585, 463 P.3d at 1242.
Kim Lan next argues that the Family Court erred in
valuing the 78 Panaewa property at $150,000 as of March 6, 2014
(FOFs 19, 52), because the appraiser issued competing appraisals:
one at $150,000 in Plaintiff's Exhibit 13 and the other at
$40,000 in Plaintiff's Exhibit 35. Kim Lan's argument is without
merit because the appraisals she cites were not competing but
rather based on two different points in time. The Family Court's
FOF 52 is supported by substantial evidence and not clearly
erroneous. See Gordon, 136 Hawai#i at 348, 350 P.3d at 1016.
Finally, Kim Lan argues that the Family Court erred in
valuing Kim Lan's American Savings Bank account at $20,724 (FOF
58), despite her testimony that she only had $3,000 in a credit
union account. Kim Lan explained in her Reply Brief that the
Family Court erred in relying on her September 21, 2015 Asset and
Debt Statement instead of her January 22, 2016 Asset and Debt
Statement. The Property Division Chart attached to the FOF/COL
stated that the balance was $20,724 and allocated the account to
Kim Lan. There appears to be no dispute that the account exists;
however, the record contains evidence of differing values. FOF
58 is supported by substantial evidence in the record and was
determined by the trial court as factfinder; thus, it was not
clearly erroneous. See Fisher, 111 Hawai#i at 46, 137 P.3d at
360; Gordon, 136 Hawai#i at 348, 350 P.3d at 1016.
B. VARCs, EQUALIZATION PAYMENT, SPOUSAL SUPPORT, AND OTHER
REMAINING ISSUES
We vacate the equalization payment of $233,735.25 (COL
9
33) from Kim Lan to Raymond for recalculation in light of the
9
The COL regarding the equalization payment is as follows:
33. The parties' marital partnership assets and
debts are determined to consist of and shall be divided as
set forth in the Property Division Chart attached hereto as
Exhibit "A" and, by this reference, incorporated herein.
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equal division of the Vietnam Property that must be applied on
remand. As to the conclusions the Family Court entered regarding
VARCs (COL 32),10 and spousal support (COLs 7-10, and 30-31),11
The omission of an asset or debt urged by either party means
that the Court finds it has not been proved to exist at the
time of trial. The division results in an equalization
payment of $233,735.25 owing from Defendant [Kim Lan] to
Plaintiff [Raymond].
10
The COL regarding the VARCs is as follows:
32. The Court concludes that there are no valid and
relevant consideration [(VARCs)] [sic] that authorize the
Court to deviate from the Marital Partnership Model, and
that application of that model will result in the equitable
distribution of the marital estate.
11
These COLs regarding spousal support are as follows:
7. HRS Sec. 580-47(a) sets forth 13 factors this
Court must consider in assessing Defendant's alimony claim.
Those factors are stated in general terms and set forth in
no particular order of importance. The Intermediate Court
of Appeals, first in Cassiday v. Cassiday, 6 Haw. App. 207(Haw. Ct. App. 1985) and then in Vorfeld v. Vorfeld, 8 Haw.
App. 391 (Haw. Ct. App. 1991) synthesized the most relevant
of these 13 factors and restated them:
The relevant circumstances are (1) the
payee's need (determined by the amount of money
needed to maintain the standard of living
established during the marriage; (2) the payees's
ability to meet his or her nee [sic] without
spousal support; (3) the payor's need (again,
determined by the amount of money needed to
maintain the standard of living established
during the marriage); and (4) the payor's
ability to pay spousal support while meeting his
or her own need as well.
8. The Court has considered those factors and
concludes that the evidence at trial concerning the
standard of living established during the marriage
establishes that the parties enjoy the same standard of
living now, living separate and apart, as they did while
they were together. Plaintiff has the same classic car he
had and engages in the same activities. Defendant has two
homes, neither of which is encumbered by a mortgage. She
lives in one and rents the other. Members of Defendant's
family continue to visit her here and she continues to
travel to Vietnam to visit them.
9. The evidence also established and the Court
concludes that Plaintiff and Defendant are each currently
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which Kim Lan also challenges, we affirm as the Family Court did
not abuse the wide discretion it possesses, and these conclusions
are not wrong. See Hamilton, 138 Hawai#i at 197, 378 P.3d at
913; Gordon, 136 Hawai#i at 348, 350 P.3d at 1016. With regard
to Kim Lan's argument that COL 7 contained an erroneous
"truncated analysis" of the HRS § 580-47(a) factors, we disagree
with this characterization. COL 7 acknowledged that the statute
"sets forth 13 factors [the Family] Court must consider in
assessing [Kim Lan's] alimony claim." Our review of all of the
FOF/COLs reflects that the Family Court did consider all of the
factors.
We resolve Kim Lan's remaining challenges to the
FOF/COLs as follows. With respect to challenged FOF 7, FOF 38,
and FOF 39, these findings are within the province of the Family
Court as factfinder, and Kim Lan has not demonstrated how these
findings are clearly erroneous. See Fisher, 111 Hawai#i at 46,
137 P.3d at 360. As to FOF 8 and FOF 37, we vacate in part only
with respect to the incorrect age of Kim Lan; we otherwise affirm
the findings as the record reflects that the Family Court was not
wrong in denying spousal support to Kim Lan. See id.; Gordon,
136 Hawai#i at 348, 350 P.3d at 1016. With respect to FOF 16,
FOF 18, FOF 21, COL 21, COL 34, no argument is provided, and we
meeting their financial obligations from their incomes.
10. Considering the factors set forth in HRS Sec.
580-47(a) the Court concludes that Defendant is not
entitled to receive alimony from Plaintiff.
. . . .
30. Defendant entered into the marriage with assets
approximately twice the value of Plaintiff's assets. Even
without considering the value placed by the Court on the
home in Vietnam, Defendant is leaving the marriage with
assets worth approximately $200,000 more than Plaintiff.
31. Each party is meeting his or her regular monthly
expenses with their regular monthly income. Neither party
is burdened by minor children.
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do not address them. See Hawai#i Rules of Appellate Procedure
Rule 28(b)(7).
IV. CONCLUSION
For these reasons, the Family Court's July 26, 2016,
Findings of Fact and Conclusions of Law, and the August 22, 2016,
Decree Granting Absolute Divorce, are affirmed in part and
vacated in part. We remand for the application of an equal
division as to the Vietnam Property, and for recalculation of the
equalization payment in light of the equal division of the
Vietnam Property, consistent with this Memorandum Opinion. We
affirm in all other respects.
DATED: Honolulu, Hawai#i, June 17, 2021.
On the briefs:
/s/ Katherine G. Leonard
Rebecca A. Copeland Presiding Judge
(Law Office of Rebecca A.
Copeland, LLC) /s/ Keith K. Hiraoka
for Defendant-Appellant Associate Judge
Brian J. De Lima /s/ Karen T. Nakasone
(Law Offices of Brian J. De Associate Judge
Lima)
for Plaintiff-Appellee
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