Cannon v. Cannon ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUL-2022
08:08 AM
Dkt. 160 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
AGNES G. CANNON, Plaintiff-Appellee/Cross-Appellant,
v.
THOMAS R. CANNON, Defendant-Appellant/Cross-Appellee
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NO. 2DV161000023)
MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant/Cross-Appellee Thomas R. Cannon
appeals, and Plaintiff-Appellee/Cross-Appellant Agnes G. Cannon
cross-appeals, from the Divorce Judgment entered by the Family
Court of the Second Circuit on July 3, 2017.1 For the reasons
explained below, we vacate the Divorce Judgment (including the
property division chart) in part and remand for further
proceedings.
BACKGROUND
Thomas and Agnes were married on March 23, 1984. Agnes
filed for divorce on January 19, 2016. They had no minor or
dependent children. Neither sought alimony. The Divorce
Judgment — which included findings of fact, conclusions of law, a
property division order, and a property division chart — was
1
The Honorable Lloyd A. Poelman presided.
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entered on July 3, 2017. Thomas filed a timely notice of appeal.
Agnes filed a timely notice of cross-appeal. At issue is the
division and distribution of the parties' marital estate.
Thomas's opening brief raises five issues:2
"a. The trial [sic] Court erred when it gave
Thomas only a $10,000 deduction — as Category 1
property — in the Kekaulike property before it
awarded both parties a 50/50 split (as category 5
property) of the equity in or the FMV [fair market
value] of the Kekaulike property."
"b. The trial [sic] Court erred when it did
not rule whether the facts or the circumstances of
the parties present any VARCs warranting a
deviation from the partnership model division of
assets (as set forth in the trial [sic] Court's
PDC [property division chart]); if said deviation
were warranted, the Trial Court erred by not
itemizing those considerations and deciding the
extent of the said deviation.
"c. The trial [sic] Court erred when it
valued Agnes' [sic] 401k [sic] account at $198,000
at the time of trial."
"d. The trial [sic] Court erred when it
refused to hear evidence regarding a verbal
premarital agreement that was made, adhered to
during the marriage and that was referred to
during the marriage."
"e. The trial [sic] Court erred by not
giving Thomas enough time to present his case-in-
chief."
Thomas challenges the family court's finding of fact no. 28.
Agnes's opening brief also raises five issues:3
"1. The Oluolu Property Was MPP [marital
partnership property] and Wrongly Characterized
MSP [marital separate property]";
2
Thomas's opening brief does not comply with Rule 28(b)(4) of the
Hawai#i Rules of Appellate Procedure (HRAP).
3
Agnes's opening brief does not comply with HRAP Rule 28(b)(4).
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"2. Capital Contributions Not Proven";
"3. The Family Court Failed to Consider
Equitable Deviation";
"4. Numerous Errors in the FOF [findings of
fact]"; and
"5. [Thomas] not entitled to a 10K MSP for
Kekaulike Property[.]"
Agnes challenges the family court's findings of fact nos. 25, 26,
27, 29, 34, and conclusion of law no. 10.
STANDARDS OF REVIEW
The family court's findings of facts are reviewed under
the clearly erroneous standard; conclusions of law are reviewed
de novo under the right/wrong standard. Gordon v. Gordon, 135
Hawai#i 340, 348, 350 P.3d 1008, 1016 (2015).
The family court's final division and distribution of
the estate of the parties is reviewed for abuse of discretion,
applying the factors set forth in Hawaii Revised Statutes (HRS)
§ 580–47 and marital partnership principles. Gordon, 135 Hawai#i
at 348, 350 P.3d at 1016. The family court's determination of
whether facts present equitable considerations authorizing a
deviation from the marital partnership model division is a
question of law reviewed under the right/wrong standard of
appellate review. Id.
DISCUSSION
Marital Partnership Principles
Hawai#i follows the marital partnership model. "Under
the Marital Partnership Model, marriage is a partnership to which
both parties bring their financial resources as well as their
individual energies and efforts. In divorce proceedings
regarding division and distribution of the parties' estate,
partnership principles guide and limit the range of the family
court's choices." Hamilton v. Hamilton, 138 Hawai#i 185, 206,
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378 P.3d 901, 922 (2016) (cleaned up). The family court has wide
discretion to divide marital partnership property according to
what is "just and equitable" based on the facts and circumstances
of each case. Id. at 206, 378 P.3d at 922 (citing HRS
§ 580–474).
The marital partnership model distinguishes between
property that is brought into the marriage, property that is
separately acquired by one spouse during the marriage, and all
other marital property. The family court assigns values to
marital partnership property using five categories:
Category 1 includes the net market value of
property separately owned by a spouse on the date
of marriage; these values are repaid to the
contributing spouse absent equitable
considerations justifying a deviation.
Category 2 includes the increase in the net market
value of Category 1 property during the marriage;
these values are divided equally absent equitable
considerations justifying a variation.
Category 3 includes the net market value of
property separately acquired by gift or
inheritance during the marriage; these values are
repaid to the contributing spouse absent equitable
considerations justifying a deviation.
Category 4 includes the increase in the net market
value of Category 3 property during the marriage;
these values are divided equally absent equitable
considerations justifying a variation.
4
HRS § 580–47 (2006 & Supp. 2016) provides, in relevant part:
Support orders; division of property. (a) Upon granting a
divorce . . . the court may make any further orders as shall
appear just and equitable . . . (3) finally dividing and
distributing the estate of the parties, real, personal, or
mixed, whether community, joint, or separate . . . . In
making these further orders, the court shall take into
consideration: the respective merits of the parties, the
relative abilities of the parties, the condition in which
each party will be left by the divorce, the burdens imposed
upon either party for the benefit of the children of the
parties, the concealment of or failure to disclose income or
an asset, or violation of a restraining order issued under
section 580-10(a) or (b), if any, by either party, and all
other circumstances of the case.
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Category 5 includes the net market value of the
remaining marital estate at the conclusion of the
evidentiary part of the trial; these values are to
be divided equally absent equitable considerations
justifying a deviation.
Gordon, 135 Hawai#i at 349–50, 350 P.3d at 1017–18 (emphasis
added). The marital partnership model requires that the family
court: (1) find the facts necessary for categorization of the
properties and assignment of the relevant net market values;
(2) identify any equitable considerations justifying deviation
from an equal distribution; (3) decide whether there will be a
deviation and, if so; (4) decide the extent of any deviation.
Id. at 350, 350 P.3d at 1018.
HRS § 580–47(a) requires that the family court focus on
the present and the future, not the past; that is, deviation from
the marital partnership model should be based primarily on the
current and future economic needs of the parties rather than on
punishing one party for misconduct. Gordon, 135 Hawai#i at 353,
350 P.3d at 1021; see also Selvage v. Moire, 139 Hawai#i 499,
510, 394 P.3d 729, 740 (2017) (noting that "a family court's
property division is an abuse of discretion if it considers one
spouse's misconduct to be a 'valid and relevant consideration,'
instead of considering 'the factors required by HRS § 580-47'")
(brackets omitted) (citing Gordon, 135 Hawai#i at 347, 350 P.3d
at 1015).
Kekaulike Property
Thomas's point a. and Agnes's point 5. concern real
property referred to by both parties as the "Kekaulike Property."
The family court made the following findings of fact, which
neither party contests and are therefore binding on appeal:5
3. [Before the marriage, Thomas]'s mother
transferred a large property in . . . Kula, Hawaii . . . to
5
Unchallenged findings of fact are binding on appeal. In re Doe,
99 Hawai#i 522, 538, 57 P.3d 447, 463 (2002) (citing Poe v. Haw. Lab. Rels.
Bd., 97 Hawai#i 528, 536, 40 P.3d 930, 938 (2002)).
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her three children. [Thomas] and his two siblings agreed
and contracted to subdivide the property into three lots —
with each sibling to receive one property. [Thomas]'s lot
is located at 1383 Kekaulike Avenue . . . (hereinafter "the
Kekaulike property"). When the property was subdivided, the
three siblings signed legal documents to have the property
subdivided and deemed "farm property." Then, they conveyed
each of the three lots to the specific sibling receiving it.
On February 2, 1989 [(after the marriage), Thomas] and his
two siblings conveyed the Kekaulike property to [Agnes] and
[Thomas].
. . . .
13. Alan Shishido, who is certified as a real
property appraiser and who was qualified by this Court as an
expert in real property appraisals, testified on behalf of
[Thomas]. . . .
14. . . . Paul Lander, also a certified real estate
property appraiser and who was also certified by this Court
as an expert in real property appraisals, testified on
behalf of [Agnes]. . . .
. . . .
22. Mr. Shishido testified that the current FMV
[fair market value] of the Kekaulike property is $475,000.
He based said testimony on an appraisal report he compiled
and that was admitted into evidence. His uncontested
testimony was that the FMV of the Kekaulike property as of
February 2, 1989 (the date [Agnes]'s name was added to the
property) was $140,000. This testimony was based on another
appraisal report Mr. Shishido prepared and that was admitted
into evidence.
23. Mr. Lander testified that the current FMV of the
Kekaulike property is $515,000. Said testimony is based on
an appraisal report Mr. Lander compiled and that was
admitted into evidence. But Mr. Shishido testified that
Mr. Lander's appraisal was defective and unreliable. Mr.
Lander's report stated that the Kekaulike property was
residential and that there was no agricultural or ranching
activities thereon. The Kekaulike property has always been
zoned agricultural, however, and [Thomas] was and is raising
goats on that property. The pictures Mr. Lander included in
his report of the Kekaulike property were taken from the MLS
listing, not taken by him. Mr. Lander's appraisal report
also said that there are two dwellings on the Kekaulike
property. In reality, there are only two small open-sided
goat houses on the property. [Thomas]'s uncontested
testimony was that he himself built and constructed these
two goat houses. The said appraisal report contained a
picture of a "street scene" supposedly abutting the
Kekaulike property. But, as Mr. Shishido testified, the
street scene was at least a half mile away. Mr. Shishido
postulated that Mr. Lander may have been looking at the
wrong property.
24. Mr. Shishido's testimony was credible. Mr.
Shishido's appraisal report concerning the Kekaulike
property — and that was admitted into evidence — is
credible, more so than Mr. Lander's report. Mr. Lander's
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report has too many unanswered questions. Accordingly, the
current value of the Kekaulike property is $475,000.
(emphasis added).
Thomas's statement of the points of error does not
specifically challenge the family court's conclusion of law
no. 10:
10. The Kekaulike property is deemed Marital
Partnership Property. The current FMV of the Kekaulike
property is $475,000, with an offset to [Thomas] of $10,000.
The balance of said amount is Category 5 property.
Accordingly, $465,000 from the current FMV of the Kekaulike
property is Category 5 property.
Thomas argues, however, that the family court erroneously
"credited" him only $10,000 for the Kekaulike Property.
Notwithstanding Thomas's failure to comply with HRAP
Rule 28(b)(4), we address his argument because Agnes also
challenges conclusion of law no. 10; she argues that Thomas
should not have received any credit.
The Divorce Judgment (which includes the family court's
findings of fact, conclusions of law, and property division
chart) attributes $10,000 of the value of the Kekaulike Property
as a gift received by Thomas during the marriage. The finding is
clearly erroneous. The family court's uncontested finding of
fact was Thomas and his two siblings jointly owned a large parcel
of land (the Kula Property) as tenants in common before Thomas
and Agnes were married. Thus, the value of Thomas's undivided
interest in the Kula Property on the date he and Agnes were
married was a Category 1 value, which was to be repaid to Thomas
absent equitable considerations justifying a deviation. The
record does not contain any evidence about the Category 1 value
of Thomas's undivided interest in the Kula Property.
After Thomas and Agnes were married, the Cannon
siblings subdivided the Kula Property into three lots, with each
sibling to receive one lot. The Cannon siblings transferred
title to Thomas's lot (the Kekaulike Property) to Thomas and
Agnes during their marriage. The difference between the value of
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Thomas's undivided interest in the Kula Property on the date of
his and Agnes's marriage and the date the Kula Property was
subdivided (and the Kekaulike Property conveyed to Thomas and
Agnes) was a Category 2 value; that value should have been
divided equally absent equitable considerations justifying a
variation.6
The family court correctly classified the Kekaulike
Property as a Category 5 asset because Thomas and Agnes acquired
title as tenants by the entirety during their marriage. The
value of the Category 5 asset when it was acquired by the marital
partnership was, according to finding of fact no. 22, $140,000.
The value of that asset on the date of divorce was, according to
finding of fact no. 24, was $475,000. The increase in value of
$335,000 was the Category 5 value that should have been divided
equally absent equitable considerations justifying a variation.
For the foregoing reasons, conclusion of law no. 10 was
wrong. We vacate it, and the related provisions in the Divorce
Judgment (including the property division chart), and remand to
the family court for further proceedings.
Equitable Considerations
Thomas's point b. and Agnes's point 3. both contend
that the family court erred by failing to consider equitable
deviation. Thomas requested equitable deviation in his proposed
finding of fact no. 29 and alternative property division charts.
The family court adopted one of Thomas's proposed property
division charts, "with certain modifications." But nothing in
the Divorce Judgment (including the findings of fact and
conclusions of law) indicates that the family court engaged in
6
The $140,000 fair market value of the Kekaulike Property when it
was acquired by Thomas and Agnes does not necessarily equate to the Category 1
or Category 2 values of Thomas's undivided interest in the Kula Property.
Among other things, the value of Thomas's undivided interest may have changed
when the Kula Property was subdivided, or between the time of the subdivision
and the conveyance of the Kekaulike Property to Thomas and Agnes (and,
presumably, the conveyance of the other two subdivided lots of the Kula
Property to Thomas's siblings and their respective spouses).
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the process required by Gordon. 135 Hawai#i at 350, 350 P.3d at
1018. We vacate the property division chart and remand to the
family court for further proceedings.
Agnes's 401(k) Account
Thomas's point c. challenges the family court's finding
of fact no. 28:
28. [Agnes]'s 401k [sic] account with First Hawaiian
Bank is ten years-old and thus is entirely Category 5
property. In her Asset & Debt Statement, filed herein in
January of 2017 [sic], her said 401K [sic] account had
$230,000. In her Asset & Debt Statement, filed herein on
March 10, 2017, [Agnes] stated the said 401k [sic] account
contained only $198,000. In her deposition, [Agnes]
testified that she withdrew nothing from said account but
that it was devalued because of the stock market.
The Divorce Judgment's property division chart values the account
at $198,000.
Thomas argues:
The ambiguity of this FOF speaks for itself. If the
trial [sic] Court thinks that Agnes' [sic] earlier
accounting of her 4401k [sic] account's value was more
accurate when she first stated it — at a time when trial was
not looming — as it appears to indicate, then the trial
[sic] Court should have valued it as $230,000.
Finding of fact no. 28 is not ambiguous. Agnes's asset
and debt statement filed on January 19, 2016, listed the value of
her 401(k) plan at $230,000. Her asset and debt statement filed
on March 10, 2017, listed the value as $198,000. She testified
that the decrease in value was because the stock market had "gone
down since." She denied withdrawing any money. Thomas cites no
evidence in the record to the contrary. Finding of fact no. 28
is not clearly erroneous.
Premarital Agreement
Thomas's point d. contends that the family court "erred
when it refused to hear evidence regarding a verbal premarital
agreement[.]" Thomas's statement of the points of error does not
identify where in the record the alleged error occurred, as
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required by HRAP Rule 28(b)(4). Thomas filed a trial memorandum
arguing that Agnes orally promised, before their marriage, "that
she would not claim any of his assets if the marriage did not
work-out [sic]. She implied that she would only claim what she
herself earned during the marriage." However, Thomas does not
cite where in the trial record he offered evidence of a verbal
premarital agreement, or where an objection to the proffer of
such evidence was sustained. We are not obligated to search the
record for information that should have been provided by Thomas.
Haw. Ventures, LLC v. Otaka, Inc., 114 Hawai#i 438, 480, 164 P.3d
696, 738 (2007) (explaining that an appellate court "is not
obligated to sift through the voluminous record to verify an
appellant's inadequately documented contentions") (first quoting
Lanai Co. v. Land Use Comm'n, 105 Hawai#i 296, 309 n.31, 97 P.3d
372, 385 n.31 (2004); and then citing Miyamoto v. Lum, 104
Hawai#i 1, 11 n.14, 84 P.3d 509, 519 n.14 (2004)). We decline to
address this point of error, which was not properly preserved or
presented.
Trial Management
Thomas's final point of error contends that the family
court "erred by not giving Thomas enough time to present his
case-in-chief." At the beginning of the evidentiary hearing on
March 16, 2017, the family court informed the parties: "[W]e have
this set for a full day. Both sides, we have enough time that
both sides will have 135 minutes for direct, cross and closing
arguments." At the end of the day the family court gave each
side one additional hour and the evidentiary hearing was
continued to April 11, 2017.
On April 11, 2017, the family court received additional
evidence and continued the evidentiary hearing to April 27, 2017.
On April 27, 2017, the family court received additional
evidence, ordered the parties to submit their proposed divorce
decree, updated property division charts, and findings of fact
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and conclusions of law by May 8, 2017. The parties were to
return on May 17, 2017, for the court's ruling.
The family court issued its oral ruling on May 17,
2017.
Thomas does not cite where in the trial record he moved
for additional time to examine witnesses or offer evidence; or
moved to continue the evidentiary hearing; or tendered an offer
of proof of what evidence he would adduce if given more time; or
otherwise preserved his contention that the family court erred by
not giving him enough time to present his case. We are not
obligated to search the record for this information. Otaka,
Inc., 114 Hawai#i at 480, 164 P.3d at 738. We decline to address
this point of error, which was not properly preserved or
presented.
#Olu#olu Property
Agnes's point 1. contends that the family court erred
"when it characterized the Oluolu property as marital separate
property." She challenges findings of fact nos. 25 and 26:
25. [Thomas] owned a one-third interest in the
property located at 15/25 Oluolu Place, Kula, Hawaii 96790
(the "Oluolu property"). [Thomas]'s Mother had conveyed the
Oluolu property to him and his two siblings on December 31,
1984. In December of 2016, [Thomas] sold his interest in
the Oluolu property for $275,000. He deposited the funds
from this said sale into his Territorial Savings Bank
account, which had very little funds in it before that time.
Said bank account was solely in [Thomas]'s name. [Agnes]
did not contribute to the maintenance or enhancement of said
bank account.
26. [Agnes]'s name was never on the Oluolu property
or on the Territorial Savings Bank account where [Thomas]
deposited his funds from the sale of his interest in the
Oluolu property. [Agnes] had nothing to do with the Oluolu
property. She did not participate in maintaining or in
improving the said property. She expended no funds to
maintain or improve the property. No evidence was presented
that any marital (Category 5) funds or efforts were spent on
maintaining or improving the Oluolu property.
Agnes asserts that the #Olu#olu Property should have
been categorized as Marital Partnership Property "subject to
division in [this] divorce proceeding" because the evidence
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establishes that, similar to the wife in Hamilton, she used
Marital Separate Property (in the form of a $20,000 gift she
claimed to have received from Thomas's mother) to "help[]
[Thomas] obtain ownership of the Oluolu property at a one quarter
[sic] interest[.]" Agnes's reliance on Hamilton is misplaced.
In Hamilton, the wife argued that the family court
erred by characterizing the funds remaining in the husband's
inheritance account as Marital Separate Property. 138 Hawai#i at
202, 378 P.3d at 918. At trial, the wife's forensic accounting
expert testified pursuant to his report that a total of $463,455
had been paid for the husband's inheritance taxes. Id. The
family court included this amount as "Category 3 assets used for
marital purposes for which Husband is entitled to be repaid."
Id. (cleaned up) (emphasis added). Although the husband's
inheritance was placed in a "separate" account, the Hamilton
court determined that "the inheritance cannot be classified as
Marital Separate Property" "if inheritances taxes are paid out of
Marital Partnership Property[.]" Id. The court noted that in
order for the funds remaining in the husband's inheritance
account to be Marital Separate Property, the $463,455 paid as
inheritance taxes had to be excluded from Category 3 Marital
Partnership Property. Id. at 203, 378 P.3d at 919.
The record in this case shows that the parties
presented conflicting evidence at trial pertaining to the
characterization of the #Olu#olu Property. On appeal, Agnes
relies solely on the testimony of Thomas's sister, Patricia
Mazingo, to support her contention that the #Olu#olu Property
should have been characterized as Marital Partnership Property
because Agnes used a $20,000 gift from Thomas's mother to "help[]
[Thomas] obtain ownership of the Oluolu property at a one quarter
[sic] interest[.]". However, the family court determined that
Mazingo "was not credible":
27. [Thomas]'s sister – Patty Mazingo – testified
twice in [Agnes]'s case-in-chief. To the extent that her
testimony was relevant and was adverse to [Thomas], Mrs.
Mazingo's testimony was not credible. When she testified on
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March 16, 2017, she at first denied that she harbored any
bad feeling toward [Thomas]. But only moments later, she
caught herself mid-sentence as she was blurting-out [sic]
that she was having problems with [Thomas]. She admitted
that she had a property dispute with [Thomas] concerning an
easement on his Kekaulike property.
(emphasis added). Evaluating the credibility of witnesses and
weighing the conflicting evidence lies in the sole province of
the trial court. See Fisher, 111 Hawai#i at 46, 137 P.3d at 360
("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.")
(citation omitted). Thus, finding of fact nos. 25 and 26 are not
clearly erroneous; each is supported by substantial evidence in
the record, and we are not left with a definite or firm
conviction that the family court made a mistake.
Capital Contributions
Agnes's point 2. argues that "capital contributions not
proven" under Hamilton. Despite Agnes's failure to comply with
HRAP Rule 28(b)(4)(C), we are able to glean from her opening
brief that she challenges findings of fact nos. 7, 9, and 10.
See Dan v. State, 76 Hawai#i 423, 428, 879 P.2d 528, 533 (1994);
see also Marvin v. Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88,
94 (2012) ("[N]oncompliance with [HRPP] Rule 28 does not always
result in dismissal of the claims, and this court has
consistently adhered to the policy of affording litigants the
opportunity to have their cases heard on the merits, where
possible.") (cleaned up) (citations omitted). The family court
found:
7. [Thomas]'s father died in 1981. [Thomas]'s father
was the CEO and Chairman of the Board of Bank of Hawaii. He
owned many assets, including real properties. Around the
time of the said marriage, [Thomas] received cash, stocks
and bonds from his father's estate. He liquidated the
stocks and bonds. Including said liquidation, [Thomas]
received a total of slightly more than $40,000 from his
Father's estate. He deposited this sum in a Bank of Hawaii
account in his name that his father had set-up [sic] for him
years earlier. He used much of this money to improve the
Haiku property and the Kekaulike property. These capital
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improvements, along with the amount of [Thomas]'s father's
inheritance money spent thereon, include the following:
$3,116.25 – building a gate at the Haiku property
$1,033.04 – for fencing the Haiku property
$3,999.43 – building and maintaining a water system
for the Haiku property
$4,925.77 – legal expenses to secure and expand the
Haiku property
$1,870.11 – building and maintaining a water system
for the Kekaulike Property
$366.40 [–] legal expenses to secure and define the
Kekaulike property
$15,311.00 – TOTAL
$13,074.49 of these said expenditures were invested in
improving the Haiku property and $2,236.51 of the said
expenditure[s] were invested in the Kekaulike property. The
total funds – as documented here – expended is $15,311.00.
The total amount of funds expended on capital improvements
on the subject properties is probably much higher. [Thomas]
paid these expenses from said Bank of Hawaii account to pay
for these capital improvements.
. . . .
9. Once [Thomas] began receiving money from his
Mother's estate, he was able to do needed work to improve
both the Haiku property and the Kekaulike property. These
capital improvements, along with the expenses therefor, are
as follows:
$40,007.38 – for photovoltaic heating system for
Haiku property
$20,272.91 – for elaborate fencing of the Haiku
property
$13,877.29 – for elaborate fencing of the Kekaulike property
$2,957.72 – for a gate for the Haiku property
driveway
$5,461.97 – for materials to improve the Haiku
property deck
$6,131.45 – for a wood-burning stove heater on the
Haiku property
$3,953.10 – for a storage facility on the Haiku
property
$7[,]443.98 – for an improved water system for the
Haiku property
$4,919.20 – for legal expenses to secure and define
the Kekaulike property
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$4,675.00 – for legal expenses to secure and expand
the Haiku property
$2,157.65 – for an improved water system on the
Kekaulike property
$111,857.65 – TOTAL
$90,903.51 of this said amount was spent on improving the
Haiku property and $20,954.14 of this said amount was spent
on improving the Kekaulike property.
10. Upon receiving inheritance from his Mother,
[Thomas] was also able to pay-off the principal mortgage on
the Haiku property for $195,852.17 and the principal on a
home equity loan on the Haiku property for $30,624[.]43, for
a total pay-off of $226,476.60. Said expenditures increased
the value of the marital estate.
As Agnes correctly notes, Thomas, as the partner
requesting repayment for his contribution to Marital Partnership
Property, bears "the burden of proving that he contributed
property to the marital partnership and of establishing the
property's value at the time of contribution." Hamilton, 138
Hawai#i at 203, 378 P.3d at 919 (citing Mark IV Pictures, Inc. v.
Comm'r., 969 F.2d 669, 672 (8th Cir. 1992)). She maintains that
the Quicken ledgers in Thomas's exhibits "EEE" and "FFF" are:
(1) improper evidence; and (2) insufficient to prove that Thomas
contributed property to the marital partnership and to "establish
the value of any property for which he should get credit." Agnes
failed to properly preserve these arguments.
1. Improper Evidence
As to Agnes's argument that Thomas's exhibits "EEE" and
"FFF" constitute improper evidence, the record shows that Agnes's
counsel objected to the admission of Thomas's exhibits "EEE" and
"FFF" into evidence. Agnes's counsel stated the basis for his
objection to exhibit "EEE":
[Thomas's Counsel]: I'd like to introduce [Thomas]'s
Exhibit E into evidence.
[Agnes's Counsel]: Objection, foundation, what we
talked about, your Honor. This is somebody's personal
Quicken books. Everybody has some. There's nothing on
here. The last ten minutes was completely irrelevant.
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THE COURT: Do you mean Exhibit E -- EEE?
[Thomas's Counsel]: Yes.
[Agnes's Counsel]: It shows different accounts and
different ways of entering and it doesn't say one word about
inheritance on there. And that's his own writing, your
Honor.
(emphasis added). Agnes's counsel also explained the basis for
his objection to the admission of exhibit "FFF":
[Thomas's Counsel]: Okay. Okay, your Honor. I move,
ah, to admit FFF into evidence.
THE COURT: Okay. Any objection to Court receiving
FFF?
[Agnes's Counsel]: Yes, your Honor. And I -- I want
to make a running objection that all Quicken accounts should
not be received into evidence, your Honor.
THE COURT: And is the objection the same as you had on
the other Quicken --
[Agnes's Counsel]: It's on foundation, your Honor.
(emphasis added). Both exhibits "EEE" and "FFF" were admitted
into evidence over Agnes's objection.
The April 11, 2017 hearing transcript (which is
incorrectly dated May 11, 2017) shows, and Agnes confirms in her
opening brief, that Agnes's counsel objected generally for
"foundation" to both exhibit "EEE" and "FFF[.]" "[A] 'lack of
foundation' objection generally is insufficient to preserve
foundational issues for appeal because such an objection does not
advise the trial court of the problems with the foundation."
State v. Long, 98 Hawai#i 348, 353, 48 P.3d 595, 600 (2002).
However, "an exception is recognized when the objection is
overruled and, based on the context, it is evident what the
general objection was meant to convey." Id.Although the family court overruled Agnes's
"foundation" objections, the exception does not apply here. It
is not evident from the context what these general objections
were meant to convey. Agnes's arguments on appeal further reveal
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that her counsel could have been objecting to exhibits "EEE" and
"FFF" on multiple bases, including:
These ledgers are improper and the date in the upper left
suggests, such were created for the trial. Such documentary
evidence is improper because it is not corroboration because
it was created by a party litigant. It is also hearsay as
an out-of-court statement, and it is cumulative because it
echoes what [Thomas] seeks to testify about. . . .
Corroboration has its validity in the fact that a none [sic]
party has created it or validated it, timely, to reflect
payment or status of an account. Additionally, there is
some question as to whether [Thomas] knows how to use
Quicken and whether these ledgers were created for this
litigation.
Accordingly, we cannot conclude that from the context it was
evident what Agnes's general "foundation" objections to exhibits
"EEE" and "FFF" were meant to convey. Agnes failed to preserve
the evidentiary argument she is now making on appeal.
2. Sufficiency of Exhibits "EEE" and "FFF"
Thomas testified that exhibit "EEE" was "a printout of,
ah, a report made by my Quicken, ah, financial program" and that
exhibit "FFF" was "printouts of reports from my Quicken program
regarding, ah, monies received from my dad's inheritance."
Agnes argues that the "Quicken ledgers . . . do not substantiate
valid contribution to, or investment in [Marital Partnership
Property.]" To support this argument, she maintains that Thomas
should instead have presented the following evidence to satisfy
his burden under Hamilton: "canceled checks, statements showing
payment, invoices of charges, or other documents providing
corroboration other than his self-created reports." Agnes,
however, failed to cite any authority for the position that an
authenticated printout of a report from a financial accounting
application is inadmissible, or that only certified financial
statements or bank documents are admissible under these
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circumstances. We therefore deem this argument waived.7 HRAP
Rule 28(b)(7) (the opening brief must contain "[t]he argument,
containing the contentions of the appellant on the points
presented and the reasons therefor, with citations to the
authorities . . . relied on. . . . Points not argued may be
deemed waived.") (emphasis added).
Additional Challenged Findings of Fact
Agnes's point 4. contends that "there [are] a number of
errors in the findings of fact which require them to be vacated."
She challenges findings of fact nos. 27, 29, and 34, which
provide (with the challenged portions of these findings in bold-
italics):
7
Hamilton establishes that "expenditures made from a Marital
Separate Property account qualify for characterization as Category 3 Marital
Partnership Property only where they are in the nature of a contribution to or
an investment in Marital Partnership Property." 138 Hawai#i at 204, 378 P.3d
at 920. Expenditures that qualify as contribution to or investment in Marital
Partnership Property investment funds or assets include:
expenditures for down payments, improvements, or toward the
principal of loans related to Marital Partnership Property
real estate, expenditures for Marital Partnership Property
stock or business interests, or other advances or payments
toward Marital Partnership real or personal property or
Marital Partnership investments.
Id. at 203, 378 P.3d at 919. Expenditures that do not qualify, unless they
are in the nature of contribution to or investment in Marital Partnership
Property, include payments for "a spouse's or children's educations, meals,
trips, socializing, entertainment, requirements for daily living, etc." Id.
Even if this argument is not deemed waived, we would be able to
conclude that findings of fact nos. 7, 9, and 10 are supported by substantial
evidence and not clearly erroneous. The family court, in this case,
categorized both the Haiku Property and Kekaulike Property as Marital
Partnership Property. Finding of fact no. 7 concerned funds Thomas inherited
from his Father to pay for "improvements" to both the Haiku Property and the
Kekaulike Property. Finding of fact no. 9 then pertained to funds Thomas
inherited from his Mother's estate to pay for "improvements" on the Haiku
Property and Kekaulike Property. Finding of fact no. 10 addressed Thomas's
use of funds obtained from his Mother's estate to pay off the "principal of
loans related to" the Haiku Property and Kekaulike Property. Hamilton, 138
Hawai#i at 203, 378 P.3d at 919. The expenditures in findings of fact nos. 7,
9, and 10 qualify as contributions to or investment in the Haiku Property and
Kekaulike Property as Marital Partnership Property and are consistent with the
amounts provided in exhibits "EEE" and "FFF"; Thomas is entitled to repayment
for his contribution to Marital Partnership Property.
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27. [Thomas]'s sister – Patty Mazingo – testified
twice in [Agnes]'s case-in-chief. To the extent that her
testimony was relevant and was adverse to [Thomas], Mrs.
Mazingo's testimony was not credible. When she testified on
March 16, 2017, she at first denied that she harbored any
bad feeling toward [Thomas]. But only moments later, she
caught herself mid-sentence as she was blurting-out [sic]
that she was having problems with [Thomas]. She admitted
that she had a property dispute with [Thomas] concerning an
easement on his Kekaulike property.
. . . .
29. [Thomas]'s two cemetery plots are located at a
family grave. Both plots were purchased with money from
[Thomas]'s father's inheritance and, as such, are Marital
Separate Property. [Thomas]'s two Lloyd Sexton paintings
and one Peggy Hopper print (inherited by [Thomas]) are
Marital Separate Property. [Agnes] did not expend any work
or money to maintain or enhance these assets.
. . . .
34. In [Thomas]'s exhibit "kkk," the items marked
"Inherited" are Category 3 property, the items marked "pre-
owned" are Category 1 property and the items marked "gifted"
are Category 3 property and, as such, are [Thomas]'s Marital
Separate Property. The remainder of the items pictured in
[Thomas]'s Exhibit "kkk" (e.g. the items purchased when the
parties visited Russia) are Marital Partnership Property –
Category 5 and are subject to a "pick-auction" as set forth
herein. These Category 5 items as well as all other
personal items possessed by either party – except those
disposed of in the Property Division Chart, attached to
Exhibit "A" as Attachment "1" [–] will be distributed in an
equal manner in a "pick auction" as described herein. The
most equitable manner to distribute these Category 5
personal property items is to have a "pick auction," where
the parties have a coin toss. The winner of the coin toss
gets to pick whatever items he or she wants. The other
party gets to pick two items. After that, the parties
alternate, each taking a turn to pick one item until all
items have been "picked." Said "pick[-]auction" shall occur
in a neutral location as agreed upon by the parties.
1. Finding of fact no. 27
Agnes first argues, without citing authority, that
finding of fact no. 27 is clearly erroneous because there was "no
testimony or evidence to substantiate any finding that [Mazingo]
was not credible." This finding of fact, however, was
specifically based upon the family court's evaluation of "the
credibility of [Mazingo's] testimony" in considering her
admission that "she was having problems with [Thomas]" and her
admission that "she had a property dispute with [Thomas]
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concerning an easement on his Kekaulike property." "[I]t is not
the province of the appellate court to reassess the credibility
of witnesses[,]" In re Doe, 95 Hawai#i 183, 197, 20 P.3d 616, 630
(2001) (citation omitted), such as Mazingo; "this is the province
of the family court as the trier of fact[,]" Fisher, 111 Hawai#i
at 46, 137 P.3d at 360 (citation omitted).
2. Finding of fact no. 29
Agnes asserts that "[a] review of the trial testimony
does not provide sufficient evidence that [the two cemetery plots
were] purchased with inheritance money, and there was no mention
throughout the trial." In response, Thomas states that he
"testified that he purchased two cemetery plots – one before the
marriage and the other . . . either before the marriage or
shortly thereafter from his father's inheritance." He cites to
the April 11, 2017 transcript (which is incorrectly dated May 11,
2017), which provides:
Q. Okay. You have two cemetery plots. Where did
they come from?
A. I -- I believe I bought one before we were
married and I got one afterwards.
Q. You believe. . . . [H]ow sure are you that you
purchased it prior to the marriage?
A. Maybe 80 percent sure.
Q. Okay. And, ah, going -- when -- when did you
purchase it, if you know?
A. Say again.
Q. When did you purchase that other one, if you
know?
A. Ah, soon after we got to Maui, got back to Maui.
Ah, around 1985, '86.
Q. Okay. And where did you get the money to buy
it?
A. From my dad's, ah, inheritance.
Contrary to Agnes's assertion, Thomas's testimony constitutes
substantial evidence to support the challenged portion of finding
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of fact no. 29 and the finding is not clearly erroneous. See
Fisher, 111 Hawai#i at 46, 137 P.3d at 360.
3. Finding of fact no. 34
As stated, Agnes contends that the following portion of
finding of fact no. 34 is clearly erroneous:
34. In [Thomas]'s exhibit "kkk," the items marked
"Inherited" are Category 3 property, the items marked
"pre-owned" are Category 1 property and the items marked
"gifted" are Category 3 property and, as such, are
[Thomas]'s Marital Separate Property.
She asserts that the family court's decision to include the "pre-
owned" and "gifted" items as Marital Separate Property conflicts
with its April 27, 2017 preliminary ruling, which, Agnes
interprets to require "that items [Thomas] claimed to be
inherited would stay [Thomas]'s as category 1 property, and that
everything else was category 5 property to be split at a 'pick'
auction." She also asserts that the family court's decision to
include the "pre-owned" and "gifted" items as Marital Separate
Property is not supported by substantial evidence.
The issue on appeal is not whether the challenged
portion of finding of fact no. 34 conflicts with the family
court's April 27, 2017 preliminary ruling; as noted in Fisher,
the issue on appeal is whether there is "substantial evidence to
support the finding[.]" Fisher, 111 Hawai#i at 46, 137 P.3d at
360. Agnes contends that there is no substantial evidence to
support the family court's categorization of the "pre-owned" and
"gifted" items as Marital Separate Property. Thomas, in
response, argues that exhibit "KKK" supports the family court's
characterization of "pre-owned" and "gifted" items as Marital
Separate Property. Thomas's exhibit "KKK" does not constitute
substantial evidence to support the family court's
characterization of the "pre-owned" and "gifted" items as Martial
Separate Property.
The record reveals that the family court initially
sustained Agnes's objection to the admission of exhibit "KKK"
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into evidence. However, following Mazingo's testimony regarding
the distribution of their mother's personal items, Thomas's
counsel renewed his request to admit exhibit "KKK" into evidence:
[Thomas's Counsel]: Your Honor, one further thing.
I -- would the Court be inclined to accept, ah, Exhibit KKK
into evidence, given [Mazingo's] testimony.
[Agnes's Counsel]: Your Honor, I didn't offer it.
THE COURT: No, he is offering it now. Any objection
to the Court receiving KKK into evidence?
[Agnes's Counsel]: Yes, your Honor. I mean it depends
on what -- what's the purpose. When you receive something
into evidence, there's a -- there's a reason for it.
Is he -- is he offering it that to -- to show that his
client is not entitled to anything in the inheritance? Then
I'll accept it as, you know, it'll be -- I -- I would have
no objection to it being received into evidence.
[Thomas's Counsel]: Well, your Honor, ah, the Court
will decide whether it was, um -- whether it was a 50/50
between Agnes and Thomas or whether it was just given to
Thomas.
THE COURT: So this is for the items that are marked as
inherited?
[Thomas's Counsel]: Yes.
THE COURT: And as far as those purchased with
inheritance money, not?
[Thomas's Counsel]: I guess not.
THE COURT: Okay. So over objection the Court will
receive KKK for the purpose only of those items marked as
inherited and what the Court does with that is to be seen.
(emphasis added). The transcript confirms that the family court
admitted exhibit "KKK" into evidence "only [for] those items
marked as inherited[.]" Contrary to Thomas's argument, the
family court did not admit exhibit "KKK" for the items marked
"pre-owned" or "gifted[.]" There was no substantial evidence to
support the portion of finding of fact no. 34 in which the family
court found "the items marked 'pre-owned' are Category 1 property
and the items marked 'gifted' are Category 3 property and, as
such, are [Thomas]'s Marital Separate Property." This portion of
finding of fact no. 34 is clearly erroneous because there is no
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substantial evidence upon which the family court based this
determination.
In addition, the family court's conclusions of law are
"freely reviewable for their correctness." Hamilton, 138 Hawai#i
at 197, 378 P.3d at 913 (citation omitted). We vacate the
portions of conclusion of law no. 12 and paragraph 8 of the
property division order which state:
In [Thomas]'s exhibit "kkk" (that was admitted into
evidence) the items marked "Inherited" are Category 3
property, the items marked "pre-owned" are Category 1
property and the items marked "gifted" are Category 3
property and, as such, are [Thomas]'s Marital Separate
Property.
This portion of the conclusion and property division order are
not supported by the family court's findings and do not reflect
an application of the correct rule of law. We therefore vacate
in part finding of fact no. 34, conclusion of law no. 12, and
paragraph 8 of the property division order; and remand to the
family court for further proceedings.
CONCLUSION
For the foregoing reasons, we vacate the Divorce
Judgment (including the property division chart) in part and
remand to the family court for further proceedings not
inconsistent with this memorandum opinion.
DATED: Honolulu, Hawai#i, July 29, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Kyle B. Coffman, Presiding Judge
for Defendant-Appellant/
Cross-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
Matthew S. Kohm,
for Plaintiff-Appellee/ /s/ Karen T. Nakasone
Cross-Appellant. Associate Judge
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