Crofford v. Adachi ( 2020 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-DEC-2020
08:40 AM
Dkt. 143 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JOE CROFFORD, Plaintiff-Appellee/Cross-Appellant,
v.
KRISTI ADACHI, Defendant-Appellant/Cross-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 13-1-7625)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Hiraoka, and Nakasone, JJ.)
Defendant-Appellant/Cross-Appellee Kristi Adachi
(Adachi) appeals from the "Decree Granting Absolute Divorce and
Awarding Child Custody" (Divorce Decree), entered on April 26,
2016, by the Family Court of the First Circuit (family court).1
On appeal, Adachi contends that the family court erred in its
Divorce Decree by refusing to enforce a "Marital Agreement" and a
"Marital Agreement Addendum" (Addendum) executed between Adachi
and Plaintiff-Appellee/Cross-Appellant Joe Crofford (Crofford)
during their marriage and prior to the divorce proceedings. The
Marital Agreement and Addendum address the division of property
between the parties in the event of divorce.
On cross-appeal, Crofford contends that the family
court abused its discretion in entering its "Order and Judgment
Regarding Defendant's Expenses Incurred responding to Plaintiff's
1
The Honorable Darryl Y.C. Choy presided over the Divorce Decree.
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Motion to Reconsider Order of April 15, 2015, filed on April 21,
2015 and Motion for Allowance of Interlocutory Appeal filed on
April 21, 2015" (Order Assessing Attorney's Fees), which ordered
Crofford to pay $3,560.21 in legal expenses incurred by Adachi in
responding to two motions filed by Crofford. Crofford also
apparently challenges a number of the family court's findings of
fact and conclusions of law (FOFs/COLs) set out in the Divorce
Decree. However, as further discussed below, we disregard
Crofford's points of error pertaining to the family court's
FOFs/COLs because he fails to provide discernable argument
addressing these contentions in his opening brief. Thus, we only
address Crofford's point of error pertaining to the Order
Assessing Attorney's fees.
For the reasons discussed below, we vacate the family
court's Divorce Decree with respect to the property division
between the parties. We affirm the Order Assessing Attorney's
Fees against Crofford.
I. Background
Adachi and Crofford were married on July 24, 1999. The
parties did not execute a pre-nuptial agreement prior to their
marriage. Later in their marriage, Adachi indicated to Crofford
that she wanted to file for divorce after discovering that he had
engaged in extramarital affairs during their relationship.
Crofford, however, pleaded with Adachi not to leave the marriage
and instead proposed that the parties sign a post-nuptial
agreement. Adachi agreed, and in March 2013, she consulted with
her legal counsel about drafting a Marital Agreement.
Adachi's counsel prepared at least two drafts of a
Marital Agreement. Both drafts addressed, inter alia, the
division and distribution of certain property in the event of a
divorce, and included two schedules which listed the separately
owned property and debts of Adachi or her revocable trust, and
the separately owned property and debts of Crofford. Crofford
apparently refused to sign the first proposed version of the
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Marital Agreement and did not make any edits or proposed
revisions to it.
A second version of the Marital Agreement was presented
to Crofford that, inter alia, set forth their separate property,
upon which he made hand-written edits to portions of the
agreement and the attached schedules. This version of the
Marital Agreement was initialed by Adachi, but neither party
executed the document. Instead, the parties apparently drafted
an Addendum to address issues that were lined or struck out by
Crofford in the second version of the Marital Agreement. The
Addendum was primarily drafted by Crofford, but both parties had
an opportunity to review and revise the document before agreeing
to it.
In the Addendum, Crofford made statements about his
failures in the marriage, and his commitment to making the
marriage work. The Addendum further states:
I ask my wife for forgiveness for all my sins and will
uphold my verbal, and now written promise to her regarding
agreeing to leave this marriage with honor and dignity
without monetary compensation if I an [sic] unable the [sic]
change my sinful ways. Specifically, have another affair;
either emotional or consummated, or physically harm Kristi.
The Addendum then addresses the allocation of certain property in
the event that Crofford was either unfaithful or physically
abusive to Adachi.2 In its conclusion, the Addendum states:
2
The portion of the Addendum which addresses specific property
provides, in relevant part:
The Sunreef 62 foot Catamaran Yacht with the Coast
Registered name Spartan Queen will remain the property [of]
Joe Crofford and will be put in Joe Crofford's trust with
Kristi Adachi named as the beneficiary in the event of Joe
Crofford's Death and will remain the property of the trust
in the event of a divorce with exception in the case of
infidelity and physical harm by Joe Crofford. At which time
the Ownership of the Yacht Spartan Queen will be transferred
to Kristi Adachi.
The Penthouse 4501 located at One Waterfront Towers 415 South St.
will remain in Kristi Adachi's Trust with Joe Crofford named as
the Beneficiary.
In the event of divorce with the exception of infidelity or
(continued...)
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"[t]his is my Addendum to the Marital agreement to be upheld and
considered a part of the legal document." Adachi and Crofford
executed the Addendum in the presence of a notary public on June
24, 2013, and June 25, 2013, respectively.
In September 2013, the parties separated after Crofford
exhibited aggressive behavior towards Adachi, dragging her down
the stairs of their apartment. Crofford thereafter left the
residence and began staying on the catamaran yacht named Spartan
Queen, which was listed in the Addendum, Schedule B as Crofford's
separate property.
On October 7, 2013, Crofford filed a complaint for
divorce against Adachi alleging that their marriage was
irretrievably broken. On September 4, 2014, Adachi filed a
motion for partial summary judgment seeking to enforce the
Marital Agreement and Addendum that she asserted were voluntarily
entered into by both parties and controlled the division and
distribution of the couple's property. On October 29, 2014, the
2
(...continued)
physical harm by Joe Crofford, Joe Crofford will maintain
ownership of the Spartan Queen, which has been effectively
paid in full by Kristi. All monies invested in the yacht up
until November 2012 were contributions directly from money
earned through Kristi's business: Hawaiian Island ENT
Specialists (see attachment) and will be considered monetary
compensation for the years invested in this Marriage. I will
waive any separation of property rights; except as described
below and alimony.
All future income earned by Kristi with regards to her private
business; including Hawaiian Island ENT Specialists, Scottrade
account and any other future personal business ventures will
remain hers. All income earned by Joe through his LED business,
Hawaiian Island Luxury Yacht Charters, Scottrade account and any
other future business ventures will be his.
We will also both have to agree on all future financial
decisions to secure our financial future together. I accept
her proposal to place the proceeds from the sale of
apartment 425 South Street in a Trust under both of our
names. This money will represent the beginning of "Chapter
II" of our relationship. In the event of a divorce, any
monies gained or properties invested in will be split
equally between the two of us; with the exception of
infidelity and physical harm.
(Emphases added).
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family court denied Adachi's motion for partial summary judgment,
without prejudice, stating in the written order that "because
factual issues need to be determined to rule on this motion, the
Court finds that said motion is not properly set for summary
judgment." The case eventually proceeded to trial on January 11,
12, 19, and 26, 2016, where the parties continued to contest
whether the Marital Agreement and Addendum should be enforced.
On April 26, 2016, the family court entered its Divorce
Decree, in which it did not enforce the Marital Agreement and
Addendum in dividing the marital property. On August 1, 2016,
the family court entered its FOFs/COLs and made, inter alia,
numerous findings and conclusions pertaining to the Marital
Agreement and Addendum. The family court concluded that "the
Marital Agreement was agreed to with Husband's notations lined
out and subsequently [being] referred to in a signed addendum."
The family court also found that Adachi had never coerced or
unduly influenced Crofford to sign the Addendum, nor was he under
duress when he signed the document. The family court further
concluded that Crofford violated the infidelity conditions in the
Addendum.
However, the family court ultimately rejected the
Marital Agreement (and apparently the Addendum), concluding as
follows:
8. The Court rejects the Marital Agreement, however,
because the essence of the Marital Agreement violates the
statutory policy and principles of no fault divorce and
equitable distribution.
9. H.R.S. §580-47 gives to the family court the
discretion to divide marital property according to what is
just and equitable. When the directive to the court is to
do what is just and equitable in the circumstances, each
case must be decided upon its own facts and circumstances.
Gussin v. Gussin, 73 Haw. 470 (1992).
The family court then divided the marital property as set forth
in its Divorce Decree and the FOFs/COLs, based on what the family
court determined would be just and equitable, and without
enforcing the Marital Agreement and Addendum.
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II. Standards of Review
A. The Family Court's 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". Kakinami v.
Kakinami, 127 Hawai#i 126, 136, 276 P.3d 695, 705 (2012)
(citations omitted).
B. Award of Attorney's Fees
The family court's award of attorney's fees and costs
is reviewed for abuse of discretion. Hamilton v. Hamilton, 138
Hawai#i 185, 210, 378 P.3d 901, 926 (2016). The Hawai#i Supreme
Court has explained that "an award of attorney's fees is in the
sound discretion of the trial court, limited only by the standard
that it be fair and reasonable." Id. at 209, 378 P.3d at 925
(quoting Farias v. Farias, 58 Haw. 227, 233, 556 P.2d 1104, 1109
(1977)).
C. The Family Court's Findings of Fact and Conclusions of Law
The family court's findings of fact are reviewed under the
clearly erroneous standard. 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.
The family court's conclusions of law are reviewed de novo.
Balogh v. Balogh, 134 Hawai#i 29, 38, 332 P.3d 631, 640 (2014)
(citations and internal quotation marks omitted).
III. Discussion
A. Adachi's Appeal
On appeal, Adachi asserts that the family court erred
in refusing to enforce the Marital Agreement and Addendum
because: (1) the court was statutorily required to enforce the
Marital Agreement and the Addendum; (2) the Marital Agreement and
Addendum were valid contracts, and not otherwise unenforceable;
(3) the family court was not authorized to refuse to enforce the
Marital Agreement and Addendum and instead undertake its own
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"just and equitable" division of the marital estate; (4) Hawaii's
no-fault divorce standards do not preclude enforcement of the
Marital Agreement and the Addendum; and (5) Crofford voluntarily
entered into the post-marital contract and it was not
unconscionable.
1. HRS § 572-22 and Hawai#i Case Law
When the parties signed the Addendum, in 2013, HRS
§ 572-22(2013) provided, in relevant part:
§572-22 Contracts. A married person may make contracts,
oral and written, sealed and unsealed, with her or his
spouse, or any other person, in the same manner as if she or
he were sole.
. . .
All contracts made between spouses, whenever made, whether
before or after June 6, 1987, and not otherwise invalid
because of any other law, shall be valid. [3]
(Footnote added).
The Hawai#i Supreme Court has recognized the right of
married persons to enter enforceable contracts related to marital
3
In 2019, HRS § 572-22 was amended to make apparently non-substantive
and reformatting amendments, and now reads in whole:
(a) A married person may make contracts, oral and written,
sealed and unsealed, with the married person's spouse, or
any other person, in the same manner as if the married
person were sole.
(b) An agreement between spouses providing for periodic
payments for the support and maintenance of one spouse by
the other, or for the support, maintenance, and education of
children of the parties, when the agreement is made in
contemplation of divorce or judicial separation, is valid;
provided that:
(1) The agreement shall be subject to approval by the
court in any subsequent proceeding for divorce or judicial
separation; and
(2) Future payments under an approved agreement shall
nevertheless be subject to increase, decrease, or
termination from time to time upon application and a showing
of circumstances justifying a modification thereof.
(c) All contracts made between spouses, whenever made,
whether before or after June 6, 1987, and not otherwise
invalid because of any other law, shall be valid.
See 2019 Haw. Sess. Laws Act 111, §40 at 420-21.
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property rights, stating:
Spouses may contract regarding marital property rights
in premarital, postmarital, or settlement agreements.
Premarital or prenuptial agreements are entered into
before marriage. See, e.g., Prell v. Silverstein, 114
Hawai#i 286, 287–88, 162 P.3d 2, 3–4 (App.2007).
Postmarital or postnuptial agreements are entered into
after marriage. See, e.g., Chen v. Hoeflinger, 127
Hawai#i 346, 352, 279 P.3d 11, 17 (App.2012).
Settlement agreements are entered into after
separation or in anticipation of immediate separation.
See, e.g., Bienvenue v. Bienvenue, 102 Hawai #i 59, 61,
72 P.3d 531, 533 (App.2003).
Balogh, 134 Hawai#i at 39 n.4, 332 P.3d at 641 n.4. The supreme
court has further expressly addressed postmarital agreements and
succinctly held:
the family court must enforce all valid and enforceable
postmarital and separation agreements. A postmarital or
separation agreement is enforceable if the agreement is not
unconscionable and has been voluntarily entered into by the
parties with the knowledge of the financial situation of the
other spouse.
Id. at 40, 332 P.3d at 642 (emphasis added) (citations, brackets,
and quotation marks omitted).
Although the family court has certain authority under
HRS § 580-47(a) (2018) to "make any further orders as shall
appear just and equitable" in dividing and distributing the
estate of the parties, such authority does not take precedence
over the parties' right to enforce their valid and enforceable
marital agreements. See Epp v. Epp, 80 Hawai#i 79, 84, 905 P.2d
54, 59 (App. 1995). Absent a finding that the Marital Agreement
and Addendum were either invalid or unenforceable, the family
court could not invoke its authority under HRS § 580-47(a) to
divide Adachi and Crofford's marital estate contrary to their
agreements. See id.; see also Balogh, 134 Hawai#i at 40, 332
P.3d at 642.
Here, the family court rejected the Marital Agreement
and Addendum on the basis that "the essence" of the agreement
"violate[d] the statutory policy and principles of no fault
divorce and equitable distribution." The family court did not
expressly elaborate as to what part of the Marital Agreement or
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Addendum it determined had violated such policy or principles,
nor did it cite any legal authority for its ruling. It appears,
based on the record, the family court concluded that the terms of
the Addendum conditioning distribution of certain marital
property on Crofford's fidelity in the marriage violates Hawaii's
public policy favoring no-fault divorce. We hold that voiding
the Marital Agreement and Addendum on this basis was error.
As previously stated, under HRS § 572-22, "[a]ll
contracts made between spouses, whenever made . . . and not
otherwise invalid because of any other law, shall be valid."
Although Hawai#i has implemented a no-fault divorce scheme, there
is no law that invalidates a marital agreement because it
provides for the distribution of marital property based on the
conduct of the parties. Rather, given the explicit provisions of
HRS § 572-22, and as recognized by the supreme court, spouses may
contract regarding marital property rights in premarital,
postmarital, or settlement agreements, and the family court must
enforce all valid and enforceable agreements with regard to
marital property division. Balogh, 134 Hawai#i at 39 n.4, 40,
332 P.3d at 641 n.4, 642.
We have held that one spouse's personal conduct or
misconduct towards the other spouse is irrelevant to a family
court's division of marital property under HRS § 580-47. See
Markham v. Markham, 80 Hawai#i 274, 280, 909 P.2d 602, 608 (App.
1996); Horst v. Horst, 1 Haw. App. 617, 624, 623 P.2d 1265, 1270-
71 (1981) (holding "[f]ault pertaining to personal conduct of the
spouses toward each other has no bearing on the question as to
which spouse has a better claim to the property sought to be
divided in a divorce proceeding" (citation omitted)). However,
those cases are distinguishable because they did not reject a
marital agreement freely entered into by the parties.
2. Case Law From Other Jurisdictions
Crofford asserts that the terms of the Addendum that
condition distribution of certain marital property on Crofford's
fidelity in the marriage violates Hawaii's public policy favoring
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no-fault divorce. Crofford cites to cases from other
jurisdictions that have held similar agreements conditioned on a
spouse's fidelity unenforceable or void as a matter of public
policy under no-fault divorce laws. See In re Marriage of
Cooper, 769 N.W.2d 582, 585-586 (Iowa 2009); Diosdado v.
Diosdado, 97 Cal. App. 4th 470, 473-75 (Cal. Ct. App. 2002).
However, it does not appear that those jurisdictions have
statutes similar to HRS § 572-22.
In the Iowa case, In re Marriage of Cooper, the parties
to a divorce proceeding entered into a reconciliation agreement
after the wife had discovered her husband was having an affair.
The reconciliation agreement required husband to make specified
payments and provide for certain financial arrangements "[i]n the
event of a permanent breakdown in the marital relationship." 769
N.W.2d at 584. In ruling that the reconciliation agreement was
void, the Iowa Supreme Court began its discussion by noting that
"[t]here is no provision of Iowa statutory law that expressly
authorizes or prohibits enforcement of reconciliation agreements
between spouses." Id. at 585. The court thus relied on its case
law in the area. In re Marriage of Cooper is thus
distinguishable.
In Diosdado, after the husband had an affair, the
parties entered an agreement providing that if either were not
faithful and either party chose to terminate the marriage,
certain damages would be owed by the unfaithful party, including
"liquidated damages" of $50,000. 97 Cal. App. 4th at 472-73. The
court in Diosdado upheld the lower court's ruling that the
agreement was contrary to public policy under California's no-
fault divorce laws. 97 Cal. App. 4th at 473. However, the court
relied on California statutory provisions as follows:
To be enforceable, a contract must have a "lawful object."
(Civ. Code, § 1550, subd. 3.) A contract is unlawful if it
is contrary to an express provision of law, contrary to the
policy of express law, or otherwise contrary to good morals.
(Civ. Code, § 1667.) Here, where the agreement attempts to
impose a penalty on one of the parties as a result of that
party's "fault" during the marriage, it is contrary to the
public policy underlying the no-fault provisions for
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dissolution of marriage. (See Fam. Code, §§ 2310, 2335.) For
that reason, the agreement is unenforceable.
Id. at 474. Moreover, the court cited California precedent that
recognized that:
marriage itself is a highly regulated institution of
undisputed social value, and there are many limitations on
the ability of persons to contract with respect to it, or to
vary its statutory terms, that have nothing to do with
maximizing the satisfaction of the parties or carrying out
their intent.... These limitations demonstrate further that
freedom of contract with respect to marital arrangements is
tempered with statutory requirements and case law expressing
social policy with respect to marriage.
Id. at 475 (citation and quotation marks omitted). In short,
there does not appear to be any California statute similar to HRS
§ 572-22.
We express no opinion whether provisions similar to
those in In re Marriage of Cooper or Diosdado would be valid in
Hawai#i. Rather, we simply point out that those cases are not
persuasive for the proposition that the Marital Agreement and
Addendum are invalid in this case for being contrary to public
policy under Hawaii's no-fault divorce laws. Instead, we must
apply HRS § 572-22 and the applicable Hawai#i case law.
3. The Marital Agreement and Addendum are Valid and
Enforceable
In light of our holding that the family court erred in
rejecting the Marital Agreement and Addendum for the court's
stated reasons, we next address whether the agreements were
enforceable. As previously stated, a family court "must enforce
all valid and enforceable postmarital and separation agreements."
Balogh, 134 Hawai#i at 40, 332 P.3d at 642. Here, the record
supports the family court's finding that Crofford and Adachi
signed the Addendum, as well as the family court's conclusion
that the parties entered into the Marital Agreement based on
Crofford's notations on the Marital Agreement and the Marital
Agreement being subsequently referred to in the signed Addendum.
"A postmarital or separation agreement is enforceable
if the agreement is not unconscionable and has been voluntarily
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entered into by the parties with the knowledge of the financial
situation of the [other] spouse." Id. (citations and internal
quotation marks omitted) (emphasis and brackets in original). In
determining whether a marital agreement is unconscionable, the
Hawai#i Supreme Court has explained:
Unconscionability encompasses two principles: one-sidedness
and unfair surprise. One-sidedness (i.e., substantive
unconscionability) means that the agreement "leaves a
post-divorce economic situation that is unjustly
disproportionate." Unfair surprise (i.e., procedural
unconscionability) means that "one party did not have full
and adequate knowledge of the other party's financial
condition when the marital agreement was executed." A
contract that is merely "inequitable" is not unenforceable.
The unconscionability of an agreement regarding the division
of property is evaluated at the time the agreement was
executed.
Id. at 41, 332 P.3d at 643 (citations, brackets, and footnote
omitted). With regard to whether an agreement is entered into
voluntarily, the supreme court stated that "[i]nvoluntariness is
shown by evidence of duress, coercion, undue influence, or any
other circumstance indicating lack of free will or
voluntariness." Id. at 43, 332 P.3d at 645 (citation and
internal quotation marks omitted).
Based on the family court's FOFs/COLs, it appears the
family court determined that Crofford and Adachi entered into a
valid marital agreement, and that Crofford had violated the
infidelity conditions in the Addendum.4 The family court also
4
In his answering brief, Crofford contends that the family court erred
in considering the October 7, 2013 filing date of the complaint for divorce,
rather than the September 8, 2013 date of separation, in determining the cut
off date for applicability of the Marital Agreement and Addendum (in other
words, the applicable dates for determining his infidelity). However,
Crofford asserts his "points of error" and arguments pertaining to the family
court's relevant findings and conclusions on the Marital Agreement and
Addendum in his answering brief. Crofford apparently asserts these errors in
his cross-appeal, but he explicitly declined to provide further argument in
his opening brief. Instead, Crofford elected to address these alleged errors
in his answering brief in response to Adachi's appeal. Hawai #i Rules of
Appellate Procedure (HRAP) Rule 28(c) does not permit a party to assert its
own points of error through his answering brief.
Also contra to HRAP Rule 28(b)(4), Crofford fails to state "the alleged
error committed by the court," "where in the record the alleged error
occurred," and "where in the record the alleged error was objected to or the
manner in which the alleged error was brought to the attention of the court or
agency."
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found that Crofford was neither under duress, nor was he coerced
or unduly influenced by Adachi to sign the Addendum, thus
indicating that the agreements were entered into voluntarily.
The family court did not address whether the Marital
Agreement and Addendum were unconscionable, i.e., whether there
was one-sidedness and/or unfair surprise. However, similar to
Balogh, we reach the issue because unconscionability is a
question of law reviewable de novo. 134 Hawai#i at 42-43, 332
P.3d at 644-45.
The Hawai#i Supreme Court has explained that:
Generally, a determination of unconscionability ... requires
a showing that the contract was both procedurally and
substantively unconscionable when made, but there may be
exceptional cases where a provision of the contract is so
outrageous as to warrant holding it unenforceable on the
ground of substantive unconscionability alone.
Id. at 41, 332 P.3d at 643 (citations, internal quotation marks,
and brackets omitted). However, "although under Hawai#i law two
basic principles are encompassed within the concept of
unconscionability, one-sidedness and unfair surprise, in certain
circumstances one-sidedness alone can render an agreement
unconscionable. Id. at 41-42, 332 P.3d at 643-44 (citing Lewis
v. Lewis, 69 Haw. 497, 502, 748 P.2d 1362, 1366 (1988) and Kuroda
v. Kuroda, 87 Hawai#i 419, 428, 958 P.2d 541, 550 (App. 1998)
(quotation marks omitted)).
The supreme court has rejected the argument that a
marital agreement should be invalidated solely on the basis that
it is "somewhat one-sided." Id. at 42, 332 P.3d at 644. The
supreme court further explained:
parties may have legitimate reasons for entering into a
somewhat one-sided postmarital agreement, and may do so
knowingly and voluntarily. Permitting the family court to
invalidate such agreements without requiring a showing of
extraordinary one-sidedness would frustrate the purpose of
HRS § 572–22, which permits spouses to enter into
enforceable contracts with each other.
Id.
We further note that "[t]he unconscionability of an
agreement regarding the division of property is evaluated at the
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time the agreement was executed." Id. at 41, 332 P.3d at 643
(citation omitted).
In his answering brief, Crofford contends that the
postmarital agreement is unconscionable where Adachi would be
awarded all joint assets and his only separately owned asset that
had any significant value, his yacht, the Spartan Queen.5 The
most significant item of value affected by the Marital Agreement
and Addendum is the catamaran yacht. However, the Marital
Agreement and Addendum only contemplated an inequitable division
of property if Crofford had another affair or physically harmed
Adachi. As the family court found, the circumstances leading to
the agreements were that Crofford had engaged in extramarital
affairs during their marriage, Adachi had discovered an affair
and threatened to leave Crofford and file for divorce. Crofford
pleaded with Adachi not to leave the marriage, proposed that the
parties sign a post-nuptial agreement. Adachi consulted an
attorney who drafted at least two drafts of a marital agreement.
Subsequently, the Addendum was drafted, primarily by Crofford,
which addressed the issues that were lined or struck out by
Crofford in the second version of the Marital Agreement. It is
unlikely that the Marital Agreement and Addendum would have been
construed by the parties as demonstrative of Crofford's
commitment to the marriage if it had not contained the
contingencies of fault and the resulting inequitable distribution
of property. See Balogh, 134 Hawai#i at 43, 332 P.3d at 645.
We further consider the financial history between the
parties, which provides context at the time they entered the
Marital Agreement and Addendum. The family court found that
Crofford came into the marriage owing approximately $217,100 in
5
The schedules attached to the Marital Agreement, before handwritten
changes were made, listed Adachi's separately owned property with a total of
$3,929,548.55, and Crofford's separately owned property with a total of
$1,530,000 (including the catamaran yacht valued at $1,500,000). The
schedules before changes also listed joint assets totaling $53,350 and joint
debt of $21,000. The handwritten changes made by Crofford include different
values for certain assets, as well as notations indicating he owned half of
their gold and silver.
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child support for two children from prior marriages, and this
debt was paid with marital funds primarily earned by Adachi. The
family court also found that Adachi's premarital contributions
were $3,050,000, while Crofford made zero premarital
contributions.
In terms of their post-divorce economic situation, the
family court found that both Adachi and Crofford's businesses had
no value. The family court found that Adachi had to close her
practice as a surgeon after a significant medical procedure, and
thus her business no longer has any value.
According to the Marital Agreement and attached
schedules, except as otherwise provided in the agreement, the
parties would retain their separately held property. With regard
to jointly held property, Crofford would receive the jointly
titled 2012 Acura MDX ($38,250), while Adachi would receive the
jointly titled American Savings Bank checking account ($6,100)
and the jointly titled Australian Savings Bank checking account
($11,900) in the event of a divorce. The handwritten changes to
the schedules attached to the Martial Agreement show that
Crofford claimed half of their gold and silver, originally listed
as part of Adachi's separately owned assets worth $250,000 (the
family court later valued the gold and silver at a total of
$174,000). Crofford also made handwritten changes to his own
attached schedule and added, "7. Gold & Silver ½ of its value."
Thus, under the Marital Agreement and Addendum, Crofford would at
minimum receive the Acura MDX and half of the parties' gold and
silver.
Under the Addendum, in the event of divorce with the
exception of infidelity or physical harm, Crofford would maintain
ownership of the yacht which the Addendum expressly acknowledges
"has been effectively paid in full by [Adachi]." The Addendum
also states that, "[a]ll monies invested in the yacht up until
November 2012 were contributions directly from money earned
through [Adachi's] business...and will be considered monetary
compensation for the years invested in this Marriage." Crofford
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also waived any separation of property rights except alimony and
the proceeds from the sale of apartment 425 South Street, which
was to be split equally between the parties, absent infidelity
and physical harm.
Under the Marital Agreement and Addendum, the property
division between the parties would change depending on whether
Crofford had a further affair or physically harmed Adachi.
Absent those conditions, he would receive much more in the event
of a divorce. Crofford primarily drafted the Addendum, which
expressly noted "[t]his is my Addendum to the Marital agreement
to be upheld and considered a part of the legal document."
Given Adachi's contributions to the marriage, all of
the circumstances at the time the Marital Agreement and Addendum
were entered into, including the reasons for drafting the
agreement and the provisions therein, the one-sided distribution
of property contemplated by the postmarital agreement in the
event Crofford had another affair or physically harmed Adachi is
not "so outrageously oppressive as to be unconscionable in the
absence of unfair surprise." Balogh, 134 Hawai#i at 42-43, 332
P.3d at 644-45 (holding agreement providing a 75%/25% division of
marital property in favor of wife as well as $100,000 payment in
lieu of alimony to wife was not unconscionable); cf., Kuroda, 87
Hawai#i at 428, 958, P.2d at 550 (holding postnuptial agreement
is unconscionable without unfair surprise where it awards wife
all personal and real property held in common, implicitly allows
wife to keep her own personal property including her accounts,
requires husband to pay wife one-half of his "net income from
every source including retirement fund and royalties after
deduction of federal, state, income, and withholding taxes" until
the death of either spouse, and requires husband to pay all
attorney's fees and costs of Court in connection with all divorce
and separation proceedings).
Finally, the Marital Agreement and Addendum were not
entered into with unfair surprise, i.e. procedurally
unconscionable. The family court found that Crofford refused to
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sign the first version of the proposed Marital Agreement, which
would have divided the assets such that Crofford would receive
$200,000 if the parties divorced. The family court also found
Crofford struck out portions of the Marital Agreement, which
based on our review of the agreement included striking provisions
which would have awarded the catamaran yacht to Adachi in the
event of a divorce. The family court further found, however,
that Crofford then primarily drafted the Addendum which addressed
all of the issues he lined or struck out in the Marital
Agreement, and that both parties had an opportunity to review and
revise the Addendum before agreeing to it. The Addendum, which
Crofford primarily drafted, provides that Crofford would retain
ownership of the catamaran yacht in the event of divorce "with
exception in the case of infidelity and physical harm by Joe
Crofford. At which time the Ownership of the Yacht Spartan Queen
will be transferred to Kristi Adachi." Additionally, there is no
evidence that Crofford did not have full knowledge or the chance
to obtain full knowledge of Adachi's financial circumstances.
We therefore conclude, based on our de novo review,
that the Marital Agreement and Addendum are not unconscionable.
B. Crofford's Cross-Appeal
1. The family court did not abuse its discretion in
entering its Order Assessing Attorney's fees
We first address Crofford's point of error regarding
the family court's Order Assessing Attorney's Fees. The Order
Assessing Attorney's Fees awarded Adachi $3,560.21 in reasonable
legal expenses incurred in responding to Crofford's Motion for
Reconsideration and Motion for Interlocutory Appeal. Crofford
asserts that the family court had no authority to award Adachi
attorney's fees and that the order was inconsistent with the
subsequent Divorce Decree entered on April 26, 2016, which
specifically ordered that each party be responsible for their own
attorney's fees and costs. We disagree.
Crofford's Motion for Reconsideration and Motion for
Interlocutory Appeal both consisted of only a declaration of
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counsel that merely asserted factual allegations as to why the
court should grant each motion.6 Neither motions contained any
legal authority or argument explaining why Crofford was entitled
to the relief he sought, nor addressed the legal standards
required for his requested relief.
Adachi's request for attorney's fees was based on her
assertion that Crofford's Motion for Reconsideration and Motion
for Interlocutory Appeal had no legitimate legal basis and were
not filed in accordance with the Hawai#i Family Court Rules.
Crofford argues the family court erred in finding that
his motions were non-hearing motions. However, based on our
review of the record, it appears that a hearing was held for both
motions on May 6, 2015. In its "Order Denying [Crofford's]
motion to Reconsider Order of April 15, 2015 filed on April 21,
2015 and Denying Motion for Allowance of Interlocutory Appeal
filed on April 23, 2015" the family court specifically mentions
the hearing on May 6, 2015 and that Crofford waived his presence
but was represented by his attorney. The family court then
ordered Adachi to submit affidavits regarding the attorney's fees
and costs that she incurred in responding to Crofford's motions,
which was the basis of its Order Assessing Attorney's Fees.
The family court did not cite any authority in its
Order Assessing Attorney's Fees. However, based on our review of
the record, it appears that the family court's order was entered
based on the motions submitted by the parties and the May 6, 2015
hearing. Crofford fails to provide the transcripts for the May
6, 2015 hearing for appellate review. "[I]t is well established
that, when an appellant desires to raise any point on appeal that
requires the consideration of the oral proceedings before the
court appealed from, the appellant bears the burden of showing
error by reference to matters in the record, and he or she has
6
Both the Motion For Reconsideration and Motion for Interlocutory
Appeal, as well as the attached declarations of counsel were signed by
Crofford's counsel.
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the responsibility of providing the relevant transcript." Ditto
v. McCurdy, 103 Hawai#i 153, 162, 80 P.3d 974, 983 (2003).
In any event, we conclude that the Order Assessing
Attorney's Fees was not inconsistent with the family court's
subsequent Divorce Decree, and the family court had discretion
under HRS § 580-47(a) to enter the order.7 The Order Assessing
Attorney's Fees and Costs solely addressed the family court's
award of attorney's fees incurred by Adachi in response to
Crofford's Motion for Reconsideration and Motion for
Interlocutory Appeal. In contrast, the subsequently filed
Divorce Decree globally addressed the allocation of attorney's
fees and costs incurred in the divorce proceedings. Although the
Divorce Decree does not reference or incorporate the Order
Assessing Attorney's Fees, it cannot be said that such omission
by itself invalidates the previously entered order.
On July 11, 2016, Adachi filed a Motion for Enforcement
of Court Ordered Payments. On August 16, 2016, after a July 12,
2016 hearing, the family court ordered Crofford to make payments
pursuant to the Order Assessing Attorney's Fees and ordered
additional payment of attorney's fees and costs incurred for
Adachi's motion for enforcement. Crofford fails to provide the
transcripts for the July 12, 2016 hearing for appellate review.
Based on the foregoing, we affirm the family court's
Order Assessing Attorney's fees.
2. Crofford's other points of error
In his points of error, Crofford further lists numerous
findings of fact and conclusions of law that he apparently
challenges. However, Crofford's purported points of error
pertaining to the family court's FOFs/COLs fail to state "the
alleged error committed by the court", "where in the record the
alleged error occurred," and "where in the record the alleged
error was objected to or the manner in which the alleged error
7
HRS § 580-47(a) gives the family court wide discretion and authority
to allocate responsibility for the payment of attorney's fees and costs and
take into consideration the respective merits of the parties.
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was brought to the attention of the court or agency," as required
under HRAP Rule 28(b)(4).
Although we may notice plain error under HRAP rule
28(b)(4), a party "has no right to cast upon the court the burden
of searching through a voluminous record to find the ground of an
objection." Int'l Bhd. of Elec. Workers, Local 1357 v. Hawaiian
Tel. Co., 68 Haw. 316, 322 n.7, 713 P.2d 943, 950 n.7 (1986).
Crofford's cursory treatment of the points of error pertaining to
the FOFs/COLs cannot reasonably be considered compliant with HRAP
Rule 28(b)(4). See Omerod v. Heirs of Kaheananui, 116 Hawai#i
239, 262, 172 P.3d 983, 1006 (2007).
We further note that Crofford's remaining sections in
his brief fail to provide the necessary information to address
his points of error pertaining to the family court's FOFs/COLs.
While Crofford offers argument challenging various aspects of the
family court's valuation of certain real and personal property,
debts, and premarital contributions, he fails to specifically
address the findings of fact and conclusions of law that he lists
in his points of error in his arguments. We are left to
speculate which finding or conclusion Crofford seeks to address
in his arguments, which we decline to do. Based on the
foregoing, the alleged points of error regarding the family
court's FOFs/COLs are deemed waived. See id. at 263, 172 P.3d at
1007; see also HRAP Rule 28(b)(7) ("[p]oints not argued may be
deemed waived.").
IV. Conclusion
Based on the foregoing, we vacate the property division
awards set forth in the Divorce Decree, entered on April 26,
2016, and the Findings of Fact and Conclusions of Law, entered on
August 1, 2016. We affirm the Order Assessing Attorney's Fees.
This case is remanded to the Family Court of the First
Circuit for further proceedings consistent with this opinion. On
remand, the family court shall enter a new property division
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award according to the parties' agreement set forth in the
Marital Agreement and Addendum.
DATED: Honolulu, Hawai#i, December 30, 2020.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Rebecca A. Copeland,
for Defendant-Appellant/ /s/ Keith K. Hiraoka
Cross-Appellee. Associate Judge
Michael A. Glenn, /s/ Karen T. Nakasone
for Plaintiff-Appellee/ Associate Judge
Cross-Appellant.
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