Kasnetz v. Kasnetz ( 2024 )

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-OCT-2024
07:47 AM
Dkt. 450 AMSDO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
SAMANTHA JANE KASNETZ, ALSO KNOWN AS SAMANTHA JANE WALASH,
SAMANTHA WALASH, SAMANTHA KASNETZ, AND S.J. KASNETZ WALASH,
SPECIAL ADMINISTRATOR OF THE ESTATE OF HERBERT R. KASNETZ, ALSO
KNOWN AS HERBERT ROY KASNETZ, DECEASED, Plaintiff-Appellant,
v.
DEBORAH A. KASNETZ, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1DV161000656)
AMENDED1 SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.)
Plaintiff-Appellant Herbert R. Kasnetz (Husband)
appeals from the Post-Divorce Judgment Regarding Reserved Issues
(Judgment) entered by the Family Court of the First Circuit
(family court) on January 16, 2020, as well as the Court's
1 We amend our July 23, 2024 Summary Disposition Order pursuant to
the Order granting reconsideration filed contemporaneously with this Amended
Summary Disposition Order.
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Findings of Fact and Conclusions of Law (FOF/COL) entered by the
family court on November 1, 2019.2
On appeal, Husband raises four points of error,
contending: (1) that the family court abused its discretion in
rejecting Husband's expert witness's computations, pertaining to
the valuation of his Category 1 interests, in favor of an
alternate method; (2) that the family court erred when it sua
sponte awarded Defendant-Appellee Deborah A. Kasnetz (Wife) a
$1.89 million Wells Fargo Individual Retirement Account (IRA)
that was previously awarded to Husband in the property division,
and computed Wife's equalization payment based on a property
division chart that reflected the IRA as still awarded to
Husband; (3) that the family court abused its discretion in
awarding Wife $10,200 a month in spousal support for the
duration of Husband's lifetime; and (4) that the family court
abused its discretion in awarding Wife $450,000 in attorney's
fees and costs.
Upon careful review of the record and relevant legal
authorities, and giving due consideration to the issues raised
and the arguments advanced by the parties, we resolve Husband's
points of error as follows:
2 The Honorable Catherine H. Remigio entered the Judgment, and the
FOF/COL.
2
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(1) Husband contends that the family court erred in
its valuation of Husband's Category 13 interests, by improperly
valuing his Brookhollow National Bank shares. Husband acquired
these bank shares prior to his marriage to Wife, and sold them
during the marriage in 2002. At trial, Husband's expert
witness, Charles Wilhoite (Wilhoite), testified that the value
of Husband's interest in the bank shares at the time of his
marriage, in 1990, was $9,730,000. Calculation of that
valuation relied upon the sale price of the bank shares in 2002.
Wife's witness, John Richard Candon, III (Candon), testified
that Wilhoite's valuation methodology was flawed in its reliance
on subsequent events, i.e., the sale of the bank shares in 2002.
The family court made the following relevant findings
of fact (FOF),4 with regard to the valuation of Husband's bank
3 "Category 1" refers to one of the five partnership model
categories.
The partnership model distinguishes between marital
partnership property that is brought into the marriage and
marital partnership property that is acquired during the
marriage. Accordingly, Hawaiʻi courts assign values to
marital partnership property using five categories designed
to assist courts in determining the equitable division and
distribution of property between spouses[.]
Gordon v. Gordon, 135 Hawaiʻi 340, 349, 350 P.3d 1008, 1017 (2015) (cleaned
up). Category 1 "includes the net market value of property separately owned
by a spouse on the date of marriage[.]" Id.4 Of the following FOF, Husband challenges FOF 31, 36-38, 40-41,
53, 69, 75-77, and 79-80. We find that these facts are not clearly
erroneous. The remaining FOF are unchallenged, and are therefore binding on
this court. Okada Trucking Co. v. Bd. of Water Supply, 97 Hawaiʻi 450, 458,
(continued . . .)
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shares at the time of his marriage to Wife in 1990, which we
review under the "clearly erroneous" standard. Fisher v.
Fisher, 111 Hawaiʻi 41, 46, 137 P.3d 355, 360 (2006).
23. [Husband] claimed his net worth at the time of his
marriage to [Wife] on June 22, 1990 (his Category 1
value) was $13,129,740.00. This claim is largely based
on the value [Husband] places on his Brookhollow
Bancshares, Inc. (BBI) and Brookhollow National Bank
(BNB) interests. These assets are collectively referred
to as the "Brookhollow interests".
. . . .
31. [Husband] and [his first wife] clearly reached an
agreement [the January 1990 Agreement Incident to
Divorce (AITD)] that the Brookhollow National Bank stock
had a fair market value of $13.125 ($10.50 x 1.25) a
share at or near the time of their divorce [in 1990].
. . . .
35. According to [Husband's] Statement of Financial
Condition as of December 31, 1990, the estimated current
value of [Husband's] 115,936 shares of Brookhollow
Bancshares, Inc. stock was $1,595,279.00 ($13.76 a
share) and the estimated current value of his 3,790
shares of Brookhollow National Bank, Inc. stock was
$63,520.00 ($16.76 a share), for a total of
$1,658,799.00. According to that Statement, his net
worth was $5,178,301.00 as of December 31, 1990.
36. In compiling the Statements, Ms. [Lila] Husband[5]
testified that it was not her goal to reflect fair
market value, and she had no (personal) knowledge of the
fair market value of the BBI and BNB assets. Ms.
Husband testified the "estimated current value" of the
assets contained in Exhibit V were "in all cases
confirmed or estimated by others." She confirmed her
notes of her discussion with Dan Bennett [the President
of Brookhollow Bancshares, Inc. and Board Secretary and
Executive Vice-President of Brookhollow National Bank]
had "fmv" (meaning fair market value) and "a number."
She apparently simply repeated Mr. Bennett's calculation
or opinion in her Statements of Financial Condition.
4(. . .continued)
40 P.3d 73, 81 (2002) ("Findings of fact . . . that are not challenged on
appeal are binding on the appellate court.").
5 Lila Husband (Ms. Husband) was Husband's certified public
accountant in Texas.
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37. When questioned specifically about the BNB estimated
current value, Ms. Husband confirmed that the estimate
was more than, or better than book value, and that she
used a multiplier of 1.25 as directed by Dan Bennett.
38. When questioned specifically about the BBI estimated
current value, Ms. Husband confirms the multiplier used
was 1 (according to Dan Bennett) and confirmed that was
Mr. Bennett's opinion of the fair market value of BBI.
39. The parties stipulated that [Husband] gave untruthful
testimony to the Court about his Statements of Financial
Condition in a prior proceeding. At that prior
proceeding, [Husband] claimed he had no involvement in
the preparation of these Statements. This turned out to
be materially incorrect.
40. [Husband] testified at trial that he had reviewed the
Statements of Financial Condition at the time they were
prepared for him, but that he "paid no attention to
them". [Husband's] testimony was not credible in this
regard.
41. In addition, [Husband] did not deny paying $10.50 a
share (book value) to acquire additional Brookhollow
National Bank shares the month immediately following his
divorce from [his first wife] (i.e. March, 1990) and the
month immediately preceding his marriage to [Wife] (i.e.
May, 1990).
. . . .
44. On the date of his marriage to [Wife], [Husband] owned
3,790 shares of BNB common stock and 115,936 shares of
BBI common stock.
45. During the marriage, between 1997 and 2000, [Husband]
purchased 500 additional shares of BNB.
46. During the marriage, [Husband] purchased 5,750
additional shares of BBI as follows: 1,750 shares in
1992; 1,000 shares in 1994; and 3,000 shares between
1997 and 2002.
47. As of 2002, [Husband] owned 4,290 shares in BNB, and
121,686 shares in BBI.
48. On April 2, 2002, BNB and BBI were acquired by Regions
Financial Corporation for approximately $26.6 million,
or $132.49 per share.
49. [Husband] received $16,969,414 for his 121,686 shares
in BBI and $251,866 for his 4,290 shares in BNB.
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50. In September 2016, [Husband] hired Wilhoite Managements
Associates to complete a valuation analysis of 3,790
shares of BNB common stock and 115,936 shares of BBI
common stock, owned by [Husband] as of June 22, 1990
(the "Valuation Date").
51. Charles Wilhoite, CPA testified as an expert business
evaluator.
52. The best evidence of fair market value is the price
paid after arms-length negotiation between unrelated
parties.
53. The definition of fair market value is generally based
on information that was known or knowable as of the
valuation date.
54. Absent a negotiated transaction, Mr. Wilhoite testified
that experts generally look at 3-5 years of financial
operating results for periods leading up to the
Valuation Date. In this case, he could only find
information for year-end 2002. There were no financial
statements available to Mr. Wilhoite prior to 1992.
55. Despite the limits on information, Mr. Wilhoite
determined he could evaluate the Brookhollow Assets by
following the Statements on Standards for Valuation
Services ("SSVS") requiring him [to] take certain steps,
including to disclose limitations and develop a credible
method of valuation.
. . . .
61. Mr. Wilhoite testified that, absent a negotiated
transaction at or prior to the valuation date, it is
reasonable to rely on valuations by people who are
reasonably informed and knowledgeable about both the
business and valuation. Mr. Wilhoite believed he was a
person whose knowledge, training and experience qualify
him to make such a valuation.
62. Acknowledging the limitation of information that was
known or knowable as of the valuation date, Mr. Wilhoite
based his evaluation on a market approach with three (3)
identified methods given weighted values: The
Transaction Approach of $16.6 mil. at 60% weight; the
Guideline Publicly Traded Company Method of $13.4 mil.
at 35% weight; and the Purchase Offers Method of $24.9
mil. at 5% weight.
63. Using this selected market approach, Mr. Wilhoite
developed what he considered a reasonable estimate of
the fair market value of the BNB and BBI (100%) as of
June 22, 1990 at $15.9 mil.
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64. While there were intervening events between 1990 and
2002, Mr. Wilhoite concluded that since the subject bank
consistently performed during the same period at a 5.1%
steady growth rate, those events would not affect his
ultimate evaluation.
65. Mr. Wilhoite's expert opinion was that a reasonable
estimate of the fair market value of [Husband's] BNB and
BBI shares as of June 22, 1990 was $9,730,000.
66. Mr. Wilhoite rejected the position that the Brookhollow
Assets were worth $1,658,799 as of December 31, 1990.
This would reflect a 20-21% rate of growth in value per
year before the assets were sold in 2002. A good rate
of growth for other banks similarly situated would be
7%. He concluded that a 20-21% rate of growth in value
per year was not reasonable. The Court notes this
opinion was anchored in the April 2, 2002 value
reflected in the Regions Financial Corporation
purchase.[6]
67. [Wife] retained John Candon, CPA, ABV, CFF to provide a
review opinion of the WMA Evaluation.
68. Mr. Candon testified as an expert in the area of
business valuations and accounting.
69. Mr. Candon testified that under SSVS, subsequent events
should only be utilized as a caution or as a
confirmation, not as the sole basis of valuation.
. . . .
73. According to Mr. Candon, SSVS was clear: subsequent
events should NEVER be the sole basis for the valuation
- which is what Mr. Wilhoite has done.
74. Therefore, Mr. Candon uniformly rejected Mr. Wilhoite's
method of evaluation as not up to professional
standards, not credible, not reliable and not relevant.
Mr. Candon concluded that Mr. Wilhoite should have
ethically refused to complete the appraisal.
75. The Court finds Mr. Candon's critique of Mr. Wilhoite's
valuation to be reasonable, credible, and relevant.
76. In evaluating the testimony of both experts, the Court
determines that Mr. Wilhoite's explanation, while
detailed and thoughtful, is fatally flawed in its
treatment and reliance on subsequent events. The
professional standard does not allow for the use of
valuation data at least twelve (12) years subsequent to
the valuation date, to include the April 2, 2002
6 The family court's reference is to the "$26.6 million dollar sale
[of Husband's bank shares] to Regions Financial Corporation in 2002."
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purchase by Regions Financial Corporation of the
Brookhollow interests. Furthermore, none of the
exceptions or conditions that would allow for the
consideration of subsequent data exist. To the extent
that it relies on subsequent events, Mr. Wilhoite's
valuation is therefore of very limited value.
77. The Court finds that the February 1, 1990 AITD and
[Husband's] Statement of Financial Condition for 1990
were credible and reliable sources of information for
determining the fair market value of [Husband's]
Brookhollow interests on June 22, 1990[.]
. . . .
79. The Court therefore finds, based on the relevant and
credible evidence presented at trial, that the fair
market value of BBI stock was $14.05 per share on
June 22, 1990.
80. The Court also finds, based on the relevant and
credible evidence presented at trial, that the fair
market value of BNB stock was $14.45 per share on
June 22, 1990.
(Cleaned up).
The above findings of fact are not clearly erroneous.
We note that the family court, as the trier of fact, "could
reject expert testimony in whole or in part." See Ray v.
Kapiolani Med. Specialists, 125 Hawaiʻi 253, 263, 259 P.3d 569,
579 (2011). It was within the family court's discretion to
weigh the evidence and the credibility of the witnesses,
including Candon, Wilhoite, and Husband. The family court found
that Wilhoite and Husband's testimony was not credible; it found
Candon's testimony to be credible. The family court also found
the Agreement Incident to Divorce, signed by Husband and his
first wife in January 1990, and Husband's December 1990
Statement of Financial Condition, to be "credible and reliable
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sources of information for determining the fair market value of
[Husband's] Brookhollow interests on June 22, 1990."
On this basis, the family court found that the bank
shares were worth a total of $1,683,666.30.7 The family court's
valuation of Husband's bank shares was reasonable and based upon
what the family court found to be the credible record evidence.
We conclude that the family court did not abuse its discretion
in its valuation of Husband's Category 1 assets.
(2) Husband contends that the family court erred in
deviating from the Partnership Model to sua sponte award
Husband's $1.89 million IRA to Wife, and that "because the court
computed her equalization payment with this IRA still awarded to
Husband, Wife received both the IRA and 50% of its value[.]"
"The partnership model is the appropriate law for the
family courts to apply when exercising their discretion in the
adjudication of property division in divorce proceedings."
Tougas v. Tougas, 76 Hawaiʻi 19, 28, 868 P.2d 437, 446 (1994).
In determining whether the circumstances justify deviation
from the partnership model, the family court must consider
the following: 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, and all other circumstances of the case.
Gordon, 135 Hawaiʻi at 352-53, 350 P.3d at 1020-21.
7 This amount represents the family court's valuation of Husband's
BNB stock at $54,765.50 (3,790 shares at $14.45 per share), and BBI stock at
$1,628,900.80 (115,936 shares at $14.05 per share).
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We review the family court's decision as to "whether
or not the facts present any valid and relevant considerations
authorizing a deviation from the Partnership Model Division" as
a question of law, under the right/wrong standard of review.
Jackson v. Jackson, 84 Hawaiʻi 319, 332-33, 933 P.2d 1353, 1366-
67 (App. 1997). We review the family court's decision as to
"whether or not there will be a deviation," and "the extent of
the deviation," for abuse of discretion. Id.The family court entered the following conclusions of
law (COL),
E.4. [Wife] is sixty-five (65). She is not reasonably
employable and her only income is $1,023.60 [per
month] from social security. [Wife] lives in a
rental unit. Her monthly expenses are $16,693.98, a
deficit of <$15,670.38>. Although [Wife] will
receive alimony of $10,200.00 per month, she will
only receive this for so long as [Husband] is alive
and [Husband] is eighty-four (84) and in poor health.
After receipt of alimony, [Wife's] monthly deficit is
<$5,470.38>. In order to lower her monthly deficit,
[Wife] is charged with using her equalization payment
herein to purchase a home and pay off her car loan.
E.5. [Wife] will also likely have increased needs for care
and assistance in the future. [Wife's] ability to
provide for her own future care needs, when alimony
is no longer applicable, and even with the property
she will receive as a result of this divorce, will
depend on the amount of care needed and length of
time that care is needed. It will also depend upon
[Wife's] use of the property she is being awarded
herein, and whether she can generate substantial
income therefrom.
E.6. [Husband] is eighty-four (84). Unlike [Wife],
[Husband's] health care needs are substantial now,
but largely known (present and future) - and are
being met with private pay and private care.
[Husband] is already fully capable of continuing to
manage his investments in a manner that generates
income well above his current expenses. He lives in
a well-furnished 4 bedroom, 2.5 bath home in Koko Kai
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(a quality residential subdivision) with a pool,
ocean view, solar and water filtration system.
[Husband's] home is mortgage-free. [Husband's] needs
are taken care of and he is able to live comfortably.
[Husband's] current net gain (income minus expenses)
per month is $58,537.00. After monthly alimony of
$10,200.00, [Husband] still enjoys a net gain of
$48,337.00. [Husband] should continue to enjoy a net
gain even after complying with the Court's orders
herein, and for the rest of his life.
E.7. The totality of the relevant and credible evidence
present valid and relevant considerations authorizing
a deviation from the Partnership Model under these
circumstances.
E.8. Based on the totality of the relevant and credible
evidence, it is just and equitable to deviate from
the property division awarded in Court's Attachment A
and additionally award [Wife] the Wells Fargo Bank
IRA account [] in the amount of $1,894,399.00, or an
asset of equivalent value if agreed-upon [sic] by the
parties.
. . . .
E.11. Pursuant to Attachment A, [Husband] owes [Wife] an
equalization amount of $6,650,092.31. [Husband]
shall pay this amount to [Wife], and transfer
ownership of the Wells Fargo Bank IRA account [] to
[Wife]. . . .
(Emphasis added) (footnote omitted).
The record reflects that the family court deviated
from the Partnership Model, and awarded Husband's IRA to Wife,
based on the totality of the relevant and credible evidence of
Wife's need. The family court specifically identified Wife's
advanced age, lack of employment prospects, limited income (from
social security), expenditures, and anticipated future care
needs, as the basis for awarding the IRA account to Wife. We
conclude, on this record, that the family court was not wrong in
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its conclusion that the above facts represent valid
considerations justifying deviation from the Partnership Model.8
We further conclude that the family court did not err
by awarding Wife an equalization payment in the total amount of
$6,650,092.31. The record reflects the family court's intention
to deviate from the Partnership Model, on the basis of Wife's
need, by awarding to Wife either Husband's IRA or "an asset of
equivalent value if agreed-upon [sic] by the parties." The
family court's property division chart appropriately described
the IRA as Husband's asset, which the family court instructed
should be "transferred" to Wife in addition to the total
Equalization Payment of $6,650,092.31. We conclude that the
family court did not abuse its discretion in its decision to
deviate from the Partnership Model, and with regard to the
extent of its deviation.
(3) Husband contends that the family court erred in
awarding Wife spousal support during the duration of Husband's
lifetime. We review the family court's award of spousal support
for abuse of discretion.
8 To the extent that the above COL are mixed questions of law and
fact, we find that they are not clearly erroneous. In re Water Use Permit
Applications, 94 Hawaiʻi 97, 119, 9 P.3d 409, 431 (2000) ("A COL that presents
mixed questions of fact and law is reviewed under the clearly erroneous
standard because the conclusion is dependent upon the facts and circumstances
of the particular case.") (citation omitted).
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"When deciding in a divorce case whether one party
must pay periodic support to the other, for how long, and how
much, the family court must consider all of the factors
enumerated in [Hawaii Revised Statutes] HRS § 580-47(a)."
Hamilton v. Hamilton, 138 Hawaiʻi 185, 209, 378 P.3d 901, 925
(2016) (cleaned up).
In addition to any other relevant factors considered, the
court, in ordering spousal support and maintenance, shall
consider the following factors:
(1) Financial resources of the parties;
(2) Ability of the party seeking support and maintenance
to meet his or her needs independently;
(3) Duration of the marriage;
(4) Standard of living established during the marriage;
(5) Age of the parties;
(6) Physical and emotional condition of the parties;
(7) Usual occupation of the parties during the marriage;
(8) Vocational skills and employability of the party
seeking support and maintenance;
(9) Needs of the parties;
(10) Custodial and child support responsibilities;
(11) Ability of the party from whom support and
maintenance is sought to meet his or her own needs while
meeting the needs of the party seeking support and
maintenance;
(12) Other factors which measure the financial condition
in which the parties will be left as the result of the
action under which the determination of maintenance is
made; and
(13) Probable duration of the need of the party seeking
support and maintenance.
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The family court entered the following COL regarding
spousal support,
D.18. HRS § 580-47(a) mandates that the family court
consider thirteen specific considerations before
awarding spousal support.
a. The application of each of these factors to
[Wife's] request for alimony is summarized as
follows:
(1) Financial resources of the parties prior to
property division.
(a) [Husband's] income from all sources is
$92,223.00 a month.
(b) [Wife's] income is $1,023.60/month.
(c) [Husband] makes $91,199.40 more per month
than [Wife].
(d) Assets: [Husband] will have received
assets of approximately $11 million,
compared to [Wife's] assets of
approximately $7 million. SEE: Court's
Property Division Chart Attachment A,
incorporated herein.
(2) Ability of the party seeking support and
maintenance to meet his or her needs
independently.
(a) [Wife] is not able to work in any
meaningful manner[.]
(b) [Wife] will not have the ability to
become self-sufficient in the near
future.
(3) Duration of the marriage.
(a) 27½ years.
(4) Standard of living established during the
marriage.
(a) The standard of living during the
marriage before the 5/23/16 physical
separation: [Husband] paid almost all of
the expenses, the parties lived in Hawai‛i
Kai and enjoyed a high standard of living
including extensive travel, tennis
parties, the use of another home in
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Portlock, and the purchase of luxury
items.
(5) Age of the parties.
(a) [Wife] is sixty-five (65); [Husband] is
eighty-four (84).
(6) Physical and emotional condition of the
parties.
(a) [Wife] is in generally good health but
has increasing physical challenges.
(b) [Husband] is in poor health.
(7) Usual occupation of the parties during the
marriage.
(a) [Wife] has not worked for the past 23
years and has been a stay at home mother
and wife.
(b) [Husband] has not been employed during
the majority of the marriage, but manages
his finances in such a way as to result
in current monthly income of $92,223.00.
(8) Vocational skills and employability of the
party seeking support and maintenance.
(a) [Wife] is not able to work in any
meaningful manner.
(9) Needs of the parties.
(a) At the time of trial, [Husband's] total
monthly income was $92,223.00, and his
total monthly expenses were <$33,686.00>.
(b) At the time of trial, [Wife's] total
monthly income was $1,023.60, and her
total monthly expenses was
<[$]16,223.98>.
(10) Custodial and child support responsibilities.
N/A
(11) Ability of the party from whom support and
maintenance is sought to meet his or her own
needs while meeting the needs of the party
seeking support and maintenance.
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(a) At trial, [Husband] had a monthly savings
of approximately $58,537.00, and can
therefore afford to pay alimony to
[Wife].
(12) Other factors which measure the financial
condition in which the parties will be left as
the result of the action under which the
determination of maintenance is made.
(a) [Wife] will receive approximately $7
million in assets as a result of property
division herein.
(b) The Court concludes that [Wife] will be
able to obtain a residence and
transportation on par with the standard
she enjoyed during the marriage. [Wife]
should therefore have no rent or mortgage
expenses, and no car payments.
(c) The Court therefore subtracts these
amounts from [Wife's] expenses in
calculating her need for the purposes of
alimony.
(13) Probable duration of the need of the party
seeking support and maintenance.
(a) Life time.
D.19. In awarding alimony, the Court specifically finds
that, at age sixty-five (65), after assuming the
fulltime role of homemaker for almost two and one-
half (2½) decades, it is unreasonable and unrealistic
to expect [Wife] to re-establish her legal career in
a state where she has never practiced law (and has
not passed the bar) and earn income consistent with
the standard of living established during the course
of the parties' almost twenty-eight (28) year
marriage.
D.20. There is a lack of sufficient evidence to show that
[Husband's] ability to meet his own needs, even those
estimated to increase over time, would be affected by
an award of lifetime spousal support to [Wife].
D.21. Based on its full consideration of all the relevant
statutory factors and the credible evidence received
by the Court, the Court concludes that an order
requiring [Husband] pay [Wife] $10,200.00 a month as
and for spousal support for the remainder of his
life, with payments to commence the first month
following the Court's decision on the remaining
issues in this matter, is just and equitable.
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D.22. The award of alimony, tied to [Husband's] lifetime as
opposed to [Wife's] lifetime, takes into
consideration the entirety of the Court's property
division awarded herein.
(Footnote omitted).
To the extent that the family court's conclusions
above are mixed findings of fact and conclusions of law, they
are not clearly erroneous. The family court properly considered
the factors set forth by HRS § 580-47(a) (2018), and the record
evidence, in determining that spousal support was warranted. On
that basis, the family court concluded that the relative length
of the marriage, Wife's advanced age, her lack of employment
prospects, and Wife's limited social security income and
inability to cover her own expenses, all weigh in favor of
spousal support. We determine that the family court did not
abuse its discretion in awarding spousal support to Wife for the
duration of Husband's lifetime.
(4) Husband contends that the family court abused its
discretion in awarding attorney's fees and costs to Wife. "[A]n
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. (quoting Farias v. Farias, 58 Haw. 227, 233,
566 P.2d 1104, 1109 (1977)).
HRS § 580-47(a) states, in pertinent part,
Upon granting a divorce, or thereafter if, in addition to
the powers granted in subsections (c) and (d), jurisdiction
of those matters is reserved under the decree by agreement
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of both parties or by order of court after finding that
good cause exists, the court may make any further orders as
shall appear just and equitable . . . (4) allocating, as
between the parties, the responsibility for the payment of
the debts of the parties . . . and the attorney's fees,
costs, and expenses incurred by each party by reason of the
divorce. 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
. . . and all other circumstances of the case.
(Emphasis added).
The record reflects that the family court considered
the factors in HRS § 580-47(a) in determining that an award of
attorney's fees to Wife was supported by the circumstances of
the case. The family court specifically concluded that "the
parties' attorney's fees and costs shall be equalized[,]" such
that "[t]he party who incurred more [in attorney's fees between
May 1, 2016 through January 4, 2019] will then owe and be
required to pay the other party one-half (1/2) of the difference
between what each party incurred."9 Moreover, the family court
9 The family court explained,
249. The Court finds [Wife's] request for equalization to
be fair and reasonable based on the following:
a. The number of filings in this matter is
voluminous. As of September 18, 2018, five
hundred and forty-six (546) documents had been
filed in this matter. For this Court to have to
review and sort through over two (2) years of
litigation documents to determine whether, and to
what extent, one party should pay the other
party's attorney's fees and costs is both
unreasonable and impractical.
(continued . . .)
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separately awarded Wife her attorney's fees and costs for
Husband's First Motion to Bifurcate, which the family court
found "caused unnecessary time and expense."10 We conclude that
9(. . .continued)
b. There is nothing in the record to suggest that
[Wife's] four (4) requests for contributions to
her legal expenses in this case were unreasonable.
In each of the four (4) orders related to her
requests, her payment was not characterized as an
advance on property division, the receipt of her
payment was not conditioned upon a further showing
of good cause, she was not cautioned about her use
of the funds, and her use of the payment for her
attorney's fees and costs was not limited in any
respect.
c. Each party had the opportunity to request, and in
some instances did request, that the other party
be responsible for the attorney's fees and costs
incurred by the requesting party.
d. [Husband] has controlled almost all of the marital
assets and has been able to pay his attorney's
fees and costs without limiting it to a specific
amount and without first seeking a Court order.
It is not fair or reasonable that either party be
allowed to substantially reduce the value of the
marital estate to the detriment of the other
through unlimited spending on attorney's fees and
costs.
e. By sharing equally in the reduction of the value
of the marital estate, neither party will have
gained a benefit to the detriment of the other
party through his or her expenditure of a greater
amount of money for his or her attorney's fees and
costs. The value of the marital estate has been
reduced by the expenditure of money for attorney's
fees and costs, and it is fair and reasonable that
each party is charged with one-half (1/2) of that
reduction.
10 The family court found that,
251. The Court has carefully reviewed [Wife's] six (6)
specific requests for attorney's fees and costs related
to identified actions taken by [Husband]. The Court
(continued . . .)
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the family court's FOF, upon which its award of attorney's fees
and costs were based, were not clearly erroneous. We further
conclude that the family court's conclusions of law were not
wrong. The family court did not abuse its discretion in
granting Wife attorney's fees and costs.
For the foregoing reasons, we affirm the family
court's Post-Divorce Judgment Regarding Reserved Issues, and the
Court's Findings of Fact and Conclusions of Law.
DATED: Honolulu, Hawai‘i, October 9, 2024.
On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Peter Van Name Esser,
for Plaintiff-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Charles T. Kleintop,
for Defendant-Appellee. /s/ Kimberly T. Guidry
Associate Judge
10(. . .continued)
addresses only one of the specific requests, and denies
the rest.
. . . .
264. The Court finds that [Husband's] First Motion to
Bifurcate caused unnecessary time and expense on the
claimed bases that bifurcation was warranted due to his
serious health care challenges, threats to his emotional
well-being, and the possibility of death from stress -
claims he eventually dropped after not providing court-
ordered medical records and information to support his
claim.
(Footnote omitted).
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