Gussin v. Gussin , 73 Haw. 470 ( 1992 )

DISSENTING OPINION BY

LUM, C.J.

I respectfully dissent and write separately to express my displeasure at the broad sweep of sections A and B.

I believe that the Uniform Starting Points created by the Intermediate Court of Appeals (ICA) and modified by this court in Myers v. Myers, 70 Haw. 143, 764 P.2d 1237 (1988), and Cassiday v. Cassiday, 68 Haw. 383, 716 P.2d 133 (1986), conform with Hawaii Revised Statutes (HRS) § 580-47(a), are not unduly burdensome to the trial courts, offer litigants a modicum of predictability and encourage the resolution of marital property disputes through private settlements and agreements. Under the Myers and Cassiday limitations, the Intermediate Court’s Uniform Starting Points provide trial courts only with a basic starting point — not an ending point. As such, the trial court is free to exercise its statutorily conferred discretion, only limited by its willingness to provide findings of fact to permit meaningful judicial review. The current Uniform Starting Points provide some amount of continuity between courts in how they reach a property settlement but in no way diminish the discretion to vary decisions based on differing factual circumstances. I would therefore permit the continued utilization of Uniform Starting Points only to the extent that they provide guidance to the trial court as to the process by which it determines marital property division.

This court has long recognized that HRS § 580-47(a) “ ‘gives to the family court the discretion to divide marital property according to what is just and equitable’ ” and thus we have rejected “general rules” that create “rebuttable presumptions” as to the division of marital property. Myers v. Myers, 70 Haw. 143, 148, 764 P.2d 1237, 1243 (1988). See also Cassiday v. Cassiday, 68 Haw. 383, 388, 716 P.2d 1133, 1137 (1986); Au Hoy v. Au Hoy, 60 Haw. 354, 357, 590 P.2d 80, 82 (1979). Despite this court’s steadfast faithfulness to HRS § 580-47(a), broad unguided discretion exercised at the trial level, where each court may impose its unfettered will upon litigants, risks promoting an unnecessary amount of discontent with and disdain for the judicial process. It is my belief that guided discretion produces equitable, stable, and predictable results and therefore fosters informal settlement among litigants who can fairly predict the outcome of litigation.¹ Uniform Starting Points provide a road map to litigants as to how a trial court begins the process of achieving the “just” results mandated by the statute so that they might attempt to reach private agreements on the division of property in the same manner.

The legislature has given the trial court a general goal to be achieved and provided the court with the factors to be considered when dividing marital property but it is the appellate court’s prerogative to provide trial courts with a method to achieve those results. “[Q]uite often statutes are generalizations which the legislature intends for the courts to extend and complete insofar as they may afford principles for the determination of... litigation in the different contexts of varying facts and later times.” Tate, The Law-Making Function of the Judge, 28 La. L. Rev. 211,217-18 (1968), quoted in Robert Leflar, Appellate Judicial Opinions 70 (1974). Uniform Starting Points do not offend the statute, rather, they demystify the method a court uses to achieve those statutory goals.

While it is true that the legislature vested discretion in the trial court, the legislature also vested our appellate courts with the obligation and responsibility to articulate generalizable rules of law. “ ‘The function of the reviewing court is: (1) to see that justice is done according to law in the cases that are brought before it, (2) to see that justice is administered uniformly throughout the state, and (3) to give authoritative expression to the developing body of the law.’ ” Parker, Improving Appellate Methods, 25 N.Y.U. L.Rev. 1 (1950). To the small extent that Uniform Starting Points may intrude upon the discretion of the trial court, they do so to protect the integrity of the system. In Hashimoto v. Hashimoto, 6 Haw. App. 424, 725 P.2d 520 (1986), Judge Bums correctly stated the dilemma an appellate court faces when it has not articulated general principles of law:

Suppose a case where the only facts proved are the marriage and the existence of jointly owned property. In the absence of a uniform starting point, one judge might award all of the property to the wife. Another might award it all to the husband. On appeal, both decisions would have to be affirmed as not being an abuse of discretion.

6 Haw. App. at 427 n.4, 725 P.2d at 522 n.4.

In Hashimoto Judge Bums also alluded to a serious judicial problem which I believe the majority has not fully considered. Judge Bums warned, “[t]here will be no uniformity, stability, clarity, or predictability. The ultimate decision will depend less on the facts and the law and more on who is the judge assigned to hear and decide the case.” Id. at 427, 725 P.2d at 522-23. The complete abolition of Uniform Starting Points risks bringing an unwelcome mischief to the law which does not serve the court’s equity and discretion as imagined by HRS § 580-47.

This court has eschewed using Uniform Starting Points where they create rebuttable presumptions that take away any discretion of the trial court to reach “just and equitable” results in property division. However, the Uniform Starting Points, as they have now developed, do not favor the starting point. “The process we have developed is designed to standardize and facilitate the factual analysis, facilitate settlements, identify the reasons for a particular decision, facilitate appellate review, facilitate the continued case-by-case development of express and uniform ranges of choice applicable statewide in similar fact situations, and bring as much statewide consistency, uniformity, and predictability as is possible to family court decisions[.]” Bennett v. Bennett, 8 Haw. App. 415, 421, 807 P.2d 597, 601 (1991) (emphasis added). However, the starting points do not affect discretion because once the starting points for the property are determined, each side provides the court with their position “with respect to the division and distribution of each of the various items of plus and minus value.” Muraoka v. Muraoka, 7 Haw. App. 432, 438, 776 P.2d 418, 422 (1989). And where either side is dissatisfied with the result, the family court is required to “specify the factual considerations upon which the difference [from the starting points] is based” or “the family court must specify the factual considerations upon which the denial of the requested difference [from the starting points] is based.” Id. at 439. Thus, I see no advantage to trial courts that end where the Uniform Starting Points begin, because appellate courts will review them freshly, and without presumption either way. Instead, I see a method that helps combative parties begin a process of resolution, and a process which encourages trial courts to make a reviewable record.

The judicial authority to create a scheme by which trial courts exercise discretion is certainly within the power of our appellate courts. For example, the rule articulated in Cassiday v. Cassiday, where this court held that “the trial court may award up to half of this [during-marriage] appreciation [of separately owned property] to the non-owning spouse if, under the totality of the circumstances, it is just and equitable to do so[]” is a rule of judicial creation which limited the trial court’s discretion to award an amount greater than half of non-owned property to the non-owning party. 68 Haw. at 389, 716 P.2d at 1137. Clearly HRS § 580-47(a) includes such property in the “estate of the parties” and yet this court believed it was within its appellate prerogative to give guidance to the trial courts as to how to divide such property because such property is fundamentally different than property acquired or held together.² Following Cassiday, the Intermediate Court of Appeals directed lower courts to start to divide that property in the middle of the allowable range, namely 75%-25%. This directive indicates to the trial court that it should favor neither man nor woman at the onset, but that the division reached, be it 75-25 or 50-0, must be supported by the record.

I would therefore hold that trial courts should continue to utilize the Uniform Starting Points in order to facilitate the process of reaching an equitable distribution of property among parties and as a method of ensuring meaningful appellate review.

1 The court has broad discretion in determining an equitable distribution and, until recently, the case law indicated only very general factors to be considered, including the parties’ relative needs and contributions to the estate. Under this scheme, the outcome of any individual dispute is difficult to predict, and informal settlement negotiations must proceed against a “backdrop of uncertainty.” Many litigants may be reluctant to settle in the hopes of larger court-ordered awards.

Kastely, An Essay in Family Law: Property Division, Alimony, Child Support, and Child Custody, 6 U. Haw. L. Rev. 381, 384-85 (1984) (footnotes omitted).

2 See Comment, The Treatment of Unearned Separate Property at Divorce in Common Law Property Jurisdictions, 1990 Wis. L. Rev. 903, 914 (1990) (“although the source or contribution factors may be heavily weighed in the all-property system, the list of factors to be considered by the court also includes a number of factors that bear on the issue of need[]”).