Cvitanovich-Dubie v. Dubie.Â

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FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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GERALDINE CVITANOVICH~DUBIE, nOW kDOWH aS@
GERALDINE CVITANOVICH, PlaiHtiff~App€llaHt,
V
NANCY DUBIE, Personal Representative of the Estate
of George Patrick Dubie, Defendant-Appellee
NO. 28928
APPEAL FRoM THE FAMILY c0URT oF THE FIRsT cIRcUIT
(Fc~D No. 03-1-3533)
APRIL l2, 2010
NAKAMURA, C.J.,_FOLEY AND LEONARD, JJ.
OPINION OF THE COURT BY FOLEY, J.
Plaintiff-Appellant Geraldine Cvitanovich-Dubie, now
(Geraldine) appeals from the
known as Geraldine Cvitanovich,
"Order Denying Plaintiff's Motion for Post-Decree Relief to
vacate Divorce Decree or Set Aside Property Division Pursuant to
Hawaii Family Court Rule 60([b]), Filed June 28, 2007" (Order)
filed on December l8, 2007 in the Family Court of the First
(family court).1
(11/23/03
Circuit
In the November 28, 2003 Divorce Decree
Decree), the family court granted the divorce of Geraldine and
Dubie died on July 2, 2006, and on
George Patrick Dubie (Dubie).
the family court orally granted the substitution
October 8, 2007,
Personal Representative of the Estate of
of Nancy Dubie
George Patrick Dubie,
(Nancy),
as the defendant.
1 The Honorable R. Mark Browning presided.
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On appeal, Geraldine contends the family court
reversibly erred in refusing to vacate the 11/28/03 Decree,
which, she argues, is void ab initio2 as a matter of law for the
following reasons:
(1) The family court did not have subject matter
jurisdiction over Dubie and Geraldine when the court issued the
11/28/03 Decree because Dubie and Geraldine were never legally
married to each other. When Dubie purportedly married Geraldine,
he was still married to Sylvie Bertin (Sylvie). Dubie and Sylvie
were still married because the Fifth Circumscription of the Civil
and Commercial Chamber of the National District in the Dominican
Republic court (Dominican court), which issued Dubie and Sylvie’s
divorce decree (Dominican Decree), lacked subject matter
jurisdiction over Dubie and Sylvie because neither of them was a
resident or domiciliary of the Dominican Republic and, therefore,
the Dominican Decree is void ab initio. The Dominican Decree is
not entitled to comity, recognition, or enforcement in HawaiUH
1n the family court's "Findings of Fact[] and Conclusions of Law
with Respect to Claims Made by Plaintiff Geraldine Cvitanovich-
Dubie in Her Motion for Post-Decree Relief to Vacate Divorce
Decree or Set Aside Property Division Pursuant to Hawaii Family
Court Rule 60([b]) Filed on June 28, 2007" (FOFs/COLs Re Motion
for Post-Decree Relief), Findings of Fact (FOFs) 11 through 16,
19, 22, 23, 25, and 27 are clearly erroneous, and Conclusions of
Law (COLs) 35 and 39 are wrong.
(2) The undisputed evidence showed that the "notice"
of Dubie and Sylvie's divorce (the Dominican divorce) given to
Geraldine was inadequate, a violation of the Due Process Clause
of the United States Constitution.
g (3) The Dominican Decree is subject to collateral
attack because it is void ab initio, and Conclusion of Law
(COL) 34 is wrong.
2 "Ab initio" means “from the beginning. " Black's Law Dictionarv 5
(Sth ed. 2004) . "In Hawai‘i, living person A's purported marriage to living
person C, while living person A is lawfully married to living person B, is
void ab initio." Tagupa v. Tagupa, 108 Hawai‘i 459, 461, 121 P.3d 924, 926
(App. 2005). '
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(4) The family court erroneously denied Geraldine
relief or, at least, an evidentiary hearing pursuant to Hawafi
Family Court Rules (HFCR) Rule 60(b)(6) because Geraldine proved
her case of undue influence and fraud on the court, which Nancy
failed to rebut. Related to this argument is Geraldine's
contention that COLs 31, 40, 41 and 44 are wrong.
Geraldine also contends FOFs 6, 7, 8, 10, 17, and 28
are clearly erroneous; COLs 30, 32, 36, 37, 38, 42, and 43 are
wrong; and COLs 40, 41, and 44 are wrong for reasons other than
that stated in paragraph (4) §up;a.
Geraldine requests that we reverse the Order, instruct
the family court to grant "Plaintiff's Motion for Post Decree
Relief to vacate Divorce Decree or Set Aside Property Division
Pursuant to Hawaii Family Court Rule 60([b])" (Motion for Post-
Decree Relief), and vacate the 11/28/03 Decree pursuant to HFCR
Rule 60(b)(4) as void ab initio. Alternatively, she asks that we
reverse the Order and either instruct the family court to grant
the Motion for Post-Decree Relief or grant her an evidentiary
hearing.
I.
On February 25, 2008, the family court filed its
FOFs/COLs Re Motion for Post-Decree Relief, which provides in
relevant part:
WHEREAS, [Geraldine] filed [the Motion for Post-Decree
Relief] on June 28, 2007
WHEREAS, On September 11, 2007, Nancy filed an
Opposition Memorandum to [the Motion for Post-Decree Relief]
("Opposition Memorandum“).
WHEREAS, [Geraldine] filed a reply to Nancy's
Opposition Memorandum on September 14, 2007,
WHEREAS, on September 17, 2007, Nancy filed a
Supplemental Memorandum in Opposition to [the Motion for
Post-Decree Relief] ("Supplemental Opposition Memorandum").
WHEREAS, on September 18, 2007, [Geraldine] filed a
reply to Nancy's Supplemental OppoSition.
WHEREAS, the matter came on for hearing on
September 19, 2007 and October 8, 2007, before the Honorable
R. Mark Browning, pursuant to [the Motion for Post~Decree
Relief]
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WHEREAS, pursuant to the [family court's] order, the
parties submitted additional briefings on November 7, 2007
and November 16, 2007.
WHEREAS, the [family court], having considered the
applicable law, the uncontroverted evidence, the applicable
standard of proof, the memoranda presented and the arguments
of counsel, issued an order denying {Geraldine's] [Motion
for Post-Decree Relief], and makes the following [FOFs] and
[COLs].
I. PARTIES
1. [Geraldine] is a resident of the State of
HawaFi.
2. The Decedent, [Dubie] was a resident of the
State of HawaFi. Dubie was killed in Thailand on July 2,
2006.
3. [Nancy] was appointed as the Personal
Representative of the Estate of George Patrick Dubie by the
Probate Division of the First Circuit Court of the State of
Hawafi . . . . Pursuant to the [family court's] oral order
on OctOber 8, 2007, Nancy was substituted with title as
[Dubie].
II. CLAIMS ASSERTED BY [GERALDINE]
4. In [Geraldine's] [Motion for Post~Decree
Relief], [Geraldine] seeks an order to set aside the
[11/28/03 Decree] on the basis that the marriage between
[Geraldine] and Dubie is void ab initio. In the
alternative, [Geraldine] seeks to set aside the property
division portion of the [11/28/03 Decree] because of her
claim that Dubie, through fraud, undue influence and
deception, caused [Geraldine] to agree to transfer real
property, personal property and other things of value to him
via contracts, some of which became incorporated in the
[11/28/03 Decree] issued by the [fami1y court] and some of
which were post-divorce decree transfers.
III. FINDINGS OF FACT[]
5. [Dubie] married [Sylvie] on October 2, 1989 in
Honolulu, Hawaid.
6. On February 7, 1995, the [Dominican] court
granted [the Dominican] Decree, terminating the marriage
between Dubie and Sylvie
7. Notice of the [Dominican] Decree was mailed to
Dubie that same day.
B. The [Dominican] Decree became a definite and
final ruling on the date of pronouncement, April 24, 1995,
9. Neither Dubie nor Sylvie filed an appeal to set
aside the [Dominican] Decree.
10. The time-period [sic] to appeal the [Dominican]
Decree elapsed on April 7, 1995, two months after the
[Dominican] Decree was entered.
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11. From February 2, 1995 until present, Sylvie
relied upon the validity of the [Dominican] Decree entered
by the [Dominican court],
12. Ever since the [Dominican] Decree was entered,
Sylvie has held herself out as being divorced from Dubie.
13. Prior to [Geraldine's] [Motion for Post-Decree
Relief], at no time did anyone ever question the validity of
the [Dominican] Decree. ‘
14. Sylvie did not question the validity of the
[Dominican] Decree because when purchasing a home in 1995,
Sylvie successfully proved the validity of the [Dominican]
Decree to an attorney in the province of Quebec, Canada.
15. 1n reliance on the [Dominican] Decree, Sylvie
and Dubie's daughter, Felicia ("Felicia"), had her last name
changed to "Dubie" so that she would be able to live with
her father.
16. In 1995, the U.S. Embassy certified and
recognized the [Dominican] Decree by acknowledging the
Dominican Republic divorce procedures.
17. In or around March 1996, after his divorce from
Sylvie, Dubie and [Geraldine] met. [Geraldine] is
co~founder of the diet herbal supplement company,
"Herbalife."
18. Shortly thereafter, while residing in Hawafi,
Dubie introduced [Geraldine] to Sylvie.
19. With full knowledge of the [Dominican] Decree,
on or about April 30, 1996, [Geraldine] completed and
submitted a Marriage License Application to the Department
of Health for the State of Hawai‘i.
20. The application for marriage license indicated
that Dubie's marriage to Sylvie ended in divorce in 1995 in
the Dominican Republic, Caribbean.
21. [Geraldine] signed the Marriage License
Application and swore under oath that the information
contained in the application was true and correct to the
best of her knowledge.
22. On May 1, 1996, Dubie and [Geraldine]
participated in a ceremonial marriage performed by a person
duly authorized to perform marriages in the State of
Hawai``i.
23. At the time of the marriage ceremony,
[Geraldine] had knowledge, or at least, had constructive
knowledge of the [Dominican] Decree and that it was obtained
in the Dominican Republic.
24. 1n the following few years, Dubie and
[Geraldine] met with Sylvie and Felicia in Ottawa in 1997,
and in Disneyworld in 1998.
25. Based on Sylvie's meetings with Dubie and
[Geraldine], Sylvie had an opportunity to observe Dubie and
[Geraldine's] relationship. Dubie relied upon the validity
of the [Dominican] Decree and held himself out as being
divorced. Sylvie also observed that after Dubie and
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[Geraldine] were married, they acted like a married couple,
lived together and introduced each other as husband and
wife.
26. [Geraldine] established a Qualified Terminable
Interest Property Trust ("QTlP Trust") and named Sylvie and
Dubie's children as beneficiaries of the QTIP Trust.
27. In November 2003, [Geraldine] filed a petition
for divorce and the [family court] granted it on
November [28], 2003.
28, After the [11/28/03 Decree] was entered,
[Geraldine] continued to portray the image that she and
Dubie were still married in order to protect her image as
well as the image of her company, "Herbalife."
29. On July 2, 2006, Dubie was shot and killed in
Thailand. A Report of Death of An American Citizen was
filed on November 8, 2006,
[IV.] CONCLUSIONS OF LAW
30. The [family court] has subject matter
jurisdiction and personal jurisdiction over the parties
pursuant to HRS [Hawaii Revised Statutes] § 580-1. [HRS]
§ 580-1 (2006).
31. [Geraldine's] claims sound in fraud or other
intentional misconduct, and therefore are time-barred
pursuant to [HFCR Rule] 60(b)(3). [Wehrle] v. Robison, 590
P.2d 633 (N.M. l979); [HFCR Rul€] 60(b)(3).
32. Determining whether a judgment should be set
aside pursuant to Rule 60(b) of the [HFCR] is not a matter
of discretion. In re Hana Ranch C0., 3 Haw. App. 141, 146,
642 P.2d 938, 941 (1982).
33. 1n the sound interest of finality, the concept
of a void judgment must be narrowly restricted. Dillingham
Inv. Corp. v. Kunio Yokoyama Trust, 8 Haw. App. 226, 233-34,
797 P.2d l316, 1319-20 (1990).
34. [Geraldine] does not have standing to
collaterally attack the validity of the [Dominican] Decree
in the [fami1y court]. Bair v. Bair, 415 P.2d 673, 673
(Idaho l966); deMarigny v. deMarigny, 43 So. 2d 442 (Fla.
1949);'Ruger v. Heckel, 85 N.Y. 483 (N.Y. 1881); $uiter v.
Suiter, 57 N.E.2d 616 (Ohio Ct. App. 1944).
35. The [Dominican] Decree is recognized by the
[family court] under the principle of comity. Metcalf v.
voluntary Employees’ Ben. Ass’n of Hawaii, 99 [Hawafi] 53,
58, 52 P.3d 823, 828 (2002); H1ltOn v. GUyOt, 159 U.S. 113,
205~06 (1895); In re Marriage of Goode, 997 P.2d 244 (Or.
Ct. App. 2000); Cliburn v. Cliburn, 48 So. 2d 126 (Miss.
1950); In Re Marriage of DeLeon, 804 S.W.2d 801 (Mo. Ct.
App. E.D. l99l); RabbaNi V. Rabbani, 178 A.D.2d 637 (N.Y. 2
Dept. 1991); Gonzalez v. Beraha, 449 F. Supp. 1011 (D C.
Canal Zone 1978); Hyde v. Hyde, 562 S.W.2d 194 (Tenn. 1978).
The [11/28/03 Decree] is not void ab initio and should not
be set aside. Id.
36. The facts in this case are not enough to
overcome the presumption of validity of [Geraldine's]
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marriage to Dubie. Davis v. Davis, 640 P.2d 692 (Or. Ct.
App. 1952); Parker v. American Lumber Corp., 56 S.E.2d 214(Va. 1949); Metropolitan Life Ins. Co., 145 S.E.2d 177 (Va.
1965).
37. Dubie and [Geraldine’s] marriage is not void
because the purported impediment -~ the alleged bigamous
marriage -- was eliminated by Dubie's death. 'Smith v.
Smith, 190 N.W.2d 174 (Wis. 1971); [Werden] v. Thorpe, 867
P.2d 557 (Or. App. Ct. [1994]).
38. The [Dominican] Decree cannot be set aside based
on the principle of res judicata. East Seventy-Second
Street Corp. v. Ismay, 151 P.2d 29 (Cal. Ct. App. 4 Dist.
1944); China Trade & Dev. Corp. v. M. V. Choong Yong, 837
F.2d 33, 36 (2nd CirL l987).
39. [Geraldine] is estopped from asserting that
[her] marriage to Dubie is void based on the principle of
estoppel and unclean hands. Mayer v. Mayer, 311 S.E.2d 659(N.C. Ct. App. 1984); De Marco v. De Marco, 426 N.Y.S.2d 127(N Y. 3d Dep‘t 1980); Taylor v. Taylor, S.E.2d [sic] 542,
546 (i9a7); Chilc@:c v. chilc@tc, 257 ca1. App. 2d 863 (Cal.
1968); Bruguiere v. Bruguiere, 155 P. 988 (Cal. [1916]).
40. Property settlement agreements between husband
and wife made in contemplation of divorce or judicial
separation are favored by the courts and will be strictly
enforced if fair and equitable and not against public
policy. Harringion v. Harrington, 41 Haw. 89 (Hawafi Terr.
l955).
41. The property division portion of a Divorce
Decree is an enforceable contract and should not be set
aside. $wint v. 5wint, 395 P.2d 114, 114 [sic] (Or; 1964).
42. [Geraldine's] assertion to set aside the
property division portion of the [11/28/03 Decree] is really
a creditor's claim which should be decided by the probate
court, [HRs] § 560 3-105 <2006).
43. Dubie and [Geraldine] are at the very least,
putative spouses for purposes of this court deciding
property division issues. Super v. Burke, 367 So. 2d 93, 93
[sic] (La. Ct. App. 1979).
44. [Geraldine’s] claims to set aside the [11/28/03
Decree] and the [11/28/03 Decree's] property division
portion are based on fraud and are therefore barred by the
one-year statute of limitations pursuant to Rule 60(b)(3) of
the [HFCR]. Parks v. Parks, 574 P.2d 588 (N.M. 1978);
Calasa v. Greenwell, 2 Haw. App. 395, 633 P.2d 553 (198l).
(Formatting altered; record references omitted.)
A.
II.
Family Court Decisions
Generally, the family court possesses wide discretion
in making its decisions and those decisions will not be set
aside unless there is a manifest abuse of discretion. Thus,
an appellate court will not disturb the family court's
decisions on appeal unless the family court disregarded
rules or principles of law or practice to the substantial
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detriment of a party litigant and its decision clearly
exceeded the bounds of reason.
Schiller v. Schiller, 120 HawaiU.283, 287, 205 P.3d 548, 552
(App. 2009) (brackets omitted) (quoting Fisher v. Fisher, 111
HaWaiu_4l, 46, 137 P.3d 355, 360 (2006)).
B. HFCR Ruie 60(1>)
1n general, the standard of review for the grant or
denial of an HFCR Rule 60(b) motion is "whether there has been an
abuse of discretion." De Mello v. De Mello, 3 Haw. App. 165,
169, 646 P.2d 409, 412 (1982).
With regard to HFCR Rule 60(b)(4) in particular, "[t]he
determination of whether a judgment is void is not a
discretionary issue. . . . [A] judgment is void only if the court
that rendered it lacked jurisdiction of either the subject matter
or the parties or otherwise acted in a manner inconsistent with
due process of law." In re Hana Ranch Co., 3 Haw. App. 141, 146,
642 P.2d 938, 941 (1982).
C. FOFs
FOFs are reviewed under the clearly erroneous
standard. An FOF is clearly erroneous when (l) the record
lacks substantial evidence to support the finding or
determination, or (2) despite substantial evidence to
support the finding or determination, the appellate court is
left with the definite and firm conviction that a mistake
has been made.
Schiller, 120 Hawafi at 288, 205 P.3d at 553 (internal quotation
marks, citation, and brackets omitted).
D. COLS
A COL is not binding upon an appellate court and is
freely reviewable for its correctness. An appellate court
ordinarily reviews COLs under the right/wrong standard.
Thus, a COL that is supported by the trial court's FOFs and
that reflects an application of the correct rule of law will
not be overturned. However, a COL that presents mixed
questions of fact and law is reviewed under the clearly
erroneous standard because the court's conclusions are
dependent upon the facts and circumstances of each
individual case.
Id. (brackets omitted) (quoting Chun v. Bd. of Trs. of the
Emplovees' Ret. Svs. of the State of Hawari, 106 Hawafi 416, 430
106 P.3d 339, 353 (2005)).
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E. Weight of the Evidence/Credibility Determinations
"[I]t is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of the evidence; this is the province of the trier of
faCt," lnOu€ V. InOue, 118 HaWafi 86, 101, 185 P.3d 834, 849
(App. 2008) (internal quotation marks and citation omitted).
F. Application of Equitable Doctrine
"A court's decision to invoke equitable relief . . . is
a matter within its discretion." 7's Enters., Inc. v. Del
ROSariO, 111 HaWafi 484, 489, 143 P.3d 23, 28 (2006).
G. Harmless Error
"Hawaii Rules of Evidence (HRE) Rule 103(a) provides
that ‘error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
affected.'" Schiller, 120 Hawafi at 288, 205 P.3d at 553
(brackets omitted).
H. Statutory Construction
The standard of review for statutory
construction is well-established. The interpretation
of a statute is a question of law which this court
reviews de novo, 1n addition, our foremost obligation
is to ascertain and give effect to the intention of
the legislature, which is to be obtained primarily
from the language contained in the statute itself.
And where the language of the statute is plain and
unambiguous, our only duty is to give effect to its
plain and obvious meaning. Finally, in determining
the purpose of the statute, we are not limited to the
words of the statute to discern the underlying policy
which the legislature seeks to promulgate but may look
to relevant legislative history.
State v. Wells, 78 HawaiE_373, 376, 894 P.2d 70, 73 (1995)
(brackets, citations, ellipsis and internal quotation marks
omitted). Furthermore,
we must read statutory language in the context of the
entire statute and construe it in a manner consistent
with its purpose.
When there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used
in a statute, an ambiguity exists.
State V. Rauch, 94 Hawai``i 3l5, 322, 13 P.3d 324, 331 (2000)
(block quote format, brackets, citations, ellipses and
internal quotation marks omitted).
Child Support Enforcement Aqencv v. Carlin, 96 HawaFi 373, 379,
31 P.3d 230, 236 (App. 2001).
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III.
Geraldine contends the family court reversib1y erred in
refusing to vacate its 11/28/03 Decree.
A. Jurisdiction
Geraldine contends the family court did not have
subject matter jurisdiction over her and Dubie when the court
filed the 11/28/03 Decree. Her reasoning is as fo1lows: Dubie
and Geraldine were never legally married to each other because
Dubie was still married to Sylvie at the time he purportedly
married Geraldine. Dubie was still married to Sylvie because the
Dominican court did not have subject matter jurisdiction in the
Dominican divorce. The Dominican court did not have subject
matter jurisdiction because neither Dubie nor Sylvie was a
resident or domiciliary of the Dominican Republic at the time the
Dominican court granted the Dominican Decree. Hence, the
Dominican Decree supposedly dissolving the marriage between Dubie
and Sylvie is void ab initio. Geraldine also claims that the
Dominican Decree is not entitled to comity, recognition, or
enforcement in Hawaiii. She argues that "a foreign 'ex parte‘
divorce for cause between persons not domiciled or resident in
the foreign country . . . has never been recognized in any state
in the United States, and has been universally rejected."
Related to these arguments is her contention that COL 35 is
wrong.
1. Dominican Decree not entitled to pro forma
recognition
In COL 35, the family court found:
35. The [Dominican] Decree is recognized by the
[family court] under the principle of comity. Metcalf v.
voluntary Employees' Ben. Ass'n of Hawaii, 99 [Hawafi] 53,
58, 52 P.3d 823, 828 (2002); HiltOH v. GUyOt, 159 U.S. 113,
205-06 (1895); In re Marriage of Goode, 997 P.2d 244 (Or.
Ct. App. 2000); Cliburn v. Cliburn, 48 So. 2d 126 (Miss.
1950); In Re Marriage of DeLeon, 804 S W.2d 801 (Mo. Ct.
App. E.D. 1991); Rabbani v. Rabbani, 178 A.D.2d 637 (N.Y. 2
Dept. 1991); Gonzalez v. Beraha, 449 F. Supp. 1011 (D C.
Canal Zone 1978); Hyde v. Hyde, 562 S.W.2d 194 (Tenn. 1978).
The [11/28/03 Decree] is not void ab initio and should not
be set aside. Id.
The Hawafi appellate courts apparently have never
addressed whether the family court, based on the principle of
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comity, should recognize a divorce decree obtained in a foreign
country when at least one of the parties was not a domiciliary3
of that country. "Comity" is defined as "the principle that
courts of one state or jurisdiction will give effect to the laws
and judicial decisions of another state or jurisdiction out of
deference and mutual respect." Metcalf v. Voluntarv Emplovees'
B@nefic As,s'n of Hawaii, 99 Hawai‘i 53, 53, 52 P.zd 823, 828
(2002) (internal quotation marks and citation omitted).
A United States court "may, but is not required to,
recognize a divorce decree from a foreign country under the'
doctrine of comity." Adams v. Adams, 869 A.2d 124, 127 (Vt.
2005); see e.q,, Yu v. Zhanq, 885 N.E.2d 278, 284 (Ohio Ct. App.
2008) (holding that "comity is an Qhio court's recognition of a
foreign [divorce] decree as a matter of courtesy"); Jahed v.
Ag;i, 468 F.3d 230, 235 (2006) (holding that generally, a court
will recognize a divorce decree under the principle of comity);
Basiounv v. Basiounv, 445 So. 2d 916, 918 (Ala. Civ. App. 1984)
(holding that a "divorce obtained in a foreign country is
recognized by comity").
The majority of United States courts refuse to
recognize a divorce obtained in a foreign country where neither
party was a domiciliary“ of that country:
Regardless of its validity in the nation awarding it,
the courts of this country will not generally recognize a
judgment of divorce rendered by the courts of a foreign
nation as valid to terminate the existence of the marriage
unless, by the standards of the jurisdiction in which
recognition is sought, at least one of the spouses was a
good-faith domiciliary in the foreign nation at the time the
decree was rendered.
R,F. Chase, Annotation, Domestic Recognition of Divorce Decree
Obtained in Foreign Country and Attacked for Lack of Domicil or
3 A "domiciliary" is "[a] person who resides in a particular place with
the intention of making it a principal place of abode; one who is domiciled in
a particular jurisdiction." Black's Law Dictionary 524 (8th ed. 2004).
4 "Under our system of law, judicial power to grant a divorce --
jurisdiction, strictly speaking -- is founded on domicil. . . . Domicil
implies a nexus between person and place of such permanence as to control the
creation of legal relations and responsibilities of the utmost significance "
williams v. State of North Carolina, 325 U.S. 226, 229 (1945) (citation
omitted).
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Jurisdiction of Parties, 13 A.L.R.3d 14l9, 1425 (1967). §§§
e.g., Carr v. Carr, 724 So. 2d 937, 940 (Miss. Ct. App. 1998)
(holding that for Mississippi court to recognize validity of
divorce decree husband obtained in Dominican Republic, husband
would have to demonstrate he traveled to Dominican Republic with
intent to remain there and not solely for purpose of securing a
divorce); Bruneau v. Bruneau, 489 A.2d 1049, 1051 (Conn. App. Ct.
1985) (stating United States courts will not generally recognize
judgment of divorce granted by court of foreign nation unless, by
standards of jurisdiction in which recognition is sought, at
least one spouse was good-faith domiciliary in foreign nation at
time decree was rendered); Mayer v. Mayer, 311 S.E.2d 659, 664
(N.C. Ct. App, 1984) (holding that Dominican court had
insufficient jurisdiction to issue divorce decree to two persons
domiciled in North Carolina and, citing to Annot., 13 A.L.R.3d
1419, stating that "[t]he great weight of authority in this
country is that divorces granted in foreign countries to persons
who are domiciliaries of the United States are not valid and
enforceable"); Basiouny, 445 So. 2d at 919 (holding that Alabama
trial court did not err by refusing to recognize Egyptian divorce
decree where neither party was domiciled in Egypt at time decree
was issued); Sargent v. Sargent, 307 A.2d 353, 356 (Pa. Super.
Ct. 1973) (holding that "[a]n absolute prerequisite to judicial
recognition of an out-of-state divorce is that the plaintiff must
have resided in the . . . country for a minimum period of
residency" and "the residency be accompanied by 'domiciliary
intent'"); Clark v. Clark, 192 So. 2d 594, 596-97 (La. Ct. App.
1966) (refusing to uphold validity of Mexican divorce decree
where parties, residents and domiciliaries of Louisiana, went to
Mexico for sole purpose of obtaining divorce); Sohnlein v.
winche11, 41 cai. Rptr. i45, 146-47 (Cal. Dist. Ct. App. i964)
(refusing to recognize Mexican divorce decree where party stayed
in Mexico for only two or three days, after which decree was
issued, and holding that "where the foreign jurisdiction has no
legitimate interest in the status of the parties, or where the
sole purpose of seeking the divorce in the foreign jurisdiction
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is to evade the policy of this state, the judgement should not be
recognized"); Cross v. Cross, 381 P.2d 573, 574 (Ariz. 1963)
(holding that Mexican divorce was a nullity and totally void
where parties were not residents of Mexico because "Mexican Court
did not have the slightest semblance of jurisdiction to
adjudicate the marital status" of the parties).
Neither Dubie nor Sylvie was domiciled in the Dominican
Republic at the time the Dominican court issued the Dominican
Decree. To recognize the Dominican divorce would violate our
public policy of requiring an applicant for divorce to be
domiciled or physically present in the state for at least six
months to qualify for a divorce. HRS § 580-1 (2006 Repl.)
provides:
§580-1 Jurisdiction; hearing. Exclusive original
jurisdiction in matters of . . . divorce . . . is conferred
upon the family court of the circuit in which the applicant
has been domiciled or has been physically present for a
continuous period of at least three months next preceding
the application therefor. No absolute divorce from the bond
of matrimony shall be granted for any cause unless either
party to the marriage has been domiciled or has been
physically present in the State for a continuous period of
at least six months next preceding the application therefor.
Given the foregoing, we decline to depart from the
majority rule and hold that the circuit court abused its
discretion in recognizing the Dominican Decree on the basis of
comity and that COL 35 is wrong.5
5 In making this holding, we note that in COL 35, only one of the
authorities the family court cites to supports the court's conclusion therein.
The applicable portion of Metcalf to which the court cites merely defines the
term "comity." 99 HawaFi at 58, 52 P.3d at 828. The following authorities
to which the family court cites are inapplicable to this case. The portion of
Hilton v. Guyot, 159 U.S. 113, 205-06 (1895), concerns whether a United States
court should acknowledge a money judgment against an American citizen made by
a foreign court, in a case brought by a citizen of that foreign country. In
In re Marriaqe of Goode, 997 P.2d 244, 246 & 249 (Or. Ct. App. 2000), the
Court of Appeals of Oregon found that it would grant comity to a Dominican
divorce decree where the wife and husband were Columbian residents and
domiciliaries at the time of the divorce because "[a]ny public policy of the
State of Oregon to prevent forum shopping could not have been violated under
those circumstances, as it might have been had wife been an Oregon resident at
the time that she obtained the divorce." Cliburn v. Cliburn, 48 So. 2d 126,
126-27 (Miss. 1950), concerned whether the chancery court of Mississippi had
the power to set aside a decree of the chancery court of Arkansas, not a
foreign country. In 1n re Marriage of DeLeon, 804 S.W.2d 801, 804 (Mo, Ct.
App. 1991), the parties who had obtained a divorce in the Dominican Republic
were citizens of that country, were married there, were living there at the
time of their separation, and owned substantial real and personal property
(continued...)
F()R PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
2. Dominican Decree entitled to practical recognition
_based on quasi-estoppel
Even though the foreign decree may not be entitled to
pro forma recognition, most courts agree that practical
recognition may be accorded under the doctrines of estoppel,
laches, unclean hands, or like equitable principle, upon a
proper evidentiary showing of reliance, undue delay,
improper motivation, or similar conduct.
Annot., 13 A.L.R.3d at 1424.
1n Bruneau, 489 A.2d at 1052 (brackets in original
obmitted), the Appellate Court of Connecticut stated:
The concept of "practical" recognition of a divorce
decree rendered in a foreign nation where neither spouse is
domiciled has been recognized by a number of courts. See,
e.g., Mayer v. Mayer, 66 N.C. App, 522, 311 S.E.2d 659(1984); see also [A]nnot.,-13 A.L.R.3d 1419, § 8(a) and
cases cited therein. "Practical recognition may be accorded
such decrees by estoppel, laches, unclean hands, or similar
equitable doctrine under which the party attacking the
decree may be effectively barred from securing a judgment of
invalidity." Annot., 13 A.L.R.3d 1419, 1452. Thus, a party
may be precluded from attacking a foreign divorce decree if
such an attack would be inequitable under the circumstances.
3cherer v. Scherer, 405 N.E.2d 40, 44 (Ind. [Ct.] App.
1980). ,Moreover, in a case involving a Mexican divorce, our
Supreme Court has recently recognized that "out-of-state
divorces are now both less likely and less opprobrious," and
that, therefore, such divorces should not lightly be
overturned where "the parties had intended to channel the
dissolution of their marriage in a legitimate rather than in
an illegitimate fashion " Hayes v. Beresford, 184 Conn.
558, 567, 440 A.2d 224 (1981); see also Lavigne v. Lavigne,
3 COnD. App. 423, 488 A.2d 1290 (1985).
Hawafi recognizes the theory of quasi-estoppel, which
is "a species of equitable estoppel which has its basis in
election, waiver, acquiescence, or even acceptance of benefits
and which precludes a party from asserting to another's
5(...continued)
located there. In Rabbani v. Rabbani, 178 A.D.2d 637, 637 (N.Y. App. Div.
1991), plaintiff wife did not challenge the validity of the judgment of
divorce. ln Gonzalez v. Beraha, 449 F. Supp. 101l, 1012-13 (D.C.Z. 1978)
(internal quotation marks and citation omitted), the United State District
Court for the District of the Canal Zone recognized a Panamanian divorce not
only pursuant to the principle of comity, but based on federal law concerning
the Canal Zone, which required the district court to recognize the judgment of
a foreign country’s courts and give such judgments "the same effect as final
judgments rendered in the Canal Zone "
Hyde v. Hyde, 562 8 W.2d 194 (Tenn. 1978), is arguably applicable to the
facts in this case. There, the Tennessee Supreme Court upheld the validity of
a Dominican divorce decree issued to Memphis residents. lQ; at 195 & 197.
However, the greater weight of authority nationwide supports the notion that
courts generally should not extend comity to a divorce decree issued by a
court in a foreign country where neither party to the divorce was a
domiciliary of that country.
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disadvantage, a right inconsistent with a position previously
taken by [the party] " Anderson v. Anderson, 59 Haw. 575, 589,
585 P.2d 938, 947 (1978) (internal quotation marks and citation
omitted); see Aehegma v. Aehegma, 8 Haw. App. 2l5, 224, 797 P.2d
74, 80 (l990) (similarly defining quasi-estoppel); see also
Hartmann v. Bertelmann, 39 Haw. 619, 626-31 (Haw. Terr. 1952)
(holding that beneficiaries of testamentary trust were estopped
from claiming damages to trust allegedly caused by trustee's
failure to sell certain real property within reasonable time as
provided for by will of testator, where beneficiaries had
contributed to delay in sale of real property by their insistence
that property be sold for price in excess of price recommended by
trustee and prices offered by potential purchasers).
In the instant case, the family court held the
following in COL 39:
39. [Geraldine] is estopped from asserting that
[her] marriage to Dubie is void based on the principle of
estoppel and unclean hands. Mayer v. Mayer, 311 S.E 2d 659
(N.C. Ct. App. l984); De Marco v. De Marco, 426 N.Y.S.2d 127(N Y. 3d Dep‘t 1980); Taylor v. Taylor, S.E.2d [sic] 542,
546 (1987); Chilcott v. Chilcott, 257 Cal. App. 2d 868 (Cal.
1968); Bruguiere v. Bruguiere, 155 P. 988 (Cal. [1916]).
a. Geraldine's arguments _
Geraldine argues COL 39 is wrong because it is based on
various clearly erroneous FOFs. She maintains that the principle
of quasi-estoppel "is completely inapplicable to [her], who
didn't even meet Dubie until a year after the bogus Dominican
divorce, who didn’t know it was bogus, and whose hands, unlike
Dubie's [and Sylvie's], are clean."
(i) FOFs 11 through 16 and 25
FOFs 11 through 16 and 25 provide:
11. From February 2, 1995 until present, Sylvie
relied upon the validity of the [Dominican] Decree entered
by the [Dominican court],
12. Ever since the [Dominican] Decree was entered,
Syvie has held herself out as being divorced from Dubie.
13. Prior to [Geraldine's] [Motion for Post-Decree
Relief], at no time did anyone ever question the validity of
the [Dominican] Decree.
14. Sylvie did not question the validity of the
[Dominican] Decree because when purchasing a home in 1995,
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Sylvie successfully proved the validity of the [Dominican]
Decree to an attorney in the province of Quebec, Canada.
15. ' ln reliance on the [Dominican] Decree, Sylvie
and Dubie's daughter, Felicia ("Felicia"), had her last name
changed to "Dubie" so that she would be able to live with
her father.
16. In 1995, the U.S. Embassy certified and
recognized the [Dominican] Decree by acknowledging the
Dominican Republic divorce procedures.
25. Based on Sylvie's meetings with Dubie and
[Geraldine], Sylvie had an opportunity to observe Dubie and
[Geraldine's] relationship. Dubie relied upon the validity
of the [Dominican] Decree and held himself out as being
divorced. Sylvie also observed that after Dubie and
[Geraldine] were married, they acted like a married couple,
lived together and introduced each other as husband and
wife.
(Record references omitted.)
Geraldine maintains that FOFs 11 through 16 are clearly
erroneous because they are based on insubstantial evidence and
because Sylvie knew the Dominican Decree was a sham, as evidenced
by a Variation of Separation Agreement (Separation Agreement),
which Sylvie and Dubie executed under oath on September 20, 1996
and filed on October 23, 1996 in the Supreme Court of British
Columbia, Canada, and in which Sylvie swore that she was still
Dubie‘s wife. Geraldine adds that she did not "even meet Dubie
until a year after the sham divorce.“
Geraldine attached the Separation Agreement, with the
"October 23, l996, Victoria Registry" stamp on it, to her Motion
for Post-Decree Relief. The Separation Agreement refers to
Sylvie and Dubie as husband and wife. FOFs 11 through 16 are
based on Sylvie's declaration, which Nancy attached to her
memorandum in opposition to the Motion for Post-Decree Relief,
and these findings are all supported by statements made in
Sylvie's declaration.
"[I]t is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of the evidence; this is the province of the trier of
fact." Inoue, 118 Hawafi at 101, 185 P.3d at 849 (internal
quotation marks and citation omitted). We decline to review the
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family court's determination that Sylvie's declaration carried
more weight than the Separation Agreement.
Geraldine maintains FOF 25 is clearly erroneous because
"Dubie didn't rely upon the validity of the Dominican [D]ecree,``
except to fool [Geraldine] into thinking he was her husband,
establishing a relationship that allowed him to gain her trust
and steal her money." The findings in FOF 25 are supported by
the statements in Sylvie's declaration. Again, we decline to
pass upon the family court's weight-of-the-evidence
determination, lgQue, 118 Hawafi at 101, 185 P.3d at 849.
(ii) FOFs 19 and 23
Geraldine contends FOFs 19 and 23 are clearly
erroneous. FOF 19 provides that "[w1ith full knowledge of the
[Dominican] Decree, on or about April 30, l996, [Geraldine]
completed and submitted a Marriage License Application to the
Department of Health for the State of HawaFi." FOF 23 provides
that "[a]t the time of the marriage ceremony, [Geraldine] had
knowledge, or at least, had constructive knowledge of the
[Dominican] Decree and that it was obtained in the Dominican
Republic.“
Geraldine argues that she did not have "full knowledge"
of the Dominican Decree because she did not know that it was an
absolute nullity and, therefore, her own marriage to and divorce
from Dubie were void. She cites to Yuen Shee v. London Guarantee
& ACCident Co., 40 HaW. 213, 229-30 (I-IaW. Terr. 1953), and
Anderson to support this argument. ln Yuen Shee, the Hawafi
Supreme Court stated that quasi-estoppel is "based upon the broad
equitable principle which courts recognize, that a person, with
full knowledge of the facts, shall not be permitted to act in a
manner inconsistent with his former position or conduct to the
injury of another." 40 Haw. at 230. ln Anderson, the HawaiU.
Supreme Court held that within the context of estoppel, "[b]efore
one may be charged with knowledge it must appear that he
possesses full knowledge of all the material particulars and
circumstances and was fully apprised of the effect of the acts
ratified and of his legal rights in the matter." 59 Haw. at 589,
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585 P.2d at 946 (internal quotation marks, citation, and
parentheses omitted).
FOF 20, which Geraldine does not contest, provides that
"[t1he application for marriage license indicated that Dubie's
marriage to Sylvie ended in divorce in 1995 in the Dominican
Republic, Caribbean." There is no evidence in the record on
appeal that Geraldine thought Dubie or Sylvie was a domiciliary
of the Dominican Republic at the time of the Dominican divorce.
Hence, Geraldine had "full knowledge" of the relevant facts at
the time she married Dubie sufficient to warrant the family
``court's application of the quasi-estoppel principle. FOFs 19 and
23 are not clearly erroneous.
(iii) Points regarding other FOFs
Geraldine contends the portion of FOF 22 stating that
she and Dubie "participated in a ceremonial marriage," the
portion of FOF 23 referring to that "marriage ceremony," and the
portion of FOF 27 stating that the family court granted
Geraldine's petition for divorce from Dubie are clearly
erroneous. Because we hold Geraldine was estopped from asserting
that the divorce was void, see Part II1.A.2.b, we need not
address these points.
b. Quasi~estoppel applies
1n Mayer, Doris Mayer (Doris) sued for divorce from her
purported husband, Victor Mayer (Victor), (Doris and Victor
collectively, the Mayers). 311 S.E.2d at 662. Victor counter-
claimed for an annulment and asserted that he and Doris were not
married because at the time of their purported marriage, Doris
was already married to Fred Crumpler (Fred). lee Victor
asserted that Doris and Fred had attempted to divorce by
obtaining a divorce decree from a Dominican court, but the decree
was void and in contravention of the laws of North Carolina. lee
Victor claimed Doris knew the decree was void because she had
been so advised by counsel, lee
The trial court denied relief to Doris, finding the
Dominican divorce was invalid and the Mayers' marriage was void.
1d. Doris appealed to the Court of Appeals of North Carolina,
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arguing that her Dominican divorce from Fred was valid. 1d. In
the alternative, she argued that even if the court of appeals
found the Dominican divorce invalid, victor should
nevertheless, be estopped from questioning its validity
since (a) he participated in her procurement of the invalid
divorce; (b) all parties relied upon the divorce‘s validity
until {victor1 abandoned [Doris]; and (c) a contrary result
would create a marriage at will by [victor], who could end
the marital relationship at any time he desired, and yet
prevent [Doris] from avoiding the obligations of her
remarriage,
lee at 665-66.
The court of appeals held that based on the theory of
quasi-estoppel, it would be more inimical to North Carolina law
and policy to permit victor to avoid his marital obligations by
acting inconsistently with his prior conduct:
As much as in any area of the law, quasi estoppel
cases turn on the particular facts of each case. The facts
in this case compel the conclusion we reach. The record
suggests that [victor] insisted on [Doris's] obtaining a
Dominican divorce; that he promised to support her in a
manner better than the one she had been accustomed to
prompting [Doris] to sign away any alimony she may have been
entitled to from [Fred]; and that he accompanied her on her
trip to the Dominican Republic, paying for her
transportation and lodging, and other personal expenses.
After the divorce, [victor] continued to uphold its validity
as he had [Doris] sign a prenuptial agreement and he married
her, While they were married, [victor] lived in [Doris's]
house and borrowed money from her, including $25,000 which
he admits he has not repaid. [victor] never questioned the
validity of the marriage until he abandoned [Doris]. In
addition, [Doris] relied on the divorce's validity.
Failure to estop [victor1 in this case would result in
matrimonial uncertainty because . . . it creates the
impossible situation of a wife or a husband "at will" where
the divorced party who remarried cannot avoid the obligation
of his remarriage, while the second spouse could at any time
get an annulment.
1d. at 668 (internal quotation marks, citation, and brackets in
original omitted).
Scherer v. Scherer, 405 N E.2d 40 (Ind. Ct. App. 1980),
involved the following background facts:
Marital difficulties arose shortly after the parties
were married in January 1970, and the husband [Howard J.
Scherer (Howard)] frequently stated he desired a divorce.
In the fall of 1976 [Howard] contacted an attorney, Howard
S. Grimm [(Grimm)], with whom he had prior business
dealings, regarding the possibility of Grimm representing
him in a divorce proceeding. In the latter part of October
1976 the parties [Howard and his wife, Carol L. Scherer
(Carol), (collectively, the Scherers)] met with [Grimm],
pursuant to prearrangement by [Howard], and [Howard] agreed
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to obtain a Mexican divorce at the end of the current school
year to avoid the notoriety of a local divorce. The
[Scherers] discussed and indicated they were amenable to a
separation agreement for the purpose of settling the matters
of property, custody, support, and visitation. [Howard1
moved out of the parties' residence in Woodburn, 1ndiana,
that evening. On December 31, 1976 the [Scherers] and
[Grimm] met at [Howard's] residence in Fort Wayne and both
signed a separation agreement which [Grimm] had drafted.
Under this agreement, [Carol] was to receive the Woodburn,
Indiana residence which included 12.431 acres of land. She
was also to receive certain personal property upon the
payment of $37,000.00, [Howard] was to become the absolute
owner of the business known as Scherer 1ndustrial Waste
Company, 1nc., and all the items of personal property
therein. He was also to become the sole owner of all common
stock and certain antique furnishings. [Howard] agreed to
pay child support of $55.00 per week for one child, the
custody of whom was to be awarded to [Carol]. [Howard]
executed the necessary quit claim deed and real estate
mortgage which had been prepared pursuant to the agreement.
1n addition he executed a special power of attorney obtained
for use in divorce proceedings in the Dominican Republic.
On January 14, 1977 [Carol] notified [Howard] she had
made arrangements to travel to the Dominican Republic that
day for the purpose of obtaining a divorce. During the
conversation the [Scherers] learned they would be traveling
on the same plane because [Howard] had made plans to go to
Florida. Later that day the [Scherers1 boarded the flight
for Cleveland and sat together, during which time [Howard]
commented on how glad he was the marriage was over. In
Cleveland they had a drink together before [Carol] continued
to the Dominican Republic and [Howard] to Florida. On
January 17, 1977, [Carol] appeared before the Dominican
Republic Court in person and [Howard] appeared through
counsel and a final divorce decree was rendered. 1n the
Dominican Repub1ic decree it is stated that the parties
expressly submitted to the jurisdiction of the court, and
that [Howard] appeared before the Court by his attorney.
The decree also recited that both [Howard] and [Carol] were
domiciliaries of Indiana. The basis of the foreign decree
as set forth therein, was "incompatibility of temperaments."
The decree further expressly provided that the separation
agreement executed by the [Scherers] on December 31, 1976 in
Indiana, which was presented to the Dominican Republic Court
and merged into the divorce decree, was not affected nor
modified by the judgment and would survive in the form
established by the laws of the place where the separation
agreement was signed. [Carol] returned to Indiana the same
day. [Howard] a few days later called her to see if [they]
were in fact divorced, was told they were, and again
expressed relief the marriage was over, stated he hoped they
could continue to be friends. In the ensuing months
[Howard1 informed several people that he and [Carol] were no
longer married since they had obtained a divorce in the
Dominican Republic. Moreover, both parties accepted the
benefits of the separation agreement incorporated into the
divorce decree, and [Carol] assumed custody of [their]
child. [Howard1 told [Carol] of his plans to remarry in
July, and publicly accepted congratulations from friends.
[Howard] also indicated to various people, however, that he
wished he and [Carol] had not gone through with the divorce.
[Carol] had married [Grimm1 on March 30, 1977.
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lee at 45-46 (footnote omitted).
On July 12, 1977, in Allen County, 1ndiana, Howard
filed a petition for dissolution of his marriage to Carol,
praying for an equitable distribution of property acquired during
the marriage. gee at 42. Carol filed a motion for summary
judgment, in which she claimed that the Dominican Republic
divorce decree barred the Indiana proceeding. ;de. The trial
court granted Carol summary judgment, finding that the parties
had obtained a valid bilateral divorce and Howard was estopped
from denying its validity. lee at 43. Howard appealed to the
Court of Appeals of Indiana, lee at 42-43, arguing that the
Dominican Republic divorce decree was invalid because neither he
nor Carol was a domiciliary of the Dominican Republic at the time
they obtained their purported divorce. lde_at 43. The appeals
court held:
Under the circumstances of this case, we believe the
trial court was correct in its finding that [Howard] should
be estopped from attacking the Dominican Republic decree.
[Howard's] attack on the decree is inconsistent with his
conduct before and after the foreign divorce. He initiated
contact with an attorney for the purpose of possibly
obtaining a divorce; he agreed to the parties obtaining a
foreign divorce; he acquiesced in the procurement of the
divorce by executing the pertinent documents; he considered
himself divorced, expressed relief that the marriage was
over, and stated his plans to remarry, and he waited six
months to challenge the validity of the decree,
Furthermore, action was taken in reliance on the divorce,
including the wife's remarriage, in such a manner that it
would now be inequitable to permit the husband to challenge
the decree, ‘
lee at 46.
ln the instant case, Geraldine waited nearly eleven
years from the time she married Dubie in l996, with full
knowledge of the Dominican Decree, to question the Dominican
Decree's validity. Geraldine and Dubie‘s application for a
marriage license -- which Geraldine signed, swearing under oath
that the information contained therein was true and correct to
the best of her knowledge -- indicated that Dubie's marriage to
Sylvie ended in divorce in 1995 in the Dominican Republic.
Geraldine met and spent time with Sylvie and Felicia after
marrying Dubie. Under these facts, Geraldine accepted the
benefits of the Dominican Divorce by enjoying her marriage to
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Dubie for roughly six and a half years prior to divorcing him in
2003. Anderson, 59 Haw. at 589, 585 P.2d at 947. Thus, her
challenge to the validity of the Dominican Divorce is
inconsistent with her previous position. lee
Given the foregoing, we hold that based on FOFs 11
through 25, which are not clearly erroneous, see Parts 1I1.A.2.a
and 111 C, the family court did not abuse its discretion in
finding that Geraldine was estopped from challenging the validity
of the Dominican Decree, and COL 39 is not wrong.
B. whether notice to Geraldine adequate
Geraldine contends the undisputed evidence showed that
notice to her of the Dominican divorce was inadequate, a
violation of the due process. Given our holding that the family
court did not abuse its discretion in finding Geraldine was
estopped from contesting the validity of the Dominican Decree,
see Part 1ll.A.2, we need not address this point.
C. whether Dominican Decree subject to collateral
attack
Gera1dine contends the Dominican Decree is subject to
collateral attack because it is void ab initio, and COL 34 is
wrong. Given our holding that Geraldine was estopped from
attacking the validity of the Dominican Decree, we need not
address this point.
D. Whether Geraldine entitled to relief, hearing on
undue influence, fraud claims
1n her Motion for Post-Decree Relief, Geraldine argued
in the alternative that the family court should set aside the
property division portion of the 11/28/03 Decree because Dubie
exercised undue influence on her and fraud on the court. ln COL
31, the family court held that "[Geraldine's] claims sound in
fraud or other intentional misconduct, and therefore are time-
barred pursuant to [HFCR Rule] 60(b)(3). [Wehrle] v. Robison,
590 Pf2d 633 (N.M. 1979); {HFCR Rule] 60(b)(3)." Geraldine
maintains that COL 31 is wrong because HFCR Rule 60(b)(6), not
HFCR Rule 60(b)(3), applies to her fraud and undue influence
claims.
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HFCR Rule 60(b) provides in relevant part:
Ru1e 60. RELIEF FRoM JUDGMENT oR oRDER
(b) Mistakes; inadvertence; excusable neglect; newly
discovered evidence; fraud. On motion and upon such terms
as are just, the court may relieve a party or a party's
legal representative from any or all of the provisions of a
final judgment, order, or proceeding for the following
reasons: . . . (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; . . . or (6) any other
reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for
reasons (1), (2), and (3) not more than one year after the
judgment, order, or proceedings was entered or taken.
ln her Motion for Post-Decree Relief, Geraldine argued that
"[n1either undue influence . . . nor fraud on the court are
specifically stated in HFCR Rule 60(b)(1)-(5)" and therefore her
claims fell under Rule 60(b)(6) and were not time-barred.
On appeal, Geraldine maintains that because she proved
her case of undue influence and fraud on the family court, which
Nancy failed to rebut, the court should have granted her relief,
or at least an evidentiary hearing. She cites to Hayashi v.
Hayashi, 4 Haw. App. 286, 290, 666 P.2d 17l, 174 (l983),6 tO
support this argument.
In her Motion for Post-Decree Relief, Geraldine argued
the following: (1) Dubie had "used deception and exercised undue
influence to achieve a grossly inequitable division" of property
in their divorce; (2) "from the beginning of their relationship"
Dubie had "intentionally made factual misrepresentations to her
regarding his financial worth, his business activities, his past,
his character, his children, and his marital status"; (3) on
information and belief, Dubie knew that he had not been validly
divorced from Sylvie at the time he purportedly married
6 In Hayashi, 4 Haw. App. at 290, 666 P.2d at 174, this court stated:
[HFCR] Rule 60(b)(6) permits the trial court in its sound
discretion to relieve a party from a final judgment. Isemoto
Contracting Co. v. Andrade, 1 Haw. App. 202, 616 P.2d 1022 (1980).
Such relief is extraordinary and the movant must show that (1) the
motion is based on some reason other than those specifically
stated in clauses 60(b)(1) through (5); (2) the reason urged is
such as to justify the relief; and (3) the motion is made within a
reasonable time. 7 Moore‘s Federal Practice 1 60.27[1] (2d ed.
1982).
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_Geraldine; and (4) had Geraldine known about Dubie's
misrepresentations to her, she would not have married him. She
also argued that Dubie had committed fraud on the court "by
concealing the fact that he had never divorced [Sylvie1, thereby
claiming a status and identity (;see, a married man) to gain
access to this court so he could use it as a device to improperly
obtain [Geraldine's] assets."
HFCR Rule 60(b)(3) applies in this case. lt provides:
(b) Mistakes; inadvertence; excusable neglect; newly
discovered evidence; fraud. On motion and upon such terms
as are just, the court may relieve a party or a party's
legal representative from any or all of the provisions of a
final judgment, order, or proceeding for the following
reasons: . , . (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party[ ]"
The rule does not specify upon whom the adverse party must have
committed the fraud, misrepresentation, or other misconduct,
Therefore, although Geraldine characterizes Dubie's alleged fraud
as "fraud on the court," that fraud claim nevertheless still
falls under HFCR Rule 60(b)(3). Further, a plain reading of HFCR
Rule 60(b) reveals that "undue influence" falls within Rule
60(b)(3) as "other misconduct."
Geraldine filed her Motion for Post-Decree Relief on
June 28, 2007 -- more than one year after the 11/28/03 Decree was
entered. According to HFCR Rule 60(b), her fraud and undue
influence claims were untimely, and the family court did not
abuse its discretion by failing to provide Geraldine relief or a
hearing regarding them. See Child Support Enforcement Agency v.
DOe, 98 HaWafi 499, 503, 51 P.3d 366, 370 (2002) ("The
timeliness of a motion brought pursuant to HFCR Rule 60(b)
implicates the jurisdiction of the family court."). COL 31 is
not wrong.
Geraldine argues that COLs 40 and 41 are wrong because
"the property settlements were unfair, inequitable, against
public policy and were procured through undue influence and fraud
on the Court." She maintains that COL 44 is wrong because her
claims of undue influence and fraud on the court were timely
pursuant to HFCR Rule 60(b)(6). Given our holding that
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Geraldine's alternative argument in her Motion for Post-Decree
Relief was untimely, we need not address these points.
E. Remaining FOFs and COLs
In her points of error, Geraldine contends that
portions of FOFs 6, 7, 8, 10, 17, and 28 are clearly erroneous
and COLs 30, 32, 36, 37, 38, 40, 41, 42, 43, and 44 are wrong.
Geraldine argues that the following FOFs or portions of
FOFs are clearly erroneous: the portion of FOF 6 stating that
the Dominican Decree was granted on February 7, 1995 because it
was actually granted on February 2, l995; FOF 10, because it
states that the time period within which to appeal the Dominican
Decree elapsed on April 7, 1995, instead of the correct date of
April 2, l995; FOF 7, because the Dominican Decree was not mailed
to Dubie, but was "served by the court bailiff of the 3rd Civil
Chambers serving the notice on Maria Luisa de la Paz, secretary
of the District Attorney for the Judicial District of Santo
Domingo, Dominican Republic"; FOF 17, because no evidence was
presented that Geraldine was the co-founder of Herbalife and it
was irrelevant, even if true; and FOF 28, because it is based on
insubstantial evidence and "purports to divine [Geraldine's]
motive as related to [Sylvie] by Dubie." Even if Geraldine's
contentions are true, we fail to see how any such errors
prejudiced her and hold that they were harmless. see HRE Rule
103<@) (supp. 2009).
'Gera1dine argues that COL 32 is "correct as to review
of the ruling on the [HFCR Rule] 60(b)(4) motion, as to which the
standard is right/wrong and the review de novo. As to review of
the denial of relief under [HFCR Rule] 60(b)(6), the standard is
abuse of discretion." COL 32 provides: "Determining whether a
judgment should be set aside pursuant to Rule 60(b) of the [HFCR]
is not a matter of discretion. In re Hana Ranch, Co., 3 Haw.
App. 141, 146, 642 P.2d 938, 941 (1982)." In Hana Ranch, this
court actually held that courts apply different_standards of
review to motions brought under subsections (b)(4) and (b)(6) of
HFCR Rule 60. Referring to HFCR Rule 60(b)(4), we stated that
"[t1he determination of whether a judgment is void is not a
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discretionary issue." Hana Ranch, 3 Haw. App. at 146, 642 P.2d
at 941. With regard to HFCR Rule 60(b)(6), we stated that it
"empowers the court in its discretion to vacate a judgment
whenever that action is appropriate to accomplish justice." sess
Beseh, 3 Haw. App. at 147, 642 P.2d at 942. Therefore, COL 32 is
wrong. Nevertheless, because HFCR Rule 60(b)(6) is inapplicable
to this case, as we have held, the court's error was harmless.
see HRE Rule l03(a).
Geraldine argues that that COL 42 is wrong because her
motion to vacate or set aside the property division portion of
the 11/28/03 Decree was not a creditor‘s claim, only the family
court had the power to grant the motion, and the probate court
does not have subject matter jurisdiction to vacate the 11/28/03
Decree. She adds that in its FOFs/COLs Re Motion for Post-Decree
Relief, the family court misdated the 11/28/03 Decree as the
"November 23, 2003 Divorce Decree." Given our holding that
Geraldine's fraud and undue influence claims were untimely, see
Part ll1.B, we need not address her first three points. With
regard to the family court's allegedly misdating the decree,
throughout the FOFs/COLs Re Motion for Post-Decree Relief the
court mischaracterizes the divorce decree dissolving the marriage
between Dubie and Geraldine as the "November 23, 2003 Divorce
Decree" when the decree was actually filed on November 28, 2003;
however, we fail to see how any such error may have prejudiced
Geraldine and hold that it was harmless. §ee HRE Rule 103(a).
Geraldine argues the following FOFs are erroneous and
COLs are wrong; FOFs 6 and 8, because the Dominican Decree did
not terminate the Dominican divorce since the decree was void ab
initio; COL 30, because although the family court had "subject
matter jurisdiction and personal jurisdiction to grant relief
under Rule 60(b), HFCR," the court "did not have subject matter
jurisdiction to grant the decree or to award or divide property";
COL 36, because "[t1he uncontroverted facts establish as a matter
of law that [Geraldine] was never married to Dubie"; COL 37,
because it misstates the doctrine and law of impediment; COL 38,
because she did not ask the family court to set aside the
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Dominican Decree and res judicata did not apply; COLs 40 and 41,
because "[t]he four property settlements incorporated in the
decree lost their independent existence as contracts" since
"[t]he decree incorporating them is void ab initio"; and COL 43,
because it is irrelevant whether she and Dubie might be
considered putative spouses. Given our holding that Geraldine is
estopped from challenging the validity of the Dominican Decree,
we need not address these points.
1 Geraldine argues that COL 44 is wrong. COL 44
provides: "[Geraldine's1 claims to set aside the [11/28/03
Decree] and the [l1/28/03 Decree's] property division portion are
based on fraud and are therefore barred by the one-year statute
of limitations pursuant to Rule 60(b)(3) of the [HFCR].“
Geraldine argues that "her claim for relief under 60(b)(4) rests
on voidness, not fraud" and her "60(b)(6) claims (undue
influence, fraud on the court) were brought only months after
discovery and were timely under 60(b)(6)." We agree that the
portion of the COL stating that "[Geraldine's] claims to set
aside the [11/28/03 Decree] and the [11/28/03 Decree's] property
division portion are based on fraud and are therefore barred by
the one-year statute of limitations pursuant to Rule 60(b)(3) of
the [HFCR]" is too vague and, therefore, wrong. Geraldine's
primary argument in her Motion for Post-Decree Re1ief -- that the
Dominican Decree was void ab initio -- fell under HFCR Rule
60(b)(4). Her alternative argument, which fell under HFCR Rule
60(b)(3), was that the family court should set aside the property
division portion of the 11/28/03 Decree because the divorce had
been procured through undue influence and fraud on the court.
However, given our holdings that the family court did not abuse
its discretion by finding that Geraldine was estopped from
contesting the validity of the Dominican Decree, see Part
l11.A.2, and that Geraldine’s undue influence and fraud claims
were time-barred, see Part 11l.D., this point is moot.
IV.
The "Order Denying Plaintiff's Motion for Post-Decree
Relief to vacate Divorce Decree or Set Aside Property Division
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?ursuant to Hawaii Family Court Rule 60([b]), Filed June 28,
2007" filed on December 18, 2007 in the Family Court of the First
Circuit is affirmed.
On the briefs:
Michael Jay Green,
Howard Glickstein,
Kimberly A. van Horn
for Plaintiff-Appellant.
Raymond K. Okada,
Bruce L. Lamon, and
Kimberly J. Koide
(Goodsill Anderson Quinn & Stifel)
Paul A. Tomar
(Ashford & Wriston)
for Defendant-Appellee.
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