Atwood v. Atwood ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-JUN-2022
08:34 AM
Dkt. 53 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
RUSSELL DEAN ATWOOD, Plaintiff-Appellant, v.
BAY THI ATWOOD, now known as BAY THI PREST,
Defendant-Appellee.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 129086)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and McCullen, JJ.)
Plaintiff-Appellant Russell Dean Atwood (Atwood)
appeals from the Family Court of the First Circuit's (family
court)1 June 9, 2017 Court Order Acceptable for Processing Under
the Federal Retirement System ("FERS") (6/9/17 COAP), assigning
to his former wife, Defendant-Appellee Bay Thi Atwood, now known
as Bay Thi Prest (Prest), fifty percent of the marital portion of
his self-only, unreduced monthly annuity under the Federal
Employees' Retirement System (FERS).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve Atwood's
arguments below, and affirm.
1
The Honorable Gale L.F. Ching presided.
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(1) We first address Atwood's second point of error
contesting jurisdiction. Atwood argues that the family court
"erred when it determined it had jurisdiction to divide [his]
military pension, where [he] did not consent to the division,
because [he] resided and was domiciled in Texas since
December 15, 1997."
Here, the parties were married on October 15, 1972.
Findings of Fact (FOF) 1. Atwood served in the U.S. military
from February 1971 until May 15, 1982, and was barred from re-
enlistment because he was overweight. FOF 2-3. During his
military service, Atwood was married to Prest for nine years and
six months. FOF 4. The parties were divorced pursuant to a
divorce decree (Decree) filed on February 13, 1984. FOF 5. The
Decree specifically provided:
The court finds that [Atwood] has submitted to the
jurisdiction of this court. The court reserves jurisdiction
over the matter of [Prest's] entitlement and award of a
portion of any future retirement pay that may be awarded to
[Atwood] for that portion of his military service to [Prest]
[sic] during which he was married to [Prest] and to her
entitlement and award of a portion of any other retirement
pay or annuity based in part of such period of active
military service during which [Atwood] was married to
[Prest].
FOF 6 and 8 (emphasis added). Atwood's originally filed
financial affidavits list his military service as an asset.
FOF 9.
After being discharged, Atwood joined the Federal Civil
Service and became a Federal employee until his retirement in
2014. FOF 10. Atwood was vested in a FERS pension that was
derived in part from Atwood's past military service earned during
the time of his marriage to Prest. FOF 11. Atwood has been
receiving FERS pay and income since about October 2014. FOF 12.
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Based on the family court's unchallenged findings,
Atwood was vested under FERS and, in the Decree, the family court
expressly reserved its jurisdiction to address Prest's
entitlement to a portion of any future retirement pay or annuity
awarded to Atwood for his military service during the period he
was married to Prest. Okada Trucking Co. v. Bd. of Water Supply,
97 Hawai#i 450, 459, 40 P.3d 73, 82 (2002) ("[U]nchallenged
factual findings are deemed to be binding on appeal[.]")
Thus, the family court retained jurisdiction to divide
the marital property. See Riethbrock v. Lange, 128 Hawai#i 1,
16-17, 282 P.3d 543, 558-59 (2012); Hawaii Revised Statutes (HRS)
§ 580-56(a) (2018) and § 580-47(a) (2018).
(2) Atwood's first, fourth, and seventh2 points of
error relate to the division of property. Atwood argues that the
family court did not "finally divid[e] and distribut[e] the
parties' property as required by HRS § 580-47(a)" before it
entered the 6/9/17 COAP. Atwood thus argues that the family
court's Conclusions of Law (COL) 31, 32, and 373 are wrong
because "no lower court order permanently distributed the
2
Atwood misnumbers his points of error by repeating number five.
3
COL 31, 32, and 37 are as follows:
31. That Defendant's Motion was timely, proper, and was
supported by both precedent and statutory authority.
32. That the COAP prepared accurately reflected the Court's
Order, the state of the law as it applies to the division
[of] a Federal Pension, and information regarding Plaintiffs
Pension that is currently vested.
. . . .
37. That the Court's Order and the COAP filed shall not be
disturbed
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Plaintiff-Appellant's pension, which is a predicate to enter a
lawful COAP."
HRS § 580-47(a) provides in relevant 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
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 . . . (3) finally dividing and
distributing the estate of the parties, real, personal, or
mixed, whether community, joint, or separate. . . .
Under HRS § 580–47, "the family court has wide discretion to
divide marital partnership property according to what is 'just
and equitable' based on the facts and circumstances of each
case." Gordon v. Gordon, 135 Hawai#i 340, 348–49, 350 P.3d 1008,
1016–17 (2015) (citation omitted).
HRS § 580-47 does not require that, upon granting a
divorce or thereafter, a family court must enter a "predicate"
court order "finally dividing and distributing the estate of the
parties, real, personal, or mixed, whether community, joint, or
separate[,]" prior to entering a court order such as the 6/9/17
COAP at issue here. See State v. Ramela, 77 Hawai#i 394, 395,
885 P.2d 1135, 1136 (1994) (explaining that "where the language
of the statute is plain and unambiguous, our only duty is to give
effect to its plain and obvious meaning") (citation and internal
quotation marks omitted).
Further, concerning the requirements of a qualifying
court order under FERS, 5 C.F.R. part 838 does not require that a
separate judgment must immediately precede a COAP to be valid.
See Hein v. Hein, 972 N.W.2d 337, 343 (Mich. Ct. App. 2021)
(explaining that 5 C.F.R. part 838 "generally controls how the
relevant federal administrative agencies handle state
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domestic-relations orders affecting federal pensions"). A "court
order" means "any judgment or property settlement issued by or
approved by any court of any State . . . in connection with, or
incident to, the divorce . . . of a Federal employee or
retiree[,]" and a "court order acceptable for processing" means
"a court order . . . that meets the requirements of subpart C of
this part to affect an employee annuity[.]" 5 C.F.R. § 838.103.
Subpart C "regulates the requirements that a court
order directed at employee annuity must meet to be a court order
acceptable for processing." 5 C.F.R. § 838.301. A "court order
directed at employee annuity is not a court order acceptable for
processing unless it expressly divides the employee annuity" and
directs "[the Office of Personnel Management (OPM)] to pay the
former spouse directly." 5 C.F.R. § 838.303(a)-(b), 838.304(a)-
(b). Additionally, the COAP must provide "sufficient
instructions and information that OPM can compute the amount of
the former spouse's monthly benefit using only the express
language of the court order," and state the "type of annuity
(i.e., phased retirement annuity, composite retirement annuity,
net annuity, gross annuity, or self-only annuity) on which to
apply the [former spouse's share of employee annuity as a]
formula, percentage, or fraction." 5 C.F.R. § 838.305,
838.306(a).
Although Atwood argues that "[u]nder 5 CFR 838.103 the
federal regulations distinguish between a court order[] . . . and
a 'COAP'[,]" they are not two separate orders a state court must
enter to divide Atwood's pension. Rather, 5 C.F.R. § 838.103provides that, to qualify as a valid court order acceptable for
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processing, a court order must provide sufficient instructions
and information, expressly divide the employee or retiree's
annuity, and direct OPM to pay the former spouse directly.
5 C.F.R. §§ 838.103, 303(a)-(b), 304(a)-(b), 305, and 306(a).
Here, the 6/9/17 COAP expressly divided Atwood's
annuity under FERS. It provided sufficient instructions and
information for OPM to compute the amount of Prest's monthly
benefit, stated the type of annuity on which to apply Prest's
share of Atwood's annuity as a percentage (with formula), and
directed OPM to pay Prest directly. Therefore, the family court
did not err in issuing the 6/9/17 COAP without first entering a
separate, independent judgment.
(3) In Atwood's third and sixth points of error, he
argues that pursuant to Hawai#i Family Court Rules (HFCR)
Rule 58(b), his due process rights were violated because he did
not receive "notice" of Prest's proposed COAP and was "entitled
to file objections to the proposed order before it was entered
[on] June 9, 2017" by the family court. Therefore, Atwood
contends he was denied "an opportunity to be heard on a matter
that involved the taking of his property without [d]ue
[p]rocess," and the family court erred at COL 36 because the
"court never ordered Defendant-Appellant's counsel to not comply
with Rule 58 of the [HFCR] [.]"
"At its core, procedural due process of law requires
notice and an opportunity to be heard at a meaningful time and in
a meaningful manner before governmental deprivation of a
significant liberty interest." Doe v. Doe, 120 Hawai#i 149, 168,
202 P.3d 610, 629 (App. 2009) (citation omitted). However, "the
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requirements of due process frequently vary with the type of
proceeding involved." Calasa v. Greenwell, 2 Haw. App. 395, 399,
633 P.2d 553, 556 (1981) (cleaned up). The Hawai#i Supreme Court
has explained that "due process is flexible and calls for such
procedural protections as the particular situation demands."
State v. Guidry, 105 Hawai#i 222, 234, 96 P.3d 242, 254 (2004)
(cleaned up).
HFCR Rule 58(b) provides, in relevant part:
If any party objects to the form of a proposed judgment,
decree or order, that party shall within 5 days after
service of the proposed judgment, decree or order, file and
serve upon each party who has appeared in the action and
deliver to the court:
(1) a statement of objections and the reasons therefor; and
(2) the form of the objecting party's proposed judgment,
decree or order.
In such event, the court may schedule a Rule 58
conference or shall proceed to settle the judgment, decree
or order. Either party may request a Rule 58 conference.
Failure to file and serve objections and a proposed
judgment, decree, or order within the time frame required
shall constitute approval as to form of the drafting party's
proposed judgment, decree or order.
HFCR Rule 58(b).
In the instant case, the family court concluded that
Prest's "submission of the COAP was acting in compliance with the
Court's order." COL 36. Atwood has not provided the necessary
transcript for this court to review his argument that the family
court improperly entered the 6/9/17 COAP without first allowing
him to review the COAP pursuant to HFCR Rule 58(b). Hawai#i
Rules of Appellate Procedure (HRAP) Rule 10(b)(1)(A) (placing the
burden of providing transcript on the appellant); HRAP Rule 11(a)
(providing that "[i]t is the responsibility of each appellant to
provide a record . . . that is sufficient to review the points
asserted"); State v. Hoang, 93 Hawai#i 333, 336, 3 P.3d 499, 502
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(2000) (explaining that appellate courts "will not presume error
from a silent record").
We nonetheless address Atwood's points of error to the
extent possible. Based on unchallenged findings, the proposed
COAP "was transmitted to Counsel for Plaintiff on March 20, 2017.
Counsel for Plaintiff did never [sic] respond to this
transmission of the proposed Order." FOF 20. The proposed COAP
"was then forwarded to the Court for review, approval, execution
and filing." FOF 21. The family court received Prest's proposed
COAP on April 3, 2017, and it was entered on June 9, 2017. As
such, Atwood "had ample opportunity to review, comment, and
perhaps reject [Prest's] draft of the COAP eventually filed with
[the] court, and did not." COL 35.
Given these circumstances, Atwood's due process rights
were not violated. Doe, 120 Hawai#i at 168, 202 P.3d at 629;
Guidry, 105 Hawai#i at 234, 96 P.3d at 254. And based on the
record provided, Atwood has not shown how the family court's
mixed FOFs and COLs in its September 5, 2017 Findings of Fact and
Conclusions of Law were clearly erroneous. See Estate of Klink
ex. rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523
(2007).
(4) With respect to Atwood's fifth point of error, he
contends the family court erred because the COAP divided his
pension as of the date of his retirement, instead of the date of
the divorce. He does not indicate where he raised this issue
with the family court,4 and further, he asserts in his reply
4
Although Atwood's opening brief provides a citation to the record for
his fifth point of error, the citation is simply to the Decree. There is no
indication that he raised this issue in the family court.
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brief that he did not order transcripts because "there was
nothing in the oral proceedings[] where the lower court divided
[his] pension." The answering brief points to the family court's
minutes from March 8, 2017, which states, "arguments made
regarding the issue of the [Qualified Domestic Relations Order]."
Further, the minutes also state that "Atty Brower argued proper
jurisdiction over the [Qualified Domestic Relations Order] is the
State of Texas." (Emphasis added.) There is nothing indicating
that Atwood raised in the family court the issue he now asserts
in his fifth point of error, and thus it is waived. See HRAP
Rule 28(b)(4).
For the foregoing reasons, we affirm the family court's
June 9, 2017 Court Order Acceptable for Processing Under The
Federal Retirement System ("FERS") and September 5, 2017 Findings
of Fact and Conclusions of Law.
DATED: Honolulu, Hawai#i, June 24, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Scot Stuart Brower,
for Plaintiff-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Christopher D. Thomas,
Semmes H. Bobo, /s/ Sonja M.P. McCullen
for Defendant-Appellee. Associate Judge
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