Carzano v. Carzano ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-SEP-2022
08:06 AM
Dkt. 41 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
RODEL TOLENTINO CARZANO, Plaintiff-Appellant, v.
ESTELITA DELA CERNA CARZANO, Defendant-Appellee.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 16-1-6797)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.)
Plaintiff-Appellant Rodel Tolentino Carzano (Rodel)
appeals from the Family Court of the First Circuit's July 25,
2017 Order Re: Plaintiff's Request for Uncontested Divorce. 1
In this case, Rodel filed a "Complaint for Divorce"
form, which alleged that the parties "are lawfully married to
each other" and requested decisions on custody of their three
children, division of assets and debts, and spousal support. In
an "Affidavit of Plaintiff (For Uncontested Divorce)," Rodel
1 The Honorable Gale L.F. Ching presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
stated that "parties were not legally married" and that he "had
to file the instant case for annulment of our marriage." In a
supplemental affidavit, Rodel declared that he "did not marry
Defendant, however, [he] subsequently learned that she made it
appear on official document that [they] were married in the
Philippines when in truth and in fact, [he] never married
her[.]"
Following a hearing and further briefing by Rodel, the
family court ruled that it "does not have jurisdiction to annul
Plaintiff's and Defendant's marriage that allegedly arose in the
Philippines and therefore denies Plaintiff's request to have
this Court grant an annulment and/or absolute divorce."
(Formatting altered.)
On appeal, Rodel challenges the family court's denial
of his request for an annulment of his alleged marriage to
Defendant-Appellee Estelita Dela Cerna Carzano (Estelita) based
on lack of jurisdiction. Specifically, he contends that the
family court erred by denying his request for annulment based
on:
(1) "lack of jurisdiction to rule over annulments when
the Court has exclusive and original jurisdiction expressly
contained in Hawaii Revised Statutes [(HRS)] Section 580-
1";
2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2) "lack of jurisdiction over [Estelita] who resides
in Cebu City, Philippines despite the fact that [Estelita]
was properly served with the Complaint and Summons but
failed to respond and participate in the proceedings"; and
(3) "the allegation that the fraudulent, or simulated
or fictitious marriage certificate was registered in the
Philippines because the statute granting the Court original
and exclusive jurisdiction does not distinguish whether the
fraud was committed in or outside the State of [Hawai‘i] for
the court to assume jurisdiction."
Upon careful review of the record and the brief
submitted, 2 and having given due consideration to the arguments
advanced and the issues raised, we resolve this appeal as
discussed below, and vacate and remand.
"The jurisdiction of the family court is
reviewed de novo under the right/wrong standard." Hsieh v. Sun,
137 Hawai‘i 90, 98, 365 P.3d 1019, 1027 (App. 2016) (citing
Puckett v. Puckett, 94 Hawai‘i 471, 477, 16 P.3d 876, 882
(App. 2000)).
2 Estelita did not file an answering brief. As a result, the appellate
clerk entered a notice of default of the answering brief on February 21,
2018.
3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
"[I]t is plain that each state by virtue of its
command over its domiciliaries and its large interest in the
institution of marriage can alter within its own borders the
marriage statutes of the spouse domiciled there, even though the
other spouse is absent." Williams v. North Carolina, 317 U.S.
287, 298-99 (1942).
In Hawai‘i, "[e]xclusive original jurisdiction in
matters of annulment, divorce, and separation . . . 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
. . . ." HRS § 580-1(a) (Supp. 2016); Puckett, 94 Hawai‘i at
482, 16 P.3d at 887. Because "an action for divorce is in the
nature of a proceeding in rem under certain circumstances a
court may render a valid decree of divorce although it never
acquired actual jurisdiction of the person of the defendant."
Peterson v. Peterson, 24 Haw. 239, 243-244 (Haw. Terr. 1918).
As for service, "[t]he complaint for annulment,
divorce, or separation, and the summons shall be served by an
authorized process server on defendant personally if the
defendant is within the State, unless the defendant enters an
appearance in the case," and "if the defendant is without the
State, the court may authorize the service to be made by any
other responsible person[.]" HRS §§ 580-3(a) and (b) (2006).
4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In sum, the family court has jurisdiction over a
complaint for annulment where the applicant has been physically
present in Hawai‘i three months prior to filing the complaint and
the statutory requirements for service of process on the
defendant have been met. HRS 580-1(a); Peterson, 24 Haw. at
239; see Rodrigues v. Rodrigues, 7 Haw. App. 102, 108, 747 P.2d
1281, 1286 (1987) (explaining that, under Peterson, "the family
court in a divorce case, by service by publication on an absent
defendant described in HRS § 580-3(d), can acquire in rem
jurisdiction to dissolve the marriage").
Here, Rodel was domiciled in Hawai‘i since December 25,
2010. He filed a complaint with the family court on May 19,
2016, thereby commencing an action for divorce/annulment. See
HRS § 580-2 (2006) ("An action for annulment . . . is commenced
by filing a complaint with the court . . . . Upon the filing of
the complaint, the clerk shall forthwith issue a summons
. . . .") And, Rodel provided proof that Estelita was served
with the complaint and summons on June 10, 2016. Thus, the
statutory requirements for conferring jurisdiction upon the
family court over the divorce/annulment were met.
Rodel's assertions that there was actually no
marriage, he did not consent to a marriage, and Estelita filed a
fraudulent document in the Philippines goes to whether Rodel
meets his burden of establishing that an annulment should be
granted, which is for the family court to decide. See
5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Cvitanovich-Dubie v. Dubie, 125 Hawai‘i 128, 143 n.16, 254 P.3d
439, 454 n.16 (2011) (explaining that "HRS § 580-1 does not
contain a jurisdictional requirement that the parties be
lawfully married in order to seek a divorce. Rather, it appears
that a valid marriage is more properly considered a substantive
requirement for a valid divorce").
But, because Estelita was not a domiciliary of Hawai‘i
"(1) at the time that the cause of action which is the subject
of the proceeding arose, or (2) at the time of the commencement
of the proceeding, or (3) at the time of service," the family
court did not have jurisdiction to render a judgement against
Estelita regarding custody, spousal support, or property
division. HRS § 580-3.5 (2006); see Rodrigues, 7 Haw. App. at
108 (explaining that "although the family court had in rem
jurisdiction to dissolve the Rodrigues' marriage, it did not
have in personam jurisdiction over Carol with respect to
custody, visitation, and support of their minor daughter,
spousal support, or the division and distribution of their
property and debts").
Accordingly, we hold that the family court had
jurisdiction over the complaint for the purposes of granting or
denying the request for an annulment. We, thus, vacate the
family court's July 25, 2017 Order Re: Plaintiff's Request for
6
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Uncontested Divorce, and remand this case for further
proceedings consistent with this order.
DATED: Honolulu, Hawai‘i, September 16, 2022.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Rhoda Yabes Alvarez,
for Plaintiff-Appellant. /s/ Karen T. Nakasone
Associate Judge
/s/ Sonja M.P. McCullen
Associate Judge
7