Cox v. Cox ( 2010 )

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
NO. 29593
Electronically Filed
IN THE INTERMEDIATE COURT OF APPEALS
Intermediate Court of Appeals
OF THE STATE OF HAWAI'I
29593
27-SEP-2010
10:53 AM
BRUCE E. COX, Plaintiff-Appellee, v.
CARLYN D. COX, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-DIVORCE NO. 06-1-0096)
MEMORANDUM OPINION
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Carlyn D. Cox (Wife) appeals from
the Second Amended Decree Granting Absolute Divorce (Second
Amended Decree) filed on December 18, 2008 in the Family Court of
the First Circuit 1 (family court). The Second Amended Decree
dissolved the marriage between Wife and Plaintiff-Appellee Bruce
E. Cox (Husband). On appeal 1 Wife contends:
(1) The family court erred in the May 29 1 2007
Decision and Order (D&O) where the court stated that in order to
make improvements, "Wife further encumbered the Virginia
Residence with a Second Deed of Trust given to Judy Morris"
(Second Deed of Trust); in Finding of Fact (FOF) 22 of the
April 171 2009 Findings of Fact and Conclusions of Law (FOF/COL)
where it found that" [i]t was unclear precisely how Wife used the
funds she received from the [Second Deed of Trust] I whether for
improvements to the Virginia Residence or for her attorney's fees
in the divorce litigation"; in the May 22, 2008 "Order Granting
in Part and Denying in Part [Husband's] Motion for
Reconsideration and/or Further Hearing Filed February 25, 2008"
(May 22, 2008 Order); and the Second Amended Decree insofar as
they relied on the D&O and FOF 22.
1 The Honorable Linda S. Martell presided.
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(2) Conclusion of Law (COL) 10, where the family court
concluded the Second Deed of Trust "is not a marital debt, but a
separate debt of Wife's,1I is wrong, and the D&O; May 22, 2008
Order; and Second Amended Decree insofar as these pleadings
relied on COL 10 are wrong.
(3) The family court erred in the May 22, 2008 Order
and Second Amended Decree by failing to adjust the equalization
payment, which was based on the court's erroneous ruling that the
Second Deed of Trust was not a marital debt.
(4) The family court erred in FOF 50 by finding that
Husband's "Motion for Attorney's Fees and Costs Pursuant to
Hawai'i Family Court [Rules (HFCR)] Rule 68 II (Rule 68 Motion)
"was timely filed on January 21, 2008 [sic] ,,,2 and COL 18 is
wrong where it concludes the court had jurisdiction to hear
Husband's Rule 68 Motion because after Wife filed a notice of
appeal, appellate jurisdiction attached and the family court's
authority to issue orders on motions for attorney's fees pursuant
to HFCR Rule 68 was removed.
(5) COL 19 is wrong where the family court concluded
that" [e]ven if it could be construed that appellate jurisdiction
divested the Court of the ability to rule on a timely-filed post
trial motion, the Order re [Husband's] Motion for Attorney's
Fees, filed February 9, 2009, stayed any ruling on Husband's
Rule 68 request pending the appeal," inasmuch as the court failed
to address Wife's separate request for fees based on Husband's
bad faith filing of the Rule 68 Motion, which wasted Wife's
resources by forcing Wife's counsel to prepare for the hearing
and appear in court.
(6) The family court erred in FOF 50 by finding that
"Husband's Rule 68 Motion was timely filed on [January 22,
Husband's Rule 68 Motion was actually filed on January 22, 2009, and
we will use that date throughout this opinion.
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2009]," and COL 18 is wrong where the family court concluded it
had jurisdiction to hear the Rule 68 Motion because the Rule 68
Motion was untimely filed under Hawai'i Rules of Civil Procedure
Rule 54(d)(2)(B).
I . BACKGROUND
Husband and Wife married on October 3, 1992. The
parties did not have any children. During the marriage, a house
in the State of Virginia (the Virginia Residence) was purchased
and titled in Husband's name. The parties lived in the Virginia
Residence until they experienced marital difficulties and
separated in March 2004. At the time of separation, Wife had a
Deed of Gift prepared, transferring the Virginia Residence to her
name alone. In June 2005, Husband moved to Hawai'i. Wife
continued to live in Virginia.
In September 2005, Wife refinanced the virginia
Residence in her name alone. Two months later, Wife took out a
second mortgage on the Virginia Residence for improvements to the
home.
Husband filed a Complaint for Divorce on January 11,
2006. The parties submitted their respective Income and Expense
and Asset and Debt Statements.
In October 2006, Wife further encumbered the Virginia
Residence with the Second Deed of Trust, which was a mortgage
loan for $35,000 made to Wife by her friend, Judy A. Morris
(Morris). Wife testified at trial that the purpose of this loan
was to pay her attorney's fees.
At the January 8, 2007 trial, Husband objected to
Wife's testimony regarding the Second Deed of Trust on grounds of
the best evidence rule. The family court permitted the
testimony.
On May 29, 2007, the family court filed the D&O. In
spite of Wife's testimony, the family court found in the D&O that
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Wife "encumbered the Virginia Residence with a Second Deed of
Trust given to [Morris] to make improvements" to the residence.
The family court awarded the Virginia Residence to Wife and
stated that if Wife wanted credit for the improvements to the
residence, she would have to submit a signed and notarized copy
of the Second Deed of Trust and an affidavit specifying the
improvements.
On June 6, 2007, Wife submitted a copy of the Second
Deed of Trust and the Promissory Note Secured by Deed of Trust,
but did not submit an affidavit specifying the improvements.
On June 14, 2007, Husband filed a UMotion to Strike As
Evidence Documents Filed June 6, 2007 and Motion For Ruling On
Objection. II Husband moved the family court to strike the Second
Deed of Trust and Promissory Note and to issue a formal ruling on
his best evidence rule objection at trial. Wife filed an
opposition memorandum.
On August I, 2007, the family court issued a Decree
Granting Absolute Divorce (8/1/07 Divorce Decree), in which the
court failed to account for the second mortgage and Second Deed
of Trust in the value of the Virginia Residence. On August 9,
2007, Wife filed a IIMotion for Reconsideration of the Divorce
Decree Filed August I, 2007."
On December 17, 2007, the family court issued an "Order
Re [Wife!s] Motion For Reconsideration Filed August 9, 2007 &
[Husband!s] Motion to Strike as Evidence Documents Filed June 6,
2007 and Motion for Ruling on Objection" (the 12/17/07 Order),
in which the court ruled as follows:
1) [Husband's] Motion to Strike as Evidence
Documents Filed June 6, 2007 and Motion for Ruling on
Objection filed on June 14, 2007 is moot. The Court ruled
on these issues at trial.
2) [Wife's] Motion For Reconsideration must be
denied because the Court did not act on it within ninety
days of its filing on August 9, 2007. However, based on
Rule 60(b) of the [HRFC], the Court will correct the mistake
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in its prior order by omitting the second mortgage to the
Virginia Credit Union in the amount of $27,000.00 on the
Virginia house. This debt shall be considered a marital
debt.
3} On the reserved issue of the Second Deed of
Trust to [Morris] as a marital debt, this debt shall not be
considered a marital debt, but one separate to Wife.
On February 14, 2008, the family court issued an
Amended Divorce Decree. Husband filed a Motion for
Reconsideration of the Amended Divorce Decree, and on May 22,
2008, the family court issued an order granting in part and
denying in part the motion.
On December 18, 2008, the family court issued the
Second Amended Decree, in which the court treated the Second Deed
of Trust as Wife's separate debt, and ordered that each party
assume his or her own attorney's fees and costs.
Wife timely filed a notice of appeal on January 20,
2009. Two days later, Husband filed the Rule 68 Motion. On
January 27, 2009, Wife's attorney filed an affidavit in response
to the motion, arguing that
[Husband's attorney] knew, or should have known, that the
jurisdictional limitations of the Family Court ended with
the filing of the [Notice of Appeal] and that the Family
Court could not address the Rule 68 Motion once [Wife] filed
the [Notice of Appeal]. As such, Wife should be awarded her
attorneys' fees and costs for having to respond to the
untimely and improper Rule 68 Motion.
Although Husband thereafter withdrew his Rule 68 Motion, the
family court held a hearing on the motion, at which hearing
Husband orally requested a stay of ruling pending appeal. On
February 9, 2009, the family court granted Husband's request for
a stay of ruling and preserved Wife's right to request attorney's
fees and costs for filing an opposition memorandum to Husband's
Rule 68 Motion pending the appellate decision on the case.
On April 17, 2009, the family court issued its FOF/COL.
The family court found, among other findings, that
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(1) although Wife encumbered the Virginia Residence
with a Second Deed of Trust to Morris, it was unclear how Wife
spent the $35,000 she received from Morris -- whether for home
improvements or attorney's fees;
(2) if Wife wanted credit for the Second Deed of
Trust, she needed to provide the family court with proof the
$35,000 had been used for home improvements; and
(3) Husband's Rule 68 Motion was timely filed.
In the FOF/COL, the family court concluded, inter alia,
that
(1) the Virginia Residence was a marital asset,
subject to division, with the appropriate offsets or category
claims to each party;
(2) the Second Deed of Trust was a separate debt of
(3) the court had jurisdiction to hear Husband's Rule
68 Motion under Hawai'i Rules of Appellate Procedure (HRAP) Rule
4 (a) (3) i and
(4) even if the court did not have jurisdiction under
HRAP 4(a) (3), the court properly stayed any ruling on Husband's
Rule 68 Motion pursuant to HFCR 62(d).3
On May I, 2009, pursuant to HRAP Rule 4(a) (3), Husband
filed a motion before this court to dismiss Wife's appeal for
untimely filing. Wife filed an opposition memorandum. On
May 21, 2009, this court denied Husband's motion to dismiss and
permitted the parties to proceed to briefing.
I I . STANDARDS OF REVIEW
A. Findings of Fact
In this jurisdiction, a trial court's [FsOF]
[sicl are subject to the clearly erroneous standard of
review. An FOF is clearly erroneous when, despite
COL 20 is incorrectly numbered 21.
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evidence to support the finding, the appellate court
is left with the definite and firm conviction in
reviewing the entire evidence that a mistake has been
committed.
Chun v. Bd. of Trustees of the Employees' Retirement Sys. of
the Sta te of Hawai 'i, 106 Hawai'i 416, 430, 106 P. 3d 339, 353
(2005), reconsideration denied, 106 Hawai'i 477, 106 P.3d
1120 (2005) (internal quotation marks, citations, and
ellipses omitted) [.]
"An FOF is also clearly erroneous when the record
lacks substantial evidence to support the finding. We have
defined substantial evidence as credible evidence which is
of sufficient quality and probative value to enable a person
of reasonable caution to support a conclusion." Leslie v.
Estate of Tavares, 91 Hawai'i 394, 399, 984 P.2d 1220, 1225
(1999) (internal quotation marks and citations omitted) [.]
Inoue v. Inoue, 118 Hawai'i 86, 92-93, 185 P.3d 834, 840-41 (App.
2008), cert. rejected, 118 Hawai'i 194, 186 P.3d 629 (2008).
B. Conclusions of Law
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.
[Chun v. Bd. of Trs. of the Employees' Ret. Sys. of the
State of Hawai'i, 106 Hawai'i 416, 430, 106 P.3d 339, 353
(2005)] (internal quotation marks, citations, and brackets
[in original] omitted) [.}
Inoue, 118 Hawai'i at 93, 185 P.3d at 841 (App. 2008).
C. 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
detriment of a party litigant and its decision clearly
exceeded the bounds of reason.
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~====~~~====, 111 Hawai'i 41, 46, 137 P.3d 355, 360 (2006)
(quoting In re Doe, 95 Hawai'i 183, 189-90, 20 P.3d 616, 622-23
(2001)).
III. DISCUSSION
A. THIS COURT HAS JURISDICTION OVER THIS APPEAL.
Husband contends this court does not have jurisdiction
over wife's appeal because under HRAP Rule 4(a) (3),4 she untimely
filed the appeal.
We previously addressed this issue in the "Order
Denying [Husband's] May 1, 2009 Motion to Dismiss Appeal" in Cox
v. Cox, No. 29593, 2009 WL 1508938, *1-2 (Haw. App. May 21,
2009), wherein we held we had jurisdiction over Wife's appeal
pursuant to Hawaii Revised Statutes (HRS) § 571-54 (2006 Repl.) 5
We dismissed Husband's motion without prejudice and noted that
[a]ny arguments that [Husband] wants to assert regarding
(a) the family court's jurisdiction to enter decrees and
orders or (b) the right of [Wife] to obtain appellate review
of other decrees or orders in this case are arguments that
[Husband] should assert in his appellate brief.
Cox, 2009 WL 1508938, at *1.
To the extent Husband raises an argument regarding the
family court's jurisdiction to enter decrees or orders or the
HRAP 4(a) (3) provides:
(3) TIME TO APPEAL AFFECTED BY POST-JUDGMENT MOTIONS. If
any party files a timely motion . . . to reconsider, alter or
amend the judgment or order, or for attorney's fees and costs, the
time for filing the notice of appeal is extended until 30 days
after entry of an order disposing of the motion; provided, that
the failure to dispose of any motion by order entered upon the
record within 90 days after the date the motion was filed shall
constitute a denial of the motion.
HRS § 571-54 provides in relevant part:
§571-54 Appeal. An interested party, aggrieved by any
order or decree of the court, may appeal to the intermediate
appellate court for review of questions of law and fact upon the
same terms and conditions as in other cases in the circuit court,
and review shall be governed by chapter 602, except as hereinafter
provided.
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Wife's right to obtain appellate review of other decrees or
orders in this case, we address those arguments herein.
B. THE FAMILY COURT HAD JURISDICTION TO RULE ON
WIFE'S MOTION TO RECONSIDER AND TO SUBSEQUENTLY
MODIFY THE DIVORCE DECREE.
Husband contends that pursuant to HRAP 4(a) (3), the
12/17/07 Order was null and void. Husband argues by extension
that
modifications to the family court's 8/1/07 Divorce Decree
based on this order are also null and void. We disagree.
In ruling on Wife's "Motion for Reconsideration of the
Divorce Decree Filed August 1, 2007," the family court stated:
2) [Wife's) Motion For Reconsideration must be
denied because the Court did not act on it within ninety
days of its filing on August 9, 2007. However, based on
Rule 60(b) of [HRFC), the Court will correct the mistake in
its prior order by omitting the second mortgage to the
Virginia Credit Union in the amount of $27,000.00 on the
Virginia house. This debt shall be considered a marital
debt.
(Emphasis added.) The family court's ruling acknowledges HRAP
4(a) (3) 's automatic denial provision if a motion is not ruled on
90 days after it is filed, but the ruling nonetheless grants Wi
relief under HFCR Rule 60{b). Rule 60{b) provides in relevant
part:
Rule 60. Relief from judgment or order.
(b) ~stakes; inadvertence; excusable neglect; newly
discovered evidence; fraud. On motion and upon such terms
as are just, the court may relieve a party or party's
representative from any or all of the provisions of a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b): (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party: (4) the judgment is void;
(5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application: or (6) any other reason justifying relief from
the operation of the judgment. The motion shall be made
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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.
(Emphases added.) Under this rule, a family court may grant
relief from a final judgment on the ground of mistake based on a
motion filed within a year of the final judgment.
In the 12/17/07 Order, the family court granted Wife
relief on the ground of mistake from the 8/1/07 Divorce Decree.
Since this relief was granted based on a motion filed within a
year of the divorce decree, it is within the scope of HFCR 60(b).
In Donnelly v. Donnelly, 98 Hawai'i 280, 286, 47 P.3d
747, 753 (App. 2002) (internal quotation marks and citation
omitted), this court noted that "a court may treat an untimely
Rule 59(e) motion to alter or amend [or reconsider] a judgment as
if it were a Rule 60(b) motion if the grounds asserted in support
of the Rule 59(e) motion would also support Rule 60(b} relief."
Additionally, in Wallace v. Wallace, 1 Haw. App. 315, 321, 619
P.2d 511, 515 (1980), this court recognized that" [i]t is the
general rule of common law that a court of record has inherent
power to vacate or set aside its judgments or orders during the
term at which rendered."
We conclude the family court had jurisdiction to rule
on Wife's "Motion for Reconsideration of the Divorce Decree Filed
August I, 2007.11 Because the family court's ruling was not null
and void, subsequent modifications to the family court's 8/1/07
Divorce Decree based on the ruling were valid.
C. THE FAMILY COURT ERRED IN FINDING THAT THE SECOND
DEED OF TRUST WAS USED FOR IMPROVEMENTS TO THE
VIRGINIA RESIDENCE.
Wife contends the family court erred to the extent it
offered inconsistent purposes for the Second Deed of Trust in the
D&O and FOF/COL. In the D&O, the family court noted:
Sometime after the Deed was signed and recorded, Wife
testified she encumbered [the] Virginia Residence with a
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Second Deed of Trust to [Morris1, a friend of hers, in the
amount of $35,000.00. She testified she used the money to
improve the property. Husband objected to Wife's testimony
about the [Second Deed of Trust] because a and
notarized copy was not presented as evidence under the Best
Evidence Rule. To the extent that Wife's testimony
indicated there is further debt on the property, her
testimony is allowed, and the objection is overruled.
The family court then found the following:
(4) [SeoondDeed of Trust]. Wife testified she further
encumbered the Virginia Residence with a Second Deed of
Trust given to [Morris] to make improvements. Such
improvements could maintain or improve the value of the
Virginia Residence. Unless the parties agree otherwise, if
Wife wants credit for these improvements, she must produce
(a) a signed and notarized version of the Second Deed of
Trust and (b) an affidavit specifying the improvements
within seven (7) days of the filing of this [D&O].
In the FOF/COL, the family court subsequently found the
following:
22. In October 2007, [61 Wife further encumbered the
Virginia Residence with a Second Deed of Trust . . . , which
was a mortgage loan made to Wife by [Morris], her friend,
for $35,000.00. It was unclear precisely how Wife used the
funds she received from the [Second1 Deed of Trust, whether
for improvements to the Virginia Residence or for her
attorney's fees in the divorce litigation.
(Footnote not in original.)
Wife contends neither finding reflects the evidence at
trial. We agree. At trial, Wife testified she had taken out a
second mortgage on the Virginia Residence to pay for improvements
to the home. Wife also testified the Second Deed of Trust for
$35,000 made in October 2006 and secured by the Virginia
Residence was to pay for attorney's fees. Wife's Asset and Debt
Statement indicates the creditor of this $35,000 loan was Morris.
Further, on June 6, 2007, Wi submitted to the family court
copies of a promissory Note Secured by Deed of Trust and a Second
Deed of Trust, evidencing the $35,000 debt to Morris and the
security interest in the Virginia Residence.
The actual date of the Second Deed of Trust was October 27, 2006.
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Husband does not dispute this evidence t and we find no
contradictory evidence in the record. The family court's
findings therefore are clearly erroneous to the extent they
suggest the Second Deed of Trust was used for improvements to the
Virginia Residence. t 118 Hawai'i at 92 93 t 185 P.3d at
840-41.
D. THE FAMILY COURT CORRECTLY CONCLUDED THE SECOND
DEED OF TRUST WAS WIFE'S SEPARATE DEBT.
Wife contends that COL lOt in which the family court
concluded the Second Deed of Trust was Wife's separate debt t is
wrong. Wife argues that under Hawai'i law t the Second Deed of
Trust does not fit the definition of separate property. Wife
also argues that because the Second Deed of Trust arises out of
the Virginia Residence t a marital asset t it must therefore be a
marital debt. Wife provides no authority for this proposition.
Husband contends that even if the family court erred in
classifying the debt t the error was harmless because the court
ordered the parties to pay their own attorneys' fees. Husband
argues that because Wife testified the $35 t OOO was used to pay
her attorney's fees, the $35 t OOO should be her separate debt
pursuant to COL 10. Husband also argues that under Hawai'i law t
a reduction in the dollar value of the marital estate through a
party's fiscal irresponsibility is chargeable to the fiscally
irresponsible party.
We disagree with Husband's dissipation argument because
there is no indication in the record that Wife was fiscally
irresponsible in encumbering the Virginia Residence to pay her
attorney's fees. Ahlo v. Ahlo, 1 Haw. App. 324 t 329 t 619
P.2d 112t 117 (1980) (Wife credited for unilaterally reducing
marital estate by gi ing $25 t OOO in cash to her three adult
children) i Higashi v. Higashi t 106 Hawai'i 228 t 241, 103 P.3d
388 t 401 (App. 2004) (noting that a chargeable reduction to a
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party occurs "under such circumstances that he or she equitably
should be charged with having received the dollar value of the
reduction") . Husband's harmless error argument is more
persuasive.
HRS § 580-47(a) (2006 Repl.) grants the family court
wide discretion to divide and distribute the assets of both
parties to a divorce. HRS § 580-47(a) provides in relevant part:
§580-47 Support orders; division of property. (a)
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; and (4)
allocating, as between the parties, the responsibility for
the payment of the debts of the parties whether community,
joint, or separate, and the attorney's fees, costs, and
expenses incurred by each party by reason of the divorce.
(Emphases added.)
In the Second Amended Decree, the family court divided
and distributed Husband and Wife's assets and allocated their
debts between them. The family court also ordered, adjudged and
decreed the following: "15. Attorneys Fees. Each party shall
be responsible for his or her own attorney's fees and costs
incurred herein, subject to Rule 68, Hawaii Family Court Rules.'"
HFCR 68 provides in relevant part:
Rule 68. Offer of Settlement. At any time more than 20
days before any contested hearing held pursuant to HRS sections
571 11 to 14 (excluding law violations, criminal matters, and
child protection matters) is scheduled to begin, any party may
serve upon the adverse party an offer to allow judgment to be
entered to the effect specified in the offer. Such offer may be
made as to all or some of the issues, such as custody and
visitation. Such offer shall not be filed with the court, unless
it is accepted. If within 10 days after service of the offer the
adverse party serves written notice that the offer is accepted,
any party may then file the offer and notice of acceptance
together with proof of service thereon and thereupon the court
shall treat those issues as uncontested.
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In the FOF/COL, the family court noted that Wife would
receive credit for the Second Deed of Trust if she could furnish
proof she used the proceeds therefrom for improvements on the
Virginia Residence. On appeal, Wife concedes she used the
proceeds for attorneys' fees.
Based on the family court's authority under HRS § 580­
47(a) and the court's order in the Second Amended Decree that
each party shall bear his or her own attorney's fees, we hold the
family court did not err in concluding the Second Deed of Trust
was Wife's separate debt.s
Because we so hold, we find no need to address Wife's
argument that the net present value (NPV) of the Virginia
Residence should be recalculated, taking into account the Second
Deed of Trust.
E. THE FAMILY COURT DID NOT HAVE JURISDICTION TO RULE
ON HUSBAND'S MOTION FOR ATTORNEY'S FEES AND COSTS.
Wife contends the family court erred in ruling on
Husband's Rule 68 Motion after Wife had filed her Notice of
Appeal to this court. Wife argues that Wong v. Wong, 87 Hawai'i
475, 486, 960 P.2d 145, 156 (App. 1998), controls and dictates
that 11 [w]hile a case is on appeal, the lower court lacks
jurisdiction to decide any questions pertaining to attorney
arising out of or relating to the matter on appeal. 11
Husband argues that post-Wong amendments to HRAP Rule
4(a) (3) permit IItrial courts to decide post judgment motions for
attorney's fees and reconsideration or new trial. 11
We do not find Husband's argument persuasive. In
French v. French, 110 Hawai'i 399, 404, 133 P.3d 828, 833 (App.
2006), this court cited approvingly to Wong for the proposition
To hold that the Second Deed of Trust is a marital debt would force
Husband to pay half of Wife's attorney's fees in contravention of the Second
Amended Decree. in which the family court ordered each party to pay his or her
attorney's fees.
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that II [w]hile a case is on appeal, the lower court lacks
jurisdiction to decide any questions pertaining to attorney fees
arising out of or relating to the matter on appeal. II
We note that Wife filed her Notice of Appeal on
January 20, 2008. Two days later, Husband filed the Rule 68
Motion.
Under these facts and given the applicable law, we
hold that the family court erred when it concluded it had
jurisdiction to hear the Rule 68 Motion.
F. THE FAMILY COURT DID NOT ERR IN PRESERVING WIFE'S
REQUEST FOR ATTORNEY'S FEES AND COSTS INCURRED IN
DEFENSE OF HUSBAND'S RULE 68 MOTION.
Wife contends the family court erred by refusing to
rule on her request for attorney's fees and costs incurred in
defending Husband's Rule 68 Motion. In its February 9, 2009
IIOrder Re [Husband's] Motion for Attorney's Fees & Costs Pursuant
to Hawaii Family Court Rule 68,11 the family court ordered:
(1) There will be no hearing on the motion until the case
on appeal is resolvedi
(2) [Wife'S] right to bring a claim for attorney's fees
and costs incurred as a result of the Rule 68 Motion is
preserved pending the appellate court decision of the case
on appeal.
The family court properly stayed Wife's request for
attorney's fees and costs pending this appeal pursuant to HFCR
Rule 62(d), which provides that" [w]hen an appeal is taken the
appellant on such conditions that the court may allow may obtain
a stay subject to the exceptions contained in subdivision (a) of
this rule. 9 The stay is effective when approved by the court. n
HFCR Rule 62(a} provides in relevant part:
(a) Automatic stay: Exceptions -- Injunctions,
receiverships and accountings. Unless otherwise ordered by the
court, a temporary order or a judgment containing a restraining
order, an order of sequestration, or an order appointing receiver,
(continued ... )
15
NOT FOR PUBLICATION IN WEST'S HAW AI'I REPORTS AND PACIFIC REPORTER
In its FOF/COL, the family court made the following
COLs:
19. Even if it could be construed that appellate
jurisdiction divested the Court of the ability to rule on a
timely-filed post trial motion, the Order Re [Husband's]
Motion for Attorney's Fees, filed February 9, 2009, stayed
any ruling on Husband's Rule 68 request pending the appeal.
20. The Order Re [Wife's] Motion to Stay Pending
Appeal filed April 6, 2009, properly approved a stay of the
enforcement of the Second Amended Decree pending appeal.
[HFCR Rule 62(d)] allows such stays pending an appeal,
subject to the exceptions of HFCR Rule 62(a), which do not
apply in the instant case.
(Footnote omitted.)
We do not conclude that the COLs were wrong, and we
accordingly reject Wife's argument.
IV. CONCLUSION
The Second Amended Decree Granting Absolute Divorce
filed on December 18, 2008 in the Family Court of the First
Circuit is affirmed.
DATED: Honolulu, Hawai'i, September 27, 2010.
On the briefs:
Steven L. Hartley
Seth R. Harris
(Elsa F.M. McGehee with
U()2 ­
Presiding Judge
them on the Opening Brief)
(Lockwood & Hartley, ALC)
for Defendant-Appellant.
R. Steven Geshell
for Plaintiff-Appellee.
9( ••• continued)
or a judgment or order directing an accounting, or an order for
income assignment for child support, shall not be stayed during
the period after its entry and until an is taken, or during
the pendency of an appeal.
16