Eisenbrey v. Eisenbrey ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-MAY-2023
07:51 AM
Dkt. 91 SO
NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
(Consolidated under CAAP-XX-XXXXXXX)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
DAVID BRADLEY EISENBREY, Plaintiff-Appellee v.
KATHLEEN ANN EISENBREY, Defendant-Appellant
and
CAAP-XX-XXXXXXX
DAVID BRADLEY EISENBREY, Plaintiff-Appellee v.
KATHLEEN ANN EISENBREY, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. FC-M No. 15-1-0005)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant Kathleen Ann Eisenbrey appeals from
a number of orders entered by the Family Court of the First
Circuit.1 In CAAP-XX-XXXXXXX, we have jurisdiction over
Kathleen's appeal from the order granting Plaintiff-Appellee
David Bradley Eisenbrey's motion to expunge lis pendens, entered
on July 12, 2017 (Order Expunging Lis Pendens), and the order
awarding David attorney's fees and costs, entered on
September 26, 2017 (Order Awarding Fees and Costs). In CAAP–18-
0000092, we have jurisdiction over Kathleen's appeal from the
1
The Honorable Gale L.F. Ching presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
order denying her December 1, 2017 Hawai#i Family Court Rules
(HFCR) Rule 60(b) motion, entered on February 9, 2018 (Order
Denying Rule 60(b) Motion). We consolidated the appeals.
For the reasons explained below, we dismiss Kathleen's
appeal from the Order Expunging Lis Pendens; affirm in part and
vacate in part the Order Awarding Fees and Costs, and remand to
the family court for redetermination or clarification; and affirm
the Order Denying Rule 60(b) Motion.
David and Kathleen were married. They were divorced in
Michigan. David initiated the action below by filing an
exemplified copy of the Michigan Divorce Decree with the family
court pursuant to Hawaii Revised Statute (HRS) § 636C-3.2
David and Kathleen owned real property in Kailua,
Hawai#i (the Kailua Property). The Divorce Decree provided:
IT IS FURTHER ORDERED AND ADJUDGED that the [Kailua
Property] shall be sold at a price mutually agreed upon. If
the parties do not agree to a sales price then the parties
agree to accept as the sales price the amount recommended by
the listing agent. Any proceeds from the sale will be
retained by [Kathleen].
IT IS FURTHER ORDERED AND ADJUDGED that until the
[Kailua Property] is sold, [Kathleen] shall be entitled to
exclusive use of this property, subject to [Kathleen] paying
all utilities, maintenance and upkeep of the parties. The
monthly mortgage installments that include real property
taxes and insurance paid to Wells Fargo Mortgage shall be
paid equally by [David] and [Kathleen] in the same manner as
past practice.
IT IS FURTHER ORDERED AND ADJUDGED that until sold,
the parties shall maintain ownership of this property, by
Quit Claim Deed, as Tenants in common.
David moved for "[a]n order that the Kailua [P]roperty
be sold immediately, as set out in the Divorce Decree filed
herein, to avoid foreclosure, and that the amounts that [David]
has paid to maintain the property that were ordered to be paid by
[Kathleen] be reimbursed to him out of the proceeds of the sale
2
The statute is part of the Hawai#i Uniform Enforcement of Foreign
Judgments Act.
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before they are distributed." The family court granted David's
motion.
Kathleen refused to comply with the order. David filed
a motion to enforce the order, in which he requested an award of
attorney's fees. The family court granted David's motion to
enforce.
Kathleen filed a notice of lis pendens on May 23, 2017.
The lis pendens was recorded in the Bureau of Conveyances on
May 24, 2017. David filed a motion to expunge the lis pendens.
The Order Expunging Lis Pendens was entered on July 12, 2017.
The Order Awarding Fees and Costs was entered on September 26,
2017. Kathleen also filed a motion for relief under HFCR
Rule 60(b) (Rule 60(b) Motion). The Order Denying Rule 60(b)
Motion was entered on February 9, 2018. These appeals followed.3
Kathleen contends that the family court erred by:
(1) granting David's motion to expunge lis pendens; (2) awarding
David attorney's fees and costs incurred on his motion to
expunge; and (3) denying Kathleen's Rule 60(b) Motion.
(1) The record indicates that the Kailua Property was
sold and the proceeds distributed in 2017. The sale renders the
appeal from the Order Expunging Lis Pendens moot. Lathrop v.
Sakatani, 111 Hawai#i 307, 313, 141 P.3d 480, 486 (2006). None
of the recognized exceptions to the mootness doctrine apply here.
See Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i 1, 5-11, 193
P.3d 839, 843-49 (2008) (discussing the "capable of repetition,
yet evading review" and "public interest" exceptions and adopting
the "collateral consequences" exception). Accordingly, we
dismiss Kathleen's appeal from the Order Expunging Lis Pendens as
moot.
(2) Although Kathleen's appeal from the Order
Expunging Lis Pendens is moot, her appeal from the Order Awarding
3
Kathleen has taken two other appeals from the case below, which
have been dismissed. See Order Dismissing the Appeal, Eisenbrey v. Eisenbrey,
No. CAAP-XX-XXXXXXX (Haw. App. Mar. 14, 2017), JIMS No. 30; Order Dismissing
Appeal, Eisenbrey v. Eisenbrey, No. CAAP-XX-XXXXXXX (Haw. App. Oct. 11, 2017),
JIMS No. 20.
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Fees and Costs is not. Queen Emma Found. v. Tatibouet, 123
Hawai#i 500, 510, 236 P.3d 1236, 1246 (2010) ("[A]lthough a claim
for attorney's fees does not preserve a case which has otherwise
become moot on appeal, . . . the question of attorney's fees is
ancillary to the underlying action and survives independently
under the Court's equitable jurisdiction.") (citations omitted).
We review an award of attorney's fees and costs for abuse of
discretion. Kamaka v. Goodsill Anderson Quinn & Stifel, 117
Hawai#i 92, 105, 176 P.3d 91, 104 (2008). The same standard
applies to our review of the amount of a trial court's award of
attorney's fees. Chun v. Bd. of Trs. of the Emps. Ret. Sys. of
Haw., 106 Hawai#i 416, 431, 106 P.3d 339, 354 (2005).
(a) Kathleen argues that David was not entitled to an
award of attorney's fees and costs because the family court erred
by granting David's motion to expunge. The record indicates that
Kathleen did not file a memorandum in opposition to David's
motion to expunge, nor did she argue against the motion during
the hearing. Her argument that the family court erred by
granting David's motion to expunge was waived. Haw. Ventures,
LLC v. Otaka, Inc., 114 Hawai#i 438, 500, 164 P.3d 696, 758
(2007) (noting general rule that arguments not made in the trial
court will be deemed to have been waived on appeal).
Kathleen argues that the family court failed to
consider the factors set forth in HRS § 580-47(f) in awarding
David attorney's fees and costs. David's request for fees and
costs was part of his motion to expunge. Kathleen did not file a
memorandum in opposition, nor did she argue the HRS § 580-47(f)
factors at the hearing on the motion. Her argument was waived.
Otaka, Inc., 114 Hawai#i at 500, 164 P.3d at 758.
Kathleen incorrectly argues that the only legal
authority cited by the family court for awarding attorney's fees
and costs was Hawai#i Family Court Rules (HFCR) Rule 54, which
pertains to judgments and costs, but not attorney's fees. The
family court cited Nakata v. Nakata, 7 Haw. App. 636, 793 P.2d
1219 (1990), in which we noted that "case law permits the
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assessment of one party's attorney fees against the other party
whose bad faith actions generated the attorney fees." Id. at
638, 793 P.2d at 1221. The family court also cited TSA Int'l
Ltd. v. Shimizu Corp., 92 Hawai#i 243, 990 P.2d 713 (1999), a
case involving expungement of a lis pendens following an appeal.
The family court found and concluded:
FINDINGS OF FACT:
1. [Kathleen] attempted to block and did delay the
listing and the sale of the [Kailua Property]
throughout the above-captioned post-decree
proceedings, which commencemenced [sic] of [sic] on
October 22, 2015, through the closing of the house
sale August, 2017.
. . . .
4. A full-price offer was made on the [Kailua Property]
in December 2016, and [David] signed the Purchase
Contract but [Kathleen] refused to sign, in her
repeated attempts to thwart the sale of the [Kailua
Property].
5. [Kathleen] had been ordered to cooperate in the sale
of the house, however, [Kathleen] stated in the
Courtroom, by and through her attorney, that she would
sign documents for the sale of the house, "over her
dead body." This was at a hearing on February 15,
2017, brought on by [David's] MOTION TO ORDER THE
CHIEF CLERK OF COURTS TO SIGN PURCHASE CONTRACT ON
BEHALF OF DEFENDANT AND FOR ATTORNEY FEES AND COSTS
filed February 10, 2017.
6. [Kathleen] filed two appeals during the pendency of
this post-decree case, both of which were dismissed by
the Intermediate Court of Appeals.
7. After [Kathleen] filed her second appeal with the ICA,
on May 24, 2017, she filed a Notice of Lis Pendens in
the Bureau of Conveyances, based on the filing of her
second appeal in the above-captioned post-decree
action.
. . . .
CONCLUSIONS OF LAW
. . . .
10. In the Eisenbrey case, here, as in the TSA case,
[Kathleen]'s filing of a lis pendens on the [Kailua
Property] was [Kathleen]'s bad faith attempts to
encumber the property and block the sale of the house.
. . . .
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12. Here, the Family Court issued many enforcement orders,
which [Kathleen] mostly defied, but the final outcome
is that [David] prevailed and the [Kailua Property]
was under contract and scheduled to close in less than
a month. The closing could not take place because of
the cloud on the title, placed there by [Kathleen]'s
recordation of the Notice of Lis Pendens on May 24,
2017.
13. At every turn, [Kathleen] has tried to block the sale
of the [Kailua Property] and the filing of the Notice
of Lis Pendens is another such tactic. However
[Kathleen]'s lis pendens is not supported by law.
Here as in TSA, that [Kathleen] [(]"losing party")
should be allowed to encumber the property simply
because she has appealed from the judgment unfavorable
to [Kathleen] is "untenable." Under these
circumstances, it was proper for the Family Court of
the First Circuit to exercise its power to enforce its
judgment and grant [David]'s motion to expunge the lis
pendens.
. . . .
15. [Kathleen]'s bad faith actions of filing a lis pendens
based on her filing of an appeal, warrant the
assessment of attorney fees as pointed-out in Nakata.
If not for [Kathleen]'s bad faith action of filing an
unauthorized lis pendens against the [Kailua
Property], [David] would not have incurred the charges
for attorney fees and costs to file a motion, prepare
for, and attend a hearing.
16. As in Nakata, the Family Court here did not expressly
state that there was an act of bad faith, however,
looking at the totality of the circumstances paints a
series of bad faith acts and contumacious behavior by
[Kathleen] including her statement, in the courtroom,
that she would cooperate and sign the documents "over
her dead body". [sic] The award of attorney fees to
[David] is proper, as it was in Nakata.
The family court's findings of fact, and combined findings and
conclusions, were supported by substantial evidence, and
reflected an application of the correct rule of law. Est. of
Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504,
523 (2007).
In addition, the family court made these findings in
connection with other proceedings that are not challenged by
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Kathleen and are binding in this appeal, Okada Trucking Co. v.
Bd. of Water Supply, 97 Hawai#i 450, 458, 40 P.3d 73, 81 (2002):4
5. [Kathleen] refused to take any steps to sell the
[Kailua Property] despite [David]'s repeated emails
and other messages that the house must be sold.
. . . .
11. [David] contacted and lined-up a realtor to sell the
house and the realtor was ready to list the house
Spring of 2015 but [Kathleen] refused to sign a
listing agreement.
. . . .
16. The house has deteriorated over the past two years
while [Kathleen] refuses to co-operate in the sale of
the house. There has been water damage to the ceiling
of the lanai; the pool equipment no longer works so
that the pool water is dirty and green; and general
disrepair and lack of maintenance can be seen in the
landscaping and the house.
17. [Kathleen] told this Court, at the hearing on
February 3, 2016, that she received insurance money to
make repairs on the water-damaged lanai roof and [she]
spent the money on something other than repairing the
roof.
. . . .
19. [Kathleen] refused to sign listing agreements even
though she was ordered to do so at the March 16, 2016
[hearing], and the house could not be listed on the
MLS.
. . . .
22. [Kathleen] signed the listing Agreement on or about
August 2, 2016, and the realtor, Francine Felix,
listed the house . . . on the Multiple Listing Service
("MLS"). However, [Kathleen] did not allow the
realtor to do a walk through which was scheduled for
August 13, 2016, or to show the house.
23. On August 14, 2016, [Kathleen] demanded that the
realtor cancel the group showings realtor had
scheduled for the evening of August 15, 2016, and the
afternoon of August 16, 2016. The realtor made no
more appointments in August 2016, to show the house
because [Kathleen] would not allow the realtor access.
There was no "for sale" sign in front of the house.
4
These findings are included in the "Findings of Fact and
Conclusions of Law Regarding Plaintiff's Motion and Declaration for Post-
Decree Relief, Filed October 22, 2015[,]" entered by the family court on
January 9, 2017.
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24. On August 31, 2016, in response to an offer on the
house, [Kathleen] demanded that the realtor, Francine
Felix, "cease and desist" and to "inactivate the MLS
for my property and remove my property from the real
estate market."
25. In August 2016, there were two offers made on the
house, sight-unseen, contingent on home inspections.
However, [Kathleen] would not let anyone see the house
or inspect the house.
. . . .
30. The Court ordered that [Kathleen] would be evicted
from the house because she continued to defy the
Orders of the Court that she cooperate with the sale
of the house and she was, in fact, purposely
obstructing the sale of the house. [Kathleen] was
ordered out of the house on or before the 16th of
October, 2016.
. . . .
33. The realtor verified that one potential buyer had been
lost because of [Kathleen]'s refusal to cooperate.
The family court also made these findings that are not
challenged by Kathleen and are binding in this appeal:5
2. [Kathleen] made twenty-one (21) pro se filings with
the Court from January 23, 2017, through June 16,
2017. Many of [Kathleen]'s filings include numerous
pages in the leading document and a multitude of
attachments. Some information is in the form of
quotes and negative opinions regarding [David]'s or
[David]'s attorney's character and positive quotes and
opinions regarding her own character, all of which are
irrelevant to the sale of the [Kailua Property], which
sale was ordered in the Judgment of Divorce, filed
December 30, 2014, and which property sale is enforced
in the present action.
3. [Kathleen] stated in the Courtroom, by and through her
attorney, that she would sign documents for the sale
of the house, "over her dead body."
. . . .
6. At the time of the hearing on May 05, 2017, there was
a full-price offer, Purchase Contract for the [Kailua
Property] signed by [David] and the Buyer and which
[Kathleen] refused to sign.
. . . .
5
These findings are included in the "Findings of Fact and
Conclusions of Law for Orders Appealed By Defendant in CAAP-XX-XXXXXXX
Regarding Plaintiff's Motion For Post-Decree Relief, Filed October 22,
2015[,]" entered by the family court on July 18, 2017.
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13. On May 9, 2017, the Chief Clerk of Courts of the First
Circuit Court of the State of Hawai#i, signed the
Purchase Contract, on behalf of [Kathleen], for the
sale of the [Kailua Property]. An Escrow Account was
opened for the sale of the house, by Old Republic
Title and Escrow, on or about May 12, 2017, and given
an escrow# 6812014016-CK.
14. [Kathleen] has been presented with and refuses to sign
documents to move forward on the sale of the house,
even though [Kathleen] has been ordered by the Court
to cooperate in the sale of the house and [David] has
filed a Motion to have documents signed to move toward
closing on the house.
15. [Kathleen] recorded a lis pendens against the [Kailua
Property], with the Bureau of Conveyances, on May 24,
2017, as a measure to obstruct the sale of the house.
On this record, we conclude that the family court did
not abuse its discretion by granting David's request for
attorney's fees and costs.
(b) Kathleen argues that the amount of fees and costs
awarded — $5,217.77 — was excessive. The family court ordered
that David's counsel submit a declaration supporting the amount
of attorney's fees and costs requested. Counsel submitted a
declaration and request for $5,217.77. Kathleen filed
objections, arguing that some of the fees were not related to the
motion to expunge, and that the amount charged was unreasonable.
David contends that "[t]he Family Court properly found the
attorney fees and costs were reasonable." But the family court
found only that "[i]n her Declaration, Counsel for [David] stated
the fees she charged were necessary in the action and were
reasonably billed, considering the complexity of the issues and
as compared with other attorneys in the area and in the practice
of family law." The court made no finding that the amount of
attorney's fees and costs requested were reasonable and
necessarily incurred in connection with the motion to expunge,
nor did it address Kathleen's objections. Accordingly, we remand
for the family court to "specify the grounds for [the] award[] of
attorneys' fees and the amounts awarded with respect to each
ground." Price v. AIG Haw. Ins. Co., 107 Hawai#i 106, 113, 111
P.3d 1, 8 (2005).
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(3) Kathleen argues that the family court erred by
denying her Rule 60(b) Motion. HFCR Rule 60(b) provides, in
relevant part:
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;
(4) the judgment is void; [or]
. . . .
(6) any other reason justifying relief from the
operation of the judgment.
We review the family court's order on a motion filed
under HFCR Rule 60(b)(3) or (6) for abuse of discretion. LaPeter
v. LaPeter, 144 Hawai#i 295, 304, 439 P.3d 247, 256 (App. 2019).
We review an order on an HFCR Rule 60(b)(4) motion de novo under
the right/wrong standard. See Cvitanovich-Dubie v. Dubie, 125
Hawai#i 128, 139, 254 P.3d 439, 450 (2011).
(a) According to Kathleen's opening brief, the
Rule 60(b) Motion requested relief from the family court order
entered on January 11, 2017, that denied a motion for post-decree
relief Kathleen had filed on December 9, 2016. The December 9,
2016 motion sought an order requiring that David pay half of the
mortgage payments and half of the repairs for the Kailua
Property. The January 11, 2017 order contained a finding that
the December 9, 2016 motion was frivolous.
Kathleen's Rule 60(b) Motion made no argument about the
January 11, 2017 order. During the hearing on the Rule 60(b)
Motion, Kathleen's counsel briefly mentioned David not making
mortgage payments, but offered no argument about why Kathleen
should be granted relief from the January 11, 2017 order under
HFCR Rule 60(b). Kathleen's arguments, raised for the first time
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in her opening brief, are waived.6 Otaka, Inc., 114 Hawai#i at
500, 164 P.3d at 758 .
(b) Kathleen's Rule 60(b) Motion also sought relief
from the family court's orders granting David's requests for
attorney's fees, entered on November 25, 2016, March 21, 2017,
and March 23, 2017. To the extent relief was sought under HFCR
Rule 60(b)(3), the Rule 60(b) Motion failed to state with
particularity the circumstances constituting fraud, as required
by HFCR Rule 60(b). HFCR Rule 60(b) ("For reason[] . . . (3) the
averments in the motion shall be made in compliance with Rule
9(b) of these Rules."); HFCR Rule 9(b) ("In all averments of
fraud . . . , the circumstances constituting fraud . . . shall be
stated with particularity.").
To the extent Kathleen sought relief under HFCR
Rule 60(b)(4), she failed to establish that the family court
orders at issue were void. See Cvitanovich-Dubie, 125 Hawai#i at
141, 254 P.3d at 452 ("[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.").
To the extent Kathleen sought relief under HFCR
Rule 60(b)(6), the factual and legal arguments made in her
Rule 60(b) Motion and her opening brief could have, and should
have, been made in opposition to David's original fee requests.
Tagupa, 108 Hawai#i at 465, 121 P.3d at 930.
We conclude that the family court did not abuse its
discretion or err on the law when it denied Kathleen's HFCR
Rule 60(b) Motion.
6
Kathleen's opening brief purports to recite the relevant
procedural history, but fails to mention that Kathleen filed an HFCR Rule 59
motion for reconsideration of the January 11, 2017 order on January 23, 2017.
That motion was denied by order entered on March 20, 2017. Kathleen's opening
brief makes no argument that could not have been made in her HFCR Rule 59
motion for reconsideration. See Tagupa v. Tagupa, 108 Hawai#i 459, 465, 121
P.3d 924, 930 (App. 2005) (noting that reconsideration is not a device to
relitigate old matters or to raise arguments or evidence that could and should
have been brought during the earlier proceeding).
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For the foregoing reasons, we: (1) affirm the "Order
Granting Plaintiff's Motion for an Order to Expunge Notice of Lis
Pendens Recorded May 24, 2017, on 1127 Lauloa St[.], Kailua,
Hawaii and for Attorney Fees" entered on July 12, 2017;
(2) vacate the "Order and Judgment for Attorney Fees and Costs
for Motion for an Order to Expunge Notice of Lis Pendens" entered
on September 26, 2017, and remand to the family court for
redetermination or clarification; and (3) affirm the "Order
Denying Defendant's Rule 60[(b)] Motion for Relief from Order
Denying Defendant's Post Decree Motion Filed December 9, 2016,
and Orders for Attorney Fees & Costs Filed November 25, 2016,
March 21, 2017 and March 23, 2017" entered on February 9, 2018.
DATED: Honolulu, Hawai#i, May 23, 2023.
On the briefs:
/s/ Keith K. Hiraoka
Rebecca A. Copeland, Presiding Judge
for Defendant-Appellant.
/s/ Karen T. Nakasone
Robin R. Gregory, Associate Judge
for Plaintiff-Appellee.
/s/ Sonja M.P. McCullen
Associate Judge
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