Anderson v. Anderson, 6028

• Decision Date: 17 October 1978
• Docket Number: No. 6028,6028
• Citation: 585 P.2d 938,59 Haw. 575
• Parties: Robert Gregg ANDERSON, Plaintiff, Cross-Defendant-Appellant, v. Anne ANDERSON, Defendant, Cross-Plaintiff-Appellee.
• Court: Hawaii Supreme Court

Page 938

585 P.2d 938

59 Haw. 575

Robert Gregg ANDERSON, Plaintiff, Cross-Defendant-Appellant, v. Anne ANDERSON, Defendant, Cross-Plaintiff-Appellee.

No. 6028.

Supreme Court of Hawai'i.

Oct. 17, 1978.

Rehearing Denied Nov. 2, 1978.

Syllabus by the Court

1. In construing the terms of a divorce decree, the determinative factor is the intent of the court as gathered from the decree and other evidence.

2. A judgment or decree like any other written instrument is to be construed reasonably and as a whole, and effect must be given not only to that which is expressed, but also that which is unavoidably and necessarily implied in the judgment or decree.

3. Waiver is generally defined as an "intentional relinquishment of a known right," a "voluntary relinquishment of some 4. Mere silence by the appellee as to her claim cannot be construed to constitute a release thereof. Waiver can take place only by the intention of the party and such an intention must be clearly made to appear.

rights," and "the relinquishment or refusal to use a right."

5. Where one by his words, or conduct, wilfully causes another to believe the existence of a certain state of things, and induced him to act on that belief so as to alter his previous position, the former is precluded from averring against the latter a different state of things, as existing at the same time.

6. Before 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.

7. Quasi estoppel is a species of equitable estoppel which has its basis in election, waiver, acquiescence, or even acceptance of benefits and which precluded a party from asserting to another's disadvantage, a right inconsistent with a position previously taken by him.

8. The equitable doctrine of laches applies where long acquiescence in the assertion of adverse rights has occurred, or when during inexcusable delay, the evidence has become obscured and, under the circumstances of the case, it is too late to ascertain the merits of the controversy.

9. In order to invoke the doctrine of laches, if predicated on an allegation of acquiescence, the acquiescence must be based on a showing of express or implied knowledge on the part of the one to be estopped.

A. William Barlow, Honolulu, for plaintiff, cross-defendant-appellant.

A. Peter Howell, Honolulu, for defendant, cross-plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KOBAYASHI, Justice.

This is an appeal taken by appellant, Robert Gregg Anderson, former husband of appellee, Anne Anderson, from the Findings of Fact and Conclusions of Law, an Order on order to show cause issued pursuant to the Findings of Fact and Conclusions of Law (Order), and an order denying appellant's motion to reopen the proceedings or set aside the Findings of Fact and Conclusions of Law and Order issued by the trial court.

The Order, issued subsequent to a show cause hearing, required appellant to pay appellee one-half of the net proceeds from the sale of 3,187 shares of Amfac stock together with interest thereon from April 19, 1972 to August 30, 1974, less the dividends overpaid to appellee on her share of such stocks. Appellee was ordered to use the proceeds to pay to the Bank of Hawaii $56,250.00 to liquidate the balance due on outstanding loan No. A5295. Appellant was further ordered to pay to appellee all interest which appellee would have paid on the balance of the loan, less any dividends received from and after August 30, 1974. In total, the net sum of $67,731.77, together with reasonable attorney's fees, was to be paid by appellant to appellee.

We affirm.

ISSUES

1. Whether or not the court erred in construing paragraph 5 of the divorce decree as granting to appellee an undivided one-half interest in each share of Amfac stock held in the legal name of appellant.

2. Whether the court erred in finding that appellee was not barred by the doctrines of waiver, estoppel, and laches to assert a claim to one-half the net proceeds of the 3,187 shares of stock sold by appellant in April, 1972.

STATEMENT OF THE CASE

Appellee and appellant were divorced on March 21, 1972. At the time of the divorce Plaintiff (appellant herein) shall continue to hold these 18,375 shares of Amfac stock in his name but as trustee for defendant as to 3,938 shares of that portion of such stock which is no longer considered option stock and as to 5,250 shares of that portion of such stock which is still option stock, until the same can be transferred and delivered to defendant free and clear of the notes due to Bank of Hawaii and, as to the 5,250 shares, past the holding period for option stock, which transfer and delivery shall be accomplished in cooperation with defendant and with her consent and approval, provided that plaintiff shall not be required to remain as such trustee for a longer period than five (5) years beginning and after March 1, 1972.

18,375 shares of Amfac stock were being held by appellant in his sole name. In paragraph 5 of the divorce decree and as part of the division of property of the parties, Judge Herman T. Lum of the family court of the first circuit (hereinafter referred to as the divorce court), made the following disposition of the 18,375 shares of stock:

As between the parties, the stock held by plaintiff as trustee for defendant shall be subject to the payment of one-half of the notes due to Bank of Hawaii and the balance of the stock in plaintiff's name shall be subject to the payment of one-half of the notes due to Bank of Hawaii, and each shall hold the other harmless from any liability for amounts they are required to pay in excess of $141,000.00 individual liability, and plaintiff need not transfer or deliver any of the stock held by him as trustee for defendant unless and until he has been relieved of and from liability for a proportionate amount of the amount due to Bank of Hawaii.

Until such time as the defendant shall receive in toto either the 9,188 shares of stock or the proceeds of the sale of any portion or all of said stock, all dividends payable on said stock shall be the property of plaintiff and defendant in proportion to the number of shares held by or for the ultimate benefit of each. All dividend payment shall be used to pay the interest payments as and when they become due. It is contemplated that the interest payments will exceed the dividend payments and plaintiff will notify defendant of excess interest payments over dividends received. If defendant shall not reimburse plaintiff of this excess amount due within thirty (30) days, then plaintiff may withhold said amounts from defendant's alimony payments.

Should any tax be imposed by either federal or state governments because of the allocation to defendant of 9,188 shares of Amfac stock, this tax shall be the sole responsibility and liability of defendant, she holding plaintiff harmless for any such taxes imposed because of this allocation. ¹

On March 1, 1973, appellee filed an order to show cause to compel appellant to transfer 3,938 shares of out-of-option stock to her pursuant to the terms of the divorce decree. The record does not indicate any action was taken on this order to show cause.

Appellee filed a second order to show cause on March 14, 1974, to compel appellant to pay to appellee half of the net proceeds of the sale of stock "on or about April 19, 1972" together with reasonable attorney's fees. ²

On August 30, 1974, the Honorable Katsugo Miho, District Family Court Judge of the first circuit (hereinafter referred to as the trial court), held a show cause hearing, and pursuant thereto, filed the following Conclusions of Law:

1. Upon the entry of the Decree of Divorce on March 21, 1972, Plaintiff-Husband 2. At the same time, each share certificate representing shares of stock in Amfac, Inc. which was registered in the name of Plaintiff-Husband, immediately became impressed with a trust in favor of Defendant-Wife of an undivided one-half interest therein, the Defendant-Wife having the beneficial ownership thereof, with the legal title being vested in Plaintiff-Husband.

became a trustee of 9,188 shares of Amfac stock for the benefit of Defendant-Wife, to be held by him in accordance with the terms of the Decree of Divorce.

3. As such trustee, Plaintiff-Husband had a fiduciary duty to earmark or segregate the shares so held by him in trust for Defendant-Wife.

4. Having failed to earmark or segregate any of the 9,188 shares held by him in trust for Defendant-Wife, the proceeds of the 3,187 shares sold by him on April 18, 1972, became impressed with a trust in favor of Defendant-Wife to the extent of one-half thereof, and Plaintiff-Husband owes Defendant-Wife the sum of $59,940.37, being fifty percent of $119,880.74 representing the net proceeds of the sale of 3,187 shares of Amfac stock together with interest paid by Defendant-Wife on the $56,250 balance on the Bank of Hawaii loan A 5295 from April 19, 1972 to the date of the hearing on this Order to Show Cause on August 30, 1974, in the sum of $10,325.04 for a total of $70,265.41. From this sum should be deducted a credit for dividends overpaid on the 3,187 shares in the sum of $2,533.64 through August 30, 1974, leaving a net sum owed her of $67,731.77. In addition, Plaintiff-Husband will continue to owe Defendant-Wife the amount of interest she pays on said Loan A 5295 from and after August 30, 1974, until the date of his payment of the foregoing sum of $67,731.77 less a credit for any dividends on 3,187 shares that may be hereafter overpaid until such payment as aforesaid.

6. Defendant-Wife is not barred by the doctrines of estoppel, laches or waiver in accepting dividends on 9,188 shares to the date of the Entry of an Order on Order to Show Cause.

At the hearing, the Judge orally dismissed the ...