Aoki v. Aoki

• Decision Date: 02 September 2004
• Docket Number: No. 25417.,25417.
• Citation: 98 P.3d 274,105 Haw. 403
• Parties: Tammie Naomi AOKI, Plaintiff-Appellee, v. Dean Takayuki AOKI, Defendant-Appellant.
• Court: Hawaii Court of Appeals

98 P.3d 274

105 Haw. 403

Tammie Naomi AOKI, Plaintiff-Appellee, v. Dean Takayuki AOKI, Defendant-Appellant.

No. 25417.

Intermediate Court of Appeals of Hawai'i.

September 2, 2004.

Pablo P. Quiban, Honolulu, on the briefs, for plaintiff-appellee.

Ronald P. Tongg, Honolulu, on the briefs, for defendant-appellant.

BURNS, C.J., LIM and FOLEY, JJ.

Opinion of the Court by BURNS, C.J.

Defendant-Appellant Dean Takayuki Aoki (Dean) appeals from the following orders, entered in the Family Court of the First Circuit by Judge William J. Nagle, III: the July 19, 2002 "Findings of Fact, Conclusions of Law and Order Re Trial on March 4, 2002" (July 19, 2002 FsOF, CsOL and Order); and the September 20, 2002 "Order Granting in Part and Denying in Part Defendant's Motion for Reconsideration and Enforcement of Pretrial Order No. [2] Filed February 28, 2002 and for Amendment of Findings of Fact, Conclusions of Law and Order Re Trial on March 4, 2002 to Include Further Orders" (September 20, 2002 Order).

Concerning both the July 19, 2002 FsOF, CsOL and Order, and the September 20, 2002 Order, (A) we affirm all those parts that pertain to (1) the dissolution of the marriage, (2) child custody, visitation, and support, and (3) spousal support; and (B) we dismiss the part that pertains to the division and distribution of property and debts because the lack of a final decision as to that part has resulted in a lack of appellate jurisdiction.

RELEVANT PRECEDENT

Hawaii divorce cases involve a maximum of four discrete parts: (1) dissolution of the marriage; (2) child custody, visitation, and support; (3) spousal support; and (4) division and distribution of property and debts. Black v. Black, 6 Haw.App. 493, 728 P.2d 1303 (1986). In Cleveland v. Cleveland, 57 Haw. 519, 559 P.2d 744 (1977), the Hawaii Supreme Court held that an order which finally decides parts (1) and (4) is final and appealable even if part (2) remains undecided. Although we recommend that, except in exceptionally compelling circumstances, all parts be decided simultaneously and that part (1) not be finally decided prior to a decision on all the other parts, we conclude that an order which finally decides part (1) is final and appealable when decided even if parts (2), (3), and (4) remain undecided; that parts (2), (3), and (4) are each separately final and appealable as and when they are decided, but only if part (1) has previously or simultaneously been decided; and that if parts (2), (3), and/or (4) have been decided before part (1) has been finally decided, they become final and appealable when part (1) is finally decided.

Eaton v. Eaton, 7 Haw.App. 111, 118-19, 748 P.2d 801, 805 (1987) (footnote omitted).

Under general partnership law, "each partner is entitled to be repaid his [or her] contributions to the partnership property, whether made by way of capital or advances." 59A Am.Jur.2d Partnership § 476 (1987) (footnotes omitted). Absent a legally permissible and binding partnership agreement to the contrary, "partners share equally in the profits of their partnership, even though they may have contributed unequally to capital or services." Id. § 469 (footnotes omitted).... [Hawai'i] partnership law provides in relevant part as follows:

Rules determining rights and duties of partners. The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them by the following rules:

(a) Each partner shall be repaid the partner's contributions, whether by way of capital or advances to the partnership property and share equally in the profits and surplus remaining after all liabilities, including those to partners, are satisfied; and must contribute towards the losses, whether of capital or otherwise, sustained by the partnership according to the partner's share of the profits.

Jackson v. Jackson, 84 Hawai'i 319, 333-34, 933 P.2d 1353, 1367-1368 (App.1997) (citations omitted).

In divorce cases, the five categories of net market values (NMVs) are as follows:

Category 1. The [NMV], plus or minus, of all property separately owned by one spouse on the date of marriage (DOM) but excluding the NMV attributable to property that is subsequently legally gifted by the owner to the other spouse, to both spouses, or to a third party.

Category 2. The increase in the NMV of all property whose NMV on the DOM is included in category 1 and that the owner separately owns continuously from the DOM to the DOCOEPOT [date of the conclusion of the evidentiary part of the trial].

Category 3. The date-of-acquisition NMV, plus or minus, of property separately acquired by gift or inheritance during the marriage but excluding the NMV attributable to property that is subsequently legally gifted by the owner to the other spouse, to both spouses, or to a third party.

Category 4. The increase in the NMV of all property whose NMV on the date of acquisition during the marriage is included in category 3 and that the owner separately owns continuously from the date of acquisition to the DOCOEPOT.

Category 5. The difference between the NMVs, plus or minus, of all property owned by one or both of the spouses on the DOCOEPOT minus the NMVs, plus or minus, includable in categories 1, 2, 3, and 4.

Tougas v. Tougas, 76 Hawai'i 19, 27, 868 P.2d 437, 445 (1994) (internal citations omitted).

Under the Partnership Model, assuming all valid and relevant considerations are equal,

1. The Category 1 and 3 NMVs are the "partner's contributions" to the Marital Partnership Property that, assuming all valid and relevant considerations are equal, are repaid to the contributing spouse; and

2. The Category 2, 4, and 5 NMVs are Marital Partnership Property that, assuming all valid and relevant considerations are equal, are awarded one-half to each spouse.

Hussey v. Hussey, 77 Hawai`i 202, 207-08, 881 P.2d 1270, 1275-76 (App.1994). We label this Hussey division the Partnership Model Division.

Thus, under the Partnership Model Division, Category 2, 4, and 5 NMVs are divided 50% to the owner and 50% to the nonowner. Id.

The Partnership Model requires the family court, when deciding the division and distribution of the Marital Partnership Property of the parties part of divorce cases, to proceed as follows: (1) find the relevant facts; start at the Partnership Model Division and (2)(a) decide whether or not the facts present any valid and relevant considerations authorizing a deviation from the Partnership Model Division and, if so, (b) itemize those considerations; if the answer to question (2)(a) is "yes," exercise its discretion and (3) decide whether or not there will be a deviation; and, if the answer to question (3) is "yes," exercise its discretion and (4) decide the extent of the deviation.

Question (2)(a) is a question of law. The family court's answer to it is reviewed under the right/wrong standard of appellate review. Questions (3) and (4) are discretionary matters. The family court's answers to them are reviewed under the abuse of discretion standard of appellate review.

Jackson, 84 Hawai'i at 332-33, 933 P.2d at 1366-1367 (footnote omitted).

BACKGROUND

Dean and Plaintiff-Appellee Tammie Naomi Aoki (Tammie) were married on April 10, 1982. A son was born on May 4, 1984, a daughter was born on March 18, 1987, and another son was born on June 16, 1989. On November 27, 2000, Tammie filed a complaint for divorce.

On January 10, 2001, pursuant to the agreement of the parties, Judge Christine A. Kuriyama entered an order (January 10, 2001 Order) stating, in relevant part, as follows:

(1) Until further order of the Court, the parties are awarded temporary joint legal custody with [Tammie] having tie-breaking authority; provided, however, the parties may return to court for a hearing on this issue if [Tammie] abuses that authority by making decisions without regard to [Dean's] input knowing that she has the ultimate say.

(2) Until further order of the court, [Tammie] shall have temporary physical custody subject to [Dean] having reasonable rights of visitation[.]

On February 28, 2002, after a settlement conference on February 14, 2002, Judge Bode A. Uale entered Pretrial Order No. 2 which states "the existing agreements, made by, and the disputed issues between, the parties."

Regarding custody of the children, the disputes of the parties pertained to the following questions: Should Dean be awarded joint legal custody? Should Dean's visitation be reasonable or Type A? Should Dean be required to pay for the "extra-ord[inary] expenses [for child health care] which are not covered by health care insurance" and "are not agreed to" by him? What expenses are included within the children's "educational expenses"?

Regarding property and debts, the following are some of the agreements: "[Dean] has $168,586 Category 1 and 3 property";¹ "Lokahi residence [(Lokahi Property)] awarded to [Dean] subject to encumbrances thereon. [Dean] to remove [Tammie] from mortgage and helpline"; and "[e]ach party shall pay debts standing in his/her name alone. [Dean] shall pay mortgage on [the Lokahi Property], helpline debt, and close and pay AIA charge card. [Tammie] shall close and pay Discover charge card."

Pretrial Order No. 2 further states that the parties have agreed that, with respect to the division and distribution of property and debts, the

[o]nly issue is whether there are any valid and relevant considerations ("VARCS") to deviate from payment of the remaining equalization payment of $38,017, which is the equalization payment of $86,927 shown on [Dean's] property division chart less the equalization value of the Honda Civic ($2,910) and less $46,000² for the $10,000 bond (line 4.02) and the life insurance cash values (lines 7.03, 7.04 and 7.06). Said $38,017 is subject to determination by trial court of the value of the jewelry. The $38,017 is based upon the jewelry being valued at $29,500. (Property Division Chart is appended hereto as Attachment A.)

Pretrial...