Baker v. Bielski

• Decision Date: 31 January 2011
• Docket Number: No. 28732.,28732.
• Citation: 124 Hawai'i 455,248 P.3d 221
• Parties: Gary Sidney BAKER, Plaintiff–Appellee,v.Lucyna BIELSKI, fka Lucyna Bielski Baker, Defendant–Appellant.
• Court: Hawaii Court of Appeals

124 Hawai'i 455

248 P.3d 221

Gary Sidney BAKER, Plaintiff–Appellee,

v.Lucyna BIELSKI, fka Lucyna Bielski Baker, Defendant–Appellant.

No. 28732.

Intermediate Court of Appeals of Hawai‘i.

Jan. 31, 2011.

Stephen T. Hioki, on the briefs, for Defendant–Appellant.Gary Sidney Baker, on the briefs, Plaintiff–Appellee pro se.NAKAMURA, C.J., FOLEY and REIFURTH, JJ.Opinion of the Court by FOLEY, J.

Defendant–Appellant Lucyna Bielski, formerly known as Lucyna Bielski Baker, (Bielski) appeals from the Decree Granting Absolute Divorce (Decree) filed on July 31, 2007 in the Family Court of the First Circuit (family court).¹ In the Decree, among other things, the family court ordered Plaintiff–Appellee Gary Sidney Baker (Baker) to pay alimony to Bielski for six months, divided the parties' property, and ordered each party to be responsible for his or her own attorneys' fees.²

On appeal,³ Bielski contends:

(1) The family court abused its discretion in dividing the parties' assets and debts.

(a) The family court either erroneously failed to divide Baker's commissions on pending escrow and non-binding reservation agreements (commissions) or erroneously awarded all of Baker's commissions to him because the commissions were marital assets and not Baker's separate property. Related to these arguments is Bielski's contention that in the family court's November 2, 2007 Findings of Fact and Conclusions of Law (FOF/COL), Finding of Fact (FOF) 140 is clearly erroneous and Conclusion of Law (COL) 6 is wrong.

(b) The family court either failed to equalize or erroneously equalized the parties' assets and debts. Related to this argument is Bielski's contention that COL 6 is wrong.

(i) The family court “did not literally award each party one-half of each and every asset and debt.”

(ii) The family court apparently failed to rely on a property division chart when it divided the parties' assets and debts and so could not have had a reasonable means of determining the asset and debt division.

(iii) Even if the family court relied on a property division chart, the court improperly equalized the parties' assets and debts because the court erroneously included in the calculation an amount Baker owed for 2006 income taxes, after ruling that Baker was to be solely responsible for it; failed to divide credit card debt between the parties; and failed to include the amount Bielski owed for attorney's fees and costs in the calculation.

[248 P.3d 224 , 124 Hawai'i 458]

(c) The family court erred in awarding Baker premarital contribution credit for the value of property located on Burnet Street in Oakville, Canada (the Burnet Property), based on the property's purchase value three years prior to the marriage, because the purchase was too remote in time to form the basis of the court's valuation. Related to this argument is Bielski's contention that FOFs 5 and 156.A are clearly erroneous and COLs 10 and 15 are wrong.

(2) The family court made procedural errors with regard to Baker's Trial Exhibit 47 (Exhibit 47).

(a) The family court erred by admitting into evidence Exhibit 47, which constituted hearsay without exception.

(b) The family court plainly erred by allowing Baker to testify regarding Exhibit 47 before it was admitted into evidence and over Bielski's objection to its admission into evidence.

I.

On July 5, 2006, Baker filed a Complaint for Divorce, in which he requested a divorce from Bielski. The family court held trial on July 9 and 17, 2007. On July 31, 2007, the family court filed the Decree, and on November 2, 2007, the court filed its FOF/COL. Attached to the FOF/COL was a property division chart.

II.

A. 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.

Fisher v. Fisher, 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)).

Schiller v. Schiller, 120 Hawai‘i 283, 287, 205 P.3d 548, 552 (App.2009).

B. Division of Assets

“[T]he division of property is discretionary with the trial court and will not be disturbed on review unless abuse of discretion is clearly shown.” Farias v. Farias, 58 Haw. 227, 231, 566 P.2d 1104, 1108 (1977).

C. Findings of Fact

The family court's FOFs are reviewed on appeal under the “clearly erroneous” standard. A[n] FOF is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made. “Substantial evidence” is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.Fisher v. Fisher, 111 Hawai‘i 41, 46, 137 P.3d 355, 360 (2006) (quoting In re Doe, 95 Hawai‘i 183, 190, 20 P.3d 616, 623 (2001)).

D. Conclusions of Law

A family court's conclusions of law “are reviewed on appeal de novo, under the right/wrong standard ... [and] consequently, are not binding upon an appellate court and are freely reviewable for their correctness.” Fisher, 111 Hawai‘i at 46, 137 P.3d at 360 (quoting In re Doe, 95 Hawai‘i at 190, 20 P.3d at 623).

E. Admission of Evidence

The family court has broad discretion to determine appropriate evidence for trial, and this court reviews such rulings under the abuse of discretion standard. See Miyamoto v. Lum, 104 Hawai‘i 1, 7, 84 P.3d 509, 515 (2004) (the lower court's grant or denial of a motion in limine is reviewed for abuse of discretion); see also Fisher, 111 Hawai‘i at 46, 137 P.3d at 360 (generally, the family court has broad discretion).

[248 P.3d 225 , 124 Hawai'i 459]

III.A. DIVISION OF ASSETS AND DEBTS

“There is no fixed rule for determining the amount of property to be awarded each spouse in a divorce action other than as set forth in HRS § 580–47.” Teller v. Teller, 99 Hawai‘i 101, 107, 53 P.3d 240, 246 (2002) (footnote omitted) (quoting Au–Hoy v. Au–Hoy, 60 Haw. 354, 357, 590 P.2d 80, 82 (1979)). In Prell v. Silverstein, 114 Hawai‘i 286, 162 P.3d 2 (App.2007), this court set forth general principles governing divorce distribution of property:

[Hawaii Revised Statutes (HRS)] § 580–47 (2006 Repl.) provides ... in relevant part, as follows:

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 (1) compelling the parties or either of them to provide for the support, maintenance, and education of the children of the parties; (2) compelling either party to provide for the support and maintenance of the other party; (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. In making these further orders, the court shall take into consideration: the respective merits of the parties, the relative abilities of the parties, the condition in which each party will be left by the divorce, the burdens imposed upon either party for the benefit of the children of the parties, and all other circumstances of the case.

[....]

The Hawai‘i Supreme Court has stated that the foregoing statute confers “wide discretion upon the family court.” Gussin v. Gussin, 73 Haw. 470, 479, 836 P.2d 484, 489 (1992). However,

in adjudicating the rights of parties to a divorce, the family court strives for a certain degree of uniformity, stability, clarity or predictability in its decision-making and thus family court judges are compelled to apply the appropriate law to the facts of each case and be guided by reason and conscience to attain a just result. The partnership model is the appropriate law for the family courts to apply when exercising their discretion in the adjudication of property division in divorce proceedings.

Tougas v. Tougas, 76 Hawai‘i 19, 28, 868 P.2d 437, 446 (1994) (citations, internal quotation marks, and brackets 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). Hawaii 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 in the profits.

[248 P.3d 226 , 124 Hawai'i 460]

Gardner v. Gardner, 8 Haw.App. 461, [465], 810 P.2d 239, 242 (1991) (quoting HRS §...