Berry v. Berry

• Decision Date: 11 May 2012
• Docket Number: No. SCWC–10–0000044.,SCWC–10–0000044.
• Citation: 127 Hawai'i 243,277 P.3d 968
• Parties: Julianne Nguyen BERRY, Respondent/Plaintiff–Appellee, v. Wayne Foster BERRY, Petitioner/Defendant–Appellant.
• Court: Hawaii Supreme Court

127 Hawai'i 243

277 P.3d 968

Julianne Nguyen BERRY, Respondent/Plaintiff–Appellee,

v.Wayne Foster BERRY, Petitioner/Defendant–Appellant.

No. SCWC–10–0000044.

Supreme Court of Hawai‘i.

May 11, 2012.

Timothy J. Hogan, for petitioner.

Carl H. Osaki, for respondent.

RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, and McKENNA, JJ.

Opinion of the Court by ACOBA, J.

We hold that (1) the Family Court of the First Circuit (the court)¹ did not abuse its discretion in denying Petitioner's October 9, 2009 Motion to Set Aside Divorce Decree (Motion to Set Aside) seeking to set aside the November 21, 2008 Decree Granting Absolute Divorce and Awarding Child Custody (Divorce Decree) because Petitioner/Defendant–Appellant Wayne Foster Berry (Petitioner) had notice that his failure to appear at a scheduled settlement conference would result in default, and the court acknowledged that Petitioner's motion was for Hawai‘i Family Court Rules (HFCR) Rule 60(b) relief, although Petitioner had failed to cite HFCR Rule 60(b) in support of the motion; (2) whether the Divorce Decree exceeded the relief previously requested by Respondent/Plaintiff–Appellee Julianne Nguyen Berry (Respondent) in her Complaint and Proposed Decree with respect to the award of copyrights held in Petitioner's name (hereinafter, "the copyrights") need not be decided; inasmuch as (3) the court abused its discretion in declining to set aside that part of the Divorce Decree that transferred Petitioner's entire ownership interest in the copyrights to Respondent in violation of federal law. We thus vacate the August 17, 2011 judgment of the ICA filed pursuant to its July 28, 2011 Summary Disposition Order (SDO),² affirming the September 22, 2010 Order Denying Motion to Set Aside and the Findings of Fact and Conclusions of Law filed by the court, in part, insofar as it held the court properly awarded Respondent the copyrights. We vacate that portion of the Divorce Decree that awarded Respondent all ownership interest in the copyrights, and remand to the court for a determination of the economic interest in the copyrights to which Respondent is entitled. We affirm the Divorce Decree in all other respects.

I.

The following essential matters, some verbatim, are from the record and the submissions of the parties.

A.

Petitioner and Respondent were married on December 24, 1992. On January 20, 2006, Respondent filed a complaint for divorce (Complaint). On September 25, 2006, the court filed an Order of Dismissal pursuant to HFCR Rule 41(e)(1) for want of service.³

On October 5, 2006, Respondent filed an Ex Parte Motion to Reinstate for Good Cause Complaint for Divorce and Summons Filed on 1/20/2006 and to Extend Time to Serve Complaint for Divorce and Summons Filed on 1/20/2006 (Motion to Reinstate Complaint and Extend Time to Serve). Attached was the affidavit of Respondent's counsel, Cheryl Brawley (Brawley),⁴ in which she declared (1) that the last known address of Petitioner was an address on Muolea Place in Honolulu, Hawai‘i (Muolea address), (2) a certified copy of the Complaint was sent to Process Service Exclusive, LLC (PSE) to be personally served on Petitioner at that address, (3) on April 7, 2006, PSE notified Brawley it had been unable to serve Petitioner, it made nine attempts to serve Petitioner at the Muolea address, Petitioner no longer lived at that address, and it attempted to serve Petitioner at the United States District Court, District of Hawai‘i on May 5, 2006, but was unable to do so, and (4) although PSE was told that Petitioner no longer resided at the Muolea address, Respondent reasonably believed that Petitioner continued to reside there. Respondent sought reinstatement of her Complaint and additional time to serve Petitioner. The court granted Respondent's motion in an order filed on October 5, 2006, which reinstated Respondent's Complaint and provided Respondent until January 20, 2007⁵ to serve Petitioner with the Complaint.

On March 6, 2007, Respondent filed a Motion for Personal Service Without the State and Affidavit (Motion for Personal Service), seeking an order pursuant to HRS § 580–3(b)⁶ and HFCR Rule 4(e)⁷ authorizing personal service by an officer or person authorized to effect service of legal process under the laws of Petitioner's state of residence, Florida. The motion was granted on March 14, 2007.⁸ An Affidavit of Service was filed with the court on August 31, 2007, indicating that Petitioner had been personally served with the complaint.

B.

On September 12, 2007, Petitioner filed, pro se, a Non–Hearing Motion to Dismiss Expired Complaint for Divorce (Motion to Dismiss). Petitioner argued (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief may be granted, and (7) failure to join a party under Hawai‘i Rules of Civil Procedure (HRCP) Rule 19.

C.

On February 4, 2008, Respondent filed with the court a Motion to Set and Notice of Motion (Motion to Set), her Position Statement, by way of a proposed decree, (Proposed Decree), Income and Expense Statement, and Asset and Debt Statement. In the Proposed Decree, Petitioner indicated she was seeking, inter alia, sole legal and physical custody of the minor children of the parties, child support, expenses for tutoring for the children, medical and dental insurance coverage for the minor children, and alimony. With respect to the copyrights, Respondent indicated that "[Petitioner] shall be awarded his interest in any copyrights/patents obtained during the marriage and [Respondent] waives any interest therein, provided that within 15 days of the effective date of [the] Divorce Decree, [Petitioner] pays [Respondent] a sum representing her interest in [the] said property[.]"

The court set the matter for a hearing on March 27, 2008. On March 10, 2008, Petitioner filed, pro se, a Motion to Strike [Respondent's] Motion to Set and Notice of Motion for a Dismissed and Expired Complaint for Divorce (Motion to Strike).⁹ In his Motion to Set, Petitioner listed 5500 Military Trail in Jupiter, Florida (Military address) as his address.

Petitioner did not appear at the March 27, 2008 hearing. The court minutes indicate that the court attempted to contact Petitioner by telephone, the bailiff left a message for Petitioner on his answering machine informing him that his case had been set for 9:00 a.m. that day, it was 10:15 a.m., Petitioner's case was being heard at the moment, and Respondent should call the court back at the given number. That same day, the court filed Pretrial Order No. 1 setting forth various deadlines and court dates for the case, including a settlement conference date of June 19, 2008 and trial date of July 7, 2008. The court also filed orders dismissing Petitioner's Motion to Dismiss and Motion to Strike for "lack of prosecution." On April 1, 2008, copies of the foregoing orders were mailed to Petitioner at his last known address, the Military address.

Petitioner was not present at the June 19, 2008, settlement conference. On June 23, 2008, the court filed Pretrial Order No. 2, continuing trial to the week of October 27, 2008 and settlement conference to September 18, 2008. The order stated in part, "if [petitioner] fails to appear at settlement conference, he shall be defaulted. " (Emphasis added.) A Statement of Mailing was filed by Brawley on June 25, 2008, indicating that a copy of Pretrial Order No. 2 was mailed to Petitioner's Military address.¹⁰

The court minutes indicate that Petitioner was "not present" at the September 18, 2008 settlement conference. On November 21, 2008, the court filed the Divorce Decree. The Divorce Decree does not reflect that the court entered default against Petitioner. However, the September 18, 2008 court minutes noted that three calls were made for Petitioner "with no response[,]" the "court minutes reflect that at last hearing the court stated that if [Petitioner] fails to appear at the next court hearing court will enter default against him and the divorce will be granted[, the] court defaulted [Petitioner]," and the "divorce is granted[.]"

The Divorce Decree granted a divorce to Respondent and Respondent was awarded, inter alia, sole custody of the parties' minor children, child support, alimony, and "any and all interest in all of [Petitioner's] rights, title and interest to any copyrights, patents, or any other intellectual property that he authored or acquired during the period of the parties' marriage, including but not limited to" the "copyrights covered by the 37 copyright registrations filed in the United States Copyright Office" and "all rights, title, and interest of [Petitioner], in, to or related to any software covered by or related to the End User License Agreement." (Emphases added.)

D.

1.

On October 9, 2009, Petitioner filed, pro se, a Motion to Set Aside. In his motion, he argued that the Divorce Decree should be set aside because (1) Brawley committed fraud on the court by "claim[ing] to have noticed [Petitioner] with her filings and communications" when "she has not[,]" (2) he was not served with a copy of the Divorce Decree, (3) the children for whom he owed child support were not his biological children nor did he adopt them, and (4) federal law, namely, 17 U.S.C. § 201(e),¹¹ prohibits a state court from involuntarily transferring his copyrights with the sole exception of transfers made pursuant to Title 11 of the United States Bankruptcy Code. In addition, he incorporated by reference his Motion to Dismiss, in which he re-alleged the defenses previously noted.

2.

A hearing on Petitioner's Motion to Set Aside was originally set for January 13, 2010.¹² An order was filed on January 13, 2010, continuing the hearing to February 10, 2010. The order indicates that Timothy Hogan (Hogan) appeared at the hearing as counsel for Petitioner. This is the first time Petitioner appears to have been...