Brutsch v. Brutsch

• Decision Date: 12 May 2015
• Docket Number: No. CAAP–12–0000703.,CAAP–12–0000703.
• Citation: 347 P.3d 1023 (Table),135 Hawai'i 217
• Parties: Karl Robert BRUTSCH, Plaintiff–Appellee/Cross–Appellant, v. Celia Kay BRUTSCH, Defendant–Appel1ant/Cross–Appellee.
• Court: Hawaii Court of Appeals

135 Hawai'i 217

347 P.3d 1023 (Table)

Karl Robert BRUTSCH, Plaintiff–Appellee/Cross–Appellant

v.Celia Kay BRUTSCH, Defendant–Appel1ant/Cross–Appellee.

No. CAAP–12–0000703.

Intermediate Court of Appeals of Hawai‘i.

May 12, 2015.

Peter Van Name Esser and P. Gregory Frey, (Coates and Frey), on the briefs, for Defendant–Appel1ant/Cross–Appellee.

Samuel P. King, Jr., on the briefs, Plaintiff–Appellee/Cross–Appellant.

NAKAMURA, C.J., and LEONARD and GINOZA, JJ.

SUMMARY DISPOSITION ORDER

In this divorce case, Defendant–Appellant/CrossAppellee Celia Kay Brutsch (Wife) appeals from: (1) the “Decree Granting Absolute Divorce and Awarding Child Custody” (Divorce Decree); and (2) the “Order Denying Defendant's Motion for Reconsideration and/or Further Hearing and/or Amendment of Trial Decision ...” (Order Denying Wife's Motion for Reconsideration). Plaintiff–Appellee/Cross–Appellant Karl Robert Brutsch (Husband) cross-appeals from: (1) the Divorce Decree; (2) the “Order Awarding Attorney's Fees and Costs” (Order Awarding Attorney's Fees to Wife); (3) “Order–Re: Plaintiff's Motion for Reconsideration and for Rule 68 Attorney's Fees Filed February 16, 2012” (Order Denying Husband's First Motion for Reconsideration); and (4) “Order Denying Plaintiff's Motion for Reconsideration of Decision Announced March 14, 2012, Filed March 21, 2012” (Order Denying Husband's Second Motion for Reconsideration). The Family Court of the First Circuit (Family Court)¹ entered the Divorce Decree, the Order Awarding Attorney's Fees to Wife, and the Order Denying Husband's First Motion for Reconsideration on April 2, 2012; the Order Denying Wife's Motion for Reconsideration and the Order Denying Husband's Second Motion for Reconsideration on July 12, 2012; and its Findings of Fact and Conclusions of Law on October 8, 2012.

On appeal, Wife contends that the Family Court erred in: (1) awarding Wife and Husband joint physical and legal custody of the parties' two children and continuing the alternating-week custody schedule imposed by the Family Court pending the divorce trial; and (2) its rulings regarding child support, educational and medical expenses, and reimbursement for pre-decree expenses. On cross-appeal, Husband contends that the Family Court erred in: (1) refusing to award Husband Category 3 credit for gifts and inheritance received from his father during the marriage; (2) denying Husband's request for attorney's fees pursuant to Hawai‘i Family Court Rules (HFCR) Rule 68 ; and (3) awarding Wife attorney's fees and costs.

As explained below, we affirm in part, vacate in part, and remand for further proceedings.

I.

We resolve the issues raised in Wife's appeal as follows:

A.

We conclude that the Family Court did not abuse its discretion in its custody award. Husband filed for divorce in September 2009. In November 2009, the Family Court issued an order awarding the parties'temporary joint physical and legal custody of their two minor children (Son and Daughter) on an alternating-week basis. This custody arrangement remained in effect for two years while trial was pending.

During the two-day trial, the Family Court heard conflicting testimony regarding what custody arrangement would be in the best interests of the children. See Hawaii Revised Statutes (HRS) § 571–46 (Supp.2011). After considering the evidence, the Family Court awarded the parties joint physical and legal custody of the children and continued the alternating-week time-sharing schedule that existed prior to trial.

Contrary to Wife's contention, we conclude that the Family Court made sufficient findings in its oral ruling to explain its custody decision.² The Family Court stated that it had heard and considered extensive testimony from Wife, Husband, and the custody evaluator; that the parties have different approaches to raising the children that has led to conflict, but that the “good news” is that the children are “coping,” are “successful in school,” and “appear to be doing well”; that the Family Court had “concerns on both sides”; and that although joint custody presents difficulties, the Family Court believed a change in the existing custody arrangement would be worse for the children and that the children would be estranged from Husband even further, if sole custody were awarded to Wife. The Family Court also observed that one of the greatest sources of stress for the children was the divorce proceedings and that this source of stress would end with the completion of the divorce proceedings. The Family Court's findings were sufficient to explain and support its custody award.

The Family Court possesses wide discretion in making decisions regarding custody, and “those decisions will not be set aside unless there is a manifest abuse of discretion.” Fisher v. Fisher, 111 Hawai‘i 41, 46, 137 P.3d 355, 360 (2006) (block quote format and citation omitted). Although the Family Court declined to follow the recommendation of the custody evaluator, it was up to the Family Court to determine the weight and credibility of the evidence, id., and the custody evaluator's recommendation was not binding on the Family Court. Husband presented evidence that he was a concerned and actively involved parent. We cannot say that the Family Court abused its broad discretion in awarding the parties joint physical and legal custody of the children on an alternating-week basis.

B.

Wife contends that the Family Court erred in its rulings regarding child support, educational and medical expenses, and reimbursement for pre-decree expenses.

With respect to child support, we agree with Wife that the Family Court erred in failing to include $1,666 per month in rental income received by Husband when determining his monthly gross income for purposes of computing his child support obligations. The Child Support Guidelines (Guidelines) define “gross income” as including “income from all sources that are regular and consistent [.]” The evidence showed that Husband had been receiving an average of $1,666 per month in rental income from a business he owned with his brother for ten years. This rental income was clearly “regular and consistent,” and the Family Court erred in failing to include it in Husband's monthly gross income in computing his child support obligations under the Guidelines.

While the divorce was pending, Husband was terminated from his job, received severance pay for a year, and then obtained a new job. At the time of trial, Husband was receiving both his severance pay from his former job as well as income from his new job. However, by the time the Divorce Decree was entered, the severance pay had ended and Husband was only receiving the income from his new job. Wife contends that the Family Court erred in failing to combine Husband's severance pay with the income from his new job in determining Husband's gross income for child support purposes for the few months in which he was receiving both. We disagree. By the time the Divorce Decree was filed, Husband was no longer receiving severance pay and therefore the Family Court did not err in excluding the severance pay in computing his child support going forward from the date of the Divorce Decree. Wife did not seek to modify the Family Court's pre-decree child support order based on Husband's receipt of both severance pay and income from his new job, and thus there is no basis to modify Husband's pre-decree child support obligations.

In the Divorce Decree, the Family Court ordered the parties to pay the children's private school expenses and medical/dental expenses in proportion to the percentages of their incomes under the Guidelines, which it determined was 56% (Husband) and 44% (Wife). As we have previously concluded, the Family Court erred in computing Husband's monthly gross income because it failed to include Husband's rental income. We therefore vacate the Family Court's determination of the parties' income percentages in Paragraphs 6(a) and 8 of the Divorce Decree and remand for recalculation of the income percentages.

We reject Wife's claim that the Family Court erred in declining to address the children's higher education expenses or extra-curricular expenses. At the time of the Divorce Decree, the children had not graduated from high school. We conclude that the Family Court did not abuse its discretion by declining to rule on the division of higher education expenses and instead leaving the payment of such expenses to the agreement of the parties or later determination by the Family Court. As to extracurricular expenses, contrary to Wife's assertion, the Family Court addressed these expenses by ordering that they be divided evenly between the parties for agreed-upon activities and paid solely by the parent who enrolled the child for activities not agreed-upon.

Pursuant to pre-decree orders, the Family Court ordered the parties to contribute to the payment of marital expenses in the proportion of 59% Husband and 41% Wife, and it reserved all claims for reimbursement for trial. At trial, both parties presented evidence of pre-decree marital expenses they had paid. The Family Court, however, declined to rule on Wife's claim for reimbursement because it found that the “testimony on both sides ... was basically unsubstantiable. Someone says they paid it. Someone says, no, you didn't. I'm not going to fight over it. Court declines to order. [Wife's claim for reimbursement] is denied.” We agree with Wife that the Family Court erred in declining to rule on her claim for reimbursement. The Family Court's pre-decree orders entitled Wife to obtain reimbursement of marital expenses to the extent that she paid more than her 41% share. The conflict in testimony did not entitle the Family Court to decline to rule on Wife's...