Cleveland v. Cleveland

• Decision Date: 07 February 1977
• Docket Number: No. 6084,6084
• Citation: 57 Haw. 519,559 P.2d 744
• Parties: Julia Lyn CLEVELAND, Plaintiff-Appellee, v. Michael Edward CLEVELAND, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 744

559 P.2d 744

57 Haw. 519

Julia Lyn CLEVELAND, Plaintiff-Appellee, v. Michael Edward CLEVELAND, Defendant-Appellant.

No. 6084.

Supreme Court of Hawai'i.

Feb. 7, 1977.

Syllabus by the Court

1. A decree of a family court in a matrimonial action terminating the marriage and dividing the real property is final and appealable, although questions of custody and support of minor children are left for future determination.

2. The time allowed for appeal from a decree of a family court in a matrimonial action terminating the marriage and dividing the real property commences upon the entry of the decree, although questions of custody and support of minor children are left for future determination.

3. An order of a family court in a matrimonial action determining custody of children, ordering support payments, allotting personal property and finding a party in contempt for violation of a prior order was final and appealable, notwithstanding the continuing jurisdiction of the family court to modify the order.

William L. Kohne, Wailuku, Maui, Michael E. Cleveland, pro se, for defendant-appellant.

Rai Sant Chu, Honolulu, for plaintiff-appellee.

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

PER CURIAM.

This appeal is from a decree of absolute divorce, entered by the family court on July 18, 1975, and by its terms effective immediately, which terminated the marriage and divided real property between the parties as tenants in common but reserved questions of custody and support of minor children for future determination, and from an order entered October 2, 1975, which awarded child custody and support and also determined ownership of certain personal property. The decree and the order contained provisions ordering the Appellant to vacate the real property before August 15, 1975 and October 10, 1975, respectively. The notice of appeal was filed October 6, 1975. The case is before us on Appellee's motion to dismiss the appeal as untimely. We hold that the decree was final and that the appeal is not timely as to it, but that the appeal is timely as to the order of October 2, 1975.

Important questions of family court appellate procedure are involved here. Appellant seeks to raise on this appeal questions with respect to the division of the real property by the decree, with respect to the requirement that Appellant vacate the real property although awarded an interest as a cotenant, and with respect to the amount of the child support order. Appellant argues, in opposition to the motion to dismiss, that the decree was not final and appealable, because it did not dispose of all the issues, and that the only final judgment from which an appeal could be taken was the order of October 2, 1975. ¹ However, Appellant does not question the effectiveness of the decree to terminate the marriage and has remarried. We must determine at what time or times, in the on-going process of disposition of a divorce proceeding by the family court, the orders of the court with respect to the various issues customarily dealt with in such proceedings become final so as to commence the running of the period for noticing an appeal.

The family courts are courts of limited and special jurisdiction as defined in Part II of Chapter 571, HRS. Appeals to this court from the family courts are governed by Rules 73 to 76 of the Hawaii Rules of Civil Procedure (HRCP), but proceedings in the family courts are not otherwise subject to those rules. Rules 81(a)(4) and 81(e), HRCP. Thus, although Rule 73(a), HRCP, requires that a notice of appeal from a judgment of the family court be filed within 30 days from the entry of the judgment appealed from, with exceptions which are not applicable to the present appeal, the provisions of Rule 54(b), HRCP, with respect to the finality of judgments dealing with multiple claims are not applicable. HRS § 571-5 directs the board of family court judges, consisting of all family court judges and district family judges, to recommend, for adoption by this court, rules of court governing practice and procedure in the family courts. Such rules had not been recommended to us and none were in effect at the times relevant to this proceeding. ² No rule of court governs the determination of the finality of the decree in this case.

On the other hand, HRS § 580-45 provides that a decree dissolving the bonds of matrimony shall take effect at such time as may be fixed by the court in such decree, which in the decree of July 18, 1975 was upon signing and filing. HRS § 580-47 provides, in relevant part, as follows:

Upon granting a divorce, the court may make such further orders as shall appear just and equitable compelling the parties or either of them to provide for the support, maintenance, and education of the children of the parties and compelling either party to provide for the support and maintenance of the other party and finally dividing and distributing the estate of the parties, real, personal, or mixed, whether community, joint, or separate. In making such 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, but no such final division of estate shall impair the power of the court to revise allowances for children. Provision may be made for the education of an adult or minor child whether or not the application is made before or after the child has attained the age of majority. An order as to the custody, management and division of property shall be final and conclusive as to both parties subject only to appeal as in civil cases, and provided that the court shall at all times, including during the pendency of any appeal, have the power to grant any and all restraining orders that may be necessary to protect the parties and secure justice.

With respect to custody of the children during the pendency of a divorce proceeding, HRS § 580-11 provides:

During the pendency of any action for divorce or separation the court may make such orders concerning the care, custody, education, and maintenance of the minor children of the parties to the action as law and justice may require and may enforce the orders by summary process. The court may revise and amend the orders from time to time.

These statutes were in effect at all times relevant to this proceeding.

The right of appeal to this court from the family courts is given by HRS § 571-54 'upon the same terms and conditions as in other cases in the circuit court', with exceptions not relevant here. This appeal is governed, therefore, by HRS § 641-1, which allows appeals in civil matters only from 'final judgments'. In determining that an order of a family court possessed the finality which made it appealable, in In re John Doe I, 50 Haw. 537, 444 P.2d 459 (1968), we said:

We agree with the statement in Hoier v. Kaplan, 313 Ill. 448, 450, 145 N.E. 243, 244 (1924), that the test of appealability is 'whether the decree or order appealed from determines the ultimate rights of the parties, with respect to distinct matters which have no bearing on other matters left for further consideration.'

This court expressed the same thought in Dole v. Gear, 14 Haw. 554 (1903), where, in holding an order for temporary alimony appealable, over an objection that it was interlocutory, it stated, on page 566, as follows:

'* * * The answer to (the objection) is that the decree or order is final in its nature, though it is not the last decree in the case or even the...