Cox v. Cox, CAAP–12–0000762.
Citation | 344 P.3d 359 (Table),134 Hawai'i 475 |
Decision Date | 29 January 2015 |
Docket Number | No. CAAP–12–0000762.,CAAP–12–0000762. |
Parties | Bruce Edward COX, Plaintiff–Appellant, v. Carlyn Davidson COX, Defendant–Appellee. |
Court | Court of Appeals of Hawai'i |
R. Steven Geshell, on the briefs, for Plaintiff–Appellant.
Plaintiff–Appellant Bruce Edward Cox (Bruce ) appeals from the Order re: Plaintiff's Second Motion for Attorneys' Fees and Costs Pursuant to Hawaii Family Court Rule (HFCR ) Rule 68 filed on July 15, 2011, entered on August 6, 2012 (Order re Fees ) by the Family Court of the First Circuit (Family Court ).1
Bruce contends that the Family Court erred when it refused to award him the attorney's fees and the costs he incurred at the appellate level.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Bruce's points of error as follows:
(Emphasis added.)
In this case, the Family Court concluded that, pursuant to HFCR Rule 68, Bruce was entitled to an award of the reasonable attorneys' fees and costs incurred by Bruce after his HFCR Rule 68 offer to Defendant–Appellee Carlyn R. Davidson, fka Carlyn Davidson Cox (Carlyn ), to the extent that those reasonable fees and costs were incurred at the trial level, but not at the appellate level. In the Order re Fees, the Family Court explained its denial of Bruce's appellate level fees and costs as follows:
The trial court will not award appellate costs to [Bruce]. No Rule 68 offer was presented to [the] Family Court regarding the appeal and even if [Bruce] contends the appellate costs are automatically included in the Rule 69[sic] offer, this Court expressly declines to do so. [Bruce] may consider applying to the appellate court for the award of his appellate fees and costs.
In its subsequent Findings of Fact and Conclusions of Law, entered on November 2, 2012, the Family Court found that “[t]he Family Court declined to award appellate costs to [Bruce]” and concluded, in relevant part, that “HFCR 68 does not state that the prevailing party in an appeal shall get their appellate fees and costs.”
Thus, although the Family Court determined that Bruce was entitled to HFCR Rule 68 fees and costs, it appears that it declined to award appellate fees and costs, at least in large part, because appellate fees and costs are not specifically mentioned in the rule.
However, as the Hawai‘i Supreme Court has previously stated: “An appeal is not a new action, but rather a continuation of an original action.” Nelson v. Univ. of Haw., 99 Hawai‘i 262, 265, 54 P.3d 433, 436 (2002) (citation omitted). Although HFCR Rule 68 does not specifically address appellate fees and costs, such fees and costs are necessarily incurred...
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