Cvitanovich-Dubie v. Dubie No. 28928 (Haw. App. 4/12/2010), 28928.
| Decision Date | 12 April 2010 |
| Docket Number | No. 28928.,28928. |
| Parties | GERALDINE CVITANOVICH-DUBIE, now known as GERALDINE CVITANOVICH, Plaintiff-Appellant, v. NANCY DUBIE, Personal Representative of the Estate of George Patrick Dubie, Defendant-Appellee. |
| Court | Hawaii Court of Appeals |
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v.
NANCY DUBIE, Personal Representative of the Estate of George Patrick Dubie, Defendant-Appellee.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT, (FC-D NO. 03-1-3588).
On the briefs:
Michael Jay Green, Howard Glickstein, Kimberly A. Van Horn for Plaintiff-Appellant.
Raymond K. Okada, Bruce L. Lamon, and Kimberly J. Koide, (Goodsill Anderson Quinn & Stifel), Paul A. Tomar, (Ashford & Wriston), for Defendant-Appellee.
NAKAMURA, C.J., FOLEY AND LEONARD, JJ.
OPINION OF THE COURT BY FOLEY, J.
Plaintiff-Appellant Geraldine Cvitanovich-Dubie, now known as Geraldine Cvitanovich, (Geraldine) appeals from the "Order Denying Plaintiff's Motion for Post-Decree Relief to Vacate Divorce Decree or Set Aside Property Division Pursuant to Hawaii Family Court Rule 60([b]), Filed June 28, 2007" (Order) filed on December 18, 2007 in the Family Court of the First Circuit (family court).1
In the November 28, 2003 Divorce Decree (11/28/03 Decree), the family court granted the divorce of Geraldine and George Patrick Dubie (Dubie). Dubie died on July 2, 2006, and on October 8, 2007, the family court orally granted the substitution of Nancy Dubie (Nancy), Personal Representative of the Estate of George Patrick Dubie, as the defendant.
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On appeal, Geraldine contends the family court reversibly erred in refusing to vacate the 11/28/03 Decree, which, she argues, is void ab initio2 as a matter of law for the following reasons:
(1) The family court did not have subject matter jurisdiction over Dubie and Geraldine when the court issued the 11/28/03 Decree because Dubie and Geraldine were never legally married to each other. When Dubie purportedly married Geraldine, he was still married to Sylvie Bertin (Sylvie). Dubie and Sylvie were still married because the Fifth Circumscription of the Civil and Commercial Chamber of the National District in the Dominican Republic court (Dominican court), which issued Dubie and Sylvie's divorce decree (Dominican Decree), lacked subject matter jurisdiction over Dubie and Sylvie because neither of them was a resident or domiciliary of the Dominican Republic and, therefore, the Dominican Decree is void ab initio. The Dominican Decree is not entitled to comity, recognition, or enforcement in Hawai`i. In the family court's "Findings of Fact[] and Conclusions of Law with Respect to Claims Made by Plaintiff Geraldine Cvitanovich-Dubie in Her Motion for Post-Decree Relief to Vacate Divorce Decree or Set Aside Property Division Pursuant to Hawaii Family Court Rule 60([b]) Filed on June 28, 2007" (FOFs/COLs Re Motion for Post-Decree Relief), Findings of Fact (FOFs) 11 through 16, 19, 22, 23, 25, and 27 are clearly erroneous, and Conclusions of Law (COLs) 35 and 39 are wrong.
(2) The undisputed evidence showed that the "notice" of Dubie and Sylvie's divorce (the Dominican divorce) given to Geraldine was inadequate, a violation of the Due Process Clause of the United States Constitution.
(3) The Dominican Decree is subject to collateral attack because it is void ab initio, and Conclusion of Law (COL) 34 is wrong.
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(4) The family court erroneously denied Geraldine relief or, at least, an evidentiary hearing pursuant to Hawai`i Family Court Rules (HFCR) Rule 60(b)(6) because Geraldine proved her case of undue influence and fraud on the court, which Nancy failed to rebut. Related to this argument is Geraldine's contention that COLs 31, 40, 41 and 44 are wrong.
Geraldine also contends FOFs 6, 7, 8, 10, 17, and 28 are clearly erroneous; COLs 30, 32, 36, 37, 38, 42, and 43 are wrong; and COLs 40, 41, and 44 are wrong for reasons other than that stated in paragraph (4) supra.
Geraldine requests that we reverse the Order, instruct the family court to grant "Plaintiff's Motion for Post Decree Relief to Vacate Divorce Decree or Set Aside Property Division Pursuant to Hawaii Family Court Rule 60([b])" (Motion for Post-Decree Relief), and vacate the 11/28/03 Decree pursuant to HFCR Rule 60(b)(4) as void ab initio. Alternatively, she asks that we reverse the Order and either instruct the family court to grant the Motion for Post-Decree Relief or grant her an evidentiary hearing.
On February 25, 2008, the family court filed its FOFs/COLs Re Motion for Post-Decree Relief, which provides in relevant part:
WHEREAS, [Geraldine] filed [the Motion for Post-Decree Relief] on June 28, 2007 ....
WHEREAS, On September 11, 2007, Nancy filed an Opposition Memorandum to [the Motion for Post-Decree Relief] ("Opposition Memorandum").
WHEREAS, [Geraldine] filed a reply to Nancy's Opposition Memorandum on September 14, 2007.
WHEREAS, on September 17, 2007, Nancy filed a Supplemental Memorandum in Opposition to [the Motion for Post-Decree Relief] ("Supplemental Opposition Memorandum").
WHEREAS, on September 18, 2007, [Geraldine] filed a reply to Nancy's Supplemental Opposition.
WHEREAS, the matter came on for hearing on September 19, 2007 and October 8, 2007, before the Honorable R. Mark Browning, pursuant to [the Motion for Post-Decree Relief] ....
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WHEREAS, pursuant to the [family court's] order, the parties submitted additional briefings on November 7, 2007 and November 16, 2007.
WHEREAS, the [family court], having considered the applicable law, the uncontroverted evidence, the applicable standard of proof, the memoranda presented and the arguments of counsel, issued an order denying [Geraldine's] [Motion for Post-Decree Relief], and makes the following [FOFs] and [COLs].
I. PARTIES
1. [Geraldine] is a resident of the State of Hawai`i.
2. The Decedent, [Dubie] was a resident of the State of Hawai`i. Dubie was killed in Thailand on July 2, 2006.
3. [Nancy] was appointed as the Personal Representative of the Estate of George Patrick Dubie by the Probate Division of the First Circuit Court of the State of Hawai`i .... Pursuant to the [family court's] oral order on October 8, 2007, Nancy was substituted with title as [Dubie].
II. CLAIMS ASSERTED BY [GERALDINE]
4. In [Geraldine's] [Motion for Post-Decree Relief], [Geraldine] seeks an order to set aside the [11/28/03 Decree] on the basis that the marriage between [Geraldine] and Dubie is void ab initio. In the alternative, [Geraldine] seeks to set aside the property division portion of the [11/28/03 Decree] because of her claim that Dubie, through fraud, undue influence and deception, caused [Geraldine] to agree to transfer real property, personal property and other things of value to him via contracts, some of which became incorporated in the [11/28/03 Decree] issued by the [family court] and some of which were post-divorce decree transfers.
III. FINDINGS OF FACT[]
5. [Dubie] married [Sylvie] on October 2, 1989 in Honolulu, Hawai`i.
6. On February 7, 1995, the [Dominican] — court granted [the Dominican] Decree, terminating the marriage between Dubie and Sylvie ....
7. Notice of the [Dominican] Decree was mailed to Dubie that same day.
8. The [Dominican] Decree became a definite and final ruling on the date of pronouncement, April 24, 1995.
9. Neither Dubie nor Sylvie filed an appeal to set aside the [Dominican] Decree.
10. The time-period [sic] to appeal the [Dominican] Decree elapsed on April 7, 1995, two months after the [Dominican] Decree was entered.
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11. From February 2, 1995 until present, Sylvie relied upon the validity of the [Dominican] Decree entered by the [Dominican court].
12. Ever since the [Dominican] Decree was entered, Sylvie has held herself out as being divorced from Dubie.
13. Prior to [Geraldine's] [Motion for Post-Decree Relief], at no time did anyone ever question the validity of the [Dominican] Decree.
14. Sylvie did not question the validity of the [Dominican] Decree because when purchasing a home in 1995, Sylvie successfully proved the validity of the [Dominican] Decree to an attorney in the province of Quebec, Canada.
15. In reliance on the [Dominican] Decree, Sylvie and Dubie's daughter, Felicia ("Felicia"), had her last name changed to "Dubie" so that she would be able to live with her father.
16. In 1995, the U.S. Embassy certified and recognized the [Dominican] Decree by acknowledging the Dominican Republic divorce procedures.
17. In or around March 1996, after his divorce from Sylvie, Dubie and [Geraldine] met. [Geraldine] is co-founder of the diet herbal supplement company, "Herbalife."
18. Shortly thereafter, while residing in Hawai`i, Dubie introduced [Geraldine] to Sylvie.
19. With full knowledge of the [Dominican] Decree, on or about April 30, 1996, [Geraldine] completed and submitted a Marriage License Application to the Department of Health for the State of Hawai`i.
20. The application for marriage license indicated that Dubie's marriage to Sylvie ended in divorce in 1995 in the Dominican Republic, Caribbean.
21. [Geraldine] signed the Marriage License Application and swore under oath that the information contained in the application was true and correct to the best of her knowledge.
22. On May 1, 1996, Dubie and [Geraldine] participated in a ceremonial marriage performed by a person duly authorized to perform marriages in the State of Hawai`i .
23. At the time of the marriage ceremony, [Geraldine] had knowledge, or at least, had constructive knowledge of the [Dominican] Decree and that it was obtained in the Dominican Republic.
24. In the following few years, Dubie and [Geraldine] met with Sylvie and Felicia in Ottawa in 1997, and in Disneyworld in 1998.
25. Based on Sylvie's meetings with Dubie and [Geraldine], Sylvie had an opportunity to observe Dubie and [Geraldine's] relationship. Dubie relied upon the validity of the [Dominican] Decree and held himself out as being divorced. Sylvie also observed that after Dubie and
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Geraldine] were married, they acted like a married couple, lived together and introduced each other as husband and...
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