Cvitanovich-dubie v. Dubie
Decision Date | 14 April 2010 |
Docket Number | No. 28928.,28928. |
Citation | 231 P.3d 983,123 Hawai'i 266 |
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 |
COPYRIGHT MATERIAL OMITTED
Michael Jay Green, Howard Glickstein, Honolulu, Kimberly A. Van Horn, on the briefs, for Plaintiff-Appellant.
Raymond K. Okada, Bruce L. Lamon, and Kimberly J. Koide (Goodsill Anderson Quinn & Stifel), Paul A. Tomar (Ashford & Wriston), Honolulu, on the briefs, for Defendant-Appellee.
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.
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.
(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:
To continue reading
Request your trial- Cvitanovich–dubie v. Dubie
- Cvitanovich-Dubie v. Dubie
-
Wilson v. State
...disadvantage, a right inconsistent with a position previously taken by [the party]." Cvitanovich-Dubie v. Dubie, 123 Hawai'i 266, 276, 231 P.3d 983, 993 (App. 2010), aff'd, 125 Haw. 128, 254 P.3d 439 (2011). Although equitable estoppel requires that the party to be estopped acted wilfully, ......
- Wilson v. State