Cvitanovich–dubie v. Dubie

• Decision Date: 22 June 2011
• Docket Number: No. 28928.,28928.
• Parties: Geraldine CVITANOVICH–DUBIE, now known as Geraldine Cvitanovich, Petitioner/Plaintiff–Appellantv.Nancy DUBIE, Personal Representative of the Estate of George Patrick Dubie, Respondent/Defendant–Appellee.
• Court: Hawaii Supreme Court

125 Hawai'i 128

254 P.3d 439

Geraldine CVITANOVICH–DUBIE, now known as Geraldine Cvitanovich, Petitioner/Plaintiff–Appellant

v.Nancy DUBIE, Personal Representative of the Estate of George Patrick Dubie, Respondent/Defendant–Appellee.

No. 28928.

Supreme Court of Hawai‘i.

June 22, 2011.

Michael Jay Green, Howard Glickstein, (Michael Jay Green & Associates) and Kimberly A. Van Horn, for petitioner/plaintiff-appellant.Paul Tomar (Ashford & Wriston), Raymond Okada, Bruce Lamon and Kimberly Koide (Goodsill Anderson Quinn & Stifel), for respondent/defendant-appellee.RECKTENWALD, C.J., NAKAYAMA and DUFFY, JJ., and Circuit Judge PERKINS, assigned in place of MOON, C.J., recused and retired; with ACOBA, J., concurring separately and dissenting.Opinion of the Court by RECKTENWALD, C.J.

In the instant appeal, we consider whether the family court properly denied Geraldine Cvitanovich–Dubie's (Geraldine) motion for relief from the divorce decree terminating her marriage to George Patrick Dubie (George). The motion alleged that Geraldine and George were never legally married, and that the property settlement agreements attendant to the divorce decree were procured through fraud on the court and undue influence.

Briefly stated, the family court granted Geraldine and George's divorce in a November 28, 2003 Divorce Decree (11/28/03 Decree). George was subsequently shot and killed in Thailand on July 2, 2006. On June 28, 2007, Geraldine filed a motion to vacate the 11/28/03 Decree, or to set aside the corresponding property division, pursuant to Hawai‘i Family Court Rules (HFCR) Rule 60(b)(4) and (6), quoted infra. Geraldine argued, inter alia, that her marriage to George was void ab initio because George's previous marriage had not ended in a valid divorce. Accordingly, Geraldine argued that she and George were not legally married at the time the family court entered the 11/28/03 Decree, and that the 11/28/03 Decree was therefore void for lack of subject matter jurisdiction.

The Family Court of the First Circuit (family court) denied Geraldine's motion,¹ and Geraldine appealed. In an April 12, 2010 published opinion, the Intermediate Court of Appeals (ICA) held that quasi-estoppel barred Geraldine's challenge to the validity of the 11/28/03 Decree. Cvitanovich–Dubie v. Dubie, 123 Hawai‘i 266, 278–80, 231 P.3d 983, 995–97 (App.2010). The ICA further held that Geraldine's claims of fraud and undue influence were properly considered under HFCR Rule 60(b)(3), quoted infra, and were untimely because they were not brought within one year of the 11/28/03 Decree. Id. at 281–82, 231 P.3d at 998–99. Geraldine seeks review of the ICA's May 3, 2010 judgment, affirming the family court's order denying Geraldine's motion.

We conclude that the ICA did not err in affirming the family court's order, but that its reasoning was erroneous in part. Specifically, the ICA held that Geraldine was estopped from challenging the validity of George's prior divorce, and thereby was estopped from challenging the family court's

[125 Hawai'i 131 , 254 P.3d 442]

subject matter jurisdiction to enter the 11/ 28/03 Decree. Id. at 278–80, 231 P.3d at 995–97. However, jurisdiction cannot be created by estoppel, cf. Williams v. Aona, 121 Hawai‘i 1, 8, 210 P.3d 501, 508 (2009) (“The lack of jurisdiction over the subject matter cannot be waived by the parties.”) (citation omitted), and it therefore follows that a party cannot be estopped from challenging the family court's subject matter jurisdiction. Accordingly, the ICA was required to address whether the 11/28/03 Decree was “void,” as that term is used in HFCR Rule 60(b)(4), for lack of subject matter jurisdiction.

For the reasons set forth below, we hold that the 11/28/03 Decree is not void under HFCR Rule 60(b)(4). We further hold that Geraldine's claims of “fraud on the court” and undue influence are properly considered under HFCR Rule 60(b)(3), and are therefore untimely. Accordingly, we affirm the judgment of the ICA.

I. Background

The following factual background is taken from the record on appeal.

A. 11/28/03 Decree

Geraldine and George's certificate of marriage indicates that they were married on May 1, 1996. Geraldine filed a Complaint for Divorce on November 6, 2003, on the ground that the marriage between Geraldine and George was irretrievably broken.

Following a hearing, the family court filed the 11/28/03 Decree, in which it found “the material allegations of the Complaint for Divorce to be true, [Geraldine] is entitled to a divorce from the bonds of matrimony ... and the [family c]ourt has jurisdiction to enter this Divorce Decree.” The 11/28/03 Decree incorporated by reference “the Marital Agreement, signed on October 20, 2003, [the] First Amendment to Marital Agreement, signed on November 3, 2003, [the] Second Amendment to Marital Agreement, signed on November 7, 2003, and [the] Third Amendment to Marital Agreement, signed on November 7, 2003” (hereinafter collectively “Property Settlement Agreements”). The 11/28/03 Decree ordered that “[t]he parties are awarded all of their separate property,” and that “[a]ll joint property shall be divided equally,” except as set forth in the Property Settlement Agreements.

B. Rule 60 motion1. Geraldine's allegations and arguments

On June 28, 2007, Geraldine filed a motion to vacate the 11/28/03 Decree, or to set aside the corresponding property division, pursuant HFCR Rule 60(b) ² (Rule 60 motion).³

[125 Hawai'i 132 , 254 P.3d 443]

Geraldine's Rule 60 motion sought relief pursuant to Rule 60(b)(4) and Rule 60(b)(6). With regard to Rule 60(b)(4), Geraldine argued that the 11/28/03 Decree was void on the ground that Geraldine and George were never legally married. Alternatively, Geraldine argued that the property division portion of the 11/28/03 Decree should be set aside under Rule 60(b)(6), on the ground that the property division was the result of “fraud on the court” and “undue influence.”

In her Memorandum in Support of Motion, Geraldine alleged the following facts in support of her claims. Geraldine asserted that George was legally married to Sylvie Bertin (Sylvie) in Honolulu, Hawai‘i on October 2, 1989. Geraldine asserted that Sylvie “purported to obtain a divorce decree in Santo Domingo, Dominican Republic” on February 2, 1995 (Dominican Decree).⁴ Geraldine asserted that Sylvie was then a resident of Montserrat, West Indies, and that George “was not and never had been a resident and/or domiciliary of the Dominican Republic, and did not appear personally or through counsel in any divorce proceedings in the Dominican Republic.”

Geraldine further asserted that she met George in March 1996, and that George “intended to obtain her money and property.” Geraldine asserted that George therefore made factual representations to her, including that (1) he was independently wealthy; (2) he had authored numerous screen plays for well-known movies; (3) he had serious and/or fatal illnesses and diseases; and (4) his uses of her money were to her benefit. Geraldine further asserted that George concealed from her “that he had a criminal conviction, that there were unsatisfied civil judgments against him for more than a million dollars for fraud and undue influence, and that he had fathered at least nine children.”

Geraldine further asserted that, in 2002, George “began spending a considerable amount of time in Thailand,” where he obtained “items of value and real property” using Geraldine's money. Geraldine asserted that, in 2003, George advised her that “for business and other reasons” they should divorce, but that the divorce would be temporary and they should not tell anyone of the divorce.

In support of these factual assertions, Geraldine submitted (1) a copy of George and Sylvie's marriage certificate; (2) certified copies of two separate Judgments, Guilty Convictions and Probation Sentences, sentencing “George Dubie” on charges of theft in the first degree, to which he pled no contest; (3) a copy of a civil judgment against George in the amount of $1,705,594.44 in an unrelated civil case; (4) certified copies of Geraldine and George's marriage license application and marriage certificate, indicating that Geraldine and George were married on May 1, 1996; ⁵ (5) a Variation of Separation Agreement entered into by Sylvie and George in 1996; ⁶ (6) a Report of the Death of an American Citizen Abroad concerning George's death; (7) an Order Granting Petition for Probate of Will and Appointment of Personal Representative in P. No. 06–1–0700, naming Nancy as Personal Representative of George's estate; (8)

[125 Hawai'i 133 , 254 P.3d 444]

Geraldine's declaration; (9) a declaration, “legal opinion,” and supporting materials from an attorney in the Dominican Republic, concerning the validity of the Dominican Decree; and (10) a declaration of forensic psychologist Bennett Blum, opining that the Property Settlement Agreements were a result of George's undue influence on Geraldine.

In her declaration, Geraldine stated, in pertinent part, as follows:

3. In or about March 1996, I met GEORGE [ ]. From the beginning of our relationship, GEORGE [ ] made factual representations to me regarding his financial worth, his business activities, his children and his marital status. These included, without limitation, representations that he was independently wealthy, that he was the author of numerous screen plays of well-known Hollywood movies, that he had four children, and that he was divorced from his previous wife Sylvie [ ]. GEORGE [ ] concealed the facts that he had a criminal conviction, that there were civil judgments against him, and that he had fathered at least nine children.

4. On or about April 30, 1996, a purported investigator named G. Kalani Long gave me a letter in which he advised me that he had conducted a background check on GEORGE [ ] on March 27, 1996; that he had checked publicly available records in the State of Hawaii with regard to whether...