Hsieh v. Sun, CAAP–13–0000096.

• Decision Date: 12 January 2016
• Docket Number: No. CAAP–13–0000096.,CAAP–13–0000096.
• Citation: 365 P.3d 1019,137 Hawai'i 90
• Parties: Sherman Shih–Lung HSIEH, Plaintiff–Appellant, v. I–Ting SUN aka Katherine Sun, Defendant–Appellee.
• Court: Hawaii Court of Appeals

137 Hawai'i 90

365 P.3d 1019

Sherman Shih–Lung HSIEH, Plaintiff–Appellant,

v.I–Ting SUN aka Katherine Sun, Defendant–Appellee.

No. CAAP–13–0000096.

Intermediate Court of Appeals of Hawai‘i.

Jan. 12, 2016.

Robert Ling Sung Nip, Honolulu, on the briefs, for Plaintiff–Appellant.

Stephanie A. Rezents, Thomas E. Crowley, Honolulu, on the briefs, for Defendant–Appellee.

NAKAMURA, C.J., LEONARD and GINOZA, JJ.

Amended Opinion of the Court by GINOZA, J.

Plaintiff–Appellant Sherman Shih–Lung Hsieh (Husband) appeals from an order granting summary judgment (Order) in favor of Defendant–Appellee I–Ting Sun, aka Katherine Sun (Wife), filed on January 17, 2013, in the Family Court of the First Circuit (family court).¹ In the Order, the family court dismissed Husband's Complaint for Divorce (Complaint) based on its determination that Husband and Wife had previously divorced in Taiwan and that the family court lacked subject matter jurisdiction in this case. The Order also awarded reasonable attorney's fees to Wife.

On April 16, 2013, the family court entered findings of fact and conclusions of law (FOF/COL) in support of the Order, and further ordered that "[a]ll items of property that were not expressly finally awarded by the [Taiwan] Divorce Agreement were thereby implicitly finally awarded to their legal owner(s)." The FOF/COL also explained that attorney's fees were awarded to Wife because Husband's declaration submitted in opposition to Wife's summary judgment motion was made in bad faith or solely for the purpose of delay, in violation of Hawai‘i Family Court Rules (HFCR) Rule 56(g).

On appeal, Husband contends the family court erred in issuing the Order and FOF/COL because: (1) the family court did not properly evaluate whether recognition of the non-judicial Taiwan divorce was appropriate on the basis of comity; (2) there are genuine issues of material fact regarding the domicile of the parties at the time of the Taiwan divorce, such as to preclude summary judgment recognition of the Taiwan divorce based on comity; (3) Husband should not be estopped from challenging the validity of the Taiwan divorce; (4) even if the Taiwan divorce is recognized, the family court has jurisdiction to divide property and debts located in Hawai‘i; (5) Hawaii Revised Statutes (HRS) § 580–47 (Supp. 2014) and § 580–56 (2006) do not apply to the Taiwan divorce to preclude the family court from addressing Husband's issues raised in this case; and (6) Husband's declaration did not violate HFCR Rule 56(g) and thus the family court improperly awarded attorney's fees to Wife.

The issues raised by Husband address three fundamental questions in this appeal:

(a) did the family court properly grant summary judgment to Wife recognizing under principles of comity a non-judicial divorce agreement between the parties that was signed and registered in Taiwan; (b) does the family court have jurisdiction to divide property and debts located in Hawai‘i; and (c) did the family court abuse its discretion in awarding attorney's fees to Wife under HFCR Rule 56(g).

For the reasons stated below, we hold that:

(a) The family court did not err in its summary judgment ruling recognizing the non-judicial Taiwan divorce under principles of comity;

(b) Because the Taiwan divorce did not divide any property in Hawai‘i, the family court is not precluded from dividing the parties' Hawai‘i property if the family court has personal jurisdiction over both Husband and Wife, which still needs to be addressed on remand.² However, regardless of whether the family court has personal jurisdiction over both parties, the family court cannot decide the other issues raised in Husband's Complaint (i.e., division of debts in Hawai‘i, as well as child custody, visitation and support) because those issues have already been resolved in the Taiwan divorce; and

(c) Husband's declaration filed in opposition to Wife's motion for summary judgment did not violate HFCR Rule 56(g) and thus the family court abused its discretion in awarding attorney's fees to Wife.

We therefore affirm in part, vacate in part, and remand for further proceedings.

I. Background

In 1999, Husband and Wife were married in Taiwan. Based on the evidence submitted by the parties, it is undisputed that on January 13, 2010, Husband and Wife signed a document in Taiwan entitled "Divorce Agreement" that provides (translated into English):

The parties to the Divorce Agreement, [Husband] and [Wife] agree to enter into this agreement with the following terms and conditions with regard to their divorce:

I. The parties agree to divorce each other due to irreconcilable differences.

II. Custody and Visits of Children:

1. Custody:

Both parties agree that, starting from this date, the Wife shall exercise and bear the rights and obligations with regard to their [three] children ... until they reach 20 years of age.

2. Visiting Rights:

Without interfering with the normal living schedule of [the children] and the wife and the study of the children, the Husband may visit [the children] at any time provided that the Wife shall be notified 7 days prior....

3. Alimony:

The Husband agrees to pay to the Wife support and education fees for [the children] in the amount of NTD200,000 every month.... The above-mentioned amount shall be wired by the Husband into the Wife's account with Bank SinoPac, Jhongxiao Branch....

III. The properties in Taiwan owned by the Husband and Wife at the time upon execution of the Agreement (including but not limited to real estate, stocks, funds, cash, jewelry, etc.) shall belong to each other respectively. All existent debts, if any, shall be borne by the Husband and Wife respectively.

IV. This agreement shall become officially effective from the date on which both parties and the witnesses sign and affix their chops and registration is made with the household registration office by both parties. Afterwards each party shall be free without involvement with each other.

(Emphasis added.) Two witnesses, Huei–Zhi Tsai, Esq. and Li–Chun Chuang, Esq., also signed the agreement. The Divorce Agreement does not expressly address property owned by Husband and/or Wife in Hawai‘i.

The evidence is also undisputed that, on the same day that the parties signed the Divorce Agreement, it was registered at the Daan District Household Registration Office, Taipei City, Taiwan. A document entitled "Household Registration Transcript" provides that Wife and Husband were divorced by "mutual agreement" on January 13, 2010.³

The parties do not dispute that they own property located in Hawai‘i. It is Husband's contention that during the marriage, title to three condominiums in Hawai‘i were transferred from Husband to Wife. Husband also asserts that a car lubrication and servicing business, started with money from his parents, was transferred to a new corporation, Kapiolani Express Auto Center, Inc., in which Wife held all of the shares.

On December 6, 2011, Husband filed the Complaint in the instant case, asserting in pertinent part that the parties had entered into a "divorce registration procedure in Taiwan" in January 2010, but "it is believed that there was no court decree; there also was no judicial division of Hawaii property and debts." The Complaint requests that the family court determine: child custody, visitation, and support; and divide all property and debts located in Hawai‘i.

On February 23, 2012, Husband filed a Motion for Personal Service Without the State. Husband requested that the court authorize personal service without the state because Wife's last know address was in Taiwan. The family court granted the motion.⁴ An Affidavit of Service was filed that indicates Wife was personally served with the Complaint on March 30, 2012.

On April 19, 2012, Wife filed an Answer to Complaint for Divorce, asserting inter alia that: (1) she was appearing for the limited purpose of asserting her defenses to the Complaint; (2) the family court lacked subject matter jurisdiction because the parties were already divorced and the Taiwan Divorce Agreement awarded custody of the children, awarded alimony, and divided the property; and (3) the family court lacked personal jurisdiction over Wife based on insufficiency of process and insufficiency of service of process. Subsequently, on September 12, 2012, Wife filed a motion for summary judgment requesting that the family court recognize the Divorce Agreement registered in Taiwan under the doctrine of comity and hold that the family court lacked subject matter jurisdiction in this case. The motion did not address the issue of personal jurisdiction.

On January 17, 2013, the family court issued the Order, in which the family court ruled, in pertinent part:

(1) The parties divorced in Taiwan on January 12 [sic], 2010.

(2) The Family Court of the First Circuit, State of Hawaii, does not have subject matter jurisdiction in this case.

(3) The complaint filed by Plaintiff on December 6, 2011 shall be dismissed.

(4) Defendant shall be entitled to an award of reasonable attorney's fees.

Husband timely appealed from the Order and requested that the family court enter findings of fact and conclusions of law. On April 16, 2013, the family court entered the FOF/COL. The Order and the FOF/COL did not address or resolve the issue of personal jurisdiction.

II. Discussion

A. Comity

In this case, the family court's ruling on comity was made by way of summary judgment and its decision whether to recognize the Taiwan divorce was based, in part, on considering factual issues that could have precluded recognition of the foreign divorce. Because the family court addressed the comity issue by granting Wife's motion for summary judgment, we review de novo whether there were genuine issues of material fact precluding recognition of the Taiwan Divorce Agreement under principles of comity. See generally Roy v. Buckley, 698 A.2d 497, 501 (Me.1997) ("At the summary judgment stage of the proceeding, the court's task is not to decide any disputed factual...