Jaylo v. Jaylo, s. 27851

• Decision Date: 30 March 2011
• Docket Number: Nos. 27851,28049.,s. 27851
• Citation: 248 P.3d 1219,124 Hawai'i 488
• Parties: Rosemarie A. JAYLO, Plaintiff–Appellee,v.Aldo M. JAYLO, Defendant–Appellant.andRosemarie Aguirre Jaylo, Plaintiff–Appellant,v.Aldo Macapal Jaylo, Defendant–Appellee.
• Court: Hawaii Court of Appeals

124 Hawai'i 488
248 P.3d 1219

Rosemarie A. JAYLO, Plaintiff–Appellee,
v.
Aldo M. JAYLO, Defendant–Appellant.andRosemarie Aguirre Jaylo, Plaintiff–Appellant,
v.
Aldo Macapal Jaylo, Defendant–Appellee.

Nos. 27851

28049.

Intermediate Court of Appeals of Hawai‘i.

Feb. 8, 2011.As Amended March 30, 2011.

[248 P.3d 1220]

Robert M. Harris (Denise Miyasaki Wheeler with him on the briefs) for Defendant–Appellant/Appellee.Steven J. Kim, Honolulu, for Plaintiff–Appellee/Appellant.FOLEY, Presiding Judge, FUJISE and LEONARD, JJ.Opinion of the Court by FUJISE, J.

[124 Hawai'i 489] In these consolidated appeals, Defendant–Appellant/Appellee Aldo Macapal Jaylo (Husband) and Plaintiff–Appellee/Appellant Rosemarie Aguirre Jaylo (Wife) appeal from post-divorce decree orders entered by the Family Court of the First Circuit (family court). In appeal No. 28049, Wife appeals from an order entered by the family court on July 19, 2006, denying her motion for enforcement of

[124 Hawai'i 490 , 248 P.3d 1221]

the divorce decree provision of in-lieu payments of her share of Husband's military retirement benefits. In appeal No. 27851, Husband appeals from the March 6, 2006 order entered by the family court,¹ awarding educational child support for the parties' twenty-six-year-old child to Wife. We affirm in No. 28049 and vacate and remand in No. 27851.

I.

Husband and Wife were married in Hawai‘i on January 26, 1980. During the course of their marriage, they had three daughters who, at the time this divorce action was filed, were living in Washington State with the children's aunt and attending middle and high schools. Wife, who filed for divorce on June 4, 1996, also asked for custody of and child support for the three children and for division of the parties' debts and assets.

On July 29, 1996, the family court entered a divorce decree (Decree) that (1) dissolved the marriage of Husband and Wife; (2) awarded (a) full legal and physical custody of the children to Wife, (b) reasonable visitation to Husband, and (c) child support to be paid by Husband to Wife; (3) awarded no spousal support; and (4) divided the assets and debts between Husband and Wife.

Regarding child support, the Decree provided:

Payments of child support shall continue for each child until each child attains the age of 18 years or graduates from high school or discontinues high school[,] whichever occurs last, subject to further order of the court. Child support for each child shall further continue uninterrupted so long as each child continues his education post high school on a full-time basis at an accredited college or university, or in a vocational or trade school and shall continue until each child's graduation or attainment of the age of 23 years, whichever event shall first occur.

The decree also provided for the payment of educational expenses as follows:

7. EDUCATION.

(A) Special education Expenses. [Wife] and [Husband] shall equally split any and all costs incurred for special education needs of the minor children.

(B) Post High School, Higher Education Expenses. Should either child of the parties continue his education post high school on a full time basis at an accredited college or university, or in a vocational or trade school, [Wife] and [Husband] shall each assume and pay one-half (1/2) of the said post high school higher education expenses, including but not limited to tuition, fees, book expenses and necessary transportation expenses. [Wife] and [Husband] shall each continue to pay one-half (1/2) of the higher education expenses for said child until said child's graduation or attainment of the age of 23 years, whichever event shall first occur. This provision shall be subject to further order of the Court.

The Decree also included the following, regarding the division of Husband's military retirement benefits:

13. PERSONAL PROPERTY.

....

(E) Retirement. Effective upon [Husband's] retirement from the United States Armed Forces, and continuing for so long as both parties shall live, [Wife] shall receive a portion of each payment of military disposable retired or retainer pay to which [Husband] is entitled.

[Wife's] portion of each payment of disposable retired or retainer pay shall be “X” in the following formula, in which “M” is the total number of years of the marriage [that] were also years credited to [Husband] for retirement purposes, “Y” is the total number of years credited to [Husband] for retirement purposes, and in which “DRRP” equals the payment of disposable retired or retainer pay to be divided.

X = [.5] [M/Y] [DRRP]

Disposable retired or retainer pay for these purposes shall be the gross retired or retainer pay to which [Husband] is entitled less only amounts which:

[248 P.3d 1222]

....

[124 Hawai'i 491] (3) in the case where [Husband] is entitled to retired pay under Chapter 61 of Title 10, U.S.C.,² an amount which is equal to the amount of retired pay of [Husband] under that Chapter computed using the percentage of [Husband's] disability on the date when [Husband] was retired (or the date on which his name was placed on the temporary disability retired list); or

....

If other deductions from gross monthly retired of [sic] retainer pay are made, [Wife's] portion of each payment of disposable retired or retainer pay shall be increased so that [Wife] receives what she would have received had those other reductions not occurred.

The United States Government shall directly pay [Wife] her portion of [Husband's] disposable retired or retainer pay.

(a) The parties were married on January 26, 1980.

(b) [Husband] has served in the United States Armed Forces since 1988.³

....

In the event that the United States Government will not directly pay [Wife] all she is entitled to under this Section, [Husband] shall immediately make payment to [Wife] of her portion of his disposable retired or retainer pay as soon as he receives it.

Each time [Husband] receives a statement of his retired or retainer pay, he shall promptly send [Wife] a copy.

The Family Court has jurisdiction over [Husband's] disposable retired or retainer pay pursuant to the Uniform[ed] Services Former Spouses Protection Act of 1982 as amended. ⁴

(1) Pursuant to Section 580–47 of the Hawaii Revised Statutes [HRS] [Husband's] disposable retired or retainer pay is subject to equitable division upon divorce.

(2) Pursuant to Section 580–1 of the [HRS] the Family Court has jurisdiction to divide property incident to divorce.

(3) [Husband] has been afforded his rights under the Soldiers and Sailors Civil Relief Act of 1940.

(4) [Husband] has consented to Family Court jurisdiction over his retired or retainer pay.

(5) [Husband] is domiciled in the territorial jurisdiction of the court.

[248 P.3d 1223 , 124 Hawai'i 492]

If at any time after he is retired, [Husband] voluntarily causes a reduction in his gross retired or retainer pay, and thereby deprives [Wife] of a part or all of his [sic] benefits conferred by this Section, [Husband] shall be deemed to have created a constructive trust for [Wife's] benefit under Federal and applicable State law, and [Wife] shall thereupon have an interest in, and the right of immediate possession of, so much of [Husband's] property awarded hereby as is necessary to satisfy said trust. The Family Court shall have continuing jurisdiction to enforce the trust, and make all orders necessary to implement the trust.

(Emphasis and footnotes added).

On November 12, 2002, Wife filed her first “Motion and Affidavit for Post–Decree Relief” (First Motion), asking for modification and enforcement of the Decree. Wife asked that, instead of selling the marital residence and dividing the proceeds, the family court should award title of the marital residence to her. This request was based on Husband's failure to pay, as ordered in the Decree, (1) his share of the children's educational expenses and (2) Wife's share of Husband's military retirement benefits. Wife alleged that Husband's total obligation for these two items exceeded the parties' equity in the marital residence.

Wife claimed that Section 13(3) of the Decree entitled her to a marital portion of Husband's military retired pay, but since the Decree was entered, she had not received any military retired pay from either the military pay center or Husband. She calculated that Husband owed her $35,959.

Husband agreed that he should pay some of the children's educational expenses and that Wife was entitled a share of his retirement benefits, but disagreed with Wife's calculations.

After Wife filed her First Motion but before trial was held on November 21, 2003, the Veterans' Administration (VA), upon Husband's application, increased Husband's disability rating to 60 percent, and pursuant to federal law, ⁵ Husband waived his retirement in order to receive VA benefits.

The parties submitted closing arguments on January 20, 2004. Husband admitted that he did not pay Wife $12,921.77 in military retirement, but he argued that Wife's entitlement to Husband's retirement ended on February 28, 2003, the date on which Husband exclusively received VA disability payments.

Wife disputed Husband's argument that she was no longer entitled to any portion of his retirement benefits given that he was no longer receiving them. She concluded:

Pursuant to above-referenced ⁶ plain language of the Decree, regardless of Husband's present disability rate, and regardless whether this is termed as VA benefits rather than Disability, Wife is still entitled to the same 46.5% as on the date of the Decree, Husband only had 20% disability and therefore, would still be entitled to receive retired pay rather than full VA benefits.

[248 P.3d 1224 , 124 Hawai'i 493]

On June 1, 2004, the family court ⁷ entered its order deciding Wife's First Motion (June 1, 2004 Order) by denying Wife's request to have the marital residence placed in her name and awarding Wife $20,615.80 as Husband's share of the children's past educational expenses. With regard to...