Joaquin v. Joaquin, 9921

• Decision Date: 11 March 1985
• Docket Number: No. 9921,9921
• Citation: 698 P.2d 298,5 Haw.App. 435
• Parties: Joni Greta Rapozo JOAQUIN, Plaintiff-Appellant, v. Clyde Brocky JOAQUIN, Defendant-Appellee.
• Court: Hawaii Court of Appeals

Page 298

698 P.2d 298

5 Haw.App. 435

Joni Greta Rapozo JOAQUIN, Plaintiff-Appellant, v. Clyde Brocky JOAQUIN, Defendant-Appellee.

No. 9921.

Intermediate Court of Appeals of Hawai'i.

March 11, 1985.

Certiorari Denied March 28, 1985.

Syllabus by the Court

1. In a bench trial where it is plaintiff's burden to prove a fact and the record does not contain substantial evidence of the existence of that fact, as a matter law, plaintiff has failed to satisfy his burden, and the failure of the trial judge to make a finding as to that alleged fact is harmless error.

2. A unilateral mistake by the party who signed an appearance and waiver as to its nature and effect does not invalidate the appearance and waiver when the unilateral mistake is not excusable or in the absence of the other party's fraud or inequitable conduct.

3. A mistake as to the nature and effect of a document caused by a failure to read it is not an inadvertent or excusable mistake or neglect.

4. Rule 8(g), Hawaii Family Court Rules (1977), is a statement of proper procedure. It is not a statement that an appearance and waiver executed under other circumstances is invalid.

5. A party seeking relief under Rule 60(b)(1), Hawaii Family Court Rules (1977), for mistake or inadvertence must make some showing of why he was justified in failing to avoid mistake or inadvertence. Gross carelessness is insufficient.

6. A decree is void only if the court rendering it lacked jurisdiction over the subject matter or the parties or if it acted in a manner inconsistent with due process of law.

7. Assuming the court has jurisdiction to enter it, a decree entered by consent of the parties is in the nature of a contract approved by the court and cannot be set aside except on grounds adequate to justify the rescission of a contract.

8. A contract is not unconscionable unless it involves an absence of meaningful choice on the part of one of the parties together with contract terms that are unreasonably favorable to the other party.

Katsuya Yamada, Hilo, for plaintiff-appellant.

Christopher J. Roehrig, Kamuela, for defendant-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

BURNS, Chief Judge.

Plaintiff Joni Greta Rapozo Joaquin (Wife) appeals the family court's (1) January 11, 1983 order setting aside (a) all of its June 15, 1981 decree except the award of the divorce and the child custody and (b) the July 1, 1981 deed of the residence at Naupaka Street, Honokaa, Hawaii, from defendant Clyde Brocky Joaquin (Husband) to Wife and (2) its January 27, 1984 order entering a new decision. The issue is whether the family court abused its discretion in giving Husband relief under Rule 60(b), Hawaii Family Court Rules (HFCR) (1977). We answer yes and reverse and remand with directions.

Husband and Wife were married in Hilo, Hawaii on February 14, 1980. A son was born on October 14, 1980. Just prior to his marriage to Wife, Husband divorced his first wife (Prior Wife). In their divorce settlement, Husband and Prior Wife agreed to share equally the equity of their residence on Naupaka Street, Honokaa, Hawaii, and Husband agreed to purchase Prior Wife's share. Husband accomplished the purchase by assuming and paying some of Prior Wife's debts. An undetermined amount of Husband's payments on Prior Wife's debts came from income received by Husband and Wife during their marriage and from a $6,000 loan from Wife's grandmother. However, Wife's name was not placed on the title. According to Wife's asset and debt statement dated April 5, 1983, the gross value of the residence was then $57,000.00, subject to a mortgage debt of $23,787.58.

On May 19, 1981 Husband and Wife entered into an "Agreement in Contemplation of Divorce" (Agreement) drafted by Wife's counsel. Both parties' signatures were notarized as being his and her "free act and deed." The notary testified that before he notarized the Agreement, he asked Husband if he had read and understood the document and Husband said he did.

By its terms, the Agreement was effective only upon its approval by the judge in the divorce proceedings. It awarded custody of the child to Wife; required Husband to pay to Wife child support of $150 per month and spousal support of $150 per month; awarded Wife the Naupaka Street residence, all household goods and furniture, and the 1978 Toyota sedan; awarded Husband the 1981 Ford pickup; required Wife to pay the debts at Honokaa Federal Credit Union and Bank of Hawaii Visa; and required Husband to pay all other debts of the marriage.

The Agreement provides in relevant part:

The parties were married in Hilo, State of Hawaii, on or about February 14, 1980, and there has been issue of their marriage, to wit, BROCKY A. R. JOAQUIN. In consequences of disputes and irreconcilable differences, it has been determined by the parties that it is impossible for them to live happily in a married state and that their marriage is irretrievably broken. As such, the parties have agreed that they should be divorced and that the Wife should initiate the action for divorce. In anticipation of their divorce, and to settle their respective marital rights and obligations in an amicable manner, the parties have determined, as between themselves, the terms of their divorce.

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1. Effective Date. This agreement shall become binding upon the parties and their respective legal representatives, successors and assigns, immediately upon the granting of an absolute decree of divorce to the Wife, provided that the provisions of this agreement are approved by the Court in which the divorce proceeding is instituted. In the absence of the granting of the decree or the approval of the Court the provisions of this agreement shall have no effect. The parties understand and acknowledge that this agreement is subject to amendment by the Court, and that the Court may modify, delete or add to the terms of this agreement as it sees fit, in which event the parties shall be bound by such amendment, but they shall have the right to appeal therefrom.

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9. Voluntary Execution. Each party acknowledges that this agreement has been entered into of his or her own volition, with full knowledge of the facts and full information as to the legal rights and liabilities of each, and that each believes the agreement to be reasonable under the circumstances.

At the time Husband signed the Agreement, he also signed an unconditional Third Circuit Family Court 6/72 Form, "Appearance and Waiver." Husband's signature was witnessed by the notary. In relevant part the Appearance and Waiver provides: "I understand that I am not required to sign this paper and that by doing so I am permitting the Court without opposition from me to grant the relief prayed for in the Complaint."

Wife signed a complaint for divorce and other relief on May 20, 1981 and filed it on May 22, 1981.

An uncontested hearing took place on May 29, 1981. Husband did not appear in person and was not represented. On June 15, 1981 the family court filed a Decree Granting Absolute Divorce and Awarding Child Custody signed by Judge Robert T. Ito. It incorporated the Agreement without amendment or qualification. The Agreement thereupon lost its independent existence and merged into the decree. Jendrusch v. Jendrusch, 1 Haw.App. 605, 623 P.2d 893 (1981); Wallace v. Wallace, 1 Haw.App. 315, 619 P.2d 511 (1980).

On July 1, 1981 Husband signed a warranty deed of the Naupaka Street residence to Wife and his signature was notarized. It was recorded in the Bureau of Conveyances on July 30, 1981.

On May 11, 1982 Husband filed a "Motion for Relief from Decree or Order" in which he asked for relief from the June 15, 1981 decree based on Rules 60(b)(1), (3), (4), and (6), HFCR. ¹

On January 11, 1983 the family court filed its formal findings of fact. ² In relevant part they are as follows:

On May 19, 1981, Defendant signed an Agreement in Contemplation [sic] of Divorce (here in after [sic] "agreement"), understanding it to be his "divorce papers". He did not know what the agreement was specifically.

Although he had an opportunity to read the agreement, he did not, and although he could have engaged counsel, he did not.

Defendant understood the "divorce papers" or agreement he signed to relate simply to the dissolution of the marital bond with Plaintiff and nothing more. Defendant believed that after signing the "divorce papers" he could marry.

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The Defendant signed an Appearance and Waiver at the same time he signed the agreement. He did not read the Appearance and Waiver before he signed it.

The Appearance and Waiver were [sic] signed before action was filed. Defendant knew of the "divorce action" even though he had not been served with the complaint. Defendant cannot complain of this defect since he relied on the validity of the "divorce" to get remarried.

Plaintiff's counsel drafted the agreement based on the information given and desires expressed by Plaintiff.

There was no bargaining, in the usual sense of the term in arriving at the provisions of the agreement. Defendant acted without deliberation and without advice in signing the agreement.

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The terms of the agreement were egregiously unfair and unconscionable.

The deed to the house and lot were executed by Defendant pursuant to the Decree of Divorce.

and ordered, inter alia, as follows:

THEREFORE IT IS HEREBY ORDERED AND DECREED that the:

Decree Granting Absolute Divorce and Awarding Child Custody is hereby set aside and vacated except as to the matters of the dissolution of the bonds of matrimony and the award of custody of the minor child of the parties.

On January 28, 1983 Wife filed a notice of appeal. On December 15, 1983 the supreme court dismissed the appeal for lack of a final order.

On January 27, 1984 the family court ordered into effect its June 13, 1983 "Decision Regarding Property Division, Debt Allocation and Child Support." The decision did not...