De Mello v. De Mello
| Decision Date | 09 June 1982 |
| Docket Number | No. 7809,7809 |
| Citation | 646 P.2d 409,3 Haw.App. 165 |
| Parties | Barbara Jean DE MELLO, Plaintiff-Appellant, v. Earl DE MELLO, Defendant-Appellee. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. Absent a timely motion under Rule 59, Hawaii Family Court Rules (1977), or absent a reservation of jurisdiction over property, Hawaii Revised Statutes § 580-56(a) (1976) divests the family court of jurisdiction to divide and distribute property on and after the eleventh day after it issues the decree of divorce.
2. A party who does not file a motion for relief under Rule 60(b), Hawaii Family Court Rules (1977), may not on appeal complain of the failure to award her relief under Rule 60(b).
3. The standard of review of a trial court's award of fees and costs at the trial level and of costs and fees on appeal is whether there has been a manifest abuse of the trial judge's wide discretion in such matters.
4. The standard of review of a trial court's denial of a motion under Rule 60(b), Hawaii Family Court Rules (1977), is whether there has been an abuse of discretion.
Lionel D. Meyer, Nakasato & Meyer, Hilo, for plaintiff-appellant.
Andrew P. Wilson, Hilo, for defendant-appellee.
Before BURNS, C. J., HEEN, J., and CHUN, Circuit Judge, assigned by reason of vacancy.
Plaintiff Barbara Jean De Mello (Barbara) appeals the lower court's refusal to award her one-half of defendant Earl De Mello's (Earl) workers' compensation benefits, its refusal to award her spousal support and attorney's fees and costs at the trial level, and its award of only $250 for costs and fees on appeal. We affirm.
Barbara and Earl were married on April 29, 1961. They had four children: Earl, born May 13, 1962; Derrick, born August 27, 1964; Cheryl, born December 27, 1968; and Christy, born December 28, 1974.
On October 29, 1970, while at work, Earl suffered a myocardial infarction (heart attack). He suffered a second one on February 8, 1975.
On September 19, 1975, Barbara sued Earl for a divorce. On January 9, 1976, the Third Circuit Family Court held a hearing on the uncontested calendar which both parties and their attorneys attended. The court orally granted the divorce to Barbara and stated the apparently agreed-to terms thereof on the record.
On February 4, 1976, Earl filed a claim for workers' compensation based on the myocardial infarction suffered on October 29, 1970.
On February 17, 1976, the court filed a decree granting absolute divorce and awarding child custody which, inter alia, awarded custody of the children to Barbara and required Earl to pay unsegregated child and spousal support of $538 per month commencing January 1976; required Earl to provide medical and dental insurance coverage for the minor children "to the maximum amounts available to him through his employment" and to pay the uninsured portion "to a maximum of $400.00 per year"; awarded Barbara the 1970 Chevrolet and the household furnishings and appliances; awarded Earl the 1964 Rambler; awarded Earl and Barbara each one-half of the savings accounts, the savings bonds, and the $1,000 federal income tax refund; awarded each one-half of the residence but gave Barbara exclusive use and occupancy of it until all of the children reached 18 at which time it was to be sold and the proceeds equally divided between the parties; and required each party to pay his or her own costs and fees. The decree scheduled the issues of child support, children's tuition, spousal support, and mortgage payment for "further hearing and review by this Court before the end of May, 1976."
On May 28, 1976, Barbara and Earl stipulated on the record that effective June 1, 1976, Earl was obligated to pay child support of $50 per month per child and pay $150 on the monthly mortgage payments on the jointly owned residence; that the residence would be sold when the last child reached 21 years of age or left the residence or terminated full-time education, whichever came first; that Earl was required to pay the children's tuitions at St. Joseph's School; and that "(t)he matter of alimony will be left in abeyance."
As of June 1976 Barbara was receiving financial assistance from Hawaii's Department of Social Services and Housing (DSSH).
On April 26, 1977, in response to the County Corporation Counsel's order to show cause, Earl's monthly support obligation was amended, and he was required to pay $133 for the house mortgage and $167 to DSSH. DSSH agreed to cover all of the children's uninsured medical expenses.
Earl remarried on November 7, 1977.
On December 2, 1977, Earl received a lump sum settlement of $20,000 for his February 8, 1975, myocardial infarction.
On April 19, 1978, for his October 29, 1970, myocardial infarction Earl was awarded $7,820.36 for weekly benefits, $5,500 for lump sum disfigurement, $100 reimbursement for mileage, and $3,634.70 reimbursement for out-of-pocket expenses.
On December 29, 1978, in response to Corporation Counsel's November 17, 1978, order to show cause (in which Earl's workers' compensation awards are mentioned), the prior order was continued and Earl was additionally ordered to pay the children's tuitions, fees, and books at St. Joseph's School.
On March 12, 1979, Barbara filed an order to show cause asking for spousal support and for an advance of attorney's fees and costs. On April 12, 1979, Barbara filed an amended order to show cause adding a request for one-half of Earl's workers' compensation benefits. Her memos in support of the motion asserted only one basis for her request: That she was entitled to one-half of the awards because the divorce decree did not dispose of them.
On August 6, 1979, the court filed a decision in which it denied Barbara's claim to one-half of Earl's workers' compensation benefits for the following reasons:
1. The decree is final and cannot be amended because Barbara has not satisfied Rule 59(g)'s, Hawaii Family Court Rules (HFCR) (1977), requirement that "(a) motion to alter or amend the decree or decision and order shall be filed not later than 10 days after entry of the decree or decision and order."
2. Barbara has not moved for relief from the decree under Rule 60(b), HFCR (1977).
3. If Barbara had moved under Rule 60(b), HFCR (1977), for relief from the decree, the motion was untimely because it was not made within a reasonable time as required by Rule 60(b), HFCR (1977).
On October 4, 1979, the court filed a decision in which it (1) denied Barbara any spousal support, (2) denied...
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