Nakasone v. Nakasone, 23460.

• Decision Date: 27 February 2002
• Docket Number: No. 23460.,23460.
• Citation: 102 Haw. 108,73 P.3d 62
• Parties: Carmen T. NAKASONE, Plaintiff-Appellee, v. Gerald NAKASONE, Defendant-Appellant.
• Court: Hawaii Court of Appeals

73 P.3d 62

102 Haw. 108

Carmen T. NAKASONE, Plaintiff-Appellee, v. Gerald NAKASONE, Defendant-Appellant.

No. 23460.

Intermediate Court of Appeals of Hawai`i.

February 27, 2002.

Reconsideration Denied March 18, 2002.

Certiorari Granted April 5, 2002.

Kurt Bosshard, Lihue, on the briefs, for Defendant-Appellant.

Ladye H. Martin, on the briefs, for Plaintiff-Appellee.

BURNS, C.J., WATANABE and FOLEY, JJ.

Opinion of the Court by BURNS, C.J.

Defendant-Appellant Gerald Nakasone (Gerald or Defendant) appeals (1) the January 27, 2000 Order Denying Plaintiff's Request for Attorney's Fees and Granting Defendant's Request for Attorney's Fees in Part and (2) the May 15, 2000 Order Denying Defendant's Motion for Reconsideration of the Order Denying Plaintiff's Request for Attorney's Fees and Granting Defendant's Request for Attorney's Fees in Part. We vacate both orders entered by per diem District Family Judge Max W.F. Graham, Jr., and remand for further proceedings consistent with this opinion.

This case involves the application of Hawai`i Family Court Rules (HFCR) Rule 68 (2000).

RELEVANT RULE AND STATUTE

HFCR Rule 68 was amended effective January 1, 2000. With the additions bolded and deletions bracketed, HFCR Rule 68 (2000) states as follows:

At any time more than 20 days before any contested hearing held pursuant to HRS sections 571-11 to 14 (excluding law violations and criminal matters) is scheduled to begin, [either] any party may serve upon the adverse party an offer to allow a [decree or order] judgment to be entered to the effect specified in the offer. Such offer may be made as to all or some of the issues, such as custody and visitation. Such offer shall not be filed with the court, unless it is accepted. If within 10 days after service of the offer the adverse party serves written notice that the offer is accepted, [either] any party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the court shall treat [the matter as an uncontested proceeding and schedule an appropriate hearing, if necessary] those issues as uncontested. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible, except in a proceeding to determine costs and attorney's fees. If the [decree or order] judgment in its entirety finally obtained by the offeree is patently not more favorable [as a whole] than the offer, the offeree must pay the costs, including reasonable attorney's fees incurred after the making of the offer, unless the court shall specifically determine that such would be inequitable in accordance with the provisions of HRS section 580-47, [as amended. The fact that an offer is made but not accepted does not preclude a subsequent offer] or other applicable statutes, as amended.

HFCR Rule 68 (2000) permits offers on any issue (for example, the issue of custody and visitation), but when the offer is not accepted, the question is whether "the judgment in its entirety finally obtained by the offeree is patently not more favorable than the offer[.]" Reasonably construed, the words "the judgment in its entirety finally obtained by the offeree" refer to only the entirety of the part or parts of the judgment resolving the issue or issues as to which there was an offer.¹

Hawaii Revised Statutes (HRS) § 580-47(a) (Supp.2000) states, in relevant part, as follows:

Upon granting a divorce, ... the court may make such further orders as shall appear just and equitable ... (4) allocating, as between the parties, the responsibility for the payment of ... the attorney's fees, costs, and expenses incurred by each party by reason of the divorce. In making such further orders, the court shall take into consideration: the respective merits of the parties, the relative abilities of the parties, the condition in which each party will be left by the divorce, the burdens imposed upon either party for the benefit of the children of the parties, and all other circumstances of the case.

BACKGROUND

The relevant chronological history of this case is as follows:

Gerald and Plaintiff-Appellee Carmen T. Nakasone (Carmen or Plaintiff) were married on August 3, 1974. On September 21, 1984, their first daughter was born (First Daughter). Their second daughter was born on May 2, 1988 (Second Daughter).

On January 14, 1998, Carmen filed a Complaint for Divorce.

On November 24, 1998, Gerald tendered to Carmen an HFCR Rule 68 offer of settlement (Gerald's Offer).² On December 3, 1998, Carmen responded to Gerald's Offer (Carmen's Response). Carmen's Response disagreed with parts of Gerald's Offer and added clarifications, issues, and conditions.

The family court, on March 2, 1999, approved Carmen's and Gerald's Stipulation as to Certain Issues and thereby resolved some of the issues regarding the division and distribution of property and debts.

Trial was held on March 23, 1999, April 6, 1999, April 9, 1999, and May 7, 1999.

On September 9, 1999, the family court filed its Findings of Fact; Conclusions of Law; Decree Granting Divorce and Awarding Child Custody (September 9, 1999 FsOF, CsOL, and Decree).

Defendant's Motion for Award of Attorney's Fees and Costs was filed on September 17, 1999 (Motion for Award of Attorney's Fees).

Defendant's Motion for Reconsideration and/or Clarification of the Findings of Fact, Conclusions of Law, Decree Granting Divorce and Awarding Child Custody was filed on September 28, 1999 (September 28, 1999 Motion for Reconsideration).

On October 25, 1999, Carmen filed a Motion to Amend Findings of Fact; Conclusions of Law; Decree Granting Divorce and Awarding Child Custody; Exhibit "A" Filed on September 9, 1999 (Motion to Amend).

A hearing was held on November 3, 1999, on (1) the Motion for Award of Attorney's Fees, (2) the September 28, 1999 Motion for Reconsideration, and (3) the Motion to Amend. At the conclusion of the hearing, the court took the matter under advisement. Before the court made its final decision, HFCR Rule 68 was amended.

The family court, on January 27, 2000, entered its Order Denying Plaintiff's Request for Attorney's Fees and Granting Defendant's Request for Attorney's Fees in Part in which it stated its findings of fact and conclusions of law (January 27, 2000 FsOF, CsOL and Order for Attorney Fees).

Also on January 27, 2000, the family court entered its Order on Plaintiff's Motion to Amend and Defendant's Motion for Reconsideration (January 27, 2000 Order of Amendment) which amended the September 9, 1999 FsOF, CsOL, and Decree.

On February 4, 2000, Gerald filed a Motion for Reconsideration of the Order Denying Plaintiff's Request for Attorney's Fees and Granting Defendant's Request for Attorney's Fees in Part (February 4, 2000 Motion for Reconsideration). The hearing on the motion was held on February 25, 2000. On May 15, 2000, the family court entered its Order Denying the February 4, 2000 Motion for Reconsideration.

On May 23, 2000, Gerald filed a notice of appeal.

Which rule applies? The rule in effect at the time of the original hearing, namely, HFCR Rule 68 (1999), or the rule in effect at the time the original order was entered, namely HFCR Rule 68 (2000)? We conclude that there is no substantive difference between HFCR Rule 68 (1999) and HFCR Rule 68 (2000). Therefore, we will apply HFCR Rule 68 (2000).³ In Gerald's Offer, Gerald stated, in relevant part, as follows:

1. [Carmen] would have sole physical custody with the parties sharing legal custody. [Gerald] would pay [Carmen] child support according to the guidelines.

. . . .

6. Should [Carmen] wish to have the children attend Island School, the children's accounts would be used. All of the children's accounts would remain the children's with both parties signatures required for withdrawals. These would be considered to be educational accounts.

In all other respects, Gerald's Offer pertained to the division and distribution of most but not all of the property and debts of the parties. Gerald's Offer was silent on the issues of education of the children post-high school, his visitation of the children, spousal support, and the remainder of the property and debts.

In Carmen's Response, Carmen responded paragraph by paragraph, in relevant part, as follows:

1. [Carmen] will have sole legal and physical custody of the parties' minor children.... Child support to continue until each child is 23 years old or leaves school, etc.

. . . .

6. The parties had agreed that the children attend Island School and we do not believe the children should be negatively affected due to the divorce of their parents, therefore they should continue at Island School. The parents, putting the interest of their children above all, will equally pay the cost of tuition.

We agree that the savings accounts remain in the children['s] names and both parent[s'] signature[s] be required for withdrawal of funds. Withdrawals are to be made for the benefit of the children specifically, education and if necessary for catastrophic medical expense.

We suggest that in additional [sic] to the child support to be paid while the children are in school, the parents pay equally higher education but the children would use their savings, student loans, scholarships, grants, etc. Once those sources of funds are exhausted, if they are still short funds, [Gerald] and [Carmen] pay one-half each of additional funds needed.

As amended by the family court's January 27, 2000 Order of Amendment, the family court's September 9, 1999 FsOF, CsOL and Decree state, in relevant part, as follows:

I. FINDINGS OF FACT

. . . .

CHILDREN'S ACCOUNTS.

. . . .

31. Early in the marriage, the parties agreed that when they had children they would set money aside for the children's educational needs, including attendance at private schools from grades K through 12 and attendance at college thereafter.

32. [Carmen] started saving for the children's educational fund in 1974, and by 1979 had opened a savings

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