Owens v. Owens, 24350.

• Decision Date: 25 March 2004
• Docket Number: No. 24350.,24350.
• Citation: 88 P.3d 664,104 Haw. 292
• Parties: Christene E. OWENS, nka Christene Aaron Yazawa, Plaintiff-Appellee, v. Charles E. OWENS, Defendant-Appellant.
• Court: Hawaii Court of Appeals

88 P.3d 664

104 Haw. 292

Christene E. OWENS, nka Christene Aaron Yazawa, Plaintiff-Appellee, v. Charles E. OWENS, Defendant-Appellant.

No. 24350.

Intermediate Court of Appeals of Hawai'i.

March 25, 2004.

As Amended May 5, 2004.

Michael G.M. Ostendorp, on the briefs, Honolulu, for defendant-appellant.

J.E. Mayla Blakley, on the briefs, Honolulu, for plaintiff-appellee.

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

Opinion of the Court by WATANABE, J.

In this appeal stemming from a divorce proceeding, Defendant-Appellant Charles E. Owens (Charles) challenges: (1) a post-decree order granting Plaintiff-Appellee Christene E. Owens, now known as Christene Aaron Yazawa (Christene), $24,697.84 in attorney's fees and costs pursuant to Hawai'i Family Court Rules (HFCR) Rule 68; and (2) an order denying Charles's motion for reconsideration of the foregoing order. We vacate both orders and remand for further proceedings consistent with this opinion.

BACKGROUND

On October 5, 1995, a decree (Divorce Decree) was entered by the Family Court of the First Circuit (the family court) that, among other things: (1) dissolved the marriage of Charles and Christene; (2) awarded Christene legal and physical custody of the couple's son (Son); (3) awarded Charles "reasonable visitation" with Son and ordered Charles to pay $500.00 per month for the support, maintenance, and education of Son; (4) provided that the educational expenses of Son "shall be shared equally by the parties, subject to further order of the [family court]"; (5) required Charles and Christene to "maintain the medical and dental insurance he or she now has in effect through his or her employment or ... obtain comparable insurance"; (6) required any uncovered medical or dental expenses for Son to be paid equally by Charles and Christene; (7) ordered Charles to "obtain all military benefits" to which Son was entitled, "including a military [identification (ID)] card"; (8) required Charles to maintain life insurance for Son's benefit; and (9) divided and distributed the property and debts of Charles and Christene.

On May 26, 1999, a hearings officer with the Office of Child Support Hearings, Child Support Enforcement Agency (CSEA),¹ entered Administrative Findings and Order (Administrative Order), determining that Charles had overpaid Christene $3,236.00 in child support for Son. Christene failed to appear at the administrative hearing that led to the Administrative Order and did not subsequently appeal the Administrative Order. She does not contest that she owes Charles the overpaid amount.

During March 2000, Christene and Charles filed separate motions for post-decree relief in the family court divorce proceeding.

In her motion filed on March 9, 2000, Christene sought increased child support for Son, based on her belief that Charles "has received a promotion and/or pay increase." Christene also sought to offset her $3,236.00 indebtedness to Charles with various amounts she claimed Charles owed her due to his failure to comply with various portions of the Divorce Decree. Specifically, Christene claimed that Charles had failed to: (1) reimburse her for one-half of Son's educational expenses; (2) pay her for his share of Son's uncovered medical/dental expenses; (3) provide a military ID card for Son; (4) comply with provisions of the Divorce Decree concerning the sale of the marital residence, forcing her into bankruptcy; and (5) transfer to her title to a vehicle awarded to her.

In his motion for post-decree relief filed on March 29, 2000, Charles sought joint legal and physical custody of and a revised schedule for visitation with Son. Charles also requested that he and Christene be required to "share medical and school reports at appropriate times" and that the Divorce Decree be clarified to require better communication and cooperation between him and Christene relating to his visitation with Son. Additionally, Charles sought reimbursement by Christene of the $3,236.00 in child support overpayments awarded to him by the Administrative Order or, alternatively, a reduction of his monthly child support payments until his overpayments had been reimbursed in full. Finally, Charles requested payment of his attorney's fees and costs. On June 27, 2000, Charles filed his Settlement Conference Statement in anticipation of a settlement conference set before the family court on June 29, 2000. Regarding his own claims for relief, Charles stated, in relevant part:

[Charles] seeks joint legal and physical custody of [Son], applicable collateral relief, and alternatively, revision of the visitation schedule in this matter. Ideally [Charles] wants the parties to share physical custody of [Son] equally throughout the year on any schedule found by the [family court] to be in the best interests of [Son]. He proposes visitation as set forth in his motion (holidays alternating in even and odd years, the "non-custodial" parent having weekends and a midweek visitation; mother's day with [Christene]; father's day with [Charles]; the parties sharing one-half of [Son's] birthday, or the whole of the day on alternate years as agreed to by the parties[)]. [Charles] further seeks either re-imbursement [sic] of his overpayments for child support (including an examination of [Christene] and third parties as to assets and income, if necessary for a determination of this issue) or a reduction in the amount of monthly child support payments until his overpayments are reimbursed. He further seeks an order clarifying that [Christene] shall communicate directly with him and not use [Son] as a "go between". He lastly seeks payment of his attorney fees and costs.

Regarding Christene's claims for relief, Charles stated, in relevant part, as follows:

It must first be noted that the issues raised in [Christene's] motion, including her claims for off-sets resulting from [Charles's] alleged violations of the divorce decree prior to the May 26, 1999 [Administrative Order] are barred by res judicata....

....

Regarding "damages" resulting from his failure to obtain military I.D. for [Son, Christene's] claims are speculative at best. She admits as much in her motion....

In addition[, Charles] responds that holding a military identification card issued to [Son] would not allow [Christene] to shop at post exchanges for [Son] to say nothing of shopping on behalf of the rest of her family. Further, [Charles] is not aware of any "lessons and services" [Christene] provided to [Son] that could have been obtained if he had a military identification card.

Lastly, [Charles] notes that even if it can be found that he did not comply with the divorce decree as it relates to obtaining a military identification card for [Son], such failure was not willful or contumacious. [Charles] tried his best to obtain military identification for [Son]; he was informed that the army would not issue [Son] an identification card. This assertion is supported by the fact that [Christene] was similarly unsuccessful in her attempts to obtain military identification for [Son]. Only when [Charles] demanded documentation of the Army's refusal to provide [Son] with military identification, did they re-evaluate their refusal.

....

As to [Christene's] claims that [Charles] violated the divorce decree regarding his inability to redeem the parties' real property and hold her harmless for any deficiency on its sale, the following facts are pertinent. [Christene's] counsel drafted the decree after [Christene] was made aware that [Charles] was unable to pay, not just the past due amounts on their mortgage, but current amounts as well. In fact she knew that the property was being foreclosed by [c]ourt action. While it is true that [Charles] accepted the decrees as written by [Christene's] counsel, his inability to redeem the property was beyond his control. [Charles] simply did not have the assets or income to do so. As a judicial proceeding pre-empted the parties' ability to sell their real property for a price equal to their equity, [Charles] did not willfully violate the terms of the decree. Furthermore it was legally impossible for [Charles] to fulfill the divorce decree's "hold harmless provision". Both [Christene] and [Charles] were makers of the note with which their property was purchased and both signed the mortgage giving the lender its security interest in the property. The lender had a legal right to proceed against both the parties in this matter and [Charles] could do nothing to legally insulate [Christene] from the lender's suit or its judgment against them.

Further, if [Christene] suspected that [Charles] was for some irrational reason willing to allow the foreclosure action against their property proceed against his own financial interest, the time for [Christene] to act was during the foreclosure proceeding. In fact she did nothing. She did nothing for the entirely sensible reason that she knew [Charles] was financially unable to redeem the property. It is long since the time for [Christene] to act to enforce the decree regarding this property; she did not because she knew that it was impossible for [Charles] to comply with the decree.

There are also two causation problems in [Christene's] claim regarding [Charles's] failure to redeem the parties' property and hold her harmless for any deficiencies resulting from its sale. First is the fact that she has not alleged, nor has any evidence to prove, that the entry of judgment in the foreclosure action forced her to file for bankruptcy. She has neither alleged, not [sic] provided any evidence showing, that she had assets that were subject to execution as a result of the judgment in Federal National Mortgage Association v. Charles Edward Owens et al., which were saved by the filing of the Petition in Bankruptcy. Further, [Christene] has not provided any evidence to support her claim of economic loss resulting from her bankruptcy.

....

As to [Christene's] claim for off-set resulting from

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