Perez v. Perez

• Decision Date: 22 March 2005
• Docket Number: No. 26050.,26050.
• Parties: David K. PEREZ, Plaintiff-Appellant, v. Leslie T. PEREZ, Defendant-Appellee.
• Court: Hawaii Court of Appeals

110 P.3d 409

107 Haw. 85

David K. PEREZ, Plaintiff-Appellant, v. Leslie T. PEREZ, Defendant-Appellee.

No. 26050.

Intermediate Court of Appeals of Hawai`i.

March 22, 2005.

John V. Kendrick for Plaintiff-Appellant.

William H. Brady, Honolulu, for Defendant-Appellee.

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

Opinion of the Court by BURNS, C.J.

This is an appeal by Plaintiff-Appellant David K. Perez (David) from a December 8, 2004 Amended Order Granting in Part and Denying in Part Defendant Leslie T. Perez's Motion and Affidavit for Post-Decree Relief Filed on June 6, 2003 (December 8, 2004 Amended Order) entered in the Family Court of the First Circuit. We affirm.

BACKGROUND

On September 11, 1968, David entered the United States Armed Forces. David and Defendant-Appellee Leslie T. Perez (Leslie) were married on December 6, 1972. They have two adult non-dependent children.

David retired from military service on March 1, 1990. On July 2, 1996, David filed a complaint for divorce. Pursuant to the agreement of the parties, as indicated by their signatures approving its form and content, the August 4, 1997 Decree Granting Absolute Divorce (Divorce Decree) entered by Judge Lillian Ramirez-Uy states, in relevant part, as follows:

6) Retirement benefits. [Leslie] is awarded a FORTY PERCENT (40%) portion of each payment of disposable retired or retainer pay. The portion is "x" in the following formula, in which "M" is the total number of years of the marriage which were also years credited to [David] for retirement purposes, "Y" is the total number of years credited to [David] for retirement purposes, and in which "DRRP" equals the payment of disposable retired or retainer pay to be divided.

X = {.5} {M/Y} {DRRP} 40% = (.5) (17.4) (DRRP) ______ (21.6)

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

(a) are owed by [David] to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay;

(b) are deducted from the retired pay of [David] as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under Title 5 or 38, U.S.C.;

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

(d) are deducted because of an election under 10 U.S.C. Section 1431 et seq. to provide an annuity to [Leslie] or any former spouse to whom payment of a portion of [David's] retired pay is being made pursuant to a court order. If other deductions from gross monthly retired or retainer pay are made[,] [Leslie's] portion of each payment of disposable retired or retainer pay shall be increased so that [Leslie] receives what she would have received had those other deductions not occurred.

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

. . . .

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

[David] shall pay [Leslie] her portion of [David's] disposable retired or retainer pay as soon as he receives it.

. . . .

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

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

. . . .

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

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

(e) At all times relevant hereto [David] has been a resident of the State of Hawaii other than because of military assignment.

(f) At all times relevant hereto [David] has been a domiciliary of the State of Hawaii.

If, at any time, [David] voluntarily causes a reduction in his gross retired or retainer pay, and thereby deprives [Leslie] of a part or all of her benefits conferred by this Section, [David] shall be deemed to have created a constructive trust for [Leslie's] benefit under Federal and all applicable State law, and [Leslie] shall thereupon have an interest in, and the right of immediate possession of, so much of [David'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.

On June 6, 2003, Leslie filed a Motion and Affidavit for Post-Decree Relief (June 6, 2003 Motion), (1) seeking relief from the financial harm caused her by the fact that "[David] has failed to pay [Leslie] the reduction in her retirement pay caused by him[,]" and (2) asking for an amendment of the language of the Divorce Decree "so that the Defense Finance Accounting Service will accept the Divorce Decree and put [Leslie] back on as the Survivor of [David's] benefits[.]" In an accompanying affidavit, Leslie stated, in relevant part, the following:

9. I have made a demand that [David] pay me directly the difference between what I was supposed to get and what I am currently receiving, but he has refused.

10. I also became aware that he put his new wife on as a survivor to his benefits excluding me as the survivor.

11. I have demanded that he put me back on as a survivor to his benefits, but to this date he has refused to do that too.

12. His refusal to live up to his Divorce Decree has caused me to have to take him back to court and I am asking this Honorable Court to award me my attorney's fees because of his noncompliance.

On August 8, 2003, after a hearing on July 16, 2003, Judge Bode A. Uale entered an "Order Granting in Part and Denying in Part Defendant Leslie T. Perez's Motion and Affidavit for Post-Decree Relief Filed on June 6, 2003".

On August 27, 2003, David filed a notice of appeal. On September 25, 2003, Judge Uale entered Findings of Fact and Conclusions of Law (FsOF and CsOL) that state, in relevant part, as follows:

FINDINGS OF FACTS [sic]

. . . .

6. That on or about August 1997, [Leslie] started to receive approximately $456 per month for her 40% share of [David's] retirement payment.

7. That [David] converted his retirement benefits to VA Disability Benefits thereby reducing [Leslie's] monthly payment to $80 per month, which has risen slowly over time to $144 per month.

. . . .

10. That the divorce decree is silent on the survivor benefit plan and does not say that [Leslie] was awarded survivor benefits.

. . . .

12. That [Leslie's] total monthly gross income adding in $144 being received for retirement pay equals $1,864 a month and that [David's] total monthly gross income adding in $1,237 listed as "pension" equals $3,185 per month according to their respective Income and Expense Statements.

CONCLUSION[S] OF LAW

. . . .

3. That the paragraph pertaining to "a constructive trust" is a reasonable, nonsubstantive enforcement provision that was agreed to by both parties.

4. That the Family Court is a court of equity and find[s] in this case that the equities favor [Leslie].

5. [Leslie] is entitled to be paid an amount equal to 40% of what [David's] gross retired or retainer pay would have been had that amount . . . not been reduced by disability benefits requested by [David].

6. That [David] should pay these sums directly to [Leslie].

On November 5, 2004, this court entered an Order of Temporary Remand to Family Court. On December 8, 2004, Judge Uale entered the December 8, 2004 Amended Order, stating, in relevant part, as follows:

[Leslie's] request to amend the language in the Divorce Decree awarding survivor benefits to [Leslie] is hereby denied.

[Leslie's] request for an order requiring [David] to submit to an examination of judgment debtor under oath is hereby denied.

[Leslie's] request for an order sequestering, garnishing, attaching, executing on, and/or creating security in, specific property of [David] is hereby denied.

[Leslie's] request for an order assigning and garnishing [David's] income is hereby denied.

[Leslie's] request for an order directing [David] to reimburse her for all her legal expenses incurred in this motion is hereby denied.

[Leslie's] request for enforcement of the Divorce Decree is hereby granted.

[David] is hereby ordered to pay an amount equal to forty percent of what his gross retired or retainer pay would have been had that amount not been reduced by disability payments.

As of this hearing date, July 16, 2003, the arrearages are $21,536.20, as calculated by the attorneys for the parties.

The court will stay all payments pending [David's] appeal of this order except that [David] is ordered to pay $200 a month beginning August 1, 2003 directly to [Leslie].

This appeal was assigned to this court on May 19, 2004.

DISCUSSION

David challenges the part of the December 8, 2004 Amended Order that states, in relevant part, as follows:

[Leslie's] request for enforcement of the Divorce Decree is hereby granted.

[David] is hereby ordered to pay an amount equal to forty percent of what his gross retired or retainer pay would have been had that amount not been reduced by disability payments.

As of this hearing date, July 16, 2003, the arrearages are $21,536.20, as calculated by the attorneys for the parties.

The court will stay all payments pending [David's] appeal of this order except that [David] is ordered to pay $200 a month beginning August

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