Sussman v. Sussman
| Decision Date | 08 August 2006 |
| Docket Number | No. 27293.,27293. |
| Citation | 146 P.3d 597 |
| Parties | Janice Lynn SUSSMAN, Plaintiff-Appellee, v. Roger Lee SUSSMAN, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Alan G. Warner, Haiku, and Josette Anne Wallace (Warner & Wallace), on the briefs, for Defendant-Appellant.
Diane L. Ho, on the briefs, for Plaintiff-Appellee.
Defendant-Appellant Roger Lee Sussman (Roger) appeals from the Judgment Granting Divorce and Awarding Child Custody (Judgment) entered on April 18, 2005 in the Family Court of the Second Circuit.1 We affirm the spousal support and the division and distribution of assets and debts parts of the Judgment. We vacate the child custody, visitation, and support part of the Judgment and remand for a new trial.
Roger was born in 1959. Plaintiff-Appellee Janice Lynn Sussman (Janice) was born in 1957. They were married on November 26, 1988. His highest grade completed is "16". Her highest grade completed is "15". Their first son (First Son) was born on March 28, 1989; second son on March 25, 1991; and third son on June 13, 1998.
On September 21, 2004, Janice filed a complaint for divorce. The trial concluded on February 8, 2005.
The Judgment (1) awarded joint legal custody of the minor sons to Janice and Roger; (2) awarded sole physical custody of the minor sons to Janice, subject to Roger's reasonable rights of visitation; (3) ordered Roger to pay child support of $556.67 per child per month; (4) ordered that Roger did not have to pay the $556.67 per month for First Son for the months of May, June, and July 2005, while First Son is away at Whitmore Academy; (5) ordered Roger to maintain health care insurance for the benefit of the minor sons; (6) ordered all uninsured health care costs incurred on behalf of the minor sons to be paid proportionate to the income percentages set forth in the Child Support Guidelines Worksheet; (7) awarded Janice the federal and state tax dependency exemption for the minor sons; (8) ordered Roger to pay for the educational expenses of the minor sons until they reached 18 years of age; (9) ordered Roger to reimburse Janice within thirty days the sum of $9,000 for the cost of First Son's education and transportation already accrued; (10) ordered Roger to pay for the balance of First Son's expenses at the Whitmore Academy through August 2005; (11) ordered Roger to pay spousal support of $1,550 per month for a period of seven years commencing May 1, 2005, and $1000 per month for a subsequent period of three years and, in doing so, expressly assumed that the housing, transportation, medical, and educational support needs of Janice and the minor sons are being satisfied; (12) ordered Roger to make arrangements for Janice and the minor sons to continue their residence at the dwelling owned by Roger's parents at 177 Kalipo Place, Haiku, Hawai'i, until the youngest son reaches age 18 or to pay an additional $1,800 per month to Janice towards the rental of a comparable residence for the family; (13) awarded the 2003 Honda Odyssey to Janice and the 2003 Honda Accord to Roger; (14) ordered Roger to pay for the insurance premiums, gas, and payments on both vehicles until the youngest son reaches age 18; and (15) ordered Roger to pay one-half of Janice's attorney fees and costs.
On May 11, 2005, Roger filed a notice of appeal. This case was assigned to this court on April 10, 2006.
Divorce cases involve a maximum of four discrete parts: dissolution of the marriage; child custody, visitation, and support; spousal support; and division and distribution of property and debts. Aoki v. Aoki, 105 Hawai`i 403, 98 P.3d 274 (App.2004).
Roger challenges the spousal support and the division and distribution of assets and debts parts of the Judgment. The Findings of Fact and Conclusions of Law (FsOF and CsOL) entered on June 24, 2005 state, in relevant part:
FINDINGS OF FACT
....
3. [Janice] is a homemaker with no means of support outside the home and [Roger] is self-employed with several areas of expertise including freelance writing, radio journalist and Life Counselor.
4. The parties have been supported financially for years by [Roger's] parents allowing them to tend to the business of raising their children, doing volunteer work in the community and pursuing endeavors of interest.
5. [Roger's] parents own the marital residence located at 177 Kalipo Place, Haiku, Maui. Since the purchase of the residence in 2000, the family has resided at the residence free of charge. Following the separation of the parties, [Janice] continued to reside at the residence with the children free of charge.
6. [Roger's] parents paid all expenses of the property including electric, water and all indicia of home ownership. (... ) In addition, the parties received a monthly check in the amount of $2,700.00.
7. [Roger's] parents have also consistently paid for medical and educational costs, cars, car insurance and credit card debt.
8. Prior to 2000, [Roger's] parents supported the family in like manner as well as paying their rent and living expenses. Their monthly support check was for $3,400.00.
9. There were periods of time when the parties worked. [Roger's] parents subsidized family expenses during this period, as needed. There was no period of time in which the parties were self-sufficient financially.
....
13. [Janice's] Exhibit "3" reflects family expenses of $6,585.00 at the time of separation. The expenses do not include rent, property insurance, property taxes or debt service. For purposes of calculating child support, a monthly gross income of $6,585.00 (consistent with the family's monthly expenses) is being imputed to [Roger]. ...
....
15. [Roger] has provided health care coverage for the benefit of the family through his parents.
16. [Roger] has provided educational costs for the three children through his parents.
....
21. [Roger] has been diagnosed as bipolar and schizophrenic. His condition has been complicated by his self-medicating behavior with marijuana in particular.
22. Dr. Brian Jaeger, [Roger's] current treating psychiatrist, ... testified that [Roger] needs to remain on medication for his bipolar disorder.
....
35. [Janice] testified that she currently attends Maui Community College in the hopes of obtaining a degree in Marriage and Family Therapy. It was estimated that she needed two years to complete her Bachelor's degree. Thereafter, she testified that she hoped to obtain her Master's degree. A Master's degree is necessary in her field in order to counsel clients and earn an adequate living.
36. [Janice] lacks marketable skills sufficient to adequately care for the family financially at the current time.
....
38. At the time of the divorce the parties had no substantial marital assets.
Roger challenges: (1) FsOF nos. 3, 6, and 13; (2) the order requiring him to pay spousal support; (3) the order requiring him to pay for the balance of First Son's expenses at the Whitmore Academy through August 2005; (4) the order requiring him to make arrangements for Janice and the minor sons to stay at 177 Kalipo Place, Haiku, Hawai`i, until the youngest son turns age 18 or to pay an additional $1,800 per month so that Janice can find a place to rent; (5) the award of the 2003 Honda Odyssey to Janice and the order requiring him to pay for the insurance premiums, gas, and payments on it until the youngest son reaches age 18; and (6) the order requiring him to pay one-half of Janice's attorney fees and costs.
Roger's challenge is summarized in the following statement: (Emphasis in original.) However, Roger's challenge is contradicted by the following quote from his Amended Opening Brief:
Both parties agreed that [Roger's] parents had been providing most of the family's support during the course of the couples' joint or several unemployment, through various means. At one point Roger's parents paid off a $100,000.00 credit card debt. Janice testified that Rogers's [sic] parents had on more than one occasion paid off the couple's credit cards when the couple had run into financial trouble. Roger's testimony was essentially in agreement. Janice also testified, Janice also testified that they had received other payments from Roger's parents. Roger's parents also "started paying for the cars and car insurance." Roger's parents also paid for the second son's school tuition. At the time of trial, Janice was driving a 2003 Honda Odyssey, for which Roger's parents were paying. Even after the couple's separation, Roger's parents were sending Janice money.
(Footnote and transcript citations omitted.)
The question of whether the family court may consider regular and consistent...
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