Tavares v. Tavares, 5838

• Decision Date: 30 January 1978
• Docket Number: No. 5838,5838
• Citation: 58 Haw. 541,574 P.2d 125
• Parties: Richard TAVARES, Plaintiff-Appellee, v. Josephine Rodriguez TAVARES, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 125

574 P.2d 125

58 Haw. 541

Richard TAVARES, Plaintiff-Appellee, v. Josephine Rodriguez TAVARES, Defendant-Appellant.

No. 5838.

Supreme Court of Hawai'i.

Jan. 30, 1978.

Syllabus by the Court

1. A default decree of divorce dividing property entered without notice to defendant after the filing of an answer should have been set aside with respect to the property division upon defendant's application.

2. An order setting aside in part a property division contained in a decree of divorce was not a final judgment from which an appeal could have been taken.

3. Whether a pension or retirement benefit is a property interest for purposes of a property division in a matrimonial action must be determined upon consideration of the contractual or other obligation securing payment.

Christopher P. McKenzie, Honolulu (Gould & McKenzie, Honolulu, of counsel), for defendant-appellant.

Michael David Hong (Flynn & Hong, Honolulu, of counsel), for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

This appeal raises questions with respect to a property division in a matrimonial action in which the husband was the plaintiff. The complaint and summons were sent by mail to the defendant wife in California pursuant to an order for service by mail, and received by her on September 22, 1973. Without notice to or appearance of defendant, a hearing on the complaint was held before the district family court judge on October 16, 1973. Plaintiff was orally granted a divorce with custody of the minor child and awarded the family residence, subject to the mortgage indebtedness, effective upon filing of the decree. Defendant filed an answer on January 2, 1974, to which is attached a certificate of service on plaintiff's counsel on December 28, 1973. A decree of divorce, in which plaintiff was awarded the family residence, subject to the mortgage, was entered on January 11, 1974. The decree referred to the hearing on October 16, 1973 but made no reference to defendant's answer. On April 25, 1974, the district family court judge, on defendant's motion, issued an order to plaintiff to show cause why the decree should not be modified to give defendant at least a one-half interest in the family residence "and provide her with such other property and money to which she is entitled", together with her attorney's fees. By order entered on August 29, 1974, the district family court judge ordered "that the question of the division of the parties' property only in respect to the family residence . . . shall be subject to further hearing."

The matter was then heard before the family court judge, who ruled that in the absence of appeal from the order of the district family court judge, or motion for its reconsideration, the scope of reconsideration of the decree was limited to the disposition of the family residence. Pursuant to this ruling, testimony offered by defendant with respect to plaintiff's pension and retirement benefits was excluded. By order entered December 9, 1974, the decree was modified to provide that defendant should convey her interest in the family residence to plaintiff for the sum of $14,000, and that the parties should bear their own attorney's fees and costs. Defendant has appealed. We conclude that defendant was entitled to reconsideration of the property division without the constraints imposed by the order of the district family court judge, and that the case must be remanded for that purpose.

At the outset, plaintiff contends that defendant's failure to move for a new trial or to amend the decree of January 11, 1974 within 10 days after its entry, or to file a written request for a hearing de novo, deprived her of any standing to object to the limited reopening of the decree by the order of August 29, 1974. But these contentions are premised upon plaintiff's interpretation of the family court rules. As we pointed out in Cleveland v. Cleveland, 57 Haw. 519, 559 P.2d 744 (1977), family court rules were not in effect when this case was in the family court and the Hawaii Rules of Civil Procedure were inapplicable, except with respect to appeals from the family court. The control of the family court over its decrees was governed by the principles enunciated in Beall v. Beall, 24 Haw. 29 (1917). The decree of January 11, 1974 was entered as a default decree upon a hearing at which defendant was not present or represented. Prior to entry of the decree, although subsequent to the hearing, defendant's answer was filed. As we held in Beall, the default decree was subject to being set aside on application of defendant and the family court's discretion should have been exercised liberally in favor of the application. The application before the district family court judge sought to reopen the property division as to all of the property of the parties. His refusal to do so and his limitation of the reopening to the disposition of the family residence exceeded the limits placed on his discretion by Beall.

Plaintiff also contends, and the family court judge apparently agreed, that the order of August 29, 1974, was so far final as to become binding upon the parties and the family court on defendant's failure to perfect an appeal. It is true that in a matrimonial action a decree dividing the property is final and appealable although other matters are postponed for later determination. Cleveland v. Cleveland, supra. But after the property division contained in the decree was set aside by the order of August 29, 1974 there was no final...