Weinberg v. Dickson-Weinberg

• Decision Date: 14 October 2009
• Docket Number: No. 27984.,27984.
• Citation: 121 Haw. 401,220 P.3d 264
• Parties: Jan Michael WEINBERG, Plaintiff-Appellee, v. Brenda Irene DICKSON-WEINBERG, Defendant-Appellant.
• Court: Hawaii Court of Appeals

220 P.3d 264

121 Haw. 401

Jan Michael WEINBERG, Plaintiff-Appellee, v. Brenda Irene DICKSON-WEINBERG, Defendant-Appellant.

No. 27984.

Intermediate Court of Appeals of Hawai`i.

October 14, 2009.

Peter Van Name Esser (Cheryl R. Brawley with him on the briefs), Honolulu, for Defendant-Appellant.

Charles T. Kleintop (Stirling & Kleintop) (Dyan M. Medeiros with him on the brief), Honolulu, for Plaintiff-Appellee.

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

Opinion of the Court by WATANABE, J.

In this appeal, Defendant-Appellant Brenda Irene Dickson-Weinberg (Wife or Defendant) challenges (1) the divorce decree entered by the Family Court of the First Circuit (family court)¹ on May 18, 2006 (Divorce Decree), which ended her marriage to Plaintiff-Appellee Jan Michael Weinberg (Husband or Plaintiff) and divided their marital estate; and (2) various orders of the family court that led up to or followed the entry of the Divorce Decree.²

Wife raises the following points on appeal:

(1) The family court's 86-page "omnibus" findings of fact (FsOF) and conclusions of law (CsOL), which was signed by three judges without any indication of which judge adopted which finding or conclusion, did not comply with Hawai`i Family Court Rules (HFCR) Rule 52 (2000);

(2) The family court erred when it refused to enforce (a) an agreement incident to divorce (AITD) entered into between Husband and Wife (collectively, the parties or the couple) in a prior divorce action that was dismissed, (b) an agreement to designate Wife as a beneficiary of Husband's individual retirement accounts (IRAs) (IRA Agreement), and (c) a quitclaim deed conveying the parties' home in Nu'uanu, Hawai`i (Nu'uanu property) to Wife;

(3) The family court denied Wife her due-process rights when it refused to relax pretrial deadlines, denied her requests for a trial continuance, and barred her from introducing experts, exhibits, and documentary evidence because she missed discovery and other deadlines imposed by the family court after her second counsel withdrew from representing her;

(4) The family court did not comply with Hawaii Revised Statutes (HRS) § 580-47 (2006) or partnership principles when it denied Wife credit for Category 1 assets and valued Husband's law practice without considering Husband's earnings or the unliquidated contingency-fee cases pending at the date of the completion of the evidentiary part of trial (DOCOEPOT); and

(5) The family court failed to consider all the factors enumerated in HRS § 580-47(a) and abused its discretion when it denied Wife, who was unemployed throughout the marriage, any alimony.

We conclude that (1) Wife's first point on appeal is without merit; (2) the family court did not err in refusing to enforce the AITD and the quitclaim deed for the Nu'uanu property, but did err in disregarding the IRA Agreement in dividing the property of the parties; (3) the family court abused its discretion when it refused to extend pretrial deadlines and thereafter sanctioned Wife for missing pretrial deadlines by precluding her from introducing evidence that she did not produce by pretrial deadlines; and (4) the family court incorrectly valued Husband's law practice. Our disposition of this appeal renders it unnecessary to address Wife's remaining points on appeal.

BACKGROUND

Husband and Wife were married on December 25, 1997 in Beverly Hills, California. It was the second marriage for both, and the marriage produced no children. Husband is a personal-injury attorney with a solo practice in Honolulu, Hawai`i. Wife is a former actress whose last job on a soap-opera series ended in 1987.

A. The First Divorce Case

On March 2, 2004, after six years of marriage, Husband filed his first complaint for divorce from Wife in FC-D No. 04-1-0658 (first divorce case). Although Wife filed an Income and Expense Statement and an Asset and Debt Statement in the first divorce case, she did not file an answer, apparently because the parties reconciled. On October 27, 2004, the family court dismissed the first divorce case for lack of prosecution. Before the first divorce case was dismissed, however, the parties negotiated a comprehensive AITD.

The AITD provided that Wife would receive (1) $14,000.00 in temporary alimony for forty-eight consecutive months; (2) health insurance coverage for forty-eight months; (3) an equalization payment of $100,000.00; (4) the parties' Le Parc condominium unit in Los Angeles, California (Los Angeles property), free and clear of all liens; and (5) Husband's 401(k) plan of approximately $130,000.00 as Wife's sole and separate property. The AITD also required Husband to maintain an insurance policy on his life that named Wife as the exclusive primary beneficiary of an unencumbered death benefit of not less than $500,000.00. Additionally, the AITD provided that Husband would receive (1) the Nu'uanu property, subject to existing debts; (2) all of his other retirement plans; and (3) his law practice.

B. The Second Divorce Case

On December 22, 2004, eight weeks after the first divorce case was dismissed, Husband, rather than reinstituting the first divorce case and now represented by a different lawyer, filed a complaint for divorce in FC-D No. 04-1-3936 (second complaint), the case underlying this appeal (second divorce case). Husband's second complaint alleged that the assets and debts of the parties "should be divided in a just and equitable way" and that Wife was "not entitled to an order that [Husband] pay spousal support (alimony) to [her]."

In her January 13, 2005 answer to the second complaint, Wife averred that she was entitled to spousal support from Husband and that any allegations by Husband "which are based upon a denial of spousal support are barred pursuant to [HRS] § 580-47(a)." Wife also "reserve[d] her right to assert additional affirmative defenses in the event discovery indicate[d] that additional affirmative defenses would be appropriate." Wife's answer, which was signed by the attorney who represented her in the first divorce case (Wife's first counsel), did not allege that the division of the parties' marital estate should be governed by the AITD negotiated during the first divorce case.

PRETRIAL PROCEEDINGS

A. Pretrial Events from March to August 2005

From March 16 to August 10, 2005, Wife embarked on extensive discovery for information regarding Husband's assets. There is no indication in the record on appeal that Husband engaged in similar discovery of Wife's assets during the same period.³ Meanwhile, Husband and Wife commenced mediation on March 30, 2005. The mediation was unsuccessful and concluded sometime in July 2005.

On August 2, 2005, Wife's first counsel withdrew and another attorney (second counsel) was substituted as Wife's counsel.

On August 4, 2005, Husband filed a form motion to set the second divorce case for trial (motion to set), pursuant to HFCR Rule 94(a) (2000), which requires such a motion to be filed no later than nine months from the filing of the complaint. The motion was scheduled for a hearing on October 13, 2005, at 9 a.m.

B. Husband's Pre-Divorce-Decree Motion for Immediate Sale of Properties

On August 8, 2005, Husband filed a pre-divorce-decree motion for immediate sale of the Nu'uanu and Los Angeles properties. Husband, among other things, alleged that (1) he could no longer afford to pay the $12,313.89 in monthly carrying costs for the two properties; (2) "it is very likely that both real properties will be sold at the end of the case anyway" since Wife does not have the ability to buy out his interest in either property and he was not interested in buying out her interest in either property; and (3) it was a good time to sell these properties because the Honolulu and Los Angeles real estate markets were "hot." Husband also requested that the family court give him sole authority to sell both properties and that he be granted exclusive use and occupancy of the Nu'uanu property and Wife be granted exclusive use and occupancy of the Los Angeles property pending the sales.

On August 26, 2005, Wife filed an affidavit in response to Husband's motion for immediate sale and stated that she intended to enforce the AITD. Attached to the affidavit was a copy of the AITD, which was signed by Wife before a notary public on April 19, 2004 and included what purports to be Husband's signature. Wife urged the court not to order the sale of the two properties until the AITD's enforceability was determined.

Husband's motion for immediate sale was heard by the family court on August 31, 2005, at 1:30 p.m. At 11:05 a.m. that same day, Husband filed a memorandum in response to Wife's August 26, 2005 affidavit, arguing that the AITD was not valid and enforceable and claiming that he had "no recollection of ever signing and returning [the AITD] to [Wife's] attorney." Husband further stated that even if he did sign the AITD, this should not prohibit the sale of the Nu'uanu property, which, under the AITD, was to be awarded to him.

At the August 31, 2005 hearing, Husband agreed that the Los Angeles property should not be sold until the validity and enforceability of the AITD was determined. However, Husband urged the family court to grant his request to sell the Nu'uanu property. Husband maintained that since the AITD awarded him that property, the validity and enforceability of the AITD was irrelevant to his request. At the close of the hearing, the family court orally ordered the Nu'uanu property to be listed for sale. The family court allowed Wife to continue to live at the Nu'uanu property "until October 1st" and allowed Husband to have exclusive use and occupancy of the property thereafter until it was sold. The family court's oral order was ultimately memorialized in a written order filed on November 4, 2005.

On September 12, 2005, Wife filed a motion for reconsideration of the family court's August 31, 2005 oral decision. In the alternative, Wife requested that the...