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Melanio G. Fernando v. Judy K. Fernando

October 31, 2011

MELANIO G. FERNANDO,
PLAINTIFF-APPELLEE,
v.
JUDY K. FERNANDO,
DEFENDANT-APPELLANT.



APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-D NO. 06-1-1084)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Nakamura, C.J., Leonard and Ginoza, JJ.)

Defendant-Appellant Judy Fernando (Judy) purportedly appeals from the October 1, 2008 order of the Family Court of the First Circuit (Family Court) denying her Motion To Set Aside Divorce Decree brought pursuant to Rule 60(b) of the Hawaii Family Court Rules (HFCR).*fn1

On appeal, Judy argues that the Family Court abused its discretion by (1) denying her motion for a continuance on her Motion to Set Aside Divorce Decree, and (2) refusing to hold an evidentiary hearing on the same motion.

I. Case Background

The Decree Granting Absolute Divorce (divorce decree) in this case was entered on June 26, 2007. Judy filed her Motion to Set Aside Divorce Decree on June 25, 2008. Attached to the motion were declarations by Dirk Von Guenthner (Guenthner), a forensic accountant, and Judy's counsel, Edward J.S.F. Smith (Smith). According to Smith's declaration, "there are several questionable transactions regarding the disposition of the marital estate" and, although acknowledging there had been a trial in the case, Smith asserted that "a fresh analysis of the finances has uncovered the traces of what may lead to New Evidence that could not have been previously presented to the court." The Motion to Set Aside Divorce Decree was set for hearing on October 1, 2008. On September 16, 2008, Judy filed a motion to continue the hearing on her Motion to Set Aside Divorce Decree, asserting that based on the declaration of Guenthner, "additional time is required for a proper analysis of the voluminous financial transactions in this case." Guenthner's attached declaration asserted that, additional time was needed to serve discovery requests and, after receipt of responses to the discovery requests, to subpoena various entities. Guenthner requested at least five months to complete his work. In an order issued on September 30, 2008, the Family Court denied Judy's motion for a continuance.

On October 1, 2008, the Family Court heard two separate motions: (a) Judy's Motion To Set Aside Divorce Decree pursuant to HFCR Rule 60(b); and (b) Plaintiff-Appellee Melanio Fernando's (Melanio) motion to enforce paragraphs 6 and 16 of the divorce decree. The Family Court denied Judy's motion and granted Melanio's motion. Separate orders, both dated October 1, 2008, were issued by the Family Court on the two motions.

On October 22, 2008, Judy filed a Notice of Appeal, stating she was appealing "from the Order issued 10/1/08." Attached to this Notice of Appeal was the October 1, 2008 order granting Melanio's motion to enforce paragraphs 6 and 16 of the divorce decree. However, at the bottom of the Certificate of Service was the following notation: "JUDY FERNANDO'S MOTION TO CONTINUE MOTION TO SET ASIDE DIVORCE DECREE; DECLARATION OF EDWARD J.S.F. SMITH IN SUPPORT OF MOTION; AFFIDAVIT OF DIRK VON GUENTHNER; NOTICE OF MOTION; CERTIFICATE OF SERVICE." On December 15, 2008, Melanio's counsel sent a letter to Smith advising inter alia that, because the order regarding Melanio's motion was attached to Judy's Notice of Appeal, Melanio's position was that Judy could no longer appeal the order denying her Motion to Set Aside Divorce Decree.

Two days later, on December 17, 2008, Judy filed an Amended Notice of Appeal, to which was attached the October 1, 2008 order denying her Motion to Set Aside Divorce Decree and a declaration by Smith stating "[t]his Amended Notice of Appeal corrects the error made in the previous notice regarding the attached exhibit."

II. Jurisdiction

A threshold issue is whether this court has jurisdiction as to Judy's appeal from the order denying her Motion to Set Aside Divorce Decree, and thus ultimately, her challenges to the order denying her motion for a continuance and the lack of an evidentiary hearing regarding the Motion to Set Aside Divorce Decree.*fn2

Although Judy appended the wrong order to her Notice of Appeal filed on October 22, 2008, under the standard articulated in State v. Bohannon, "a mistake in designating the judgment . . . should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake." 102 Hawaii 228, 235, 74 P.3d 980, 987 (2003) (quoting City & Cnty. of Honolulu v. Midkiff, 57 Haw. 273, 275-76, 554 P.2d 233, 235 (1976)).

Judy's intent to appeal from the order denying her Motion to Set Aside Divorce Decree can be fairly inferred from the reference in the Notice of Appeal to an October 1, 2008 order, coupled with the notation at the bottom of her Certificate of Service. In addition, Melanio was not misled by Judy's mistake in attaching the wrong order to the initial Notice of Appeal. Two days after Melanio's counsel sent a letter to Judy's counsel on this issue, Judy filed the Amended Notice of Appeal correcting the mistake. Moreover, Melanio did not file a statement contesting jurisdiction as allowed by Rule 12.1(a) of the Hawaii Rules of Appellate ...


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