CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 29927; FC-D NO. 07-1-0098).
David Yukimura, petitioner pro se.
Mark E. Recktenwald, Paula A. Nakayama, Simeon R. Acoba, Jr., Sabrina S. McKenna, Richard W. Pollack, JJ.
We hold that the Family Court of the Fifth Circuit (the court) was foreclosed from modifying the Decree Granting Divorce and Child Custody as to the apportioned liability for capital gains taxes between Petitioner/Defendant-Appellant David Yukimura (Petitioner) and Respondent/Plaintiff-Appellee Emily Thomas- Yukimura (Respondent), because the circumstances herein did not permit such modification under Hawai'i Family Court Rules (HFCR) Rule 52(b), Rule 59, or Rule 60. 
The Intermediate Court of Appeals (ICA) affirmed the court's order modifying the decree. In light of the court's aforesaid error, we vacate its June 4, 2009 "Order on [Respondent's] and [Petitioner's] Motions for Post-Decree Relief" (Order on Post-Decree Relief) and the February 12, 2013 judgment of the ICA affirming the said Order on Post-Decree Relief. We remand the case to the court with instructions to reinstate the September 26, 2008 Decree Granting Divorce and Awarding Child Custody (Decree).
This case involves divorce proceedings between Petitioner and Respondent. At issue during the proceedings was the disposition of property located at "Parcel 55, off Papalina Road, Kalaheo, Kauai." (Kalaheo Property) In Petitioner's closing argument, submitted by memorandum, he stated that the parties had come to an agreement regarding the Kalaheo Property:
The parties agree that the Kalaheo Property  will be sold. The agreed upon appraised value of the Property at the Date of Marriage is $135, 000. As further agreed in Judge's Chambers on April 15, 2008, Plaintiff is entitled to one-half the appreciation of the property after factoring in the sales price of the Property minus the balance of the loan on the Property, minus the capital gains tax, minus the costs of sale (including escrow fees, realtor commissions, taxes) minus the net value of the property at the Date of Marriage ($135, 000 minus loan balance at time of marriage). Defendant avers that he should also be credited for one-half of the debt and one-half of the taxes paid on the Property from the Date of Separation . . . until the date the Property is actually sold.
Respondent's closing argument did not contest Petitioner's characterization of the parties' agreement regarding the Kalaheo Property. Instead, Respondent stated that "all issues for the divorce have been agreed to" except for (1) travel time, (2) Christmas vacation, (3) child care expenses, (4) custody over one of the children's bank account, (5) tax liability for the parties for 2006 and prior, (6) division of personal property, and (7) division of certificates and debts.
In Respondent's proposed divorce decree, Respondent included terms for the division of the Kalaheo Property that were ultimately adopted in the final divorce decree. Respondent's attorney prepared the Decree. Those terms were substantially similar to the understanding expressed in Petitioner's closing argument.
The court entered the Decree on September 26, 2008. In relevant part, the Decree provided that the Kalaheo Property would be sold, and the proceeds divided as proposed by the parties:
9. Real Property: The [Kalaheo Property] . . . was acquired by [Petitioner] prior to the parties' marriage, and is thus [Petitioner's] separate property.
The parties agree to sell the Kalaheo Property for $235, 000.00.
The sale proceeds of the Kalaheo Property shall be divided as follows:
a. Pay off the loan at Kauai Community Federal Credit Union  and/or an real property tax debt for the Kalaheo Property as of the date of separation ($18, 482.87);
b. Pay all fees, costs, and capital gains tax from the sales transaction at Kalaheo Property, including realtor commissions, if any;
c. Pay [Petitioner] $96, 755.89 ($135, 000, the appraised value of the Kalaheo Property at the time of the marriage, July 2002 minus $38, 244.11, the amount of the debt on the property at the time of marriage).
d. Pay [Petitioner] one-half of the costs of the Appraisal of the Kalaheo Property performed by Jose Diogo on August 27, 2007, and paid for in full by [Petitioner].
e. Balance to be divided equally between the parties. (First emphasis in original.) ...