PAULINO G. AREOLA, JR., Plaintiff-Appellant,
CHRISTY K. AREOLA, Defendant-Appellee
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-DIVORCE NO. 07-1-3635)
Dyan K. Mitsuyama Alethea Kyoko Rebman (Mitsuyama & Rebman) for Plaintiff-Appellant.
Lauren U. Van Buren Derek R. Kobayashi (Schlack Ito) for Defendant-Appellee.
Foley, Presiding J., Fujise and Reifurth, JJ.
Plaintiff-Appellant Paulino G. Areola, Jr. (Plaintiff) appeals from the August 20, 2012 "Order Re: Plaintiff's Motion For Reconsideration Or Amendment, In Part, Of Order Re: Defendant's Motion And Affidavit Of Post-Decree Relief, Filed December 9, 2011, Filed June 19, 2012, Or In The Alternative, Motion For New Trial, Filed June 29, 2012" and the August 20, 2012 "Order Re: Plaintiff's Motion For Reconsideration Or Amendment, In Part, Of Order Re: Plaintiff's Motion And Affidavit Of Post-Decree Relief, Filed September 2, 2011, Filed June 19, 2012, Or In The Alternative, Motion For New Trial, Filed June 29, 2012" (August 20, 2012 Orders) both entered in the Family Court of the First Circuit (family court). The family court's orders resolved Plaintiff's property disputes with Defendant-Appellee Christy K. Areola (Defendant).
Plaintiff raises two points of error on appeal. First, Plaintiff contends the family court made erroneous findings of fact (FOFs) and conclusions of law (COLs) in regard to his compliance with a part of the August 4, 2009 "Order Re: Defendant's Motion for Post-Decree Relief Filed December 18, 2008" (August 4, 2009 Order) requiring him to sell a "work truck" and apply the proceeds to a second mortgage - a home equity line of credit (HELOC) - on the marital home. Plaintiff contends that the following FOFs and COL are erroneous:
[FOF] 18. The parties intended for Plaintiff to pay the [HELOC] which totaled [sic] $110, 832.06 at the time the marital home was sold.
[FOF] 20. According to the August 18, 2011, Settlement Statement . . ., when the marital home was sold, the proceeds from the sale of the home were used to satisfy the $110, 832.06 [HELOC]. This reduced Defendant's net proceeds from the sale of the home by $55, 416.03.
[COL] 31. Plaintiff owes Defendant $55, 000 for compliance with August 4, 2009 Order.
Second, Plaintiff contends that Defendant's claim against his alleged non-compliance with the August 4, 2009 Order is waived under the doctrine of laches.
On December 31, 2007, the family court entered a divorce decree dissolving the marriage of the parties. Neither party appealed from the divorce decree.
Under paragraph 7 of the divorce decree, the marital home was to be "listed until sold" and Defendant would occupy the property and pay the current mortgage on the home until such time. Plaintiff would be responsible for making payments on the HELOC until the property was sold. The divorce decree further provided:
The proceeds from the sale of the property [marital home] shall be used first to pay the mortgage and [HELOC] due and owing Countrywide Home Loans, brokerage fees and closing costs. The parties shall share equally the remaining net proceeds .
The home was eventually sold in 2011 for approximately $470, 000 and part of the proceeds were used to satisfy the first mortgage and then the $110, 832.06 owing on the HELOC. The parties took equal shares of $70, 000 from the remaining proceeds of the sale of the marital home.
On December 18, 2008, Defendant filed a Motion and Affidavit for Post-Decree Relief requesting an order that "plaintiff is responsible to pay for the equity loan of $90, 000 until the home is sold. And I am entitled to the Home."
On May 8, 2009, the family court held a hearing on the motion in which Defendant's counsel asked the court to divide a "work truck" as an "undivided marital asset at this time." Plaintiff's counsel responded:
if the work truck were to be sold, my position would be that it should be used to pay down the [HELOC] because that's what the [HELOC] was used for [to finance Plaintiff's business expenses]. So to the extent that he sells the truck, he can use that payment to pay the [HELOC] while she's still there.
Defendant's counsel agreed, adding that documentation of the sale and the payment toward the HELOC should be provided within 30 days of the sale.
The May 8, 2009 transcript includes an unclear and broken passage in which the parties discussed whether a "work truck" had already been sold. Plaintiff's counsel said, "[t]here was a previous division . . . he had previously sold a tow truck and he gave her . . . five out of the [$]7, 0 0 0." Defendant's counsel objected, "[t]hat motion [Defendant's December 18, 2008 motion] specifically requests that the [c]ourt address undivided marital assets, and the prior sale of the truck isn't an undivided asset." Plaintiff's counsel noted that this request "wasn't specifically pled[, ]" but Plaintiff offered that he could sell "that one truck" and "use it to pay down the [HELOC]."
The family court filed its August 4, 2009 Order, memorializing the parties' agreement from the May 8, 2009 hearing. The August 4, 2009 Order states:
Trucks: One work truck shall be sold and the proceeds shall be used to pay [the HELOC]. Plaintiff shall provide to Defendant proof of sale and proof of payment toward the [HELOC] within 30 days of sale.
On September 2, 2011 Plaintiff filed a Motion and Affidavit for Post-Decree Relief (Plaintiff Motion for Relief) and on September 26, 2011, Defendant filed her "Declaration of Respondent Christy K. Areola in Response to Motion Filed on September 2, 2011[, ]" which claimed $55, 000 under the August 4, 200 9 Order:
10. While [Plaintiff] and I were married, he took a [HELOC] for approximately $110, 000 on our marital residence to purchase a large tow truck for his business.
11. In the August 4, 2009 Order, [Plaintiff] was ordered to sell his truck and use the proceeds to pay the [HELOC]within 30 days of the sale of the marital home.
12. The marital home was sold on August 6, 2011 and the [HELOC] was not satisfied.
13. I am entitled to $55, 000, which represents half of the home equity that was ordered to be restored in paragraph ...