NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-DIVORCE NO. 07-1-1120)
Samuel P. King, Jr. for Defendant-Appellant.
Ronald Y. Amemiya Jonathan W. Ware, pro hac vice (Freshfields Bruckhaus Deringer U.S. LLP) for Plaintiff-Appellee.
Foley, Presiding J., Fujise and Leonard, JJ.
Defendant-Appellant Sami Tamman (Sami) appeals from the May 25, 2012 "Judgment for Delinquent Child Support And Alimony" (May Judgment) entered in the Family Court of the First Circuit(family court) in No. CAAP-12-0000597. Subsequently, Sami appealed the family court's July 31, 2012 "Findings And Judgment Of Civil Contempt Of Court" (July Findings/Judgment) in No. CAAP-12-0000718. These two appeals were consolidated under No. CAAP 12-0000597 by order of this court entered November 9, 2012.
On appeal, Sami contends the family court erred by: (1) entering the May Judgment against him for payment of sums in the amount of $420, 338 while the matter was still under appeal; and (2) finding Sami in civil contempt without clear and convincing evidence of his current ability to pay in satisfaction of the July Findings/Judgment.
Sami and Plaintiff-Appellee Jacqueline Tamman (Jacqueline) were married in Brazil May 25, 1983. Sami is a Sudanese native with Swiss citizenship. Jacqueline is a Brazilian native with Brazilian and Swiss citizenship. The parties had four children during their marriage: Alexander (born October 25, 1999 in Switzerland), Vanessa (born February 22, 2001 in Switzerland), Nathalie (born December 26, 2002 in Honolulu), and Caroline (born April 8, 2004 in Honolulu). Alexander and Vanessa hold Swiss citizenship; Nathalie and Caroline hold dual United States and Swiss citizenship. Jacqueline and the children have legal status to remain in the United States.
Sami and Jacqueline visited Hawai'i in 2001, purchased two leasehold condominiums, and returned to live in 2003. From July 2003 to December 2006, Sami was present in Hawai'i approximately three months of the year, spending the majority of his time in Switzerland and other places.
On April 5, 2007, Jacqueline filed a complaint for divorce against Sami in family court. Jacqueline unsuccessfully attempted to serve Sami in Switzerland with a: (1) Complaint for Divorce, (2) Plaintiff's Ex Parte Motion for Immediate Custody, Restraining Order Enjoining Removal of Children, Exclusive Occupancy of Kahala Residence, and/or an Order Shortening Time Hearing on Plaintiff's Motion for Pre-Decree Relief, (3) Motion and Affidavit for Pre-Decree Relief, and (4) Motion for Personal Service Without the State. 10-32 JROA doc 19 at 229-38, 881-82, 877-879, 10-32 JROA doc 19 at 1571
On October 16, 2007, the family court ordered Jacqueline to file a motion to declare service effected pursuant to Tataragasi v. Tataragasi, 477 S.E.2d 239 ( N.C. Ct. App. 1996) if Swiss authorities were unable to effect service on Sami by December 5, 2007. On November 30, 2007, Sami appears to have initiated divorce proceedings in Switzerland. On December 5, 2007, counsel for Sami made a special appearance to contest jurisdiction and the family court held a hearing on January 2, 2008 on that issue. Further hearings were held, supplemental briefs were submitted on specific jurisdictional issues, and on September 19, 2008, the family court determined it had subject matter jurisdiction and personal jurisdiction over Sami and Jacqueline.
On December 11, 2008, the Swiss Republic and Canton of Geneva Judiciary Power issued a Swiss divorce decree, granting the divorce but specifically declaring it did not have jurisdiction to rule on matters regarding the children.
On May 10, 11 and 12, 2r010, the family court held a trial on child custody, child visitation, and child support. Based on that hearing, on July 8, 2010, the family court entered its "Order Granting Custody, Visitation, And Support" (Custody/Support Order) and its Findings of Fact and Conclusions of Law (FOFs/COLs) in support of its Custody/Support Order.
The family court acknowledged the validity of the Swiss divorce decree in its FOFs/COLs.
4. On December 11, 2008, a divorce Decree was issued in Switzerland. The order dissolved the 25-year marriage of Plaintiff and Defendant.
On July 19, 2010, Sami filed a Hawai'i Family Court (HFCR) Rule 59 "Motion For Reconsideration Of Order Entered On July 8, 2010 Or In The Alternative Motion For New Trial And/Or Reopening Of The Hearing" (Motion for Reconsideration). On September 7, 2010, the family court denied the substance of Sami's Motion for Reconsideration.
On September 20, 2010, Sami filed a notice of appeal under No. CAAP-10-0000032 from the family court's order denying his Motion for Reconsideration. On November 29, 2011, this court entered a Summary Disposition Order (SDO) dismissing Sami's appeal. Sami filed a writ of certiorari to the Hawai'i Supreme Court, who subsequently issued its own SDO on March 28, 2012.The supreme court's SDO concluded this court erred by restricting its review to the family court's September 7, 2010 order denying Sami's Motion for Reconsideration and by not considering the underlying Custody/Support Order. The case was remanded to this court. On April 27, 2012, this court issued another SDO in reconsideration the family court's September 7, 2010 order denying Sami's Motion for Reconsideration together with the Custody/Support Order. On June 8, 2012, Sami filed a writ of certiorari to the supreme court, which was denied on August 9, 2012. See Tamman v. Tamman, No. CAAP-10-0000032, 2012 WL 1473426 (App. April 27, 2012) (SDO), (cert, denied, SCWC-10-0000032, 2012 WL 3240753, at *1 (Haw. Aug. 9, 2012).
On May 21 and 22, 2012, the family court held a hearing on Jacqueline's Motion and Affidavit for Post Decree Relief filed November 21, 2011. The family court found that Sami owed Jacqueline $420, 338 in child support and alimony arrearages through April 2012.
Sami's most recent Income and Expense Statement, filed January 31, 2012, states his gross pay per month is $8, 473 and his net monthly pay is $5, 762. He reports expenses in the amount of $13, 551 and a monthly deficiency of (-)$7, 789. Sami's Asset and Debt Statement, shows a balance of $14, 510 from three banks and nine properties, four titled in Sami's name and five with disputed' titles. The reported net value of all of Sami's assets and debts is $1, 421, 096.
On May 25, 2012, the family court entered its May Judgment, which is at issue in this appeal. On November 26, 2012, the family court filed its FOFs/COLs, from the May 21 and 22, 2012 hearings, which affirmed findings supporting its Custody/Support Order. The family court's FOFs/COLs included the following findings:
2. The [Custody/Support Order] found, in part, that [Sami] owed [Jacqueline] child support arrearages totaling $261.080.00 from April 5, 2007 through May 31, 2010. [Sami] was ordered to pay [Jacqueline] $261, 080.00 by August 7, 2010.
3. The [Custody/Support] Order found [Sami] owed [Jacqueline] temporary alimony arrearages totaling $39.060.00 from April 5, 2007 through December 11, 2008. [Sami] was ordered to pay [Jacqueline] $39, 060.00 by August 7, 2010.
4. The [Custody/Support] Order also required [Sami] to pay child support in the amount of $7, 810.00 per month for the four (4) minor children, commencing June 1, 2010.
5. On July 8, 2010, Justice McKenna also issued [FOFs/COLs] regarding her [Custody/Support] Order. Justice McKenna's Findings and Conclusions stated, in part:
a. [Sami] possessed the means to comply with the [family court's] child support, alimony, and housing orders. Nevertheless, [Sami] intentionally and inexcusably ignored the [family] court's orders; (FOF103)
b. [Sami's] failure to comply with the [family court's] child support, alimony, and housing orders operated to the detriment of his children's best interests. (FOF 104)
d. In considering [Sami's] demeanor, manner of testifying, and candor, in addition to the substance of his testimony the [family court] finds ...