SUSAN P. GORDON, Plaintiff-Appellee,
IRA GORDON, Defendant-Appellant
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-DIVORCE NO. 10-1-6664)
Peter Van Name Esser Huilin Dong for Defendant-Appellant.
Samuel P. King, Jr. Gregory L. Ryan Shannon Parrot for Plaintiff-Appellee.
Nakamura, C.J., Foley and Leonard, JJ.
This consolidated appeal arises from the Family Court of the First Circuit's (family court): (1) August 22, 2012 "Decree Granting Absolute Divorce" (Divorce Decree) dissolving the marriage between Defendant-Appellant Ira Gordon (Ira) and Plaintiff-Appellee Susan Gordon (Susan); and (2) November 28, 2012 "Order RE: Plaintiff's Motion and Declaration For Post-Decree Relief Filed September 26, 2012" (Order re: Post-Decree Relief).
On appeal, Ira asks this court to vacate the family court's Divorce Decree based on the family court's alleged errors:
(1) the judge that presided at trial was not the judge who reviewed and signed the dispositional documents challenged on appeal;
(2) an erroneous finding of marital waste was used as a rationale for departing from Partnership Principles;
(3) the failure to identify, categorize, and value the marital assets, or properly allocate the parties' Category 1 and 2 property in violation of Hawaii Revised Statutes (HRS) § 580-47(a) (Supp. 2012) and Partnership Model Division law; and
(4) the alimony award of $3, 000 per month for ten years constituted an abuse of discretion.
Ira first contends the family court committed reversible error because Judge Wong, who presided over the June 26, 2012 hearing, failed to sign her July 24, 2012 Minute Order (Minute Order) and Judge Browning, who did not preside, signed the August 22, 2012 Findings of Fact/Conclusions of Law (FOFs/COLs) and Divorce Decree.
"The normal rule is that only the judge who conducted the trial may enter a decision in a case." Matter of Death of Elwell, 66 Haw. 598, 601, 670 P.2d 822, 824 (1983) . In Elwell, the Hawai'i Supreme Court reversed and remanded the circuit court's judgment where a presiding judge had not signed or filed any FOFs/COLs and the signing-judge instead signed and filed FOFs/COLs submitted by a parties' attorney. Elwell, 66 Haw. at 599, 670 P.2d at 823. Unlike the circumstances at issue in Elwell, the Minute Order shows that Judge Wong both presided over the hearing and that she, and not Susan's counsel, authored the FOFs/COLs and Divorce Decree.
"[W]hen a judge other than the one who presided over a [Hawai'i Rules of Penal Procedure] HRPP Rule 40 hearing signs the [FOFs/COLs] and order, the order must ordinarily be vacated." Raines v. State, 79 Hawai'i 219, 222, 900 P.2d 1286, 1289 (1995) (deciding a case in which a presiding judge retired from the bench before FOFs and an order could be filed and another judge signed them for him). The Raines court reasoned that this situation presents a "danger that one judge might misinterpret a prior judge's informal notes or oral statements, or err in attempting to judge the credibility of witnesses from a transcript[.]" Id. (internal quotation marks omitted). By contrast with the unfiled FOFs and order in Raines, Judge Wong's Minute Order contained the exact wording to be used in the final FOFs/COLs and Divorce Decree and specific references to sections and passages in Susan's proposed FOFs/COLs and decree. There was no occasion for Judge Browning to interpret "informal notes or oral statements" nor make any credibility determinations and therefore dangers present in Raines were not present in the instant case.
Likewise, we distinguish the instant case from Application of Pioneer Mill Co., 53 Haw. 496, 497 P.2d 549 (1972), which held, "the signature of the second judge of the Land Court cannot validate the decree entered . . . [because] the second judge could not make a decision when he had taken no part in the trial of the case." Id., 53 Haw. at 504 P.2d at 555. Because Judge Browning made no decision, other than to place his signature over the printed name of Judge Wong, Pioneer Mill Co. does not require this court to vacate the family court's FOFs/COLs.
Finally, as Susan notes, In re T Children, 113 Hawai'i 492, 155 P.3d 675 (App. 2007) concerned a situation in which a signing-judge prepared FOFs/COLs concerning the credibility determinations without having taken part in court proceedings and without the aid of trial transcripts. Id. at 496, 155 P.3d at 679. By contrast, Judge Wong directed the preparation of the family court's FOFs/COLs and Divorce Decree and presided over the June 25 and 26, 2012 hearings, which included determinations of credibility made therein.
Ira's second point of error concerns the family court's determination that Ira's dissipation of marital assets prior to the parties separation through gifts and payments to his girlfriend, Suphannee Wentworth (Wentworth), and negligently late payments to the Internal Revenue Service (IRS), constitute valid and relevant circumstances (VARCs) allowing deviation from marital partnership principles in the division of the marital estate. Ira appears to argue that the family court should have required him to repay amounts he spent on Wentworth and the IRS tax liability instead of finding that these constitute VARCs.
The partnership model employs a five category scheme in which categories 1 (property separately owned by one spouse on the date of marriage) and 3 (property separately acquired by gift or inheritance) consist in values to be repaid to the contributing spouse, while categories 2 (increase in value of category 1 property during the marriage), 4 (increase in value of category 3 property during the marriage), and 5 (the residual marital estate owned by both or either spouse at the date of the conclusion of the evidentiary part of the trial (DOCOEPOT)) consist in values to be awarded one-half to each spouse. Jackson v. Jackson, 84 Hawai'i 319, 332, 933 P.2d 1353, 1366 (App. 1997). "Under the Partnership Model, absent [VARCs], each partner is generally awarded his or her capital contribution, while the appreciation is split fifty-fifty. VARCs ...