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Sussman v. Sussman

Intermediate Court of Appeals of Hawaii

December 10, 2013

JANICE LYNN SUSSMAN, Plaintiff-Appellee,
v.
ROGER LEE SUSSMAN, Defendant-Appellant

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT (FC-DIVORCE NO. 04-1-0468)

Joel Edelman Chief Judge for Defendant-Appellant

Janice Sussman Pro Se Plaintiff-Appellee

Nakamura, Chief Judge, Foley and Leonard, JJ.

SUMMARY DISPOSITION ORDER

Defendant/Appellant Roger Lee Sussman (Roger) appeals from a Family Court of the Second Circuit (Family Court) March 3, 2 010 Order After Hearing, granting in part and denying in part Roger's motion for post-decree relief from a divorce decree that dissolved his marriage from Plaintiff/Appellee Janice Lynn Sussman (Janice).[1]

Roger raises several points of error on appeal, arguing that the Family Court erred by:

(1) failing to recalculate the Divorce Judgment's child and spousal support awards based upon a material change of circumstances (in contravention of the ICA's decision in Sussman I) and instead erroneously affirming the awards as a result of:

(a) improperly imputing pre-decree monetary gifts given from Roger's parents "directly" to Janice;
(b) failing to recalculate Roger's income, where Roger's parents "ceased giving their regular and consistent monetary gifts, -"
(c) failing to recalculate the income imputed to Janice based on the "regular and consistent monetary gifts" she was receiving from her parents; and
(d) denying Roger's HFCR Rule 60(b) motion to recalculate the Divorce Judgment's spousal and child support awards;

(2) issuing mixed Findings of Fact (FOFs) and Conclusions of Law (COLs) not based on substantial evidence in its March 3, 2010.Order After Hearing;

(3) disregarding evidence related to Janice's ability to exert reasonable efforts to attain self-sufficiency;

(4) admitting documents into evidence that were not named on Janice's Exhibit List and not properly authenticated; and

(5) using financial information not timely submitted in recalculating the child support order.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we resolve Roger's points of error as follows:

(1) Roger contends that the Family Court failed, in contravention of the holding in Sussman I, to "properly impute regular and consistent monetary gifts to the beneficiary of said gifts, " essentially arguing that the Family Court's calculations of child and spousal support were incorrect based on contemporary circumstances. In Sussman I, the Intermediate Court of Appeals (ICA) opined:

In light of HRS § 580-47, we conclude that the family court may and should consider regular and consistent monetary gifts received by a spouse as part of that spouse's actual financial resources, condition and ability when determining spousal support. Pursuant to HRS § 580-47(d), if and when Roger's parents materially reduce their regular and consistent monetary gifts to Roger, he may allege a material change in circumstance and ask the family court for a review of its orders.

Sussman I, 112 Hawai'i 437, 441, 146 P.3d 597, 601 (App. 2006). There are four parts to this argument.

First, Roger contends that the Family Court ignored evidence suggesting that, after his separation from Janice in November 2003, the monetary gifts from his parents were intended solely for the benefit and/or enjoyment of Janice and the parties' minor children and, therefore, should have been imputed to her income. Roger contends that the ICA, in issuing the Sussman I decision, was not aware that Roger's parents were giving monetary gifts directly to Janice; however, on remand, the Family Court was made aware of this ...


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