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Nemiroff v. Nemiroff

Intermediate Court of Appeals of Hawaii

December 30, 2013

SUZANNE M. NEMIROFF aka SUZANNE M. DITTER, Plaintiff-Appellee,
v.
ALAN H. NEMIROFF, 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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER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. 02-1-3779).

Alan H. Nemiroff Defendant-Appellant pro se.

Suzanne M. Ditter, Plaintiff-Appellee pro se.

Nakamura, C.J., Foley and Leonard, JJ.

MEMORANDUM OPINION

Defendant-Appellant Alan H. Nemiroff (Mr. Nemiroff) appeals from the 1) "Order Regarding (1) Plaintiff's Motion And Affidavit For Post-Decree Relief Filed November 22, 2011; And (2) Defendant's Motion And Affidavit For Post-Decree Relief Filed December 16, 2011" entered September 28, 2012 (September 2012 Order), and 2) "Order Denying Defendant's Motion for Reconsideration" entered October 1, 2012 (motion to reconsider). Both orders were entered in the Family Court of the First Circuit[1] (family court).

On appeal, Mr. Nemiroff contends the family court erred when it:

(1) determined Mr. Nemiroff's obligation to pay past medical and dental insurance premiums, as well as uncovered, expenses, for the parties' son (the child) from 2003 to 2012;
(2) concluded Plaintiff-Appellee Suzanne M. Nemiroff, now known as Suzanne M. Ditter (Ms. Ditter), did not violate a prior family court order regarding the child's high-school tuition;
(3) determined Mr. Nemiroff's obligation to pay for the child's college expenses for the 2011 to 2012 school year;
(4) granted Ms. Ditter's request for attorney's fees and costs;
(5) denied Mr. Nemiroff's motion to reconsider; and
(6) denied Mr. Nemiroff's "Motion to Vacate Order, "

I. BACKGROUND

Mr. Nemiroff and Ms. Ditter were divorced on April 8, 2003 and have one child together. The parties' divorce decree provided, in part: (1) Ms. Ditter was to provide medical and dental insurance for the child and the parties were to evenly split the child's uninsured medical and dental expenses, (2) Mr. Nemiroff and Ms. Ditter were to split private high school tuition evenly, and (3) the allocation of college expenses between the parties was reserved.

On April 21, 2004, Mr. Nemiroff filed a motion for post decree relief with the family court. On May 14, 2004, the family court entered an order for the post-decree relief (May 2004 Order) that principally altered two parts of the parties' divorce decree. First, the May 2004 Order required the parties to evenly split the child's medical and dental insurance premiums in addition to evenly sharing the child's uninsured medical and dental expenses. Second, the May 2004 Order required Ms. Ditter to annually pay about forty percent of the child's high-school tuition, instead of half.

Three years later, Ms. Ditter moved for post-decree relief to enforce the May 2004 Order. In response, Mr. Nemiroff asked the court to revisit the division of high-school tuition because Ms. Ditter was receiving financial aid from the school. On November 21, 2007, the family court denied the request to modify the division of high-school tuition and ordered Mr. Nemiroff to pay his share of medical and dental expenses per the May 2004 Order (November 2007 Order).

In 2011, Ms. Ditter again moved for post-decree relief to enforce Mr. Nemiroff's medical and dental obligations. She also asked the court to order the parties to split the child's college expenses evenly, an issue reserved in the divorce decree. In response, Mr. Nemiroff filed a motion post-decree relief. He alleged that before the parties' divorce settlement, Ms. Ditter inherited a condominium and concealed its existence and value. Mr. Nemiroff thus requested half of the proceeds from the inherited condominium's subsequent sale. Mr. Nemiroff further alleged Ms. Ditter owed him $35, 034.37 for high school expenses, partly on the basis that the inherited condominium's sale put Ms. Ditter in a better financial condition than she represented for purposes of the May 2004 Order. Mr. Nemiroff also sought reimbursement for half the cost of the child's braces, cell phone expenses, and certain athletic expenses.

The parties went to trial on June 25, 2012 and the family court entered its oral ruling on June 26, 2012. Counsel for Ms. Ditter drafted a proposed order. On July 19, 2012, Mr. Nemiroff filed a motion to reconsider per Hawaii Family Court Rules (HFCR) Rule 59. On September 28, 2012, the family court adopted the proposed order with a few corrections and entered the September 2012 Order.

The September 2012 Order (1) reaffirmed Mr. Nemiroff's delinquent medical and dental expense obligations, (2) found Ms. Ditter compliant with the May 2004 Order and denied Mr. Nemiroff's request to be reimbursed for part of the child's high school tuition, (3) denied Mr. Nemiroff's request for half of the inherited condominium's value, (4) ordered Mr. Nemiroff to pay half of the child's first year of college tuition, and (5) ordered Mr. Nemiroff to pay Ms. Ditter's attorney's fees and costs.

On October 1, 2012, the family court denied Mr. Nemiroff's motion to reconsider. On October 8, 2012, Mr. Nemiroff filed a motion to vacate the September 2 012 Order. On October 26, 2012, Mr. Nemiroff filed a notice of appeal from the September 2012 Order and the family court's denial of his motion to reconsider. On November 9, 2012, the family court denied Mr. Nemiroff's motion to vacate.[2]

II. STANDARD OF REVIEW

A. Family Court Rulings

Generally, we review a family court's ruling on a motion for post-decree relief, or a motion for reconsideration, for an abuse of discretion. See Lowther v. Lowther, 99 Hawai'i 569, 577, 57 P.3d 494, 502 ...


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