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Timon v. Timon

Intermediate Court of Appeals of Hawaii

March 13, 2014

ESTRELLITA GAY TIMON, Plaintiff-Appellee/Cross-Appellant,
v.
NEAL JACKSON TIMON, Defendant-Appellant/Cross-Appellee.

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-DIVORCE NO. 07-1-3721)

A. Debbie Jew, Charles Jones III, (Ogawa, Lau, Nakamura & Jew for Defendant-Appellant/ Cross-Appellee

Robert M. Harris, Edward R. Lebb, Paula S. Nakata for Plaintiff-Appellee/ Cross-Appellant

Reifurth and Ginoza, J J.., with Fujise, Presiding Judge, concurring separately

MEMORANDUM OPINION

In this appeal arising out of a divorce, Defendant-Appellant/Cross-Appellee Neal Jackson Timon (Husband) appeals from the following orders and decree entered in the Family Court of the First Circuit (family court)[1]: "Order re Plaintiff's Motion for Pre-Decree Relief (Filed November 16, 2007)" (Order for Pre-Decree Relief) filed on February 5, 2008; "Order re Motion to Find Defendant in Contempt" (Order re First Contempt Motion) filed on March 13, 2008; "Order re Motion to Enforce" (Order to Enforce) filed November 3, 2009; "Order Granting in Part and Denying in Part Plaintiff's Motion to Find Defendant in Contempt of Court For Violations of Court Orders and For Other Relief Filed December 28, 2009" (Order re Second Contempt Motion) filed April 14, 2010; "Order re Plaintiff's Motion to Correct and Clarify Decision" (Order to Clarify Decision) filed June 7, 2010; "Decree Granting Absolute Divorce" (Decree) filed June 24, 2010; and "Order Denying Defendant's Motion for Reconsideration Filed July 6, 2010" (Order re Reconsideration) filed August 3, 2010. Plaintiff-Appellee/Cross-Appellant Estrellita Gay Timon (Wife) cross-appeals from the Decree.

On appeal, Husband contends the family court committed the following errors: (1) the family court abused its discretion by awarding Wife temporary alimony in the amount of $4, 000 per month; (2) the family court abused its discretion by ordering Husband to reimburse the home equity line after finding Husband violated the court's prior order; (3) the family court abused its discretion in determining Husband made unauthorized' withdrawals, charging Husband with receipt of said amount, and ordering Husband to pay Wife's attorneys' fees and costs; (4) the family court clearly erred by (a) finding Husband failed to establish and prove receipt of and net values of any date of marriage assets or during-marriage inheritances and therefore did not give Husband credit under the Martial Partnership Model for Husband's premarital property or during-marriage inheritances, (b) finding the current value of the party's real property was $480, 600, (c) failing to find that Wife wasted assets, (d) finding that Husband's request for credit or payment for claimed allowance is unsupported and unreasonable and therefore failing to award a credit or payment for Husband's allowance and/or to allow reimbursement for his moorage pursuant to "Stipulation Regarding Sale of Dental Practice", (e) finding there to be insufficient evidence to allocate the court appointed master's fees between the parties and therefore failing to order Wife to pay the fees, (f) finding there to be insufficient evidence to determine the amount of 2009 taxes, or the allocation of such, and therefore failing to order Wife to contribute to the 2009 taxes; (5) the family court erred by concluding Husband's professional "personal goodwill" was not applicable after the practice was sold during the marriage; and (6) the family court abused its discretion when it denied Husband's motion for reconsideration.[2]

Based on the foregoing, Husband requests that this court: (1) vacate paragraph 1 of the Order for Pre-Decree Relief and order reimbursement of any temporary alimony in excess of $1, 000 per month; (2) vacate various Findings of Fact (FOF) and Conclusions of Law (COL) filed on October 28, 2010[3]; (3) vacate the Order to Clarify Decision; and (4) vacate paragraph 7 of the Decree.

On cross-appeal, Wife contends various FOFs and COLs by the family court are erroneous[4] which amount to two general claims: (1) the family court erred when it deviated from the Marital Partnership Model and abused its discretion by awarding Wife $65, 062.31, less than a one-half share of the marital estate; and (2) the family court abused its discretion in denying Wife post-decree alimony.

Based on the foregoing, Wife requests that this court vacate or reverse the following: (1) paragraphs 2 and 7 of the Decree; (2) the Order to Clarify Decision; and (3) the challenged FOFs and COLs.

For the reasons discussed below, we affirm the Decree and all orders on appeal.

I. Husband's Appeal

A. Interlocutory Orders

Husband contends the family court abused its discretion by ordering him to pay $4, 000 per month in temporary alimony in the Order for Pre-Decree Relief, ordering him to reimburse the home equity line in the Order re First Contempt Motion, and ordering him to reimburse unauthorized withdrawals from accounts in the Order re Second Contempt Motion.

Generally, the family court possesses wide discretion in making its decisions and those decision [sic] will not be set aside unless there is a manifest abuse of discretion. Thus, [an appellate court] will not disturb the family court's decisions on appeal unless the family court disregarded rules or principles of law or practice to the substantial detriment of a party litigant and its decision clearly exceeded the bounds of reason.

Fisher v. Fisher, 111 Hawai'i 41, 46, 137 P.3d 355, 360 (2006) (quoting In re Doe, 95 Hawai'i 183, 189-90, 20 P.3d 616, 622-23 (2001)) . "Furthermore, the burden of establishing abuse of discretion is on appellant, and a strong showing is required to establish it." Ek v. Boggs, 102 Hawai'i 289, 294-95, 75 P.3d 1180, 1185-86 (2003) (internal quotation marks, citation, and brackets omitted).

1. Temporary Alimony

The family court did not abuse its discretion in awarding Wife $4, 000 in temporary alimony. It is within a court's discretion to make an award of temporary alimony pursuant to Hawaii Revised Statutes (HRS) § 580-9 (2006), [5] "limited only by the standard that it be fair and reasonable." Farias v. Farias, 58 Haw. 227, 232, 566 P.2d 1104, 1108 (1977) (quoting Richards v. Richards, 44 Haw. 491, 496-97, 355 P.2d 188, 192-93 (1960)) .

If a party's income is insufficient to maintain both an accustomed standard of living and efficient litigation of the case, a court may award temporary alimony. Farias, 58 Haw. at 232, 566 P.2d at 1108. At the time of the Order for Pre-Decree Relief (February 2008), Husband was a dentist who made $33, 490.85 gross income as monthly average net business profit, while Wife earned social security benefits in the amount of $887 per month. Husband's own income and expenses report stated that, after expenses which included paying for the marital residence, he saved $14, 270.24 each month. Wife reported she had non-house related expenses of $9, 280 per month, well above her net monthly income. Furthermore, the Order for Pre-Decree Relief made no mention of attorneys' fees, thus it appears Wife was responsible to pay her own legal expenses until subsequent orders were issued as to fees.[6]

A court has discretion to "enable the wife to live comfortably, pending the litigation, in the station in life to which [her husband] accustomed her." Richards, 44 Haw. at 497-98, 355 P.2d at 193 (quoting Harding v. Harding, 32 N.E. 206, 208 (111. 1892)). In light of the circumstances of this case, the family court did not abuse its discretion in awarding Wife $4, 000 per month in temporary alimony.

2. Reimbursement of the Home Equity Line

Husband asserts the family court erred in ordering him to reimburse the home equity line to its early-January 2008 balance in the Order re First Contempt Motion because no court order restraining expenditures was in effect and his receipt of an advance of $30, 000 was used to pay marital debts. Husband fails to cite to evidence to support either contention, or to any authority which indicates how the court erred. Where an appellant fails to cite to any authority or parts of the record to support their argument, the party waives the argument. Taniguchi v. Ass'n of Apartment Owners of King Manor, Inc., 114 Hawai'i 37, 53, 155 P.3d 1138, 1154 (2007).

3. Reimbursement of Unauthorized Withdrawals

Husband contends the family court erred in ordering him to reimburse $43/416[7] to the depository accounts[8] and pay Wife's attorneys' fees and costs in litigating the motion resulting in the Order re Second Contempt Motion.

Husband proffers two arguments as to why the family court erred: the doctrine of law of the case, [9] and the withdrawn money was spent for ...


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