This decision is published in table format in the Pacific and Hawai'i reporter.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT. (FC-D NO. 10-1-0269).
On the briefs: Steven J. Kim, for Defendant-Appellant.
Foley, Presiding Judge, Fujise and Reifurth, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Thomas Edward Jack, II, (Husband) timely appeals from the December 9, 2011 Decree Granting Absolute Divorce entered by the Family Court of the First Circuit (Family Court).
On appeal, Husband argues that the Family Court erred by: (1) entering default against him at the August 29, 2011 trial when he failed to appear; (2) denying his September 8, 2011 Motion to Set Aside Entry of Default in which he provided the Family Court with evidence that he failed to appear at trial due to Hurricane Irene; (3) making clearly erroneous findings of fact based upon insufficient evidence, incompetent evidence, hearsay arguments of Plaintiff-Appellee Mary Lou Jack's (Wife) counsel, and exhibits admitted without foundation; (4) making erroneous conclusions of law based upon insufficient findings of fact, and (5) admitting Wife's and Husband's exhibits into evidence. As Wife did not file an answering brief, our task is to determine whether Husband has presented prima facie reversible error in his brief. Kaiu v. Tasaka, 33 Haw. 484, 485 (Haw. Terr. 1935).
Based on a careful review of the record, the arguments made and the issues raised by Husband, and the applicable authority, we resolve those issues as follows and affirm.
1. The Family Court did not abuse its discretion by entering default against Husband for his failure to personally appear for trial. The August 23, 2011 Order Re: Trial set trial for August 29, 2011 and specifically required Husband to appear at the scheduled trial date. The Family Court was authorized to enter a default upon Husband's failure to appear at trial. Our review of the record does not reveal an abuse of discretion in entering default. Cnty. of Hawai'i v. Ala Loop Homeowners, 123 Hawai'i 391, 404, 235 P.3d 1103, 1116 (2010) (construing the analogous Hawai'i Rules of Civil Procedure (HRCP) Rule 55).
2. The Family Court did not abuse its discretion in refusing to set aside the default entered against Husband. At the time Husband filed his September 9, 2011 Motion to Set Aside Default and/or Divorce Decree, the Family Court had not yet entered a default judgment or a divorce decree, although it had rendered an oral ruling deciding the terms of the decree.
The Family Court was authorized to set aside the entry of default under HFCR. Rule 55(c) " for good cause shown." While defaults are not favored, and any doubt should be resolved in favor of the party seeking relief,
[i]n general, a motion to set aside a default entry or a default judgment may and should be granted whenever the court finds (1) that the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that the default was not the result of inexcusable neglect or a wilful act. The mere fact that the nondefaulting party will be required to prove his [or her] case without the inhibiting effect of the default upon the defaulting party does not constitute prejudice which should prevent a reopening.
BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 76, 549 P.2d 1147, 1150 (1976) (citations omitted);
see Rearden Family Trust v. Wisenbaker, 101 Hawai'i 237, 65 P.3d 1029 (2003). " We review the denial of a motion to set aside default for abuse of discretion." Cnty. of Hawaii, 123 Haw. at 423, 235 P.3d at 1135 (reviewing a motion under HRCP Rule 55(c)).
We can see no abuse of discretion here. First and foremost, Husband has failed to provide an adequate record to review the Family Court's decision to deny his motion to set aside. No transcript of the hearing on Husband's motion has been included in the record. See HRAP Rule 11(a) (The appellant " shall take any other action necessary to enable the clerk of the court to assemble and transmit the record. It is the responsibility of each appellant to provide a record. .. that is ...