Abe v. Abe

558 P.3d 1054, 155 Haw. 194

• Court: Hawaii Intermediate Court of Appeals
• Decided: November 18, 2024
• Docket: CAAP-20-0000769
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-NOV-2024 08:12 AM Dkt. 71 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

DEBRA AKEMI ABE, Plaintiff-Appellee, v. CASEY CHIYOSHI ABE, Defendant-Appellant.

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (CASE NO. 1DV171000315)

SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)

Defendant-Appellant Casey Chiyoshi Abe (Husband)

appeals from the Family Court of the First Circuit's

November 25, 2020 Divorce Decree entered in favor of Plaintiff-

Appellee Debra Akemi Abe (Wife). 1

1 The Honorable Kevin T. Morikone presided.

Husband also challenges the following orders:

(1) February 20, 2020 Decision and Order; and Exhibit "1" (2/20/2020 Decision and Order);

(continued . . .) NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

On appeal, Husband challenges the family court's

decision to: (1) have each party start paying retirement

benefits owed to the other when both parties retire; (2) use

June 14, 1995 as Wife's employment start date; (3) use the date

of divorce to calculate retirement benefits; (4) waive a

$5,085.92 equalization payment; and (5) categorize money from

his parents as marital property. 2

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve

(. . . continued)

(2) April 7, 2020 "Order Re: [Wife's] Motion for Reconsideration, for Clarification, and/or to Alter or Amend Judgment, Filed February 27, 2020" (Order Re: Wife's 4/7/2020 Motion for Reconsideration);

(3) August 31, 2020 "Order Re: [Husband's] Motion for Reconsideration, for Clarification, and/or to Alter or Amend the Order, Filed April 7, 2020, Filed April 22, 2020" (Order Re: Husband's 4/22/2020 Motion for Reconsideration);

(4) September 29, 2020 "Order Re: [Husband's] Motion for Reconsideration, for Clarification, and/or to Alter or Amend the Order Re: [Husband's] Motion for Reconsideration, for Clarification, and/or to Alter or Amend the Order, Filed April 7, 2020, Filed April 22, 2020, (Filed on August 31, 2020), Filed September 10, 2020" (Order Re: Husband's 9/10/2020 Motion for Reconsideration); and

(5) September 29, 2020 "Order Re: [Wife's] Motion for Reconsideration, Clarification, and/or to Alter or Amend the Order, Filed April 7, 2020, Filed April 22, 2020, Filed August 31, 2020, Filed on September 9, 2020" (Order Re: Wife's 9/9/2020 Motion for Reconsideration).

(Formatting altered.)

2 We note that the opening brief does not comply with Hawai‘i Rules of Appellate Procedure Rule 28(b)(4).

2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Husband's points of error as discussed below, and vacate and

remand in part and affirm in part.

"[T]he family court possesses wide discretion in

making its decisions and those decisions will not be set aside

unless there is a manifest abuse of discretion." Kakinami v.

Kakinami, 127 Hawaiʻi 126, 136, 276 P.3d 695, 705 (2012). Its

findings of fact are reviewed under the clearly erroneous

standard, while its conclusions of law are reviewed de novo

under the right/wrong standard. Id. A conclusion of law

presenting mixed questions of fact and law is reviewed under the

clearly erroneous standard. KS v. RS, 151 Hawaiʻi 336, 341, 512

P.3d 702, 707 (App. 2022).

(1) Husband contends the family court "erred in

ruling that the division of each party's State of [Hawaiʻi] ERS

(Employees Retirement System) Hybrid Retirement Plan does not

become effective unless and until both parties retire from their

employment with the State of [Hawaiʻi.]" Husband argues the

family court's ruling was contrary to "established law"

requiring payments to start when a party begins receiving

retirement benefits. Contrary to Husband's contention, the

family court did not abuse its discretion.

3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

The general rule is that a party should start payments

of a Linson share to a former spouse once that party begins

receiving the retirement benefit. 3 Cassiday v. Cassiday, 68 Haw.

383, 384 n.1, 716 P.2d 1133, 1135 n.1 (1986). However, Hawai‘i

courts have also ruled a party may be required, for equitable

reasons, to pay their Linson share of a retirement benefit

before the party has retired and begun receiving it. See Green

v. Green, 1 Haw. App. 599, 600, 623 P.2d 890, 891 (1981)

(providing family court justified in requiring husband to pay

former wife a portion of retirement benefit, even though he had

not yet retired); Wallace v. Wallace, 5 Haw. App. 55, 57, 677

P.2d 966, 967-68 (1984) (noting same).

Here, the family court found that Wife would receive

$3,001.16 per month if she retired in 2025 as planned. The

family court also found that husband was earning $146,500.00 per

year (or $12,208.33 per month) and had no plans to retire

although he was eligible. Husband does not challenge these

findings on appeal. Okada Trucking Co., Ltd. v. Bd. of Water

3 Under the Linson formula, "the non-owner party is awarded one-half of a percentage of the owner's retirement. The formula for determining the percentage is to divide the number of years credited to retirement during the marriage by the total number of years credited to retirement." Donnelly v. Donnelly, 98 Hawaiʻi 280, 281, 47 P.3d 747, 748 (App. 2002) (citations and internal quotation marks omitted).

"The 'Linson formula,' although not actually included in the Linson opinion, has been adopted by this court in calculating the amount of retirement benefits to be awarded to the non-owner party after divorce." Rand v. Rand, 137 Hawai‘i 206, 366 P.3d 1085, No. CAAP-XX-XXXXXXX, 2016 WL 383158, at *9 n.7 (App. Jan. 29, 2016) (SDO).

4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Supply, 97 Hawai‘i 450, 459, 40 P.3d 73, 82 (2002) (holding

unchallenged factual findings are binding on appeal).

The family court further found that "[i]t would be

inequitable for either party to control the date of their

retirement in a manner that would cause them to receive a

financial windfall and/or financially penalize the other party."

The family court then concluded that it would be just and

equitable for each party to begin paying the Linson share owed

to the other when both parties retire.

The family court faced the following dilemma: if the

court ordered Wife to pay a Linson share when she retired while

Husband continued to work, Wife's monthly income would be

$1,500.58 ($3,001.16 ÷ 2) and Husband's monthly income would be

$13,708.91 ($12,208.33 + $1,500.58). And Wife has no control

over when (or if) Husband retires.

Because the family court may adjust the timing of

Linson share payments to achieve an equitable result, it did not

abuse its discretion in ordering the parties to begin paying a

share of their retirement benefits to the other upon the

retirement of both.

(2) Second, Husband contends the family court "erred

in determining the numerator in the formula for division of ERS

Hybrid Retirement Plan by including [his] premarital employment

period and . . . utilizing [Wife's] later start date . . . ."

5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Husband argues the family court should have used February 18,

1990 (date of marriage) instead of December 20, 1987 (Husband's

employment date) to determine his payment, and should have used

December 19, 1988 (Wife's employment date) instead of June 14,

1995 (adjusted for breaks in service and leave without pay for

child care) to determine Wife's payment.

The family court found that both Husband and Wife were

initially enrolled in the State's non-contributory retirement

plan. They subsequently enrolled in the Hybrid Plan, and

converted their non-contributory service by paying mandated

conversion fees from funds accumulated during the marriage in

their respective State deferred compensation accounts. Wife

used $32,608.02 and Husband used $123,244.00 to upgrade or

convert to the Hybrid Plan. The family court further found that

neither party presented evidence showing the funds used "were,

either whole or in part, pre-marital funds." Husband does not

challenge these findings. See Okada, 97 Hawai‘i at 459, 540 P.3d

at 82.

The family court therefore determined that, because

Marital Partnership Property was used to convert each party's

non-contributory years of service into Hybrid Plan years of

service, both Hybrid Plan "accounts became, in their entirety,

Marital Partnership Property assets of the marriage."

6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Because Husband used $123,244.00 in funds accumulated

during the marriage to convert his non-contributory plan to a

hybrid plan, it was equitable to determine that the entire fund

was Marital Partnership Property. As such, the family court did

not abuse its discretion in using December 21, 1987 (Husband's

employment date) instead of February 18, 1990 (date of marriage)

in dividing this asset.

The family court also did not abuse its discretion in

using June 14, 1995 (adjusted for breaks in service and leave

without pay for child care) instead of December 19, 1988 (Wife's

employment date) to divide Wife's asset. The family court found

that Wife's initial start date was December 19, 1988. But,

"there was a break in her service and when she returned to State

employment in March of 1997, she was given an adjusted start

date of June 14, 1995, in order to make provision for her prior

service, the time she was not employed by the State, as well as

for time when she took leave without pay for child care/

maternity leave." Husband does not challenge this finding, and

we note Husband used this date in his January 21, 2020 Proposed

Decision and Order Re: Trial. See Okada, 97 Hawai‘i at 459, 540

P.3d at 82.

(3) Third, Husband contends the family court "erred

in the usage of the date of divorce as opposed to the Date of

Conclusion of the Evidentiary Part of Trial (DOCOEPOT) in the

7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

numerator in dividing the respective party's retirement."

(Emphasis added.) Husband is correct on this point. LaPeter v.

LaPeter, 144 Hawai‘i 295, 306, 439 P.3d 247, 258 (App. 2019)

("Under the partnership-model framework endorsed by Hawai‘i case

law to divide property of the marital estate, the DOCOEPOT is

used in determining the value of property."). Accordingly, on

remand, the family court should utilize the DOCOEPOT in the

Linson formula apportioning retirement benefits.

(4) Fourth, Husband contends the family court erred

"in determining that there were valid and relevant

considerations in varying from established property division

principles by awarding [Wife] a larger portion of the net

proceeds of the sale of the parties' former marital residence

and waiving [Wife's] property equalization payment in the sum of

$5,085.92[.]"

In his points of error, Husband fails to cite where in

the record the family court "waived" the $5,085.92 equalization

payment Wife owed Husband.

Instead, the family court determined it would be fair

and reasonable for Husband to pay five years of alimony at

$8,000.00 per year, for a total of $40,000.00. In making this

determination, the family court considered the Hawaiʻi Revised

Statutes § 580-47 (2018) factors, Vorfeld v. Vorfeld, 8 Haw.

App. 391, 804 P.2d 891 (1991), and the evidence presented.

8 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

The family court then subtracted the $5,085.92

equalization payment Wife owed Husband from the $40,000.00

alimony Husband owed Wife, for a net alimony of $34,914.08. The

family court required Husband to pay this amount from his share

of the net proceeds from the sale of the former marital

residence.

Because Husband does not support his "waiver"

contention and does not challenge the family court's findings

and conclusions, we see no abuse of discretion.

(5) Finally, Husband contends the family court erred

"in failing to grant [his] Category 3 claim of monetary gifts

made by [his] father to [him] during the parties' marriage[.]"

Under Hawaii's Marital Partnership Model, Category 3

property is "property separately acquired by gift or inheritance

during the marriage but excluding the [net market values]

attributable to property that is subsequently legally gifted by

the owner to the other spouse, to both spouses, or to a third

party." Hamilton v. Hamilton, 138 Hawai‘i 185, 201, 378 P.3d

901, 917 (2016) (citation omitted).

Wife's testimony was that the funds from Husband's

father were deposited into Husband's credit union account then

transferred into their joint account, or Husband would deposit

the funds directly into their joint account. Husband admitted

the funds from his father were deposited in their joint account.

9 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Wife would then pay tuition and monthly bills from their joint

account, as she was primarily responsible for paying their

bills.

The family court found funds from Husband's father

were always deposited into the couple's joint bank accounts and

were never treated as Husband's separate property. The family

court further found that the money was used to pay the

children's tuition and household expenses. Husband did not

present evidence that the checks were treated as his separate

property. Husband does not challenge these findings. See

Okada, 97 Hawai‘i at 459, 540 P.3d at 82.

Because the family court considered where the funds

were deposited and how the funds were used in making its

determination, the family court did not abuse its discretion.

Based on the foregoing, we vacate the portions of the

November 25, 2020 Divorce Decree and Order Re: Husband's

9/10/2020 Motion for Reconsideration to the extent the date of

divorce rather than the DOCOEPOT was used as the numerator of

the Linson formula, remand for further proceedings consistent

with this summary disposition order, and otherwise affirm the

remainder. We also affirm the (1) 2/20/2020 Decision and Order;

(2) Order Re: Wife's 4/7/2020 Motion for Reconsideration;

10 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

(3) Order Re: Husband's 4/22/2020 Motion for Reconsideration;

and (4) Order Re: Wife's 9/9/2020 Motion for Reconsideration.

DATED: Honolulu, Hawai‘i, November 18, 2024.

On the briefs: /s/ Clyde J. Wadsworth Presiding Judge Blake Okimoto, for Defendant-Appellant. /s/ Karen T. Nakasone Associate Judge Francis T. O'Brien, for Plaintiff-Appellee. /s/ Sonja M.P. McCullen Associate Judge