NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 09-JUL-2024 08:07 AM Dkt. 84 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
MICHAEL JAMES DICK, Plaintiff-Appellant, v. ELENA MOREL DICK, Defendant-Appellee.
APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT (CASE NO. 5DV171000039)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.)
Plaintiff-Appellant Michael James Dick (Michael)
appeals from the Family Court of the Fifth Circuit's 1 June 22,
2020 "Order Granting Defendant's Motion to Enforce Divorce
Decree and for Judgment" (Order) and June 22, 2020 Judgment
(Judgment).
On appeal, Michael challenges the late payment penalty
and attorney's fees awarded to his former spouse, Defendant-
1 The Honorable Edmund D. Acoba presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Appellee Elena Morel Dick (Elena). 2 We review Michael's
challenges under the abuse of discretion standard. See DL v.
CL, 146 Hawai‘i 328, 335, 463 P.3d 985, 992 (2020) (indicating
family court decisions are reviewed for abuse of discretion).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and arguments advanced by the parties, we
resolve Michael's points of error below.
(1) Michael contends "the 10% monthly interest
payment penalty provision is unconscionable and the Family Court
erred in upholding it." (Formatting altered.) Michael relies
in part on Hawai‘i Revised Statutes (HRS) § 478-3 (2008) to
support his argument. 3 Elena does not address Michael's HRS
§ 478-3 argument in her answering brief. [Dkt. 76]
"Interest at the rate of ten per cent a year, and no
more, shall be allowed on any judgment recovered before any
court in the State, in any civil suit." HRS § 478-3 (emphases
added). In Lopresto-Nakamura v. Nakamura, 125 Hawai‘i 242, 257
2 In his points of error, Michael does not challenge the family court's findings of fact or conclusions of law. Hawai‘i Rules of Appellate Procedure Rule 28(b)(4); Balogh v. Balogh, 134 Hawaiʻi 29, 33 n.3, 332 P.3d 631, 635 n.3 (2014) (noting unchallenged findings of fact from the family court are binding on the appellate court); State v. Rita, 151 Hawai‘i 371, 513 P.3d 437, No. CAAP-XX-XXXXXXX, 2022 WL 2981218, at *6 (App. July 28, 2022) (mem. op.) ("Unchallenged conclusions of law are binding on appeal.").
3 Michael also relies on a section from the Restatement (Second) of Contracts discussing unconscionable contracts or terms, however, we need not reach this issue in light of our decision.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
P.3d 1219, No. 28798, 2011 WL 341272, at *5-6 (App. Feb. 3,
2011) (mem. op.), wife moved to enforce the divorce decree
requesting ten percent interest per year on the alimony payments
not paid. This court explained, "[i]n the absence of express
statutory authority governing the payment of interest in a
specific type of claim, HRS § 478-3, governing the payment of
interest in civil judgments generally, applies." Id. at *6
(citation omitted). We then remanded the case, instructing the
family court to consider the interest owed to wife under the
divorce decree. Id.
In other words, HRS § 478-3 limits interest on a
judgment to ten percent per year and applies to a divorce
decree.
But the divorce decree in this case provided, "[i]f,
without good cause, the remaining balance is not paid on or
before January 2, 2019, a penalty of 10% of the balance due
shall be added each and every month until the balance due,
including penalties, is paid in full." (Emphasis added.) The
family court found "[i]nterest was to accrue at a rate of 10%
per month," and based on a "balance of $51,557.23, (the interest
accrued on the late payment)[,]" Michael owed Elena $246,330.51
as of the March 9, 2020 trial date.
The penalty imposed here was interest for the late
payment, which should not have exceeded ten percent per year
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
under HRS § 478-3. By applying an interest rate of ten percent
per month, each month, the family court disregarded HRS § 478-3
to Michael's substantial detriment and, thus, abused its
discretion.
(2) Relatedly, Michael also contends the family court
erred by charging him "with a penalty for the minor delay in
paying the remainder of the Kalaheo property equalization
payment" because there was good cause. (Formatting altered.)
Michael explains the late payment was due to delays in
refinancing the Kalaheo property, which was caused in part by
Elena's "inexplicable refusal to timely execute the Kalaheo home
quitclaim deed . . . ."
In unchallenged findings, the family court found pursuant to the parties' divorce decree, filed herein on January 9, 2019, [Michael] was to have paid [Elena], as the remaining balance due on the equalization payment owed to [Elena], a total of $515,572.31 on January 2, 2019. Interest was to accrue at a rate of 10% per month on the unpaid balance if the payment were [sic] late without good cause.
The family court also found Michael: by his own testimony, had
$619,930.39 in assets as of December 31, 2018; paid the
$515,572.31 on February 28, 2019; and was not credible in
claiming he had insufficient funds to make the equalization
payment. The family court further found the quitclaim deed was
to be executed upon Michael making full payment to Elena.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
This court is bound by unchallenged findings and
credibility determinations. See Balogh, 134 Hawai‘i at 33 n.3,
332 P.3d at 635 n.3 (noting unchallenged findings are binding on
appeal); DL v. CL, 146 Hawai‘i at 336, 463 P.3d at 993
(explaining appellate courts will not pass on credibility
determinations as those are "the province of the trier of fact")
(citation and internal quotations marks omitted). Based on the
unchallenged findings, Michael had sufficient funds to timely
pay Elena, and Elena was not required to execute the quitclaim
deed until after she was paid in full. Thus, aside from the HRS
§ 478-3 limitation discussed above, the family court did not
abuse its discretion in penalizing Michael for his late payment.
(3) Finally, Michael contends the family court abused
its discretion in awarding Elena attorney's fees and costs.
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 09-JUL-2024 08:07 AM Dkt. 84 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
MICHAEL JAMES DICK, Plaintiff-Appellant, v. ELENA MOREL DICK, Defendant-Appellee.
APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT (CASE NO. 5DV171000039)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.)
Plaintiff-Appellant Michael James Dick (Michael)
appeals from the Family Court of the Fifth Circuit's 1 June 22,
2020 "Order Granting Defendant's Motion to Enforce Divorce
Decree and for Judgment" (Order) and June 22, 2020 Judgment
(Judgment).
On appeal, Michael challenges the late payment penalty
and attorney's fees awarded to his former spouse, Defendant-
1 The Honorable Edmund D. Acoba presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Appellee Elena Morel Dick (Elena). 2 We review Michael's
challenges under the abuse of discretion standard. See DL v.
CL, 146 Hawai‘i 328, 335, 463 P.3d 985, 992 (2020) (indicating
family court decisions are reviewed for abuse of discretion).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and arguments advanced by the parties, we
resolve Michael's points of error below.
(1) Michael contends "the 10% monthly interest
payment penalty provision is unconscionable and the Family Court
erred in upholding it." (Formatting altered.) Michael relies
in part on Hawai‘i Revised Statutes (HRS) § 478-3 (2008) to
support his argument. 3 Elena does not address Michael's HRS
§ 478-3 argument in her answering brief. [Dkt. 76]
"Interest at the rate of ten per cent a year, and no
more, shall be allowed on any judgment recovered before any
court in the State, in any civil suit." HRS § 478-3 (emphases
added). In Lopresto-Nakamura v. Nakamura, 125 Hawai‘i 242, 257
2 In his points of error, Michael does not challenge the family court's findings of fact or conclusions of law. Hawai‘i Rules of Appellate Procedure Rule 28(b)(4); Balogh v. Balogh, 134 Hawaiʻi 29, 33 n.3, 332 P.3d 631, 635 n.3 (2014) (noting unchallenged findings of fact from the family court are binding on the appellate court); State v. Rita, 151 Hawai‘i 371, 513 P.3d 437, No. CAAP-XX-XXXXXXX, 2022 WL 2981218, at *6 (App. July 28, 2022) (mem. op.) ("Unchallenged conclusions of law are binding on appeal.").
3 Michael also relies on a section from the Restatement (Second) of Contracts discussing unconscionable contracts or terms, however, we need not reach this issue in light of our decision.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
P.3d 1219, No. 28798, 2011 WL 341272, at *5-6 (App. Feb. 3,
2011) (mem. op.), wife moved to enforce the divorce decree
requesting ten percent interest per year on the alimony payments
not paid. This court explained, "[i]n the absence of express
statutory authority governing the payment of interest in a
specific type of claim, HRS § 478-3, governing the payment of
interest in civil judgments generally, applies." Id. at *6
(citation omitted). We then remanded the case, instructing the
family court to consider the interest owed to wife under the
divorce decree. Id.
In other words, HRS § 478-3 limits interest on a
judgment to ten percent per year and applies to a divorce
decree.
But the divorce decree in this case provided, "[i]f,
without good cause, the remaining balance is not paid on or
before January 2, 2019, a penalty of 10% of the balance due
shall be added each and every month until the balance due,
including penalties, is paid in full." (Emphasis added.) The
family court found "[i]nterest was to accrue at a rate of 10%
per month," and based on a "balance of $51,557.23, (the interest
accrued on the late payment)[,]" Michael owed Elena $246,330.51
as of the March 9, 2020 trial date.
The penalty imposed here was interest for the late
payment, which should not have exceeded ten percent per year
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
under HRS § 478-3. By applying an interest rate of ten percent
per month, each month, the family court disregarded HRS § 478-3
to Michael's substantial detriment and, thus, abused its
discretion.
(2) Relatedly, Michael also contends the family court
erred by charging him "with a penalty for the minor delay in
paying the remainder of the Kalaheo property equalization
payment" because there was good cause. (Formatting altered.)
Michael explains the late payment was due to delays in
refinancing the Kalaheo property, which was caused in part by
Elena's "inexplicable refusal to timely execute the Kalaheo home
quitclaim deed . . . ."
In unchallenged findings, the family court found pursuant to the parties' divorce decree, filed herein on January 9, 2019, [Michael] was to have paid [Elena], as the remaining balance due on the equalization payment owed to [Elena], a total of $515,572.31 on January 2, 2019. Interest was to accrue at a rate of 10% per month on the unpaid balance if the payment were [sic] late without good cause.
The family court also found Michael: by his own testimony, had
$619,930.39 in assets as of December 31, 2018; paid the
$515,572.31 on February 28, 2019; and was not credible in
claiming he had insufficient funds to make the equalization
payment. The family court further found the quitclaim deed was
to be executed upon Michael making full payment to Elena.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
This court is bound by unchallenged findings and
credibility determinations. See Balogh, 134 Hawai‘i at 33 n.3,
332 P.3d at 635 n.3 (noting unchallenged findings are binding on
appeal); DL v. CL, 146 Hawai‘i at 336, 463 P.3d at 993
(explaining appellate courts will not pass on credibility
determinations as those are "the province of the trier of fact")
(citation and internal quotations marks omitted). Based on the
unchallenged findings, Michael had sufficient funds to timely
pay Elena, and Elena was not required to execute the quitclaim
deed until after she was paid in full. Thus, aside from the HRS
§ 478-3 limitation discussed above, the family court did not
abuse its discretion in penalizing Michael for his late payment.
(3) Finally, Michael contends the family court abused
its discretion in awarding Elena attorney's fees and costs.
Michael further contends the family court should have awarded
him attorney's fees and costs due to Elena's "egregious
actions."
Michael, however, does not elaborate as to Elena's
"egregious actions" or the specific behavior that amounted to
"unclean hands" in his argument on this issue. See Hawai‘i Rules
of Appellate Procedure Rule 28(b)(7). And as discussed above,
the divorce decree did not require Elena to quitclaim the deed
for the Kalaheo property prior to Michael making the
equalization payment.
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
HRS § 580-47 (2018) specifically provides for
attorney's fees on "a motion for an enforcement order." Cain v.
Cain, 59 Haw. 32, 43 n.6, 575 P.2d 468, 476 n.6 (1978). Thus,
attorney's fees related to seeking interest for the late payment
as limited by HRS § 478-3 (ten percent per year) would be
permissible, but attorney's fees related to seeking interest
exceeding that set forth in HRS § 478-3 (ten percent per month)
would not.
Based on the foregoing, we vacate the June 22, 2020
Order and Judgment, and remand this case for further proceedings
consistent with this summary disposition order.
DATED: Honolulu, Hawai‘i, July 9, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Rosa Flores, for Plaintiff-Appellant. /s/ Clyde J. Wadsworth Associate Judge Catherine Valenti, for Defendant-Appellee. /s/ Sonja M.P. McCullen Associate Judge