NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-MAY-2021 08:01 AM Dkt. 105 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
KS, Plaintiff-Appellee, v. TS, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-D NO. 07-1-2764)
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant TS (TS) appeals from the April 15,
2019 Order Granting Plaintiff's Attorney's Fees and Costs
Associated with Plaintiff's Motion for Post-Decree Relief
(Attorney's Fee Order) entered against him and in favor of
Plaintiff-Appellee KS (KS) in the Family Court of the First
Circuit (Family Court).1 TS also challenges the Family Court's
October 24, 2018 Order Re: Plaintiff's and Defendant's Motions
for Post Decree Relief (Post-Decree Order), as well as the
1 The Honorable Jessi L.K. Hall presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
January 3, 2019 Findings of Fact and Conclusions of Law, which
were filed as a Supplemental Record on Appeal (FOFs/COLs).
TS raises two points of error on appeal, contending
that the Family Court: (1) erred in granting the Post-Decree
Order, and refusing to give effect to an alleged agreement
between the parties; and (2) abused its discretion in awarding
attorney's fees to KS.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve TS's points of error as follows:
(1) The parties' Divorce Decree was entered on May 7,
2008 (the Decree), and awarded certain real property to KS (the
Property), subject to any debt thereon, and an equalization
payment from KS to TS to be made in a manner spelled out in the
Decree. On February 27, 2009, TS sought post-decree relief,
arguing that KS failed to, inter alia, refinance the Property or
take TS's name off the mortgage loan, as set forth in the Decree.
It appears that attempts were made to sell the Property during
the 2008-2009 time frame, but that the offers made would have
resulted in "a loss." After various continuances, which appear
to have been requested in order for the parties to figure out a
workable solution, on September 27, 2010, the Family Court
entered a Stipulation to Modify Divorce Decree [and] Order
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(Stipulation and Order), which modified the Decree.2 In the
Stipulation and Order, with respect to the Property, the parties
stipulated and the Family Court ordered as follows: [TS] shall have exclusive occupancy of the former marital residence until such time as it is sold. [TS] shall be responsible for paying the mortgage, taxes, maintenance and utilities on the property until such time as it is sold. When the former marital residence is sold, the parties shall share equally in any deficiency or equity, provided however, that [KS] shall receive a TEN THOUSAND DOLLARS ($10,000.00) credit towards her share of the deficiency or equity at the time of closing. [TS] shall have sole authority to determine when the real property should be listed and/or sold.
On April 25, 2018, KS filed a Motion and Declaration
for Post-Decree Relief (2018 Post-Decree Motion) in which KS
sought, inter alia, enforcement of the Stipulation and Order on
the grounds that TS had sold the Property and failed to split the
proceeds with KS, as set forth in the Stipulation and Order.
On June 7, 2018, TS filed a response to the 2018 Post-
Decree Motion in which TS asserted that he "purchased" KS's share
of the Property in 2013 "by refinancing the loan to remove her
name from any further financial responsibility" and paid KS
$10,000 as agreed upon in the Stipulation and Order. TS
contended that the $10,000 payment constituted a sale of the
Property as evidenced by a Quitclaim Deed, which was signed by KS
on May 24, 2013, and recorded on June 6, 2013 (Quitclaim Deed).
KS contends that the Quitclaim Deed was done to facilitate TS's
refinance of the Property, as evidenced by a loan payoff letter
dated June 1, 2013, and a release of the parties' mortgage dated
2 The Honorable Paul T. Murakami presided.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
June 19, 2013. Both parties provided further argument and
submissions to the Family Court. It appears undisputed that TS
sold the Property in 2017. As the Family Court later found,
inter alia, TS received a total (net) amount of $221,247.87 from
the sale of the Property (FOF 18).3
On October 24, 2018, the Family Court held a hearing on
the 2018 Post-Decree Motion, as well as other pending matters.
After argument of counsel, with respect to the proceeds of the
Property, the Family Court orally ruled: Pursuant to the September 27th, 2010, order, it is clear that the deficiency or equity is to be divided equally between the parties at any time –- such time as the house is sold.
The house has been sold. There has been no dispute that [TS] received 221,247.87.
As such, judgment shall enter in favor of [KS] in the amount of 110,623.93.
On October 24, 2018, the Family Court entered the Post-
Decree Order, which stated that "[KS's] Motion for 50% of the
equity from the sale of the marital residence is Granted pursuant
to the Sept. 27, 2010 order." In other words, the Family Court
granted KS's request to enforce the Stipulation and Order. On
January 3, 2019, the Family Court entered the FOFs/COLs, which
were consistent with the court's oral ruling and the Post-Decree
Order.
3 Although TS identifies FOF 18 in his points of error, he makes no argument that the Family Court erred in its determination of this amount, and therefore, any such arguments are waived.
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, TS argues that the Family Court erred in
failing to construe the Quitclaim Deed as an enforceable
agreement between him and KS, overriding and/or superseding the
clear directive of the Stipulation and Order. This argument is
without merit.
As the Hawai#i Supreme Court has recognized, in
general, a deed is not a contract. See Balogh v. Balogh, 134
Hawai#i 29, 40 n.7, 332 P.3d 631, 642 n.7 (2014) (citations
omitted). A deed conveys property, as opposed to promising to do
something. Here, there is no evidence of a meeting of the minds
with respect to the effect of the Quitclaim Deed. There is no
evidence that KS agreed to forego her share of any equity in the
Property upon its sale, as she was entitled to pursuant to the
Stipulation and Order. In an October 8, 2018 Declaration, TS
states, in relevant part: 4. In 2013, we had to refinance the mortgage (it was an interest only mortgage with a balloon payment coming soon), but [KS] wanted off the mortgage. She did not want to be responsible for owning the property anymore. . . .
5. In May 2013, [KS] signed a quit claim deed to me because she did not want to be on a mortgage and wanted to just be done with owning the property. . . .
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-MAY-2021 08:01 AM Dkt. 105 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
KS, Plaintiff-Appellee, v. TS, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-D NO. 07-1-2764)
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant TS (TS) appeals from the April 15,
2019 Order Granting Plaintiff's Attorney's Fees and Costs
Associated with Plaintiff's Motion for Post-Decree Relief
(Attorney's Fee Order) entered against him and in favor of
Plaintiff-Appellee KS (KS) in the Family Court of the First
Circuit (Family Court).1 TS also challenges the Family Court's
October 24, 2018 Order Re: Plaintiff's and Defendant's Motions
for Post Decree Relief (Post-Decree Order), as well as the
1 The Honorable Jessi L.K. Hall presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
January 3, 2019 Findings of Fact and Conclusions of Law, which
were filed as a Supplemental Record on Appeal (FOFs/COLs).
TS raises two points of error on appeal, contending
that the Family Court: (1) erred in granting the Post-Decree
Order, and refusing to give effect to an alleged agreement
between the parties; and (2) abused its discretion in awarding
attorney's fees to KS.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve TS's points of error as follows:
(1) The parties' Divorce Decree was entered on May 7,
2008 (the Decree), and awarded certain real property to KS (the
Property), subject to any debt thereon, and an equalization
payment from KS to TS to be made in a manner spelled out in the
Decree. On February 27, 2009, TS sought post-decree relief,
arguing that KS failed to, inter alia, refinance the Property or
take TS's name off the mortgage loan, as set forth in the Decree.
It appears that attempts were made to sell the Property during
the 2008-2009 time frame, but that the offers made would have
resulted in "a loss." After various continuances, which appear
to have been requested in order for the parties to figure out a
workable solution, on September 27, 2010, the Family Court
entered a Stipulation to Modify Divorce Decree [and] Order
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(Stipulation and Order), which modified the Decree.2 In the
Stipulation and Order, with respect to the Property, the parties
stipulated and the Family Court ordered as follows: [TS] shall have exclusive occupancy of the former marital residence until such time as it is sold. [TS] shall be responsible for paying the mortgage, taxes, maintenance and utilities on the property until such time as it is sold. When the former marital residence is sold, the parties shall share equally in any deficiency or equity, provided however, that [KS] shall receive a TEN THOUSAND DOLLARS ($10,000.00) credit towards her share of the deficiency or equity at the time of closing. [TS] shall have sole authority to determine when the real property should be listed and/or sold.
On April 25, 2018, KS filed a Motion and Declaration
for Post-Decree Relief (2018 Post-Decree Motion) in which KS
sought, inter alia, enforcement of the Stipulation and Order on
the grounds that TS had sold the Property and failed to split the
proceeds with KS, as set forth in the Stipulation and Order.
On June 7, 2018, TS filed a response to the 2018 Post-
Decree Motion in which TS asserted that he "purchased" KS's share
of the Property in 2013 "by refinancing the loan to remove her
name from any further financial responsibility" and paid KS
$10,000 as agreed upon in the Stipulation and Order. TS
contended that the $10,000 payment constituted a sale of the
Property as evidenced by a Quitclaim Deed, which was signed by KS
on May 24, 2013, and recorded on June 6, 2013 (Quitclaim Deed).
KS contends that the Quitclaim Deed was done to facilitate TS's
refinance of the Property, as evidenced by a loan payoff letter
dated June 1, 2013, and a release of the parties' mortgage dated
2 The Honorable Paul T. Murakami presided.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
June 19, 2013. Both parties provided further argument and
submissions to the Family Court. It appears undisputed that TS
sold the Property in 2017. As the Family Court later found,
inter alia, TS received a total (net) amount of $221,247.87 from
the sale of the Property (FOF 18).3
On October 24, 2018, the Family Court held a hearing on
the 2018 Post-Decree Motion, as well as other pending matters.
After argument of counsel, with respect to the proceeds of the
Property, the Family Court orally ruled: Pursuant to the September 27th, 2010, order, it is clear that the deficiency or equity is to be divided equally between the parties at any time –- such time as the house is sold.
The house has been sold. There has been no dispute that [TS] received 221,247.87.
As such, judgment shall enter in favor of [KS] in the amount of 110,623.93.
On October 24, 2018, the Family Court entered the Post-
Decree Order, which stated that "[KS's] Motion for 50% of the
equity from the sale of the marital residence is Granted pursuant
to the Sept. 27, 2010 order." In other words, the Family Court
granted KS's request to enforce the Stipulation and Order. On
January 3, 2019, the Family Court entered the FOFs/COLs, which
were consistent with the court's oral ruling and the Post-Decree
Order.
3 Although TS identifies FOF 18 in his points of error, he makes no argument that the Family Court erred in its determination of this amount, and therefore, any such arguments are waived.
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, TS argues that the Family Court erred in
failing to construe the Quitclaim Deed as an enforceable
agreement between him and KS, overriding and/or superseding the
clear directive of the Stipulation and Order. This argument is
without merit.
As the Hawai#i Supreme Court has recognized, in
general, a deed is not a contract. See Balogh v. Balogh, 134
Hawai#i 29, 40 n.7, 332 P.3d 631, 642 n.7 (2014) (citations
omitted). A deed conveys property, as opposed to promising to do
something. Here, there is no evidence of a meeting of the minds
with respect to the effect of the Quitclaim Deed. There is no
evidence that KS agreed to forego her share of any equity in the
Property upon its sale, as she was entitled to pursuant to the
Stipulation and Order. In an October 8, 2018 Declaration, TS
states, in relevant part: 4. In 2013, we had to refinance the mortgage (it was an interest only mortgage with a balloon payment coming soon), but [KS] wanted off the mortgage. She did not want to be responsible for owning the property anymore. . . .
5. In May 2013, [KS] signed a quit claim deed to me because she did not want to be on a mortgage and wanted to just be done with owning the property. . . .
(Format altered).
Notably, TS does not aver that there was a meeting of
the minds that KS would forego her share of any equity in the
Property once it was sold. There is no written agreement and no
other evidence supporting TS's contention that the parties
intended to modify the effect of the Stipulation and Order.
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Clearly, KS disputes that she agreed to forego her share of the
equity and acted to enforce the Stipulation and Order when she
learned that the Property had been sold. Indeed, TS's
refinancing of the mortgage is consistent with his rights and
obligations under the Stipulation and Order, which provided that
he would be responsible for the mortgage, etc., until the
Property was sold, but that he would have "sole authority" to
determine when it would be sold.
Accordingly, we conclude that the Family Court did not
err in enforcing the Stipulation and Order and in rejecting TS's
argument that the Quitclaim Deed constituted an enforceable
agreement between the parties.
(2) TS argues that the Family Court abused its
discretion in awarding KS attorney's fees, on alternate grounds,
including that KS was not entitled to attorney's fees because she
was not the prevailing party, it was not just and equitable to
award her fees, the Family Court failed to undertake the analysis
set forth in HRS § 580-47(f) (2018), this was not an enforcement
action, the fees were not reasonable and necessarily incurred,
and Hawai#i Family Court Rules Rule 54(d) does not support an
award of fees to KS.
As explained in the Family Court's June 17, 2019
Findings of Fact and Conclusions of Law [Re: Appeal from the
Order Granting Plaintiff's Attorney's Fees and Costs Associated
with Plaintiff's Motion for Post-Decree Relief Filed April 25,
6 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
2018 Filed April 15, 2019] (FOF/COL re Fees), the Family Court
concluded that an award of attorney's fees to KS was supported by
HRS §§ 571-8.5(a)(6)&(10) (2018) and 580-47(f), and found and
concluded that it was reasonable and equitable to award fees to
KS for having to enforce the Stipulation and Order. Although the
Family Court did not enumerate all of the HRS § 580-47(f)
considerations, it appears that they were adequately considered
and supported in the record. We conclude that the Family Court
did not err or abuse its discretion in this regard.
TS also argues that, even if fees were awardable in
this case, particular time entries by KS's attorney appear
unreasonable and/or excessive and/or unnecessary. The objections
to these time entries were presented to the Family Court prior to
the Family Court's entry of the Attorney's Fees Order. KS
requested an award of $9,000 for 30 hours of attorney's fees at
$300 per hour.4 However, the Family Court awarded KS only
$5,040, thus reducing the award to payment for 16.8 hours,
instead of the requested 30 hours. TS does not argue or explain
why or how this reduction of fees was insufficient. Upon review
of the entire record, including the attorney's fees request and
the specific objections thereto, we conclude that the Family
Court did not abuse its discretion in awarding attorney's fees in
the reduced amount of $5,040.
4 No objection was raised as to counsel's hourly rate.
7 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
For these reasons, the Family Court's April 15, 2019
Attorneys Fee's Order and October 24, 2018 Post-Decree Order are
affirmed.
DATED: Honolulu, Hawai#i, May 18, 2021.
On the briefs: /s/ Katherine G. Leonard Rebecca A. Copeland, Presiding Judge for Defendant-Appellant. /s/ Keith K. Hiraoka Andre S. Wooten, Associate Judge for Plaintiff-Appellee. /s/ Karen T. Nakasone Associate Judge