Markham v. Markham

909 P.2d 602, 80 Haw. 274, 1996 Haw. App. LEXIS 4
CourtHawaii Intermediate Court of Appeals
DecidedJanuary 9, 1996
Docket17037
StatusPublished
Cited by23 cases

This text of 909 P.2d 602 (Markham v. Markham) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Markham v. Markham, 909 P.2d 602, 80 Haw. 274, 1996 Haw. App. LEXIS 4 (hawapp 1996).

Opinions

ACOBA, Judge.

Plaintiff-Appellant Donald T. Markham (Husband) appeals from the family court’s March 29, 1998 Divorce Decree and associated rulings. For the reasons stated in this opinion, we remand certain aspects of the case.

Husband was born on May 26, 1936 and Defendant-Appellee Iris M. Markham (Wife) was born on April 25, 1951. Husband met Wife in early 1986. Around September of 1986, Wife moved into Husband’s residence at 831 Kahena Street (the Kahena property) located in Honolulu, Hawafi.1 Husband’s mother, Margaret Shizuko Markham (Mother), had leased the Kahena property on March 6, 1973 from the Estate of Bernice Pauahi Bishop (Bishop Estate).

On December 2, 1987, Mother assigned and transferred the Kahena property to herself, Husband, and Donnette Markham, Husband’s daughter from another marriage (Daughter), as joint tenants.

Husband, as a co-mortgagor with Mother, obtained a second mortgage loan on the Kahena property on December 14,1987. On February 16, 1988, Mother, Husband, and Daughter purchased the Kahena property’s fee simple interest from Bishop Estate under an Agreement of Sale. Husband and Mother resided on the Kahena property, maintained it, and made property tax and mortgage payments for the property.

In an Assignment of Lease and Consent dated May 2, 1988 (the Assignment), Mother and Husband purportedly transferred their interests in the Kahena property to Daughter.

In May 1989, Husband applied for and purchased homeowner’s insurance in his name as co-owner of the property and paid the insurance premiums.

Husband and Wife were married in Honolulu, Hawaii on May 26, 1990. Wife assisted in maintaining the Kahena property and contributed to the living expenses of the parties. Wife initially provided care for Mother, and later, paid $500.00 a month for a full-time live-in aide to care for Mother. Wife paid the aide from December 1988 to February 1991, after which time Mother was hospitalized. Wife worked at several jobs.

On April 15, 1991, Wife filed a temporary restraining order (TRO) against one Angel L. Hernandez (Hernandez). The TRO stated that Wife had an extramarital relationship with Hernandez.

Husband and Wife separated on October 16,1991.

Husband filed a complaint for divorce on November 7, 1991. The couple had no children from their relationship.

The Kahena property was destroyed by a fire in December 1991. Husband claimed reimbursement of $28,000.00 under his homeowners’ insurance for damages caused by the fire. In February 1992, Husband, as co-[279]*279owner with Daughter, signed a contract to rebuild the Kahena house.

On February 24, 1992, the court issued a Stipulated Order for Pre-Decree Relief (the Stipulated Order). The Stipulated Order provided in pertinent part that both parties were “enjoined and restrained” from “transferring, encumbering, wasting or otherwise disposing of any real or personal property.”

In May 1992, Husband recorded the Assignment in the Bureau of Conveyances. On September 15, 1992, Wife filed a Motion and Affidavit for Relief After Order or Decree (the September 15, 1992 Motion), alleging that the Assignment filed in May 1992 violated the Stipulated Order. An Order Granting [Wife’s] September 15, 1992 Motion was entered on October 15, 1992 (the October 15, 1992 Order), on the ground that Husband violated the prohibition against transferring, encumbering, wasting or otherwise disposing of any real property. The October 15, 1992 Order stated that the Assignment-was a nullity for purposes of the divorce proceeding, but the Order was without prejudice to Husband “offering proof, if any, at the time of trial that he own[ed] no interest” in the Kahena property.

In December 1992, Mother died.

At a February 12, 1993 pretrial hearing, the court held that, based on the October 15, 1992 Order, “no evidence regarding the [Assignment” would be admitted at the divorce trial. The court also granted Wife’s February 10, 1993 Motion in Limine to Bar Evidence of [the] Temporary Restraining Order which contained evidence of Wife’s infidelity. Further, the court reserved judgment on Wife’s Motion in Limine to Bar [Husband] from Adducing Hearsay Testimony of His Mother’s Intent to convey the Kahena property to Daughter.

The divorce trial took place on February 16 and 19, 1993. Husband attempted to introduce evidence through two witnesses that Wife married him only for his money and his portion of the Kahena property. The court struck such evidence on the ground that it was not relevant to a division of the marital estate.

Husband also sought to demonstrate that he had no interest in the Kahena property. He maintained that Daughter owned the Kahena property, and pursuant to a “verbal agreement” between the two of them, she allowed him to live on the property on the condition that he pay for the first mortgage and the leasehold fee conversion. The court allowed Husband to testify that he attempted to remove his name as a titleholder from the Kahena property. However, the court sustained Wife’s objection to any reference to the Assignment which was declared “a nullity” by the October 15, 1992 Order. The court allowed Husband’s testimony “as to his state of mind ... however relevant or irrelevant that may be.” The court, additionally, granted Wife’s Motion in Limine to Bar [Husband] from Adducing Hearsay Testimony of His Mother’s Intent to convey her interest to Daughter. Daughter, however, was permitted to testify that she owned the Kahena property and was making the second mortgage payments on the home. She also indicated that Husband was paying for the first mortgage loan and the “leasehold conversion.”

Husband owned a 25% stock interest in Maile, Inc. (Maile), a company that owned and operated a tuna fishing ship. Wife’s witness, David Matsuo Chinaka (Chinaka), a certified public accountant (CPA), testified to the “gross earnings” Maile generated for the period of December 1988 through May 1992. However, neither party presented any testimony on the value of Husband’s stock at the time of separation or at the time of the trial.

On May 14, 1993, the court rendered its decision awarding Husband “his one-half (½) interest” in the Kahena property subject to an equalization payment of $42,800.00 to Wife. The court based the equalization payment on the period “from the time [Husband] acquired his interest in the home to the date of separation,” thus, including the period of the parties’ premarital cohabitation in its calculation. The court also awarded Husband “his twenty-five percent (25%) interest in Maile, Inc.” subject to an equalization payment of $4,125.00 to Wife. The court based the equalization payment on the length of time Husband owned the stock and “the [280]*280length of the parties’ relationship.” Finally, the court awarded attorney’s fees and costs to Wife.

Husband subsequently appealed.

We consider Husband’s points on appeal.

I.

Initially, we examine whether the family court erred in striking the testimony of two witnesses regarding Wife’s alleged pecuniary purpose in marrying Husband and in barring receipt of Wife’s April 15, 1991 TRO into evidence.

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Bluebook (online)
909 P.2d 602, 80 Haw. 274, 1996 Haw. App. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markham-v-markham-hawapp-1996.