Richter v. Richter

122 P.3d 284, 108 Haw. 504, 2005 Haw. App. LEXIS 420
Hawaii Intermediate Court of Appeals·Decided October 5, 2005·No. No. 26241·Published·Cited by 5 cases

Opinion

Opinion of the Court by

BURNS, C.J.

In this appeal, Plaintiff-Appellant Benjamin Elliot Richter (Plaintiff) challenges the October 29, 2003 Order Granting in Part Defendant’s Motion to Compel Plaintiff to Complete Performance of the Divorce Decree Filed October 9, 2003. In her response, Defendanb-Appellee Paz Feng Abastillas Richter (Defendant) argues that the challenged order should be affirmed. We agree and affirm.

BACKGROUND

After a contested hearing on October 16, 2001, Judge Darryl Y.C. Choy announced his decision on the record and ordered Plaintiffs attorney to prepare and submit the written divorce decree. The Divorce Decree was entered on February 25, 2002 and states, in relevant part, as follows:

I. Securities Accounts. Defendant is awarded as her separate property one-half of the aggregate value of the stocks and mutual funds held in Plaintiffs name, in Defendant’s name, or jointly in Plaintiffs and Defendant’s names. The following accounts shall be included in this division of property:
(i) Brokerage account held in Plaintiffs name at Fidelity Investments^]
(ii) Brokerage account held jointly in Plaintiffs and Defendant’s names at Fidelity Investments.
[505]*505(iii) Individual retirement account held in Plaintiffs name at Fidelity Investments.
(iv) Individual retirement account held in Defendant’s name at Fidelity Investments.
(v) Brokerage account held in Plaintiffs name at Salomon Smith Barney.
(vi) Individual retirement account held in Plaintiffs name at Salomon Smith Barney.
For the purposes of division, said accounts shall be valued as of October 16, 2001, after deducting all call options and margin calls. Plaintiff shall transfer to Defendant stocks and funds equal to one-half of the value of the total securities as of the. date of valuation. Plaintiff shall have the right to pay off all call options and margin calls before transferring said stocks. Plaintiff shall have the right to choose which stocks shall be transferred to Defendant as long as the value of the stocks transferred equals the amount due to Defendant as of the date of valuation. Plaintiff shall also have the right to deduct from Defendant’s share of the stocks, the amount of the equalization payment due to Plaintiff as provided in under paragraph 6.J below and the $10,000 that previously had been advanced to Defendant for costs and fees herein as provided in paragraph 10, below. Defendant shall establish a brokerage account, if she does not already have one, and shall provide Plaintiff with account information necessary to effect the transfer of securities.
J. Equalization Payment. Defendant shall pay to Plaintiff as an equalization payment under this Decree, the sum of $150,000. In effecting property division, this sum shall be credited to Plaintiff at the time of the division of the securities under paragraph 6.1 above, and Plaintiff shall be entitled to deduct $150,000 worth of stock from the shares that are to be transferred to Defendant pursuant to said paragraph.
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13. ENFORCEMENT. ... The Family Court shall have continuing jurisdiction over the parties and their property to enforce and implement the provisions of this Decree.

As of October 16, 2001, the aforementioned date of valuation, the securities accounts were valued as follows:

(i) Brokerage account held in Plaintiffs name at Fidelity Investments: $523,168.10
(ii) Brokerage account held jointly in Plaintiffs and Defendant’s names at Fidelity Investments: $35,945.43
(iii) Individual retirement account held in Plaintiffs name at Fidelity Investments: $73,507.42
(iv) Individual retirement account held in Defendant’s name at Fidelity Investments: $5,216.42
(v) Brokerage account held in Plaintiffs name at Salomon Smith Barney: $198,946.92
(vi) Individual retirement account held in Plaintiffs name at Salomon Smith Barney: $25,696.77

The “aggregate value” of the securities accounts, based on the above figures, was $862,481.06. One-half of that value is $431,240.53. Plaintiff was to be credited $160,000.00 ($150,000.00 as the “Equalization Payment” and $10,000.00 for funds previously advanced to Defendant). The “amount due to Defendant as of the date of valuation” is therefore $271,240.53 ($431,240.53 minus $160,000.00).

It appears that Plaintiff waited for the passage of the time allowed to appeal from the Divorce Decree before making the transfer of the stocks and funds. On April 16, 2002, Plaintiff transferred the following securities to Defendant:

Security 10/16/01 value 4/16/02 value
Bell South 19,500.00 17,020.00
Anh Busch 12,120.00 15,528.00
5th 3rd Banc 27,460.00 34,315.00
Geni Elec 19,235.00 16,550.00
Phil Morris 10,138.00 10,672.00
Merck 20,793.00 16,506.00
SBC Comm. 147,526.00 117,538.00
Exxon Mob 8,350.00 8,496.00
IRA 5,216.42 5,272.59
TOTAL 270,338.42 241,897.59

On October 9, 2003, Defendant filed a motion seeking an order requiring Plaintiff to [506]*506pay to Defendant the $29,342.94 shortfall ($271,240.53 minus $241,897.59), plus “the dividends paid on the designated securities, which Plaintiff received before the transfer date.”

On October 21, 2003, Plaintiff filed a motion to dismiss Defendant’s October 9, 2003 motion. Noting that more than one year had elapsed between the entry of the Divorce Decree on February 25, 2002 and Defendant’s October 9, 2003 motion, Plaintiff argued that Hawaii Revised Statutes (HRS) § 580-56(d) (1993) barred the family court from awarding Defendant “any share of [Plaintiffs] personal estate.”

HRS § 580-56 (1993) states, in relevant part, as follows:

Property rights following dissolution of marriage, (a) Every decree of divorce which does not specifically recite that the final division of the property of the parties is reserved for further hearing, decision, and orders shall finally divide the property of the parties to such action.

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Richter v. Richter, 122 P.3d 284, 108 Haw. 504, 2005 Haw. App. LEXIS 420 (hawapp 2005).

122 P.3d 284 (Richter v. Richter) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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