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NO. CAAP-20-0000468 

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's1 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, Defendant1 The Honorable Edmund D. Acoba presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000468

09-JUL-2024

08:07 AM

Dkt. 84 SO
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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-20-0000454, 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.
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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 
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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.
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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. 
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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: 

Rosa Flores, 

for Plaintiff-Appellant. 

Catherine Valenti, 

for Defendant-Appellee. 

/s/ Katherine G. Leonard 

Acting Chief Judge 

/s/ Clyde J. Wadsworth 

Associate Judge 

/s/ Sonja M.P. McCullen 

Associate Judge