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NO. CAAP-17-0000575

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

AGNES G. CANNON, Plaintiff-Appellee/Cross-Appellant,

v.

THOMAS R. CANNON, Defendant-Appellant/Cross-Appellee

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT

(CASE NO. 2DV161000023)

MEMORANDUM OPINION

(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)

Defendant-Appellant/Cross-Appellee Thomas R. Cannon

appeals, and Plaintiff-Appellee/Cross-Appellant Agnes G. Cannon

cross-appeals, from the Divorce Judgment entered by the Family

Court of the Second Circuit on July 3, 2017.1 For the reasons

explained below, we vacate the Divorce Judgment (including the

property division chart) in part and remand for further

proceedings.

BACKGROUND

Thomas and Agnes were married on March 23, 1984. Agnes

filed for divorce on January 19, 2016. They had no minor or

dependent children. Neither sought alimony. The Divorce

Judgment — which included findings of fact, conclusions of law, a

property division order, and a property division chart — was

1 The Honorable Lloyd A. Poelman presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000575

29-JUL-2022

08:08 AM

Dkt. 160 MO
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entered on July 3, 2017. Thomas filed a timely notice of appeal. 

Agnes filed a timely notice of cross-appeal. At issue is the

division and distribution of the parties' marital estate.

Thomas's opening brief raises five issues:2

"a. The trial [sic] Court erred when it gave

Thomas only a $10,000 deduction — as Category 1

property — in the Kekaulike property before it

awarded both parties a 50/50 split (as category 5

property) of the equity in or the FMV [fair market

value] of the Kekaulike property."

"b. The trial [sic] Court erred when it did

not rule whether the facts or the circumstances of

the parties present any VARCs warranting a

deviation from the partnership model division of

assets (as set forth in the trial [sic] Court's 

PDC [property division chart]); if said deviation

were warranted, the Trial Court erred by not

itemizing those considerations and deciding the

extent of the said deviation.

"c. The trial [sic] Court erred when it

valued Agnes' [sic] 401k [sic] account at $198,000

at the time of trial."

"d. The trial [sic] Court erred when it

refused to hear evidence regarding a verbal

premarital agreement that was made, adhered to

during the marriage and that was referred to

during the marriage."

"e. The trial [sic] Court erred by not

giving Thomas enough time to present his case-inchief."

Thomas challenges the family court's finding of fact no. 28.

Agnes's opening brief also raises five issues:3

"1. The Oluolu Property Was MPP [marital

partnership property] and Wrongly Characterized

MSP [marital separate property]";

2 Thomas's opening brief does not comply with Rule 28(b)(4) of the

Hawai#i Rules of Appellate Procedure (HRAP).

3 Agnes's opening brief does not comply with HRAP Rule 28(b)(4).

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"2. Capital Contributions Not Proven";

"3. The Family Court Failed to Consider

Equitable Deviation";

"4. Numerous Errors in the FOF [findings of

fact]"; and

"5. [Thomas] not entitled to a 10K MSP for

Kekaulike Property[.]"

Agnes challenges the family court's findings of fact nos. 25, 26,

27, 29, 34, and conclusion of law no. 10.

STANDARDS OF REVIEW

The family court's findings of facts are reviewed under

the clearly erroneous standard; conclusions of law are reviewed

de novo under the right/wrong standard. Gordon v. Gordon, 135

Hawai#i 340, 348, 350 P.3d 1008, 1016 (2015).

The family court's final division and distribution of

the estate of the parties is reviewed for abuse of discretion,

applying the factors set forth in Hawaii Revised Statutes (HRS)

§ 580–47 and marital partnership principles. Gordon, 135 Hawai#i

at 348, 350 P.3d at 1016. The family court's determination of

whether facts present equitable considerations authorizing a

deviation from the marital partnership model division is a

question of law reviewed under the right/wrong standard of

appellate review. Id.

DISCUSSION

Marital Partnership Principles

Hawai#i follows the marital partnership model. "Under

the Marital Partnership Model, marriage is a partnership to which

both parties bring their financial resources as well as their

individual energies and efforts. In divorce proceedings

regarding division and distribution of the parties' estate,

partnership principles guide and limit the range of the family

court's choices." Hamilton v. Hamilton, 138 Hawai#i 185, 206,

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378 P.3d 901, 922 (2016) (cleaned up). The family court has wide

discretion to divide marital partnership property according to

what is "just and equitable" based on the facts and circumstances

of each case. Id. at 206, 378 P.3d at 922 (citing HRS

§ 580–474).

The marital partnership model distinguishes between

property that is brought into the marriage, property that is

separately acquired by one spouse during the marriage, and all

other marital property. The family court assigns values to

marital partnership property using five categories:

Category 1 includes the net market value of

property separately owned by a spouse on the date

of marriage; these values are repaid to the

contributing spouse absent equitable

considerations justifying a deviation.

Category 2 includes the increase in the net market

value of Category 1 property during the marriage;

these values are divided equally absent equitable

considerations justifying a variation.

Category 3 includes the net market value of

property separately acquired by gift or

inheritance during the marriage; these values are

repaid to the contributing spouse absent equitable

considerations justifying a deviation.

Category 4 includes the increase in the net market

value of Category 3 property during the marriage;

these values are divided equally absent equitable

considerations justifying a variation.

4 HRS § 580–47 (2006 & Supp. 2016) provides, in relevant part:

Support orders; division of property. (a) Upon granting a

divorce . . . the court may make any further orders as shall

appear just and equitable . . . (3) finally dividing and

distributing the estate of the parties, real, personal, or

mixed, whether community, joint, or separate . . . . In

making these further orders, the court shall take into

consideration: the respective merits of the parties, the

relative abilities of the parties, the condition in which

each party will be left by the divorce, the burdens imposed

upon either party for the benefit of the children of the

parties, the concealment of or failure to disclose income or

an asset, or violation of a restraining order issued under

section 580-10(a) or (b), if any, by either party, and all

other circumstances of the case.

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Category 5 includes the net market value of the

remaining marital estate at the conclusion of the

evidentiary part of the trial; these values are to

be divided equally absent equitable considerations

justifying a deviation.

Gordon, 135 Hawai#i at 349–50, 350 P.3d at 1017–18 (emphasis

added). The marital partnership model requires that the family

court: (1) find the facts necessary for categorization of the

properties and assignment of the relevant net market values;

(2) identify any equitable considerations justifying deviation

from an equal distribution; (3) decide whether there will be a

deviation and, if so; (4) decide the extent of any deviation. 

Id. at 350, 350 P.3d at 1018.

HRS § 580–47(a) requires that the family court focus on

the present and the future, not the past; that is, deviation from

the marital partnership model should be based primarily on the

current and future economic needs of the parties rather than on

punishing one party for misconduct. Gordon, 135 Hawai#i at 353,

350 P.3d at 1021; see also Selvage v. Moire, 139 Hawai#i 499,

510, 394 P.3d 729, 740 (2017) (noting that "a family court's

property division is an abuse of discretion if it considers one

spouse's misconduct to be a 'valid and relevant consideration,'

instead of considering 'the factors required by HRS § 580-47'")

(brackets omitted) (citing Gordon, 135 Hawai#i at 347, 350 P.3d

at 1015).

Kekaulike Property

Thomas's point a. and Agnes's point 5. concern real

property referred to by both parties as the "Kekaulike Property." 

The family court made the following findings of fact, which

neither party contests and are therefore binding on appeal:5

3. [Before the marriage, Thomas]'s mother

transferred a large property in . . . Kula, Hawaii . . . to

5 Unchallenged findings of fact are binding on appeal. In re Doe,

99 Hawai#i 522, 538, 57 P.3d 447, 463 (2002) (citing Poe v. Haw. Lab. Rels.

Bd., 97 Hawai#i 528, 536, 40 P.3d 930, 938 (2002)).

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her three children. [Thomas] and his two siblings agreed

and contracted to subdivide the property into three lots —

with each sibling to receive one property. [Thomas]'s lot

is located at 1383 Kekaulike Avenue . . . (hereinafter "the

Kekaulike property"). When the property was subdivided, the

three siblings signed legal documents to have the property

subdivided and deemed "farm property." Then, they conveyed

each of the three lots to the specific sibling receiving it. 

On February 2, 1989 [(after the marriage), Thomas] and his

two siblings conveyed the Kekaulike property to [Agnes] and

[Thomas].

. . . .

13. Alan Shishido, who is certified as a real

property appraiser and who was qualified by this Court as an

expert in real property appraisals, testified on behalf of

[Thomas]. . . .

14. . . . Paul Lander, also a certified real estate

property appraiser and who was also certified by this Court

as an expert in real property appraisals, testified on

behalf of [Agnes]. . . .

. . . .

22. Mr. Shishido testified that the current FMV

[fair market value] of the Kekaulike property is $475,000. 

He based said testimony on an appraisal report he compiled

and that was admitted into evidence. His uncontested

testimony was that the FMV of the Kekaulike property as of

February 2, 1989 (the date [Agnes]'s name was added to the

property) was $140,000. This testimony was based on another

appraisal report Mr. Shishido prepared and that was admitted

into evidence.

23. Mr. Lander testified that the current FMV of the

Kekaulike property is $515,000. Said testimony is based on

an appraisal report Mr. Lander compiled and that was

admitted into evidence. But Mr. Shishido testified that

Mr. Lander's appraisal was defective and unreliable. Mr.

Lander's report stated that the Kekaulike property was

residential and that there was no agricultural or ranching

activities thereon. The Kekaulike property has always been

zoned agricultural, however, and [Thomas] was and is raising

goats on that property. The pictures Mr. Lander included in

his report of the Kekaulike property were taken from the MLS

listing, not taken by him. Mr. Lander's appraisal report

also said that there are two dwellings on the Kekaulike

property. In reality, there are only two small open-sided

goat houses on the property. [Thomas]'s uncontested

testimony was that he himself built and constructed these

two goat houses. The said appraisal report contained a

picture of a "street scene" supposedly abutting the

Kekaulike property. But, as Mr. Shishido testified, the

street scene was at least a half mile away. Mr. Shishido

postulated that Mr. Lander may have been looking at the

wrong property.

24. Mr. Shishido's testimony was credible. Mr.

Shishido's appraisal report concerning the Kekaulike

property — and that was admitted into evidence — is

credible, more so than Mr. Lander's report. Mr. Lander's

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report has too many unanswered questions. Accordingly, the

current value of the Kekaulike property is $475,000.

(emphasis added).

Thomas's statement of the points of error does not

specifically challenge the family court's conclusion of law

no. 10:

10. The Kekaulike property is deemed Marital

Partnership Property. The current FMV of the Kekaulike

property is $475,000, with an offset to [Thomas] of $10,000. 

The balance of said amount is Category 5 property. 

Accordingly, $465,000 from the current FMV of the Kekaulike

property is Category 5 property.

Thomas argues, however, that the family court erroneously

"credited" him only $10,000 for the Kekaulike Property. 

Notwithstanding Thomas's failure to comply with HRAP

Rule 28(b)(4), we address his argument because Agnes also

challenges conclusion of law no. 10; she argues that Thomas

should not have received any credit.

The Divorce Judgment (which includes the family court's

findings of fact, conclusions of law, and property division

chart) attributes $10,000 of the value of the Kekaulike Property

as a gift received by Thomas during the marriage. The finding is

clearly erroneous. The family court's uncontested finding of

fact was Thomas and his two siblings jointly owned a large parcel

of land (the Kula Property) as tenants in common before Thomas

and Agnes were married. Thus, the value of Thomas's undivided

interest in the Kula Property on the date he and Agnes were

married was a Category 1 value, which was to be repaid to Thomas

absent equitable considerations justifying a deviation. The

record does not contain any evidence about the Category 1 value

of Thomas's undivided interest in the Kula Property.

After Thomas and Agnes were married, the Cannon

siblings subdivided the Kula Property into three lots, with each

sibling to receive one lot. The Cannon siblings transferred

title to Thomas's lot (the Kekaulike Property) to Thomas and

Agnes during their marriage. The difference between the value of

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Thomas's undivided interest in the Kula Property on the date of

his and Agnes's marriage and the date the Kula Property was

subdivided (and the Kekaulike Property conveyed to Thomas and

Agnes) was a Category 2 value; that value should have been

divided equally absent equitable considerations justifying a

variation.6

The family court correctly classified the Kekaulike

Property as a Category 5 asset because Thomas and Agnes acquired

title as tenants by the entirety during their marriage. The

value of the Category 5 asset when it was acquired by the marital

partnership was, according to finding of fact no. 22, $140,000. 

The value of that asset on the date of divorce was, according to

finding of fact no. 24, was $475,000. The increase in value of

$335,000 was the Category 5 value that should have been divided

equally absent equitable considerations justifying a variation.

For the foregoing reasons, conclusion of law no. 10 was

wrong. We vacate it, and the related provisions in the Divorce

Judgment (including the property division chart), and remand to

the family court for further proceedings.

Equitable Considerations

Thomas's point b. and Agnes's point 3. both contend

that the family court erred by failing to consider equitable

deviation. Thomas requested equitable deviation in his proposed

finding of fact no. 29 and alternative property division charts. 

The family court adopted one of Thomas's proposed property

division charts, "with certain modifications." But nothing in

the Divorce Judgment (including the findings of fact and

conclusions of law) indicates that the family court engaged in

6 The $140,000 fair market value of the Kekaulike Property when it

was acquired by Thomas and Agnes does not necessarily equate to the Category 1

or Category 2 values of Thomas's undivided interest in the Kula Property. 

Among other things, the value of Thomas's undivided interest may have changed

when the Kula Property was subdivided, or between the time of the subdivision

and the conveyance of the Kekaulike Property to Thomas and Agnes (and,

presumably, the conveyance of the other two subdivided lots of the Kula

Property to Thomas's siblings and their respective spouses).

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the process required by Gordon. 135 Hawai#i at 350, 350 P.3d at

1018. We vacate the property division chart and remand to the

family court for further proceedings.

Agnes's 401(k) Account

Thomas's point c. challenges the family court's finding

of fact no. 28:

28. [Agnes]'s 401k [sic] account with First Hawaiian

Bank is ten years-old and thus is entirely Category 5

property. In her Asset & Debt Statement, filed herein in

January of 2017 [sic], her said 401K [sic] account had

$230,000. In her Asset & Debt Statement, filed herein on

March 10, 2017, [Agnes] stated the said 401k [sic] account

contained only $198,000. In her deposition, [Agnes]

testified that she withdrew nothing from said account but

that it was devalued because of the stock market.

The Divorce Judgment's property division chart values the account

at $198,000.

Thomas argues:

The ambiguity of this FOF speaks for itself. If the

trial [sic] Court thinks that Agnes' [sic] earlier

accounting of her 4401k [sic] account's value was more

accurate when she first stated it — at a time when trial was

not looming — as it appears to indicate, then the trial

[sic] Court should have valued it as $230,000.

Finding of fact no. 28 is not ambiguous. Agnes's asset

and debt statement filed on January 19, 2016, listed the value of

her 401(k) plan at $230,000. Her asset and debt statement filed

on March 10, 2017, listed the value as $198,000. She testified

that the decrease in value was because the stock market had "gone

down since." She denied withdrawing any money. Thomas cites no

evidence in the record to the contrary. Finding of fact no. 28

is not clearly erroneous.

Premarital Agreement

Thomas's point d. contends that the family court "erred

when it refused to hear evidence regarding a verbal premarital

agreement[.]" Thomas's statement of the points of error does not

identify where in the record the alleged error occurred, as

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required by HRAP Rule 28(b)(4). Thomas filed a trial memorandum

arguing that Agnes orally promised, before their marriage, "that

she would not claim any of his assets if the marriage did not

work-out [sic]. She implied that she would only claim what she

herself earned during the marriage." However, Thomas does not

cite where in the trial record he offered evidence of a verbal

premarital agreement, or where an objection to the proffer of

such evidence was sustained. We are not obligated to search the

record for information that should have been provided by Thomas. 

Haw. Ventures, LLC v. Otaka, Inc., 114 Hawai#i 438, 480, 164 P.3d

696, 738 (2007) (explaining that an appellate court "is not

obligated to sift through the voluminous record to verify an

appellant's inadequately documented contentions") (first quoting

Lanai Co. v. Land Use Comm'n, 105 Hawai#i 296, 309 n.31, 97 P.3d

372, 385 n.31 (2004); and then citing Miyamoto v. Lum, 104

Hawai#i 1, 11 n.14, 84 P.3d 509, 519 n.14 (2004)). We decline to

address this point of error, which was not properly preserved or

presented.

Trial Management

Thomas's final point of error contends that the family

court "erred by not giving Thomas enough time to present his

case-in-chief." At the beginning of the evidentiary hearing on

March 16, 2017, the family court informed the parties: "[W]e have

this set for a full day. Both sides, we have enough time that

both sides will have 135 minutes for direct, cross and closing

arguments." At the end of the day the family court gave each

side one additional hour and the evidentiary hearing was

continued to April 11, 2017.

On April 11, 2017, the family court received additional

evidence and continued the evidentiary hearing to April 27, 2017. 

On April 27, 2017, the family court received additional

evidence, ordered the parties to submit their proposed divorce

decree, updated property division charts, and findings of fact

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and conclusions of law by May 8, 2017. The parties were to

return on May 17, 2017, for the court's ruling.

The family court issued its oral ruling on May 17,

2017.

Thomas does not cite where in the trial record he moved

for additional time to examine witnesses or offer evidence; or

moved to continue the evidentiary hearing; or tendered an offer

of proof of what evidence he would adduce if given more time; or

otherwise preserved his contention that the family court erred by

not giving him enough time to present his case. We are not

obligated to search the record for this information. Otaka,

Inc., 114 Hawai#i at 480, 164 P.3d at 738. We decline to address

this point of error, which was not properly preserved or

presented. 

#Olu#olu Property

Agnes's point 1. contends that the family court erred

"when it characterized the Oluolu property as marital separate

property." She challenges findings of fact nos. 25 and 26:

25. [Thomas] owned a one-third interest in the

property located at 15/25 Oluolu Place, Kula, Hawaii 96790

(the "Oluolu property"). [Thomas]'s Mother had conveyed the

Oluolu property to him and his two siblings on December 31,

1984. In December of 2016, [Thomas] sold his interest in

the Oluolu property for $275,000. He deposited the funds

from this said sale into his Territorial Savings Bank

account, which had very little funds in it before that time. 

Said bank account was solely in [Thomas]'s name. [Agnes]

did not contribute to the maintenance or enhancement of said

bank account.

26. [Agnes]'s name was never on the Oluolu property

or on the Territorial Savings Bank account where [Thomas]

deposited his funds from the sale of his interest in the

Oluolu property. [Agnes] had nothing to do with the Oluolu

property. She did not participate in maintaining or in

improving the said property. She expended no funds to

maintain or improve the property. No evidence was presented

that any marital (Category 5) funds or efforts were spent on

maintaining or improving the Oluolu property.

Agnes asserts that the #Olu#olu Property should have

been categorized as Marital Partnership Property "subject to

division in [this] divorce proceeding" because the evidence

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establishes that, similar to the wife in Hamilton, she used

Marital Separate Property (in the form of a $20,000 gift she

claimed to have received from Thomas's mother) to "help[]

[Thomas] obtain ownership of the Oluolu property at a one quarter

[sic] interest[.]" Agnes's reliance on Hamilton is misplaced. 

In Hamilton, the wife argued that the family court

erred by characterizing the funds remaining in the husband's

inheritance account as Marital Separate Property. 138 Hawai#i at

202, 378 P.3d at 918. At trial, the wife's forensic accounting

expert testified pursuant to his report that a total of $463,455

had been paid for the husband's inheritance taxes. Id. The

family court included this amount as "Category 3 assets used for

marital purposes for which Husband is entitled to be repaid." 

Id. (cleaned up) (emphasis added). Although the husband's

inheritance was placed in a "separate" account, the Hamilton

court determined that "the inheritance cannot be classified as

Marital Separate Property" "if inheritances taxes are paid out of

Marital Partnership Property[.]" Id. The court noted that in

order for the funds remaining in the husband's inheritance

account to be Marital Separate Property, the $463,455 paid as

inheritance taxes had to be excluded from Category 3 Marital

Partnership Property. Id. at 203, 378 P.3d at 919. 

The record in this case shows that the parties

presented conflicting evidence at trial pertaining to the

characterization of the #Olu#olu Property. On appeal, Agnes

relies solely on the testimony of Thomas's sister, Patricia

Mazingo, to support her contention that the #Olu#olu Property

should have been characterized as Marital Partnership Property

because Agnes used a $20,000 gift from Thomas's mother to "help[]

[Thomas] obtain ownership of the Oluolu property at a one quarter

[sic] interest[.]". However, the family court determined that

Mazingo "was not credible": 

27. [Thomas]'s sister – Patty Mazingo – testified

twice in [Agnes]'s case-in-chief. To the extent that her

testimony was relevant and was adverse to [Thomas], Mrs.

Mazingo's testimony was not credible. When she testified on

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March 16, 2017, she at first denied that she harbored any

bad feeling toward [Thomas]. But only moments later, she

caught herself mid-sentence as she was blurting-out [sic]

that she was having problems with [Thomas]. She admitted

that she had a property dispute with [Thomas] concerning an

easement on his Kekaulike property.

(emphasis added). Evaluating the credibility of witnesses and

weighing the conflicting evidence lies in the sole province of

the trial court. See Fisher, 111 Hawai#i at 46, 137 P.3d at 360

("It is well-settled that an appellate court will not pass upon

issues dependent upon the credibility of witnesses and the weight

of evidence; this is the province of the trier of fact.")

(citation omitted). Thus, finding of fact nos. 25 and 26 are not

clearly erroneous; each is supported by substantial evidence in

the record, and we are not left with a definite or firm

conviction that the family court made a mistake. 

Capital Contributions

Agnes's point 2. argues that "capital contributions not

proven" under Hamilton. Despite Agnes's failure to comply with

HRAP Rule 28(b)(4)(C), we are able to glean from her opening

brief that she challenges findings of fact nos. 7, 9, and 10. 

See Dan v. State, 76 Hawai#i 423, 428, 879 P.2d 528, 533 (1994);

see also Marvin v. Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88,

94 (2012) ("[N]oncompliance with [HRPP] Rule 28 does not always

result in dismissal of the claims, and this court has

consistently adhered to the policy of affording litigants the

opportunity to have their cases heard on the merits, where

possible.") (cleaned up) (citations omitted). The family court

found:

7. [Thomas]'s father died in 1981. [Thomas]'s father

was the CEO and Chairman of the Board of Bank of Hawaii. He

owned many assets, including real properties. Around the

time of the said marriage, [Thomas] received cash, stocks

and bonds from his father's estate. He liquidated the

stocks and bonds. Including said liquidation, [Thomas]

received a total of slightly more than $40,000 from his

Father's estate. He deposited this sum in a Bank of Hawaii

account in his name that his father had set-up [sic] for him

years earlier. He used much of this money to improve the

Haiku property and the Kekaulike property. These capital

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improvements, along with the amount of [Thomas]'s father's

inheritance money spent thereon, include the following: 

$3,116.25 – building a gate at the Haiku property

$1,033.04 – for fencing the Haiku property

$3,999.43 – building and maintaining a water system

for the Haiku property 

$4,925.77 – legal expenses to secure and expand the

Haiku property 

$1,870.11 – building and maintaining a water system

for the Kekaulike Property

$366.40 [–] legal expenses to secure and define the

Kekaulike property

$15,311.00 – TOTAL

$13,074.49 of these said expenditures were invested in

improving the Haiku property and $2,236.51 of the said

expenditure[s] were invested in the Kekaulike property. The

total funds – as documented here – expended is $15,311.00. 

The total amount of funds expended on capital improvements

on the subject properties is probably much higher. [Thomas]

paid these expenses from said Bank of Hawaii account to pay

for these capital improvements.

. . . .

9. Once [Thomas] began receiving money from his

Mother's estate, he was able to do needed work to improve

both the Haiku property and the Kekaulike property. These

capital improvements, along with the expenses therefor, are

as follows: 

$40,007.38 – for photovoltaic heating system for 

 Haiku property

$20,272.91 – for elaborate fencing of the Haiku 

 property 

$13,877.29 – for elaborate fencing of the Kekaulike property

 $2,957.72 – for a gate for the Haiku property 

 driveway

 $5,461.97 – for materials to improve the Haiku 

 property deck 

 $6,131.45 – for a wood-burning stove heater on the 

 Haiku property 

 $3,953.10 – for a storage facility on the Haiku 

 property

 $7[,]443.98 – for an improved water system for the 

 Haiku property 

 $4,919.20 – for legal expenses to secure and define 

 the Kekaulike property 

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 $4,675.00 – for legal expenses to secure and expand 

 the Haiku property 

 $2,157.65 – for an improved water system on the 

 Kekaulike property 

$111,857.65 – TOTAL

$90,903.51 of this said amount was spent on improving the

Haiku property and $20,954.14 of this said amount was spent

on improving the Kekaulike property. 

10. Upon receiving inheritance from his Mother,

[Thomas] was also able to pay-off the principal mortgage on

the Haiku property for $195,852.17 and the principal on a

home equity loan on the Haiku property for $30,624[.]43, for

a total pay-off of $226,476.60. Said expenditures increased

the value of the marital estate.

As Agnes correctly notes, Thomas, as the partner

requesting repayment for his contribution to Marital Partnership

Property, bears "the burden of proving that he contributed

property to the marital partnership and of establishing the

property's value at the time of contribution." Hamilton, 138

Hawai#i at 203, 378 P.3d at 919 (citing Mark IV Pictures, Inc. v.

Comm'r., 969 F.2d 669, 672 (8th Cir. 1992)). She maintains that

the Quicken ledgers in Thomas's exhibits "EEE" and "FFF" are:

(1) improper evidence; and (2) insufficient to prove that Thomas

contributed property to the marital partnership and to "establish

the value of any property for which he should get credit." Agnes

failed to properly preserve these arguments.

1. Improper Evidence

 

As to Agnes's argument that Thomas's exhibits "EEE" and

"FFF" constitute improper evidence, the record shows that Agnes's

counsel objected to the admission of Thomas's exhibits "EEE" and

"FFF" into evidence. Agnes's counsel stated the basis for his

objection to exhibit "EEE": 

[Thomas's Counsel]: I'd like to introduce [Thomas]'s

Exhibit E into evidence. 

[Agnes's Counsel]: Objection, foundation, what we

talked about, your Honor. This is somebody's personal

Quicken books. Everybody has some. There's nothing on

here. The last ten minutes was completely irrelevant.

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THE COURT: Do you mean Exhibit E -- EEE? 

[Thomas's Counsel]: Yes.

[Agnes's Counsel]: It shows different accounts and

different ways of entering and it doesn't say one word about

inheritance on there. And that's his own writing, your

Honor.

(emphasis added). Agnes's counsel also explained the basis for

his objection to the admission of exhibit "FFF":

[Thomas's Counsel]: Okay. Okay, your Honor. I move,

ah, to admit FFF into evidence.

THE COURT: Okay. Any objection to Court receiving

FFF?

[Agnes's Counsel]: Yes, your Honor. And I -- I want

to make a running objection that all Quicken accounts should

not be received into evidence, your Honor.

 THE COURT: And is the objection the same as you had on

the other Quicken -- 

[Agnes's Counsel]: It's on foundation, your Honor.

(emphasis added). Both exhibits "EEE" and "FFF" were admitted

into evidence over Agnes's objection.

The April 11, 2017 hearing transcript (which is

incorrectly dated May 11, 2017) shows, and Agnes confirms in her

opening brief, that Agnes's counsel objected generally for

"foundation" to both exhibit "EEE" and "FFF[.]" "[A] 'lack of

foundation' objection generally is insufficient to preserve

foundational issues for appeal because such an objection does not

advise the trial court of the problems with the foundation." 

State v. Long, 98 Hawai#i 348, 353, 48 P.3d 595, 600 (2002). 

However, "an exception is recognized when the objection is

overruled and, based on the context, it is evident what the

general objection was meant to convey." Id. 

Although the family court overruled Agnes's

"foundation" objections, the exception does not apply here. It

is not evident from the context what these general objections

were meant to convey. Agnes's arguments on appeal further reveal

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that her counsel could have been objecting to exhibits "EEE" and

"FFF" on multiple bases, including: 

These ledgers are improper and the date in the upper left

suggests, such were created for the trial. Such documentary

evidence is improper because it is not corroboration because

it was created by a party litigant. It is also hearsay as

an out-of-court statement, and it is cumulative because it

echoes what [Thomas] seeks to testify about. . . . 

Corroboration has its validity in the fact that a none [sic]

party has created it or validated it, timely, to reflect

payment or status of an account. Additionally, there is

some question as to whether [Thomas] knows how to use

Quicken and whether these ledgers were created for this

litigation.

Accordingly, we cannot conclude that from the context it was

evident what Agnes's general "foundation" objections to exhibits

"EEE" and "FFF" were meant to convey. Agnes failed to preserve

the evidentiary argument she is now making on appeal.

2. Sufficiency of Exhibits "EEE" and "FFF"

Thomas testified that exhibit "EEE" was "a printout of,

ah, a report made by my Quicken, ah, financial program" and that

exhibit "FFF" was "printouts of reports from my Quicken program

regarding, ah, monies received from my dad's inheritance." 

Agnes argues that the "Quicken ledgers . . . do not substantiate

valid contribution to, or investment in [Marital Partnership

Property.]" To support this argument, she maintains that Thomas

should instead have presented the following evidence to satisfy

his burden under Hamilton: "canceled checks, statements showing

payment, invoices of charges, or other documents providing

corroboration other than his self-created reports." Agnes,

however, failed to cite any authority for the position that an

authenticated printout of a report from a financial accounting

application is inadmissible, or that only certified financial

statements or bank documents are admissible under these

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circumstances. We therefore deem this argument waived.7 HRAP 

Rule 28(b)(7) (the opening brief must contain "[t]he argument,

containing the contentions of the appellant on the points

presented and the reasons therefor, with citations to the

authorities . . . relied on. . . . Points not argued may be

deemed waived.") (emphasis added). 

Additional Challenged Findings of Fact

Agnes's point 4. contends that "there [are] a number of

errors in the findings of fact which require them to be vacated." 

She challenges findings of fact nos. 27, 29, and 34, which

provide (with the challenged portions of these findings in bolditalics): 

7 Hamilton establishes that "expenditures made from a Marital

Separate Property account qualify for characterization as Category 3 Marital

Partnership Property only where they are in the nature of a contribution to or

an investment in Marital Partnership Property." 138 Hawai#i at 204, 378 P.3d

at 920. Expenditures that qualify as contribution to or investment in Marital

Partnership Property investment funds or assets include: 

expenditures for down payments, improvements, or toward the

principal of loans related to Marital Partnership Property

real estate, expenditures for Marital Partnership Property

stock or business interests, or other advances or payments

toward Marital Partnership real or personal property or

Marital Partnership investments.

Id. at 203, 378 P.3d at 919. Expenditures that do not qualify, unless they

are in the nature of contribution to or investment in Marital Partnership

Property, include payments for "a spouse's or children's educations, meals,

trips, socializing, entertainment, requirements for daily living, etc." Id. 

Even if this argument is not deemed waived, we would be able to

conclude that findings of fact nos. 7, 9, and 10 are supported by substantial

evidence and not clearly erroneous. The family court, in this case,

categorized both the Haiku Property and Kekaulike Property as Marital

Partnership Property. Finding of fact no. 7 concerned funds Thomas inherited

from his Father to pay for "improvements" to both the Haiku Property and the

Kekaulike Property. Finding of fact no. 9 then pertained to funds Thomas

inherited from his Mother's estate to pay for "improvements" on the Haiku

Property and Kekaulike Property. Finding of fact no. 10 addressed Thomas's

use of funds obtained from his Mother's estate to pay off the "principal of

loans related to" the Haiku Property and Kekaulike Property. Hamilton, 138

Hawai#i at 203, 378 P.3d at 919. The expenditures in findings of fact nos. 7,

9, and 10 qualify as contributions to or investment in the Haiku Property and

Kekaulike Property as Marital Partnership Property and are consistent with the

amounts provided in exhibits "EEE" and "FFF"; Thomas is entitled to repayment

for his contribution to Marital Partnership Property.

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27. [Thomas]'s sister – Patty Mazingo – testified

twice in [Agnes]'s case-in-chief. To the extent that her

testimony was relevant and was adverse to [Thomas], Mrs.

Mazingo's testimony was not credible. When she testified on

March 16, 2017, she at first denied that she harbored any

bad feeling toward [Thomas]. But only moments later, she

caught herself mid-sentence as she was blurting-out [sic]

that she was having problems with [Thomas]. She admitted

that she had a property dispute with [Thomas] concerning an

easement on his Kekaulike property.

. . . .

29. [Thomas]'s two cemetery plots are located at a

family grave. Both plots were purchased with money from

[Thomas]'s father's inheritance and, as such, are Marital

Separate Property. [Thomas]'s two Lloyd Sexton paintings

and one Peggy Hopper print (inherited by [Thomas]) are

Marital Separate Property. [Agnes] did not expend any work

or money to maintain or enhance these assets.

. . . . 

34. In [Thomas]'s exhibit "kkk," the items marked

"Inherited" are Category 3 property, the items marked "preowned" are Category 1 property and the items marked "gifted"

are Category 3 property and, as such, are [Thomas]'s Marital

Separate Property. The remainder of the items pictured in

[Thomas]'s Exhibit "kkk" (e.g. the items purchased when the

parties visited Russia) are Marital Partnership Property –

Category 5 and are subject to a "pick-auction" as set forth

herein. These Category 5 items as well as all other

personal items possessed by either party – except those

disposed of in the Property Division Chart, attached to

Exhibit "A" as Attachment "1" [–] will be distributed in an

equal manner in a "pick auction" as described herein. The

most equitable manner to distribute these Category 5

personal property items is to have a "pick auction," where

the parties have a coin toss. The winner of the coin toss

gets to pick whatever items he or she wants. The other

party gets to pick two items. After that, the parties

alternate, each taking a turn to pick one item until all

items have been "picked." Said "pick[-]auction" shall occur

in a neutral location as agreed upon by the parties. 

1. Finding of fact no. 27

Agnes first argues, without citing authority, that

finding of fact no. 27 is clearly erroneous because there was "no

testimony or evidence to substantiate any finding that [Mazingo]

was not credible." This finding of fact, however, was

specifically based upon the family court's evaluation of "the

credibility of [Mazingo's] testimony" in considering her

admission that "she was having problems with [Thomas]" and her

admission that "she had a property dispute with [Thomas]

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concerning an easement on his Kekaulike property." "[I]t is not

the province of the appellate court to reassess the credibility

of witnesses[,]" In re Doe, 95 Hawai#i 183, 197, 20 P.3d 616, 630

(2001) (citation omitted), such as Mazingo; "this is the province

of the family court as the trier of fact[,]" Fisher, 111 Hawai#i

at 46, 137 P.3d at 360 (citation omitted).

 2. Finding of fact no. 29

 

Agnes asserts that "[a] review of the trial testimony

does not provide sufficient evidence that [the two cemetery plots

were] purchased with inheritance money, and there was no mention

throughout the trial." In response, Thomas states that he

"testified that he purchased two cemetery plots – one before the

marriage and the other . . . either before the marriage or

shortly thereafter from his father's inheritance." He cites to

the April 11, 2017 transcript (which is incorrectly dated May 11,

2017), which provides: 

Q. Okay. You have two cemetery plots. Where did

they come from?

A. I -- I believe I bought one before we were

married and I got one afterwards.

Q. You believe. . . . [H]ow sure are you that you

purchased it prior to the marriage?

A. Maybe 80 percent sure.

Q. Okay. And, ah, going -- when -- when did you

purchase it, if you know?

A. Say again. 

Q. When did you purchase that other one, if you

know?

A. Ah, soon after we got to Maui, got back to Maui. 

Ah, around 1985, '86.

Q. Okay. And where did you get the money to buy

it? 

A. From my dad's, ah, inheritance.

Contrary to Agnes's assertion, Thomas's testimony constitutes

substantial evidence to support the challenged portion of finding

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of fact no. 29 and the finding is not clearly erroneous. See

Fisher, 111 Hawai#i at 46, 137 P.3d at 360. 

3. Finding of fact no. 34

As stated, Agnes contends that the following portion of

finding of fact no. 34 is clearly erroneous:

34. In [Thomas]'s exhibit "kkk," the items marked

"Inherited" are Category 3 property, the items marked

"pre-owned" are Category 1 property and the items marked

"gifted" are Category 3 property and, as such, are

[Thomas]'s Marital Separate Property.

She asserts that the family court's decision to include the "preowned" and "gifted" items as Marital Separate Property conflicts

with its April 27, 2017 preliminary ruling, which, Agnes

interprets to require "that items [Thomas] claimed to be

inherited would stay [Thomas]'s as category 1 property, and that

everything else was category 5 property to be split at a 'pick'

auction." She also asserts that the family court's decision to

include the "pre-owned" and "gifted" items as Marital Separate

Property is not supported by substantial evidence.

The issue on appeal is not whether the challenged

portion of finding of fact no. 34 conflicts with the family

court's April 27, 2017 preliminary ruling; as noted in Fisher,

the issue on appeal is whether there is "substantial evidence to

support the finding[.]" Fisher, 111 Hawai#i at 46, 137 P.3d at

360. Agnes contends that there is no substantial evidence to

support the family court's categorization of the "pre-owned" and

"gifted" items as Marital Separate Property. Thomas, in

response, argues that exhibit "KKK" supports the family court's

characterization of "pre-owned" and "gifted" items as Marital

Separate Property. Thomas's exhibit "KKK" does not constitute

substantial evidence to support the family court's

characterization of the "pre-owned" and "gifted" items as Martial

Separate Property.

The record reveals that the family court initially

sustained Agnes's objection to the admission of exhibit "KKK"

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into evidence. However, following Mazingo's testimony regarding

the distribution of their mother's personal items, Thomas's

counsel renewed his request to admit exhibit "KKK" into evidence:

[Thomas's Counsel]: Your Honor, one further thing. 

I -- would the Court be inclined to accept, ah, Exhibit KKK

into evidence, given [Mazingo's] testimony.

[Agnes's Counsel]: Your Honor, I didn't offer it.

THE COURT: No, he is offering it now. Any objection

to the Court receiving KKK into evidence? 

[Agnes's Counsel]: Yes, your Honor. I mean it depends

on what -- what's the purpose. When you receive something

into evidence, there's a -- there's a reason for it.

 Is he -- is he offering it that to -- to show that his

client is not entitled to anything in the inheritance? Then

I'll accept it as, you know, it'll be -- I -- I would have

no objection to it being received into evidence. 

[Thomas's Counsel]: Well, your Honor, ah, the Court

will decide whether it was, um -- whether it was a 50/50

between Agnes and Thomas or whether it was just given to

Thomas. 

THE COURT: So this is for the items that are marked as

inherited? 

[Thomas's Counsel]: Yes. 

THE COURT: And as far as those purchased with

inheritance money, not?

[Thomas's Counsel]: I guess not.

 

THE COURT: Okay. So over objection the Court will

receive KKK for the purpose only of those items marked as

inherited and what the Court does with that is to be seen.

(emphasis added). The transcript confirms that the family court

admitted exhibit "KKK" into evidence "only [for] those items

marked as inherited[.]" Contrary to Thomas's argument, the

family court did not admit exhibit "KKK" for the items marked

"pre-owned" or "gifted[.]" There was no substantial evidence to

support the portion of finding of fact no. 34 in which the family

court found "the items marked 'pre-owned' are Category 1 property

and the items marked 'gifted' are Category 3 property and, as

such, are [Thomas]'s Marital Separate Property." This portion of

finding of fact no. 34 is clearly erroneous because there is no

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substantial evidence upon which the family court based this

determination.

In addition, the family court's conclusions of law are

"freely reviewable for their correctness." Hamilton, 138 Hawai#i

at 197, 378 P.3d at 913 (citation omitted). We vacate the

portions of conclusion of law no. 12 and paragraph 8 of the

property division order which state:

In [Thomas]'s exhibit "kkk" (that was admitted into

evidence) the items marked "Inherited" are Category 3

property, the items marked "pre-owned" are Category 1

property and the items marked "gifted" are Category 3

property and, as such, are [Thomas]'s Marital Separate

Property.

This portion of the conclusion and property division order are

not supported by the family court's findings and do not reflect

an application of the correct rule of law. We therefore vacate

in part finding of fact no. 34, conclusion of law no. 12, and

paragraph 8 of the property division order; and remand to the

family court for further proceedings.

CONCLUSION

For the foregoing reasons, we vacate the Divorce

Judgment (including the property division chart) in part and

remand to the family court for further proceedings not

inconsistent with this memorandum opinion.

DATED: Honolulu, Hawai#i, July 29, 2022.

On the briefs:

/s/ Keith K. Hiraoka

Kyle B. Coffman, Presiding Judge

for Defendant-Appellant/

Cross-Appellee. /s/ Clyde J. Wadsworth

Associate Judge

Matthew S. Kohm,

for Plaintiff-Appellee/ /s/ Karen T. Nakasone

Cross-Appellant. Associate Judge

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