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NO. CAAP-16-0000365

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JOE CROFFORD, Plaintiff-Appellee/Cross-Appellant,

v.

KRISTI ADACHI, Defendant-Appellant/Cross-Appellee

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(FC-D NO. 13-1-7625)

MEMORANDUM OPINION

(By: Ginoza, Chief Judge, Hiraoka, and Nakasone, JJ.)

Defendant-Appellant/Cross-Appellee Kristi Adachi

(Adachi) appeals from the "Decree Granting Absolute Divorce and

Awarding Child Custody" (Divorce Decree), entered on April 26,

2016, by the Family Court of the First Circuit (family court).

1

On appeal, Adachi contends that the family court erred in its

Divorce Decree by refusing to enforce a "Marital Agreement" and a

"Marital Agreement Addendum" (Addendum) executed between Adachi

and Plaintiff-Appellee/Cross-Appellant Joe Crofford (Crofford)

during their marriage and prior to the divorce proceedings. The

Marital Agreement and Addendum address the division of property

between the parties in the event of divorce.

On cross-appeal, Crofford contends that the family

court abused its discretion in entering its "Order and Judgment

Regarding Defendant's Expenses Incurred responding to Plaintiff's 

1 The Honorable Darryl Y.C. Choy presided over the Divorce Decree. 

Electronically Filed

Intermediate Court of Appeals

CAAP-16-0000365

30-DEC-2020

08:40 AM

Dkt. 143 MO
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Motion to Reconsider Order of April 15, 2015, filed on April 21,

2015 and Motion for Allowance of Interlocutory Appeal filed on

April 21, 2015" (Order Assessing Attorney's Fees), which ordered

Crofford to pay $3,560.21 in legal expenses incurred by Adachi in

responding to two motions filed by Crofford. Crofford also

apparently challenges a number of the family court's findings of

fact and conclusions of law (FOFs/COLs) set out in the Divorce

Decree. However, as further discussed below, we disregard

Crofford's points of error pertaining to the family court's

FOFs/COLs because he fails to provide discernable argument

addressing these contentions in his opening brief. Thus, we only

address Crofford's point of error pertaining to the Order

Assessing Attorney's fees.

For the reasons discussed below, we vacate the family

court's Divorce Decree with respect to the property division

between the parties. We affirm the Order Assessing Attorney's

Fees against Crofford.

I. Background

Adachi and Crofford were married on July 24, 1999. The

parties did not execute a pre-nuptial agreement prior to their

marriage. Later in their marriage, Adachi indicated to Crofford

that she wanted to file for divorce after discovering that he had

engaged in extramarital affairs during their relationship. 

Crofford, however, pleaded with Adachi not to leave the marriage

and instead proposed that the parties sign a post-nuptial

agreement. Adachi agreed, and in March 2013, she consulted with

her legal counsel about drafting a Marital Agreement. 

Adachi's counsel prepared at least two drafts of a

Marital Agreement. Both drafts addressed, inter alia, the

division and distribution of certain property in the event of a

divorce, and included two schedules which listed the separately

owned property and debts of Adachi or her revocable trust, and

the separately owned property and debts of Crofford. Crofford

apparently refused to sign the first proposed version of the 

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Marital Agreement and did not make any edits or proposed

revisions to it. 

A second version of the Marital Agreement was presented

to Crofford that, inter alia, set forth their separate property,

upon which he made hand-written edits to portions of the

agreement and the attached schedules. This version of the

Marital Agreement was initialed by Adachi, but neither party

executed the document. Instead, the parties apparently drafted

an Addendum to address issues that were lined or struck out by

Crofford in the second version of the Marital Agreement. The

Addendum was primarily drafted by Crofford, but both parties had

an opportunity to review and revise the document before agreeing

to it. 

In the Addendum, Crofford made statements about his

failures in the marriage, and his commitment to making the

marriage work. The Addendum further states:

I ask my wife for forgiveness for all my sins and will

uphold my verbal, and now written promise to her regarding

agreeing to leave this marriage with honor and dignity

without monetary compensation if I an [sic] unable the [sic]

change my sinful ways. Specifically, have another affair;

either emotional or consummated, or physically harm Kristi.

The Addendum then addresses the allocation of certain property in

the event that Crofford was either unfaithful or physically

abusive to Adachi.2 In its conclusion, the Addendum states:

2 The portion of the Addendum which addresses specific property

provides, in relevant part:

The Sunreef 62 foot Catamaran Yacht with the Coast

Registered name Spartan Queen will remain the property [of]

Joe Crofford and will be put in Joe Crofford's trust with

Kristi Adachi named as the beneficiary in the event of Joe

Crofford's Death and will remain the property of the trust

in the event of a divorce with exception in the case of

infidelity and physical harm by Joe Crofford. At which time

the Ownership of the Yacht Spartan Queen will be transferred

to Kristi Adachi. 

The Penthouse 4501 located at One Waterfront Towers 415 South St.

will remain in Kristi Adachi's Trust with Joe Crofford named as

the Beneficiary.

In the event of divorce with the exception of infidelity or

(continued...)

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"[t]his is my Addendum to the Marital agreement to be upheld and

considered a part of the legal document." Adachi and Crofford

executed the Addendum in the presence of a notary public on June

24, 2013, and June 25, 2013, respectively.

In September 2013, the parties separated after Crofford

exhibited aggressive behavior towards Adachi, dragging her down

the stairs of their apartment. Crofford thereafter left the

residence and began staying on the catamaran yacht named Spartan

Queen, which was listed in the Addendum, Schedule B as Crofford's

separate property. 

On October 7, 2013, Crofford filed a complaint for

divorce against Adachi alleging that their marriage was

irretrievably broken. On September 4, 2014, Adachi filed a

motion for partial summary judgment seeking to enforce the

Marital Agreement and Addendum that she asserted were voluntarily

entered into by both parties and controlled the division and

distribution of the couple's property. On October 29, 2014, the

2(...continued)

physical harm by Joe Crofford, Joe Crofford will maintain

ownership of the Spartan Queen, which has been effectively

paid in full by Kristi. All monies invested in the yacht up

until November 2012 were contributions directly from money

earned through Kristi's business: Hawaiian Island ENT

Specialists (see attachment) and will be considered monetary

compensation for the years invested in this Marriage. I will

waive any separation of property rights; except as described

below and alimony.

All future income earned by Kristi with regards to her private

business; including Hawaiian Island ENT Specialists, Scottrade

account and any other future personal business ventures will

remain hers. All income earned by Joe through his LED business,

Hawaiian Island Luxury Yacht Charters, Scottrade account and any

other future business ventures will be his.

We will also both have to agree on all future financial

decisions to secure our financial future together. I accept

her proposal to place the proceeds from the sale of

apartment 425 South Street in a Trust under both of our

names. This money will represent the beginning of "Chapter

II" of our relationship. In the event of a divorce, any

monies gained or properties invested in will be split

equally between the two of us; with the exception of

infidelity and physical harm. 

(Emphases added). 

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family court denied Adachi's motion for partial summary judgment,

without prejudice, stating in the written order that "because

factual issues need to be determined to rule on this motion, the

Court finds that said motion is not properly set for summary

judgment." The case eventually proceeded to trial on January 11,

12, 19, and 26, 2016, where the parties continued to contest

whether the Marital Agreement and Addendum should be enforced.

On April 26, 2016, the family court entered its Divorce

Decree, in which it did not enforce the Marital Agreement and

Addendum in dividing the marital property. On August 1, 2016,

the family court entered its FOFs/COLs and made, inter alia,

numerous findings and conclusions pertaining to the Marital

Agreement and Addendum. The family court concluded that "the

Marital Agreement was agreed to with Husband's notations lined

out and subsequently [being] referred to in a signed addendum." 

The family court also found that Adachi had never coerced or

unduly influenced Crofford to sign the Addendum, nor was he under

duress when he signed the document. The family court further

concluded that Crofford violated the infidelity conditions in the

Addendum. 

However, the family court ultimately rejected the

Marital Agreement (and apparently the Addendum), concluding as

follows:

8. The Court rejects the Marital Agreement, however,

because the essence of the Marital Agreement violates the

statutory policy and principles of no fault divorce and

equitable distribution.

9. H.R.S. §580-47 gives to the family court the

discretion to divide marital property according to what is

just and equitable. When the directive to the court is to

do what is just and equitable in the circumstances, each

case must be decided upon its own facts and circumstances.

Gussin v. Gussin, 73 Haw. 470 (1992).

The family court then divided the marital property as set forth

in its Divorce Decree and the FOFs/COLs, based on what the family

court determined would be just and equitable, and without

enforcing the Marital Agreement and Addendum.

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II. Standards of Review

A. The Family Court's Decisions

"Generally, the family court possesses wide discretion

in making its decisions and those decisions will not be set aside

unless there is a manifest abuse of discretion". Kakinami v.

Kakinami, 127 Hawai#i 126, 136, 276 P.3d 695, 705 (2012)

(citations omitted). 

B. Award of Attorney's Fees

The family court's award of attorney's fees and costs

is reviewed for abuse of discretion. Hamilton v. Hamilton, 138

Hawai#i 185, 210, 378 P.3d 901, 926 (2016). The Hawai#i Supreme

Court has explained that "an award of attorney's fees is in the

sound discretion of the trial court, limited only by the standard

that it be fair and reasonable." Id. at 209, 378 P.3d at 925

(quoting Farias v. Farias, 58 Haw. 227, 233, 556 P.2d 1104, 1109

(1977)).

C. The Family Court's Findings of Fact and Conclusions of Law

The family court's findings of fact are reviewed under the

clearly erroneous standard. A finding of fact is clearly

erroneous when (1) the record lacks substantial evidence to

support the finding, or (2) despite substantial evidence in

support of the finding, the appellate court is nonetheless

left with a definite and firm conviction that a mistake has

been made. Substantial evidence is credible evidence which

is of sufficient quality and probative value to enable a

person of reasonable caution to support a conclusion.

The family court's conclusions of law are reviewed de novo.

Balogh v. Balogh, 134 Hawai#i 29, 38, 332 P.3d 631, 640 (2014)

(citations and internal quotation marks omitted). 

III. Discussion

A. Adachi's Appeal

On appeal, Adachi asserts that the family court erred

in refusing to enforce the Marital Agreement and Addendum

because: (1) the court was statutorily required to enforce the

Marital Agreement and the Addendum; (2) the Marital Agreement and

Addendum were valid contracts, and not otherwise unenforceable;

(3) the family court was not authorized to refuse to enforce the

Marital Agreement and Addendum and instead undertake its own

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"just and equitable" division of the marital estate; (4) Hawaii's

no-fault divorce standards do not preclude enforcement of the

Marital Agreement and the Addendum; and (5) Crofford voluntarily

entered into the post-marital contract and it was not

unconscionable.

1. HRS § 572-22 and Hawai#i Case Law

When the parties signed the Addendum, in 2013, HRS 

§ 572-22(2013) provided, in relevant part:

§572-22 Contracts. A married person may make contracts,

oral and written, sealed and unsealed, with her or his

spouse, or any other person, in the same manner as if she or

he were sole.

. . . 

All contracts made between spouses, whenever made, whether

before or after June 6, 1987, and not otherwise invalid

because of any other law, shall be valid.[3]

(Footnote added).

The Hawai#i Supreme Court has recognized the right of

married persons to enter enforceable contracts related to marital

3 In 2019, HRS § 572-22 was amended to make apparently non-substantive

and reformatting amendments, and now reads in whole:

(a) A married person may make contracts, oral and written,

sealed and unsealed, with the married person's spouse, or

any other person, in the same manner as if the married

person were sole.

(b) An agreement between spouses providing for periodic

payments for the support and maintenance of one spouse by

the other, or for the support, maintenance, and education of

children of the parties, when the agreement is made in

contemplation of divorce or judicial separation, is valid;

provided that:

(1) The agreement shall be subject to approval by the

court in any subsequent proceeding for divorce or judicial

separation; and

(2) Future payments under an approved agreement shall

nevertheless be subject to increase, decrease, or

termination from time to time upon application and a showing

of circumstances justifying a modification thereof.

(c) All contracts made between spouses, whenever made,

whether before or after June 6, 1987, and not otherwise

invalid because of any other law, shall be valid.

See 2019 Haw. Sess. Laws Act 111, §40 at 420-21.

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property rights, stating:

Spouses may contract regarding marital property rights

in premarital, postmarital, or settlement agreements.

Premarital or prenuptial agreements are entered into

before marriage. See, e.g., Prell v. Silverstein, 114

Hawai#i 286, 287–88, 162 P.3d 2, 3–4 (App.2007).

Postmarital or postnuptial agreements are entered into

after marriage. See, e.g., Chen v. Hoeflinger, 127

Hawai#i 346, 352, 279 P.3d 11, 17 (App.2012).

Settlement agreements are entered into after

separation or in anticipation of immediate separation.

See, e.g., Bienvenue v. Bienvenue, 102 Hawai#i 59, 61,

72 P.3d 531, 533 (App.2003).

Balogh, 134 Hawai#i at 39 n.4, 332 P.3d at 641 n.4. The supreme

court has further expressly addressed postmarital agreements and

succinctly held:

the family court must enforce all valid and enforceable

postmarital and separation agreements. A postmarital or

separation agreement is enforceable if the agreement is not

unconscionable and has been voluntarily entered into by the

parties with the knowledge of the financial situation of the

other spouse.

Id. at 40, 332 P.3d at 642 (emphasis added) (citations, brackets,

and quotation marks omitted).

Although the family court has certain authority under

HRS § 580-47(a) (2018) to "make any further orders as shall

appear just and equitable" in dividing and distributing the

estate of the parties, such authority does not take precedence

over the parties' right to enforce their valid and enforceable

marital agreements. See Epp v. Epp, 80 Hawai#i 79, 84, 905 P.2d

54, 59 (App. 1995). Absent a finding that the Marital Agreement

and Addendum were either invalid or unenforceable, the family

court could not invoke its authority under HRS § 580-47(a) to

divide Adachi and Crofford's marital estate contrary to their

agreements. See id.; see also Balogh, 134 Hawai#i at 40, 332

P.3d at 642.

Here, the family court rejected the Marital Agreement

and Addendum on the basis that "the essence" of the agreement

"violate[d] the statutory policy and principles of no fault

divorce and equitable distribution." The family court did not

expressly elaborate as to what part of the Marital Agreement or

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Addendum it determined had violated such policy or principles,

nor did it cite any legal authority for its ruling. It appears,

based on the record, the family court concluded that the terms of

the Addendum conditioning distribution of certain marital

property on Crofford's fidelity in the marriage violates Hawaii's

public policy favoring no-fault divorce. We hold that voiding

the Marital Agreement and Addendum on this basis was error.

As previously stated, under HRS § 572-22, "[a]ll

contracts made between spouses, whenever made . . . and not

otherwise invalid because of any other law, shall be valid." 

Although Hawai#i has implemented a no-fault divorce scheme, there

is no law that invalidates a marital agreement because it

provides for the distribution of marital property based on the

conduct of the parties. Rather, given the explicit provisions of

HRS § 572-22, and as recognized by the supreme court, spouses may

contract regarding marital property rights in premarital,

postmarital, or settlement agreements, and the family court must

enforce all valid and enforceable agreements with regard to

marital property division. Balogh, 134 Hawai#i at 39 n.4, 40,

332 P.3d at 641 n.4, 642. 

We have held that one spouse's personal conduct or

misconduct towards the other spouse is irrelevant to a family

court's division of marital property under HRS § 580-47. See

Markham v. Markham, 80 Hawai#i 274, 280, 909 P.2d 602, 608 (App.

1996); Horst v. Horst, 1 Haw. App. 617, 624, 623 P.2d 1265, 1270-

71 (1981) (holding "[f]ault pertaining to personal conduct of the

spouses toward each other has no bearing on the question as to

which spouse has a better claim to the property sought to be

divided in a divorce proceeding" (citation omitted)). However,

those cases are distinguishable because they did not reject a

marital agreement freely entered into by the parties.

2. Case Law From Other Jurisdictions

Crofford asserts that the terms of the Addendum that

condition distribution of certain marital property on Crofford's

fidelity in the marriage violates Hawaii's public policy favoring

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no-fault divorce. Crofford cites to cases from other

jurisdictions that have held similar agreements conditioned on a

spouse's fidelity unenforceable or void as a matter of public

policy under no-fault divorce laws. See In re Marriage of

Cooper, 769 N.W.2d 582, 585-586 (Iowa 2009); Diosdado v.

Diosdado, 97 Cal.App.4th 470, 473-75 (Cal. Ct. App. 2002). 

However, it does not appear that those jurisdictions have

statutes similar to HRS § 572-22.

In the Iowa case, In re Marriage of Cooper, the parties

to a divorce proceeding entered into a reconciliation agreement

after the wife had discovered her husband was having an affair. 

The reconciliation agreement required husband to make specified

payments and provide for certain financial arrangements "[i]n the

event of a permanent breakdown in the marital relationship." 769

N.W.2d at 584. In ruling that the reconciliation agreement was

void, the Iowa Supreme Court began its discussion by noting that

"[t]here is no provision of Iowa statutory law that expressly

authorizes or prohibits enforcement of reconciliation agreements

between spouses." Id. at 585. The court thus relied on its case

law in the area. In re Marriage of Cooper is thus

distinguishable.

In Diosdado, after the husband had an affair, the

parties entered an agreement providing that if either were not

faithful and either party chose to terminate the marriage,

certain damages would be owed by the unfaithful party, including

"liquidated damages" of $50,000. 97 Cal.App.4th at 472-73. The

court in Diosdado upheld the lower court's ruling that the

agreement was contrary to public policy under California's nofault divorce laws. 97 Cal.App.4th at 473. However, the court

relied on California statutory provisions as follows:

To be enforceable, a contract must have a "lawful object."

(Civ. Code, § 1550, subd. 3.) A contract is unlawful if it

is contrary to an express provision of law, contrary to the

policy of express law, or otherwise contrary to good morals.

(Civ. Code, § 1667.) Here, where the agreement attempts to

impose a penalty on one of the parties as a result of that

party's "fault" during the marriage, it is contrary to the

public policy underlying the no-fault provisions for

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dissolution of marriage. (See Fam. Code, §§ 2310, 2335.) For

that reason, the agreement is unenforceable.

Id. at 474. Moreover, the court cited California precedent that

recognized that:

marriage itself is a highly regulated institution of

undisputed social value, and there are many limitations on

the ability of persons to contract with respect to it, or to

vary its statutory terms, that have nothing to do with

maximizing the satisfaction of the parties or carrying out

their intent.... These limitations demonstrate further that

freedom of contract with respect to marital arrangements is

tempered with statutory requirements and case law expressing

social policy with respect to marriage.

Id. at 475 (citation and quotation marks omitted). In short,

there does not appear to be any California statute similar to HRS

§ 572-22.

We express no opinion whether provisions similar to

those in In re Marriage of Cooper or Diosdado would be valid in

Hawai#i. Rather, we simply point out that those cases are not

persuasive for the proposition that the Marital Agreement and

Addendum are invalid in this case for being contrary to public

policy under Hawaii's no-fault divorce laws. Instead, we must

apply HRS § 572-22 and the applicable Hawai#i case law. 

3. The Marital Agreement and Addendum are Valid and

Enforceable

In light of our holding that the family court erred in

rejecting the Marital Agreement and Addendum for the court's

stated reasons, we next address whether the agreements were

enforceable. As previously stated, a family court "must enforce

all valid and enforceable postmarital and separation agreements." 

Balogh, 134 Hawai#i at 40, 332 P.3d at 642. Here, the record

supports the family court's finding that Crofford and Adachi

signed the Addendum, as well as the family court's conclusion

that the parties entered into the Marital Agreement based on

Crofford's notations on the Marital Agreement and the Marital

Agreement being subsequently referred to in the signed Addendum. 

"A postmarital or separation agreement is enforceable

if the agreement is not unconscionable and has been voluntarily

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entered into by the parties with the knowledge of the financial

situation of the [other] spouse." Id. (citations and internal

quotation marks omitted) (emphasis and brackets in original). In

determining whether a marital agreement is unconscionable, the

Hawai#i Supreme Court has explained:

Unconscionability encompasses two principles: one-sidedness

and unfair surprise. One-sidedness (i.e., substantive

unconscionability) means that the agreement "leaves a

post-divorce economic situation that is unjustly

disproportionate." Unfair surprise (i.e., procedural

unconscionability) means that "one party did not have full

and adequate knowledge of the other party's financial

condition when the marital agreement was executed." A

contract that is merely "inequitable" is not unenforceable. 

The unconscionability of an agreement regarding the division

of property is evaluated at the time the agreement was

executed.

Id. at 41, 332 P.3d at 643 (citations, brackets, and footnote

omitted). With regard to whether an agreement is entered into

voluntarily, the supreme court stated that "[i]nvoluntariness is

shown by evidence of duress, coercion, undue influence, or any

other circumstance indicating lack of free will or

voluntariness." Id. at 43, 332 P.3d at 645 (citation and

internal quotation marks omitted).

Based on the family court's FOFs/COLs, it appears the

family court determined that Crofford and Adachi entered into a

valid marital agreement, and that Crofford had violated the

infidelity conditions in the Addendum.4 The family court also

4 In his answering brief, Crofford contends that the family court erred

in considering the October 7, 2013 filing date of the complaint for divorce,

rather than the September 8, 2013 date of separation, in determining the cut

off date for applicability of the Marital Agreement and Addendum (in other

words, the applicable dates for determining his infidelity). However,

Crofford asserts his "points of error" and arguments pertaining to the family

court's relevant findings and conclusions on the Marital Agreement and

Addendum in his answering brief. Crofford apparently asserts these errors in

his cross-appeal, but he explicitly declined to provide further argument in

his opening brief. Instead, Crofford elected to address these alleged errors

in his answering brief in response to Adachi's appeal. Hawai#i Rules of

Appellate Procedure (HRAP) Rule 28(c) does not permit a party to assert its

own points of error through his answering brief. 

Also contra to HRAP Rule 28(b)(4), Crofford fails to state "the alleged

error committed by the court," "where in the record the alleged error

occurred," and "where in the record the alleged error was objected to or the

manner in which the alleged error was brought to the attention of the court or

agency."

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found that Crofford was neither under duress, nor was he coerced

or unduly influenced by Adachi to sign the Addendum, thus

indicating that the agreements were entered into voluntarily. 

The family court did not address whether the Marital

Agreement and Addendum were unconscionable, i.e., whether there

was one-sidedness and/or unfair surprise. However, similar to

Balogh, we reach the issue because unconscionability is a

question of law reviewable de novo. 134 Hawai#i at 42-43, 332

P.3d at 644-45.

The Hawai#i Supreme Court has explained that:

Generally, a determination of unconscionability ... requires

a showing that the contract was both procedurally and

substantively unconscionable when made, but there may be

exceptional cases where a provision of the contract is so

outrageous as to warrant holding it unenforceable on the

ground of substantive unconscionability alone.

Id. at 41, 332 P.3d at 643 (citations, internal quotation marks,

and brackets omitted). However, "although under Hawai#i law two

basic principles are encompassed within the concept of

unconscionability, one-sidedness and unfair surprise, in certain

circumstances one-sidedness alone can render an agreement

unconscionable. Id. at 41-42, 332 P.3d at 643-44 (citing Lewis

v. Lewis, 69 Haw. 497, 502, 748 P.2d 1362, 1366 (1988) and Kuroda

v. Kuroda, 87 Hawai#i 419, 428, 958 P.2d 541, 550 (App. 1998) 

(quotation marks omitted)).

The supreme court has rejected the argument that a

marital agreement should be invalidated solely on the basis that

it is "somewhat one-sided." Id. at 42, 332 P.3d at 644. The

supreme court further explained:

parties may have legitimate reasons for entering into a

somewhat one-sided postmarital agreement, and may do so

knowingly and voluntarily. Permitting the family court to

invalidate such agreements without requiring a showing of

extraordinary one-sidedness would frustrate the purpose of

HRS § 572–22, which permits spouses to enter into

enforceable contracts with each other.

Id. 

We further note that "[t]he unconscionability of an

agreement regarding the division of property is evaluated at the

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time the agreement was executed." Id. at 41, 332 P.3d at 643

(citation omitted). 

In his answering brief, Crofford contends that the

postmarital agreement is unconscionable where Adachi would be

awarded all joint assets and his only separately owned asset that

had any significant value, his yacht, the Spartan Queen.5 The

most significant item of value affected by the Marital Agreement

and Addendum is the catamaran yacht. However, the Marital

Agreement and Addendum only contemplated an inequitable division

of property if Crofford had another affair or physically harmed

Adachi. As the family court found, the circumstances leading to

the agreements were that Crofford had engaged in extramarital

affairs during their marriage, Adachi had discovered an affair

and threatened to leave Crofford and file for divorce. Crofford

pleaded with Adachi not to leave the marriage, proposed that the

parties sign a post-nuptial agreement. Adachi consulted an

attorney who drafted at least two drafts of a marital agreement. 

Subsequently, the Addendum was drafted, primarily by Crofford,

which addressed the issues that were lined or struck out by

Crofford in the second version of the Marital Agreement. It is

unlikely that the Marital Agreement and Addendum would have been

construed by the parties as demonstrative of Crofford's

commitment to the marriage if it had not contained the

contingencies of fault and the resulting inequitable distribution

of property. See Balogh, 134 Hawai#i at 43, 332 P.3d at 645.

We further consider the financial history between the

parties, which provides context at the time they entered the

Marital Agreement and Addendum. The family court found that

Crofford came into the marriage owing approximately $217,100 in

5 The schedules attached to the Marital Agreement, before handwritten

changes were made, listed Adachi's separately owned property with a total of

$3,929,548.55, and Crofford's separately owned property with a total of

$1,530,000 (including the catamaran yacht valued at $1,500,000). The

schedules before changes also listed joint assets totaling $53,350 and joint

debt of $21,000. The handwritten changes made by Crofford include different

values for certain assets, as well as notations indicating he owned half of

their gold and silver.

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child support for two children from prior marriages, and this

debt was paid with marital funds primarily earned by Adachi. The

family court also found that Adachi's premarital contributions

were $3,050,000, while Crofford made zero premarital

contributions.

In terms of their post-divorce economic situation, the

family court found that both Adachi and Crofford's businesses had

no value. The family court found that Adachi had to close her

practice as a surgeon after a significant medical procedure, and

thus her business no longer has any value.

According to the Marital Agreement and attached

schedules, except as otherwise provided in the agreement, the

parties would retain their separately held property. With regard

to jointly held property, Crofford would receive the jointly

titled 2012 Acura MDX ($38,250), while Adachi would receive the

jointly titled American Savings Bank checking account ($6,100)

and the jointly titled Australian Savings Bank checking account

($11,900) in the event of a divorce. The handwritten changes to

the schedules attached to the Martial Agreement show that

Crofford claimed half of their gold and silver, originally listed

as part of Adachi's separately owned assets worth $250,000 (the

family court later valued the gold and silver at a total of

$174,000). Crofford also made handwritten changes to his own

attached schedule and added, "7. Gold & Silver 1⁄2 of its value." 

Thus, under the Marital Agreement and Addendum, Crofford would at

minimum receive the Acura MDX and half of the parties' gold and

silver.

Under the Addendum, in the event of divorce with the

exception of infidelity or physical harm, Crofford would maintain

ownership of the yacht which the Addendum expressly acknowledges

"has been effectively paid in full by [Adachi]." The Addendum

also states that, "[a]ll monies invested in the yacht up until

November 2012 were contributions directly from money earned

through [Adachi's] business...and will be considered monetary

compensation for the years invested in this Marriage." Crofford

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also waived any separation of property rights except alimony and

the proceeds from the sale of apartment 425 South Street, which

was to be split equally between the parties, absent infidelity

and physical harm.

Under the Marital Agreement and Addendum, the property

division between the parties would change depending on whether

Crofford had a further affair or physically harmed Adachi. 

Absent those conditions, he would receive much more in the event

of a divorce. Crofford primarily drafted the Addendum, which

expressly noted "[t]his is my Addendum to the Marital agreement

to be upheld and considered a part of the legal document."

Given Adachi's contributions to the marriage, all of

the circumstances at the time the Marital Agreement and Addendum

were entered into, including the reasons for drafting the

agreement and the provisions therein, the one-sided distribution

of property contemplated by the postmarital agreement in the

event Crofford had another affair or physically harmed Adachi is

not "so outrageously oppressive as to be unconscionable in the

absence of unfair surprise." Balogh, 134 Hawai#i at 42-43, 332

P.3d at 644-45 (holding agreement providing a 75%/25% division of

marital property in favor of wife as well as $100,000 payment in

lieu of alimony to wife was not unconscionable); cf., Kuroda, 87

Hawai#i at 428, 958, P.2d at 550 (holding postnuptial agreement

is unconscionable without unfair surprise where it awards wife

all personal and real property held in common, implicitly allows

wife to keep her own personal property including her accounts,

requires husband to pay wife one-half of his "net income from

every source including retirement fund and royalties after

deduction of federal, state, income, and withholding taxes" until

the death of either spouse, and requires husband to pay all

attorney's fees and costs of Court in connection with all divorce

and separation proceedings).

Finally, the Marital Agreement and Addendum were not

entered into with unfair surprise, i.e. procedurally

unconscionable. The family court found that Crofford refused to

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sign the first version of the proposed Marital Agreement, which

would have divided the assets such that Crofford would receive

$200,000 if the parties divorced. The family court also found

Crofford struck out portions of the Marital Agreement, which

based on our review of the agreement included striking provisions

which would have awarded the catamaran yacht to Adachi in the

event of a divorce. The family court further found, however,

that Crofford then primarily drafted the Addendum which addressed

all of the issues he lined or struck out in the Marital

Agreement, and that both parties had an opportunity to review and

revise the Addendum before agreeing to it. The Addendum, which

Crofford primarily drafted, provides that Crofford would retain

ownership of the catamaran yacht in the event of divorce "with

exception in the case of infidelity and physical harm by Joe

Crofford. At which time the Ownership of the Yacht Spartan Queen

will be transferred to Kristi Adachi." Additionally, there is no

evidence that Crofford did not have full knowledge or the chance

to obtain full knowledge of Adachi's financial circumstances.

We therefore conclude, based on our de novo review,

that the Marital Agreement and Addendum are not unconscionable.

B. Crofford's Cross-Appeal

1. The family court did not abuse its discretion in

entering its Order Assessing Attorney's fees

We first address Crofford's point of error regarding

the family court's Order Assessing Attorney's Fees. The Order

Assessing Attorney's Fees awarded Adachi $3,560.21 in reasonable

legal expenses incurred in responding to Crofford's Motion for

Reconsideration and Motion for Interlocutory Appeal. Crofford

asserts that the family court had no authority to award Adachi

attorney's fees and that the order was inconsistent with the

subsequent Divorce Decree entered on April 26, 2016, which

specifically ordered that each party be responsible for their own

attorney's fees and costs. We disagree.

Crofford's Motion for Reconsideration and Motion for

Interlocutory Appeal both consisted of only a declaration of

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counsel that merely asserted factual allegations as to why the

court should grant each motion.6 Neither motions contained any

legal authority or argument explaining why Crofford was entitled

to the relief he sought, nor addressed the legal standards

required for his requested relief. 

Adachi's request for attorney's fees was based on her

assertion that Crofford's Motion for Reconsideration and Motion

for Interlocutory Appeal had no legitimate legal basis and were

not filed in accordance with the Hawai#i Family Court Rules. 

Crofford argues the family court erred in finding that

his motions were non-hearing motions. However, based on our

review of the record, it appears that a hearing was held for both

motions on May 6, 2015. In its "Order Denying [Crofford's]

motion to Reconsider Order of April 15, 2015 filed on April 21,

2015 and Denying Motion for Allowance of Interlocutory Appeal

filed on April 23, 2015" the family court specifically mentions

the hearing on May 6, 2015 and that Crofford waived his presence

but was represented by his attorney. The family court then

ordered Adachi to submit affidavits regarding the attorney's fees

and costs that she incurred in responding to Crofford's motions,

which was the basis of its Order Assessing Attorney's Fees. 

The family court did not cite any authority in its

Order Assessing Attorney's Fees. However, based on our review of

the record, it appears that the family court's order was entered

based on the motions submitted by the parties and the May 6, 2015

hearing. Crofford fails to provide the transcripts for the May

6, 2015 hearing for appellate review. "[I]t is well established

that, when an appellant desires to raise any point on appeal that

requires the consideration of the oral proceedings before the

court appealed from, the appellant bears the burden of showing

error by reference to matters in the record, and he or she has 

6 Both the Motion For Reconsideration and Motion for Interlocutory

Appeal, as well as the attached declarations of counsel were signed by

Crofford's counsel.

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the responsibility of providing the relevant transcript." Ditto

v. McCurdy, 103 Hawai#i 153, 162, 80 P.3d 974, 983 (2003).

In any event, we conclude that the Order Assessing

Attorney's Fees was not inconsistent with the family court's

subsequent Divorce Decree, and the family court had discretion

under HRS § 580-47(a) to enter the order.7 The Order Assessing

Attorney's Fees and Costs solely addressed the family court's

award of attorney's fees incurred by Adachi in response to

Crofford's Motion for Reconsideration and Motion for

Interlocutory Appeal. In contrast, the subsequently filed

Divorce Decree globally addressed the allocation of attorney's

fees and costs incurred in the divorce proceedings. Although the

Divorce Decree does not reference or incorporate the Order

Assessing Attorney's Fees, it cannot be said that such omission

by itself invalidates the previously entered order. 

On July 11, 2016, Adachi filed a Motion for Enforcement

of Court Ordered Payments. On August 16, 2016, after a July 12,

2016 hearing, the family court ordered Crofford to make payments

pursuant to the Order Assessing Attorney's Fees and ordered

additional payment of attorney's fees and costs incurred for

Adachi's motion for enforcement. Crofford fails to provide the

transcripts for the July 12, 2016 hearing for appellate review.

Based on the foregoing, we affirm the family court's

Order Assessing Attorney's fees.

2. Crofford's other points of error

In his points of error, Crofford further lists numerous

findings of fact and conclusions of law that he apparently

challenges. However, Crofford's purported points of error

pertaining to the family court's FOFs/COLs fail to state "the

alleged error committed by the court", "where in the record the

alleged error occurred," and "where in the record the alleged

error was objected to or the manner in which the alleged error

7 HRS § 580-47(a) gives the family court wide discretion and authority

to allocate responsibility for the payment of attorney's fees and costs and

take into consideration the respective merits of the parties. 

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was brought to the attention of the court or agency," as required

under HRAP Rule 28(b)(4). 

Although we may notice plain error under HRAP rule

28(b)(4), a party "has no right to cast upon the court the burden

of searching through a voluminous record to find the ground of an

objection." Int'l Bhd. of Elec. Workers, Local 1357 v. Hawaiian

Tel. Co., 68 Haw. 316, 322 n.7, 713 P.2d 943, 950 n.7 (1986). 

Crofford's cursory treatment of the points of error pertaining to

the FOFs/COLs cannot reasonably be considered compliant with HRAP

Rule 28(b)(4). See Omerod v. Heirs of Kaheananui, 116 Hawai#i

239, 262, 172 P.3d 983, 1006 (2007). 

We further note that Crofford's remaining sections in

his brief fail to provide the necessary information to address

his points of error pertaining to the family court's FOFs/COLs. 

While Crofford offers argument challenging various aspects of the

family court's valuation of certain real and personal property,

debts, and premarital contributions, he fails to specifically

address the findings of fact and conclusions of law that he lists

in his points of error in his arguments. We are left to

speculate which finding or conclusion Crofford seeks to address

in his arguments, which we decline to do. Based on the

foregoing, the alleged points of error regarding the family

court's FOFs/COLs are deemed waived. See id. at 263, 172 P.3d at

1007; see also HRAP Rule 28(b)(7) ("[p]oints not argued may be

deemed waived.").

IV. Conclusion

Based on the foregoing, we vacate the property division

awards set forth in the Divorce Decree, entered on April 26,

2016, and the Findings of Fact and Conclusions of Law, entered on

August 1, 2016. We affirm the Order Assessing Attorney's Fees.

This case is remanded to the Family Court of the First

Circuit for further proceedings consistent with this opinion. On

remand, the family court shall enter a new property division 

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award according to the parties' agreement set forth in the

Marital Agreement and Addendum.

DATED: Honolulu, Hawai#i, December 30, 2020.

On the briefs:

Rebecca A. Copeland, 

for Defendant-Appellant/

Cross-Appellee. 

Michael A. Glenn,

for Plaintiff-Appellee/

Cross-Appellant.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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