NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

NO. CAAP-16-0000595

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

RAYMOND G. CARVALHO, II, Plaintiff-Appellee,

v.

KIM LAN CARVALHO, Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT

(FC-D NO. 10-1-0304)

MEMORANDUM OPINION

(BY: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

Defendant-Appellant Kim Lan Carvalho (Kim Lan) appeals 

from the August 22, 2016 Decree Granting Absolute Divorce

(Divorce Decree) entered in the Family Court of the Third Circuit

(Family Court).1

 The Divorce Decree and the July 26, 2016

Findings of Fact and Conclusions of Law (FOF/COL) allocated to

Kim Lan the entire interest in a property in Vietnam (Vietnam

Property), and denied Kim Lan any spousal support.

On appeal, Kim Lan asserts that the Family Court erred

in the property division by: (1) applying the affirmative

defense of equitable estoppel sua sponte to Kim Lan in allocating

the entire valuation of the Vietnam Property to her; or

alternatively, not allocating a half interest to Plaintiff1 The Honorable Lloyd Van De Car presided over the divorce trial and

entered the FOF/COL filed on July 26, 2016. Judge Van De Car retired in July

2016. The Honorable Michael J. Udovic signed the Divorce Decree filed on

August 22, 2016. 

Electronically Filed

Intermediate Court of Appeals

CAAP-16-0000595

17-JUN-2021

08:01 AM

Dkt. 120 MO
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Appellee Raymond G. Carvalho II (Raymond); (2) categorizing

certain debts as marital debt, and improperly valuing other

property; (3) determining that no valid and relevant

considerations (VARCs) warranting a deviation from the Marital

Partnership Model existed; and (4) ordering Kim Lan to pay

Raymond a $233,735.25 equalization payment.2 Kim Lan also

asserts that the Family Court erred in not awarding her spousal

support because it failed to comply with Hawai#i Revised Statutes

(HRS) § 580-47(a).3 Because we hold that equitable estoppel was

improperly applied sua sponte and resulted in an erroneous

property division, we affirm in part, and vacate in part. 

I. BACKGROUND

Kim Lan and Raymond were married in 2002. They had no

children together. On November 9, 2010 Raymond filed a Complaint

for Divorce requesting a decree for relief, and claimed Kim Lan

was not entitled to spousal support. Kim Lan filed her Answer,

agreeing with the Complaint except asserting that she was

entitled to spousal support.

On February 1, 2016, Kim Lan filed a motion in limine

to preclude any evidence related to the Vietnam Property because

Raymond had not asserted a position as to the Vietnam Property in

his motion to set the case for trial or in any of his position

statements, in violation of Hawai#i Family Court Rules (HFCR)

Rule 94. On February 5, 2016 when trial commenced, the Family

Court stated that it would not address Kim Lan's motion in limine

because Raymond's counsel did not have an opportunity to respond,

and the court indicated it would address the issues as they

arose.

The divorce trial was conducted on February 5, June 

2 The challenge to the property division includes FOFs 7, 8, 25-30,

and 32, and COLs 16, 18, 19, 21, 30-34.

3 The challenge to spousal support includes FOFs 7, 8, 37, 38, 39

and COLs 7-10 and 30-33.

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13, and June 14, 2016. Raymond testified that he was 69 years

old at the time of trial, suffered from numerous disabilities and

medical conditions, was retired but performed some handyman

services for cash, and paid $2,000 a month in spousal support to

an ex-wife. It was also stipulated that Raymond had income from

VA benefits and Social Security consistent with his Income and

Expense Statements. Kim Lan testified that she was born in 1949;

was originally from Vietnam; had worked in a papaya factory, a

clothes factory, and as a bartender; and her current monthly

income was $2,133 from her rental property and Social Security.

As to the Vietnam Property, Raymond testified that he

believed he, Kim Lan, and Kim Lan's nephew owned the property

because Kim Lan had told him it was their property. Raymond's

understanding was that the Vietnam Property was repayment for the

$200,000 in loans to Kim Lan's nephew. However, he admitted that

he had not seen any paperwork to that effect and just believed

Kim Lan. Raymond stated that he had bought the lot under which

the house in Vietnam was situated in 2007, using cash. In Kim

Lan's testimony, she agreed that the house on the Vietnam

Property was constructed by her nephew after she sent him the

$200,000, but stated that her nephew owned the home at that time.

Conversely, various members of Raymond's family testified that

Kim Lan had represented that she and Raymond owned the Vietnam

Property. In addition, Raymond's former employee testified that

Kim Lan's sister, Hoa Dang, also represented that Kim Lan and

Raymond owned a home in Vietnam. Raymond's son admitted that he

never saw any documentation that Raymond and Kim Lan owned the

Vietnam Property. Kim Lan's brother-in-law testified that the

Vietnam Property had belonged to Kim Lan's nephew, but now Kim

Lan's brother lived there.

At the conclusion of evidence, the parties filed

written closing arguments. Raymond argued that the evidence

showed that Kim Lan transferred $200,000 to her nephew and that

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Raymond believed Kim Lan's nephew would repay them by building

them a house in Vietnam. Raymond acknowledged that the Vietnam

Property was neither in his nor Kim Lan's name, but argued that

the Vietnam Property, which was later transferred from Kim Lan's

nephew to her brother, was being held in trust for Raymond and

Kim Lan. Raymond also asserted that Kim Lan was not entitled to

spousal support based on his debts, health problems, advanced

age, and his inability to earn extra income. Kim Lan argued that

the Vietnam Property was not properly disclosed in violation of

HFCR Rule 94, and that in any case, the value and ownership of

the property had not been established. Kim Lan further asserted

that the $200,000 loaned to her nephew could not be considered

waste because it occurred during the marriage. Finally, Kim Lan

also argued that she was entitled to $1,000 a month in spousal

support for five years because Raymond earned considerably more

than her, he had almost $2,000 remaining each month after paying

his expenses, and cited her need and length of the marriage. Kim

Lan requested an equalization payment in her favor of $150,000.

On July 26, 2016, the Family Court entered its FOF/COL.

In relevant part, the Family Court found that Raymond was 69

years old at the time of trial, was retired, had numerous health

problems, had a monthly income of $5,400 from VA and Social

Security benefits and from performing small jobs for cash, and

his expenses were $5,100 a month (FOFs 7, 38). The Family Court

found that Kim Lan was 57 years old4 at the time of trial, was

unemployed, had a monthly income of $2,200 a month from rental

income and Social Security benefits, her expenses were $2,200 a

month, and she had worked in a clothes factory, a papaya farm, a

4 This finding (FOFs 8, 37) is erroneous and is based on Kim Lan's

miscalculation of her age in her initial testimony. When Kim Lan testified

that she was 57 years old but also claimed she was born in 1949, the Family

Court contemporaneously pointed out that her 1949 birth year made her "67

years old." Thus, Kim Lan's correct age was 67 years old at the time of

trial.

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bar, and as a gambler (FOF 8). The Family Court concluded that

the parties were meeting their financial obligations (COL 9), and

Kim Lan was not entitled to spousal support (COL 10). As to the

Vietnam Property, the Family Court found that neither party

introduced any records of current or past ownership (FOF 31), but

that the testimony of Raymond and Raymond's witnesses were

credible, while Kim Lan's was not (FOF 32). It then concluded

that there was credible evidence establishing that Kim Lan

induced Raymond into making the $200,000 loan through her

representations to him and their friends and family, and that

Raymond's reliance on those representations were reasonable (COL

18). The Family Court held that Kim Lan was equitably estopped

from disclaiming an interest in the Vietnam Property and that it

would value the property at $200,000 based on the loans (COL 19).

Further, the Family Court concluded there were no VARCs

warranting a deviation from the Marital Partnership Model (COL

32), and ordered Kim Lan to make an equalization payment of

$233,735.25 to Raymond based on the division of property (COL

33). The Family Court entered the Divorce Decree on August 22,

2016, which incorporated the FOF/COL.

II. STANDARDS OF REVIEW

A. Family Court 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." Hamilton v.

Hamilton, 138 Hawai#i 185, 197, 378 P.3d 901, 913 (2016) (citing

Kakinami v. Kakinami, 127 Hawai#i 126, 136, 276 P.3d 695, 705

(2012) (quoting Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d

355, 360 (2006)).

It is well established that a family court abuses its

discretion where "(1) the family court disregarded rules or

principles of law or practice to the substantial detriment

of a party litigant; (2) the family court failed to exercise

its equitable discretion; or (3) the family court's decision

clearly exceeds the bounds of reason."

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Kakinami, 127 Hawai#i at 155-56, 276 P.3d at 724-25 (quoting

Tougas v. Tougas, 76 Hawai#i 19, 26, 868 P.2d 437, 444 (1994)).

B. Property Division

"We review the family court's final division and 

distribution of the estate of the parties under the abuse of

discretion standard, in view of the factors set forth in HRS §

580–47 and partnership principles." Gordon v. Gordon, 135

Hawai#i 340, 348, 350 P.3d 1008, 1016 (2015) (quoting Tougas, 76

Hawai#i at 26, 868 P.2d at 444). 

"The family court's determination of whether facts

present valid and relevant considerations authorizing a deviation

from the partnership model division is a question of law that

this court reviews under the right/wrong standard of appellate

review." Id. (citing Jackson v. Jackson, 84 Hawai#i 319, 332–33,

933 P.2d 1353, 1366–67 (App. 1997)).

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

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

the clearly erroneous standard, while the court's conclusions of

law are reviewed de novo under the right/wrong standard." Id.

at 348, 350 P.3d at 1016 (citing Kakinami, 127 Hawai#i at 136,

276 P.3d at 705)).

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.

Kakinami, 127 Hawai#i at 136, 276 P.3d at 705.

"[W]hen a conclusion of law presents mixed questions of

fact and law, we review it under the 'clearly erroneous' standard

because the court's conclusions are dependent on the facts and

circumstances of each individual case." JW v. RJ, 146 Hawai#i

581, 585, 463 P.3d 1238, 1242 (App. 2020) (citing Estate of Klink

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ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523

(2007)). "A conclusion of law that is supported by the trial

court's findings of fact and reflects an application of the

correct rule of law will not be overturned." Id.

D. Imposition of Sanctions

"On appellate review, regardless whether sanctions are

imposed pursuant to [court rules] or the trial court's inherent

powers, such awards are reviewed for abuse of discretion." Enos

v. Pacific Transfer & Warehouse, Inc., 79 Hawai#i 452, 459 n.7,

903 P.2d 1273, 1280, n.7 (1995).

III. DISCUSSION

A. THE FAMILY COURT ERRED IN THE PROPERTY DIVISION AS TO

THE VIETNAM PROPERTY

1. No HFCR Rule 94 error

Kim Lan contends that the Family Court erred in

considering the Vietnam Property in the property division because

Raymond failed to give notice of his position regarding the

Vietnam Property in his motion to set the case for trial and

position statements, in violation of HFCR Rule 94(a)(2).5 HFCR

Rule 94(f) provides that: "If a party (whether represented by an

attorney or not), or an attorney . . . unjustifiably fails to

comply with any requirements enunciated in this Rule, sanctions

may be imposed . . . ." Kim Lan moved in limine to preclude

Raymond's evidence regarding the Vietnam Property as a sanction

under HFCR Rule 94(f). The Family Court declined to address Kim

5 HFCR Rule 94(a), in pertinent part, requires that the movant for a

motion to set case for trial must attach the following information to the

motion: 

(1) the movant's current income and expense and asset and

debt statements,

(2) a written statement containing a statement of facts, a

description of the movant's position on all of the issues,

and the factual and legal bases of the movant's positions;

and

(3) such other documents as may be required by the court.

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Lan's request for sanctions on the grounds that Raymond did not

have an opportunity to file a response. Kim Lan does not

indicate where in the record she renewed her motion in limine

thereafter or subsequently obtained a ruling. The factual

disputes regarding the Vietnam Property were fully litigated at

trial. We conclude that Kim Lan has not demonstrated that the

Family Court's failure to rule on the motion and sanction Raymond

constituted an abuse of discretion. See Enos, 79 Hawai#i at 459

n.7, 903 P.2d at 1280 n.7. Thus, this contention is without

merit.

2. The Vietnam Property was jointly owned and subject

to equal division

As to the findings the Family Court entered regarding

the Vietnam Property, i.e. FOFs 25-30 and 32,6 which Kim Lan

6 These FOFs regarding the Vietnam Property are as follows:

25. During the marriage Defendant proposed to Plaintiff

that they live part time in Vietnam. She suggested that in 

exchange for investing in her nephew's business he would build

them a home on land adjacent to her mother's home.

26. Relying on Defendant's representations, Plaintiff

agreed to send $200,000 to Defendant's nephew. The transfer of 

funds occurred in July, 2008. Exhibits 46 and 47.

27. Defendant repeated her representations about the

Vietnam home to Plaintiff's sister Maria, his brother Mark,

Plaintiff's son Akoni, his daughter Nicole, and to Kathryn

Victorino, Plaintiff's employee.

28. The home Defendant described to Plaintiff was built

next to Defendant's mother's home in Vietnam. After it was

completed Plaintiff and Akoni traveled to Vietnam to see the

home for the first time. That visit was memorialized in a 

video commissioned by Defendant. Exhibits 27 and 27A.

29. After the parties and Akoni returned from Vietnam

they showed the video to members of Plaintiff's family, 

explaining that the home in the video was their home.

30. At trial Defendant denied any ownership interest

in the home and denied that the money sent to her nephew was in

any way connected to the construction of the home in the video.

31. Neither party introduced records reflecting the 

current or past ownership of the Vietnam home.

32. The Court finds that Plaintiff's testimony concerning

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challenges, we conclude they are not clearly erroneous. Kim Lan

argues that these FOFs are erroneous due to the HFCR Rule 94

violation, which we have already rejected supra. In these

findings, the Family Court found that both parties agreed that

they had transferred $200,000 to Kim Lan's nephew in Vietnam to

invest in his business. However, the parties disputed whether a

home was built by the nephew next to Kim Lan's mother's home in

exchange for the $200,000, and presented conflicting testimony

from themselves and through additional witnesses in this regard.

The Family Court found in FOF 32 that: "Plaintiff's [Raymond's]

testimony concerning the $200,000 and the home in Vietnam is

credible and that Defendant's [Kim Lan's] testimony is not."

"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." Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360

(2006) ((quoting In re Doe, 95 Hawai#i 183, 190, 20 P.3d 616, 623

(2001)). The Family Court acknowledged in FOF 31 that while

"[n]either party introduced records reflecting the current or

past ownership of the Vietnam home[,]" the credible testimony

nevertheless established that the home, i.e. the Vietnam

Property, was built for Raymond and Kim Lan in exchange for the

$200,000 transferred to the nephew, and that the Vietnam Property

belonged to both of them. In FOF 25, the Family Court found the

agreement was that in exchange for the $200,000, the nephew would

"build them a home . . . . " (Emphasis added). FOF 29 stated

that Raymond and Kim Lan showed a video to Raymond's family

members, "explaining that the home in the video was their home."

(Emphasis added). These findings are not clearly erroneous and

were supported by substantial evidence which the Family Court

the $200,000 and the home in Vietnam is credible and that 

Defendant's testimony is not.

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found credible. See Kakinami, 127 Hawai#i at 136, 276 P.3d at

705. Thus, we affirm these FOFs regarding the parties' joint

ownership interest in the Vietnam Property, and the inclusion of

the property in the marital estate pursuant to FOFs 25-30 and 32. 

See id.

3. The sua sponte application of the doctrine of

equitable estoppel to Kim Lan's detriment was

error

Kim Lan contends that the Family Court erred in the

property division by applying equitable estoppel to preclude Kim

Lan from denying an interest in the Vietnam Property, and

allocating the entire value of the property to her, when the

defense of equitable estoppel was never raised or argued by

Raymond. Kim Lan challenges COLs 16, 18, and 19, which state:

16. In this case the Court must also determine

whether equitable estoppel applies in assessing Plaintiff's 

claims concerning the home in Vietnam.

. . . .

18. Here, the credible evidence leads the Court to

conclude that Defendant [sic] statements to Plaintiff concerning

living part time in Vietnam, purchasing land adjacent to her

mother's home, and lending money to her nephew in exchange

for building the home caused Plaintiff to assent to sending

$200,000 to Vietnam. The Court concludes that Defendant's

statements to Plaintiff's siblings, his children, and his 

employee establish that her statements to Defendant were 

more than wishful thinking but willful attempts to influence

Plaintiff's behavior. The Court also concludes that

Plaintiff's reliance on Defendant's representations was

reasonable, given the fact he and Defendant were married and

ostensibly working towards the same goal.

19. The Court, therefore, concludes that Defendant

is estopped from denying an interest in the Vietnam home,

and further concludes that the only measure of its value is 

the amount of money the parties sent to Vietnam in order to 

build that home.

(emphases added). Kim Lan's challenge has merit with regard to

the underscored portions above.

We affirm portions of COLs 16, 18, and 19 as follows.

As to COL 18, the first sentence is a factual finding consistent

with FOFs 25-30 and 32, and this finding is not clearly erroneous

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for the same reasons that we upheld these FOFs supra. The Family

Court found in COL 19, that with respect to the Vietnam Property,

"the only measure of its value is the amount of money the parties

sent to Vietnam in order to build that home." This factual

assessment of value was based in part on credibility

determinations which we do not disturb on appeal. See Fisher,

111 Hawai#i at 46, 137 P.3d at 360. Therefore, the assessment of

a $200,000 value for the Vietnam Property was not clearly

erroneous. See FOFs 26, 32. As to the remaining portions of

COLs 18 and 19, and COL 16, Kim Lan's contentions regarding the

equitable estoppel defense have merit.

"Equitable estoppel is a defense requiring 'proof that

one person wilfully caused another person to erroneously believe

a certain state of things, and that person reasonably relied on

this erroneous belief to his or her detriment.'" Herrmann v.

Herrmann, 138 Hawai#i 144, 155 n.11, 378 P.3d 860, 871 n.11

(2016) (quoting Maria v. Freitas, 73 Haw. 266, 273, 832 P.2d 259,

264 (1992)). "[A]bsent manifest injustice, 'the party invoking

equitable estoppel must show that he or she has detrimentally

relied on the representation or conduct of the person sought to

be estopped, and that such reliance was reasonable.'" County of

Kaua#i v. Scottsdale Ins. Co., Inc., 90 Hawai#i 400, 403 n.1, 978

P.2d 838, 841 n.1 (1999) (emphasis in original) (citations

omitted).

In this case, Raymond did not raise the affirmative

defense of equitable estoppel in any of his filings in the Family

Court, and thus the defense was waived. HFCR Rule 8(c);7

 see

State ex rel. Office of Consumer Prot. v. Honolulu Univ. of Arts,

Scis. & Humanities, 110 Hawai#i 504, 516, 135 P.3d 113, 125

(2006) (holding that a party's failure to affirmatively plead an

affirmative defense under Hawai#i Rules of Civil Procedure (HRCP)

7 HFCR Rule 8(c) requires affirmative defenses, including "estoppel,"

to be pled.

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Rule 8(c),8 or raise it during the trial court proceedings,

waived the affirmative defense). The Family Court, however,

applied equitable estoppel to Kim Lan, foreclosing her ability to

deny an interest in the Vietnam Property, and allocating the

entire Vietnam Property to her after setting its value at

$200,000. See COLs 18 and 19. The Family Court also ordered Kim

Lan to pay a corresponding equalization payment of over $233,000,

to Kim Lan's detriment. The Family Court did not provide the

parties any notice that it would be applying the doctrine of

equitable estoppel in COLs 16, 18 and 19, and did so sua sponte. 

We conclude that the Family Court was wrong to sua sponte apply

the doctrine of equitable estoppel and to allocate the Vietnam

Property entirely to Kim Lan. See Gordon, 135 Hawai#i at 348,

350 P.3d at 1016 (citing Kakinami, 127 Hawai#i at 136, 276 P.3d

at 705).

We thus vacate the portions of COLs 16, 18, and 19

relating to equitable estoppel. However, we do not disturb the

finding in COL 18 which states: "18. Here, the credible

evidence leads the Court to conclude that Defendant [sic]

statements to Plaintiff concerning living part time in Vietnam,

purchasing land adjacent to her mother's home, and lending money

to her nephew in exchange for building the home caused Plaintiff

to assent to sending $200,000 to Vietnam." We also do not

disturb the finding in COL 19 which states: "19. The Court

further concludes that the only measure of its value is the

amount of money the parties sent to Vietnam in order to build

that home." We affirm the Family Court's assessment of $200,000

as the value of the Vietnam Property in COLs 18 and 19.

While the Vietnam Property was properly included in the

marital estate pursuant to FOFs 25-30 and 32, and its value

assessed as $200,000 in COLs 18 and 19, the Family Court erred in

8 HRCP Rule 8(c) and HFCR Rule 8(c) are identical provisions requiring

the pleading of affirmative defenses.

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not applying an equal division. See Tougas, 76 Hawai#i at 28,

868 P.2d at 446 ("[I]f there is no agreement between the husband

and wife defining the respective property interests, partnership

principles dictate an equal division of the marital estate where

the only facts proved are the marriage itself and the existence

of jointly owned property.") (internal quotation marks omitted). 

Therefore, under the marital partnership model of property

division, half of the $200,000 value of the Vietnam Property

should have been allocated to Raymond. On remand, the Family

Court must apply an equal division.

4. Kim Lan's remaining contentions regarding errors

in the property division

Kim Lan contends that the Family Court made additional

errors in the division and distribution of property that

improperly benefitted Raymond, and these errors "impacted the

lower court's calculation of an equalization payment in his

favor." These contentions are without merit.

Kim Lan argues that all of Raymond's debts (Liv

Lindeland loan, American Savings Bank Visa, Sears, Chase Bank in

FOFs 65, 67, 68, 69) should have been considered his separate

debt and not included in the property division because of

Raymond's practices of "hiding income, inflated spending," and

waste that Kim Lan claims Raymond committed. The Family Court

did not abuse its discretion in including these debts that were

acquired during the marriage in the property division and in

allocating these debts to Raymond. See Baker v. Bielski, 124

Hawai#i 455, 464, 248 P.3d 221, 230 (App. 2011) (determining that

a debt was not a party's separate property because it was

acquired during the marriage); HRS § 580-47(a) (Supp. 2016)

(providing that the family court may allocate responsibility for

the payment of joint or separate debt as it deems just and

equitable). FOFs 65, 67, 68 and 69, which are actually combined

findings of fact and conclusions of law, are supported by

substantial evidence and are not clearly erroneous, and reflect a

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correct application of the relevant law to the facts. See JW,

146 Hawai#i at 585, 463 P.3d at 1242.

Kim Lan next argues that the Family Court erred in

valuing the 78 Panaewa property at $150,000 as of March 6, 2014

(FOFs 19, 52), because the appraiser issued competing appraisals: 

one at $150,000 in Plaintiff's Exhibit 13 and the other at

$40,000 in Plaintiff's Exhibit 35. Kim Lan's argument is without

merit because the appraisals she cites were not competing but

rather based on two different points in time. The Family Court's

FOF 52 is supported by substantial evidence and not clearly

erroneous. See Gordon, 136 Hawai#i at 348, 350 P.3d at 1016.

Finally, Kim Lan argues that the Family Court erred in

valuing Kim Lan's American Savings Bank account at $20,724 (FOF

58), despite her testimony that she only had $3,000 in a credit

union account. Kim Lan explained in her Reply Brief that the

Family Court erred in relying on her September 21, 2015 Asset and

Debt Statement instead of her January 22, 2016 Asset and Debt

Statement. The Property Division Chart attached to the FOF/COL

stated that the balance was $20,724 and allocated the account to

Kim Lan. There appears to be no dispute that the account exists;

however, the record contains evidence of differing values. FOF

58 is supported by substantial evidence in the record and was

determined by the trial court as factfinder; thus, it was not

clearly erroneous. See Fisher, 111 Hawai#i at 46, 137 P.3d at

360; Gordon, 136 Hawai#i at 348, 350 P.3d at 1016.

B. VARCs, EQUALIZATION PAYMENT, SPOUSAL SUPPORT, AND OTHER

REMAINING ISSUES

We vacate the equalization payment of $233,735.25 (COL

33)9

 from Kim Lan to Raymond for recalculation in light of the

9 The COL regarding the equalization payment is as follows:

33. The parties' marital partnership assets and 

debts are determined to consist of and shall be divided as 

set forth in the Property Division Chart attached hereto as

Exhibit "A" and, by this reference, incorporated herein. 

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equal division of the Vietnam Property that must be applied on

remand. As to the conclusions the Family Court entered regarding

VARCs (COL 32),10 and spousal support (COLs 7-10, and 30-31),11

The omission of an asset or debt urged by either party means 

that the Court finds it has not been proved to exist at the 

time of trial. The division results in an equalization 

payment of $233,735.25 owing from Defendant [Kim Lan] to 

Plaintiff [Raymond].

10 The COL regarding the VARCs is as follows:

32. The Court concludes that there are no valid and

relevant consideration [(VARCs)] [sic] that authorize the 

Court to deviate from the Marital Partnership Model, and 

that application of that model will result in the equitable

distribution of the marital estate.

11 These COLs regarding spousal support are as follows:

7. HRS Sec. 580-47(a) sets forth 13 factors this 

Court must consider in assessing Defendant's alimony claim.

Those factors are stated in general terms and set forth in 

no particular order of importance. The Intermediate Court 

of Appeals, first in Cassiday v. Cassiday, 6 Haw. App. 207 

(Haw. Ct. App. 1985) and then in Vorfeld v. Vorfeld, 8 Haw. 

App. 391 (Haw. Ct. App. 1991) synthesized the most relevant 

of these 13 factors and restated them:

The relevant circumstances are (1) the 

payee's need (determined by the amount of money 

needed to maintain the standard of living 

established during the marriage; (2) the payees's

ability to meet his or her nee [sic] without 

spousal support; (3) the payor's need (again, 

determined by the amount of money needed to 

maintain the standard of living established 

during the marriage); and (4) the payor's 

ability to pay spousal support while meeting his 

or her own need as well.

8. The Court has considered those factors and 

concludes that the evidence at trial concerning the 

standard of living established during the marriage 

establishes that the parties enjoy the same standard of

living now, living separate and apart, as they did while 

they were together. Plaintiff has the same classic car he

had and engages in the same activities. Defendant has two

homes, neither of which is encumbered by a mortgage. She 

lives in one and rents the other. Members of Defendant's 

family continue to visit her here and she continues to 

travel to Vietnam to visit them.

9. The evidence also established and the Court 

concludes that Plaintiff and Defendant are each currently 

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which Kim Lan also challenges, we affirm as the Family Court did

not abuse the wide discretion it possesses, and these conclusions

are not wrong. See Hamilton, 138 Hawai#i at 197, 378 P.3d at

913; Gordon, 136 Hawai#i at 348, 350 P.3d at 1016. With regard

to Kim Lan's argument that COL 7 contained an erroneous

"truncated analysis" of the HRS § 580-47(a) factors, we disagree

with this characterization. COL 7 acknowledged that the statute

"sets forth 13 factors [the Family] Court must consider in

assessing [Kim Lan's] alimony claim." Our review of all of the

FOF/COLs reflects that the Family Court did consider all of the

factors. 

We resolve Kim Lan's remaining challenges to the

FOF/COLs as follows. With respect to challenged FOF 7, FOF 38,

and FOF 39, these findings are within the province of the Family

Court as factfinder, and Kim Lan has not demonstrated how these

findings are clearly erroneous. See Fisher, 111 Hawai#i at 46,

137 P.3d at 360. As to FOF 8 and FOF 37, we vacate in part only

with respect to the incorrect age of Kim Lan; we otherwise affirm

the findings as the record reflects that the Family Court was not 

wrong in denying spousal support to Kim Lan. See id.; Gordon,

136 Hawai#i at 348, 350 P.3d at 1016. With respect to FOF 16,

FOF 18, FOF 21, COL 21, COL 34, no argument is provided, and we

meeting their financial obligations from their incomes.

10. Considering the factors set forth in HRS Sec. 

580-47(a) the Court concludes that Defendant is not 

entitled to receive alimony from Plaintiff.

. . . .

30. Defendant entered into the marriage with assets

approximately twice the value of Plaintiff's assets. Even 

without considering the value placed by the Court on the 

home in Vietnam, Defendant is leaving the marriage with 

assets worth approximately $200,000 more than Plaintiff.

31. Each party is meeting his or her regular monthly

expenses with their regular monthly income. Neither party 

is burdened by minor children.

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do not address them. See Hawai#i Rules of Appellate Procedure

Rule 28(b)(7).

IV. CONCLUSION

For these reasons, the Family Court's July 26, 2016,

Findings of Fact and Conclusions of Law, and the August 22, 2016,

Decree Granting Absolute Divorce, are affirmed in part and

vacated in part. We remand for the application of an equal

division as to the Vietnam Property, and for recalculation of the

equalization payment in light of the equal division of the

Vietnam Property, consistent with this Memorandum Opinion. We

affirm in all other respects.

DATED: Honolulu, Hawai#i, June 17, 2021.

On the briefs:

Rebecca A. Copeland

(Law Office of Rebecca A.

Copeland, LLC)

for Defendant-Appellant

Brian J. De Lima

(Law Offices of Brian J. De

Lima)

for Plaintiff-Appellee

/s/ Katherine G. Leonard

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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