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NO. CAAP-19-0000208

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ST, Plaintiff-Appellee, v.

KT, Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(FC-D NO. 16-1-0816)

MEMORANDUM OPINION

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

This appeal arises out of divorce proceedings between

Defendant-Appellant KT (Wife) and Plaintiff-Appellee ST

(Husband). Wife appeals from the "Decree Granting Divorce and

Awarding Child Custody" (Divorce Decree), entered on March 13,

2019, by the Family Court of the First Circuit (Family Court).1/ 

Wife also challenges the Family Court's: (1) September 27, 2018

"Order Re Defendant's Motion To Continue Trial And All Trial

Related Dates" (Order Re Motion to Continue); (2) October 23,

2018 Order Re Defendant's Motion To Compel Discovery And/Or For

Sanctions" (Order Re Motion to Compel); (3) October 23, 2018

Order Denying Defendant's Motion To Add Additional Witness"

(Order Re Motion for Additional Witness); (4) December 17, 2018

"Decision and Order"; and (5) February 5, 2019 "Order Denying

Defendant's Motion for Reconsideration of Decision and Order

Filed 12/17/2018" (Order Re Motion for Reconsideration).2/

1/ The Honorable Kevin T. Morikone presided.

2/ The Honorable Jessi L.K. Hall issued the Order Re Motion to

Continue, the Order Re Motion to Compel, and the Order Re Motion for

Additional Witness. The Honorable Kevin T. Morikone issued the Decision and

Order and the Order Re Motion for Reconsideration.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000208

30-SEP-2020

08:07 AM
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Wife raises five points of error on appeal, arguing that the

Family court erred in: (1) denying Wife's request for an award of

attorney’s fees and costs in connection with her pretrial motion

to compel discovery; (2) finding that valid and relevant

considerations (VARCs) existed to justify excluding Husband's

premarital student loan debt in the court's property chart and

property division, and not charging Husband for his student loan

debt that was paid during the marriage; (3) crediting Wife's

unpaid debt for attorney's fees and costs as an asset to her on

the court's property chart and property division, instead of

debiting it as a liability to Wife; (4) setting a payment

schedule for Husband's payment of his property division debt owed

and awarded to Wife; and (5) failing to make any orders

concerning Wife's claim for certain reimbursements owed by

Husband. 

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, as

well as the relevant statutory and case law, we resolve Wife's

contentions as follows. 

I. Background

Husband and Wife were married on February 24, 2007, and

are the legal parents of two minor children. Husband and Wife

were married for approximately 106 months (9 years) before

physical separation. On June 21, 2016, Husband filed his

Complaint for Divorce against Wife, stating that the marriage was

irretrievably broken. 

On November 5 and 8, 2018, the divorce proceeding came

on for trial. Husband and Wife testified on the issues of

alimony, child support, marital waste, and property division. On

December 17, 2018, the Family Court entered the Decision and

Order, which provided as follows: (1) the divorce was effective

as of the date of the filing of the Divorce Decree; (2) the

Family Court incorporated the terms of the Stipulated Order Re:

Custody, Timesharing and other Trial Issues, filed December 4,

2018; (3) no alimony was awarded to Wife; (4) the parties'

property was be divided as provided in the Property Division

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Chart (PDC) attached to the Decision and Order; (5) Husband's

category 1 claims were denied and his bank accounts and Ford

Explorer were not included in the PDC; (6) Wife's category 1

claim was denied and the amount paid toward Husband's student

loans during the marriage was not included in the PDC; (7) Wife's

wasting claims were granted, Husband's wasting claims were

denied; (8) Husband's military pension was divided pursuant to

applicable law; (9) all attorneys' fees and costs were to be

equally split between Husband and Wife; (10) based on the PDC,

Husband was to pay Wife a property equalization payment in the

total amount of $33,738.11, to be paid by Husband in four

installments over two years; (10) each party was awarded his or

her own personal effects, clothing, and jewelry, as well as

household furniture, furnishings, and effects in his or her

possession; (11) Wife was to have the option to retain her

married name or resume her former maiden name; and (12) the court

granted the divorce, and a Divorce Decree was to be submitted to

the court for approval. 

On December 27, 2018, Wife timely filed her motion for

reconsideration of the Decision and Order (Motion for

Reconsideration). The Family Court denied the Motion for

Reconsideration in its entirety on February 5, 2019. The Family

Court entered the Divorce Decree on March 13, 2019, and its

Findings of Facts and Conclusions of Law (FOFs/COLs) on May 20,

2019. This appeal followed.

II. Discussion

A. Wife's Request for Attorney's Fees and Costs

Wife contends that the Family Court erred in denying

her request for an award of attorney's fees and costs in

connection with her pretrial motion to compel discovery and/or

for sanctions (Motion to Compel).

On October 12, 2018, Wife filed the Motion to Compel,

which sought an order compelling Husband to produce statements

and online printouts of all account activity for an American

Express card that he held (Amex account statements). The Motion

to Compel also sought a variety of sanctions against Husband,

including orders: (1) establishing that all of Husband's

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expenditures on the card be deemed marital waste and be charged

to Husband in the property division; (2) establishing that

Husband not be permitted to oppose Wife's claims for marital

waste; (3) awarding Wife her reasonable attorney's fees and costs

relating to the Motion to Compel and a separately filed motion to

continue trial;3/ (4) holding Husband in summary criminal

contempt for allegedly providing false information to the court;

(5) holding Husband in civil contempt; and (6) continuing trial

or adding an additional trial date.4/ 

It appears that Husband produced all or nearly all of

the requested Amex account statements to Wife on October 22,

2018. On October 23, 2018, the Family Court held a hearing on

Wife's Motion to Compel, as well as her pending Motion for

Additional Witness. After hearing both sides, the court denied

the Motion for Additional Witness, and granted in part and denied

in part the Motion to Compel, stating:

With regards to [Wife's] motion to compel discovery,

the court's gonna grant in part and deny in part. The

court's gonna deny the contempt sanctions and at this point,

getting any American Express statements, you guys are too

close to trial. It would have been better if they were

subpoenaed originally and then there would have been no

doubts. 

But what's going to happen is [Husband] is not

permitted to use the American Express statements to show

that waste did not occur. 

In order for him to show that waste did not occur, he

will have to try to use other evidence that has already been

presented if it was requested through discovery. Otherwise,

[Wife] will be permitted to state that those funds were

wasted and try to prove the same.

With regards to continuing or adding on time for

trial, that's going to be denied.

And based on the court's ruling over the two motions,

the court's going to deny attorneys' fees by both –-

requests by both sides as they cancel each other out at this

point.

On the same date, and consistent with the court's oral

3/ On September 26, 2018, Wife filed a motion to continue trial and

all trial-related dates (Motion to Continue), based in part on Husband's

"incomplete production of documents[.]" Following a hearing on September 27,

2018, the Family Court denied the Motion to Continue and ordered Husband to

produce certain documents that are not at issue in this appeal. 

4/ Wife filed a separate motion to add an additional witness at trial

(Motion for Additional Witness) on the same date as the Motion to Compel. 

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ruling, the Family Court entered the Order Re Motion to Compel.

The Family Court further explained its decision in its "Findings

of Fact and Conclusions of Law Re: Defendant's Motion to Continue

Trial and All Trial Related Dates Filed September 26, 2018,

Defendant's Motion to Compel Discovery and/or for Sanctions Filed

October 12, 2018, and Motion to Add Additional Witness Filed

October 12, 2018," entered on May 31, 2019. 

On appeal, Wife does not challenge any of the May 31,

2019 findings of fact or conclusions of law. The findings are

therefore binding on appeal and support the court's conclusions

of law, which largely mirror the court's conclusions as stated in

its October 23, 2018 oral ruling and written orders. See State

v. Rapozo, 123 Hawai#i 329, 334 n.4, 235 P.3d 325, 330 n.4 (2010)

(citing Kelly v. 1250 Oceanside Partners, 111 Hawai#i 205, 227,

140 P.3d 985, 1007 (2006)). 

Moreover, on this record, we cannot conclude that the

Family Court abused its discretion in denying Wife's request for

an award of attorney's fees and costs. In ruling on the Motion

to Compel, the court noted that the motion was filed late in the

pretrial process – "too close to trial" – and, in fact, the court

declined to order Husband to produce any of the requested Amex

account statements.5/ Instead, the court imposed a sanction that

it considered appropriate under the circumstances – an order

precluding Husband from using his Amex Account statements at

trial to show that he did not commit marital waste. Having

granted in part and denied in part the Motion to Compel, and

having denied Wife's related Motion to Continue, the Family Court

denied the parties' competing requests for attorney's fees, as

"they cancel[ed] each other out." We conclude that, under these

circumstances, the denial of Wife's request for attorney's fees

and costs was well within the Family Court's discretion. See

Weinberg v. Dickson-Weinberg, 123 Hawai#i 68, 71, 229 P.3d 1133,

1136 (2010) ("The imposition of a sanction is generally within

5/ At the hearing on the Motion to Compel, Wife argued: "[O]f course

the first thing is to order him to produce the statements. Well, it seems

like he's produced most of it, but we're still asking the court that he be

ordered to produce his September 2018 statement because that was not included

in what was provided last evening."

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the discretion of the trial court." (quoting Ek v. Boggs, 102

Hawai#i 289, 299, 75 P.3d 1180, 1190 (2003))).

Wife argues that the Family Court disregarded Hawai#i 

Family Court Rules (HFCR) Rule 37(a)(4)(A)6/ in denying Wife's

request for attorney's fees and costs. However, under HFCR Rule

37(a)(4)(A), the family court need not award the moving party

reasonable expenses incurred in making a motion to compel, where

the court finds, inter alia, that such an award is "unjust." In

addition, HFCR Rule 37(a)(4)(C) provides that if a motion to

compel is granted in part and denied in part, the court "may,

after affording an opportunity to be heard, apportion the

reasonable expenses incurred in relation to the motion among the

parties and persons in a just manner." 

Here, the Family Court's denial of the parties'

competing fee requests, based on the circumstances previously

stated, resolved the requests in a just manner. On this record,

we cannot conclude that the Family Court disregarded HFCR Rule

37(a)(4) or otherwise abused its discretion in making this

decision.

B. Husband's Student Loan Debt

Wife contends that the Family Court erred in finding

that VARCs existed to justify excluding Husband's premarital

student loan debt in the court's PDC and property division, and

in not charging Husband for $68,770 of his student loan debt that

was paid during the marriage. In connection with this point of

error, Wife challenges FOF Nos. 53, 56, and 58, and COL Nos. 22,

23, and 24. 

6/ HFCR Rule 37(a)(4)(A) provides:

If the motion [to compel] is granted or if the

disclosure or requested discovery is provided after the

motion was filed, the court shall, after affording an

opportunity to be heard, require the party or deponent whose

conduct necessitated the motion or the party or attorney

advising such conduct or both of them to pay to the moving

party the reasonable expenses incurred in making the motion,

including attorney’s fees, unless the court finds that the

motion was filed without the movant's first making a good

faith effort to obtain the disclosure or discovery without

court action, or that the opposing party's nondisclosure,

response, or objection was substantially justified, or that

other circumstances make an award of expenses unjust.

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At trial, Husband testified that he attended the

University of California at Los Angeles (UCLA) for four and a

half years, earning a bachelor's degree in psychology in 2004. 

To pay for his education, Husband obtained an ROTC scholarship

that covered tuition, books and educational expenses. Husband

stated that it was necessary to obtain student loans to pay for

his day-to-day expenses such as room and board, food and car

payments. Husband further testified that his student loan debt

on the date of marriage was $111,000. 

FOF Nos. 53 through 59 relate to Husband's student loan

debt. The Family Court found the following:

53. The Court does not find credible evidence as to

amounts paid towards Husband's student loans during the

marriage.

54. Wife claimed that a total of $68,779.00 was paid

towards Husband's student loan debt during the marriage.

55. The Court received credible evidence that both

parties benefitted from Husband's employment. 

56. Husband obtained said employment as a result of

the student loan debts that he incurred.

57. Thus, although there were payments made towards

Husband's student loans during the marriage, both parties

benefitted from the same in that Wife was able to engage in

her photography business and was not required to work on a

full-time basis.

58. As a result, the Court denies Wife's request to

include the claimed amount, $68,779.00 in the PDC.

Notwithstanding, the Court included the line item "Navient

Student Loan, Payoff During Marriage" as an item in "PART C"

of the PDC. 

59. Further, Husband will be responsible for all of

his unpaid student loans after the divorce.

Findings of fact are reviewed under the clearly

erroneous standard and will not be overruled unless "(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 had 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." LC v. MG, 143 Hawai#i 302, 310, 430 P.3d 400, 408

(2018) (quoting Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d

355, 360 (2006)). 

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Wife contends that FOF No. 53 is clearly erroneous

because Husband testified at trial that $68,770 of his $111,000

student loan debt was paid off during the parties' marriage, and

there was no credibility issue because Husband freely admitted

these facts during his testimony. The record supports Wife's

contention. Indeed, on appeal, Husband confirms that he admitted

these facts at trial, and argues only that the Family Court was

correct in ruling, based on VARCs, that it would be fair and

equitable to exclude Husband's student loan debt amount as a

negative capital contribution on Husband's part. Given that

Husband admitted that $68,770 of his student loan debt was paid

during the parties' marriage, the record lacks substantial

evidence to support FOF No. 53, and we conclude that it is

clearly erroneous. We address below the Family Court's

conclusions of law excluding Husband's student loan debt from the

court's PDC. 

Wife next asserts that FOF No. 56 is clearly erroneous

because "[t]here was no testimony that Husband obtained his

employment as a military service member as a result of the

student loans that he incurred." However, the record contains

substantial evidence that Husband used his student loans to help

pay living expenses while attending UCLA, and that he obtained

his employment as a naval officer and aviator as a result of

earning his UCLA degree. The record thus supports the Family

Court's finding that Husband obtained his employment as a result

of the student loan debts that he incurred, and we are not left

with a definite and firm conviction that a mistake has been made. 

We therefore conclude that FOF No. 56 is not clearly erroneous. 

Although Wife lists FOF No. 58 in her points of error,

she states that she "does not particularly challenge this FOF 58,

but points out that the Court's finding that [] the student loan

payoff was included in Part C of the Court's PDC is meaningless,"

because the amount that the Court entered in Part C of the PDC

was "0.00." Given the lack of argument on this issue, we

disregard FOF No. 58 as a point of error. See Hawai#i Rules of

Appellate Procedure Rule 28(b)(7). To the extent Wife's

observation concerns her challenge to COL Nos. 22, 23, and 24, we

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address those COLs below. 

COL Nos. 22, 23, and 24 provide as follows:

22. With regard to Wife's claim that Husband should

be charged with $68,779.00 for payments made during the time

of the marriage towards his student loans, the Court finds

insufficient evidence to support said claim and in the

alternative, finds that there are [VARCs] that justif[y]

equitable deviation from Partnership Model Division.

23. As mentioned supra, the Court finds that, inter

alia, both parties benefitted from Husband's employment;

Husband obtained said employment as a result of the student

loan debts he incurred; Wife was able to engage in her

photography business and not required to work on a full-time

basis; all of Husband's remaining student loan debt

(approximately $42,221.00) has been allocated to him; Wife

made no reasonable efforts to secure employment;

notwithstanding her lack of efforts, Wife is living a

comfortable life; Wife will receive $33,738.11 as an

equalization payment as a result of the divorce; and

considering the effects of the PDC which will leave Husband

in the negative of over $-55,000.00 and Wife will receive

assets totaling approximately $50,000.00. 

24. "VARC[s] permit the family court to equitably

deviate from the Partnership Model in dividing the parties'

Marital Partnership Property." Kakinami[v. Kakinami, 127

Hawai#i 126,] 130 n.4, 276 P.3d [695,] 699 n.4 [(2012)]. As

a result of such findings, the Court finds that it would be

fair and equitable to exclude said amount as a negative

capital contribution on the part of Husband.

Wife argues that COL No. 22 is wrong in part because

both the amount of Husband's student loan debt of $111,000 on the

date of marriage, and the $68,000 paid off during the marriage,

were admitted by Husband at trial. As previously stated, the

record supports Wife's contention. To the extent that COL No. 22

rejects Wife's claim based on "insufficient evidence" of the

amount of Husband's student loan debt that was paid during the

marriage, we conclude that: (1) COL No. 22 presents a mixed

question of fact and law, and (2) that part of COL No. 22 is

clearly erroneous. 

COL No. 22 also states that VARCs justify equitable

deviation from partnership model division. Wife argues that this

part of COL No. 22 is wrong because the factors identified by the

court in COL No. 23 "did not constitute actual or proper VARCs

under Hawaii law[.]" Wife challenges COL Nos. 23 and 24 on the

same basis.7/

7/ In addition, Wife argues that COL No. 23 is wrong to the extent

the court found that "the effects of the PDC . . . will leave Husband in the

(continued...)

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In divorce proceedings, marital property is divided

according to partnership principles, which distinguish between

property brought into the marriage and property acquired during

the marriage, and which assign category values based on these

considerations. Gordon v. Gordon, 135 Hawai#i 340, 349, 350

P.3d 1008, 1017 (2015) (citing Tougas v. Tougas, 76 Hawai#i

19, 26, 868 P.2d 437, 444 (1994)). The partnership model

requires the family court to: (1) find all facts necessary to

properly categorize the property into one of five categories and

assign the property the relevant net market values;8/ (2)

identify any equitable considerations justifying deviation from

an equal distribution between the parties; (3) decide whether

there will be a deviation; and (4) decide the extent of any

deviation. Gordon, 135 Hawai#i at 350, 350 P.3d at 1018 (citing

and quoting Jackson, 84 Hawai#i at 332, 933 P.2d at 1367). A

property division chart or similar document is "a valuable and

important tool for the family court to properly divide property

and afford transparency to the parties and reviewing court." See

7/(...continued)

negative of over $-55,000.00 and Wife will receive assets totaling

approximately $50,000.00." 

8/ In Gordon, the Hawai#i Supreme Court explained that the categories

consist of:

Category 1 includes the net market value of property

separately owned by a spouse on the date of marriage;

Category 2 includes the increase in the net market value of

Category 1 property during the marriage;

Category 3 includes the net market value of property

separately acquired by gift or inheritance during the

marriage;

Category 4 includes the increase in the net market value of

Category 3 property during the marriage; and

Category 5 includes the net market value of the remaining

marital estate at the conclusion of the evidentiary part of

the trial.

135 Hawai#i at 349, 350 P.3d at 1017 (footnotes omitted) (citing Tougas, 76

Hawai#i at 26, 868 P.2d at 444). "Each partner's individual contributions to

the marriage, i.e., the values of Category 1 and Category 3, are to be repaid

to the contributing spouse absent equitable considerations justifying a

deviation." Id. (citing Tougas, 76 Hawai#i at 26, 868 P.2d at 444). "[T]he

values of Category 2, Category 4, and Category 5 are awarded one-half to each

spouse absent equitable considerations justifying deviation from a 50/50

distribution." Id. at 350, 350 P.3d at 1018 (citing Jackson v. Jackson, 84

Hawai#i 319, 332, 933 P.2d 1353, 1366 (App. 1997)).

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Gordon, 135 Hawai#i at 351, 350 P.3d at 1019 (citing Higashi v.

Higashi, 106 Hawai#i 228, 230, 103 P.3d 388, 390 (App. 2004)).

To determine whether equitable considerations justify a

deviation from the partnership model, a family court must

consider the following: "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, and

all other circumstances of the case." Id. at 352-53, 350 P.3d at

1020-21 (citing HRS § 580-47(a)(2006)); see also Hamilton v.

Hamilton, 138 Hawai#i 185, 206, 378 P.3d 901, 922 (2016). "Other

than relative circumstances of the parties when they entered into

the marital partnership and possible exceptional situations,

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

present and the future, not the past." Gordon, 135 Hawai#i at

353, 350 P.3d at 1021 (quoting Jackson, 84 Hawai#i at 333, 933

P.2d at 1367). "In other words, deviation from the partnership

model should be based primarily on the current and future

economic needs of the parties rather than on punishing one party

for financial misconduct." Id.

Here, the Family Court concluded that VARCs justified

equitable deviation from the partnership model division, i.e.,

the exclusion of the amount of Husband's student loan debt that

was paid during the marriage from the court's PDC. In reaching

this conclusion, the court identified the following VARCs: (1)

both parties benefitted from Husband's employment, which he

obtained as a result of his student loan debt; (2) Wife was able

to engage in her photography business and was not required to

work on a full-time basis; (3) all of Husband's remaining student

loan debt (approximately $42,221.00) has been allocated to him;

(4) Wife made no reasonable efforts to secure employment after

the separation,9/ but is living a comfortable life; (5) Wife will

receive $33,738.11 as an equalization payment as a result of the

divorce; and (6) the court's property division "will leave

9/ This VARC appears to be based on FOF No. 46, which Wife does not

dispute, and which states: "The Court finds that Wife failed to make

reasonable efforts to obtain employment after the separation." (Emphasis

added.)

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Husband in the negative of over $-55,000.00 and Wife will receive

assets totaling approximately $50,000.00." 

Wife argues that these six factors improperly focus on

the parties' past and their relative conduct during the marriage. 

And we recognize that divorce "is not a vehicle by which one

spouse is compensated for having given more than he or she

received during the marriage[.]" Gordon, 135 Hawai#i at 353, 350

P.3d at 1021 (quoting Hatayama v. Hatayama, 9 Haw. App. 1, 11-12, 

818 P.2d 227, 282 (1991)). 

Considering these six factors in context, however, we

conclude that they focus primarily on the condition in which each

party will be left by the divorce and, in particular, the

disparity between Husband and Wife's post-divorce assets and

liabilities. Indeed, the sixth factor recognizes a $105,000.00

disparity in post-divorce assets. In Selvage v. Moire, the

supreme court stated that "[t]he vast disparity in the parties'

circumstances after the divorce, and the limited assets with

which [one party] will be left, constitutes an equitable

consideration justifying deviation" from the partnership model. 

139 Hawai#i 499, 511, 394 P.3d 729, 741 (2017). Here, the Family

Court properly considered Husband and Wife's financial

circumstances after the divorce in deciding that deviation from

the partnership model was appropriate. 

Nevertheless, we are unable to discern from the Family

Court's findings and our review of the record how the Family

Court calculated the $105,000.00 post-divorce asset disparity

between Husband and Wife. Without further findings or

explanation from the Family Court, we cannot determine whether

the asserted disparity is supported by substantial evidence.

Thus, without more, the Family Court erred in relying on this

disparity as a VARC to justify the exclusion of Husband's student

loan debt that was paid during the marriage from the court's PDC.

C. Wife's Unpaid Attorney's Fees and Costs

Wife contends that the Family Court erred in crediting

her unpaid debt of $14,961.00 for attorney's fees and costs as an

asset to her on the court's PDC, instead of debiting it as a

liability to Wife. 

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In its Decision and Order, the Family Court granted

"Wife's request to equally split all attorneys' fees and costs

and thus, items '11.09', through and including '11.11' are

included in the PDC." This ruling was carried over into the

Divorce Decree, which stated that "[t]he attorney's fees have

been allocated in the PDC." Specifically, "Part A" of the PDC

sets out Wife's unpaid attorney's fees of $14,961.00 on line

11.09, Wife's paid attorney's fees of $3,500.00 on line 11.10,

and Husband's paid attorney's fees of $16,293.52 on line 11.11. 

Upon review of the record, it appears that line 11.09

contains a typographical error in the "Wife" column, which shows

Wife's unpaid attorney's fees in the amount of $14,961.00 as a

positive number, i.e., an asset. It is undisputed that this

amount should have been reflected as a liability. As a result of

this error, the "Total . . . Partnership Property to Wife" set

out in Part A of the PDC is correspondingly greater than it would

otherwise be. This erroneous total is then carried over into the

PDC's "Part B: Calculation of Equalization Payment," resulting in

an incorrect calculation of the equalization payment to be made

by Husband to Wife. 

Wife also argues that COL No. 30 contradicts the

Decision and Order, which grants Wife's request "to equally split

all attorneys' fees and costs," as well as the PDC and the

Divorce Decree, which reflect the same ruling. Specifically, COL

No. 30 states: "The Court finds that in light of the attorneys'

fees and costs incurred by each party, Husband - $16,293.52 and

Wife - $18,461.30, it is fair and equitable that each party bear

their own attorneys' fees and costs incurred in this matter." 

The Family Court's conclusion that each party will bear

their own attorney's fees and costs is inconsistent with: (1) the

court's stated intention to equally split all attorneys' fees and

costs, as reflected in the Decision and Order, the PDC, and the

Divorce Decree; and (2) FOF No. 50, which references and attaches

the Decision and Order and the PDC. We therefore conclude that

COL No. 30, which presents a mixed question of fact and law, is

clearly erroneous.

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D. Payment Schedule for Husband's Equalization Payment

Wife contends that the Circuit Court erred in setting a

payment schedule for Husband's equalization payment owed to Wife. 

In its Decision and Order, the Family Court ordered, in

relevant part: 

Husband shall pay [W]ife a total of $33,738.11. Said amount

shall be paid as follows:

a. $8,434.52 on or before June 30, 2019; 

b. $8,434.52 on or before December 31, 2019; 

c. $8,434.52 on or before June 30, 2020; and 

d. $8,434.55 on or before December 31, 2020. 

Wife asks this court to set aside the payment schedule, and

remand the matter to the Family Court with instructions that

Wife's property division be entered nunc pro tunc to the date of

divorce, that she be awarded prejudgment interest from that date,

and that the entire amount owed be entered as a lump sum judgment

against Husband. 

Initially, we reject Husband's argument that Wife is

barred from raising the payment-schedule issue on appeal. In her

Motion for Reconsideration of the Decision and Order, Wife argued

that the Family Court "should reconsider its order for

installment payments, and enter an order that the full amount of

the equalization payment is due and owing from and after the

[date of the completion of the evidentiary part of the trial],

the date of the Court's Decision and Order, or the date of the

parties' Divorce Decree, such that postjudgment interest will

begin to run on the entire amount owing until it is paid." 

Because the Family Court ordered the payment schedule sua sponte

after trial, Wife did not have an earlier opportunity to contest

the schedule. Her argument was therefore properly raised in her

Motion for Reconsideration, and may be considered by this court. 

See Tagupa v. Tagupa, 108 Hawai#i 459, 465, 121 P.3d 924, 930

(App. 2005).

As to the merits of Wife's argument, HRS § 580-47

provides, in relevant part:

(a) Upon granting a divorce, . . . the [family] 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. . . . In making these

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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.

Wife contends that the Family Court's discretion in

determining the parties' property division does not extend to

setting "an installment payment plan" for Husband's equalization

payment. However, Wife provides no authority supporting her

position, and HRS § 580-47 expressly grants the court authority

to make any orders "as appear just and equitable" in "finally

dividing and distributing" the parties' property. 

Here, the Family Court concluded that "it [was] fair

and equitable to allow Husband to pay the equalization payment

($33,738.11) in four installment payments." In fashioning this

payment schedule, the court "t[ook] into consideration inter

alia, the following factors: Husband's monthly child support

obligation to wife ($3,000.00/month); Husband is being left to

pay his remaining student loan debts; Husband's lack of liquidity

following the divorce; and the lack of significant debts that

Wife is responsible for following the divorce." These factors

properly focused on Husband and Wife's financial circumstances

after the divorce and the limited assets with which Husband was

left. On this record, we conclude that the Family Court did not

abuse its discretion in setting a payment schedule for Husband's

equalization payment to Wife.

E. Wife's Reimbursement Claim

Wife contends that the Family Court erred in failing to

make any orders regarding her claim for certain reimbursements

allegedly owed by Husband. Specifically, at trial, Wife

requested an order that Husband reimburse her for, among other

things, half of the costs she paid for their son's therapy and a

multiple-day school field trip (Reimbursement Claim).10/ It

appears that the Family Court did not decide whether Wife was

10/ Wife testified at trial to therapy expenses totaling $2,470, and

school field-trip costs totaling $350.

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entitled to reimbursement for these expenses, as the Decision and

Order and the subsequent Divorce Decree were both silent on this

subject. In her December 27, 2018 Motion for Reconsideration of

the Decision and Order, Wife noted that the Family Court had not

ruled on Wife's Reimbursement Claim, and requested a ruling. The

Family Court denied the motion without explanation, and the

subsequent Divorce Decree did not address Wife's Reimbursement

Claim.

In RC v. MC, this court ruled that "[t]he Family Court

abused its discretion in denying without explanation Father's

request for reimbursement of his Visa credit card debt and joint

cell phone bill." No. CAAP-15-0000592, 2019 WL 338344, at *7

(Haw. App. 2019). There, the family court denied Father's

request for reimbursement because "he retained all of his

interest and any appreciation thereon on his condominium, which

was the marital residence." Id. Father argued that "the

property was worth less than his mortgage, and that the mortgage

had been refinanced, in part, to pay off marital debt." Id. 

However, neither the divorce decree, the decision and order, nor

the findings of fact and conclusions of law issued by the family

court listed the property's mortgage or net market value of the

mortgage. Id. As a result, this court was unable to

"meaningfully review whether the Family Court correctly

calculated its overall property division or the distribution of

the overall marital estate." Id. Accordingly, we ruled that,

without more, the family court abused its discretion when it

denied Father's specific reimbursement requests. Id.

Here, the Family Court did not include the expenses

that are the subject of Wife's Reimbursement Claim on the PDC,

did not specifically address the claim in connection with the

health care coverage and therapy sections of the Divorce Decree,

and did not otherwise provide any explanation for denying Wife's

Motion for Reconsideration as to her Reimbursement Claim. 

Without further findings or explanation from the Family Court, we

are unable to meaningfully review the court's decision, if any,

regarding Wife's Reimbursement Claim. Thus, without more, the

Family Court abused its discretion when it failed to resolve

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Wife's request for reimbursement of one-half of the costs she

paid for their son's therapy and school field trip.

III. Conclusion

For these reasons, we vacate: (1) that portion of

Paragraph 10 of the Decision and Order denying "Wife's request to

include the amount paid towards Husband's student loans during

the marriage . . . in the PDC," as well as the related parts of

the PDC, the Decision and Order, and the Divorce Decree; (2) FOF

No. 53, and COL Nos. 22, 23, and 24; (3) that portion of

Paragraph 13 of the Decision and Order awarding attorneys' fees

and costs as set out in the PDC, as well as the related parts of

the PDC, the Decision and Order, and the Divorce Decree; and (4)

COL No. 30. We remand the case to the Family Court for: (1)

determination of whether and to what extent it will exercise its

discretion in deviating from the partnership model with respect

to the payments made on Husband's student loan debt during the

marriage, and to enter appropriate findings on the record; (2)

determination of the award of attorneys' fees and costs; (3)

determination of Wife's Reimbursement Claim; and (4) further

proceedings consistent with this Memorandum Opinion. We affirm

in all other respects.

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

On the briefs:

Steven J. Kim

(Law Office of Steven J. Kim)

for Defendant-Appellant.

Kendal A. Luke,

Gavin K. Doi, and

Grace U. Lee

(Doi/Luke, AAL, LLLC)

for Plaintiff-Appellee. 

/s/ Katherine G. Leonard

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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