NOS. CAAP-17-0000451 AND CAAP-19-0000664

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-17-0000451

NICOLETA JACOBY, Plaintiff-Appellee,

v.

BENNETT JACOBY, Defendant-Appellant,

AND

CAAP-19-0000664

NICOLETA JACOBY, Plaintiff-Appellee,

v.

BENNETT JACOBY, Defendant-Appellant,

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT

(FC-D No. 08-1-281K)

SUMMARY DISPOSITION ORDER

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

In this consolidated appeal, in CAAP No. 17-0000451, 

Defendant-Appellant Bennett Jacoby (Bennett) appeals from the

Family Court of the Third Circuit's (Family Court)1 February 8,

2016 Order on Issues on Remand (Order on Remand), and May 2, 2017

Amended Decree Granting Absolute Divorce and Awarding Child

Custody (Amended Decree). In CAAP No. 19-0000664, Bennett

appeals from the Family Court's2 August 28, 2019 Order and

1 The Honorable Aley K. Auna, Jr., presided over this remanded case.

Judge Auna also presided over the 2011 divorce proceedings and entered the

2011 divorce decree. 

2 The Honorable Wendy M. DeWeese presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000451

20-APR-2021

07:58 AM

Dkt. 89 SO
Judgment in Favor of Plaintiff Nicoleta Jacoby (Nicoleta) and

Against Defendant Bennett Jacoby for Attorney's Fees and Costs

(Order and Judgment for Attorney's Fees and Costs) and from the

September 20, 2019 "Order Following Hearing on [Nicoleta's] March

20, 2019 Motion to Enforce July 5, 2011 Decree and May 2, 2017

Amended Decree, For Order Establishing Manner of Alimony Payments

to [Nicoleta], and For Order Directing Defendant to Pay

[Nicoleta's] Attorney's Fees and Costs" (Order on Motion to

Enforce). These orders that are the subject of this current

consolidated appeal, were issued following remand pursuant to

this court's opinion in Bennett's first appeal, Jacoby v. Jacoby,

134 Hawai#i 431, 341 P.3d 1231 (App. 2014) (Jacoby I). 

In CAAP No. 17-0000451, Bennett contends that the

Family Court: (1) abused its discretion and erred as a matter of

law in awarding spousal support to Nicoleta in an amount that

grossly exceeded the court's calculation of her reasonable needs

in its Order on Remand; (2) erred as a matter of law in

allocating the values of the parties' respective bank, checking

and savings accounts to them twice; and (3) erred as a matter of

law in failing to recalculate post-judgment interest based on the

corrected allocation of the values of the parties' accounts.

In CAAP No. 19-0000664, Bennett contends that the

Family Court: (1) abused its discretion in awarding Nicoleta

attorneys' fees without inquiry into the parties' current

economic condition; (2) abused its discretion in entering certain

findings of fact (FOF) relating to Nicoleta's medical issues when

no evidence was presented during the hearing on the Motion to

Enforce; (3) erred in awarding attorneys' fees to Nicoleta

because "this was largely not an enforcement action on which

[Nicoleta] prevailed;" and (4) abused its discretion in awarding

attorneys' fees to Nicoleta because the award was excessive, not

fair and reasonable, and made without an evidentiary hearing.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

2
the arguments advanced and the issues raised by the parties, as

well as the relevant statutory and case law, we vacate and remand

in part with respect to the spousal support award, and affirm in

all other respects in both cases. 

Spousal support award

Bennett contends that the Family Court abused its

discretion and erred as a matter of law in awarding spousal

support to Nicoleta in an amount that grossly exceeded the

court's calculation of her reasonable needs in its Order on

Remand. Bennett specifically argues that if Nicoleta's

"reasonable needs were met with a $4,000 award of monthly spousal

support prior to considering and accounting for that $4,532 in

dividend and interest income," that Nicoleta did not continue to

need $4,000 per month in spousal support to meet her reasonable

needs. This contention has merit.

In Jacoby I, id., this court recounted the Family

Court's factual findings as to Nicoleta's numerous illnesses,

inability to pursue gainful employment, and sixteen-year marriage

during most of which Bennett provided the family's sole financial

support, in affirming the Family Court's award of permanent

spousal support to Nicoleta. We also affirmed the Family Court's

determination of Nicoleta's reasonable monthly expenses in the

amount of $6,237. We held that the Family Court used "erroneous

income assumptions" by including the entire amount of $9,064 in

investment income as Bennett's, and none to Nicoleta, where the

Family Court had awarded 50% of the accounts generating the

investment income to Nicoleta. Id. at 446, 341 P.3d at 1246. We

remanded for the Family Court to redetermine the monthly spousal

support award in light of the corrected income assumptions for

investment income. Id. On remand, having applied the corrected

income assumptions, the Family Court still arrived at the same

spousal support level of $4,000 per month, engaging in a new just

3
and equitable determination,3

 which was not a part of the remand

order. This was error.

We vacate the spousal support award and remand for the

Family Court to recalculate the spousal support award using the

corrected investment income figure of $4,532 for each party, and

taking into account the $6,237 reasonable monthly expenses amount

that was affirmed in Jacoby I.

Valuation of checking and savings accounts

Bennett contends that the Family Court erred as a

3 On remand, the Family Court determined the following:

1. Wife's household transportation, and personal

monthly expenses total $6,237[.]

2. Wife's income is based upon spousal support and

$290 payment made by Husband for her medical insurance

premiums[.]

3. Accrued interest of bonds and Certificates of

Deposit is $9,064 per month[.]

4. Pursuant to the Decree, the investment accounts

that generated the $9,063 monthly income were divided

equally. Accordingly, each party is to receive $4,532

per month ($9,064 ÷ 2) in income generated from these

investment accounts. The Court did not take this into

account when it issued its Decree.

5. Child support is not considered income for the

purposes of calculating spousal support.

6. Husband was ordered to pay $290 per month

towards Wife's medical insurance premium[.]

7. Husband's total monthly income, excluding the

deduction of Wife's medical insurance premium, is

recalculated to $24,870 ($29,402 - $4,532)[.]

8. Wife's total monthly income, excluding the

medical insurance premium, is recalculated to $4,532.

9. The parties continue to have a large disparity

in income; a little over $20,300 difference.

10. All FOFs made in the Decree [not] inconsistent

[sic] with the findings herein continue to be relevant

to the Court's decision regarding spousal support.

11. Under the circumstances of this case, it would

be just and equitable to continue the award of permanent

spousal support of $4,000 per month.

(emphases added).

4
matter of law in allocating the values of the parties' respective

bank, check, and savings accounts to them twice. This contention

is without merit. In Jacoby I, we stated, 

[T]he Family Court improperly failed to account for the

parties' respective checking and savings accounts as part of

the final property equalization calculation. Although the

Family Court did not abuse its discretion when it ordered

that the parties would each keep their own separate

accounts, the value of these accounts must nevertheless be

taken into consideration and the Family Court erred in

failing to include these accounts in its final calculations.

134 Hawai#i at 453, 341 P.3d at 1253 (emphasis added). 

Accordingly, on remand, the Family Court established that

16. . . . [T]he total value of the parties'

checking and savings accounts that were allocated

should have been specifically identified in the

allocation chart. The ICA specifically stated that

the "Court improperly failed to account for the

parties' respective checking and savings accounts as

part of the final property equalization calculation 

. . . [and failed] to include these accounts in its

final calculations."

17. The total amount of the checking and

savings accounts for allocation is $93,348; $59,606 to

Husband and $33,742 to Wife.

(emphases in original).

Bennett argues that $93,348 was included in the 2011

Divorce Trial Order lump sum of $2,691,452, just not separately

indicated; consequently, on remand the Family Court calculated

$93,348 twice and the Order on Remand findings of fact and

conclusions of law (FOF/COL) 18 (containing the corrected

Allocation Chart) should be amended to reflect a corresponding

subtraction of the allocated amounts from the $2,691,452 lump

sum. Bennett's argument disregards our prior holding in Jacoby

I, and is without merit.

The 2011 Divorce Trial Order reflects the parties

stipulating in paragraph number 4, to "bank and checking accounts

with the following values at trial and which will be allocated to

each party as indicated:" Nicoleta's checking and savings

accounts totaling $33,742 (in First Hawaiian Bank Checking and

5
PenFed Savings); Bennett's accounts totaling $59,606 (in Bank of

Hawaii, Emigrant Savings, two Everbank Checking accounts, and

PenFed Savings). Pursuant to our prior holding in Jacoby I, the

Family Court was correct to add the checking and savings accounts

in the Order on Remand insofar as they were omitted from the

calculations in the 2011 Divorce Trial Order.

Post-judgment interest calculation

Related to the previous point of error, Bennett

contends that the Family Court erred as a matter of law in

failing to recalculate post-judgment interest based on the

incorrect allocation of the values of the parties' checking and

savings accounts. Bennett argues that if the checking and

savings accounts are excluded, then the "total amount each party

should have been entitled to take in cash/liquid assets should

have been adjusted to $1,299,052" instead of $1,345,726.4

 As we

have rejected Bennett's previous point of error, this contention

is also without merit.

In Jacoby I, we found that the Family Court did not

abuse its discretion in ordering Bennett to pay statutory postdecree interest, but remanded this issue for a recalculation of

interest based on the final property distribution upon allocating

the value of the parties' respective checking and savings

accounts. 134 Hawai#i at 454 n.17, 341 P.3d at 1254 n.17. On

remand, the Family Court determined:

27. . . . [T]he checking and savings accounts

totaling $93,348 was not included in the cash/liquid

assets equal distribution.

28. Apparently the cash/liquid assets were not

equally divided after the divorce. Husband,

therefore, delivered to Wife $594,805 which

represented the balance to equalize the distribution

of $1,345,726 to each party.

29. Since the inclusion of the checking and

savings accounts in the recalculation of the

4 The $1,299,052 amount Bennett posits here, comes from $2,691,452 -

$93,345 (total of checking and savings accounts) = $2,598,107 divided in half =

$1,299,053.50.

6
equalization payment does not affect the total value

of the cash/liquid assets or the check amount of

$594,805, the post-judgment interest amount shall

remain unchanged.

(emphases added). The Family Court determined that a

recalculation of the post-judgment interest on the $594,805.00

amount was unnecessary and thus, the "post-judgment interest

amount shall remain unchanged."

Bennett argues that the post-judgment interest must be

recalculated because Bennett owed Nicoleta "a lesser equalization

payment of ($1,299,052 - $750,921 =) $548,131 rather than

$594,805." This argument is inaccurate. First, Nicoleta owed

Bennett an equalization payment, not the other way around. 

Second, the post-judgment interest award to Nicoleta that is at

issue here was not based on the $588,677 equalization payment

Nicoleta owed to Bennett, that was waived by the Family Court in

the 2011 Divorce Trial Order. The post-judgment interest award

arose from the 2011 Divorce Decree where the Family Court

distributed the total liquid assets of $2,691,452 with one-half

to each party, or $1,345,726. The parties subsequently agreed

that Bennett's payment of the $1,345,726 distribution that he

owed to Nicoleta would be fulfilled by Bennett paying Nicoleta

$594,805 ($1,345,726 - $750,921).5 In Jacoby I, this history

surrounding the $594,805 amount is explained in footnote 5 as

follows: 

The Divorce Decree awarded Nicoleta one-half of the total

value of the parties' "Bank/Savings, Sec., Ret., Etc." 

asset (Accounts), which the Family Court valued at 

$1,345,726. Nicoleta had possession of assets with 

DOCOEPOT value of $750,921, and Bennett assigned her title

to these assets. Because the Family Court waived 

Nicoleta's $588,677 equalization payment, Bennett owed her

$594,805 ($1,345,26 - $750,921).

5 Bennett's October 27, 2011 reply memorandum explained, "Both parties

agree that Wife was in possession of assets with DOCOEPOT value of $750,921. On

September 30, 2011, Husband's check in the amount of $594,805 was sent to Wife,

representing the balance of the $1,345,726 property distribution awarded to Wife

by the Court's Divorce Decree. Thereafter, Husband executed a consent assigning

to Wife the bonds and other accounts in her possession with a DOCOEPOT value of

$750,921."

7
The Family Court ordered that Bennett pay $14,666.40 

in interest on his post-decree payment to Nicoleta of 

$594,805. The interest was calculated by multiplying 

$162.96 per day by 90 days.

134 Hawai#i at 439 n.5, 341 P.3d at 1239 n.5. On remand, the

Family Court confirmed this in FOF/COL 28, noting that Bennett

delivered $594,805 to Nicoleta, "which represented the balance to

equalize the distribution of $1,345,726 to each party."

The post-judgment interest award thus arose out of the

$594,805 payment by Bennett to Nicoleta of the property

distribution award, which the Family Court correctly concluded

remained unchanged. The Family Court did not err in not

recalculating post-judgment interest under these circumstances.

Attorneys' fees on 2019 Motion to Enforce

In CAAP-19-0000664, on March 20, 2019, Nicoleta filed

her Motion to Enforce, asking that Bennett be ordered to pay

$22,494.81 in unpaid medical insurance premiums for Nicoleta and

$4,000 for the January 2019 alimony payment. She also asked that

the court establish a method of sending spousal support payments,

specifically that Bennett not send spousal support checks via

certified mail, as he had begun doing without her consent in

October 2018, because it was difficult for her to go to the post

office to pick them up. The Motion to Enforce also requested

fees and costs. In opposition, Bennett argued that Nicoleta had

failed to provide information that her current plan was the

reasonable equivalent of the 20/RX Plan that the Family Court had

ordered. Bennett claimed that he should instead be awarded

attorneys' fees because he "went to great lengths to try to

resolve this matter" after Nicoleta's lack of communication.

At the first hearing on June 3, 2019 on the Motion to

Enforce, Bennett agreed to pay the past-due premiums in the

monthly amount of $274.83, which was the rate of the 2014

premium, as it was likely the minimum premium amount he owed. At

the second hearing on July 17, 2019, the Family Court found that

Nicoleta had demonstrated that she did not unilaterally upgrade

her medical coverage and that her current plan was a reasonable

8
equivalent of the court-ordered plan. The Family Court ordered

Bennett to pay the remainder of the 2016, 2017, and 2018

premiums, and orally granted Nicoleta's request for attorneys'

fees. The Family Court entered its Order and Judgment on

Attorney's Fees and Costs on August 28, 2019, awarding $36,703.14

in attorneys' fees and costs to Nicoleta, over Bennett's

opposition.6

As to Bennett's first contention, we hold that the

Family Court did not abuse its equitable discretion to award

attorneys' fees, and an inquiry into the parties' current

economic condition was not required. Thus, this contention is

without merit. HRS § 580–47(f) (2018) provides that the family

court may award attorneys' fees and costs to either party to pay

all or part of "the fees, costs, and expenses of the other party"

relating to a "motion for an order to enforce" an order of

spousal support under subsection (a) "as shall appear just and

equitable after consideration of the respective merits of the

parties, the relative abilities of the parties, the economic

condition of each party at the time of the hearing . . . ." 

"[A]n 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." Hamilton v. Hamilton, 138 Hawai#i 185, 209, 378

P.3d 901, 925 (2016) (internal citations omitted).

The Family Court's decision relied on the first factor,

the respective merits of the parties, and Bennett's withholding

of Nicoleta's insurance premiums entirely, not just the amount in

excess of what was paid in previous years and ordered in 2011,

while knowing that Nicoleta had severe medical conditions that

required ongoing treatment and continuous medical coverage. At

the end of the July 17, 2019 hearing, the Family Court orally

granted Nicoleta's request for attorneys' fees and costs,

stating:

6 Bennett filed a Declaration of Counsel in Opposition to Plaintiff's

Request for Fees and Costs on August 21, 2019 (Opposition).

9
But you know, it does appear to me -– I mean,

what just stands out to the Court is that, you know, even

when the premiums went up to the $410.53, which was less

than what Dr. Jacoby had been ordered to pay previously, he

balked at that.

It does not appear from the communications that

I read between counsel that any progress was being made to

resolve the main issue, which is the insurance premium. And

you know, Dr. Jacoby, you know, married Ms. Jacoby knowing

that she had these medical conditions. She had certain

medical conditions before she married him. She had these

conditions during the marriage.

And you know, in the Court's mind, health

insurance is a very very important issue for Ms. Jacoby. 

And the fact that it went on for as long as it did without

there being litigation is actually surprising to me.

In its Findings of Fact and Conclusions of Law

(FOF/COL) on the Motion to Enforce, the Family Court detailed,

from 2016 to 2018, Nicoleta's communication to Bennett regarding

the increase in her medical insurance premiums, her provision of

requested information regarding the health plans, Bennett's

requests for further information and refusal to reimburse, and

the communications through their attorneys regarding these

issues, culminating in the filing of the Motion to Enforce in

2019. The record demonstrates that the Family Court considered

"the respective merits of the parties," "the relative abilities

of the parties," and "all other circumstances of the case" under

HRS § 580-47(f), and did not abuse its discretion in awarding

fees and costs to Nicoleta.

We also reject Bennett's argument that an inquiry into

the parties' current economic condition was required to impose

fees and costs. In fact, Rule 10(c) of the Hawai#i Family Court

Rules (HFCR) explicitly provides that a motion for attorneys'

fees in enforcement proceedings, unlike other motions requesting

monetary relief, does not require the movant to produce income,

expense, asset and debt statements. Thus, the Family Court did

not abuse its discretion in awarding fees without an updated

account of the parties' current economic condition, as none was

required for this enforcement proceeding. See HFCR Rule 10(c).

10
As to Bennett's second contention, FOF/COLs of

Nicoleta's medical conditions were sufficiently supported by the

record, and this contention is without merit. Bennett argues

that no evidence was presented during the hearing on the Motion

to Enforce to support the Family Court's FOF/COLs on Nicoleta's

medical issues, and maintains that the court should not have

included FOF/COLs 3-7, which were included in the 2011 Decree,

and FOF/COLs 8-12, which relate to Nicoleta's current medical

conditions. This contention is without merit, as the record

reflects Nicoleta's 2019 declaration in support of her Motion to

Enforce, which lists her various diagnoses including progressive

relapsing multiple sclerosis, status post left cerebral

hemorrhage due to a brain tumor, bi-lateral weakness, painful

numbness, blurred and double vision, and chronic fatigue.

Moreover, given that Nicoleta's medical conditions were

sufficiently enumerated in the 2011 Divorce Decree and in Jacoby

I, 134 Hawai#i at 436-37, 341 P.3d at 1236-37, the Family Court

did not abuse its discretion in taking notice of them. See

Hawai#i Rules of Evidence Rule 201(c); State v. Kotis, 91 Hawai#i

319, 328–29, 984 P.2d 78, 87–88 (1999) (court may take notice of

an adjudicative fact in its own record, with or without a request

of the parties). For the same reason, there is no merit to

Bennett's contention that the Family Court erred in FOF/COL 13,

that Bennett "is and has always been fully aware" of Nicoleta's

medical conditions and physical restrictions. 

 As to Bennett's third contention, the Family Court

did not err in awarding attorneys' fees under HRS § 580-47 as

this was an enforcement proceeding, and this contention is

without merit. Bennett characterizes the Motion to Enforce as

not "an enforcement action," and challenges findings and

conclusions7 that would support such a conclusion. The 2011

7 Related to this point, Bennett challenges the Family Court's

FOF/COLs 28, 29, 30, 33, and 40, which concern the communication between the

parties and/or their counsel between 2016 and 2018. They are not, as he

contends, clearly erroneous as they are supported by the record.

11
Decree and 2017 Amended Decree required payment of medical

premiums. Bennett does not dispute that he did not reimburse

these premiums between 2016 and 2019, when the Motion to Enforce

was filed. Among the items of relief requested in the motion was

payment of these back premiums to comply with the terms of the

divorce decree. "Enforce" plainly means "[t]o give force or

effect to (a law, etc.); to compel obedience to." Enforce,

Black's Law Dictionary (11th ed. 2019). As a result of the

Motion to Enforce, Nicoleta was able to obtain her requested

relief of payment for these medical premiums. Nicoleta's Motion

to Enforce was an enforcement action to which HRS § 580-47(f)

applied, and Bennett's contention is without merit.

As to Bennett's final contention, Bennett failed to

demonstrate that the attorneys' fees awarded were excessive or

unfair, and this contention is without merit. As to Bennett's

argument that an evidentiary hearing was required for the fee

determination, we note that none was requested below, and

assuming arguendo that a request was made, Bennett does not cite

any legal authority requiring such a hearing.8

 

An award of attorneys' fees is at the family court's

discretion, "subject only to the standard that it is 'fair and

reasonable.'" Markham v. Markham, 80 Hawai#i 274, 288, 909 P.2d

Bennett also challenged FOF/COLs 50, 54-58, 60-63, 65-71, 82, and

83, which relate to alimony payments. He contends that the findings that he

failed to make alimony payments or that they were untimely were "untrue and

not supported by the record" and unnecessary because the alimony issue was

resolved at the first hearing. Lastly, Bennett objects to FOF/COLs 85-87,

which support FOF/COLs 81 and 86, which state that Nicoleta "had no choice"

but to file the Motion to Enforce in order to pursue the back premiums and

alimony payment, and the FOF/COLs 91-93, that it would be just and equitable

to require Bennett to pay attorneys' fees. These FOF/COLs were supported by

the record and not clearly erroneous.

8 Bennett alleges as error, "No opportunity for an evidentiary hearing

on that issue [(attorneys' fees)] was afforded by the family court." Bennett

does not indicate where in the record this alleged error was objected to or the

manner in which this alleged error was brought to the attention of the Family

Court. See Hawai#i Rules of Appellate Procedure Rule 28(b)(4)(iii). At the July

17, 2019 hearing, Bennett only requested to file a reply to the attorneys' fees

declaration, which was granted; he did not request a hearing. Bennett

subsequently filed his Opposition and did not request an evidentiary hearing in

his Opposition. Thus, no evidentiary hearing appears to have ever been

requested.

12
602, 616 (App. 1996) (quoting Farias v. Farias, 58 Haw. 227, 233,

566 P.2d 1104, 1109 (1977)). There is support for the fees and

costs in Nicoleta's counsel's August 8, 2019 declaration. See

Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92,

122–23, 176 P.3d 91, 121–22 (2008) (no specific findings

necessary in granting attorneys' fees). The Family Court

reviewed the attorneys' fees requested, declaration, and

supporting documentation, and reduced the amount awarded from the

$39,089.99 requested to $36,703.14. On September 20, 2019, the

Family Court entered findings of fact and conclusions of law

chronicling the history leading up to the filing of the motion to

enforce, what transpired during the enforcement litigation, and

the agreements and resolution that were reached, in support of

its fee award.

Bennett has not specifically identified the entries and

calculations to which he objects, in Nicoleta's counsel's 

declaration and attachments in support of the fees and costs,

which total approximately 70 pages. See 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) (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."). We conclude that Bennett

failed to meet his burden to show the Family Court's award was

not fair and reasonable. See Markham, 80 Hawai#i at 288, 909

P.2d at 616.

Therefore, IT IS HEREBY ORDERED that in CAAP-17-

0000451, (1) the Amended Decree Granting Absolute Divorce and

Awarding Child Custody entered on May 2, 2017, in the Family

Court of the Third Circuit and (2) the Order on Issues on Remand

entered on February 8, 2016 are affirmed in part, and vacated in

part with respect to the spousal support award. We remand to the

Family Court of the Third Circuit for recalculation of the

spousal support award consistent with this Summary Disposition

Order.

13
IT IS FURTHER ORDERED that in CAAP-19-0000664, the (1) 

Order and Judgment in Favor of Plaintiff Nicoleta Jacoby and

Against Defendant Bennett Jacoby for Attorney's Fees and Costs

entered on August 28, 2019, and (2) the Order Following Hearing

on Plaintiff's March 20, 2019 Motion to Enforce July 5, 2011

Decree and May 2, 2017 Amended Decree, for Order Establishing

Manner of Alimony Payments to Plaintiff, and for Order Directing

Defendant to Pay Plaintiff's Attorney's Fees and Costs entered on

September 20, 2019, in the Family Court of the Third Circuit, are

affirmed.

DATED: Honolulu, Hawai#i, April 20, 2021.

On the briefs:

Michael S. Zola

for Defendant-Appellant

Charles T. Kleintop

(Kleintop & Luria, LLP)

for Plaintiff-Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

14