NOT FOR PUBLICATION
IN THE INTERMEDIATE COURT OF APPEALS
MARTIN DAVID SCHILLER, Plaintiff-Appellant, v.
JANET LOUISE SCHILLER, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 00-1-1585)
ORDER DENYING MOTION FOR RECONSIDERATION
(By: Burns, C.J., Lim and Foley, JJ.)
IT IS HEREBY ORDERED that the motion is denied.
In relevant part, this court's memorandum opinion filed on May 4, 2004, stated as follows:
LACK OF APPELLATE JURISDICTION OVER THE DISTRIBUTION
OF PROPERTY AND DEBTS PART OF THE DIVORCE DECREE
The Divorce Decree states, in relevant part, as follows:
E) Household Furniture, Furnishings and Effects. The parties' household goods and effects, and their furniture and appliances are to be divided by mutual agreement. If there is a dispute as to any particular item of item, then the parties shall submit an agreed upon list of such disputed items to the Court and the Court shall then render a decision as to such disputed properties.
In relevant part, the August 6, 1986 FOF&COL state:
CONCLUSIONS OF LAW
6. The personal property of the Plaintiff and Defendant which have not yet been distributed should be divided in such a manner agreeable to the parties so that each receives approximately equal value.
Sua sponte we conclude that we do not have appellate jurisdiction to review the district family court's decisions and orders as to the division and distribution of the property and debts over which the district family court had jurisdiction.
In this case, parts (1) and (3) were final and appealable on August 6, 1986. Part (4), however, is not final and appealable because the district family court has not fully and finally divided and distributed all of the property and debts of the Plaintiff and the Defendant over which it had jurisdiction. See Black v. Black, supra. The family court is required in divorce cases to divide and distribute all the property and debts over which it has jurisdiction. HRS § 580-47(a)(3). In this case, the district family court refused to perform its duty.
In many divorce cases, the family court expressly specifically and/or generally finally divides and distributes all of the property and debts of the parties over which it has jurisdiction. We recommend this practice in all cases. In some divorce cases, the family court expressly divides and distributes some of the property and debts of the parties and implicitly divides and distributes the remainder. See DeMello v. DeMello, 3 Haw. App. 165, 646 P.2d 409 (1982); Jendrusch v. Jendrusch, 1 Haw. App. 605, 623 P.2d 893 (1981). In this case, the district family court neither expressly nor implicitly divided and distributed the personal property of the parties.
. . . .
CONCLUSION
In his motion for reconsideration Appellant contends that "the trial court in this case divided all of the parties' personal effects and household furniture, furnishings and effects in Paragraphs "D" and "E" of the Divorce Decree." We disagree.
Paragraph "D" awarded each party "his or her own personal effects, clothing and jewelry" but did not decide who owned what. In recognition of this fact, it further stated that "[i]f there is a dispute as to any particular item of item, then the parties shall submit an agreed upon list of such disputed items to the Court and the Court shall then render a decision as to such disputed properties."
Paragraph "E" stated that "[t]he parties' household goods and effects, and their furniture and appliances are to be divided by mutual agreement." In other words, at the time of the Divorce Decree, the parties' household goods and effects and furniture and appliances had not yet been divided. In recognition of this fact, paragraph "E" further stated that "[i]f there is a dispute as to any particular item of item, then the parties shall submit an agreed upon list of such disputed items to the Court and the Court shall then render a decision as to such disputed properties."
Appellant further contends that the "[i]f there is a dispute" sentence in paragraphs "D" and "E"
does not affect the finality of the parties' Divorce Decree.
DATED: Honolulu, Hawai`i, May 24, 2004.
On the motion: