NOT FOR PUBLICATION
OF THE STATE OF HAWAI`I
RICH ZUBATY, Plaintiff-Appellant, v. MARGARET MAY NOYCE
(MERINO, VANARSDALE); DAN
VANARSDALE; PENDRED NOYCE
(LIU?); TOM CATTELL; DAN BURKE; SEAN MORRIS; LINDA
SHERRARD; CARL MENDENHALL, PROSECUTING ATTORNEY, COUNTY
OF MISSOULA, MONTANA, VICE
PRESIDENT AND/OR CHIEF
OFFICER OF THE TRUST DEPARTMENT FIRST INTERSTATE BANK,
MISSOULA, MONTANA, Defendants-Appellees, JOHN AND JANE
DOES 1-5; DOE CORPORATIONS
1-5; DOE PARTNERSHIPS 1-5;
DOE LEGAL ENTITIES 1-5, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIV. NO. 01-1-0546(3))
1) Decision and Order Denying Plaintiff RICH ZUBATY'S [first] Motion for Default Judgment, Dismissing Without Prejudice Claims Against Defendants [Margaret May Noyce (Noyce or Margaret) and Dan Vanarsdale (Vanarsdale)], and Notice of Proposed Dismissal of Claims Against Remaining Defendants filed herein on July 31, 2002;
3) Order Denying Plaintiff's Second Motion for Default Judgment and Petition to Reinstate Claims and Clarification of Antenuptial and Oral Agreements filed herein on December [16], 2002; and
We affirm.
Plaintiff claims that on May 2, 2000, in the state of Montana, Plaintiff and Noyce signed a
Marriage Covenant ("Covenant") (2) and held themselves out as common law husband and wife.
Subsequently, on November 29, 2000, Plaintiff and Noyce signed an Antenuptial Agreement
("Agreement"). The Agreement specified, in part, that Plaintiff, as Noyce's husband, would
receive fifty percent (50%) of Noyce's earned and unearned income during the marriage, a dowry of
two hundred thousand dollars ($200,000.00) on or before the date of their marriage, a monthly
stipend of five thousand dollars ($5,000.00) during the marriage, and temporary and permanent
periodic alimony payments of two thousand five hundred dollars ($2,500.00) per month.
Plaintiff claims that Noyce and Vanarsdale were married during April 2001. Thus, claims Plaintiff, Noyce and Vanarsdale entered into a bigamist relationship and Noyce breached the Covenant of May 2, 2000. In his Complaint, Plaintiff asks "that the terms of the agreement be fulfilled and entered into full force and effect."
On November 20, 2001, pursuant to Rule 55(a) of the Hawai`i Rules of Civil Procedure ("HRCP"), the clerk of the court entered default against Noyce and Vanarsdale "for failure to serve or file any papers required by law." (3)
Plaintiff asserts that he and Noyce executed a marriage covenant and held themselves out to be husband and wife. Plaintiff alleges a breach of their marriage covenant by virtue of Noyce's alleged marriage to Vanarsdale. He prays for enforcement of the terms of an antenuptial or premarital agreement.[ (5)]
Under the Uniform Premarital Agreement Act, adopted by the states of Hawai`i and Montana, a "'[p]remarital agreement' means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." [Hawai`i Revised Statutes (HRS)] § 572D-1; [Mont. Code Ann.] § 40-2-603. "A premarital agreement becomes effective upon marriage of the parties to each other." [HRS] § 572D-4; [Mont. Code Ann.] § 40-2-606.
§ 571-14 Jurisdiction; adults. The [Family] courts shall have exclusive original jurisdiction:
(3) In all proceedings under chapter 580, . . . [and]
. . . .
(6) In all proceedings for support between . . . husband and wife.
Here, enforcement of the provisions of the Agreement that provide for the payment of fifty percent
(50%) of all earned and unearned income during the marriage, a dowry, and a monthly stipend relate
to questions of support between husband and wife. Exclusive original jurisdiction of a proceeding
concerning support between husband and wife rests with the family court. [HRS]
§ 571-14(6). Enforcement of the provision of the Agreement that provides for the payment of
temporary and permanent alimony in the event of the dissolution of the marriage, relates to a
proceeding under chapter 580. Exclusive original jurisdiction of a proceeding under chapter 580
rests with the family court. [HRS]
§ 571-14(3).
It is well-established . . . that lack of subject matter jurisdiction can never be waived by any party at any time. In re Application of Rice, 68 Haw. 334, 713 P.2d 426 (1986). In setting forth the absolute necessity that a court possess subject matter jurisdiction, this court ruled:
Id. at 335, 713 P.2d at 427. Moreover, "[s]uch a question is in order at any stage of the case . . . ."
If, on the other hand, it is assumed that this Court has jurisdiction because Plaintiff and Noyce were never lawfully married, this Court would nevertheless be prohibited from enforcing the terms of the antenuptial agreement. A premarital agreement becomes effective upon marriage of the parties to each other. [HRS] § 572D-4; [Mont. Code Ann.] § 40-2-606. If Plaintiff and Noyce never lawfully married, their premarital agreement would have no effect. Of course, Plaintiff contends that he and Noyce were lawfully married.
B. Claims Against Remaining Defendants
The complaint was filed herein on October 15, 2001. Other than Noyce and Vanarsdale, no defendants have been served with the complaint. Nothing has ever been filed concerning attempts to serve the remaining defendants.
Rule 28. Dismissal for Want of Service. A diligent effort to effect service shall be made in all actions, and if no service be made within 6 months after an action has been filed then after notice of not less than 5 days the same may be dismissed.
Based on the foregoing, notice must be given that the claims against the remaining unserved
defendants will be dismissed thirty (30) days after receipt by Plaintiff of this order unless said
defendants are either served within said thirty-day period or Plaintiff establishes good cause as
to why said claims should not be dismissed.
(Ellipses, some brackets and footnote [5] in the original.)
In addition to the foregoing, we note several other aspects of the events leading up to the July 31, 2002 decision and order. In his complaint, Zubaty also alleged that Noyce orally promised him (1) that she would "publish and promote" the books he was writing; and (2) that she would fund "a non-profit arts organization, . . . the purpose of which would be to publish and promote the work of artists, writers and musicians dedicated to the goal of 'bringing people closer to God.'" With respect to the latter claim, Zubaty's complaint prayed that the circuit court "stay with the terms of the Antenuptial signed by myself and Margaret - that's all I've ever asked . . . Or pay $1 million in damages . . . Or . . . cut right to the chase. Fund a non-profit organization called 'Artists with a Mission' with myself as director and a budget of $100,000 a year for ten years." (Ellipses and bold emphasis in the original.) However, in his first motion for default judgment, Zubaty did not make any claim for the nonprofit arts organization. Zubaty did mention therein Noyce's "failure to deliver on her oral contract to provide $40,000 to publish and promote the plaintiff's books in exchange for the work he performed caring for her[,]" but declared that, "at this time in this Motion the plaintiff makes no claim for such damages." (Bold emphasis in the original.) Zubaty's claims based upon the two purported oral agreements would, however, come to predominate after the circuit court issued its July 31, 2002 decision and order denying his first motion for default judgment.
On September 10, 2002, Zubaty filed a motion for reconsideration of the July 31, 2002 decision and order. On October 1, 2002, Zubaty filed a brief, ostensibly in support of his motion for reconsideration. On October 15, 2002, Zubaty followed with what he entitled, in part, a second motion for default judgment. On November 4, 2002, Zubaty filed a notarized statement of his "best friend and witness Rich Angell," who deposed that he witnessed the oral promises Noyce allegedly made to Zubaty. Finally, and inexplicably, on November 14, 2002, Zubaty filed in the circuit court a complaint to the commission on judicial conduct, stemming from the denial of his first motion for default judgment.
All of the foregoing filings requested, in essence, reconsideration of the circuit court's July 31, 2002 denial of Zubaty's first motion for default judgment. Embedded in the foregoing documents were several significant turnabouts in the case. First, Zubaty abandoned his earlier allegations that he and Noyce were effectively married and thus, relinquished his claims under the antenuptial agreement cognizable only in the family court. In his brief in support of reconsideration, Zubaty stated that, "Since the opinion of Family Law attorneys and clerks in Family Court have already weighed on to say that there is no common law marriage in Hawai`i and that I am not married under Hawai`i law we can dispense with any notion that this case belongs in Family Court." Accordingly, as Zubaty emphatically explained in his second motion for default judgment, "I am NOT asking this court to enforce a prenuptial agreement. I am asking this court to use the signed antenuptial agreement as a guideline - a guideline - for assessing and awarding damages to me for the abuse and broken promises I suffered at the hands of Margaret Noyce." (Bold and capitalized emphases in the original.) For a foundation for damages that might be cognizable in his chosen forum, Zubaty in his motion for reconsideration returned to the two claims he had earlier disclaimed or abandoned; respectively, "an oral agreement for $40,000.00 to publish my books and an oral agreement for $100,000.00 for the first year of operation of the non-profit corporation." (Bold emphases in the original.) Zubaty reiterated in his second motion for default judgment:
I never asked this court to decide whether I was married or not. That is not its jurisdiction. We both agree on that. And I never asked this court to enforce an antenuptial. That is not its jurisdiction. We both agree on that.
In his brief in support of reconsideration, Zubaty detailed the purported consideration for Noyce's oral promises. His rendition is reproduced here, verbatim:
Based upon these oral and written contracts I did perform services for Margaret Noyce including: cook, chauffeur, medical facilitator (I made all the arrangements to get her: glasses, dental work, counseling, nutritional supplements, and psychiatric help - and to moderate her intake of drugs and alcohol), legal counselor, emotional counselor, spiritual counselor and last but not least, sexual "toy" (Margaret is an admitted nymphomaniac - and let's not devolve into a snickering sexist mindset about how "as a man" I should have been grateful to get laid. Her sexual appetite was boundless. The problems it caused were immense. I got her a tubal ligation so she wouldn't get pregnant by anyone else and produce yet another fatherless child - she already has three. I supplied her with condoms so she wouldn't get AIDs or any other sexually transmitted disease from her "adventures".)
Elsewhere, in his second motion for default judgment, Zubaty further explained the predicate oral agreements:
And this is the important phrase - whether we were married or not. There was never an agreement that I would marry Margaret in order to obtain the funds for my books or the arts club. In fact, the timeline was reversed. IF she came through on good faith and provided the money to promote my books and launch the arts club - FOR THE WORK I HAD ALREADY DONE FOR HER - I agreed that I would eventually marry her in a civil ceremony. First she had to show good faith.
(Bold and capitalized emphases in the original.)
On October 25, 2002, the circuit court held a hearing on Zubaty's motion for reconsideration and his second motion for default judgment. The circuit court filed orders denying both motions on December 16, 2002. The same day, the circuit court dismissed all claims against the Remaining Defendants, because Zubaty still had not served them with the complaint. After an abortive first appeal, Zubaty filed his notice of this appeal on May 21, 2003.
As a preliminary matter, we observe that Zubaty's opening brief is leavened with accusations that the circuit court's actions below constituted discrimination on the basis of religion, gender and poverty. But these charges are unaccompanied by cognizable argument or citations to apposite authority. Anecdotes, unattributed statistics, historical exegeses, and conclusory denunciations of perceived systemic and endemic discrimination, do not a cognizable argument make. Hawai`i Rules of Appellate Procedure (HRAP) Rule 28(b)(7) (2003); Ala Moana Boat Owners' Ass'n v. State, 50 Haw. 156, 158, 434 P.2d 516, 518 (1967). Similarly, Zubaty's notice of appeal specifies the circuit court's December 16, 2002 order of dismissal regarding the Remaining Defendants. Zubaty's opening brief does not, however, contain any corresponding argument of a nature we are willing to entertain, and hence we may affirm that particular order. HRAP Rule 28(b)(7); Ass'n of Apartment Owners of Wailea Elua v. Wailea Resort Co., Ltd., 100 Hawai`i 97, 110, 58 P.3d 608, 621 (2002).
Rather, the core of Zubaty's appeal remains a reiteration of the new positions he took after the circuit court filed its July 31, 2002 decision and order denying his first motion for default judgment:
I never asked the Circuit Court to decide whether I was married or not. That is not its jurisdiction. We both agree on that. And I never asked the court to enforce an antenuptial per se. That is not its jurisdiction. We both agree on that. (I asked only that the court use the antenuptial as a written notarized guideline for assessing and awarding damages.)
Opening Brief at 13-14 (citation to the record omitted). As a result, we need not consider the alternative jurisdictional and substantive bases the circuit court relied on in its July 31, 2002 decision and order, for Zubaty, in essence, subsequently adopted them below and continues to endorse them on appeal.
We do observe in connection with the latter basis, that it was well within the discretion of the circuit court on the first motion for default judgment -- the defaults of Noyce and Vanarsdale notwithstanding -- to require a showing of liability as well as damages vis-a-vis the antenuptial agreement. HRCP Rule 55(b)(2) (2001) provides, in pertinent part:
If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute.
In Hupp v. Accessory Distributors, Inc., 1 Haw. App. 174, 616 P.2d 233 (1980), we observed that, "Generally, this language [of HRCP Rule 55(b)(2)] has been interpreted to give the trial court discretion as to whether or not to require evidence before entering a judgment by default." Id. at 179, 616 P.2d at 236 (citation omitted). We concluded that "where, as in Hawai`i, the rules provide for 'notice' pleadings so that evidentiary particulars in support of a claim are not required to be pleaded, the trial courts must be given leeway in their discretion to require proof of liability in the support of a default judgment." Id. at 180, 616 P.2d at 237.
Returning to the core of Zubaty's appeal, we remember that Zubaty in his first motion for default judgment either abandoned or disclaimed his oral contract claims. Hence, Zubaty cannot resurrect them on appeal to attack the circuit court's July 31, 2002 decision and order. "[T]his court on appeal will not consider issues beyond those that are properly raised in the trial court[.]" Demond v. Univ. of Hawai`i, 54 Haw. 98, 103, 503 P.2d 434, 437 (1972) (citations omitted). As for the three subsequent orders, we reiterate our view that all of Zubaty's filings after July 31, 2002 were, in substance, motions for reconsideration of the circuit court's decision and order of that date. However,
the purpose of a motion for reconsideration is to allow the parties to present new evidence and/or arguments that could not have been presented during the earlier adjudicated motion. Reconsideration is not a device to relitigate old matters or to raise arguments or evidence that could and should have been brought during the earlier proceeding.
Ass'n of Apartment Owners of Wailea Elua, 100 Hawai`i at 110, 58 P.3d at 621 (citation and internal quotation marks and block quote format omitted). Given that Zubaty was obviously aware of his oral contract claims before he filed his first motion for default judgment, the circuit court's denial of his subsequent filings in reconsideration was not error.
At any rate, it appears that, had the circuit court considered Zubaty's oral contract claims on reconsideration, and required proof of liability thereunder as it did for the antenuptial agreement claims, HRCP Rule 55(b)(2); Hupp, 1 Haw. App. at 180, 616 P.2d at 237, it would have found the former claims defective and wanting as well. The statute of frauds states, in relevant part:
No action shall be brought and maintained in any of the following cases:
(3) To charge any person, upon an agreement made in consideration of marriage;
unless the promise, contract, or agreement, upon which the action is brought, or some memorandum or note thereof, is in writing, and is signed by the party to be charged therewith, or by some person thereunto by the party in writing lawfully authorized.
HRS § 656-1 (1993). No matter how mightily Zubaty strives to parse the oral agreements otherwise, by his own oblique admission, they remain agreements in consideration of marriage, which must be in writing but were not. Nor does Zubaty's invocation of the doctrine of equitable estoppel take his oral contract claims out of the statute of frauds, for that doctrine does not operate where, as here, the contractual performance advanced by the plaintiff to estop the defendant may be attributed to uxoriousness, and is not unequivocally referable to the purported contract nor inexplicable without reference thereto:
Generally, however, courts are reluctant to circumvent the requirements of the statute[ of frauds]. Consequently, courts require the part performance to be of a character which is unequivocally referable to the alleged parol agreement and cannot admit of explanation without reference to such agreement. The acts constituting part performance must clearly appear to have been done in pursuance of the contract, and to result from the contract and not from some other relation.
Rossiter v. Rossiter, 4 Haw. App. 333, 339, 666 P.2d 617, 621 (1983) (citations and internal quotation marks omitted). See also Trout v. Ogilvie, 41 Cal. App. 167, 172 (1919) (oral agreement not taken out of the statute of frauds, because "the personal services performed by appellant, caring for her husband in his illness - acts performed after the marriage - are referable as well to her marital obligation as a dutiful wife as to the contract alleged in her complaint").
DATED: Honolulu, Hawai`i, September 15, 2004.
Rich Zubaty, pro se
plaintiff-appellant.
1. The circuit court held a hearing on Rich Zubaty's (Zubaty) first motion for default judgment on December 19, 2001.
2. In the May 2, 2000 Marriage Covenant, Zubaty promised as follows:
"Husbands ought to love their wives as their own bodies . . . Each one of you must love his wife as he loves himself." Ephesians 5:28 & 5:33
For her part, Margaret Noyce promised:I Margaret Noyce, make a direct covenant with my God; the Omniscient Omnipotent One, today, the day of May 2, 2000, to take as my husband Rich Zubaty, and treat him as follows:
3. Hawai`i Rules of Civil Procedure (HRCP) Rule 55(a) (2001) provides:
4. HRCP Rule 55(b)(2) (2001) provides:
. . . .
5. The Court notes that the terms "antenuptial agreement" and "premarital agreement" are synonymous
and are used interchangeably.