NOT FOR PUBLICATION
IN THE INTERMEDIATE COURT OF APPEALS
KIKUYAMA, Plaintiff-Appellee, v.
JOYCE KIKUYAMA, Defendant-Appellant
FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-D NO. 01-1-0480)
SUMMARY DISPOSITION ORDER
(By: Burns, C.J., Foley and Nakamura, JJ.)
The following are the relevant dates and events.April 7, 1984 Joyce and Plaintiff-Appellee Ben Kikuyama (Ben) were married.
December 10, 1987 The daughter (Daughter) of Ben and Joyce was born.August 29, 2001 Ben filed a complaint for divorce.
December 19, 2001
In the presence of a
notary public, Ben and Joyce signed an Agreement Incident to Divorce
(AID) drafted by Herman H.M. Ling, attorney for Joyce. It states, in relevant part, as follows:
. . . .
NOW THEREFORE, in consideration of the mutual promises and covenants of this Agreement, the parties agree as follows:
3. CUSTODY. [Ben] and [Joyce] shall be awarded the joint legal custody of [Daughter], with primary physical custody to [Joyce] subject to [Ben's] rights of reasonable visitation. . . .
4. WAIVER OF ALIMONY. Both parties hereby waive any request for alimony. Therefore, no order for alimony shall now or ever be made.
. . . .
. . . .
8. REAL PROPERTY. The parties own real property located at 50 Mikiola Street, Makawao, Hawaii 96768. The following provisions govern that property:
(e) [Ben] shall pay the
current mortgage debt, property tax debt, insurance expenses and
maintenance on the property as it shall fall due until the
property is sold.
(f) The proceeds form
[sic] the sale of the property shall be used first to pay indebtedness
secured by the property, brokerage fees and closing costs. The
remaining proceeds shall be divided equally between the parties.
. . . .
. . . .
12. ATTORNEY'S FEES AND COSTS.
. . . .
20. VOLUNTARY EXECUTION. Each party acknowledges that he or she has
voluntarily executed this Agreement with sufficient knowledge of
the facts and the law, and that this Agreement is fair and reasonable.
Although [Ben] has chosen not to be represented by counsel, [Ben] had
opportunity to fully review this Agreement and to retain private
counsel to assist him in reviewing said Agreement. [Joyce] is
HERMAN H.M. LING.
. . . .
23. INCORPORATION OF AGREEMENT IN DECREE. This Agreement is effective on the date of the signature of the second party to sign. The parties urge the Family Court to approve this Agreement and make it part of the decree divorcing the parties.December 20, 2001 Ben paid Joyce the sum of $53,000.00 for her interest in the residence. Upon receiving the
December 25, 2001
a "NOTICE TO VACATE PROPERTY" signed by Ben's Father and stating,
with all sics omitted, as follows:
July 10, 2002
Ben filed a motion to set
and notice of motion. In an accompanying position statement, he
stated, in relevant part, as follows:
. . . .
[Ben] is a self-employed artist who works out of his home. [Joyce] works as a sales clerk at J.C. Penny's Department Store in Kahului. Neither party appears to have any special physical or financial needs.
The parties had entered into an Agreement
Incident to Divorce in December 2001. However, for some unexplained
reasons, [Joyce] has rejected
said Agreement and has refused to file her Financial Statements. She
has also refused to sign the Divorce Decree. . . .
. . . .
6. Real Property.
July 24, 2002 Acting pro se, Joyce filed her position statement in which she stated, in relevant part, as follows:
. . . .
Joyce Kikuyama, age 54, is fourteen years older than Ben. She worked as Ben's production assistant through the first seventeen years of their marriage, during the difficult years before his career took off. Ben's work is extremely labor-intensive. She was his production assistant. For seventeen years, Joyce babysat to bring in income. While the babies slept, she spent thousands of hours to glue the squares and place the stitches on the originals and reproductions of [Ben's] artwork.
The marital residence. In 1985, seventeen years ago, the parties purchased a home in Makawao. . . . [Joyce] believes that there was at least $180,000 in equity in the house.
Promptly upon conveying the property, Joyce
and her daughter were evicted from the marital residence. . . . Joyce
suffered what she characterizes
as a nervous breakdown. Joyce
now works as a clerk at JCPenny's for $6.45/hour. She does not receive
child support. In March, 2002, she applied
. . . .
July 31, 2002
Judge Romanchak heard Ben's motion to set. The case
was scheduled for trial on October 17 and
18, 2002, and the pre-trial settlement conference was set for October 2, 2002, at 2:30 p.m. The
court advised counsel for Ben as follows:
If your position in this case is there are no
issues that need to be tried because we have an agreement --
. . . .
THE COURT: -- and one party is not abiding by the agreement, then you file your motion to get a ruling on the enforceability of the agreement. If that covers all of the issues --
THE COURT: -- then all you would ask of the Court is, is that that agreement be enforced and it become [sic] the binding agreement of the parties and be part of the judgement in this case for a divorce. That's it. All right?
THE COURT: But you need to move on that. You need to -- if she's not responding and you want it enforced, you know, there is a procedure by which to do that. There is certainly case law that addresses agreements in contemplation of divorce and which ones are enforceable and which ones aren't. In fact, we even have a statute that governs the issue of premarital agreements.
THE COURT: Okay? So, do you want me to set this case for a trial? You're here on a motion to set.
August 26, 2002 Counsel for Ben moved for enforcement of the AID and summary judgment.February 21, 2003 Counsel for Joyce moved for rehabilitative spousal support of $2,000 per month for three years
a material change in her circumstance. On January 10, 2002, her employer at Penney's closed its Maui store. As a result, Joyce now supports herself and 15-year-old [Daughter] with her (a) unemployment check . . ., (b) food stamps . . . and (c) housing assistance. Housing assistance became necessary after December 25, 2001, the date on which Ichiro Kikuyama delivered to Joyce a Notice to Vacate 50 Mikiola Place . . ., despite [Daughter's] and [Joyce's] expectation that they could rent the garage there after the dissolution.
April 1, 2003
After a hearing on October 16, 2002, Judge Romanchak
ordered Ben "to pay child support in
accordance with the Child Support Guidelines . . . based on Ben's gross income of $3,000 and
Joyce's Gross Income of $1,140" commencing September 23, 2002. That amount was $410 per
month. Effective December 1, 2002, the amount was increased to $500 per month.
FINDINGS OF FACT
2. The parties entered
into the AID voluntarily.
. . . .
5. The parties had
knowledge of each other's financial condition prior to the execution of
CONCLUSION OF LAW
3. The terms and conditions of the AID shall be incorporated into the provisions of the final Judgment of divorce and Award of Custody as prayed for in the Complaint for Divorce.July 18, 2003 Judge Romanchak entered the Divorce Decree. It incorporated the AID by reference. It stated, in
July 24, 2003
Counsel for Joyce filed a notice of appeal from the
Order Granting Plaintiff's Motion for Summary
Judgment and the Divorce Decree.
Joyce asserts the following points on appeal:
2. Even if the AID is
enforceable (it is not), the trial court erred in refusing to grant
alimony to mitigate Joyce's reliance on
public assistance. . . .
4. The trial court erred in denying Joyce's motion for attorney fees pendente lite.In accordance with Hawai`i Rules of Appellate Procedure Rule 35, and after carefully reviewing the record and the briefs (1) submitted by the parties, and duly considering and analyzing the law relevant to the arguments and issues raised by the parties,
IT IS HEREBY ORDERED that the Order Granting Plaintiff's Motion for Summary Judgment entered on April 4, 2003 and the Decree Granting Divorce and Awarding Child Custody entered on July 18, 2003 are affirmed.
DATED: Honolulu, Hawai`i, May 20, 2005.
it is a waste of time, paper, space, and energy to append to the
opening brief copies of documents from the trial court record that are
part of the record on appeal. All that is necessary is a clear
statement of where in the trial court record the document is located.
In this case, copies
of sixteen documents, amounting to approximately 400 copied pages that
are part of the record on appeal were appended to the opening brief.
seventeenth and eighteenth documents appended to the opening brief are
copies of orders entered in an Office of Disciplinary Counsel case. It
appears that the brief is in noncompliance with Hawai`i Rules of
Appellate Procedure (HRAP) Rule 28(b)(10) (2005) as both orders are not part of
the record on appeal pursuant to HRAP Rule 10(a).