FOR PUBLICATION
---o0o---
NO. 26444
JUNE 30, 2006
BURNS, C.J., LIM AND FOLEY, JJ.
OPINION OF THE COURT BY BURNS, C.J.
Plaintiff-Appellee/Cross-Appellant (1) Cheryl Sue Ferreira, now known as Cheryl Sue Marshall (Cheryl), appeals from the family court's February 10, 2004 Amended Decree Granting Absolute Divorce and Awarding Child Custody (Amended Decree). We affirm the dissolution of the marriage. We vacate the spousal support part of the Amended Decree and remand that part for reconsideration. We conclude that the Amended Decree is not final and appealable with respect to the following parts: (1) child custody, visitation, and support, and (2) the division and distribution of property and debts.BACKGROUND
Although Cheryl and Defendant-Appellant/Cross-Appellee Nelson Ferreira (Nelson) were married on December 10, 1983, their economic partnership began in 1975. Cheryl and Nelson have five children: Kelly, born on June 10, 1978; Stacey, born on November 15, 1983; Jaime, born on March 28, 1985; Ashley, born on February 13, 1987, and Devin, born on April 6, 1991.
Cheryl filed a Complaint for Divorce on November 9, 2001. The trial in this case was held on May 15, 2003 (2). On February 10, 2004, the court entered (1) Amended Findings of Fact and Conclusions of Law (AFsOF and ACsOL), and the Amended Decree.
The Amended Decree awarded Cheryl sole legal and physical custody of the minor children subject to Nelson's specified rights of visitation and ordered, in relevant part:
V. Child Support.
B. For purposes of
determining child support
[Nelson's] annual, self employment, net income before deductions for
federal and
state income taxes is
deemed to be $221,810.45. [Cheryl's] gross monthly income is imputed to
be $2000. . . . The Child
Support Enforcement Agency
is hereby made a
party to this action for the limited purpose of child support. [Nelson]
shall
make all child support
payments through the Child Support
Enforcement
Agency.
D. Educational Support.
[Nelson] shall
provide all necessary educational support for Stacey, Jaime, Ashley and
Devin. . . . The
reasonable costs of
tuition, books and reasonable living expenses under suitable conditions
while attending such
educational pursuits shall
be paid by [Nelson]. .
. . In
the event any of the children continue his/her post high school
education outside the State
of Hawaii, [Nelson's] contribution for
tuition only may be
limited to the current costs of tuition at
the University of Hawaii
for
an equivalent course of study. [Nelson] shall be responsible for such
child's
reasonable living
expenses while attending
school out of state, as
above provided.
F. Life Insurance.
[Nelson] shall be required
to maintain life insurance coverage with the children as the primary
beneficiaries in
an amount not less
tha[n] $250,000 per supported child, so long as [Nelson] has a child or
educational support obligation.
VI. Alimony.
VII. Division of Marital Property.
C. After award of the
vehicles, as
above-stated, and an adjustment of one-half of the $10,250.00 for the
Harley, to be added to
[Cheryl's] share to
equalize the unequal division of the autos and an award of the
retirement accounts, as above stated,
[Cheryl] remains entitled to an award of
$760,655.47. This includes one-half of the bank accounts
($25,128.19/2=$12,564.10[.]
E. Division of Real Property.
. . . .
. . . .
D. Taxes and Tax Consequences.
(Footnotes added; emphasis in the original.)
Cheryl filed a notice of appeal on March 11, 2004. This case was assigned to this court on January 9, 2006.
RELEVANT RULE GOVERNING APPELLATE JURISDICTION
Hawaii divorce cases involve a maximum of four discrete parts: (1) dissolution of the marriage; (2) child custody, visitation, and support; (3) spousal support; and (4) division and distribution of property and debts. Black v. Black, 6 Haw.App. 493, 728 P.2d 1303 (1986). In Cleveland v. Cleveland, 57 Haw. 519, 559 P.2d 744 (1977), the Hawaii Supreme Court held that an order which finally decides parts (1) and (4) is final and appealable even if part (2) remains undecided. Although we recommend that, except in exceptionally compelling circumstances, all parts be decided simultaneously and that part (1) not be finally decided prior to a decision on all the other parts, we conclude that an order which finally decides part (1) is final and appealable when decided even if parts (2), (3), and (4) remain undecided; that parts (2), (3), and (4) are each separately final and appealable as and when they are decided, but only if part (1) has previously or simultaneously been decided; and that if parts (2), (3), and/or (4) have been decided before part (1) has been finally decided, they become final and appealable when part (1) is finally decided.
Eaton v. Eaton, 7 Haw. App. 111, 118-19, 748 P.2d 801, 805 (1987) (footnote omitted).DISCUSSION AND DECISIONS
For the following reasons, we conclude that although the Amended Decree is final and appealable with respect to the dissolution of the marriage and spousal support, it is not a final and appealable decree with respect to child custody, visitation, and support or the division and distribution of property and debts.
With the exception of the "special needs payment", the Amended Decree does not decide the dollar amount of the child support to be paid. It appears to leave that decision to the State of Hawai`i Child Support Enforcement Agency (CSEA). We conclude that the court is not authorized to delegate this duty to the CSEA. Hawaii Revised Statutes § 571-52.5 (1993) states as follows:
Guidelines to determine child support amounts. When the court establishes or modifies the amount of child support required to be paid by a parent, the court shall use the guidelines established under section 576D-7, except when exceptional circumstances warrant departure.
II.
In Section VII. C., the Amended Decree says that Cheryl is entitled to an award of $760,655.47 but neither the AFsOF nor the Amended Decree finds all of the ingredient values or lists the assets to which those ingredient values relate.
III.
The Amended Decree, after awarding various dollar values to Cheryl in addition to the $760,655.47, states in Section VII. D. that Cheryl is entitled to an award of assets in the amount of $861,030.22 plus an additional $6,083.99. It then says that Nelson shall pay the $6,083.99 to Cheryl no later than January 2, 2004. It does not specify how Cheryl will receive the $861,030.22 balance. The Amended Decree awards the residence at 306 Ekoa Place to Cheryl. AFOF no. 15 says that the fair market value of this property is $757,500. AFOF no. 17 says that this property is subject to a $23,819.31 mortgage and its net market value is $733,680.69. (6) Assuming the $861,030.22 includes the $733,680.69, the Amended Decree does not specify how Cheryl will receive the $127,349.53 balance due.
AFOF No. 46 finds that the net market value of 3050 Alaneo Place is $258,773.28 ($399,000 minus a mortgage value of $117,226.72). Section VII. E. 3. of the Amended Decree orders that
[t]o effectively accomplish the fair and just division of the marital estate and to effect the requirements of Section VI above, regarding alimony, the real property of the parties located at 3050 Alaneo Place, . . . , shall be immediately sold by the parties. The net proceeds from sale shall be awarded to [Cheryl] in accordance with and pursuant to Section VI above.
Section VI of the Amended Decree says that "[Nelson] shall pay to [Cheryl] alimony in a total amount of $309,600. . . . However, a portion of the total amount to be paid shall be in the form of a lump sum payment equal to the amount that the net proceeds of the sale of 3050 Alaneo exceeds $127,349.53." There are two problems. First, nothing is said regarding the distribution of the $127,349.53. (7) Second, 3050 Alaneo Place is marital property. The court must divide and distribute the net proceeds of its sale. Any net proceeds awarded to Cheryl cannot be used by Nelson to partially satisfy his spousal support obligation to Cheryl.CONCLUSION
Accordingly, with respect to the February 10, 2004 Amended Decree Granting Absolute Divorce and Awarding Child Custody, we (1) affirm the dissolution of the marriage; (2) conclude that it is not final and appealable with respect to (a) child custody, visitation, and support, and (b) the division and distribution of property and debts; and (3) in light of the discussion in footnote 6 above, and because the decision as to spousal support is dependent on the decisions relating to child custody, visitation, and support, and the division and distribution of property and debts, we vacate the spousal support part of the Amended Decree and remand that part for reconsideration.
1.
On May 2, 2005, the
Hawai`i Supreme Court entered an order granting a motion by
Defendant-Appellant/Cross-Appellee Nelson C. Ferreira (Nelson)
to dismiss his appeal.
2.
Judge Barclay E. MacDonald presided.
3. These totals are one-half of the
value of the assets that were proven to be missing. The Amended
Findings of Fact (AFsOF) filed on February 10,
2004, state, in relevant part:
. . . .
The Court therefore finds . . . that in 2000 [Nelson] received $84,363.43 in unreported rental income for his Kaanapali Alii Unit #415 and unreported rental management income, which was diverted from the marital assets. [Cheryl's] one-half therefore equals $42,181.72.
. . . .
54. . .
. [T]he Court finds that [Cheryl] is
entitled to an additional award of one-half the missing assets of
$58,193.04 and
one-half of the known
missing rental income of $42,181.72.
4.
$760,655.47 plus
$58,193.04 plus $42,181.72 equals $861,030.23.
It appears that
"after finding that good cause exists," the family court may postpone
its decision on the question whether it will order one party to
pay "the attorney's fees, costs, and expenses incurred by each party by
reason of the divorce."
(1) Time and Place of Filing. When a civil appeal is permitted by law, the notice of appeal shall be filed within 30 days after entry of the judgment or appealable order.
. . . .
(2) Premature Filing of Appeal. In any case in which a notice of appeal has been filed prematurely, such notice shall be considered as filed immediately after the time the judgment becomes final for the purpose of appeal.The notice of appeal shall be deemed to appeal disposition of all post-judgment motions that are filed within 10 days after entry of judgment.
The 90-day period shall be computed as provided in Rule 26.
In the instant
case, the Amended Decree Granting Absolute Divorce and Awarding Child
Custody was entered on February 10, 2004. Thirty days
later, on March 11, 2004, Cheryl filed (1) Plaintiff's Motion for
Attorney's Fees and Costs of Litigation and (2) a Notice of Appeal. The
motion was
filed later than ten days after entry of the judgment so it did not
extend the time for filing the notice of appeal. On May 3, 2004, the
court entered
the Order Denying Plaintiff's Motion for Attorney's Fees and Costs of
Litigation. This order states, in relevant part:
56. It is in all parties' best interest, including the children, for [Cheryl] to become gainfully employed.
57. However, as a result of the property division in this divorce, [Cheryl] will become financially independent and may never need to work or work full time.. . . .
61. The income imputed to [Cheryl] is $2,000. Upon divorce [Cheryl's] net worth will be in excess of $950,000. [Cheryl] will have the ability to substantially restructure her assets and debt, as she wishes, to place a substantial portion in liquid form. Taking judicial notice that the interest rate on 30 year treasury bills at the time of this decree is approximately 5%, it is reasonable to expect and impute earnings and appreciation on [Cheryl's] total net assets of approximately $47,000 per year over the long term, or approximately $3,900/month. There are many possible options available to [Cheryl] to access or defer access and use of such appreciation and income. Combined with her imputed earnings, [Cheryl] should be able to average, over the long term, income and/or appreciation of approximately $5,900 per month. Clearly a portion of this appreciation will be tied up in her residence and possibly in other real property. But the allocation, the immediacy of access and the extent of deferral is largely up to [Cheryl]. It is fair and reasonable that in addition to child support [Nelson] pay to [Cheryl] $4,300 per month for a period of six years to at least provide [Cheryl] with the opportunity to further her education and improve her employment skills and to provide her with an opportunity to continue her lifestyle on an approximately equal basis with [Nelson], given his earning power and assets, hidden or otherwise, and his obligations hereunder, and to have the assistance ended soon enough to motivate [Cheryl] to take appropriate steps to improve her earning power. Due to the manifest communication difficulties between the parties it is fair and just that, a portion of same shall be advanced in the form of a lump sum payment upon the closing of the sale of 3050 Alameo, as provided in the Decree herein.
AFOF No. 17 finds
that the net value of 306 Ekoa Place is $733,680.69. That $733,680.69
appears to be included in Cheryl's $950,000+ net worth. The court did
not explain how Cheryl can maintain a residence for herself and the
children while making income from the $733,680.69 net value of
the 306 Ekoa Place residence or its appreciation, if any.
7.
In the answering
brief, in his property division and distribution chart, Nelson
indicates his understanding that the $430,000 value of 3050 Alaneo
Place was awarded as follows: $175,725.83 was awarded to Nelson and
$254,274.17 was awarded to Cheryl, but Cheryl was obligated to pay the
$115,000 mortgage and the $15,457 closing costs so the net to Cheryl
was $123,817.17.