Applebaum v. Brooks

128 Hawai'i 497

291 P.3d 395

David Lee APPLEBAUM, Plaintiff–Appellant,

v.Carole Joann BROOKS, fka Carole Applebaum, Defendant–Appellee.

No. CAAP–11–0000692.

Intermediate Court of Appeals of Hawai‘i.

Oct. 15, 2012.

Appeal from the Family Court of the First Circuit (FC–Divorce No. 95–4613).

Charles T. Kleintop, Dyan M. Medeiros, (Kleintop, Luria & Medeiros), on the briefs, for plaintiff-appellant.

Carole JoAnn Brooks, on the briefs, defendant-appellee pro se.

NAKAMURA, C.J., FOLEY and FUJISE, JJ.

MEMORANDUM OPINION

Plaintiff–Appellant David Lee Applebaum (Husband) appeals from the “Order Denying Plaintiff's May 21, 2010 Motion For Post–Decree Relief,” entered September 7, 2011 in the Family Court of the First Circuit ¹ (family court).

I. BACKGROUND

Husband and Defendant–Appellee Carole Joann Brooks aka Carole Applebaum (Wife) married December 29, 1987 in Honolulu. After ten years of marriage, the parties filed for divorce, and a hearing was held in 1998. At the time, both were retired, and had no children together. Husband's net worth was approximately $6,532,737.63, and his net monthly income was $23,077.71. He claimed total monthly expenses of $64,628.18 and a monthly deficiency of $41,550.47. Wife claimed total monthly expenses of $17,373 with no income.

On March 6, 1998, following a three-day trial, the family court issued a divorce decree (Decree) dissolving the parties' marriage. The Decree included the following provisions:

4. Alimony. Beginning with the first payment on April 1, 1998, [Husband] shall pay to [Wife] the sum of $10,000.00 per month as and for alimony, such amount to be paid on the 1st day of each month. Each payment of alimony shall be for the month which begins on the due date of the payment.

Alimony shall continue until the happening of the first of the following events, at which point it shall terminate:

(a) The death of [Husband];

(b) The death of [Wife]; or

(c) [Wife's] remarriage.

....

All of the foregoing shall be subject to further order of the Court.

On May 21, 2010, Husband filed a “Motion and Affidavit for Post–Decree Relief” (Modification Motion) seeking termination or reduction of his monthly alimony obligation under the Decree. At the time, Husband was 77 years old, and Wife was 74. The family court held a hearing on Husband's Modification Motion on August 12, 2011.

On August 22, 2011, the family court announced its decision denying the Modification Motion. After considering the parties' circumstances, including Husband's diminished estate, the parties' age, and Wife's needs, the court determined Husband had not shown a material change in circumstance warranting modification. On September 7, 2011, the family court issued its “Order Denying Plaintiff's May 21, 2010 Motion For Post–Decree Relief.” Husband timely filed a notice of appeal September 16, 2011, and the family court entered its “Findings of Fact and Conclusions of Law” November 15, 2011.

On appeal, Husband contends the family court erred in concluding that Husband had failed to establish a material change in circumstances had occurred since the Decree. Specifically, Husband challenges the following Findings of Fact (FOFs):

8. Both parties are currently retired. [Husband] notes a gross monthly income based on investments of $42,890.00[.]

9. [Husband] stated at the time of the short trial in August, 2011 that his net worth was approximately $4,644,718.00, noting that he was now remarried and that arguably, his now [sic] wife was actually an owner of this net worth, and therefore his sole worth was somewhat less than the total worth.

Husband also challenges the following conclusions of law (COLs):

2. [Husband] claims financial circumstances have changed since 1998, necessitating a modification of the prior support order. In evaluating this request, the Court needs to evaluate (a) the payee's need, (b) the payee's ability to meet that need without spousal support, (c) the payor's need, (d) the payor's ability to pay support. Vorfeld v. Vorfeld, 8 Haw.App. 391 (1991).

3. The Court concludes that while there has been a diminution of the [Husband's] overall estate since the trial in 1998, it is not of sufficient magnitude to be deemed a material change sufficient to warrant a change based on any change in [Husband's] circumstances. Moreover, [Wife] still demonstrates a need for continued support without ability to meet those needs without said support.

II. STANDARDS OF REVIEW

Generally, the family court possesses wide discretion in making its decisions and those decisions will not be set aside unless there is a manifest abuse of discretion. Thus, [an appellate court] will not disturb the family court's decisions on appeal unless the family court disregarded rules or principles of law or practice to the substantial detriment of a party litigant and its decision clearly exceeded the bounds of reason.

....

The family court's FOFs are reviewed on appeal under the “clearly erroneous” standard. A FOF is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made. “Substantial evidence” is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.

On the other hand, the family court's COLs are reviewed on appeal de novo, under the right/wrong standard. COLs, consequently, are “not binding upon an appellate court and are freely reviewable for their correctness.”

Fisher v. Fisher, 111 Hawai‘i 41, 46, 137 P.3d 355, 360 (2006) (quoting In re Doe, 95 Hawai‘i 183, 189–90, 20 P.3d 616, 622–23 (2001)).

III. DISCUSSION

A. Findings of Fact 8–9

Husband contends the family court erred in FOF 8 when it found Husband's gross monthly income was $42,890. Husband's August 8, 2011 income and expense statement was admitted into evidence at the modification trial and states his gross monthly income was $35,060.40. The family court's FOF appears to be based on the income and expense statement filed with Husband's Modification Motion on May 21, 2010.

In Vorfeld, this court held that when considering whether a material change in circumstances has occurred, the family court must consider “relevant circumstances that are proven to exist at the time of the modification hearing [.] ” Vorfeld v. Vorfeld, 8 Haw.App. 391, 402, 804 P.2d 891, 897 (1991) (emphasis added). Wife challenged the expenses on Husband's 2011 statement, but she raised no challenges to the income he reported. Nothing else in the record raises a question about the statement's authenticity or credibility, and the family court did not indicate any reason for basing its finding on a statement filed more than one year before the hearing. Because we are “left with a definite and firm conviction that a mistake has been made,” we conclude FOF 8 was clearly erroneous. Nevertheless, under Hawai‘i Family Court Rules Rule 61 (2000) (“Harmless Error”), “[t]he court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.” In light of the other uncontested evidence of Husband's financial situation in the record, we conclude the clear error in FOF 8 did not affect the family court's outcome and was therefore harmless.

Husband's challenge to FOF 9 is based on the family court's calculation that Husband's net worth was “approximately $4,644,718.00.” Husband's August 8, 2011 asset and debt statement and his trial memorandum reflected a net worth of $4,633,718.90, but both documents included a note attributing 21.1% of that net worth to his current wife for her contributions. Accordingly, Husband testified at the trial his individual net worth should be $3,664,683 .22. However, other than his own testimony, Husband provided no additional documentation or evidence to support his claim, though he did introduce extensive documentation about Wife's finances. Based on this record, we cannot conclude that the family court clearly erred in its factual finding. “It is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the trier of fact.” Fisher, 111 Hawai‘i at 46, 137 P.3d at 360 (internal quotation marks and citation omitted).

B. Conclusions of Law 2–3

Although Husband listed COL 2 as a point of error, he fails to provide a discernible argument. The only mention of COL 2 quotes language from COL 3 and incorrectly attributes that language to COL 2. Therefore, the point of error is waived. Hawai‘i Rules of Appellate Procedure 28(b)(7) (2010); Int'l Sav. and Loan Ass'n, Ltd. v. Carbonel, 93 Hawai‘i 464, 473, 5 P.3d 454, 463 (App.2000) (“An appellate court need not address matters as to which the appellant has failed to present a discernible argument.”).

Husband's principal argument on appeal is that the family court erroneously concluded Husband's diminished net worth was not a material change and failed to consider Wife's ability to meet her needs and her efforts to attain self-sufficiency. Under Hawaii Revised Statutes § 580–47(d) (2006 Repl.), a party may seek modification of a spousal support order where there has been a material change in financial or physical circumstances, or upon a showing of other good cause. A spousal support modification hearing is not a review hearing, but rather “a new hearing based on changed circumstances” where “the burden is on the moving party to prove his or her entitlement to a modification.” Saromines v. Saromines, 3 Haw.App. 20, 28, 641 P.2d 1342, 1348 (1982).

In Vorfeld, this court stated: “A material change in the relevant circumstances has occurred when a party's relevant circumstances that are proven to exist at the time of the modification hearing are materially different from the party's...