Atwood v. Atwood

151 Hawai‘i 324

511 P.3d 823 (Table)

Russell Dean ATWOOD, Plaintiff-Appellant,

v.Bay Thi ATWOOD, now known as Bay Thi Prest, Defendant-Appellee.

NO. CAAP-17-0000531

Intermediate Court of Appeals of Hawai‘i.

June 24, 2022

On the briefs: Scot Stuart Brower, for Plaintiff-Appellant.

Christopher D. Thomas, Semmes H. Bobo, for Defendant-Appellee.

(By: Ginoza, Chief Judge, Wadsworth and McCullen, JJ.)

SUMMARY DISPOSITION ORDER

Plaintiff-Appellant Russell Dean Atwood (Atwood ) appeals from the Family Court of the First Circuit's (family court )¹ June 9, 2017 Court Order Acceptable for Processing Under the Federal Retirement System ("FERS") (6/9/17 COAP ), assigning to his former wife, Defendant-Appellee Bay Thi Atwood, now known as Bay Thi Prest (Prest ), fifty percent of the marital portion of his self-only, unreduced monthly annuity under the Federal Employees’ Retirement System (FERS ).

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we resolve Atwood's arguments below, and affirm.

(1) We first address Atwood's second point of error contesting jurisdiction. Atwood argues that the family court "erred when it determined it had jurisdiction to divide [his] military pension, where [he] did not consent to the division, because [he] resided and was domiciled in Texas since December 15, 1997."

Here, the parties were married on October 15, 1972. Findings of Fact (FOF ) 1. Atwood served in the U.S. military from February 1971 until May 15, 1982, and was barred from re-enlistment because he was overweight. FOF 2-3. During his military service, Atwood was married to Prest for nine years and six months. FOF 4. The parties were divorced pursuant to a divorce decree (Decree ) filed on February 13, 1984. FOF 5. The Decree specifically provided:

The court finds that [Atwood] has submitted to the jurisdiction of this court. The court reserves jurisdiction over the matter of [Prest's] entitlement and award of a portion of any future retirement pay that may be awarded to [Atwood] for that portion of his military service to [Prest] [sic] during which he was married to [Prest] and to her entitlement and award of a portion of any other retirement pay or annuity based in part of such period of active military service during which [Atwood] was married to [Prest].

FOF 6 and 8 (emphasis added). Atwood's originally filed financial affidavits list his military service as an asset. FOF 9.

After being discharged, Atwood joined the Federal Civil Service and became a Federal employee until his retirement in 2014. FOF 10. Atwood was vested in a FERS pension that was derived in part from Atwood's past military service earned during the time of his marriage to Prest. FOF 11. Atwood has been receiving FERS pay and income since about October 2014. FOF 12.

Based on the family court's unchallenged findings, Atwood was vested under FERS and, in the Decree, the family court expressly reserved its jurisdiction to address Prest's entitlement to a portion of any future retirement pay or annuity awarded to Atwood for his military service during the period he was married to Prest. Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai‘i 450, 459, 40 P.3d 73, 82 (2002) ("[U]nchallenged factual findings are deemed to be binding on appeal[.]") Thus, the family court retained jurisdiction to divide the marital property. See Riethbrock v. Lange, 128 Hawai‘i 1, 16-17, 282 P.3d 543, 558-59 (2012) ; Hawaii Revised Statutes (HRS ) § 580-56(a) (2018) and § 580-47(a) (2018).

(2) Atwood's first, fourth, and seventh² points of error relate to the division of property. Atwood argues that the family court did not "finally divid[e] and distribut[e] the parties’ property as required by HRS § 580-47(a)" before it entered the 6/9/17 COAP. Atwood thus argues that the family court's Conclusions of Law (COL ) 31, 32, and 37³ are wrong because "no lower court order permanently distributed the Plaintiff-Appellant's pension, which is a predicate to enter a lawful COAP."

HRS § 580-47(a) provides in relevant part:

Upon granting a divorce, or thereafter if, in addition to the powers granted in subsections (c) and (d), jurisdiction of those matters is reserved under the decree by agreement of both parties or by order of court after finding that good cause exists, the court may make any further orders as shall appear just and equitable ... (3) finally dividing and distributing the estate of the parties, real, personal, or mixed, whether community, joint, or separate. ...

Under HRS § 580–47, "the family court has wide discretion to divide marital partnership property according to what is ‘just and equitable’ based on the facts and circumstances of each case." Gordon v. Gordon, 135 Hawai‘i 340, 348–49, 350 P.3d 1008, 1016–17 (2015) (citation omitted).

HRS § 580-47 does not require that, upon granting a divorce or thereafter, a family court must enter a "predicate" court order "finally dividing and distributing the estate of the parties, real, personal, or mixed, whether community, joint, or separate[,]" prior to entering a court order such as the 6/9/17 COAP at issue here. See State v. Ramela, 77 Hawai‘i 394, 395, 885 P.2d 1135, 1136 (1994) (explaining that "where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning") (citation and internal quotation marks omitted).

Further, concerning the requirements of a qualifying court order under FERS, 5 C.F.R. part 838 does not require that a separate judgment must immediately precede a COAP to be valid. See Hein v. Hein, 972 N.W.2d 337, 343 (Mich. Ct. App. 2021) (explaining that 5 C.F.R. part 838 "generally controls how the relevant federal administrative agencies handle state domestic-relations orders affecting federal pensions"). A "court order" means "any judgment or property settlement issued by or approved by any court of any State ... in connection with, or incident to, the divorce ... of a Federal employee or retiree[,]" and a "court order acceptable for processing" means "a court order ... that meets the requirements of subpart C of this part to affect an employee annuity[.]" 5 C.F.R. § 838.103.

Subpart C "regulates the requirements that a court order directed at employee annuity must meet to be a court order acceptable for processing." 5 C.F.R. § 838.301. A "court order directed at employee annuity is not a court order acceptable for processing unless it expressly divides the employee annuity" and directs "[the Office of Personnel Management (OPM )] to pay the former spouse directly." 5 C.F.R. § 838.303(a) - (b), 838.304(a) - (b). Additionally, the COAP must provide "sufficient instructions and information that OPM can compute the amount of the former spouse's monthly benefit using only the express language of the court order," and state the "type of annuity (i.e., phased retirement annuity, composite retirement annuity, net annuity, gross annuity, or self-only annuity) on which to apply the [former spouse's share of employee annuity as a] formula, percentage, or fraction." 5 C.F.R. § 838.305, 838.306(a).

Although Atwood argues that "[u]nder 5 CFR 838.103 the federal regulations distinguish between a court order[ ] ... and a ‘COAP’[,]" they are not two separate orders a state court must enter to divide Atwood's pension. Rather, 5 C.F.R. § 838.103 provides that, to qualify as a valid court order acceptable for processing, a court order must provide sufficient instructions and information, expressly divide the employee or retiree's annuity, and direct OPM to pay the former spouse directly. 5 C.F.R. §§ 838.103, 303(a) - (b), 304(a) - (b), 305, and 306(a).

Here, the 6/9/17 COAP expressly divided Atwood's annuity under FERS. It provided sufficient instructions and information for OPM to compute the amount of Prest's monthly benefit, stated the type of annuity on which to apply Prest's share of Atwood's annuity as a percentage (with formula), and directed OPM to pay Prest directly. Therefore, the family court did not err in issuing the 6/9/17 COAP without first entering a separate, independent judgment.

(3) In Atwood's third and sixth points of error, he argues that pursuant to Hawai‘i Family Court Rules (HFCR ) Rule 58(b), his due process rights were violated because he did not receive "notice" of Prest's proposed COAP and was "entitled to file objections to the proposed order before it was entered [on] June 9, 2017" by the family court. Therefore, Atwood contends he was denied "an opportunity to be heard on a matter that involved the taking of his property without [d]ue [p]rocess," and the family court erred at COL 36 because the "court never ordered Defendant-Appellant's counsel to not comply with Rule 58 of the [HFCR] [.]"

"At its core, procedural due process of law requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant liberty interest." Doe v. Doe, 120 Hawai‘i 149, 168, 202 P.3d 610, 629 (App. 2009) (citation omitted). However, "the requirements of due process frequently vary with the type of proceeding involved." Calasa v. Greenwell, 2 Haw. App. 395, 399, 633 P.2d 553, 556 (1981) (cleaned up). The Hawai‘i Supreme Court has explained that "due process is flexible and calls for such procedural protections as the particular situation demands." State v. Guidry, 105 Hawai‘i 222, 234, 96 P.3d 242, 254 (2004) (cleaned up).

HFCR Rule 58(b) provides, in relevant part:

If any party objects to the form of a proposed judgment, decree or order, that party shall within 5 days after service of the proposed judgment, decree or order, file and serve upon each party who has appeared in the action and deliver to the court:

(1) a statement of objections and the reasons therefor; and

(2) the form of the objecting party's proposed judgment, decree or order.

In such event, the court may schedule a Rule 58 conference or shall

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