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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-NOV-2024
08:12 AM
Dkt. 71 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
DEBRA AKEMI ABE, Plaintiff-Appellee, v.
CASEY CHIYOSHI ABE, Defendant-Appellant.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1DV171000315)
SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant Casey Chiyoshi Abe (Husband)
appeals from the Family Court of the First Circuit's
November 25, 2020 Divorce Decree entered in favor of Plaintiff-
Appellee Debra Akemi Abe (Wife). 1
1 The Honorable Kevin T. Morikone presided.
Husband also challenges the following orders:
(1) February 20, 2020 Decision and Order; and Exhibit "1" (2/20/2020
Decision and Order);
(continued . . .)
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On appeal, Husband challenges the family court's
decision to: (1) have each party start paying retirement
benefits owed to the other when both parties retire; (2) use
June 14, 1995 as Wife's employment start date; (3) use the date
of divorce to calculate retirement benefits; (4) waive a
$5,085.92 equalization payment; and (5) categorize money from
his parents as marital property. 2
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve
(. . . continued)
(2) April 7, 2020 "Order Re: [Wife's] Motion for Reconsideration, for
Clarification, and/or to Alter or Amend Judgment, Filed February 27,
2020" (Order Re: Wife's 4/7/2020 Motion for Reconsideration);
(3) August 31, 2020 "Order Re: [Husband's] Motion for Reconsideration,
for Clarification, and/or to Alter or Amend the Order, Filed
April 7, 2020, Filed April 22, 2020" (Order Re: Husband's 4/22/2020
Motion for Reconsideration);
(4) September 29, 2020 "Order Re: [Husband's] Motion for
Reconsideration, for Clarification, and/or to Alter or Amend the
Order Re: [Husband's] Motion for Reconsideration, for Clarification,
and/or to Alter or Amend the Order, Filed April 7, 2020, Filed
April 22, 2020, (Filed on August 31, 2020), Filed September 10,
2020" (Order Re: Husband's 9/10/2020 Motion for Reconsideration);
and
(5) September 29, 2020 "Order Re: [Wife's] Motion for Reconsideration,
Clarification, and/or to Alter or Amend the Order, Filed April 7,
2020, Filed April 22, 2020, Filed August 31, 2020, Filed on
September 9, 2020" (Order Re: Wife's 9/9/2020 Motion for
Reconsideration).
(Formatting altered.)
2 We note that the opening brief does not comply with Hawai‘i Rules of
Appellate Procedure Rule 28(b)(4).
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Husband's points of error as discussed below, and vacate and
remand in part and affirm in part.
"[T]he 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." Kakinami v.
Kakinami, 127 Hawaiʻi 126, 136, 276 P.3d 695, 705 (2012). Its
findings of fact are reviewed under the clearly erroneous
standard, while its conclusions of law are reviewed de novo
under the right/wrong standard.
Id. A conclusion of law
presenting mixed questions of fact and law is reviewed under the
clearly erroneous standard. KS v. RS, 151 Hawaiʻi 336, 341,
512
P.3d 702, 707 (App. 2022).
(1) Husband contends the family court "erred in
ruling that the division of each party's State of [Hawaiʻi] ERS
(Employees Retirement System) Hybrid Retirement Plan does not
become effective unless and until both parties retire from their
employment with the State of [Hawaiʻi.]" Husband argues the
family court's ruling was contrary to "established law"
requiring payments to start when a party begins receiving
retirement benefits. Contrary to Husband's contention, the
family court did not abuse its discretion.
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The general rule is that a party should start payments
of a Linson share to a former spouse once that party begins
receiving the retirement benefit. 3 Cassiday v. Cassiday, 68 Haw.
383, 384 n.1,
716 P.2d 1133, 1135 n.1 (1986). However, Hawai‘i
courts have also ruled a party may be required, for equitable
reasons, to pay their Linson share of a retirement benefit
before the party has retired and begun receiving it. See Green
v. Green,
1 Haw. App. 599, 600,
623 P.2d 890, 891 (1981)
(providing family court justified in requiring husband to pay
former wife a portion of retirement benefit, even though he had
not yet retired); Wallace v. Wallace,
5 Haw. App. 55, 57,
677
P.2d 966, 967-68 (1984) (noting same).
Here, the family court found that Wife would receive
$3,001.16 per month if she retired in 2025 as planned. The
family court also found that husband was earning $146,500.00 per
year (or $12,208.33 per month) and had no plans to retire
although he was eligible. Husband does not challenge these
findings on appeal. Okada Trucking Co., Ltd. v. Bd. of Water
3 Under the Linson formula, "the non-owner party is awarded one-half of
a percentage of the owner's retirement. The formula for determining the
percentage is to divide the number of years credited to retirement during the
marriage by the total number of years credited to retirement." Donnelly v.
Donnelly, 98 Hawaiʻi 280, 281, 47 P.3d 747, 748 (App. 2002) (citations and
internal quotation marks omitted).
"The 'Linson formula,' although not actually included in the Linson
opinion, has been adopted by this court in calculating the amount of
retirement benefits to be awarded to the non-owner party after divorce."
Rand v. Rand, 137 Hawai‘i 206, 366 P.3d 1085, No. CAAP-XX-XXXXXXX,
2016 WL
383158, at *9 n.7 (App. Jan. 29, 2016) (SDO).
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Supply, 97 Hawai‘i 450, 459, 40 P.3d 73, 82 (2002) (holding
unchallenged factual findings are binding on appeal).
The family court further found that "[i]t would be
inequitable for either party to control the date of their
retirement in a manner that would cause them to receive a
financial windfall and/or financially penalize the other party."
The family court then concluded that it would be just and
equitable for each party to begin paying the Linson share owed
to the other when both parties retire.
The family court faced the following dilemma: if the
court ordered Wife to pay a Linson share when she retired while
Husband continued to work, Wife's monthly income would be
$1,500.58 ($3,001.16 ÷ 2) and Husband's monthly income would be
$13,708.91 ($12,208.33 + $1,500.58). And Wife has no control
over when (or if) Husband retires.
Because the family court may adjust the timing of
Linson share payments to achieve an equitable result, it did not
abuse its discretion in ordering the parties to begin paying a
share of their retirement benefits to the other upon the
retirement of both.
(2) Second, Husband contends the family court "erred
in determining the numerator in the formula for division of ERS
Hybrid Retirement Plan by including [his] premarital employment
period and . . . utilizing [Wife's] later start date . . . ."
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Husband argues the family court should have used February 18,
1990 (date of marriage) instead of December 20, 1987 (Husband's
employment date) to determine his payment, and should have used
December 19, 1988 (Wife's employment date) instead of June 14,
1995 (adjusted for breaks in service and leave without pay for
child care) to determine Wife's payment.
The family court found that both Husband and Wife were
initially enrolled in the State's non-contributory retirement
plan. They subsequently enrolled in the Hybrid Plan, and
converted their non-contributory service by paying mandated
conversion fees from funds accumulated during the marriage in
their respective State deferred compensation accounts. Wife
used $32,608.02 and Husband used $123,244.00 to upgrade or
convert to the Hybrid Plan. The family court further found that
neither party presented evidence showing the funds used "were,
either whole or in part, pre-marital funds." Husband does not
challenge these findings. See Okada, 97 Hawai‘i at 459, 540 P.3d
at 82.
The family court therefore determined that, because
Marital Partnership Property was used to convert each party's
non-contributory years of service into Hybrid Plan years of
service, both Hybrid Plan "accounts became, in their entirety,
Marital Partnership Property assets of the marriage."
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Because Husband used $123,244.00 in funds accumulated
during the marriage to convert his non-contributory plan to a
hybrid plan, it was equitable to determine that the entire fund
was Marital Partnership Property. As such, the family court did
not abuse its discretion in using December 21, 1987 (Husband's
employment date) instead of February 18, 1990 (date of marriage)
in dividing this asset.
The family court also did not abuse its discretion in
using June 14, 1995 (adjusted for breaks in service and leave
without pay for child care) instead of December 19, 1988 (Wife's
employment date) to divide Wife's asset. The family court found
that Wife's initial start date was December 19, 1988. But,
"there was a break in her service and when she returned to State
employment in March of 1997, she was given an adjusted start
date of June 14, 1995, in order to make provision for her prior
service, the time she was not employed by the State, as well as
for time when she took leave without pay for child care/
maternity leave." Husband does not challenge this finding, and
we note Husband used this date in his January 21, 2020 Proposed
Decision and Order Re: Trial. See Okada, 97 Hawai‘i at 459, 540
P.3d at 82.
(3) Third, Husband contends the family court "erred
in the usage of the date of divorce as opposed to the Date of
Conclusion of the Evidentiary Part of Trial (DOCOEPOT) in the
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numerator in dividing the respective party's retirement."
(Emphasis added.) Husband is correct on this point. LaPeter v.
LaPeter, 144 Hawai‘i 295, 306, 439 P.3d 247, 258 (App. 2019)
("Under the partnership-model framework endorsed by Hawai‘i case
law to divide property of the marital estate, the DOCOEPOT is
used in determining the value of property."). Accordingly, on
remand, the family court should utilize the DOCOEPOT in the
Linson formula apportioning retirement benefits.
(4) Fourth, Husband contends the family court erred
"in determining that there were valid and relevant
considerations in varying from established property division
principles by awarding [Wife] a larger portion of the net
proceeds of the sale of the parties' former marital residence
and waiving [Wife's] property equalization payment in the sum of
$5,085.92[.]"
In his points of error, Husband fails to cite where in
the record the family court "waived" the $5,085.92 equalization
payment Wife owed Husband.
Instead, the family court determined it would be fair
and reasonable for Husband to pay five years of alimony at
$8,000.00 per year, for a total of $40,000.00. In making this
determination, the family court considered the Hawaiʻi Revised
Statutes § 580-47 (2018) factors, Vorfeld v. Vorfeld, 8 Haw.
App. 391,
804 P.2d 891 (1991), and the evidence presented.
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The family court then subtracted the $5,085.92
equalization payment Wife owed Husband from the $40,000.00
alimony Husband owed Wife, for a net alimony of $34,914.08. The
family court required Husband to pay this amount from his share
of the net proceeds from the sale of the former marital
residence.
Because Husband does not support his "waiver"
contention and does not challenge the family court's findings
and conclusions, we see no abuse of discretion.
(5) Finally, Husband contends the family court erred
"in failing to grant [his] Category 3 claim of monetary gifts
made by [his] father to [him] during the parties' marriage[.]"
Under Hawaii's Marital Partnership Model, Category 3
property is "property separately acquired by gift or inheritance
during the marriage but excluding the [net market values]
attributable to property that is subsequently legally gifted by
the owner to the other spouse, to both spouses, or to a third
party." Hamilton v. Hamilton, 138 Hawai‘i 185, 201, 378 P.3d
901, 917 (2016) (citation omitted).
Wife's testimony was that the funds from Husband's
father were deposited into Husband's credit union account then
transferred into their joint account, or Husband would deposit
the funds directly into their joint account. Husband admitted
the funds from his father were deposited in their joint account.
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Wife would then pay tuition and monthly bills from their joint
account, as she was primarily responsible for paying their
bills.
The family court found funds from Husband's father
were always deposited into the couple's joint bank accounts and
were never treated as Husband's separate property. The family
court further found that the money was used to pay the
children's tuition and household expenses. Husband did not
present evidence that the checks were treated as his separate
property. Husband does not challenge these findings. See
Okada, 97 Hawai‘i at 459, 540 P.3d at 82.
Because the family court considered where the funds
were deposited and how the funds were used in making its
determination, the family court did not abuse its discretion.
Based on the foregoing, we vacate the portions of the
November 25, 2020 Divorce Decree and Order Re: Husband's
9/10/2020 Motion for Reconsideration to the extent the date of
divorce rather than the DOCOEPOT was used as the numerator of
the Linson formula, remand for further proceedings consistent
with this summary disposition order, and otherwise affirm the
remainder. We also affirm the (1) 2/20/2020 Decision and Order;
(2) Order Re: Wife's 4/7/2020 Motion for Reconsideration;
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(3) Order Re: Husband's 4/22/2020 Motion for Reconsideration;
and (4) Order Re: Wife's 9/9/2020 Motion for Reconsideration.
DATED: Honolulu, Hawai‘i, November 18, 2024.
On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Blake Okimoto,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Francis T. O'Brien,
for Plaintiff-Appellee. /s/ Sonja M.P. McCullen
Associate Judge
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