Swan v. Gillette

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JAN-2024
08:21 AM
Dkt. 56 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

BECKY LYNN SWAN, Plaintiff-Appellee, v.
ROY WILLIAM GILLETTE, JR., Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 06-1-1864)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Roy William Gillette, Jr.

(Gillette) appeals from the July 17, 2019 Order Partially

Granting and Partially Denying Plaintiff's Motion and Declaration
for Post-Decree Relief (2019 Order re Post-Decree Relief) entered

by the Family Court of the First Circuit (Family Court)1 in favor

of Plaintiff-Appellee Becky Lynn Swan (Swan).

Gillette raises four points of error on appeal,

contending that the Family Court erred in: (1) assuming

jurisdiction over Swan's post-decree motion; (2) concluding that

the Stipulated Agreement to Modify Decree Granting Absolute

Divorce, Filed Herein on 11/2/2007; Order (2011 Stipulation and

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The Honorable John C. Bryant, Jr. presided.
Order) was the original judgment; (3) its application of Hawaii

Revised Statutes (HRS) § 657-5 (2016); and (4) certain Findings

of Fact (FOFs) and Conclusions of Law (COL) supporting its

decision in the 2019 Order re Post-Decree Relief.

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 by the parties, we

resolve Gillette's arguments as follows:

A Decree Granting Absolute Divorce was entered on

November 2, 2007 (2007 Divorce Decree). It is undisputed that

the 2007 Divorce Decree awarded the Main House to Gillette,

subject to an equalization payment to Swan (Main House

Equalization Payment). In Plaintiff's September 19, 2019 FOFs

and COLs, the Family Court found, inter alia, that the 2011

Stipulation and Order "does not contain any provision addressing,

modifying, forgiving, or cancelling the equalization payment;"

the Family Court concluded, inter alia, that the 2011 Stipulation

and Order "did not address or amend the [2007 Divorce] Decree's

provisions regarding the Main House." This finding and

conclusion are undisputed, and upon review, we conclude that

neither one is wrong.

The dispositive issue in this appeal is whether the

ten-year statute of limitation to enforce the Main House

Equalization Payment runs from the 2007 Divorce Decree or the

2011 Stipulation and Order.

HRS § 657-5 provides:
§ 657-5 Domestic judgments and decrees. Unless an
extension is granted, every judgment and decree of any court

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of the State shall be presumed to be paid and discharged at
the expiration of ten years after the judgment or decree was
rendered. No action shall be commenced after the expiration
of ten years from the date a judgment or decree was rendered
or extended. No extension of a judgment or decree shall be
granted unless the extension is sought within ten years of
the date the original judgment or decree was rendered. A
court shall not extend any judgment or decree beyond twenty
years from the date of the original judgment or decree. No
extension shall be granted without notice and the filing of
a non-hearing motion or a hearing motion to extend the life
of the judgment or decree.

In Estate of Roxas v. Marcos, 121 Hawai<i 59, 214 P.3d

598 (2009), the Hawai#i Supreme Court held:
In construing "original judgment" of HRS § 657–5, in
pari materia within the framework of the entire statutory
scheme governing limitations of actions, the statute of
limitations for extending a judgment begins to run when the
cause of action—the judgment that creates the enforceable
claim or right—"come[s] into existence as an enforceable
claim or right." All judgments, even those that are
modified or amended, become "enforceable claim[s] or
right[s]" only when the judgments creating those rights are
entered. It is only at the time that the judgment is
rendered when the parties are (1) aware of their rights and
responsibilities created by the judgment and (2) able to
enforce these rights. Accordingly, the statute of
limitations for extending a judgment begins to run at the
creation of the judgment that creates the rights and
responsibilities that the party is seeking to extend.

121 Hawai#i at 69, 214 P.3d at 608 (emphasis added).

The supreme court explained:
We hold . . . that "original judgment" of HRS § 657–5
pertains to the judgment that creates the rights and
responsibilities that the moving party is seeking to enforce
and extend.

Id. at 71, 214 P.3d at 610.

With respect to an amended judgment, the supreme court

held:
Where an unextended judgment is "amended in a material and
substantial respect," so that it creates the rights that are
being extended, the time within which a motion to extend the
judgment may be brought "begins to run from the date of the
amendment," because that judgment created those rights.

Id. at 72, 214 P.3d at 611 (citation omitted and emphasis

altered).

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In applying that rule to the case before it, the

supreme court, inter alia, held:
Under the foregoing construction of HRS § 657–5,
Petitioners timely sought to extend the Second and Fourth
Amended Judgments. Petitioners moved to extend these
judgments within ten years of the date that the judgments
that created the rights to be extended were rendered.
The Second Amended Judgment, filed on October 18,
1999, granted judgment "in favor of [Dacanay,] as personal
representative of the estate of Roger Roxas in the amount of
$6 million in general damages for false imprisonment and
battery against Imelda Marcos in her personal capacity, to
the extent of her interest in the Marcos Estate." This
right was created by the Second Amended Judgment. The
first-in-time judgment (rendered on August 28, 1996) and the
Amended Judgment (rendered on October 21, 1996) do not
qualify as an "original judgment" for purposes of extending
the Second Amended Judgment, because they did not present
enforceable rights on Petitioners' claims of battery and
false imprisonment against Imelda Marcos in her personal
capacity. The first-in-time judgment and Amended Judgment
were materially and substantially changed by the Second
Amended Judgment. Accordingly, the Second Amended Judgment
is the "original judgment" on the false imprisonment and
battery claims against "Imelda Marcos in her personal
capacity, to the extent of her interest in the Marcos
Estate."

121 Hawai#i at 73, 214 P.3d at 612 (citation and footnote

omitted; emphasis altered).

Here, the 2007 Divorce Decree was the judgment that

created the Main House Equalization Payment due to Swan. The

2011 Stipulation and Order did not create, modify, or address the

Main House Equalization Payment. Therefore, the Family Court

erred in concluding that in 2019, the statute of limitations

applicable to the Main House Equalization Payment had not

expired.2

2
We express no opinion as to whether the statute of limitations has
since run on the 2011 Stipulation and Order.

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Accordingly, the Family Court's 2019 Order re Post-

Decree Relief is reversed.

DATED: Honolulu, Hawai#i, January 26, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Sheila Vierra,
Jo-Ann K. Takara, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Richard J. Diehl, /s/ Clyde J. Wadsworth
Christine D. Weger, Associate Judge
(Diehl & Weger, Attorneys at
Law, a Law Corporation),
for Plaintiff-Appellee.

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