KS v. TS

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-MAY-2021
08:01 AM
Dkt. 105 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

KS, Plaintiff-Appellee, v.
TS, Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 07-1-2764)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

Defendant-Appellant TS (TS) appeals from the April 15,

2019 Order Granting Plaintiff's Attorney's Fees and Costs

Associated with Plaintiff's Motion for Post-Decree Relief

(Attorney's Fee Order) entered against him and in favor of

Plaintiff-Appellee KS (KS) in the Family Court of the First

Circuit (Family Court).1 TS also challenges the Family Court's

October 24, 2018 Order Re: Plaintiff's and Defendant's Motions

for Post Decree Relief (Post-Decree Order), as well as the

1
The Honorable Jessi L.K. Hall presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

January 3, 2019 Findings of Fact and Conclusions of Law, which

were filed as a Supplemental Record on Appeal (FOFs/COLs).

TS raises two points of error on appeal, contending

that the Family Court: (1) erred in granting the Post-Decree

Order, and refusing to give effect to an alleged agreement

between the parties; and (2) abused its discretion in awarding

attorney's fees to KS.

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 TS's points of error as follows:

(1) The parties' Divorce Decree was entered on May 7,

2008 (the Decree), and awarded certain real property to KS (the

Property), subject to any debt thereon, and an equalization

payment from KS to TS to be made in a manner spelled out in the

Decree. On February 27, 2009, TS sought post-decree relief,

arguing that KS failed to, inter alia, refinance the Property or

take TS's name off the mortgage loan, as set forth in the Decree.

It appears that attempts were made to sell the Property during

the 2008-2009 time frame, but that the offers made would have

resulted in "a loss." After various continuances, which appear

to have been requested in order for the parties to figure out a

workable solution, on September 27, 2010, the Family Court

entered a Stipulation to Modify Divorce Decree [and] Order

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(Stipulation and Order), which modified the Decree.2 In the

Stipulation and Order, with respect to the Property, the parties

stipulated and the Family Court ordered as follows:
[TS] shall have exclusive occupancy of the former
marital residence until such time as it is sold. [TS] shall
be responsible for paying the mortgage, taxes, maintenance
and utilities on the property until such time as it is sold.
When the former marital residence is sold, the parties shall
share equally in any deficiency or equity, provided however,
that [KS] shall receive a TEN THOUSAND DOLLARS ($10,000.00)
credit towards her share of the deficiency or equity at the
time of closing. [TS] shall have sole authority to determine
when the real property should be listed and/or sold.

On April 25, 2018, KS filed a Motion and Declaration

for Post-Decree Relief (2018 Post-Decree Motion) in which KS

sought, inter alia, enforcement of the Stipulation and Order on

the grounds that TS had sold the Property and failed to split the

proceeds with KS, as set forth in the Stipulation and Order.

On June 7, 2018, TS filed a response to the 2018 Post-

Decree Motion in which TS asserted that he "purchased" KS's share

of the Property in 2013 "by refinancing the loan to remove her

name from any further financial responsibility" and paid KS

$10,000 as agreed upon in the Stipulation and Order. TS

contended that the $10,000 payment constituted a sale of the

Property as evidenced by a Quitclaim Deed, which was signed by KS

on May 24, 2013, and recorded on June 6, 2013 (Quitclaim Deed).

KS contends that the Quitclaim Deed was done to facilitate TS's

refinance of the Property, as evidenced by a loan payoff letter

dated June 1, 2013, and a release of the parties' mortgage dated

2
The Honorable Paul T. Murakami presided.

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June 19, 2013. Both parties provided further argument and

submissions to the Family Court. It appears undisputed that TS

sold the Property in 2017. As the Family Court later found,

inter alia, TS received a total (net) amount of $221,247.87 from

the sale of the Property (FOF 18).3

On October 24, 2018, the Family Court held a hearing on

the 2018 Post-Decree Motion, as well as other pending matters.

After argument of counsel, with respect to the proceeds of the

Property, the Family Court orally ruled:
Pursuant to the September 27th, 2010, order, it is
clear that the deficiency or equity is to be divided equally
between the parties at any time –- such time as the house is
sold.

The house has been sold. There has been no dispute
that [TS] received 221,247.87.

As such, judgment shall enter in favor of [KS] in the
amount of 110,623.93.

On October 24, 2018, the Family Court entered the Post-

Decree Order, which stated that "[KS's] Motion for 50% of the

equity from the sale of the marital residence is Granted pursuant

to the Sept. 27, 2010 order." In other words, the Family Court

granted KS's request to enforce the Stipulation and Order. On

January 3, 2019, the Family Court entered the FOFs/COLs, which

were consistent with the court's oral ruling and the Post-Decree

Order.

3
Although TS identifies FOF 18 in his points of error, he makes no
argument that the Family Court erred in its determination of this amount, and
therefore, any such arguments are waived.

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On appeal, TS argues that the Family Court erred in

failing to construe the Quitclaim Deed as an enforceable

agreement between him and KS, overriding and/or superseding the

clear directive of the Stipulation and Order. This argument is

without merit.

As the Hawai#i Supreme Court has recognized, in

general, a deed is not a contract. See Balogh v. Balogh, 134

Hawai#i 29, 40 n.7, 332 P.3d 631, 642 n.7 (2014) (citations

omitted). A deed conveys property, as opposed to promising to do

something. Here, there is no evidence of a meeting of the minds

with respect to the effect of the Quitclaim Deed. There is no

evidence that KS agreed to forego her share of any equity in the

Property upon its sale, as she was entitled to pursuant to the

Stipulation and Order. In an October 8, 2018 Declaration, TS

states, in relevant part:
4. In 2013, we had to refinance the mortgage (it was an
interest only mortgage with a balloon payment coming soon),
but [KS] wanted off the mortgage. She did not want to be
responsible for owning the property anymore. . . .

5. In May 2013, [KS] signed a quit claim deed to me because
she did not want to be on a mortgage and wanted to just be
done with owning the property. . . .

(Format altered).

Notably, TS does not aver that there was a meeting of

the minds that KS would forego her share of any equity in the

Property once it was sold. There is no written agreement and no

other evidence supporting TS's contention that the parties

intended to modify the effect of the Stipulation and Order.

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Clearly, KS disputes that she agreed to forego her share of the

equity and acted to enforce the Stipulation and Order when she

learned that the Property had been sold. Indeed, TS's

refinancing of the mortgage is consistent with his rights and

obligations under the Stipulation and Order, which provided that

he would be responsible for the mortgage, etc., until the

Property was sold, but that he would have "sole authority" to

determine when it would be sold.

Accordingly, we conclude that the Family Court did not

err in enforcing the Stipulation and Order and in rejecting TS's

argument that the Quitclaim Deed constituted an enforceable

agreement between the parties.

(2) TS argues that the Family Court abused its

discretion in awarding KS attorney's fees, on alternate grounds,

including that KS was not entitled to attorney's fees because she

was not the prevailing party, it was not just and equitable to

award her fees, the Family Court failed to undertake the analysis

set forth in HRS § 580-47(f) (2018), this was not an enforcement

action, the fees were not reasonable and necessarily incurred,

and Hawai#i Family Court Rules Rule 54(d) does not support an

award of fees to KS.

As explained in the Family Court's June 17, 2019

Findings of Fact and Conclusions of Law [Re: Appeal from the

Order Granting Plaintiff's Attorney's Fees and Costs Associated

with Plaintiff's Motion for Post-Decree Relief Filed April 25,

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2018 Filed April 15, 2019] (FOF/COL re Fees), the Family Court

concluded that an award of attorney's fees to KS was supported by

HRS §§ 571-8.5(a)(6)&(10) (2018) and 580-47(f), and found and

concluded that it was reasonable and equitable to award fees to

KS for having to enforce the Stipulation and Order. Although the

Family Court did not enumerate all of the HRS § 580-47(f)

considerations, it appears that they were adequately considered

and supported in the record. We conclude that the Family Court

did not err or abuse its discretion in this regard.

TS also argues that, even if fees were awardable in

this case, particular time entries by KS's attorney appear

unreasonable and/or excessive and/or unnecessary. The objections

to these time entries were presented to the Family Court prior to

the Family Court's entry of the Attorney's Fees Order. KS

requested an award of $9,000 for 30 hours of attorney's fees at

$300 per hour.4 However, the Family Court awarded KS only

$5,040, thus reducing the award to payment for 16.8 hours,

instead of the requested 30 hours. TS does not argue or explain

why or how this reduction of fees was insufficient. Upon review

of the entire record, including the attorney's fees request and

the specific objections thereto, we conclude that the Family

Court did not abuse its discretion in awarding attorney's fees in

the reduced amount of $5,040.

4
No objection was raised as to counsel's hourly rate.

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For these reasons, the Family Court's April 15, 2019

Attorneys Fee's Order and October 24, 2018 Post-Decree Order are

affirmed.

DATED: Honolulu, Hawai#i, May 18, 2021.

On the briefs:
/s/ Katherine G. Leonard
Rebecca A. Copeland, Presiding Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Andre S. Wooten, Associate Judge
for Plaintiff-Appellee.
/s/ Karen T. Nakasone
Associate Judge

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