Martins v. Keamoai

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-APR-2023
08:12 AM
Dkt. 70 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CHRISTOPHER MARTINS, Plaintiff-Appellee,
v.
ELAINE KEAMOAI, fka ELAINE MARTINS, Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
(FC-D NO. 13-1-0149)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)

In this divorce case, Defendant-Appellant Elaine
Keamoai f.k.a. Elaine Martins (Keamoai) appeals from the
following entered by the Family Court of the Fifth Circuit
(Family Court):1 (1) the "Amended Divorce Decree," filed December
14, 2017 (Amended Divorce Decree) and (2) the "Findings and Order
Denying Defendant's Ex Parte Motion to Stay Enforcement of
Divorce Decree Filed April 23, 2015 and Any Subsequent Orders and
Granting Plaintiff's Oral Motion for Rule 60 Relief," filed
December 14, 2017 (Order Denying Motion to Stay Divorce Decree).
On appeal, Keamoai contends the Family Court erred in
failing to address her contention that her leasehold interest in
a Hawaiian Home Lands property (leasehold interest) was not
marital property subject to division and distribution when the
Family Court ordered the marital residence located on the
leasehold interest to be sold.

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The Honorable Edmund Acoba presided.
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Plaintiff Christopher Martins (Martins) contends that
Keamoai waived this argument by failing to timely appeal from an
order issued on April 5, 2016, which addressed, inter alia, the
assets and debts of the parties (Order Re: Assets and Debts).
Based on the record, we conclude the Order Re: Assets
and Debts and other orders affecting Keamoai's leasehold interest
were not final and appealable orders until the Family Court
entered the Order Denying Motion to Stay Divorce Decree and the
Amended Divorce Decree on December 14, 2017. Thus, Keamoai
timely appealed and we have appellate jurisdiction to address the
Order Re: Assets and Debts and subsequent orders regarding
property division. We further conclude the Family Court erred in
failing to address Keamoai's contention that her leasehold
interest in the Hawaiian Home Lands property was not marital
property subject to transfer in this divorce proceeding.
I. Factual Background
Martins initiated the divorce proceedings against
Keamoai. On April 23, 2015, the Family Court entered a Divorce
Decree (4/23/15 Divorce Decree), which stated in an introductory
paragraph that "Plaintiff is entitled to a divorce from the bonds
of matrimony" but did not contain any language that ordered,
adjudged or decreed that the parties were divorced. The 4/23/15
Divorce Decree specifically ordered that alimony, property
division, child custody, child support, and tax issues would be
determined at a further hearing in the case.
On September 16, 2015, Martins filed a Motion for Final
Award of Assets and Debts and for Joint Physical Custody (Motion
for Final Award) requesting that the marital residence located in
Kekaha, Kaua#i (Marital Residence) be listed for immediate sale
so that Martins could receive his share of the proceeds.
Following a series of hearings, Keamoai failed to appear at the
final hearing on the Motion for Final Award. The Family Court
defaulted her, and entered the April 5, 2016 Order Re: Assets and
Debts, which states in relevant part:
Father has the right to assert that the marital home located
[at] . . . Kekaha, Kauai, Hawaii shall be imputed a value of

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$356,300.00 in the event of a buyout of his share by Mother.
Mother has thirty (30) days from receiving this Order to buy
out Father's share. Should she not pay him within thirty
(30) days, Father shall have sole authority to list the
property for sale and finalize the sale without Mother's
participation.

On January 11, 2017, Martins filed a Motion for
Post-Decree Relief and for Sanctions (Motion for Post-Decree
Relief) requesting, among other things, that the "Chief Clerk of
the Fifth Circuit Court . . . . [e]xecute any and all documents
on Defendant's behalf to [e]ffect the sale of the Marital
Residence, including but not necessarily limited to, the
'Homestead Lease Transfer Request' issued by the Department of
Hawaiian Homelands . . . ." On March 13, 2017, in response to
the Motion for Post-Decree Relief and through a declaration of
counsel by Shaylene Iseri (Iseri), Keamoai agreed in part that
the Marital Residence could be sold, but she asserted that when
the Marital Residence was built, she and Martins had an agreement
that upon their death, the house and lease would be transferred
to their nephew, whose mother allowed Keamoai to succeed her on
the leasehold interest, which enabled Keamoai and Martins to
build the Marital Residence.
On May 10, 2017, the Family Court entered an Order
Regarding Motion for Post-Decree Relief. With regard to the
Marital Residence, the Family Court ordered:
1. Residence Listed for Sale. The Marital Residence located
at . . . Kekaha, Kauai (the "property"), shall be listed for
sale immediately. Julie Black is appointed as the real
estate agent in charge of the sale of the property, and her
duties shall include but not necessarily be limited to,
listing the property for sale, advertising the property,
showing the property to prospective buyers, and otherwise
facilitating the sale through closing. Defendant may reside
in the property while it is being sold, provided that
Defendant cooperates in all manners and respects with the
efforts of the real estate agent to sell the property
expeditiously. The real estate agent shall have access to
the property and shall give Defendant forty-eight (48)
hours' [sic] advance notice of the dates/times when she will
need access to the property for, among other things,
showings and inspections. The real estate agent shall have
access to the property by way of a lockbox.

On August 29, 2017, Keamoai filed Defendant's Ex Parte
Motion to Stay Enforcement of Divorce Decree Filed April 23, 2015

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and Any Subsequent Orders (Motion to Stay), because the Divorce
Decree failed to include the following operative language: "A
decree of divorce is granted. The bonds of matrimony between
Husband and Wife are hereby dissolved. The parties are restored
to the status of single persons. Either party is permitted to
marry after the effective date of the divorce decree." Keamoai
argued that "[a]bsent this language, it appears that the divorce
was never finalized, and the property division and other findings
that arose out of the divorce decree should be stayed." Keamoai
further asserted that, at a hearing on April 4, 2017, her counsel
raised the issue of whether the sale of the property encompassed
the leased land. She also asserted she has acquiesced to the
sale of the Marital Residence but not her leasehold interest,
that her leasehold right is not a marital asset, and taking it
away from her denies her due process rights.
On December 14, 2017, the Family Court entered the
Order Denying Motion to Stay Divorce Decree, finding, inter alia,
that: the court intended to divorce the parties pursuant to the
terms contained in the 4/23/15 Divorce Decree; the court intended
to divorce the parties from the bonds of matrimony even though
the 4/23/15 Divorce Decree did not contain the operative language
that Keamoai asserts was missing; the omission of the language
from the 4/23/15 Divorce Decree was an inadvertent clerical error
made by the parties, their counsel and the court; and the
omission was clerical and thus curable pursuant to Rule 60(a) of
the Hawai#i Family Court Rules (HFCR).2 Accordingly, the Family
Court ordered that: Keamoai's Motion to Stay was denied; Martins'
oral motion for HFCR Rule 60 relief was granted; the orders in

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HFCR Rule 60(a) provides:
Clerical mistakes in judgments, orders or other parts of the
record and errors therein arising from oversight or omission may
be corrected by the court at any time of its own initiative or on
the motion of any party and after such notice, if any, as the
court orders. During the pendency of an appeal, such mistakes may
be so corrected before the appeal is docketed, and thereafter
while the appeal is pending may be so corrected with leave of the
appellate court.

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the 4/23/15 Divorce Decree and subsequent orders remain in full
force and effect; the operative language be inserted nunc pro
tunc into the 4/23/15 Divorce Decree and that Martins prepare an
Amended Divorce Decree that included the operative language.
On December 14, 2017, the Family Court also entered the
Amended Divorce Decree.
On January 12, 2018, Keamoai filed her Notice of
Appeal.
II. Discussion
A. Appellate Jurisdiction to Address Property Division
Keamoai's central point of error on appeal is that,
although she raised the issue to the Family Court, the court
failed to address her contention that her leasehold interest in
the Hawaiian Home Lands property could not be transferred as
marital property. Keamoai argues that because the Hawai#i
Constitution and statutes guide the administration of the
Hawaiian Homes Commission and leasehold interests in Hawaiian
Home Lands properties, ignoring Keamoai's argument regarding the
forced sale of her leasehold interest "implicates the Due Process
Clauses of the Hawaii State and Federal Constitutions . . . .
[and] the right to a full and fair hearing on the issues [as well
as] a ruling on the issues presented." Keamoai asserts that
because "the trial court has failed to rule in this regard, and
the record is devoid of such a ruling in any filed order or
finding of fact or conclusion of law," this court should remand
the case to the Family Court to address whether Keamoai's
leasehold interest is marital property subject to division and
distribution upon divorce.
Martins contends Keamoai "waived her right to argue
that the parties' real property should not be sold by failing to
file a Notice of Appeal [from the Order Re: Assets and Debts]
within the thirty (30) day deadline in accordance with Rule 4 of
the Hawai#i Rules of Appellate Procedure[.]" Thus, Martins
contends this court lacks jurisdiction to remand the case back to

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the Family Court for consideration of whether the leasehold
interest is marital property.
For purposes of appeals from the Family Court, Hawaii
Revised Statutes (HRS) § 571-54 (2006) provides that "[a]n
interested party, aggrieved by any order or decree of the court,
may appeal to the intermediate appellate court for review of
questions of law and fact upon the same terms and conditions as
in other cases in the circuit court[.]" HRS § 641-1(a) (2016)
provides that aggrieved parties may appeal from "final judgments,
orders or decrees[.]" In determining when family court orders
are final and appealable in divorce cases, this court has held:
Hawaii divorce cases involve a maximum of four discrete
parts: (1) dissolution of the marriage; (2) child custody,
visitation, and support; (3) spousal support; and (4)
division and distribution of property and debts. Black v.
Black, 6 Haw.App. 493, 728 P.2d 1303 (1986). In Cleveland v.
Cleveland, 57 Haw. 519, 559 P.2d 744 (1977), the Hawaii
Supreme Court held that an order which finally decides parts
(1) and (4) is final and appealable even if part (2) remains
undecided. Although we recommend that, except in
exceptionally compelling circumstances, all parts be decided
simultaneously and that part (1) not be finally decided
prior to a decision on all the other parts, we conclude that
an order which finally decides part (1) is final and
appealable when decided even if parts (2), (3), and (4)
remain undecided; that parts (2), (3), and (4) are each
separately final and appealable as and when they are
decided, but only if part (1) has previously or
simultaneously been decided; and that if parts (2), (3),
and/or (4) have been decided before part (1) has been
finally decided, they become final and appealable when part
(1) is finally decided.

Eaton v. Eaton, 7 Haw. App. 111, 118-119, 748 P.2d 801, 805
(1987) (footnote omitted).
In this case, the Family Court found that it had
intended to divorce the parties pursuant to the 4/23/15 Divorce
Decree. However, the operative language -- which actually
decreed the parties were divorced -- was missing. Keamoai does
not challenge the Family Court's orders to insert the operative
language into the 4/23/15 Divorce Decree nunc pro tunc or to
issue the Amended Divorce Decree, which was filed on December 14,
2017. However, in assessing our appellate jurisdiction, we must
determine the effect of such orders.

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In determining when Keamoai was required to appeal in
order to challenge the Family Court's orders on property
division, this court's decision in Stratis v. Pacific Ins. Co.,
Ltd., 8 Haw. App. 79, 794 P.2d 1122 (1990), is pertinent. There,
during an initial appeal, this court instructed a circuit court
to hold an evidentiary hearing on a motion for new trial claiming
juror misconduct. Id. at 80, 794 P.2d at 1123. On remand, the
circuit court held an evidentiary hearing and entered findings of
fact and conclusions of law on December 30, 1988, from which the
plaintiffs appealed. Id. at 81, 794 P.2d at 1124. However, the
supreme court dismissed the appeal on grounds that "since there
was no new order denying the motion for new trial, there was no
appealable final judgment." Id. (citation and internal quotation
marks omitted). The circuit court thereafter entered an Order
Denying Plaintiffs' Motion for New Trial on August 14, 1989
(8/14/89 Order), which stated the motion for new trial "is hereby
denied nunc pro tunc, as of the date of entry on December 30,
1988." Id. The plaintiffs filed a notice of appeal on September
1, 1989. Id.
Given the nunc pro tunc provision in the 8/14/89 Order,
this court addressed whether the plaintiffs had timely appealed
such that the court had appellate jurisdiction. Id. at 82, 794
P.2d at 1124. The issue was stated as follows:
Here, absent the "nunc pro tunc" provision, the September 1,
1989 filing of the appeal from the August 14, 1989 Order was
timely. However, was the appeal timely when the August 14,
1989 Order was made effective retroactively as of December
30, 1988?

Id. This court concluded the appeal was timely because the time
to appeal ran from the entry of the 8/14/89 Order, explaining:
Under the Federal Rules of Civil Procedure, "the actual date
of the nunc pro tunc entry will be controlling where the net
effect of looking to the nunc pro tunc date would be a
reduction or elimination of the time within which an appeal
may be timely taken[.]" 6A J. Moore, J. Lucas & G. Grother,
Jr., Moore's Federal Practice ¶ 58.08 at 58–81 (2d ed. 1989)
(emphasis in original).

State cases are in accord with the federal rule. The
California Supreme Court has stated:

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Even if the judgment were entered nunc pro tunc, a
party's right to an appeal cannot be cut off by
antedating the entry of the judgment from which he
desires to appeal.
Phillips v. Phillips, 41 Cal.2d 869, 875, 264 P.2d 926, 930,
(1953). See also Valley Nat. Bank of Arizona v. Meneghin,
130 Ariz. 119, 123, 634 P.2d 570, 574 (1981) ("an appeal can
be taken from a judgment nunc pro tunc and ... the time for
appeal runs from the entry of the judgment nunc pro tunc");
Joslin Dry Goods Co. v. Villa Italia, Ltd., 35 Colo.App.
252, 255, 539 P.2d 137, 139 (1975) ("a nunc pro tunc order
cannot be used to reduce the time nor to defeat the right to
take an appeal"); Utah State Bldg. Bd. v. Walsh Plumbing
Co., 16 Utah 2d 249, 254, 399 P.2d 141, 144 (1965) (a nunc
pro tunc provision "cannot be used to reduce the time nor to
defeat the right to take an appeal").
We adopt the rule of the foregoing authorities and hold that
the thirty-day appeal time ran from the entry date of the
August 14, 1989 Order, notwithstanding the nunc pro tunc
provision therein.

Accordingly, we have appellate jurisdiction in this case.

Id. at 82-83, 794 P.2d at 1124-25.
In this case, the 4/23/15 Divorce Decree did not
contain any language dissolving the marriage. Thus, it was not a
final appealable order under Eaton. 7 Haw. App. at 119, 748 P.2d
at 805. Given that part (1) of the divorce proceedings --
dissolution of the marriage -- was not yet finalized at that
time, the Order Re: Assets and Debts issued on April 5, 2016, and
the Order Regarding Motion for Post-Decree Relief issued on May
10, 2017, were not final and appealable orders. Id. Further,
under Stratis, even though the Family Court remedied the omission
in the 4/23/15 Divorce Decree and inserted the operative divorce
language nunc pro tunc to the 4/23/15 Divorce Decree, the time to
file an appeal ran from December 14, 2017, when the Family Court
entered the Order Denying Motion to Stay Divorce Decree and the
Amended Divorce Decree. Keamoai timely filed her Notice of
Appeal on January 12, 2018.
Therefore, this court has jurisdiction to review
whether the Family Court erred in failing to address whether
Keamoai's leasehold interest was marital property subject to
property distribution in this divorce proceeding.

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B. The Family Court Erred in Failing
to Address Keamoai's Leasehold Interest

"[A] judgment, decree, or order relating to the
distribution or division of property will be reversed for error
which is prejudicial, as where the court fails to determine
questions involving property rights which have been raised[.]"
27C C.J.S. Divorce § 1032, Westlaw (database updated April 2023)
(footnote omitted).
Here, the record reflects that Keamoai challenged the
transfer of her leasehold interest in opposing Martins' Motion
for Post-Decree Relief, and in her Motion to Stay she
specifically asserted that her leasehold interest was not marital
property subject to property division and that taking her
leasehold interest violated her due process rights. However, the
Family Court did not address the issue in the Order Regarding
Motion for Post-Decree Relief issued on May 10, 2017, in the
Order Denying Motion to Stay Divorce Decree issued on December
14, 2017, or the Amended Divorce Decree issued on December 14,
2017.
Keamoai's leasehold interest in the Hawaiian Home Lands
property is a property interest that cannot be taken without due
process. "The basic elements of procedural due process of law
require notice and an opportunity to be heard at a meaningful
time and in a meaningful manner before governmental deprivation
of a significant property interest." Sandy Beach Def. Fund v.
City Council of City and Cnty. of Honolulu, 70 Haw. 361, 378, 773
P.2d 250, 261 (1989). The Family Court did not address Keamoai's
challenge to transferring her leasehold interest. This was
error. Cf. HawaiiUSA Fed. Credit Union v. Monalim, 147 Hawai#i
33, 43-44, 464 P.3d 821, 831-32 (2020) (vacating and remanding
case where defendant in mortgage foreclosure case made sufficient
showing of laches defense and lower court failed to render
determination on issue).

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III. Conclusion
Based on the above, to the extent they affect Keamoai's
leasehold interest in the Hawaiian Home Lands property, the Order
Denying Motion to Stay Divorce Decree filed on December 14, 2017,
and all other orders by the Family Court of the Fifth Circuit are
vacated. This case is remanded to the Family Court for further
proceedings to address Keamoai's leasehold interest and any
issues that arise from resolving that issue.
DATED: Honolulu, Hawai#i, April 25, 2023.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Jacob G. Delaplane,
for Defendant-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Anthony A. Perrault,
for Plaintiff-Appellee /s/ Karen T. Nakasone
Associate Judge
Li#ulâ Kotaki,
for Movant

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