Fischer v. Fischer

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-DEC-2024
08:20 AM
Dkt. 177 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

GARY R. FISCHER, Plaintiff-Appellee,
v.
SAMANTHA K. FISCHER, Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
(CASE NO. 5DV171000024)

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

Samantha K. Fischer (Wife) appeals from the October 27,
2021 amended divorce decree entered by the Family Court of the
Fifth Circuit.1 We affirm.
Wife married Gary R. Fischer (Husband) in 1995. They
separated in 2014. Husband filed for divorce on February 3,
2017. An Initial Pre-Trial Order was entered on February 7,
2017. Trial began on April 23, 2021, and the evidentiary part
concluded on May 4, 2021 (DOCOEPOT). A divorce decree was
entered on July 27, 2021. The "Amended Decree Granting Absolute
Divorce and Awarding Child Custody" was entered on October 27,
2021. Wife appealed. The family court entered findings of fact
(FOF) and conclusions of law (COL) on April 13, 2022.

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The Honorable Stephanie R.S. Char presided.
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Wife's opening brief states eight points of error,2 but
her argument does not follow her points. We discuss her
arguments in the order raised. Points not argued are waived.
Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(7).
The family court has wide discretion and its decisions
will not be set aside unless there has been a manifest abuse of
discretion. Hamilton v. Hamilton, 138 Hawai#i 185, 197, 378 P.3d
901, 913 (2016). The family court's division and distribution of
the marital estate is reviewed for abuse of discretion. Id.
FOFs are reviewed under the clearly erroneous standard. Id.
COLs are reviewed de novo under the right/wrong standard. Id.
When a ruling presents mixed questions of fact and law, we review
it under the clearly erroneous standard because it depends on the
facts and circumstances of the case. Est. of Klink ex rel. Klink
v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523 (2007). A
ruling supported by the trial court's findings of fact and
applying the correct rule of law will not be overturned. Id.
1. Wife argues the family court "erred in ordering
that the wrongly-distributed social security monies totaling
$104,304.00 not be considered a pre-divorce distribution to
[Husband] even though the funds should have gone to the custodial
parent, [Wife]." The parties' younger Child was 16 when the
trial began. Husband testified he received $900 per month in
social security benefits for Child, which "has to be spent on
her." Wife argues, but cites no evidence,3 that Husband did not
use Child's social security payments for Child's benefit. Wife
cites Clark v. Clark, 110 Hawai#i 459, 134 P.3d 625 (App. 2006).

2
In a footnote, Wife "challenges all FOFs and COLs generally per
HRAP 28(b)(4)(c)[sic][.]" HRAP Rule 28(b)(4)(C) requires "either a quotation
of the finding or conclusion urged as error or reference to appended findings
and conclusions" (emphasis added). Wife appended a copy of the family court's
findings and conclusions to her opening brief, but her statement of points
refers only to FOF nos. 26, 50, 55-60, 63, 70-75, and 80. All other FOFs are
binding on appeal. Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450,
459, 40 P.3d 73, 82 (2002). Wife's statement of points refers only to COL
nos. 6, 15, 17-20, 24-30, and 35. Error in other conclusions, if any, is
disregarded. HRAP Rule 28(b)(4).
3
Wife cites to her trial memorandum. Her trial memorandum is
argument, not evidence.

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There, we discussed Child Support Enforcement Agency v. Doe, 92
Hawai#i 276, 990 P.2d 1158 (App. 1999). Both cases concerned the
effect of a custodial parent's receipt of a child's social
security benefits on the responsible parent's child support
obligation. In Doe we held that the obligor parent was entitled
to credit the amount of the child's social security benefits
against her contemporaneous support obligation. Id. at 285, 990
P.2d at 1167. In Doe the child's monthly benefit exceeded the
responsible parent's support obligation. We held the excess
benefits "shall be deemed a gratuity to the child" and need not
be paid by the custodial parent to the responsible parent. Id.
at 286, 990 P.2d at 1168. Then, in Clark, we held that
"dependent social security benefits may not be credited against
child support arrearages accruing before the claimant's
entitlement to the benefits." 110 Hawai#i at 470, 134 P.3d at
636.
Doe and Clark are inapposite. FOF no. 28 states, and
Wife does not challenge, that "[d]uring the pendency of their
divorce, neither party has been court ordered to pay child
support to the other party and neither has been giving child
support voluntarily to the other." Doe actually stands for the
proposition that Child's social security benefits belong to
Child, and should not be treated as an asset or liability of
Husband or Wife.
Wife argues that Child's social security benefits
"should have gone to the custodial caretaker," Wife. She
challenges FOF no. 26:

The status quo custody arrangement between the parties that
has been followed by the parties since their separation has
been de facto joint legal custody and joint physical
custody.

Wife doesn't challenge FOF nos. 14, 25, 28, or 29. The
family court found that Child "is allowed to be with whichever
party whenever she chooses" and "[b]oth parents have been
involved in her upbringing." The family court found that
"neither party has been court ordered to pay child support to the

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other party" and "[w]hichever parent [Child] is with takes care
of her living expenses." In light of these unchallenged
findings, FOF no. 26 is not clearly erroneous.
2. Wife argues the family court "erred by issuing
FOF 26 and COL 6, stating that joint legal and physical custody
is the status quo, and in concluding that travel costs for
[Child] are to be split." We stated above that FOF no. 26 was
not clearly erroneous. As to COL no. 6, the family court did not
order that Child's travel costs be split. COL no. 6 states, in
relevant part: "Each party should be responsible for travel
expenses, if any, required for [Child] to see them." Wife does
not challenge COL no. 5, which awarded the parties joint physical
custody of Child and "allowed [Child] to be with whichever party
whenever she chooses." COL no. 6 was consistent with COL no. 5,
and Wife cites no case, statute, or rule mandating otherwise.
The family court acted within its discretion in ordering that
each party is responsible for travel expenses required for Child
to see them.
3. Wife argues the family court "erred by wrongly
finding that [Wife] had violated the Initial Pre-Trial Order by
opening First Hawaiian Bank account ending 3777." Her argument
is confusing. She argues that the family court deprived her of
due process when it "heard and ruled on [Husband]'s Motion to
Enforce the Initial Pre-Trial Order even though this motion had
been withdrawn by [Husband] at the start of the hearing." She
also argues "the Court ruled on this withdrawn motion without
taking testimony from [Wife,]" who was "unavailable that day due
to her illness."
The family court's orders were not entered on Husband's
motion to enforce. On October 30, 2019, the family court entered
an order granting Husband's emergency motion to enjoin Wife from
depositing rental income into her personal account, and requiring
that all rental income be deposited into the business account.
On October 16, 2020, the family court entered an order denying
Wife's motion to vacate the October 30, 2019 order. The family
court ruled that Wife "violated the initial pre-trial order by

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depositing rental income into her personal account [ending 3777]
at First Hawaiian Bank." The latter order was the basis for FOF
no. 63, challenged by Wife:

The trial court found, in a pre-trial hearing held on
July 22, 2020 and by way of Order filed October 16, 2020,
that [Wife] diverted money from the marital partnership into
First Hawaiian Bank Account #X-3777 in violation of the
Pre-Trial Order initially filed in this case.

Wife does not challenge the October 30, 2019 or
October 16, 2020 orders. FOF no. 63 is not clearly erroneous.
4. Wife argues the family court erred by assigning
values of zero to the children's custodial accounts and not
attributing them to Husband in the Property Division Chart. The
family court found, and Wife does not challenge, that "[t]he
parties cannot make withdrawals from the accounts they are
holding for their children unless it is in the best interest of
the child." Wife argues that Husband was using the funds in the
children's accounts for his own benefit. She cites to her
attorney's argument during the hearing on the motions for
reconsideration; trial testimony by her doctor and her trial
testimony about Tiki Realty, the Princeville and Anini rentals,
and the related bank accounts; the family court's comments during
a hearing on January 29, 2021; and Husband's income and expense
and asset and debt statements. She cites no evidence of
Husband's spending from the custodial accounts, let alone that
they were for his benefit rather than that of either child. The
family court did not err in not allocating the accounts to either
party.
5. Wife argues the family court "erred by finding
insufficient evidence to value the Harley." The Property
Division Chart lists the Harley Davidson but assigns no value and
doesn't allocate it to either party. Wife points out that
Husband's amended asset and debt statement lists the Harley
Davidson's market value at $3,000. Husband testified at trial
that he sold the motorcycle for $3,000. Wife cites no impeaching
evidence. The family court acted within its discretion by not

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assigning a value to, or allocating, an asset that was not owned
by either party on the DOCOEPOT.
6. Wife argues the family court "erred by utilizing
outdated appraisals" of the parties' real property values.
Wife's argument is based on an appraiser's declaration that isn't
in the record, and was appended to her brief in violation of HRAP
Rule 28(b)(10). We disregard the declaration. Wife does not
otherwise challenge the evidence on which the family court based
its valuation of the parties' real property. Wife has not shown
error in the family court's valuation.
7. Wife argues the family court "erred by failing to
hold that $10,000.00, attributable to [Husband]'s 2% ownership
share in his grandson's property, was not marital property
attributable to [Husband]." Husband testified that his grandsons
bought a house together, he loaned one grandson $10,000 to buy
the other grandson's share, and that grandson paid him back. The
grandson testified that Husband cosigned a loan so he and his
brother could buy property. Husband did not put money down, but
received a two percent ownership interest for cosigning. The
loan was refinanced when the grandson bought his brother out; the
brother and Husband were removed from title; but Husband received
no money from the refinance. Wife cites no evidence of the value
of her grandson's property, or of Husband's former two percent
interest in it. Grandson's debt to Husband was Husband's asset,
but the asset was not part of the marital estate because the
grandson paid it off before the DOCOEPOT. The family court did
not err.
8. Wife argues the family court "erred by not holding
[Husband] accountable for his 'bad mortgage'" because it
"subtracted the $200k Penn. House and the $40k horse from the bad
mortgage." The family court found that Husband "committed
marital waste" by encumbering debt-free marital partnership
property with a $726,500 mortgage "in violation of the pre-trial
order." The family court also found that Husband bought property
in Pennsylvania, paid the balance due on purchase of a horse
(Cabana Boy), and discharged marital debt from the mortgage

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proceeds. The Property Division Chart allocates the value of the
Pennsylvania house and the full value of Cabana Boy to Husband,
credits Husband with satisfaction of the marital debt, and
allocates the balance of the mortgage to Husband. That was not
error because the family court thereby charged the full value of
the mortgage, less the amount used to satisfy marital debt, to
Husband.
9. Wife argues the family court "erred by awarding
the business, Tiki, fully to [Husband], but then still splitting
a Tiki liability — the Adkins lawsuit — between both parties."
Wife hasn't challenged the family court's award of Tiki to
Husband. She challenges FOF no. 80 and COL no. 38:4

FOF 80 [Husband] and [Wife] are both named Defendants in
the Adkins v. Fischer litigation. Due to lack of testimony
at trial, the Court does not have enough evidence to rule on
whether [Husband] shall be solely responsible for any
liability arising out of said litigation.

. . . .
COL 38 The parties shall be equally responsible for the
Adkins lawsuit.

Neither party cites to the record where the Adkins v.
Fischer complaint can be found. Neither party describes the
status of the lawsuit on the DOCOEPOT. We take judicial notice
of the court files in Adkins v. Fischer, Civ. No. 5CC131000032,
and Adkins v. Fischer, No. CAAP-XX-XXXXXXX. The plaintiffs were
Richard K. Adkins and Brown Eyed Girl, LLC. Named as defendants
were Husband, Wife, and Anini Aloha Properties, Inc.5 On the
DOCOEPOT, the lawsuit remained pending — it was on appeal from
the circuit court's dismissal of all claims. See Adkins v.
Fischer, 152 Hawai#i 79, 82, 520 P.3d 277, 280 (App. 2022)
(reciting that plaintiffs appeal from the May 8, 2018 judgment
dismissing all claims against all defendants and third-party

4
Wife's statement of the points of error does not challenge COL
no. 38. While we could disregard her argument, we conclude it has no merit.
5
Anini Aloha Properties, Inc. is mentioned nowhere in the Amended
Divorce Decree or the family court's findings of fact and conclusions of law.

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defendants). The family court did not err because Husband's and
Wife's ultimate liability in the lawsuit will depend on the terms
of any judgment entered against them, or either of them. Wife
cites no evidence in the record sufficient to support any other
allocation of the potential civil liability.
10. Wife argues the family court "erred by awarding
[Husband] $146,278.36 in Category 1 Repayment [sic], and where
the Court awarded [Husband] $105,315.00 as Category 3 repayment."
She challenges FOF nos. 50 and 55-60, and COL nos. 15 and 17-20.

As to Category 1, the family court found and concluded:

FOF 50 At the time the parties were married on February 25,
1995, [Husband] had the following property:
1) Hurricane Insurance Proceeds $ 13,278.36
2) 3753 Anini $ 65,000.00
3) 2620 Berwick, Baltimore, Maryland $ 18,000.00
4) IRA #077-0770189118 $ 30,000.00
5) Kauai Community FCU $ 20,000.00
$146,278.36

. . . .
COL 15 At the date of marriage, [Husband] had the following
Premarital Separate Property:

1) Hurricane Insurance Proceeds $ 13,278.36
2) 3753 Anini $ 65,000.00
3) 2620 Berwick, Baltimore, Maryland $ 18,000.00
4) IRA #077-0770189118 $ 30,000.00
5) Kauai Community FCU $ 20,000.00
$146,278.36

Category 1 is "[t]he net market value (NMV), plus or
minus, of all property separately owned by one spouse on the date
of marriage (DOM) but excluding the NMV attributable to property
that is subsequently legally gifted by the owner to the other
spouse, to both spouses, or to a third party." Hamilton, 138
Hawai#i at 201, 378 P.3d at 917. Upon marriage, premarital
separate property becomes either Marital Separate Property or
Marital Partnership Property. Id. at 200, 378 P.3d at 916. Wife
argues that the family court "failed in the final step of the
analysis — actually discerning what [sic] of those amounts were
actually 'investment[s] in Marital Partnership Property.'" Her

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argument is not persuasive. The family court concluded, and Wife
does not challenge, that:

COL 16 Upon the parties' marriage, [Husband]'s Premarital
Separate Property was not segregated as marital separate
property (i[.]e. it was not excluded from the parties'
marital partnership) by either a premarital agreement
pursuant to HRS Chapter 572D or a valid "marital agreement"
pursuant to HRS Section 572-22.

Husband's Category 1 NMV was thus his "individual contribution[]
to the marriage" that was to be "repaid to [him] absent equitable
considerations justifying a deviation."6 Id. at 201, 378 P.3d at
917. Wife does not argue that the family court should have
determined an equitable consideration justified deviation. FOF
no. 50 was not clearly erroneous, and COL no. 51 was not wrong.
Category 3 is "[t]he date-of-acquisition NMV, plus or
minus, of property separately acquired by gift or inheritance
during the marriage but excluding the NMV attributable to
property that is subsequently legally gifted by the owner to the
other spouse, to both spouses, or to a third party." Hamilton,
138 Hawai#i at 201, 378 P.3d at 917. The family court found, and
Wife does not contest, that "[d]uring the marriage, [Husband]
received inheritances totaling $560,869.70 from his mother." The
family court found and concluded:

FOF 55 [Husband's] inheritances were commingled with marital
partnership property.
FOF 56 As of the DOCOEPOT, the amount remaining in regards
to [Husband]'s inheritances is [his] M&T bank account in the
amount of $105,315.00.
FOF 57 There are valid and reasonable considerations
justifying a deviation from using $560,869.70 to using
$105,315.00 as [Husband]'s Category 3 Marital Partnership
Property.
FOF 58 "Relative abilities of the parties" — [Wife] suffers
from a number of medical ailments that interfere with her

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"In determining whether the circumstances justify deviation from
the partnership model, the family court must consider the following: the
respective merits of the parties, the relative abilities of the parties, the
condition in which each party will be left by the divorce, the burdens imposed
upon either party for the benefit of the children of the parties, and all
other circumstances of the case." Hamilton, 138 Hawai#i at 204–05, 378 P.3d
at 920–21.

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memory, day-to-day exercise of her mental ability, and her
physical movement. There is currently no known cure for her
ailments. It is not foreseeable that [Wife] will be able to
work and maintain an income in the future. [Husband] is a
contractor by trade, has an active real estate broker's
license, and is a savvy developer, having made considerable
income from the purchasing and selling of various property.
[Husband] has the ability to produce income in the future.
FOF 59 "The condition in which each party will be left by
the divorce" — If an equal distribution was made, [Wife]
would suffer from a great financial disparity as a result of
the property division.

FOF 60 "The concealment of an asset or violation of a
financial restraining order" — The property located on
Keoniana Place, previously free and clear of any debt has
become encumbered by the $726,500 Mortgage loan as a result
of [Husband]'s unilateral actions, during the period of
divorce, in violation of the pre-trial order.
. . . .
COL 17 When [Husband] received his inheritances from his
mother during the marriage, his inheritances were Marital
Separate Property.
. . . .

COL 18 When his inheritances were subsequently commingled
with marital partnership property, they became Category 3
Marital Partnership Property.

COL 19 As of the DOCOEPOT, the amount remaining in regards
to [Husband]'s inheritances is [his] M&T bank account in the
amount of $105,315.00.

COL 20 [Husband] shall receive a Category 3 credit of
$105,315.00.

Wife seems to misunderstand what the family court did.
The entire amount of Husband's inheritance was marital separate
property — "a narrow category of separate property that has been
excluded from the marital partnership, and thus, not subject to
division." Hamilton, 138 Hawai#i at 202, 378 P.3d at 918
(cleaned up) (emphasis added). In other words, the $560,869.70
Husband inherited from his mother would ordinarily be excluded
from the marital partnership model and Wife would not be entitled
to any part of that NMV. But the family court found that
Husband's inheritance was commingled with marital partnership
property — that is, a "contribution[] to the marriage" which was
to be "repaid to [Husband] absent equitable considerations
justifying a deviation." Id. at 201, 378 P.3d at 917. After

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concluding that appropriate equitable considerations justified a
deviation from the marital partnership model, the family court
reduced Husband's repayment from $560,869.70 to $105,315.00.
That increased the NMV of the marital partnership — of which Wife
was entitled to half — by $455,554.70. See Property Division
Chart, Parts E & F. It would be against Wife's interests to
vacate the challenged findings and conclusions concerning
Category 3 property.
11. Finally, Wife argues that the family court
committed "borderline invalid-abuse [sic]" by awarding her
alimony of $50,000. Kai Lawrence, who signed Wife's opening
brief, is cautioned to refrain from making abusive or
obstreperous comments about the family court. See Hawai#i Rules
of Professional Conduct Rule 3.5(b) and Comment [2]. Lawrence's
hyperbole is unpersuasive. Unchallenged FOF nos. 83-90 address
the relevant factors under HRS § 580-47(a). In addition to
alimony, Wife was awarded unencumbered real property valued at
$2,375,000; $365,523 in an E-trade account; and an equalization
payment of $190,274.99. Based on the family court finding valid
and reasonable considerations justifying a deviation from the
marital partnership model, the value of Wife's partnership share
was $2,973,862.71. Wife's argument about alimony is without
merit.
The family court's October 27, 2021 Amended Decree
Granting Absolute Divorce is affirmed.
DATED: Honolulu, Hawai#i, December 5, 2024.

On the briefs:
/s/ Katherine G. Leonard
Kai Lawrence, Acting Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Ronald P. Tongg, Associate Judge
for Plaintiff-Appellee.
/s/ Sonja M.P. McCullen
Associate Judge

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