Hawaii Bar Journal - June 2020 by Hawaii Bar Journal

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OF THE

H AWAII S TATE BAR A SSOCIATION J UNE , 2020 $5.00

TABLE O F C ON TE NTS VO LUM E 24 , N U M B E R 6

EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden David Farmer Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Melissa Miyashiro Eaton O'Neill Lennes Omuro Brett Tobin

ARTICLES 44

Premarital and Marital Agreements in Hawaii Divorces by Thomas E. Crowley III and Stephanie A. Rezents

OF NOTE

HSBA Happenings

President P. Gregory Frey

Case Notes

President-Elect Karin Holma Vice President Levi Hookano Secretary Russ Awakuni

Notice of Discipline

Cancellation of the 2020 Hawaii Access to Justice Conference

31 20

Classifieds

Treasurer Paul Naso

YLD OFFICERS

HSBA OFFICERS

President Addison Dale Bonner Vice President/President-Elect Christopher St. Sure Secretary Kyleigh Nakasone Treasurer Tiffany Kaeo

30 31

EXECUTIVE DIRECTOR Patricia Mau-Shimizu GRASS SHACK PRODUCTIONS Publisher Brett Pruitt Art Direction Debra Castro Production Beryl Bloom

Hawaii Bar Journal is published monthly with an additional issue in the fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50. Periodical postage paid at Honolulu, Hawaii and additional mailing offices. POSTMASTER: Send address changes to the Hawaii Bar Journal (ISSN 1063-1585), 1100 Alakea St., Ste. 1000, Honolulu, Hawaii 96813.

Advertising inquiries should be directed to: Grass Shack Productions (808)521-1929 FAX: (808)521-6931 brett@grassshack.net

On the cover: Big Apple by Jana Ireijo. Ireijo lives and works in Westport, CT. Her roots are based in Honolulu, HI where she received a BFA in Graphic Design from the University of Hawaii at Manoa. She went on to graduate with an MFA in Painting from the Pratt Institute in Brooklyn, NY. Jana has participated in group exhibitions internationally. She is a member of the Silvermine Arts Guild and the Westport Artist Collective. The cover art is inspired by the Japanese flag, with references to both New York City and Central Park. NYC's iconic red apple takes the place of the rising sun in the flag. Upon closer look, you can also see the Angel of Bethesda Fountain in the stem and leaf, the San Remo towers on the right, as well as the islands of Japan in the white highlights. â&#x20AC;&#x153;Being of Japanese descent, and having fulfilled a childhood dream of moving to New York for art school, this work combines two places close to her heart.â&#x20AC;? To see more of her art visit www.janaireijo.com.

Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.

Premarital and

Marital Agreements

in Hawaii Divorces

by Thomas E. Crowley III Stephanie A. Rezents

When two married persons divorce in Hawaii, the family court1 must complete up to four discrete parts of the divorce action: (1) dissolution of the marriage; (2) child custody, visitation, and support; (3) spousal support; and (4) division and distribution of property and debts.2 The court has two basic ways of doing so: either apply the criteria and procedures established by Hawaii statutes3 and case law, or, in the event the parties’ have an agreement resolving some or all of the issues in the divorce action, approve their agreement, if it’s valid and enforceable.4 There are three kinds of spousal agreements which may affect, among other things, marital property rights upon divorce: premarital, postmarital, and settlement agreements.5 Premarital or prenuptial agreements are entered into before marriage.6 Postmarital or postnuptial agreements are entered into after marriage.7 Settlement or separation agreements, also referred to as “Agreements Incident to Divorce” or “divorce agreements,” are entered into after separation due to the marital breakdown or in anticipation of immediate separation.8 This article focuses on spousal agreements that resolve some or all of the marital property rights a court must consider in a divorce action.9 Postnuptial and settlement agreements are referred to herein as “marital

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agreements.” This article is intended to assist family law attorneys and their clients apply the criteria for premarital and marital agreements to property division and spousal support in Hawaii divorces. It compares Hawaii’s property division statute for divorce actions (Haw. Rev. Stat. § 580-47) with Hawaii’s Uniform Premarital Agreement Act (Haw. Rev. Stat. Chapter 572D) and Hawaii’s marital agreement statute (Haw. Rev. Stat. § 572-22), and summarizes the requirements for valid and enforceable premarital and marital agreements in Hawaii divorces. Hawaii’s property division statute and the Marital Partnership Model If there’s no valid and enforceable spousal agreement resolving a divorcing couple’s marital property rights, the family court applies Haw. Rev. Stat. § 580-47, Hawaii’s property division statute, to determine property division and spousal support in the divorce action. HRS §§ 58047(a)(3) and (4) provide that, upon granting a divorce, the family court may finally divide the real and personal property of the estate of the parties, as shall appear “just and equitable.”10 HRS § 580-47(a) also provides six broadly-stated equitable factors the family court is required to consider in dividing the marital estate: In making these further orders, the court shall take into consideration: 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, the concealment of or failure to disclose income or an asset, or violation of a restraining order issued under section 580-10(a) or (b), if any, by either party, and all other circumstances of the case. To provide further guidance for the family court in dividing marital property, Hawaii case law has created a framework based on partnership principles.11 These partnership principles have been customized by Hawaii case law to create the “Marital Partnership Model” for dividing

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property consistent with “a well-accepted ideal of marriage” for fairly dividing property without undue emphasis on who made or contributed the money for the marital estate.12 Under the Marital Partnership Model, “marriage is a partnership to which both parties bring their financial resources as well as their individual energies and efforts.”13 The application of § 580-47(a)’s equitable factors to the Marital Partnership Model requires the family court to focus on the present and the future, not the past.14 An important equitable factor justifying departure from an equal distribution of partnership property is “the condition in which each party will be left by the divorce,”15 such as where the proposed property division would result in a significant financial disparity between the spouses.16 Under general partnership law, “each partner is entitled to be repaid his contributions to the partnership property, whether made by way of capital or advances.”17 Absent a partnership agreement to the contrary, “partners share equally in the profits of their partnership, even though they may have contributed unequally to capital or services.”18 Under partnership principles, if the spouses have not agreed otherwise, marital property is equally divided “where the only facts proved are the marriage and the existence of jointly owned property.”19 The Marital Partnership Model recognizes three general classifications of marital property: (1) premarital separate property, (2) marital separate property, and (3) marital partnership property.20 “Premarital Separate Property” is

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property owned by each spouse immediately prior to their marriage or cohabitation that was concluded by their marriage. Upon marriage, this property became either Marital Separate Property or Marital Partnership Property. “Marital Separate Property” or “MSP” is a narrow category of separate property owned by one or both of the spouses at the time of the divorce that has been excluded from the marital partnership and thus not subject to division. “Marital Partnership Property” or “MPP” is all property that is not Marital Separate Property. The assets and debts of most marital estates fall into the MPP classification of marital property. With respect to MPP, the Marital Partnership Model established five categories of net market values that the family court may use as guidance in dividing MPP.21 Marital Separate Property is not subject to division in divorce Marital Separate Property remains with the owner of that property, and is not subject to division in divorce.22 While MSP cannot be used by the family court to offset the award of Marital Partnership Property to the other spouse, it can be used by the family court to alter the ultimate distribution of Marital Partnership Property based on the respective separate conditions of the spouses.23 Spouses may, through a valid and enforceable agreement, exclude certain assets from the marital partnership entirely, segregating those assets as MSP:

disputes

Resolving [S]pouses may expressly contract for a different division of marital partnership property, and the family court must enforce all valid and enforceable agreements with regard to marital property division. See HRS § 572-22 (2006) (“All contracts made between spouses . . . not otherwise invalid because of any other law, shall be valid.”); … In addition, spouses may exclude certain assets from the marital partnership entirely, thereby segregating those assets as marital separate property.24 There are three methods of segregating property as Marital Separate Property: (1) a premarital agreement pursuant to HRS Chapter 572D; (2) a valid “marital agreement” pursuant to HRS § 572-22; and (3) gifts and inheritances acquired during the marriage that were “expressly classified” as separate property, maintained by itself or sources other than one or both of the spouses, and “funded by sources other than marital partnership income or property.”25 Premarital and marital agreements, if valid and enforceable, may govern property division upon divorce, instead of HRS § 580-47’s equitable factors and the Marital Partnership Model’s criteria for MPP. In Epp v. Epp, 80 Haw. 79, 85, 905 P.2d 54, 60 (Haw. App. 1995), the Hawaii Intermediate Court of Appeals held that when a premarital or marital agreement setting forth support and property division in the event of divorce is not unconscionable and has been voluntarily entered into by the parties with knowledge of the financial situation of the other prospective or current spouse, enforcement of the agreement does not violate the principle of a “just and equitable” award under HRS § 580-47. The Hawaii Supreme Court put it this way in Magoon v. Magoon, 70 Haw. 605, 608, 780 P.2d 80, 81 (Haw. 1989): “[T]he agreement rather than the court’s view of what is just and equitable in the circumstances may govern the division of property.”

equitably

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Hawaii’s Uniform Premarital Agreement Act and the requirements for a valid premarital agreement Hawaii’s Uniform Premarital Agreement Act (Haw. Rev. Stat. Chapter 572D) provides the requirements for a valid and enforceable premarital agreement. The requirements for a valid premarital agreement regarding property division and spousal support include: • The premarital agreement is in writing, and signed by both parties.26 • Each spouse has the capacity to contract in order to enter into a binding premarital agreement.27 • A premarital agreement is enforceable without consideration.28 • With respect to property division and spousal support, the permitted contents of a premarital agreement29 include: (1) The rights and obligations of each spouse in any of the property of either or both of them whenever and wherever acquired or located. (2( The disposition of property upon marital dissolution or death. (3) The modification or elimination of spousal support. (4) Any other matter, including the spouses’ personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty. • The right of a child to support may not be adversely affected by a premarital agreement.30 • A premarital agreement becomes effective upon the marriage of the parties.31 • After the marriage, the premarital agreement was never amended or revoked or abandoned.32 Hawaii’s marital agreement statute and the requirements for a valid marital agreement Haw. Rev. Stat. § 572-22, entitled “Contracts,” provides that all contracts 8 June 2020

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made between spouses which are not otherwise invalid because of any other law, shall be valid: (a) A married person may make contracts, oral and written, sealed and unsealed, with the married person’s spouse, or any other person, in the same manner as if the married person were sole. (b) An agreement between spouses providing for periodic payments for the support and maintenance of one spouse by the other, or for the support, maintenance, and education of children of the parties, when the agreement is made in contemplation of divorce or judicial separation, is valid; provided that: (1) The agreement shall be subject to approval by the court in any subsequent proceeding for divorce or judicial separation; and (2) Future payments under an approved agreement shall nevertheless be subject to increase, decrease, or termination from time to time upon application and a showing of circumstances justifying a modification thereof. (c) All contracts made between spouses, whenever made, whether before or after June 6, 1987, and not otherwise invalid because of any other law, shall be valid. The requirements for a valid marital agreement differ in part from those for a valid premarital agreement. The requirements for a valid marital agreement include: • Unlike a premarital agreement, a marital agreement need not be in writing.33 As Haw. Rev. Stat. § 57222(a) provides, the contract may be “oral or written.” In order for an oral contract to be enforceable, there must be an offer, an acceptance, and consideration. The party relying on the existence of an oral contract must prove it was clear and precise, and has a particularly heavy burden to establish objective signs of the parties’ intent to be bound.34

• Unlike a premarital agreement, a marital agreement need not be signed.35 • Similar to a premarital agreement, each spouse entering into a marital agreement must have the capacity to contract in order to enter into a binding marital agreement.36 Incapacity to contract means the person was “incapable of understanding the nature and effect of the transaction at the time the instrument was executed.”37 • Unlike a premarital agreement, a marital agreement may be void for lack of consideration.38 • Similar to a premarital agreement, the parties may contract with respect to property division upon divorce.39 • Similar to a premarital agreement, a marital agreement may contract to modify or eliminate spousal support.40

Judge Daniel R. Foley (ret.) wMediation wArbitration wMoot court wMock trial

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The requirements for enforceable premarital and marital agreements The requirements for enforcing premarital agreements set out in Haw. Rev. Stat. § 572D-6 also apply to the enforcement of marital agreements and divorce agreements.41 Haw. Rev. Stat. § 572D-6, entitled “Enforcement,” provides in part:

www.dprhawaii.com

(a) A premarital agreement is enforceable and shall be binding in any action unless the party against whom enforcement is sought proves that: (1) That party did not execute the agreement voluntarily; or (2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party: (A) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (B) Did not voluntarily and expressly waive, in writing, any right to disclo

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sure of the property or financial obligations of the other party beyond the disclosure provided; and (C) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. (b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid eligibility for public assistance.

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Like a premarital agreement, a postmarital or separation agreement is enforceable if the agreement is “not unconscionable and has been voluntarily entered into by the parties with the knowledge of the financial situation of the [other] spouse.”42 The spouse attacking the premarital or marital agreement has the burden of proving the agreement was not entered into voluntarily or was unconscionable.43 While not statutorily required, a key factor in facilitating valid and enforceable premarital and marital agreements is having each party represented by independent counsel in the negotiation of the agreements, especially regarding the issue of voluntariness. If a spouse had an opportunity to consult with an “independent” counsel (that is, counsel of one’s choice) but failed to exercise that choice,

the agreement is not involuntary.44 Based on the above statutes and Hawaii case law, the criteria for enforcement of premarital and marital agreements include whether they were executed voluntarily, and whether they were not unconscionable. Whether the premarital or marital agreement was executed voluntarily • A premarital or marital agreement must be executed voluntarily.45 • Involuntariness is shown by evidence of duress, coercion, undue influence, or any other circumstance indicating lack of free will or voluntariness.46 • Duress is defined as a threat of harm made to compel a person to do something against his or her will or

judgment; especially a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition.47 It is not duress for a party to threaten to do what he or she had a legal right to do.48 • Coercion is defined as “[c]ompulsion of a free agent by physical, moral, or economic force or threat of physical force.” Black’s Law Dictionary 315 (10th ed. 2014). Coercion sufficient to avoid a contract need not consist of physical force or threats of it. Social or economic pressure illegally or immorally applied may be sufficient.49 • Undue influence is defined as the improper use of power or trust in a way that deprives a person of free will and substitute’s another’s objective.50 The four elements of undue influence are: (1) a person who is subject to influence; (2)

an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence.51 Generally, before a marital breakdown, spouses have a confidential and fiduciary relationship, and their marital agreements require good faith and fair dealing. The parties to divorce agreements, however, often do not have a confidential relationship. In determining when the parties’ relationship changed from confidential to adversarial, the most important evidence is the existence of independent counsel. When both parties begin bargaining at arm’s length through such counsel, the confidential relationship generally ends. When one spouse has counsel and the other does not, the courts tend to find a confidential relationship still existed. Because of the complexity and importance of divorce

agreements, there is no substitute for review by independent experienced family law counsel.52 Whether the premarital or marital agreement was unconscionable when it was executed • An issue of unconscionability of a premarital or marital agreement must be decided by the court as a matter of law.53 • The court must determine whether a premarital or marital agreement was unconscionable at the time it was executed.54 • Unconscionability encompasses two principles: one-sidedness and unfair surprise.55 • One-sidedness (i.e., substantive unconscionability) means the premarital or marital agreement “leaves a post-divorce economic situation that is unjustly disproportionate.” A merely “inequitable”

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contract is not unenforceable under contract law.56 • Unfair surprise (i.e., procedural unconscionability) means “one party did not have full and adequate knowledge of the other party’s financial condition when the [premarital or marital] agreement was executed.”57 A fair and reasonable knowledge of each spouse’s financial condition is required, unless further disclosure is voluntarily waived in writing.58 • Generally, a “determination of unconscionability . . . requires a showing that the contract was both procedurally and substantively unconscionable when made[.]”59 • There may be exceptional cases, however, where a premarital or marital agreement “is so outrageous as to warrant holding it unenforceable on the ground of substantive unconscionability alone.”60 Even in the absence of unfair surprise, a premarital or marital agreement can be held unconscionable where it is unacceptably onesided. For example, in Kuroda v. Kuroda, 87 Haw. 419, 428, 958 P.2d 541 (App. 1998), the court held that a

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postnuptial agreement was unconscionable where it awarded the wife all personal and real property held in common, implicitly allowed the wife to keep her personal property including her accounts, required the husband to pay the wife one half of his net income from every source until either spouse passed away, and required the husband to pay all attorney’s fees and costs associated with the separation and divorce. The Kuroda court reached this conclusion without considering whether there was unfair surprise. Thus, although under Hawai’i law “two basic principles are encompassed within the concept of unconscionability, one-sidedness and unfair surprise,” … in certain circumstances, onesidedness alone can render an agreement unconscionable[.] 61 In Balogh v. Balogh, 134 Haw. 29, 41-42, 332 P.3d 631, 643-644 (Haw. 2014), the Hawaii Supreme Court cau-

NOTICE TO ATTORNEYS INTERESTED IN PROVIDING LEGAL SERVICES TO THE CITY AND COUNTY OF HONOLULU Under the Hawaii Public Procurement Code, Haw. Rev. Stat. Chapter 103D, and the Revised Charter of the City and County of Honolulu, the Corporation Counsel of the City and County of Honolulu is responsible for securing legal services from licensed private attorneys to provide legal advice and representation for City agencies, officers, employees, boards, commissions and semi-autonomous agencies. Corporation Counsel invites licensed attorneys to submit Statements of Qualifications and Expressions of Interest for evaluation. Those private attorneys who are deemed qualified will be included on a list from which special deputies corporation counsel, special counsel, and legal consultants will be selected by the Corporation Counsel to provide necessary legal services.

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tioned, however, that a showing of “extraordinary one-sidedness” is required before the family court may invalidate a postmarital agreement: [P]arties may have legitimate reasons for entering into a somewhat one-sided postmarital agreement, and may do so knowingly and voluntarily. Permitting the family court to invalidate such agreements without requiring a showing of extraordinary one-sidedness would frustrate the purpose of HRS § 572-22, which permits spouses to enter into enforceable contracts with each other. In Balogh, the Court held a marital agreement providing for a 75%/25% split of the sales proceeds of the marital residence, and a $100,000 payment in lieu of alimony, was not unconscionable.

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The attacking spouse, in addition to 25% of the sales proceeds, was entitled to an equitable share of the couple’s other major assets, which totaled $760,000. The Court noted “unless the agreement rises to the level of unconscionability, a merely ‘inequitable’ contract is not unenforceable under contract law”). Id., 134 Haw. at 43, 332 P.3d at 645. • Even if a premarital agreement was unconscionable when it was executed, the attacking spouse would have three additional burdens of proof to overcome the enforceability of the agreement. HRS § 572D-6(a)(2) provides the attacking spouse would have to prove, before execution of the agreement, that he or she: (1) Was not provided a fair and reasonable disclosure of the other spouse’s property; (2) Did not voluntarily and expressly waive, in writing, any right

to further disclosure; and (3) Did not have, and reasonably could not have had, an adequate knowledge of the other spouse’s property or financial obligations. • Similarly, unless the marital agreement was extraordinarily onesided, the attacking spouse of a marital agreement would have to prove there was unfair surprise (i.e., procedural unconscionability) meaning “one party did not have full and adequate knowledge of the other party’s financial condition when the [marital] agreement was executed.”62 In other words, the same facts establishing “unfair surprise” would also establish that the attacking spouse did not have, or reasonably could not have had, an adequate knowledge of the other spouse’s property or financial obligations. • In addition to the above defenses against enforcement, premarital and marital agreements may be subject to normal contract law defenses, such as breach of contract, waiver, and fraudulent inducement.63

Solutions Start Here Specializing In Resolving Your Challenging Civil Cases The enforceability of spousal support provisions in premarital and marital agreements The unconscionability of a spousal support provision in premarital and marital agreements is determined at the time of divorce, not at the time of execution.64 In Lewis v. Lewis, the Hawaii Supreme Court noted that in determining whether a support provision of a premarital agreement is unconscionable, “it is in the best interest of the state that the financial well-being of the parties at the time of divorce be preserved by taking into consideration factors and circumstances arising throughout the marriage[.]”65 The Court stated that to enforce a spousal support provision of a premarital agreement because it was reasonable at the time of execution of the agreement can result in unforeseen economic hardship to a spouse that may shock the conscience of the court due to relevant changes in the circumstances of the marriage by the time of divorce. Public policy mandates against the enforcement of unconscionable support payments.66 HRS § 572D-6(b) provides that if a spousal support provision in a premarital agreement causes a spouse to be eligible for support under a program of public assistance at the time of marital dissolution, the family court may require the other spouse to pay spousal support to the extent necessary to avoid public assistance eligibility. Interpreting Lewis and HRS § 572D6(b) together, it appears a premarital agreement modifying or eliminating spousal support is enforceable, subject to: (1) the limitations in Haw. Rev. Stat. § 572D-6(b) at the time of divorce, and (2) the requirements that it was voluntarily entered into and is not unconscionable in light of relevant changes in the circumstances of the marriage by the time of divorce. Similarly, Haw. Rev. Stat. § 572-22(b) provides that spousal support

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provisions in marital agreements are subject to approval by the family court at the time of divorce, and if approved, are thereafter subject to modification or termination based on relevant circumstances: (b) An agreement between spouses providing for periodic payments for the support and maintenance of one spouse by the other, or for the support, maintenance, and education of children of the parties, when the agreement is made in contemplation of divorce or judicial separation, is valid; provided that: (1) The agreement shall be subject to approval by the court in any subsequent proceeding for divorce or judicial separation; and (2) Future payments under an approved agreement shall nevertheless be subject to increase, decrease, or termination from time to time upon application and a showing of circumstances justifying a modification thereof.

(2) With respect to custody and visitation, Haw. Rev. Stat. § 571-46(1)(a), entitled “Criteria and procedure in awarding custody and visitation; best interest of the child,” provides: “Custody should be awarded to either parent or to both parents according to the best interests of the child[.]”

ence, or any other circumstance indicating lack of free will or voluntariness. Unconscionability encompasses two principles: one-sidedness and unfair surprise. One-sidedness means the premarital or marital agreement “leaves a post-divorce economic situation that is unjustly disproportionate.” Unfair surprise means “one party did not have full and adequate knowledge of the other party’s financial condition when the [premarital or marital] agreement was executed.” The unconscionability of a spousal support provision in premarital and marital agreements is determined at the time of divorce, not at the time of execution. While not statutorily required, a key factor in facilitating valid and enforceable premarital and marital agreements is having each party represented by independent counsel in the negotiation of the agreements. __________________

(3) With respect to the other parts of the divorce action: Haw. Rev. Stat. § 580-47(a), entitled “Support orders; division of property,” provides in part: (a) Upon granting a divorce, … the court may make any further orders as shall appear just and equitable (1) compelling the parties or either of them to provide for the support, maintenance, and education of the children of the parties; (2) compelling either party to provide for the support and maintenance of the other party; (3) finally dividing and distributing the estate of the parties, real, personal, or mixed, whether community, joint, or separate; and (4) allocating, as between the parties, the responsibility for the payment of the debts of the parties whether community, joint, or separate, and the attorney’s fees, costs, and expenses incurred by each party by reason of the divorce.

Conclusion Marital Separate Property remains with the owner of that property, and is not subject to division in divorce. Two of the methods for segregating property as MSP are “premarital agreements” pursuant to Haw. Rev. Stat. Chapter 572D, and “marital agreements” pursuant to Haw. Rev. Stat. § 572-22. Premarital and marital agreements, if valid and enforceable, may govern property division and spousal support upon divorce, instead of Haw. Rev. Stat. § 580-47’s equitable factors and the Marital Partnership Model’s criteria for Marital Partnership Property. Like a premarital agreement, a marital agreement is enforceable if the agreement is not unconscionable at the time it was executed and was voluntarily entered into by the parties with the knowledge of the financial situation of the other spouse. Involuntariness is shown by evidence of duress, coercion, undue influ-

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The Family Court has exclusive original jurisdiction over divorce actions. Haw. Rev. Stat. §§ 571-14(a)(3), 580-1(a).

2 Eaton v. Eaton, 7 Haw. App. 111, 118, 748 P.2d 801, 805 (Haw. App. 1987). 3

Relevant Hawaii Revised Statutes include: (1)

With respect to the divorce itself: (a) Even where the parties agree on dissolution, the court must still determine the existence of the grounds for divorce, such as “the marriage is irretrievably broken.” Haw. Rev. Stat. § 580-41(1). (b) The court must also “grant” the divorce. Haw. Rev. Stat. § 580-45, entitled “Decree,” provides: If after a full hearing, the court is of opinion that a divorce ought to be granted from the bonds of matrimony a decree shall be signed, filed and entered, which shall take effect from and after such time as may be fixed by the court in the decree.

With respect to “premarital agreements” (agreements between prospective spouses made in contemplation of marriage and to be effective upon marriage), see: Haw. Rev. Stat. Chapter 572D (Hawaii’s Uniform Premarital Agreement Act). With respect to postmarital and separation agreements (agreements during the marriage), see: Haw. Rev. Stat. § 572-22. Contracts (Hawaii’s marital agreement statute). 5 Balogh v. Balogh, 134 Haw. 29, 39, 332 P.3d 631, 641 (Haw. 2014). 6

Prell v. Silverstein, 114 Hawai’i 286, 287-88, 162 P.3d 2, 3-4 (App. 2007).

Chen v. Hoeflinger, 127 Hawai’i 346, 352, 279 P.3d 11, 17 (App. 2012).

Bienvenue v. Bienvenue, 102 Hawai’i 59, 61, 72 P.3d 531, 533 (App. 2003); Brett R. Turner and Laura W. Morgan, Attacking and

Defending Marital Agreements, 2nd Edition (American Bar Association 2012,) at 4 (“Separation agreements, in the great majority of cases, are signed after the marital breakdown, at a time when the parties have retained counsel to negotiate at arms’ length the terms of their divorce settlement.”). Settlement or separation agreements are also commonly referred to by the court and family law practitioners as “Agreements Incident to Divorce” or “Agreements in Contemplation of Divorce.”

Selvage v. Moire, 139 Haw. 499, 509-510, 394 P.3d 729, 739-740 (Haw. 2017).

Spousal agreements may also affect custody and child support, which are subject to court approval at the time of divorce:

Hamilton v. Hamilton, 138 Haw. 185, 206, 378 P.3d 901, 922 (Haw. 2016). 14 Gordon v. Gordon, 135 Haw. 340, 353, 350 P.3d 1008, 1021 (Haw. 2015). 15

(2) With respect to child support, Haw. Rev. Stat. § 572D-3(b) provides: “The right of a child to support may not be adversely affected by a premarital agreement.” With respect to spousal support and child support, HRS § 572-22 specifies that such agreements “shall be subject to approval by the court in any subsequent proceeding for divorce …” (3) With respect to the division of property and debts, however, there is no such limitation. Kuroda v. Kuroda, 87 Haw. 419, 426, 958 P.2d 541, 548 (Haw. App. 1998). The court is generally bound by the parties’ agreements on property division and spousal support, if such agreements are valid and enforceable. Haw. Rev. Stat. Chapter 572D (Hawaii’s Uniform Premarital Agreement Act); Haw. Rev. Stat. § 572-22 (Hawaii’s marital agreement statute). 10

Haw. Rev. Stat. § 580-47(a)(3) and (4) are quoted at Endnote 3, subparagraph (3) above.

Kakinami v. Kakinami, 127 Haw. 126, 137, 276 P. 3d 695, 706 (2012); HRS § 425118(a), regarding the rights and duties of partners.

Calvin G.C. Pang, Esq., Slow-Baked, FlashFried, Not to be Devoured: Development of the Partnership Model of Property Division in Hawai’i and

Category 5. The difference between the NMVs, plus or minus, of all property owned by one or both of the spouses on the DOCOEPOT minus the NMVs, plus or minus, includable in categories 1, 2, 3, and 4.

Id.

Id.; 59A Am. Jur. 2d Partnership § 476 (1987). 18

(1) The court must determine whether the parties’ child custody (Haw. Rev. Stat. § 57146(1)(a) and child support (Haw. Rev. Stat. § 571-52.5; Haw. Rev. Stat. § 576D-7) agreements are in the best interests of the children.

cluded in category 3 and that the owner separately owns continuously from the date of acquisition to the DOCOEPOT.

Beyond, 20 U. Haw. L. Rev. 1 (1998).

Id.; 59A Am. Jur. 2d Partnership § 469.

Gussin v. Gussin, 73 Haw. 470, 483-484, 836 P. 2d 484, 491 (Haw. 1992). 20 Hamilton, supra, 138 Haw. at 200-201, 378 P.3d at 916-917. 21 Hamilton, supra, 138 Haw. at 201, 378 P.3d at 917. The five categories of MPP net market values (“NMVs”) are:

Category 1. The 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.

Upon divorce, these five categories of MPP are divided as follows, absent equitable circumstances justifying deviation from such division. The NMVs in Categories 1 and 3 are the parties’ “capital contributions,” and pursuant to general partnership law, they are returned to each spouse. If a Category 1 or Category 3 asset is still owned at the time of divorce, and its NMV has diminished in value, then the capital contribution credit is limited to its value at the time of divorce. Categories 2 and 4 are the during-the-marriage increase in NMVs of the Categories 1 and 3 Properties, which similar to partnership profits, are generally to be shared equally. Category 5, which is the net profit or loss of the marital partnership after deducting the other four categories, is to be divided equally unless equitable considerations merit deviation. 22

Kakinami, supra, 127 Haw. at 142, 276 P. 3d at 711 (2012).

Category 2. The increase in the NMV of all property whose NMV on the DOM is included in category 1 and that the owner separately owns continuously from the DOM to the DOCOEPOT [date of the conclusion of the evidentiary part of the trial]. Category 3. The 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. Category 4. The increase in the NMV of all property whose NMV on the date of acquisition during the marriage is in-

Id.

Balogh, supra, 134 Haw. at 39, 332 P.3d at 641 (footnote omitted) (citing HRS § 57222).

Kakinami, supra, 127 Haw. at 142, 276 P. 3d at 711.

HRS § 572D-2 provides in part that a “premarital agreement must be in writing and signed by both parties.”

Brett R. Turner and Laura W. Morgan, Attacking and Defending Marital Agreements, supra, at 372 (“Just as parties to an ordinary contract must have capacity to contract, the parties to an antenuptial agreement must have the capacity to contract. … If a party does not have the requisite capacity, the contract may be set aside on those terms.”).

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HRS § 572D-2.

HRS § 572D-3(a)(1), entitled “Content,” provides in pertinent part: (a) Parties to a premarital agreement may contract with respect to: (1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; (2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; (3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; (4) The modification or elimination of spousal support; (5) The making of a will, trust, or other arrangement to carry out the provisions of the agreement; (6) The ownership rights in and disposition of the death benefit from a life insurance policy; (7) The choice of law governing the construction of the agreement; and (8) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty. (b) The right of a child to support may not be adversely affected by a premarital agreement.

HRS § 572D-3(b).

HRS § 572D-4.

one party acts in a manner inconsistent with the existence of the contract and the other party acquiesces.”). 33 Epp v. Epp, supra, 80 Haw. at 85, 905 P.2d at 60, Footnote 2 (“Marital agreements may be oral or written pursuant to HRS § 57222. Query whether the legislature fully appreciated the kinds of written and oral marital agreements that are possible, what marital partners will and will not say and do for such marital agreements, and how these words, actions, agreements, and refusals to agree will affect marital relationships and divorce proceedings.”). 34 Henna v. Hayashida, 129 Haw. 448, 302 P.3d 716 (Haw. App. 2013). 35

Alvarado v. Ivan, 136 Haw. 192, 358 P.3d 761 (Haw. App. 2015) (A postmarital agreement need not be signed by both parties. Wife did not otherwise explain how her lack of signature could render the agreement unconscionable. Hawai’i’s Statute of Frauds (HRS § 656-1(4), (5) requires “agreement[s] made in consideration of marriage” to be signed by the party to be charged. Unlike prenuptial agreements, divorce agreements are not made “in consideration” of marriage and do not fall within the Statute of Frauds). Compare: Collins v. Wassell, 144 Haw. 66, 435 P.3d 1080 (2019 Haw. App.) (An oral contract that was not to be performed within one year from the making thereof is unenforceable under the statute of frauds. HRS § 656-1(5)). 36

Brett R. Turner and Laura W. Morgan, Attacking and Defending Marital Agreements, supra, at 8 (In order to make a valid separation agreement, both parties must have the capacity to contract. The test for mental capacity is whether a party is able to understand the nature of the agreement and the consequences of his or her act at the time the agreement is executed).

HRS § 572D-5. Kuroda v. Kuroda, 87 Haw. 419, 427, 958 P.2d 541, 549 (Haw. App. 1998) (“Abandonment need not be expressed; it may be inferred from the conduct of the parties and the attendant circumstances.” “… A contract is abandoned when

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Balogh, supra, 134 Haw. at 51, 332 P.3d at 653 (Incapacity to contract means the person was “incapable of understanding the nature and effect of the transaction at the time the instrument was executed.”) .

In Balogh, supra, 134 Haw. at 47, 332 P.3d at 648, the majority of the Hawaii Supreme Court did not consider the issue of consider-

ation because the family court made no findings or conclusions relating to the adequacy of consideration, and husband made no argument regarding lack of consideration. In his Amended Concurring and Dissenting Opinion, however, Justice Pollack stated he would hold that, as a threshold matter, the marital agreement (the parties’ “memorandum of understanding”) was void for lack of consideration. Justice Pollack noted the Hawaii Supreme Court has previously stated “[a] compromise, like any other contractual agreement, must be supported by consideration”; “consideration is an essential element of, and is necessary to the enforceability or validity of, a contract”; and “[f]orbearance to exercise a right is good consideration for a promise.” Justice Pollack further noted that while the Hawaii Supreme Court has not examined what constitutes consideration for a postnuptial contract, other courts have held that neither the marriage itself, nor continuation of the marriage, can act as sufficient consideration for a postnuptial agreement because past consideration cannot support a current promise. Balogh, supra, 134 Haw. at 56-57, 332 P.3d at 658-659. 39

Kakinami, supra, 127 Hawai’i at 138-39, 276 P.3d at 707-08 (Spouses may, by a valid contract; exclude certain assets from the marital partnership entirely, thereby segregating those assets as marital separate property). 40

Haw. Rev. Stat. § 572-22(b).

Epp, supra, 80 Haw. at 85, 905 P.2d at 60 (“Although the following quotation addresses HRS § 572D-10 and premarital agreements, it applies equally to HRS § 572-22 and marital agreements and divorce agreements. Section 10 of the Hawaii [Hawai’i] Act specifically states that such pre-marital agreements are valid and enforceable if otherwise valid as contracts. Unless the agreement rises to the level of unconscionability, a merely “inequitable” contract is not unenforceable under contract law. Furthermore, when a premarital agreement setting forth support and property division in the event of divorce is not unconscionable and has been voluntarily entered into by the parties with knowledge of the financial situation of the prospective spouse, enforcement of the agreement does not violate

the principle of a “just and equitable” award under HRS § 580-47”). 42

Balogh, supra, 134 Haw. at 40, 332 P.3d at 642; Epp, supra, 80 Haw. at 85, 905 P.2d at 60.

HRS § 572D-6(a).

Attacking and Defending Marital Agreements, supra, at 80-82. See also, In his Amended Concurring and Dissenting Opinion in Balogh, supra, Justice Pollack opined that the confidential relationship between spouses should require marital agreements to be subjected to a fiduciary standard to protect spouses against selfdealing and overreaching by the more dominant spouse:

Brett R. Turner and Laura W. Morgan, Attacking and Defending Marital Agreements, Second Edition (American Bar Association 2012,) at 395-398.

Unlike parties to a premarital agreement or a separation agreement, parties to a postmarital agreement have stated their intention to remain part of an existing marriage in which they already share a vested interest, personal intimacy, and mutual trust.

HRS § 572D-6(a)(1).

Balogh, supra, 134 Haw. at 43, 332 P.3d at 645.

Balogh, supra, 134 Haw. at 44, 332 P.3d at 646.

Balogh, supra, 134 Haw. at 44, 332 P.3d at 646 (A threat of divorce does not constitute an improper threat since the party making it has the legal right to seek a divorce); Kam Chin Chun Ming v. Kam Hee Ho, 45 Haw. 521, 558, 371 P.2d 379, 402 (1962) (it is not duress for a party to “threaten to do what they had a legal right to do”); Autin v. Autin, 617 So.2d 229, 233 (La. Ct. App. 1993) (holding “a threat of doing a lawful act or a threat of exercising a right does not constitute duress”).

Balogh, supra, 134 Haw.at 45, 332 P.3d at 647.

Balogh, supra, 134 Haw. at 54, 332 P.3d at 656. Justice Pollack stated the general rules governing fiduciary relationships, which guide the actions of persons occupying confidential relations with each other, would impose a duty of good faith and fair dealing on each spouse, such that neither could take an unfair advantage of the other. Accordingly, Justice Pollack would hold that an agreement that was not in accordance with fiduciary standards should be presumptively involuntary and unenforceable, and such agreements would be enforceable only if the defending spouse could demonstrate that the agreements in question were executed under a fiduciary standard of good faith and fair dealing. Balogh, supra, 134 Haw. at 55-56, 332 P.3d at 657-658. 53

Balogh, supra, 134 Haw. at 45, 332 P.3d at 647 (Undue influence is “[t]he improper use of power or trust in a way that deprives a person of free will and substitute’s another’s objective,” citing Black’s Law Dictionary 1760 (10th ed. 2014)).

HRS § 572D-6(c). 54 HRS § 572D-6(a)(2).

Cvitanovich-Dubie v. Dubie, 125 Haw. 128, 160, 254 P.3d 439, 471 (Haw. 2011); Balogh, supra, 134 Haw. at 45-46, 332 P.3d at 647648 (Husband executed the marital agreement voluntarily. Husband was well educated, with a bachelor’s and master’s degree in electrical engineering, and was aware of what he was doing, and the agreement was not the result of a lack of free will, notwithstanding the stress husband was under from a number of sources). 52 Brett R. Turner and Laura W. Morgan,

Balogh, supra, 134 Haw. at 41-42, 332 P.3d at 643-644.

Balogh, supra, 134 Haw. at 41, 332 P.3d at 643.

Brett R. Turner and Laura W. Morgan, Attacking and Defending Marital Agreements, supra, at 350-353, 425-432; HRS § 572D-10. (All written agreements entered into prior to July 1, 1987, between prospective spouses for the purpose of affecting any of the provisions of this chapter shall be valid and enforceable if otherwise valid as contracts); Haw. Rev. Stat. § 572-22(c) (All contracts made between spouses, whenever made, … and not otherwise invalid because of any other law, shall be valid). 64

Prell v. Silverstein, 114 Haw. 286, 297, 162 P.3d 2,13 (Haw. App. 2007) (The unconscionability of a spousal support provision can only be determined at the time of divorce by reviewing and considering all relevant factors and circumstances occurring after the execution of the premarital agreement. To enforce a spousal support provision of a premarital agreement because it was reasonable at the time of execution of the agreement can result in unforeseen economic hardship to a spouse that may shock the conscience of the court due to relevant changes in the circumstances of the marriage by the time of divorce). 65 Lewis, supra, 69 Haw. at 502-503, 748 P.2d at 1366-13679. 66

Balogh, supra, 134 Haw. 29, 41, 332 P.3d 631, 643; Lewis v. Lewis, 69 Haw. 497, 502, 748 P.2d 1362, 1366.

56 51

Lewis, supra, 69 Haw. at 500-501, 748 P.2d at 1366 (Haw. 1988); Magoon, supra, 70 Haw. at 608, 780 P.2d at 81.

HRS § 572D-6(a)(2); Balogh, supra, 134 Haw. at 41, 332 P.3d at 643; Lewis, supra, 69 Haw. at 502, 748 P.2d at 1366.

HRS § 572D-6(a)(2).

Balogh, supra, 134 Haw. at 41, 332 P.3d at 643. 60 Id.

Id.

Stephanie A. Rezents and Thomas E. Crowley are partners in the law firm of Rezents & Crowley, LLP., which concentrates on divorce law. Stephanie Rezents is a past chair of the HSBA’s Family Law Section and is a current member of the American Academy of Matrimonial Lawyers, American College of Trial Lawyers, and the American College of Family Trial Lawyers. Tom Crowley is the author of Settle It Out of Court: How to Resolve Business and Personal Disputes Through Mediation, Arbitration, and Negotiation (John Wiley & Sons, 1994), and a member of the HSBA’s Family Law Section.

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H SBA HAP PE NIN GS HSBA Awards: Nominate a Colleague HSBA Awards will be presented at the Annual Meeting Luncheon on October 16, 2020, at the Bar Convention. The HSBA Awards Committee seeks nominations of individuals or entities deserving of recognition for the following: Golden Gavel Award recognizes an attorney or non-attorney for outstanding service to the state or federal judiciary in Hawaii. C. Frederick Schutte Award recognizes an attorney for outstanding service to the legal community and the profession. ‘Ikena Award recognizes an attorney or non-attorney for exceptional service in legal education to the public or the profession. Ki’e Ki’e Award recognizes an attorney for outstanding provision of professional legal services at no charge to the recipient. Greeley Key Award for Innovation recognizes an attorney or non-attorney for promoting new and creative uses of, or approaches to, the law. Champion for Social Justice Award recognizes an attorney for courageous legal work in the face of public controversy. Malama Hawaii Award recognizes an attorney for effective non-legal community service activities that make a difference and improve the quality of life in Hawaii. For a full description of these awards, please go to www.hsba.org/About Us/ Awards. Please submit nominations to the Awards Committee, c/o HSBA, by mail

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or email (nominations@hsba.org) no later than July 10, 2020.

Openings on HSBF Board and Access to Justice Commission The Hawaii State Bar Foundation (“HSBF”) and the Hawaii Access to Justice Commission (ATJC) will have positions expiring in December 2020. With respect to the general qualifications for these positions, interested individuals should (1) have an affirmative interest in the organization; (2) be willing and able to devote time to perform necessary duties; and (3) be conscientious, studious, thorough and diligent in learning methods and problems of the organization. HSBF: Duties include setting short-term and long-term strategic goals and directions for the HSBF; fundraising and developing sufficient resources to carry out goals and directions; providing oversight of the HSBF’s finances, grants, programs, and operations; and serving as an emissary in the legal community and beyond for the HSBF and its mission. There are five openings, each with a three-year term beginning January 1, 2021. ATJC: The Commission’s primary purpose is to substantially increase access to justice in civil legal matters for low- and moderate-income residents of Hawai`i. Another organization-specific qualification includes being an active HSBA member who has demonstrated a commitment to, and familiarity with, access to justice issues in Hawaii. Two HSBA representative openings are available, each with a three-year term beginning January 1, 2021. Neighbor island attorneys and attorneys from law firms of 10 or more are encouraged to apply. For more details on the Commission’s work,

see http://www.hawaiijustice.org/hawaiiaccess-to-justice-commission. Anyone interested in serving in these capacities should submit the following to the HSBA Nominating Committee (nominations@hsba.org) by July 31: a resume, reason for wanting to serve, and area of concentration. Please note that these positions are uncompensated, and that applicants need to disclose all public disciplinary sanctions. If there have been no such sanctions, then state that such is the case. Appointment will be made at the HSBA Board meeting in November 2020.

Check Your Bar Directory Information for 2020 – 2021 Preparations are being made for information compilation to be sent to the Bar Directory publisher. Please go to the Online Member Directory at www.hsba.org to review your profile information as soon as possible, but no later than June 30. If you need to make changes to your published address information, sign in to your account, scroll down to the “Business Address” section and make the changes. If you need to correct your status, please email lcastillo@hsba.org for a change of status form. Please follow these instructions to access your account: • Username is JD# and Last name. Example: 1111Smith • Password is first three letters of last name (case sensitive) and last four digits of SSN. Example: Smi4321 Capitalize the first letter of your last name when entering it into your password. If you are still having trouble accessing your HSBA Account, please use the “forgot my password” or “forgot my

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Bar Directory Photo If you want to update your headshot or fill in the blank gray box next to your name, submit your headshot to Adrienne Hayashi at ahayashi@hsba.org.

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CAS E NOTES Hawaii Supreme Court Criminal State v. Malave, No. SCWC-180000332, April 20, 2020, (Recktenwald, C.J.). Israel Vega Malave (“Malave”) was convicted in the Family Court on two counts of Sexual Assault in the First Degree for sexually assaulting his preteen stepdaughter over a period of approximately two years. This case required the Hawaii Supreme Court to review two issues: the jurisdiction of the family court to try Malave and the propriety of instructing the jury on a lesser included offense. The ICA rejected Malave’s argument that the family court did not have jurisdiction, and that it should have instructed the jury on the lesser included offense of Sexual Assault in the Third Degree (Sexual Assault 3). The ICA therefore affirmed the family court’s judgment. Malave asked the Hawaii Supreme Court to address the following two issues that he contended were incorrectly resolved by the ICA: 1. Whether the ICA gravely erred in holding that the family court had subject matter jurisdiction pursuant to Hawaii Revised Statutes § 571-14(a)(1); and 2. Whether the ICA gravely erred in finding that there was no rational basis in the record to support providing the jury instruction of the lesser included offense of sexual assault in the third degree. The Hawaii Supreme Court concluded that the ICA did not err in affirming the family court. Although the jury should have been instructed to determine jurisdictional facts, the error was harmless beyond a reasonable doubt because the uncontroverted evidence showed that Malave had physical custody of CW. Moreover, the family court was not obligated to instruct the jury on the lesser included offense of Sexual Assault 3 because the record did not contain a ra-

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Appeal Pointer In cases where Rule 52(a) of Hawai`i Family Court Rules (“HFCR”) requires the entry of findings of fact and conclusions of law, the family court retains jurisdiction to enter the FOF/COL after a notice of appeal is filed. The parties to the appeal do not have to file a motion for remand in the appellate court. If the FOF/COL are not transmitted with the record on appeal, the family court can supplement the record on appeal pursuant to HRAP Rule 10(e)(2)(b). The parties to the appeal do not have to file a motion to supplement the record in the appellate court. All requests for relief related to the entry and filing of FOF/COL pursuant to HRFC Rule 52(a) should be directed to the family court. tional basis to acquit Malave of Sexual Assault 1 and convict him of Sexual Assault 3. State v. Martin, No. SCWC-14000100, April 22, 2020, (McKenna, J.). This appeal arose out of the shooting of two Hawaii Police Department (“HPD”) officers on the evening of January 2, 2013. Keaka Martin (“Martin”) was convicted after a jury trial in the circuit court of various counts, including attempted murder of one of the officers. On August 5, 2014, the circuit court entered its judgment of conviction and sentence, sentencing Martin to life imprisonment without the possibility of parole plus ten years. Martin appealed the judgment of conviction and sentence to the ICA. The ICA affirmed. Martin’s application for writ of certiorari to the Hawaii Supreme Court (“Application”) raised five questions: 1. Did the ICA commit grave errors of law and fact when it held that the trial court did not engage in a deficient Tachibana colloquy?

2. Did the ICA commit grave errors of law and fact when it held that the trial court properly admitted evidence of defendant’s suicide attempt? 3. Did the ICA commit grave errors of law and fact when it held that the trial court properly admitted evidence of defendant’s statement that he shot himself ? 4. Did the ICA commit grave errors of law and fact by holding that the trial court did not err in admitting prior bad acts of defendant? 5. Did the ICA commit grave errors of law and fact by holding that defendant’s convictions for attempted murder and assault in the first degree should [not] be vacated because the trial court failed to properly instruct the jury on lesser-included offenses? For the reasons explained below, the issues Martin raised on certiorari lack merit. The Hawaii Supreme Court, however, addressed Martin’s second question on certiorari regarding his suicide attempt the day after the shooting. The circuit court properly ruled the evidence admissible as probative of Martin’s identity as the person who had committed the offenses. The circuit court, however, also sua sponte applied the majority rule across the country to rule that the evidence of Martin’s suicide attempt was also admissible as relevant to his “consciousness of guilt.” The Hawaii Supreme Court held that evidence of a suicide or attempted suicide was not automatically admissible as relevant to a defendant’s consciousness of guilt. As recognized by the Vermont Supreme Court, “[t]he underlying reasons motivating an attempt to take one’s life can be both numerous and highly complex . . . .” State v. Onorato, 762 A.2d 858, 859-60 (Vt. 2000). The New Jersey Supreme Court has also appropriately noted that, aside from guilt, other factors such as “a defendant’s psychological, social or financial situation may underlie a suicide attempt.” State v.

Mann, 625 A.2d 1102, 1108 (N.J. 1993). State v. Melendez, No. SCWC-180000522, April 24, 2020, (Pollack, J.). In this case, the defendant was found to be in possession of .005 grams of a substance containing cocaine, and he was charged with possession of a dangerous drug in the third degree, a class C felony. The defendant moved to dismiss the charge, arguing that his violation of the statute was so trivial that it did not warrant the condemnation of conviction. The circuit court agreed, finding that the violation was de minimis and dismissed the charge. On appeal, the ICA vacated the order dismissing the charge. It concluded that the circuit court had erred in finding that the cocaine the defendant possessed could not have had any pharmacological or physiological effect upon consumption, and that this error required the order of dismissal to be vacated. The defendant sought certiorari review of the ICA’s decision. The Hawaii Supreme Court concluded that the ICA erred in holding that a defendant, in order to prevail on a motion to dismiss a possessory drug violation as de minimis, must prove that the possessed drugs could not have any pharmacological or physiological effect. Thus, the ICA’s vacatur of the dismissal order was erroneous.

Family DJ v. CJ, No. SCWC-17-0000027, April 13, 2020, (McKenna, J. with Nakayama, J., concurring and dissenting, with whom Recktenwald, C.J., joined). In their 2012 divorce, CJ (Mother) and DJ (Father) were granted joint legal and physical custody of their two minor children. In 2016, Mother filed a motion for post-decree relief in the Family Court of the First Circuit (“family court”), requesting sole physical custody and joint legal custody so that she could relocate from Hawaii to North Carolina with the children and their

soon-to-be-stepfather. More than six months after Mother filed her motion for post-decree relief, the family court held a half-day trial on the motion. One week before the trial, a social worker in the family court’s Custody Investigations Unit (“CIU”) completed a custody evaluation investigation and report (“CIU Report” or “Report”). It is unclear

when the parties received the Report. Both Mother and Father proceeded to trial without attorneys. Father, who had a Tagalog interpreter available at trial, experienced difficulty cross-examining several witnesses. When the family court indicated it was calling the CIU social worker as a witness, Father orally requested a continuance so that he could

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Has recently joined the Firm as an Associate. Mr. Kozak obtained a Bachelor’s degree at Villanova University, Villanova, PA, and his Juris Doctor from the Pepperdine University School of Law, Malibu, CA. He has received licenses to practice law in Hawaii, Pennsylvania, New Jersey and California. Mr. Kozak has experience in working in litigation specializing in association /condominium law, employment and housing discrimination, medical malpractice, and business and commercial litigation. He has also served as an Arbitrator in numerous Court Annexed Arbitration Program cases. He will concentrate in the areas of Insurance Defense, Construction Litigation, bankruptcy and other litigation matters.

Pacific Guardian Center, Makai Tower 733 Bishop Street, 24th Floor Honolulu, Hawaii 96813-4070 Telephone: (808) 524-8350 Fax: (808) 531-8628 Email: info@opgilaw.com www.opgilaw.com June 2020

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obtain the assistance of an attorney. The family court denied Father’s oral motion as untimely, then ruled that it was in the children’s best interests to relocate with Mother. On appeal, Father argued that the family court abused its discretion in: (1) denying his motion for a continuance at trial, and (2) considering the CIU Report in granting Mother’s motion for post-decree relief. The ICA majority vacated the family court’s ruling, holding that the family court abused its discretion in denying Father’s motion for a continuance to seek an attorney. The majority did not address whether the family court abused its discretion in considering the CIU Report. Mother’s application for writ of certiorari presented two questions: (1) whether the ICA erred in holding that the family court abused its discretion in denying Father’s motion for a continuance at trial; and (2) if so, whether the family court abused its discretion in considering the CIU Report in ruling upon Mother’s motion for post-decree relief. The main populated Hawaiian Islands are some of the most remote populated land masses in the world, located about 2,400 miles from California and 4,000 miles from Japan. When a child relocates out-ofstate with the other parent, even if a court order allows for visitation during summer or winter vacations, travel expenses make regular continued contact with the child quite difficult, if not impossible, for the great majority of Hawaii parents. A proposed out-of-state relocation with a child can therefore significantly affect a parent’s substantive liberty interest in the care, custody, and control of a child. Whether or not to allow relocation, however, must be based on a determination of the child’s best interests, which includes a child’s right to parental contact. Based upon the important interests involved, the ICA majority did not err by holding that the family court abused its discretion in denying Father’s request for a continuance to seek the assistance of an attor-

ney. Father not only had English language difficulties, but was not able to effectively exercise his statutory right to cross-examine the CIU social worker on the detailed CIU Report, which had been prepared only one week before trial, and may not have been received by Father until the day of trial. On the other hand, with respect to the second question on certiorari, the family court did not abuse its discretion in considering the CIU Report. Family courts should consider CIU or any other available family court social worker reports in making these difficult decisions regarding whether or not to allow relocation. Family courts also have the discretion to appoint guardians ad litem for children in relocation cases pursuant to Haw. Rev. Stat. § 571-46(a)(8) (2006 & Supp. 2013). The Hawaii Supreme Court affirmed the ICA’s February 8, 2018 Amended Judgment on Appeal remanding this case to the family court for further proceedings. Nakayama, J., with whom Recktenwald, C.J., joined, concurred and dissented. Nakayama, J. agreed with the Majority’s holding that the family court did not abuse its discretion in relying upon the Custody Investigation Unit (CIU) report in making its custody decision. However, Nakayama, J. did not agree with the Majority’s holding that the family court abused its discretion in denying Father’s motion for a continuance. While Nakayama, J. agreed that “[p]arental rights guaranteed under the Hawaii Constitution would mean little if parents were deprived of the custody of their children without a fair hearing[,]” In re Doe, 99 Hawaii 522, 533, 57 P.3d 447, 458 (2002), in her view, Father was not deprived of a fair hearing when the family court denied his motion for a continuance. Father successfully gave opening and closing statements, presented his evidence, and elicited testimony from his witnesses. Though he struggled with

cross-examination, he ultimately succeeded in cross-examining Mother’s witnesses, and did not identify any information he was prevented from eliciting on cross-examination. Father’s unfamiliarity with one part of the trial process did not prejudice his case. Therefore, Nakayama, J. concurred in part and dissented in part. DL v. CL, No. SCWC-18-0000211, April 17, 2020, (McKenna, J.). This appeal arose from rulings concerning child custody and relocation and disqualification of counsel made by the family court in a divorce proceeding. DL asserted that in its February 28, 2019 summary disposition order (“SDO”) the ICA erred by (1)(a) considering the family court’s April 26, 2018 amended findings of fact and conclusions of law regarding child custody despite its entry of some findings of fact regarding child custody before the March 26, 2018 notice of appeal, as the family court was without jurisdiction to enter additional findings after the notice of appeal had been filed; and (b) not properly considering DL’s arguments that even if the family court had jurisdiction to enter them, the April 26, 2018 findings and conclusions should be rejected; (2) affirming the family court’s denial of its motion to disqualify CL’s counsel and law firm; and (3) affirming the family court’s grant of sole physical custody of the parties’ minor children to CL and allowing CL to relocate the children to Arizona. The Hawaii Supreme Court concluded that the ICA did not err.

Labor Eckard Brandes, Inc. v. Department of Labor and Indus. Rel., No. SCWC-190000095, April 20, 2020, (McKenna, J.). The ICA dismissed this appeal on the grounds that appellate jurisdiction was lacking. The ICA ruled that the circuit court abused its discretion in finding the existence of “excusable neglect” under

Hawaii Rules of Appellate Procedure Rule 4(a)(4)(B) (2016) to allow an extension of time to file a notice of appeal. The Hawaii Supreme Court held that the circuit court did not abuse its discretion in determining that “excusable neglect” existed to grant Petitioner Scott Foyt’s (“Foyt”) motion for extension of time to file a notice of appeal, and

therefore vacated the ICA’s May 21, 2019 “Order Dismissing Appellate Court Case Number CAAP-19-0000095 for Lack of Appellate Jurisdiction” and remanded this case to the ICA to address the merits of the appeal. Further, in Enos v. Pac. Transfer & Warehouse, 80 Hawaii 345, 910 P.2d 116 (1996), the Hawaii Supreme Court adopted

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Pacific Guardian Center, Makai Tower 733 Bishop Street, 24th Floor Honolulu, Hawaii 96813-4070 Telephone: (808) 524-8350 Fax: (808) 531-8628 Email: info@opgilaw.com www.opgilaw.com 26 June 2020

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definitions of “good cause” as factors beyond the movant’s control and “excusable neglect” as factors within the movant’s control for purposes of former Haw. R. App. P. Rule 4(a)(5). Former Haw. R. App. P. Rule 4(a)(5), however, allowed for extensions based on either standard, whether filed within the first thirty or next thirty days. The division of Haw. R. App. P. Rule 4(a)(5) into two subsections reflected in the current Haw. R. App. P. Rule 4(a)(4)(A) and (B), which now allow for extensions within the first thirty days only if “good cause” exists or within the next thirty days only if “excusable neglect” exists, has resulted in dismissals of appeals in contravention of “the policy of law . . . favor[ing] dispositions of litigation on the merits.” Shasteen, Inc. v. Hilton Hawaiian Village Joint Venture, 79 Hawai i 103, 107, 899 P.2d 386, 390 (1995). The Hawaii Supreme Court therefore clarified the terms.

Intermediate Court of Appeals Criminal State v. Luke, No. CAAP-15-0000950, April 17, 2020, (Ginoza, C.J.). This appeal arose from a jury trial in which Appellant alleged that Appellee committed the following offenses: Count I, Attempted Burglary in the First Degree (Haw. Rev. Stat. §§ 705-500 and 708810(1)), Count II, Burglary in the First Degree (Haw. Rev. Stat. § 708-810(1)(c)), and Count III, Unauthorized Possession of Confidential Personal Information. The jury trial ultimately concluded with the circuit court declaring a mistrial. Given the mistrial, Appellee filed a motion to dismiss with prejudice. The circuit court granted the motion. On appeal, the State contended that the circuit court erred in dismissing the case with prejudice. The State asserted that in dismissing with prejudice, certain of the circuit court’s findings of fact and conclusions of law were clearly erroneous (Continued on page 30)

NOTICE TO ATTORNEYS AND LAW FIRMS INTERESTED IN PROVIDING LEGAL SERVICES TO THE MAUI COUNTY COUNCIL SOLICITATION NO.: 20-006OCS

Pursuant to Chapter 103D, Hawaii Revised Statutes, the Office of Council Services for the County of Maui invites attorneys and law firms licensed to practice law in the State of Hawaii to submit a letter of interest and statement of qualifications to provide legal services to the Maui County Council. A statement must be submitted pursuant to this Notice even if a similar statement has been submitted to the Corporation Counsel or Office of the County Auditor. Legal services are authorized by resolution and provided pursuant to contracts executed through the fiscal year ending June 30, 2021. The Maui County Council or other legislative agencies and employees of the County anticipates that it may retain attorneys or law firms qualified to practice in the following areas of law through June 30, 2021: Administrative Americans with Disabilities Act Appellate Practice Arbitration and Mediation Civil Rights and Civil Liberties Complex Litigation Conflicts of Interest Constitutional Construction Contract Criminal Defense Election Law Eminent Domain Environmental Federal Court Litigation Forensic Auditing

Free Speech Government Auditing Government Ethics Governmental Immunity Insurance Intra‐ and Inter‐ Governmental Litigation Labor and Employment Land Use Legislative Interpretation & Procedure Lobbying (Federal or State) Municipal Native Hawaiian Rights Open Government (Sunshine Law, Uniform Information Practices Act)

Public Trust Doctrine Public Works Real Property Religion Clauses (Free Exercise, Establishment) Separation of Powers Sexual Harassment Takings Taxation Tort Water Whistleblower Zoning and Planning

Attorneys or law firms interested in being retained to provide legal services in these areas or any other area of practice should submit a letter of interest and a statement of qualifications that include the following information: 1. The name of the attorney or firm, principal place of business and location of all offices, email addresses, and telephone numbers. 2. The areas of practice of the attorney or firm. 3. A summary of the education, experience, and qualifications of any attorney who would be performing substantial legal work or who would be communicating with the client. 4. A summary of the cases or other legal work done relevant to this Notice and the names and contact information of up to five clients who may be contacted, including at least two for whom services were rendered during the preceding year and at least one governmental client. 5. Disclosure if the attorney or firm has legal malpractice insurance coverage, and whether the attorney or firm has ever been denied coverage in the past. 6. An overview of anticipated billing policies. 7. The attorney’s or firm’s website address. A letter of interest and statement of qualifications in response to this Notice should be addressed to Director of Council Services, and mailed to the Office of Council Services, 200 S. High St., #703, Wailuku, HI 96793 or emailed to county.council@mauicounty.us at least ten calendar days before the beginning of a month in order to be eligible for consideration during that month and through June 30, 2021. For mailed responses, include an electronic copy of the submittal in searchable PDF format. For emails, the subject line should read: “In Response to Providing Legal Services to the Maui County Council”; attachments should be in searchable PDF format. Procurement Notice for Solicitation posted on the State of Hawaii HANDS website on 05/14/20.

NOTICE OF DISCIPLINE On April 29, 2020, the Hawaii Supreme Court imposed a 90-day suspension from the practice of law in Hawaii upon Patricia Lynn Cookson finding that her “client violated a valid court order governing visitation rights for his child due to the planning and instruction of [attorney] Cookson and that [attorney] Cookson did not thereafter take remedial action or otherwise recognize that she had no authority to advise her client in a course of action that resulted in her client retaining the child in violation of the court order.”1 The Supreme Court further found that “the role [attorney] Cookson’s misconduct played in knowingly causing her client to violate a valid court order warrants a substantial period of suspension” but given that Cookson has a “clean disciplinary record, did not have a dishonest or selfish motive, displayed a cooperative attitude toward disciplinary authorities, and has a good character and reputation in the community,” [mitigating factors] a shorter 90-day suspension was warranted. Upon entry of the April 29, 2020 suspension order, Cookson was ordered not to accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. However, between April 29, 2020 and May 29, 2020, she was allowed to wind up and complete, on behalf of any client, all matters that were pending on April 29, 2020. During that time, she was required to promptly notify all of her clients and any attorneys for any adverse party in any pending litigation of her suspension and consequent inability to act as an attorney. By May 29, 2020, Cookson was required to surrender to all clients all papers and property to which the clients were entitled and any advance payments of fees that were not earned. Cookson, age 61, was admitted to the Hawaii bar in 2011 and is a 1983 graduate of the College of William and Mary, School of Law in Williamsburg, Virginia.

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Jerry M. Hiatt • Creative and highly focused mediations in all areas through persistent follow up with all parties. Successful in mediations for clients of most of Hawaii’s major law firms. • 41 years of practice in complex civil litigation. Listed in Best Lawyers in 8 areas, including Mediation and Arbitration. Hawaii Lawyer of the Year for Mediation, 2014, Employment Law-Individuals, 2017, and Arbitration, 2018. • Mr. Hiatt has also performed detailed neutral employment investigations and fact finding for some of Hawaii’s largest companies. • Mr. Hiatt has also served as a court appointed Receiver For ADR work, please contact

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1 Case information: Office of Disciplinary Counsel vs. Patricia Lynn Cookson, SCAD-19-0000548.

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CASE NOTES (continued from page 26) and that its evaluation of the factors set forth in State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982) were wrong. The ICA concluded that the circuit court erred in its analysis in precluding surveillance videos taken at the residence Appellee alleged to have burglarized. In turn, because the circuit court relied heavily on the State’s failure to obtain admission of those surveillance videos in ruling under Moriwake to dismiss this case with prejudice, the ICA concluded that the circuit court abused its discretion in dismissing this case with prejudice. State v. Sagapolutele-Silva, No. CAAP19-0000491, April 8, 2020, (Leonard, J.). This case involved the well-established constitutional principle that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from the custodial interrogation of a defendant unless the defendant has first been advised of his or her Miranda rights. This rule applies in all criminal matters, even when the alleged crime is a misdemeanor traffic offense. The defendant was arrested for Excessive Speeding and Operating a Vehicle Under the Influence of an Intoxicant. Under the totality of the circumstances in this case, the ICA held that the defendant was in custody almost immediately after she was stopped by a police officer because the officer had probable cause to arrest her for the criminal defense of Excessive Speeding when he initially stopped her, and she was not free to leave from the time she was stopped. Upon approaching the defendant’s vehicle, after briefly speaking with the defendant, the officer had a reasonable suspicion that she was intoxicated, but not probable cause, so the investigation proceeded to a field sobriety test. The ICA held that the defendant’s physical performance on that test was not testimonial, and the defendant’s response to whether she would participate in the test and whether she understood the instructions were attendant to legitimate police procedures, and should not have been suppressed. The ICA further held that the medical rule-out questions posed by the officer 30 June 2020

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were reasonably likely to elicit an incriminating response, and that the district court did not err in suppressing those statements. Finally, the ICA concluded that a statement made by the defendant in response to being informed of the reason that she was stopped was not the result of custodial interrogation and should not have been suppressed, but that a statement made by the defendant after she was arrested was fruit of the poisonous tree.

Land Makila Land Co. v. Heirs and Assigns of Apaa (k), CAAP-17-0000803, April 6, 2020, (Leonard, J.). This case was on appeal for a second time following the ICA’s opinion in which the court vacated the circuit court’s previous award of summary judgment in favor of Plaintiff. The underlying dispute arose out of Plaintiff ’s 2002 quiet title action with respect to a certain plot of land in the Kauaula Valley to which Kapu asserted a claim to title. After trial, a jury re-

turned a verdict that Plaintiff did not have an interest in the land and that Kapu did. On appeal, Plaintiff sought to overturn the jury verdict in favor of Kapu and a holding as a matter of law, Kapu’s claim to title to the land failed. The ICA affirmed. It was not Kapu’s burden of proof to prove perfect title to defeat Plaintiff ’s motion for summary judgment and that a reasonable jury could have determined that Kapu held an interest in the land and that Plaintiff did not. Moreover, the ICA could not conclude that the jury’s verdict was against the manifest weight of the evidence.

Trusts and Estate In the Matte rof Mitsuo Yoneji Revocable Trust Dated November 27, 1985, No. CAAP-15-0000188, April 16, 2020, (Ginoza, C.J.). This appeal arose from a Petition for Surcharge filed by Appellant as Successor Trustee of the Mitsuo Yoneji Revocable Trust dated November 27, 1985 (“Trust”), against Mary, a beneficiary of the Trust. The Petition alleged

that due to Mary’s refusal to release information about trust properties, her conversion of trust assets, and her refusal to return the assets, the Trust was forced to initiate two prior civil lawsuits against her, incurring significant attorneys’ fees and costs. The Petition also contended that Mary filed a counterclaim in one of those lawsuits and sought to surcharge Mary. On appeal, Appellant asserted two points of error: (1) the circuit court erred in denying the Petition because he was authorized and obligated to recoup the trust losses, Mary was subject to surcharge for her breach of trust as a cobeneficiary, and the surcharge claim was not barred by res judicata or any other form of waiver, laches, or untimeliness; and (2) the circuit court abused its discretion in awarding Mary’s attorneys’ fees and costs because the claims in the Petition were not frivolous. The ICA held that the claims in the Petition were not barred by res judicata or any other form of waiver, laches, or untimeliness. Further, the ICA recognized that pursuant to the Restatement (Third) of Trusts § 104, Appellant had a legal basis to bring the Petition against Mary to the limited extent that he alleged Mary participated in a breach of trust regarding the Trust. ATTORNEY WANTED DEPUTY PROSECUTING ATTORNEY The County of Maui Department of the Prosecuting Attorney, seeks to fill position(s) at the entry to high experience level(s) as a Deputy Prosecuting Attorney. Applicants must have an active Hawaii State Bar license, be in good standing and experience in criminal law. Competitive salary commensurate with years of experience ranging from $66,000 to $130,000. Please send letter of interest, resume, writing sample, and three references to: Don S. Guzman, Prosecuting Attorney, 150 South High Street Wailuku, Maui, Hawaii 96793 E-mail: Prosecuting.Attorney@co.maui.hi.us

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Cancellation of the 2020 Hawaii Access to Justice Conference In light of the public health emergency arising from the COVID19 pandemic, the Hawaii Access to Justice Commission has cancelled the all-day Hawaii Access to Justice Conference originally scheduled for Friday, June 19, 2020.

June 2020

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