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Minakami v. Ninakami2/7/2003
ive benefits." Melvin argues that
he trial court should have divided the Social Security benefits as a marital asset on a lump-sum basis given that the trial court allowed [Melvin] to testify that the value of [Marjorie's] Social Security benefits accrued during the time of marriage was $70,151.05. In the alternative, the trial court should have awarded each party a Linson formula share in the other party's Social Security benefits. (Record citation omitted.)
Upon a review of the record, we conclude that Melvin failed to factually establish that conclusion of law no. 4 was an abuse of the family court's discretion. There is no evidence or offer of proof that conclusion of law no. 4 is advantageous to Marjorie and/or detrimental to Melvin.
MARJORIE'S CROSS-APPEAL
1. and 2.
In conclusion of law no. 16, the court awarded the Polaris accounts to Marjorie as follows: $10,000 Category 3, and $13,500 Category 5. Marjorie contends that "the trial court incorrectly ruled that [Marjorie] should receive 'Category 3' credit only for this [$10,000] amount and that the increase in value in the Polaris accounts during the marriage should be divided 50/50 between the parties (as a Category 4 asset)."
In conclusion of law no. 16, the court awarded (a) the $8,000 Oppenheimer account all to Marjorie and (b) the $7,500 Oppenheimer account, $2,200 to Marjorie and $5,300 to Melvin. "[Marjorie] had argued that the entire value of the Oppenheimer 116 account should have been awarded 100% to her as marital separate property."
Marjorie contends that both the Polaris accounts and the Oppenheimer accounts were her Marital Separate Property. We disagree. The relevant facts do not satisfy any of the three definitions of Marital Separate Property stated in Hussey, 77 Hawaii at 206-07, 881 P.2d at 1274-75.
3.
Marjorie challenges conclusion of law no. 6. As noted above, we agree with her challenge.
4.
In conclusion of law no. 16, the court awarded the $17,600 PHNSY TSP account $13,100 to Melvin as his Category 1 value and $4,500 as a Category 5 value. Marjorie contends that "the Pearl Harbor TSP . . . was totally created and funded during the marriage[.]" In other words, she contends that there was no Category 1 value involved. Upon a review of the record, we decide that finding of fact no. 15 is not clearly erroneous.
5.
Marjorie states that " f this appeal results in a equalization payment to [Marjorie] which is still in excess of $75,000, [Marjorie] should be awarded her costs and attorney's fees for perfecting this appeal." This is not an issue because this appeal results in an equalization payment of $73,250.
CONCLUSION
Accordingly, regarding the family court's February 20, 2001 "Findings of Fact, Conclusions of Law, and Order Re: Divorce Trial," we vacate: (a) conclusion of law no. 6, (b) the first and the last sentences of conclusion of law no. 7, and (c) the second and the last sentences of conclusion of law no. 17.
Regarding the family court's Divorce Decree, in paragraph 9, we vacate that part of the decree that awards the amount "$102,525" and remand to the family court to enter an amended decree wherein that amount in paragraph 9 is replaced with the amount "$73,250."
We affirm the family court's February 20, 2001 "Findings of Fact, Conclusions of Law, and Order Granting Plaintiff's Motion for Award of Costs and Attorneys' Fees Pursuant to Rule 68, Hawaii Family Court Rules and Judgment."
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