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Kuroda v. Kuroda5/19/1998
rriage[,]" there is no evidence of any such taxes or debts.
4.
Alice contends that the family court abused its discretion when it divided the personal injury settlement award sixty percent (60%) to Alice and forty percent (40%) to Yasumasa. Alice challenges FOF No. 31. According to her,
This finding is erroneous because the pain and suffering was personal to and endured by [Alice]. Under the partnership principles which govern divorce property division compensation of that nature is not profits of the marital partnership, and is not divisible as a Category 5 NMV. Gardner v. Gardner, 8 Haw. App. 461, 810 P.2d 239 (1991). Further, a significant portion of the personal injury award was compensation for damages which will be suffered post-divorce and should not have been divided between the parties. Collier v. Collier, 8 Haw. App. 28, 791 P.2d 725 (1990).
We disagree with Alice that a cash award for dental malpractice injuries suffered by Alice during the marriage "is not divisible as a Category 5 NMV" (Footnote added.) The Partnership Model applies to the proceeds received or receivable by a partner from a third-party for tort injuries suffered during the marriage. "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" is a Category 5 NMV. Tougas v. Tougas, 76 Haw. 19, 27, 868 P.2d 437, 445 (1994). "Under the Partnership Model Division, Category 2, 4, and 5 NMVs are divided 50% to the owner and 50% to the nonowner." Jackson v. Jackson, 84 Haw. 319, 332, 933 P.2d 1353, 1366 (App. 1997).
Further, Gardner does not conclude what Alice says it concludes, and Collier v. Collier, 8 Haw. App. 28, 37, 791 P.2d 725, 730 (1990), is authority that the DOCOEPOT NMV directly attributable to the compensation paid or payable for tort damages suffered or predicted to be suffered post-DOCOEPOT is not subject to the family court's jurisdiction in the divorce case unless it is a category 3 or 4 NMV. In this case, however, there is no evidence of what portion of the award, if any, was for post-DOCOEPOT damages. Until such evidence is presented, it must be assumed that the entire award received pre-DOCOEPOT was for pre-DOCOEPOT damages. The party who alleges that an item of property of one or both of the parties is not partnership property has the burden of proof.
We agree with Alice that the fact that she predictably would continue to suffer the consequences of those injuries post-DOCOEPOT is a factor to be considered by the family court when it makes its alimony/spousal support and property division decisions in the divorce case. Under HRS ยง 580-47 (Supp. 1995), when the family court makes its "further orders" in divorce cases, it "shall take into consideration . . . the condition in which each party will be left by the divorce[.]"
5.
Alice challenges FOF No. 30. She cites the evidence that
the parties used approximately $9,000 of the settlement proceeds for their daughter's wedding expenses. In 1990[,] $10,000 in joint marital funds and $26,000 of the settlement proceeds were used to buy three (3) undeveloped lots in Washington State. [Yasumasa] estimates the present value of these lots at $66,000. [Alice] loaned the parties' daughter and son-in-law $108,000 from the settlement proceeds to build a house and in September 1994 she loaned their son $95,000 (interes
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