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Electronically Filed Supreme Court SCWC-10-0000044 11-MAY-2012 10:21 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I ---o0o--JULIANNE NGUYEN BERRY, Respondent/Plaintiff-Appellee, vs. WAYNE FOSTER BERRY, Petitioner/Defendant-Appellant. NO. SCWC-10-0000044 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. CAAP-10-0000044; FC-D NO. 06-1-0211) May 11, 2012 RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ. OPINION OF THE COURT BY ACOBA, J. We hold that (1) the Family Court of the First Circuit (the court)1 did not abuse its discretion in denying Petitioner's October 9, 2009 Motion to Set Aside Divorce Decree (Motion to Set Aside) seeking to set aside the November 21, 2008 Decree Granting Absolute Divorce and Awarding Child Custody (Divorce Decree) because Petitioner/Defendant-Appellant Wayne Foster Berry

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The Honorable Linda K.C. Luke presided.

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(Petitioner) had notice that his failure to appear at a scheduled settlement conference would result in default, and the court acknowledged that Petitioner's motion was for Hawai#i Family Court Rules (HFCR) Rule 60(b) relief, although Petitioner had failed to cite HFCR Rule 60(b) in support of the motion; (2) whether the Divorce Decree exceeded the relief previously requested by Respondent/Plaintiff-Appellee Julianne Nguyen Berry (Respondent) in her Complaint and Proposed Decree with respect to the award of copyrights held in Petitioner's name (hereinafter, "the copyrights") need not be decided; inasmuch as (3) the court abused its discretion in declining to set aside that part of the Divorce Decree that transferred Petitioner's entire ownership interest in the copyrights to Respondent in violation of federal law. We thus vacate the August 17, 2011 judgment of the ICA

filed pursuant to its July 28, 2011 Summary Disposition Order (SDO),2 affirming the September 22, 2010 Order Denying Motion to Set Aside and the Findings of Fact and Conclusions of Law filed by the court, in part, insofar as it held the court properly awarded Respondent the copyrights. We vacate that portion of the

Divorce Decree that awarded Respondent all ownership interest in the copyrights, and remand to the court for a determination of the economic interest in the copyrights to which Respondent is entitled. We affirm the Divorce Decree in all other respects.

2 The SDO was filed by Presiding Judge Daniel R. Foley and Associate Judges Alexa D.M. Fujise and Lisa M. Ginoza.

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I. The following essential matters, some verbatim, are from the record and the submissions of the parties. A. Petitioner and Respondent were married on December 24, 1992. On January 20, 2006, Respondent filed a complaint for On September 25, 2006, the court filed an

divorce (Complaint).

Order of Dismissal pursuant to HFCR Rule 41(e)(1) for want of service.3 On October 5, 2006, Respondent filed an Ex Parte Motion to Reinstate for Good Cause Complaint for Divorce and Summons Filed on 1/20/2006 and to Extend Time to Serve Complaint for Divorce and Summons Filed on 1/20/2006 (Motion to Reinstate Complaint and Extend Time to Serve). Attached was the affidavit

of Respondent's counsel, Cheryl Brawley (Brawley),4 in which she declared (1) that the last known address of Petitioner was an address on Muolea Place in Honolulu, Hawai#i (Muolea address),

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HFCR Rule 41(e)(1) (2006) provides as follows: A diligent effort to effect service shall be made in all actions, and if no service be made within 6 months after an action or post-decree motion has been filed then after notice of not less than 10 days to the filing party at the last known address, the same may be dismissed. Such a dismissal may be set aside and the action reinstated by order of court for good cause shown on motion duly filed in said action within 30 days after mailing of the order of dismissal and notice to the last known address of the parties or parties' counsel.

(Emphasis added.)
4 Respondent's appellate counsel, who also argued on Respondent's behalf at oral argument in this case, is Carl H. Osaki.

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(2) a certified copy of the Complaint was sent to Process Service Exclusive, LLC (PSE) to be personally served on Petitioner at that address, (3) on April 7, 2006, PSE notified Brawley it had been unable to serve Petitioner, it made nine attempts to serve Petitioner at the Muolea address, Petitioner no longer lived at that address, and it attempted to serve Petitioner at the United States District Court, District of Hawai#i on May 5, 2006, but was unable to do so, and (4) although PSE was told that Petitioner no longer resided at the Muolea address, Respondent reasonably believed that Petitioner continued to reside there. Respondent sought reinstatement of her Complaint and additional time to serve Petitioner. The court granted Respondent's motion

in an order filed on October 5, 2006, which reinstated Respondent's Complaint and provided Respondent until January 20, 20075 to serve Petitioner with the Complaint. On March 6, 2007, Respondent filed a Motion for Personal Service Without the State and Affidavit (Motion for Personal Service), seeking an order pursuant to HRS

Download Berry v. Berry.  ICA s.d.o., filed 07/28/2011.pdf

Hawaii Law