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Electronically Filed Supreme Court SCWC-29340 16-MAY-2012 08:02 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I ---o0o--BONNIE MACLEOD KAKINAMI, Respondent/Plaintiff-Appellee, vs. AARON K.H. KAKINAMI, Petitioner/Defendant-Appellant. NO. SCWC-29340 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 29340; FC-D NO. 06-1-0040) MAY 16, 2012 RECKTENWALD, C.J., NAKAYAMA, AND DUFFY, JJ.; WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY, WITH WHOM MCKENNA, J., JOINS OPINION OF THE COURT BY RECKTENWALD, C.J. Aaron Kakinami challenges the Family Court of the Fifth Circuit's Supplemental Divorce Decree, on the ground that the family court erred in not awarding him a share of Bonnie Kakinami's Marital Separate Property.1 Aaron also argues that

the family court improperly modified the Supplemental Divorce Decree after he filed his Notice of Appeal by compelling him to pay Bonnie a net share of her interest in the marital residence

1

The Honorable Calvin K. Murashige presided.

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by a certain date. Briefly stated, Aaron and Bonnie were married in 1980. In 2006 Bonnie filed a complaint for divorce, alleging the marriage was irretrievably broken. The family court subsequently

filed a Decree Granting Absolute Divorce, but reserving property division. A one-day trial was later held on the division of the At trial, Bonnie argued that a gift and

parties' marital estate.

several inheritances that she received during the marriage were Marital Separate Property, and thus, excluded from the marital estate and not subject to division. Aaron argued that the gift

and inheritances were Marital Partnership Property and subject to division. On October 7, 2008, the family court filed a

Supplemental Divorce Decree, in which it classified the gift and inheritances that Bonnie received during the marriage as Marital Separate Property and awarded Bonnie one hundred percent of that property. On October 10, 2008, Aaron filed a notice of appeal, appealing from, inter alia, the family court's October 7, 2008 Supplemental Divorce Decree. While Aaron's appeal was pending,

Bonnie filed a Motion for Order Compelling Aaron to List the Marital Residence for Sale. On February 3, 2009, the family

court filed its order compelling Aaron to pay Bonnie her net share of the marital residence by February 27, 2009. On appeal to the ICA, Aaron argued, inter alia, that the family court erred in awarding Bonnie one hundred percent of -2-

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the gift and inheritances as Marital Separate Property.

Aaron

also argued that the family court's order compelling Aaron to pay Bonnie her share of the marital residence improperly modified the property distribution ordered in the Supplemental Divorce Decree, because Aaron's notice of appeal allegedly divested the family court of jurisdiction. The ICA affirmed. Kakinami v. Kakinami,

No. 29340, 2011 WL 1836718, at *4 (Haw. Ct. App. May 11, 2011) (SDO). With regard to Bonnie's gift and inheritance-funded

accounts, the ICA, citing Schiller v. Schiller, 120 Hawai#i 283, 205 P.3d 548 (App. 2009), noted that the family court has the "authority to award Marital Separate Property to a non-owning spouse[,]" Kakinami, 2011 WL 1836718, at *2, but held that the family court did not abuse its discretion by failing to do so in this case. Id. The ICA further held that the family court had

jurisdiction to enter the order compelling Aaron to pay Bonnie her share of the marital residence because the order enforced, rather than modified, the Supplemental Divorce Decree. *4. In his application, Aaron raises the following questions:
A. Did the [ICA] commit grave error when it affirmed the [family] court's conclusion of law, that no "Marital Separate Property" or appreciation on that property can ever be awarded to a non-owning spouse[?] B. Did the [ICA] commit grave error when it affirmed post-decree orders issued by the family court, without jurisdiction, which modified property division in the absence of a timely motion under [Hawai #i Family Court Rules (HFCR)] Rule 59?

Id. at

-3-

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We hold that the ICA erred in stating that the family court has the "authority to award Marital Separate Property to a non-owning spouse" under Schiller. *2. Kakinami, 2011 WL 1836718, at

As explained further below, we hold that Marital Separate

Property remains non-divisible under the framework first set forth in Hussey v. Hussey, 77 Hawai#i 202, 881 P.2d 1270 (App. 1994), overruled on other grounds by State v. Gonsales, 91 Hawai#i 446, 984 P.2d 1272 (App. 1999). That framework is

consistent with partnership principles adopted by this court, and provides parties a practical means of segregating a specific type of asset acquired during the marriage, while still permitting the family court to divide the parties' estate in a "just and equitable" manner pursuant to Hawai#i Revised Statutes (HRS)

Download Kakinami v. Kakinami.  Concurring and Dissenting Opinion by J. Acoba, with whom

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