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NO. 23021

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I TERRI CHIYEMI TERADA, Plaintiff-Appellee, v. EARLE TERADA, Defendant-Appellant APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-D NO. 96-3140) MEMORANDUM OPINION Burns, C.J., Watanabe and Lim, JJ.)

(By:

Defendant-Appellant Earle R. Terada (Earle or Defendant) appeals the family court's1 November 10, 1999 Order for Post Decree Relief. We affirm. BACKGROUND The relevant events occurred in sequence as follows: April 10, 1983 Earle and Plaintiff-Appellee Terri Chiyemi Terada (Terri or Plaintiff) were married. July 24, 1983 September 9, 1996 December 31, 1996 September 28, 1998 Their daughter was born. Terri filed a Complaint for Divorce. Earle ceased living at the marital residence. The court entered Pretrial Order No. 2 stating, in relevant part, that the parties have agreed as follows: "Plaintiff awarded 50% of Defendant's 401(k) as of 12/31/96." "Defendant to pay Plaintiff $12,500.00 from his share of the 401(k) plan or within 60 days following entry of Decree."

1

District Family Court Judge Marilyn Carlsmith presided in this

matter.

November 9, 1998

Paragraph 4K of the Divorce Decree2 states, in relevant part, as follows:

K.

RETIREMENT:

Plaintiff is awarded and assigned fifty percent (50%) of Defendant's interest in the Familian Corporation 401(k) Savings Plan (hereafter "Plan") as of December 31, 1996. Defendant is awarded the remaining fifty percent (50%) of his interest in said 401(k) plan and the Familian Personal Retirement Account. . . . Neither party shall be permitted to encumber the other party's percentage interest and the current encumbrance on the Plan, if any, shall be deemed to be an encumbrance on Defendant's fifty (50%) percent share. Any distributions from the Plan (other than loans) shall be paid to the parties in the aforementioned proportional shares: 50% to Plaintiff and 50% to Defendant. . . . In the event that Defendant elects to pay the equalization payment as provided in paragraph O below, then the percentage shares being divided herein may be recalculated so that Plaintiff's share of Defendant's 401(k) plan will equal 50% of the December 31, 1996 value plus TWELVE THOUSAND FIVE HUNDRED DOLLARS ($12,500.00), which shall be paid net of all taxes to Plaintiff, and Defendant shall be entitled to the balance thereafter remaining. . . . . O. EQUALIZATION PAYMENT :

Defendant shall pay to Plaintiff the sum of TWELVE THOUSAND FIVE HUNDRED DOLLARS ($12,500.00) on account of the division of property and allocation of indebtedness between the parties under the terms of this Agreement. Defendant may satisfy this provision either by paying said amount in full within 60 days of entry of this Divorce Decree or by transferring the sum of TWELVE THOUSAND FIVE HUNDRED DOLLARS ($12,500.00) to Plaintiff from Defendant's 50% share of his 401(k) plan as provided for in paragraph [K] above.

"[A]ll valid and enforceable premarital agreements, marital agreements, and divorce agreements, . . . , must be enforced in divorce proceedings. HRS

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Hawaii Law