Jan Michael WEINBERG, Plaintiff-Appellee, v. Brenda Irene DICKSON-WEINBERG, Defendant-Appellant, 121 Haw. 401

Opinion of the Court by WATANABE, J. In this appeal, Defendant-Appellant Brenda Irene Dickson-Weinberg (Wife or Defendant) challenges (1) the divorce decree entered by the Family Court of the First Circuit (family court) on May 18, 2006 (Divorce Decree), which ended her marriage to Plaintiff-Appellee Jan Michael Weinberg (Husband or Plaintiff) and divided their marital estate; and (2) various orders of the family court that led up to or followed the entry of the Divorce Decree. Wife raises the following points on appeal:

(1) The family court’s 86-page “omnibus” findings of fact (FsOF) and conclusions of law (CsOL), which was signed by three judges without any indication of which judge adopted which finding or conclusion, did not comply with Hawai'i Family Court Rules (HFCR) Rule 52 (2000);

(2) The family court erred when it refused to enforce (

a) an agreement incident to divorce (AITD) entered into between Husband and Wife (collectively, the parties or the couple) in a prior divorce action that was dismissed, (

b) an agreement to designate Wife as a beneficiary of Husband’s individual retirement accounts (IRAs) (IRA Agreement), and (

c) a quitclaim deed conveying the parties’ home in Nu'uanu, Hawai'i (Nu'uanu property) to Wife;

(3) The family court denied Wife her due-process rights when it refused to relax pretrial deadlines, denied her requests for a trial continuance, and barred her from introducing experts, exhibits, and documentary evidence because she missed discovery and other deadlines imposed by the family court after her second counsel withdrew from representing her;

(4) The family court did not comply with Hawaii Revised Statutes (HRS) § 580-47 (2006) or partnership principles when it denied Wife credit for Category 1 assets and valued Husband’s law practice -without considering Husband’s earnings or the unliqui-dated contingency-fee eases pending at the date of the completion of the evidentiary part of trial (DOCOEPOT); and

(5) The family court failed to consider all the factors enumerated in HRS § 580-47(

a) and abused its discretion when it denied Wife, who was unemployed throughout the marriage, any alimony. We conclude that

(1) Wife’s first point on appeal is without merit; (2) the family court did not err in refusing to enforce the AITD and the quitclaim deed for the Nu'uanu property, but did err in disregarding the IRA Agreement in dividing the property of the parties; (3) the family court abused its discretion when it refused to extend pretrial deadlines and thereafter sanctioned Wife for missing pretrial deadlines by precluding her from introducing evidence that she did not produce by pretrial deadlines; and (4) the family court incorrectly valued Husband’s law practice.

Our disposition of this appeal renders it unnecessary to address Wife’s remaining points on appeal. BACKGROUND Husband and Wife were married on December 25, 1997 in Beverly Hills, California. It was the second marriage for both, and the marriage produced no children. Husband is a personal-injury attorney with a solo practice in Honolulu, Hawai'i. Wife is a former actress whose last job on a soap-opera series ended in 1987. A. The First Divorce Case On March 2, 2004, after six years of marriage, Husband filed his first complaint for divorce from Wife in FC-D No. 04-1-0658 (first divorce case).

Although Wife filed an Income and Expense Statement and an Asset and Debt Statement in the first divorce case, she did not file an answer, apparently because the parties reconciled. On October 27, 2004, the family coui’t dismissed the first divorce case for lack of prosecution. Before the first divorce case was dismissed, however, the parties negotiated a comprehensive AITD.

The AITD provided that Wife would receive (1) $14,000.00 in temporary alimony for forty-eight consecutive months; (2) health insurance coverage for forty-eight months; (3) an equalization payment of $100,000.00; (4) the parties’ Le Parc condominium unit in Los Angeles, California (Los Angeles property), free and clear of all liens; and

(5) Husband’s 401(

k) plan of approximately $130,000.00 as Wife’s sole and separate property. The AITD also required Husband to maintain an insurance policy on his life that named Wife as the exclusive primary beneficiary of an unencumbered death benefit of not less than $500,000.00. Additionally, the AITD provided that Husband would receive (1) the Nu'uanu property, subject to existing debts; (2) all of his other retirement plans; and (3) his law practice. B.

The Second Divorce Case On December 22, 2004, eight weeks after the first divorce case was dismissed, Husband, rather than reinstituting the first divorce ease and now represented by a different lawyer, filed a complaint for divorce in FC-D No. 04-1-3936 (second complaint), the case underlying this appeal (second divorce case).

Husband’s second complaint alleged that the assets and debts of the parties “should be divided in a just and equitable way” and that Wife was “not entitled to an order that [Husband] pay spousal support (alimony) to [her].” In her January 13, 2005 answer to the second complaint, Wife averred that she was entitled to spousal support from Husband and that any allegations by Husband “which are based upon a denial of spousal support are barred pursuant to [HRS] § 580-47(a).” Wife also “reserve[d] her right to assert additional affirmative defenses in the event discovery indicate[d] that additional affirmative defenses would be appropriate.” Wife’s answer, which was signed by the attorney who represented her in the first divorce ease (Wife’s first counsel), did not allege that the division of the parties’ marital estate should be governed by the AITD negotiated during the first divorce case.

PRETRIAL PROCEEDINGS A. Pretrial Events from March to August 2005 From March 16 to August 10, 2005, Wife embarked on extensive discovery for information regarding Husband’s assets. There is no indication in the record on appeal that Husband engaged in similar discovery of Wife’s assets during the same period. Meanwhile, Husband and Wife commenced mediation on March 30, 2005. The mediation was unsuccessful and concluded sometime in July 2005. On August 2, 2005, Wife’s first counsel withdrew and another attorney (second counsel) was substituted as Wife’s counsel.

On August 4, 2005, Husband filed a form motion to set the second divorce case for trial (motion to set), pursuant to HFCR Rule 94(a) (2000), which requires such a motion to be filed no later than nine months from the filing of the complaint. The motion was scheduled for a hearing on October 13, 2005, at 9 a.m. B. Husband’s Pre-Divorce-Decree Motion for Immediate Sale of Properties On August 8, 2005, Husband filed a pre-divorce-deeree motion for immediate sale of the Nu'uanu and Los Angeles properties.

Husband, among other things, alleged that (1) he could no longer afford to pay the $12,313.89 in monthly carrying costs for the two properties; (2) “it is very likely that both real properties will be sold at the end of the case anyway” since Wife does not have the ability to buy out his interest in either property and he was not interested in buying out her interest in either property; and (3) it was a good time to sell these properties because the Honolulu and Los Angeles real estate markets were “hot.” Husband also requested that the family court give him sole authority to sell both properties and that he be granted exclusive use and occupancy of the Nu'uanu property and Wife be granted exclusive use and occupancy of the Los An-geles property pending the sales.

On August 26, 2005, Wife filed an affidavit in response to Husband’s motion for immediate sale and stated that she intended to enforce the AITD. Attached to the affidavit was a copy of the AITD, which was signed by Wife before a notary public on April 19, 2004 and included what purports to be Husband’s signature. Wife urged the court not to order the sale of the two properties until the AITD’s enforceability was determined. Husband’s motion for immediate sale was heard by the family court on August 31, 2005, at 1:30 p.m.

At 11:05 a.m. that same day, Husband filed a memorandum in response to Wife’s August 26, 2005 affidavit, arguing that the AITD was not valid and enforceable and claiming that he had “no recollection of ever signing and returning [the AITD] to [Wife’s] attorney.” Husband further stated that even if he did sign the AITD, this should not prohibit the sale of the Nu'uanu property, which, under the AITD, was to be awarded to him. At the August 31, 2005 hearing, Husband agreed that the Los Angeles property should not be sold until the validity and enforceability of the AITD was determined.

However, Husband urged the family court to grant his request to sell the Nu'uanu property. Husband maintained that since the AITD awarded him that property, the validity and enforceability of the AITD was irrelevant to his request. At the close of the hearing, the family court orally ordered the Nu'uanu property to be listed for sale. The family court allowed Wife to continue to live at the Nu'uanu property “until October 1st” and allowed Husband to have exclusive use and occupancy of the property thereafter until it was sold.

The family court’s oral order was ultimately memorialized in a written order filed on November 4,2005. On September 12, 2005, Wife filed a motion for reconsideration of the family court’s August 31, 2005 oral decision. In the alternative, Wife requested that the decision requiring her to vacate the Nu'uanu property be suspended, pending a hearing on the enforceability of the AITD. This motion was denied by the family court without a hearing, pursuant to an order filed on October 7, 2005. C.

Wife’s Motion to Enforce the AITD On September 19,2005, Wife filed a motion to enforce the AITD and require Husband to pay the attorney’s fees and costs incurred by Wife to bring the motion. Attached to Wife’s affidavit was a letter from Husband to Wife dated March 17, 2004, which stated, in relevant part: Thank you for signing the enclosed Quitclaim Deed [for the Nu'uanu property].

The Quitclaim Deed is conditioned upon my agreement to similarly quitclaim the [Los Angeles] property to you at the end of the month when the mortgage with Washington Mutual of $495,238.89, as shown in the attached statement, is paid in full. Based on our discussions, we should also have completed an [AITD] by the end of the month.

If not, both properties will remain owned as tenants by the entirety and each party will do what is necessary to effectuate that. (Footnote added.) In an October 18, 2005 memorandum opposing Wife’s motion, Husband vehemently denied signing the “proposed AITD” but also argued that if the “proposed AITD” were signed by both parties, it was either abandoned or unconscionable and, therefore, unenforceable. Attached to Husband’s memorandum was a report by Reed Hayes (Hayes), a handwriting-and-document examiner, in which Hayes opined that the AITD was not signed by Husband.

Hayes also reported that he was unable to conclusively identify or eliminate Wife as the author of Husband’s signature on the AITD. On October 24 and 28, 2005, the parties litigated the issues surrounding the AITD. Husband and Wife, as well as one handwriting expert for each, testified. At a November 2, 2005 hearing, the family court orally denied Wife’s motion to enforce the AITD. On November 28, 2005, the family court entered a written order memorializing its oral decision.

The family court determined that the parties had entered into an AITD in the first divorce case but had, by their actions and non-actions, abandoned the AITD. Husband has not appealed the family court’s finding that he and Wife entered into an AITD in the first divorce case. D. Wife’s Motions for Pre-Decree Relief 1.

On September 29, 2005, Wife filed a motion and affidavit for pre-decree relief (first motion for pre-decree relief), requesting, among other things, that Husband (1) be restrained from wasting, transferring, or otherwise disposing of any real or personal property, except as reasonable and necessary for expenses incurred during the ordinary course of business and for his usual living expenses; (2) continue to pay the mortgages, taxes, insurance, utilities and other expenses related to the Nu'uanu and Los Angeles properties; (3) continue to pay insurance and various living and other expenses for Wife; (4) pay Wife $15,000.00 in monthly temporary alimony; (5) pay off Wife’s credit-card debts; and (6) advance Wife $60,000.00 for attorney’s fees and costs.

Wife also requested that she have exclusive occupancy of the Nu‘uanu property pending its eventual sale. Husband filed a memorandum in opposition to Wife’s first motion for pre-decree relief on October 20, 2005. Husband argued that (1) he should not have to pay temporary alimony to support Wife’s excessive spending; (2) he was already paying for Wife’s housing, transportation, insurance premiums, cell-phone bills, and other costs;

(3) Wife had not demonstrated a need for him to advance $60,000.00 for her attorney’s fees and costs; and

(4) Wife did not need to spend $10,000.00 to retain an expert to value his law practice and for real-estate appraisers because “Anto-lik v. Harvey controls here and the only value to Husband’s practice will be its ‘hard assets’.” At a November 4, 2005 hearing, the parties testified extensively about their financial status and submitted numerous exhibits into evidence. At the end of the hearing, the family court announced its oral ruling, which was memorialized in a written order filed on December 12, 2005 that stated, in relevant part, as follows: IT IS HEREBY ORDERED as follows: 1. Temporary Spousal Support.

Plaintiff shall pay Defendant the sum of $6,000.00 a month as and for temporary spousal support, commencing the month of November, 2005 and continuing until further order of the Court. The first payment shall be made immediately and payments thereafter shall be payable on the fourth (4th) day of each month. 2. Advance for Attorney’s Fees. Plaintiff shall advance the sum of $40,000.00 to Defendant’s [second counsel] by December 4, 2005. 3. Payment of Property-Related Expenses. Plaintiff shall timely pay the monthly mortgage payments and utility expenses for the [Nu'uanu property] and the [Los Angeles property].

Plaintiff shall also timely pay the real property insurance premiums and real property tax payments for these properties. Plaintiff shall also timely pay any maintenance fees and assessments (special or otherwise) for these properties. 4. Payment of Defendant’s Health Insurance and Car Insurance Premiums. Plaintiff shall continue to pay the premiums associated with Defendant’s health insurance coverage and car insurance coverage. 5. Defendant’s Remaining Requests. All of Defendant’s other requests in her [first motion for pre-decree relief] are hereby denied. 2.

On November 15, 2005, Wife filed a motion for reconsideration of the family court’s November 4, 2005 oral ruling. Wife asked the family court to grant her request for moving costs of $15,000.00 or suspend its decision that Wife vacate the Nu'uanu property until the family court rendered a decision as to payment of the moving costs.

Wife also asked the family court to (1) reconsider its award to her of $40,000.00 in attorney’s fees and costs; (2) increase the amount of the award to what she had requested ($60,-000.00); and (3) advance the time period within which Husband was ordered to pay the funds to counsel from thirty days to ten days. Finally, Wife asked that the family court reconsider the amount awarded for temporary alimony and increase it to the amount prayed for in her moving papers.

Wife noted in an accompanying affidavit that her current legal expenses and costs are such that the $40,000.00 in attorney’s fees and costs awarded will be spoken for “due to the unanticipated and extraordinary fees and costs incurred in the hearings to enforce the [AITD] and for temporary support for [Wife].” Wife pointed out that Husband had sufficient stock accounts to provide an advance of $60,000.00 to Wife for her attorney’s fees and costs. The family court denied Wife’s motion without a hearing pursuant to an order filed on November 25, 2005. 3.

On November 17, 2005, Wife filed a second motion and affidavit for pre-decree relief (second motion for pre-decree relief) in which she requested an order requiring Husband, among other obligations, to (1) pay an additional $40,000.00 toward her legal expenses; (2) assist Wife in vacating the Nu'uanu property by advancing approximately $15,000.00 for her moving expenses; and (3) allow Wife to remain on the Nu'uanu property until the end of November 2005 so that Wife could

schedule the movers.

Pursuant to an order filed the same day, the family court entered an Order for Pre-Decree Relief which, among other things, scheduled a hearing on the second motion for pre-decree relief on November 23, 2005 and prohibited Husband from “transferring, encumbering, wasting, or otherwise disposing of any of his or her real or personal property, except as necessary, over and above current income, for the ordinary course of business or for usual current living expenses.” On November 21, 2005, the family court received an ex parte motion from Husband, seeking a writ of assistance to remove Wife from the Nu'uanu property.

At the November 23, 2005 hearing on Wife’s second motion for pre-decree relief, Wife asked the family court to allow her to remain on the Nu'uanu property because the AITD had been ruled unenforceable and, thus, the Nu'uanu property was subject to division. Wife mentioned that she had “been charged [$] 120,000 in fees[,]” had no personal resources to pay the fees, and had been living off her mother.

She estimated that it would cost her $15,000.00 to move back to Los Angeles and expressed concern about moving all her belongings “across the sea” before the divorce was finalized and she knew where she was going to live. She also mentioned that she needed to examine Husband’s books and records in order to prepare for trial. Wife further explained that she was under the care of two doctors, had suffered “a breakdown[,]” and was “too sick to move right now.” At the end of the hearing, the family court orally ruled, in part, that

(1) Wife was required to vacate the Nu'uanu property by November 30, 2005;

(2) Wife could leave her clothes and personal items at the Nu'uanu property or she could take them with her; (3) if Wife chose to take items with her, Husband shall pay $1,000.00 in moving expenses; and (4) paralegals from the law firms representing Husband and Wife should account for all items that Wife left at the Nu'uanu property. On December 5, 2005, the family court entered an order granting Husband’s ex parte motion and issued a writ of assistance, authorizing removal of Wife and “all other persons with her” from the Nu'uanu property. E.

Pretrial Order No. 1 On November 28, 2005, following an October 13, 2005 hearing on Husband’s motion to set, the family court entered Pretrial Order No. 1, which set trial of the second divorce case for March 13 and 14, 2006, scheduled a settlement conference for February 23, 2006, and imposed the following pretrial deadlines: Deadline Event November 30, 2005 Wife to name her expert witnesses. December 31, 2005 Husband to name his expert witnesses. 45 days prior to Settlement Conference (Januarv 9, 2006) Both parties to identify all their witnesses.

January 20, 2006 Both parties to provide their expert reports to opposing party. 21 days prior to Settlement Conference (February 2, 2006) Both parties to exchange trial exhibits. 14 days prior to Settlement Conference (February 9, 2006) Husband to file a completed settlement-conference statement and property-division chart. February 15, 2006 Rebuttal expert reports from both parties to be provided to opposing counsel. 7 days prior to Settlement Conference (February 16, 2006) Wife to file a completed settlement-conference statement and property-division chart.

The family court further ordered that “[a]ny agreements to modify deadlines for discovery shall be reduced to writing and submitted to the Court for approval.” F.

Second Counsel’s Motion to Withdraw and for Fees On December 8, 2005, second counsel filed a “Motion to Withdraw as Counsel [for Wife] and Request for Attorney’s Fees and Costs and Entry of an Attorney’s Lien[.]” The motion requested that the family court (1) determine that Wife was indebted to second counsel for attorney’s fees and costs totaling $56,334.72; (2) enter judgment against Wife for that amount; (3) direct that the $40,000.00 the family court had ordered Husband to pay as an advance for Wife’s attorney’s fees and costs be deposited and paid towards second counsel’s fees; and (4) enter a lien against Wife’s share and interest in the proceeds from the sale of the Nu'uanu property for the remaining outstanding balance of second counsel’s fees and costs.

On December 13, 2005, second counsel filed a motion to enforce the family court’s November 4, 2005 oral ruling that Husband advance $40,000.00 in attorney’s fees within thirty days of the hearing (i.e., by December 5, 2005) and order Husband to pay the attorney’s fees and costs incurred by second counsel in preparing, filing, and presenting his motion. On December 14, 2005, the family court held a hearing on (1) the issues raised by Wife in her second motion for pre-decree relief that had not previously been decided; (2) second counsel’s motion to withdraw; and

(3) Wife’s motion to enforce the family court’s prior order that Husband advance Wife $40,000.00 for her attorney’s fees. Husband admitted at the hearing that he had not paid the $40,000.00 for Wife’s attorney’s fees and costs, as previously ordered by the family court, but averred that he would be able to pay the amount “certainly no later than the end of January.” Husband expressed concern, however, about paying the $40,000.00 before the fee dispute between Wife and second counsel was resolved.

Wife claimed that the amount of second counsel’s fees far exceeded what she had agreed to pay and attributed the high amount to the “eight-hour” trial regarding Husband’s claim that his signature on the AITD was “forged.” Wife also stated that she was extremely upset that despite the family court’s prior order, Husband had removed all her clothes from the Nu'uanu property and placed them in storage. Wife claimed that she had difficulty gaining access to her clothes in storage because they were in boxes that had not been inventoried and labeled. As a result, she was forced to buy clothes to appear in court.

On December 20, 2005, the family court entered three orders that stemmed from the December 14, 2005 hearing. The first order required Husband “to deposit the sum of $40,000 with the clerk of the [family] court no later [than] close of business, Wednesday, December 21, 2005,” but provided that “distribution of the $40,000 is subject to further order of the court, a hearing on which is presently set for either Jan[uary] 9 or 10, 2006.” Husband paid the deposit into court, as ordered.

The second order permitted second counsel and his law firm to withdraw as counsel for Wife but scheduled a hearing for January 9 or 10, 2006 to determine what fees Wife owed second counsel. The third order granted that part of Wife’s second motion for pre-decree relief that related to Husband’s life-insurance policy and denied all other unresolved issues. On January 10,2006, Wife appeared pro se at a scheduled hearing to resolve the fee dispute between her and second counsel.

The transcripts of the hearing are not contained in the record on appeal, but it appears that the family court took the matter under advisement. On January 10 and 11, 2006, Wife filed various documents, pro se, in which she objected to second counsel’s fees as excessive. Wife stated that the $40,000 being held by the Court is needed for the upcoming trial. For the record, as I’ve previously stated, nothing has been done yet to prepare for trial; no subpoenas of books or records, no depositions, no complete assessment of [Husband’s] business or the assets in question, etc.

For this reason, I’m going to need every bit of the $40,000 in contention while I work to secure the remaining amount from my husband to cover the full estimated cost of a trial.

On April 25, 2006, the family court entered a written order that (1) reduced second counsel’s requested fees by $2,431.00, plus 4.16 percent excise taxes; (2) ordered Wife to pay second counsel $44,803.52 in attorney’s fees, which the family court “entered as a charging lien”; (3) released “$10,000.00 held in this ease to [second counsel]”; and (4) directed that the remaining $34,803.52 owed to second counsel “shall be a charging lien.” G. Naming of Witnesses and Submission of Pretrial Statements On November 30, 2005, Wife filed a list of prospective witnesses whom she intended to call to testify at trial.

Among the witnesses listed were (1) “Gary Kuba, CPA”;

(2) Norma Paet, RN, MS; (3) the attorneys who had represented Wife in the first divorce case; (4)various Honolulu attorneys who apparently had referred personal-injury cases to Husband and shared in the recovery of fees earned by Husband for those cases; (5) two entertainers; (6) all witnesses listed by Husband; and (7) rebuttal witnesses, as necessary. On December 30, 2005, Husband filed a list with the family court, naming three expert witnesses whom he intended to call at trial:

(1) John Candon, CPA, ASA, CBA, CPE (Candon);

(2) Patricia Case, Esquire; and

(3) Ira Zunin, M.D. (Dr. Zunin). On January 9, 2006, Husband filed with the family court the list of lay witnesses he intended to call at trial. On February 9, 2006, Husband filed his settlement-conference statement.

On February 17, 2006, Wife, filed her settlement-conference statement, which was prepared by Madalyn Purcell, Esquire (Purcell or third counsel), who made a special appearance in the case, Purcell noted at the outset of the settlement-conference statement that she “has a major scheduling conflict that prevents her from serving as [Wife’s] trial counsel and meeting [Wife’s] pre-trial deadlines.” Wife’s settlement-conference statement explained that [Wife] believes that the court has already given her a continuance of trial dates and pre-trial deadlines due to the fact that her previous attorney, [second counsel], is no longer her attorney.

However, court records and opposing counsel indicate that the present trial date has not been changed. On behalf of [Wife], [Purcell] has requested a Status Conference with [Judge Radius] to discuss [Wife’s] situation and the trial dates. We are currently waiting for a response from the court regarding our request for a Status Conference.

If the trial and pre-trial dates cannot be rescheduled, then [Purcell] will have to immediately withdraw from further representation of [Wife], Additionally, [Wife] is waiting to see whether the court will release to her all or part of the $40,000 of attorneys’ fees advanced by [Husband] and presently claimed by [second counsel]. [Wife] will need these funds to pay her current or future counsel for trial preparation. [Wife’s] current counsel has not had the opportunity to review all of the voluminous discovery files, and therefore has not had sufficient time to prepare [Wife’s] Property Division Chart.

However, [Wife] believes that [Husband] has significantly undervalued the net worth of the marital estate by failing to include the value of the improper transfers of marital money made to his friends, and by significantly under valuing the [Nu'uanu property]. Wife’s settlement-conference statement further stated: Curiously, [Husband] made substantial transfers of marital funds just prior to filing this second divorce action and during the current divorce proceeding. He transferred $84,374.46 on December 20, 2004, and $203,123.70 on March 5, 2004 to John R.

Dwyer, Jr. [ (Dwyer).] In response to subpoena, [Dwyer] has not produced any work files to show what his law firm did to earn these fees. [Husband] transferred $664,453.30 to Roeca Louie and Hiraoka on January 25, 2005. In response to subpoena, the Roeca law firm [ (Roeca) ] has not produced any work files to show what work they performed to earn these fees. [Husband] also paid his former employee Mark Haugen [ (Haugen) ] a check for $200,000 during the pertinent period. In response to subpoena, [Haugen] has not produced any work files to show what he did to earn this money.

At best, these are improper transfers in clear violation of the Code of Professional Responsibility, and, at worst, they are fraudulent transfers made to deplete the marital estate. If the case cannot be expeditiously settled, then [Wife] will need an advance of funds to pay her attorneys’ fees and costs. In addition, [Wife] will need further and immediate pre-decree relief. [Husband] has changed the beneficiary on his annuities, 401Ks, IRAs, and insurance policies, so that [Wife] is no longer the beneficiary.

These assets are part of the marital estate. [Husband] made an improper transfer of marital property rights when he made beneficiary changes. If [Husband] should die before the divorce is complete, there would be a protracted and expensive legal battle. [Wife] would bear the burdens and problems with no cash flow. [Husband] created this problem and he should be made to pay for correcting it. Unless this ease can be settled immediately, [Husband] must change the beneficiary designations on all of these marital assets back to [Wife] until the completion of the divorce.

As to expert witnesses, Wife’s settlement-conference statement stated that it appears that [Wife’s] former counsel concentrated on the action to enforce the prior [AITD] and did not retain expert witnesses for trial. To be appropriately-prepared for trial, [Wife] needs to retain: a business evaluator; a vocational specialist; and a psychologist. She does not have presently have [sic] funds to retain these experts. Additionally, Wife’s settlement-conference statement mentioned that

(1) Wife’s present counsel needed to review Wife’s witness list to determine its accuracy;

(2) Wife needed to obtain Husband’s 1099s and income tax returns for 2005, as well as updated financial information about Husband’s current cases; and

(3) Wife needed to depose Dwyer, Roeea, Haugen, and Husband’s business evaluator. Attached to Wife’s settlement-conference statement was an offer of judgment made to Husband pursuant to HFCR Rule 68 (2000), which was to expire, if not accepted, within ten days. H. Wife’s Motions to Cancel Trial and Continue Pretrial Deadlines and Trial; Wife’s Efforts to Obtain Counsel; and Wife’s Motion to Recuse a Judge 1.

On January 11, 2006, Wife, pro se, filed a request to cancel trial in which she stated: For the second time in this matter with [Husband], I am without the necessary funds or preparation to adequately proceed with the trial at this time. The $40,000 being held by the Court, which I am presently unable to make use of, is a necessary component for the financing of my ease.

In addition to having my belongings locked away in storage by [Husband] and his attorney, and having been deprived of my home and office, and having been placed in a position where I barely have the resources (financial and otherwise) to get through each day, there is simply no way that a trial on this matter can reasonable [sic] proceed any time soon. [Husband] and his attorney are knowingly undermining my access to necessary resources, while trying to speed up the trial at a time when they are fully aware that I am without representation.

It’s been estimated that my new attorney’s services for such a trial, once that attorney has been retained, will cost $75,000. To this end, I’m going to need every bit of the $40K while I work to secure the remaining amount from [Husband] to cover the total estimated cost. To date, as the Court is aware, there has been no substitution of attorneys—so I would like all subpoenas and pre-trial activity stopped until a new trial can be scheduled, preferably in California. No hearing was ever scheduled or held on this motion. 2.

On February 24, 2006, Wife, through Purcell, filed a motion captioned “Motion to Continue Trial” that sought (1) “[a] continuance of trial, which is presently scheduled for March 13, 2006, for at least five months to allow her to complete discovery, retain experts and prepare for trial”; and (2) “[a] continuance of all pre-trial deadlines, including Calendar call which is presently scheduled for March 2, 2006.” A hearing on the motion was scheduled for March 8, 2006 before Judge Radius.

In a declaration attached to the motion, Purcell stated that (1) she was retained by Wife to assist Wife in obtaining a continuance of this action;

(2) Wife and second counsel dissolved their relationship in December 2005, but, due to the holidays and other considerations, Wife had some difficulty immediately locating new counsel to represent her;

(3) Purcell would be happy to represent Wife at trial but, due to Purcell’s schedule, could not represent Wife unless the current trial dates and pretrial dates were continued;

(4) Purcell is in possession of Wife’s voluminous files for this case, is in the process of reviewing them, and has ascertained from her preliminary review of the files that Wife is not prepared to go to trial in March 2006;

(5) Wife needs to complete discovery of Husband’s business and personal finances, bring further pretrial motions to request an additional advance for attorney’s fees and living expenses, retain expert witnesses to present her case at trial, and take Husband’s deposition;

(6) Purcell needs time to review the voluminous discovery files to prepare for Husband’s deposition; (7) it will take two to three weeks after Husband’s deposition for transcripts to be completed;

(8) Wife’s business evaluator cannot begin work until the depositions are completed and Wife obtains funds to retain a business evaluator; and

(9) Wife will need at least five additional months to complete discovery and prepare for trial. It appears from the record that at the calendar call held on March 2, 2006, the family court announced that Judge Choy would be the assigned trial judge for this case, but, due to Judge Choy’s schedule, the trial was being moved to April 10 and 11, 2006.

On March 6, 2006, the family court issued an order requiring second counsel and Wife to submit written briefs by March 17, 2006 as to whether the family court had “jurisdiction and/or legal authority to entertain and decide upon [second counsel’s] claims against his former client in the above-entitled divorce case as opposed to a separate distinct lawsuit between [second counsel] and [Wife] in District or Circiut [sic] Court.” On March 8, 2006, the family court, Judge Choy presiding, conducted a hearing on Wife’s February 24, 2006 motion to continue trial and pretrial deadlines.

Judge Choy mentioned that he was assigned to hear the motion because it affected his schedule. Purcell reiterated the history of this case and explained what needed to be done by Wife to prepare for trial.

Purcell argued that justice would not “be served by rushing this ease to trial if [Wife] doesn’t have the opportunity to get all her evidence, explore what has been done with the marital funds, she’s—her opponent is extremely sophisticated, and she needs assistance and time.” Husband’s attorney argued that the family court had “set very, very strict deadlines ... [m]ore deadlines than normally would be set” and it would not be fair or reasonable for Wife to gain an advantage in the case by a further continuance of trial.

However, he promised to cooperate with Wife’s counsel during the next month if she wanted to take Husband’s deposition. He also promised to make available Husband’s updated financial information, including his 2005 income tax returns. At the end of the hearing, the family court orally ruled as follows: The court has heard the arguments of counsel. I’ve read both the motion to continue and the memorandum in opposition thereto. The court does note this is a weird ease. It’s well over a year old. It’s even in a position to be dismissed when this matter proceeds to trial.

Trial has already been moved, my understanding from next week Monday to the Monday of April the 10th. This court is compelled and I will order that this motion be denied. It has to be heard. It has be [sic] heard quickly. The only thing I can say is that the 10th is not a good day. However, I’ve been informed by the Chief Justice that I cannot work that day. Between terms there’s a mandatory day off, and I’ve been (unintelligible, voice drops). ...

This ease—will be held on the 11th, will commence 11th with the calling of first witness, and we’ll conclude on the 12th. (Formatting altered.) The family court, in denying Wife’s motion, did not specifically address the part of Wife’s motion that requested a continuance of pretrial deadlines. Immediately following the family court’s oral ruling, Purcell orally moved to withdraw, stating that she could not represent Wife without a continuance of trial. The family court instructed Purcell that her motion had to be made in writing.

On March 16, 2006, Wife filed an affidavit in which she consented to Purcell’s withdrawal. On March 20, 2006, Wife, through Mary L. Lucasse, Esquire (Lucasse) by special appearance, attempted to file a “Motion for Reconsideration of [the March 8, 2006] Oral Order Denying [Wife’s] Motion to Continue Trial (Filed February 24, 2006)” (Motion for Reconsideration of Oral Order) and other documents in support of the motion. The motion, brought pursuant to HFCR Rules 59(e) (2000) and 60(b) (2000), stated: The grounds for this request [are] founded in equity, fairness and justice.

It would be an utter miscarriage of justice to force [Wife] to proceed to trial without an attorney who is willing and able to take the case to trial, without experts to provide expert testimony regarding a fair division of the complicated multi-million dollar marital property, without experts to testimony [sic] as to her need for ongoing spousal support, without the ability to prepare for trial, and at a time when [Wife] is under considerable stress (as testified to by her treating medical care providers) which impedes her ability to prepare for and participate in the trial. (Footnote omitted.) Although the motion was file-stamped as “received” by the family court on March 20, 2006, it was returned to Wife’s counsel, unfiled, on or about April 3, 2006, with a handwritten notation on a post-it note that Husband’s counsel “will prepare order denying this.” On April 4, 2006, the family court entered a written order denying Wife’s motion to continue trial.

The order expressly stated that “[t]he trial in this matter will be held on April 11, 2006 and April 12, 2006.” On April 10, 2006, the family court entered an order denying, without a hearing, Wife’s Motion for Reconsideration of Oral Order. Subsequently, the family court apparently granted Wife’s ex parte motion, received by the family court on May 31, 2006, petitioning the family court to order that Wife’s Motion for Reconsideration of Oral Order be filed in the record or, alternatively, that the clerk of the court be directed to file the motion. 3.

On March 23, 2006, Wife filed a motion for pre-decree relief, seeking an order requiring Husband to advance an additional amount of money for attorney’s fees and costs, sufficient to allow her to pay an attorney to prepare for and litigate the case through trial. In a memorandum in support of the motion, Wife noted that (1) the divorce proceedings have been “hotly contested and acrimonious”;

(2) Husband had already incurred $102,860.30 in attorney’s fees and costs to litigate the case; (3) although the family court had ordered Husband to advance $40,000.00 for Wife’s attorney’s fees and costs, second counsel’s motion that the $40,000.00 be paid to him was still under advisement; (4) second counsel had not retained or paid for expert witnesses for Wife, taken Husband’s deposition regarding the value of Husband’s law practice, or prepared Wife’s exhibits for trial;

(5) Wife was without counsel from the date of second counsel’s withdrawal in December until Purcell first appeared for Wife on February 17, 2006;

(6) Purcell orally moved to withdraw on March 8, 2006, after the family court denied Wife’s motion to continue trial, and Purcell filed a written motion for leave to withdraw and an ex parte motion to advance the time of the hearing on her motion to withdraw on March 15, 2006, but her motions had not been scheduled for hearing; (7) whether Purcell or another attorney takes Wife’s ease to trial, presently scheduled for April 10 and 11, 2006, Wife needs funds to pay for trial preparation, including the deposition of Husband, an expert certified public accountant to analyze the value of Husband’s law practice, and the preparation of Wife’s exhibits and position statement;

(8) Wife has incurred unpaid legal fees and costs with Purcell’s law firm of $11,000.00 to $12,000.00, and Purcell cannot afford to continue to finance Wife’s litigation;

(9) Lucasse is willing to be retained to take Wife’s case, but her law firm requires a retainer equal to the projected cost of trial; and

(10) Wife’s temporary spousal support is substantially consumed by Wife’s interest payments on her credit-card debt, and Wife has no personal funds other than those borrowed from her mother. 4.

On March 23, 2006, Purcell filed a “Second Ex Parte Motion to Advance Time for Hearing on Counsel for [Wife’s] Motion for Leave to Withdraw and for Judgment for Attorney’s Fees and Costs and Certificate of Service.” The motion stated, in relevant part: This is an urgent matter because trial is scheduled for April 10 and 11, 2006, less than 3 weeks away, and Counsel for [Wife] who is a sole practitioner first appeared in this matter at the settlement conference on February 23, 2006, less than 1 month ago, with the understanding that a continuance of trial could be obtained.

Counsel for [Wife] is unable to prepare for [Wife’s] trial due to time conflicts and has been placed under extraordinary economic burdens of hiring substitute counsel to prepare for [Wife’s] trial.

By the time Judge Choy returns on April 3, 2006,[] trial will be less than 1 week away, and by the time Judge Choy could set this matter for hearing, trial will be less than one week away, and most of the trial preparation expense will have been incurred. [Wife] has submitted her Affidavit in Support to Counsel for [Wife’s] Motion for Leave to Withdraw that was filed on March 16, 2006. (Footnote added.) Following a hearing held on March 24, 2006, the family court entered an order granting Purcell’s motion to withdraw, allowing Purcell to (1) submit an affidavit or declaration regarding her attorney’s fees and costs, (2) serve it on Wife by certified mail and facsimile, and (3) provide a record of service to the court.

The family court also ordered Wife to accept certified mail and required Wife to appear at trial personally if she wished to present testimony.

By an order filed on March 24, 2006, the family court ordered that $30,000.00 of the $40,000.00 presently held by the chief clerk of the family court as an advance for Wife’s attorney’s fees and costs be released to “the attorney retained by [Wife] for deposit into his or her client trust account after that attorney files an Appearance of Counsel as [Wife’s] attorney in this ease.” The order also stated: “Nothing in this order shall be construed to indicate that the court will continue trial or extend deadlines.” On April 3, 2006, Husband filed a memorandum in opposition to Wife’s motion to extend pretrial deadlines, which motion Husband’s attorneys had received on March 20, 2006 but for which no hearing had yet been set.

On April 3, 2006, Husband filed a notice of taking an oral deposition of Dr. Zunin on Wednesday, April 5, 2006, at 12 p.m. Hawaii time, and 3 p.m. West Coast time, in order to perpetuate the testimony of Dr. Zunin, who “has become unavailable to testify at trial due to the rescheduling of the trial dates to April 11,2006 and April 12, 2006.” 5. On April 4, 2006, Wife filed another motion to extend pretrial deadlines to allow her time to retain experts, if necessary, submit expert reports and rebuttals, and prepare testimony for use in trial of the contested matters.

Wife reiterated the history of this case and argued that “[t]he instant divorce case involves a complex marital estate, comprised of several real properties, a business, and potentially millions of dollars in assets” and “[i]t would not be in the interests of equity to force [Wife] to proceed to trial without evaluating [Husband’s] expert reports, nor to submit expert reports of her own rebutting [Husband’s] contentions.” 6. Lueasse specially appeared for Wife at a hearing held on April 7, 2006 on Wife’s motion to extend pretrial deadlines.

At the outset of the hearing, Judge Choy, who was presiding, disclosed that his son “is the most junior associate” in the same firm as Lu-casse. Husband had “no problem” with this situation. Lueasse stated, however, that Wife did not waive the conflict and was very concerned about the fact that Judge Choy’s son worked for Lueasse’s firm. Lueasse then orally moved to recuse Judge Choy from the case, noting that Wife was concerned about Judge Choy’s son overhearing discussions about the ease. Husband argued that Wife needed to file a written motion to recuse Judge Choy.

Additionally, Husband expressed concern that Lueasse was entering a special appearance and may not even be Wife’s attorney at trial. Ultimately, Judge Choy transferred the handling of the motion to Judge Enright. Judge Choy stated, however, that he would preside over the trial unless a written motion for his recusal for trial was received. Following a recess, the hearing continued before Judge Enright. Lueasse argued that much had happened since Wife’s motion to extend pretrial deadlines was filed on March 20,2006: On March 24, Judge Radius granted [Wife’s third] counsel’s motion to withdraw.

So as of that date [Wife] has been without counsel. As I understand it, [Wife] is not well educated. She’s not able to represent herself in a complex, multi-million dollar marital property division case. Another thing that has happened since we filed our motion is that the court ordered the clerk of the court to release $30,000 to the attorney who would take the case to trial, as I understand, and enter an appearance in the case. As I understand, that money is still available for trial prep and it has not been disbursed to anyone at this time. Finally, what’s changed is the passage of time.

When we submitted this motion, or when this motion was submitted, on—on or around March 20, we were still within time to prepare for trial. That’s no longer the case. As I understand it, trial has been set in this case for next Tuesday and Wednesday. I don’t think that there’s any attorney in town that would take a case that involves a file cabinet full of financial documents, expert report dates passed without the submission of expert reports, documents requested and not produced, because of problems that defendant has had retaining and working with counsel.

Those are the things that have changed since this motion would be filed. At this point, we still maintain that the extension of the pretrial deadlines and in fact the trial date itself should happen. And the reason for that is we have a client here who has a grad—grade [sic] inequity when compared with her divorcing husband, who is an attorney himself, who’s retained by counsel who has a substantial family law—law firm who is here with an associate today. And on the other side we have [Wife].

We have submitted—or she has submitted to the court Exhibits 4 and 5 to the motion to reconsider, which are letters from her doctor. And I don’t know if they were something you had an opportunity to review. Dr. Steven Kimbel informed the court that [Wife] has an adjustment disorder with anxiety. She’s on—on a variety of medication. Right now, as I understand it from his letter, she’s not presently taking a particular medication during the day for this because of—for medical reasons. In addition, her therapist, Gary Augus-tin, has opined to the court that she’s unable to do this by herself.

She’s not able to prepare for trial. She’s just in a state that makes it impossible for her to represent herself, if you will. [Wife] needs counsel at this time. Without counsel, I think a trial would be a travesty. You have arrayed against her counsel who is obviously well prepared, well positioned with an expert, two expert reports, all lined up against a minimally qualified person who is not an attorney, is not by trade a logical person. She’s an actress by profession. This is not something that she can just step in and do. Why should she be punished for her counsel’s withdrawal?

I’m not here to point fingers, I can’t speak for other counsel. But what I can see, from looking at the record, that her [second counsel] withdrew in mid-December. The trial date, pretrial order 1 had been set I think it was sometime in October. As he withdrew, many important deadlines were just coming due. The deadline to submit documents to the other side was at the end of December. Expert reports were due January 20. He had named an expert, but he had not provided documents to the expert.

So that when [Wife], who was talking to many people and trying to find an attorney to represent her, was able to represent [sic] [Purcell] who the record seems to indicate came in around January 29, not only had several of these pretrial deadlines already past [sic], but she wasn’t able to get an attorney, [Purcell], to take on the case for trial. As we learned from [Purcell’s] motion to withdraw, [Purcell] had always been somebody who was going to help [Wife] get a trial continuance, to work on settlement. She attended the settlement conference which was February 23.

But attorney [Purcell] did not do any of the trial prep, nor apparently had she promised to do so. So that I think is probably in large part why she was let out before the trial took place, just two weeks ago now. Many things have gone undone. The trial was set in October for March. That contemplates about a six month prep for trial. Within about two months, two and a half months, [Wife], who is not an attorney nor prepared to do this, was without counsel to prepare for trial. That’s the position we’re really in today.

All this stuff, flailing around, looking for counsel, trying to get prepared for trial has not happened. We’re four months really before [Wife] would be prepared for trial. That’s too long a delay. And I see counsel shaking his head. We’re not asking for four months. But what we are asking for is a fair chance to help [Wife] prepare for trial. I have been asked to step in as trial counsel. And at the time I was asked, and I still do today, have conflicts with the trial dates.

I was not able to accept a case to go to trial, two days, when I can’t prepare for it, I can’t review the files, financial documents, I don’t have an expert. And that’s why when I look at this case with fresh eyes, what I see is the [Wife] who needs—who needs to have this motion granted so that she can be prepared to litigate the ease. Two months in the scheme of things is not a very long time, and that’s what we’re requesting. That the pretrial deadlines be moved. I have spoken to Mr. Kuba who tells me that he can prepare for trial still.... He’s already been named and—and understand that he’s trial expert.

But to do the work, to prepare for trial, if he has some time to do that. If this motion is not granted, I think thei’e would be a great inequity done. I’m not saying that [Wife] is without fault. I don’t know because I have not been part of the case so far. I’m sure you can always point fingers or—and I’m sure that [Husband] will, at her. And looking forward, we just ask that the court recognize that and with fairness give her the chance to prepare for trial. I think that can be done in two—two months. And that’s what I represent to the court should be done. Judge Enright denied Wife’s motion.

He stated: I actually struggled trying to think of a way that would be fair for both sides to extend the deadline because not having everything in place that should be in place for a trial is something nobody likes to see happen, especially the judge. However, all this information should have been available before the settlement conference. And really what has gone on in this case has undermined, it appears, the whole process of—that goes into trying to help parties reach agreements. And if they can’t reach agreements, to make sure that they’ll have a fair trial and to avoid this exact situation.

So I don’t know exactly what broke down, but something broke down. But the motion to continue the trial has been ruled on. And it sounds to me like it’s been ruled on twice. Thus, if this is a motion to continue the trial, which I’m hearing is its—is what it really is, then I really don’t have any ability or legal basis to rule upon it once again. So that oral motion would have to be denied. And the written motion, as [Husband’s] counsel has stated, doesn’t really make any sense.

Unless you had a report in hand, and then possibly we could squeeze the dates so that the trial could still go on Tuesday. [Tjhere’s really no—no intelligent or reasonable way that I could move any deadlines. It would serve no purpose. I. Motions in Limine and Motion to Re-cuse On April 7, 2006, Husband filed a motion in limine to bar Wife from presenting at trial expert witnesses, expert reports, trial exhibits, evidence which she did not provide in discovery, and claims not raised in her position statement.

On April 10, 2006, the law firm of Burke McPheeters Bordner & Estes entered its appearance as counsel for Wife. Lucasse signed the appearance of counsel. On April 10, 2006, the family court received Husband’s ex parte motion to shorten time for a hearing on Husband’s concurrently filed motion in limine for admission of Husband’s trial exhibits into evidence without foundational questions. Husband stated that the motion in limine had to be heard before trial commenced on April 11, 2006, at 8:30 a.m. The family court granted the ex parte motion by an order filed on April 11, 2006, at 8:30 a.m.

In his motion in limine, Husband argued, in relevant part: Paragraph V.F.5 of the November 12, 1997 Family Court Policy Memorandum[] states as follows: Following the Calendar Call, and at least 48 hours prior to trial, each counsel shall deliver to the Calendar clerk and opposing counsel, a copy of the opposing party’s exhibit list with an indication of which exhibits will be stipulated into evidence. Failure to do so will result in a waiver of objections as to any exhibits not stipulated into evidence.

The deadline for Wife to object to any of Husband’s trial exhibits (by submitting to the Calendar clerk and [Husband’s attorney] a copy of [Husband’s] Exhibit List with an indication of which exhibits will be stipulated into evidence) was 8:30 a.m. on Friday, April 7, 2006. That deadline came and went, and Wife did not object to any of Husband’s trial exhibits by submitting a copy of [Husband’s] Exhibit List to the Calendar clerk and [Husband’s attorney]. Her failure to do this has now resulted in a waiver of objections by her to any of Husband’s trial exhibits.

Husband is therefore, asking the Court to admit all of his trial exhibits into evidence without requiring him to ask foundational questions (or otherwise lay a foundation) for those exhibits. Husband is not asking the Court to consider any trial exhibits that he doesn’t reference in his ease at trial. He is simply asking the Court to admit his trial exhibits into evidence without requiring him to ask foundational questions (or otherwise lay a foundation) for those exhibits.

Husband is making this Motion to save the Court’s and his time at trial since Wife’s failure to timely object has resulted in a waiver of objections by her. (Footnote added.) Prior to the commencement of trial on April 11, 2006, the family court, Judge Choy presiding, heard arguments on several motions. Judge Choy denied Wife’s request that he recuse himself from the ease because his son was an associate with Lucasse’s law firm.

As to Husband’s motions in limine, Judge Choy informed the parties that the deadlines set by the family court “are pretty much chiseled in concrete.” Accordingly, the family court precluded Wife from presenting any evidence that was not provided by her in discovery. The family court also directed the parties to “stay well within the confines of their positions” unless justified by a change in circumstances. TRIAL PROCEEDINGS A. Husband’s Trial Evidence 1. Husband’s testimony Husband testified that he is sixty years old and that he and Wife have been physically separated since December 30, 2004.

He has two children from a prior marriage and is still obligated to support one child, a senior in college, with monthly payments totaling approximately $2,000.00. Husband stated that he has been diagnosed with an irregular heartbeat and, as a result, has attempted to reduce his caseload. He also takes medication for various maladies. Husband testified that Wife is currently fifty-seven years old, and although she did not work during their marriage, he believes she is capable of finding work again.

The family court took judicial notice of Wife’s testimony at an August 31, 2005 hearing in this case, in which Wife stated that she could find a job in Hawai'i, New York, and Los Angeles. Husband related that he has been paying Wife $6,000.00 in monthly spousal support since November 2005 and has been paying Wife’s car and health insurance, doctor’s bills, and all costs associated with their residences. Under Husband’s proposed property distribution, Wife would receive a “little over 1.1 million” which includes (1) half the proceeds from the sale of the Nu'uanu and Los Ange-les properties;

(2) Wife’s portion of a 401(

k) plan “which is vested for her in about $140,000”; (3) appreciation “in the IRA, premarital IRAs”;

(4) Wife’s cash on hand; and (5) her two vehicles. Husband was questioned about the asset- and-debt statement that he had filed as part of his divorce from his first wife in 1996. According to that statement, (1) the value of Husband’s law corporation in 1996 was negative $301,796.00; (2) his law corporation earned about $1.7 million in 1996; and (3) he received $85,000.00 from the division of real property and about $477,430.00 from the division of his retirement accounts as part of his first divorce.

The statement also indicated that Husband owed a $20,000.00 credit-card debt, $300,000.00 for federal taxes, and $77,000.00 for state taxes. Husband explained that in 1996, he also owed a $656,528.00 debt to his then-law corporation: [Ojver the course of being in practice on my own from 1978 through 1996, there are accounting transactions that are construed as constituting advances or loans. Nobody can ever explain to me what it means. All I know is I pay taxes on everything I’ve ever earned. I don’t have [$] 656,000, and it’s a paper transaction representing a[sic] bookkeeping and accounting principles.

So it would take a CPA to explain it.... It’s a company debt that I—that I owe. (Formatting altered.) This debt was unpaid at the time he married Wife in 1997. In addition, Husband stated, he was personally liable for a $335,000.00 Bank of Hawaii loan to finance his law corporation. This debt was later transferred to City Bank and “it may have been approximately $300,000” prior to Husband’s marriage to Wife. Husband testified that in 2005, his net income was between $950,000.00 and $1 million.

That year, he paid approximately $250,000.00 to $300,000.00 in federal taxes and $70,000.00 in state taxes, and he also repaid various loan obligations. Husband related that he currently owed $241,208.00 to his law corporation, which had used a line of credit from Central Pacific Bank to loan him that amount to pay his personal taxes. a.

The IRA agreement Husband acknowledged that in 1998 and 1999, he received, for the first time in his life, “a notice of a tax deficiency that was huge.” He was working under enormous stress at the time, having picked up the caseload of a retiring attorney, and was also working on several of Wife’s pending cases. In 2000, Husband testified, he incurred about $350,000.00 in tax hens, which devastated him.

Husband stated that Wife became “hysterical” that tax issues would leave her “unprotected as she had been in her first marriage when her first husband’s tax hens resulted in her foreclosure at Le Parc and eviction from Le Parc.” Wife wanted a guarantee that she would be reimbursed for money she had spent on renovations to the Nu'uanu property, which cost between $80,000.00 to $120,000.00, and for her surgeries. Husband testified: Finally, I said I’ll go to [James Starshak (Starshak)] and I’ll get an agreement that will assure you that you’re gonna he repaid and—and [Starshak] mil draft it.

Actually, after that, truthfully, I had very little contact with [Starshak] because I was ... busy working. He complained to me that [Wife] was leaving multiple messages. And I said if you have to, you know, just get out something and—and let me give her security so that her—she’s not at risk for her money. He sent an agreement. And as I recall—I didn’t look at it—we were driving one night. I had given it to [Wife] ... and she insisted that we go to Kinko’s at Queen Street, sign it.... And that was it. And then I paid her back her money. All of it. Whatever she wanted refurbished.

Then I put the darn thing out of my mind. In fact, didn’t even have it in my mind in this suit until [Husband’s counsel] asked me about an agreement and said what—what is it? (Emphasis and footnote added.) Pursuant to the IRA Agreement, which was prepared by Starshak, signed by Husband and Wife, and dated July 13, 2000, Husband agreed to designate Wife as the beneficiary on four IRAs maintained by Husband “if Wife survives Husband.” The IRA Agreement also provided: 2. Division In Case Of Divorce.

If Husband and Wife divorce, Wife shall be awarded one half of the [four IRAs], This is a separate agreement between Husband and Wife. All other marital assets will be divided pursuant to the laws of the State of Hawaii. In the event of a divorce any other marital assets will be divided in addition to the [IRAs], as set forth above. 3. Binding Effect On Successor IRAs: Husband agrees to designate Wife as the beneficiary, if she survives Husband, of any individual retirement account that receives a distribution or roll-over from the IRA 4. Management Of IRA.

As long as Husband is not in breach of this Agreement, Husband shall have the right to manage and direct the investments of the IRA or qualified retirement or profit sharing plan or transferee retirement plan that receives a distribution or rollover from the IRA 7. Amendment. No amendment, variation, or extension of the terms of this Agreement shall be valid unless made in writing and signed by Husband and Wife and in no other manner. 9. Successors and Assigns.

The rights and obligations under this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, and permitted assigns. (Emphasis added; stricken typewritten text omitted.) Husband was allowed to explain that the IRA Agreement was conditional in that [i]f [he] breached [his] promise to make sure that [Wife] was protected from the tax liens and from any monies that she had to spend which she regarded as her own money, that in that event that [he] defaulted on those, she had some security.

But [he] never expected this agreement to be used when [he] satisfied [his] promise to make good so that she wasn’t exposed and indeed has not been exposed to a dime of anything related to [him] ... or anything related to her own expenditures before [they] separated. (Formatting altered.) Husband admitted that this condition was not incorporated into the IRA Agreement and that the IRA Agreement had not been subsequently canceled by another written agreement. He also acknowledged initialing a handwritten amendment to the IRA Agreement that the agreement was not governed by Hawai'i property division law.

Husband indicated that he had notified the IRA companies of his naming of Wife as a beneficiary of the four IRAs but had removed her name when the couple separated. b. Quitclaim of Nu'uanu property Husband explained that title to the Nu'uanu property was originally in his name alone because he was “told by mortgage brokers not to put [Wife’s] name on any mortgage applications.

So [he] applied in [his] name with the understanding that after [he] obtained title [he] would quitclaim ... the interest back to [them] as tenants by the entirety, which [he] did.” Husband acknowledged that at the time of trial, the Nu'uanu property was titled solely in Wife’s name, but he claimed that he and Wife both owned the property as tenants by the entirety: [W]hen we refinanced the Nu'uanu [property], in 2003, the mortgage broker again said, make the applications in your name only. Don’t let [Wife’s] name get near the application. [Wife] quitclaimed her interest to me, quitclaimed to me.

I made the application. After the application was made and the [$] 950,000 roughly in ... refinancing was obtained, I asked my secretary to quitclaim the property back to us. She quit-claimed the property by mistake to [Wife]. I signed it. ... I realized that as I reviewed documentation for this ease, and asked an attorney to file what was appropriate in the land court to recognize that that was a mistake. I was—I believe that it’s not even legally in [Wife’s] name because it was an improper quitclaim. I’m not a real estate attorney and I didn’t do it the way you’re supposed to. Probably never had.

Um, but the—it was a mistake that— that it was, uh, in land court as a quitclaim deed back to her. Plain and simple mistake. ... I’ve been told that it is not legally in her name only. If one were to, um—dig below the surface and—and find out what the legal requirements were for an appropriate quitclaim, we still own it by the entirety. (Emphases added; formatting altered.) Husband stated that he did not intend to gift his interest in the Nu'uanu property to Wife. c. Husband’s law practice Husband testified that his law practice increased in value by $54,000.00 during their marriage.

Although Husband requested that he be awarded his law practice in its entirety, he acknowledged that Wife is entitled to half of the $54,000.00 increase. With respect to the value of his law corporation at the time of his marriage to Wife in 1997, Husband testified that he has no independent valuation aside from his expert witness’s appraisal, and he did not recall discussing his active eases with the expert. Husband estimated that in 2006, his law corporation had thus far earned nearly $1.1 million.

He received “$30,000 per month in distributions” and after paying various expenses, he “might have a thousand or two left over[.]” Husband was asked about prior cases during his marriage to Wife for which he had obtained sizable recoveries for his clients and earned substantial fees. Husband testified, in

summary: • In a 2003 wrongful-death case, a client recovered $3.75 million, of which Husband received $1.25 million. • In a 1999 brain-injury case, a client recovered $2.5 million, of which Husband received “several hundred thousand dollars.” • In a 2000 wrongful-death case, a client recovered $1.25 million, of which Husband received “[o]ne-third.” • In a 2003 leg-injury ease, a client recovered $1 million, of which Husband received “Approximately a third.” • In a ease involving a tourist injured on a bike, the client recovered $2.5 million, of which Husband received “[o]ne-third.” Husband was also questioned about the status of twenty-five contingency-fee eases that were pending around the time the second divorce ease was filed.

He testified that eleven of the cases had settled, ten were still active, three were dropped, and he could not recall one of the eases. Of the cases that had settled, three settled in December 2005 and January 2006 for more than $1 million each, generating attorney’s fees for Husband of $550,000.00, “one-third of [$] 1.25 million,” and $250,000.00 to $280,000.00, respectively. Husband testified that “the last of what [he] regarded] as [his] larger personal injury cases” could return a $2 to $3 million recovery.

Husband further explained that when evaluating whether to accept a new ease, his “criteria are that it should be a good case with liability for a good person[,]” and the client have “large injuries and damages[.]” d. Wife’s $288,000.00 category 1 assets and replenishment Husband testified that during his marriage to Wife, he wrote several significant checks to Wife to pay for her various expenses. He stated that Wife would, for example, have a $30,000.00 plastic surgery and demand to be “refurbished.” Husband could not recall which of Wife’s separate accounts were refurbished.

Although Wife did not perform any work for Husband’s law firm, she received monthly payroll cheeks of about $1,500.00 from Husband’s law firm beginning in about 1998, soon after they married, and continuing until they separated in 2004. He paid Wife so she could have “an opportunity to have some income to establish come [sic] credit for herself, because her credit was awful.” Husband also established a 401(

k) retirement plan in Wife’s name, and in order to “max out on her 401(

k) contributions,” at the end of every fiscal year for two years I would bonus her, pay FICA, pay social security, pay an enormous amount of taxes so that I could put some money into a retirement account for [Wife] so that she would have something. Husband acknowledged that Wife would occasionally offer her advice on his cases, staffing of the firm, and advertising.

Husband also referred to Wife in his law firm’s promotional materials, and the firm’s website stated that Husband “was married to Brenda Dickson who had formerly been an actress on the Young and the Restless.” Husband stated that Wife’s premarital money was initially tied up in a bankruptcy estate, from which she received $200,000.00 in 1999 or 2000. In addition, Wife received $85,000.00 from a legal settlement. He agreed that he was not making a claim to Wife’s American Savings Bank account. He was unaware of any financial debts that he or Wife owed to Wife’s mother. e.

Alimony Husband believed that alimony would be unnecessary because Wife’s share of the marital estate would be sufficient to meet her needs and Wife’s alimony demands will “never end.” With respect to the couple’s standard of living, Husband testified that he and Wife took many domestic and international trips together during their marriage. They usually upgraded to business- or first-class air travel and stayed in very nice hotels. During the marriage, the couple ate out two to three times a week at nice restaurants. 2.

Candon’s testimony Candon was offered by Husband as an expert in the areas of accounting, business valuation, business appraisals, and tax. Can-don testified that he was retained to determine the fair market value (FMV) of Husband’s law practice as of December 31, 1997 (the date nearest to the date of marriage) and the most recent practical date of December 31,2005.

Candon testified that “as of December 31, 1997, the value of [Husband’s] one hundred percent interest in the law corporation was $293,000[,]” based on a review of the law firm’s financial statements, income-tax returns, obligations, receivables due, and advertising. Candon noted that the firm’s primary asset in the 1997 appraisal was a “$600,795 loan to the shareholder^ Husband.]” This appraisal was based on several assumptions:

(1) FMV is “that price that ... a willing seller would accept, [a] willing buyer would pay for a specific property on a date where both parties are reasonably well-informed of the ... important information and there’s no compulsion.

No one’s compelled to act”; (2) under Hawai'i case law, “professional good will, or good will attaching to an individual employed by the company, particularly as a sole practitioner,” is not a marital asset “unless there’s a contract with the corporation”; (3) the only way to value Husband’s law firm was via an “asset based approach liquidation method” because attorneys can’t compel their clients to work with any particular attorney, and “the only value to the corporation are those things that it does control and can sell”; (4) the firm’s value was then lowered by subtracting a thirty percent “marketability discount” because the firm is a small “privately held company that is difficult to sell”; and (5) the firm’s active, unsettled, contingency-fee personal-injury eases were not part of the appraisal because “it’s just not possible to value something that is speculative” and Husband “could leave the corporation and take those eases with him.” According to Candon, “what’s important is ... the value of the assets and liabilities that ... the corporation controlled and could sell.” “You wouldn’t do an income approach on something like this because the income is dependent on [Husband’s] continued involvement.” ■ Using similar assumptions, Candon testified that the firm’s December 31, 2005 appraisal was $347,000.00.

Candon noted that the firm’s primary asset in 2005 was a $905,000.00 loan to Husband. Candon also stated that the 2005 personal-injury industry had changed from 1997 in that there was more competition for smaller settlements because of fewer jury trials. Although Candon was concerned about whether the loan to Husband was collectible, Candon’s appraisal assumed that the loan could be collected in full. Candon testified that he had no reason to suspect fraud, or to investigate fee-sharing cheeks totaling $1.1 million that were paid by Husband’s law firm to other attorneys in 2005.

He stated that writing large fee-sharing checks during a pending contentious divorce proceeding did not necessarily raise a red flag about possible fraud, and based on the nature of the valuation approach he used, “[i]t was not necessary or relevant to explore fee[-]sharing agreements.” Candon explained that the fee-sharing agreements would be relevant as of the valuation date if the business expected to receive or was obligated to make payments.

However, “as a practice, business practice, ... during the course of the year, it would not be relevant.” He further indicated that he “did not conduct a forensic investigation looking for fraud in the business ... [s]o [he] did not look at the individual checks” to determine whether they were paid out for a legitimate business reason. B. Wife’s Trial Evidence 1. Dwyer’s testimony Dwyer recalled that he has previously served as co-counsel with Husband for two cases. For the first fee-sharing case, Dwyer received from Husband a $203,123.70 check dated March 5, 2004.

Dwyer received twenty-five percent and Husband received seventy-five percent of the total fee. Dwyer stated that although he was not the trial attorney, he was “involved in making virtually any strategic decisions” and for client relations. For the second fee-sharing case, Dwyer stated that he received from Husband a $84,374.46 check dated December 29, 2004. This was approximately twenty-five to thirty percent of the total fee paid by the client. Dwyer could not recall whether he was named as co-counsel on the pleadings. He stated that he did not prepare any pleadings but had input on significant pleadings. 2.

Starshak’s testimony Starshak, an attorney practicing in the areas of tax, pension, and estate planning, testified that he first began doing legal work for Husband in the “[e]arly nineties” involving “tax planning with regard to [Husband’s] assets.” Starshak could not recall if he had provided advice to Husband and Wife with respect to the filing of joint tax returns. He admitted to creating Husband’s law firm’s 401(

k) plan but could not recall meeting with Wife about the plan. Starshak prepared the IRA Agreement which provided that Wife would get half of Husband’s IRAs in the event of a divorce. Starshak recalled telling Wife via telephone that he was “not her attorney, [he was] not representing her, [he was] representing [Husband], the matter that—that they were dealing with was something that required independent representation, and she should get her own lawyer.” Starshak denied that he was directed by Wife, instead of Husband, to draft the IRA Agreement.

The family court precluded Wife’s attorney from questioning Starshak about the IRA Agreement, joint tax returns filed by Husband and Wife, and a 401(

k) plan set up for Wife, citing attorney-client privilege between Starshak and Husband. Additionally, the family court refused admission of the IRA Agreement through Starshak because Wife had not provided this document to Husband as a trial exhibit prior to trial. 3.Wife’s testimony Wife testified that her doctor had advised her not to travel to Hawai'i for the trial because she was being treated for shortness of breath, anxiety, and a clogged artery, and was taking various medications. Wife related that she met Husband in July 1996, when he reviewed her then-divorce case, and the couple married in December 1997.

Wife was an actress on a television soap opera for over a decade, ending in 1987. She did not work as an actress during her marriage to Husband, and she estimated that she would need $25,000.00 per month to resurrect her acting career. a. Division of the Nu'uanu and Los Angeles properties Wife testified that the Nu'uanu property is solely titled in her name. When asked how this occurred, Wife explained: “I believe that [Husband] put my name on the title because he wanted me to feel secure.

That I would have the equity in the house.” Wife agreed that Husband did not intend to gift the entire Nu'uanu property to her, “just the interest in the house” or equity. When the Nu'uanu property is sold, Wife said, she would like the proceeds to be used to pay off the balance on the mortgages for the Los Angeles and Nu'uanu properties, and then split the remaining proceeds evenly between Husband and Wife. With regard to the Los Angeles property, Wife testified that Husband always said that I would get the condo, ... which is why the condo wasn’t sold to begin with.

It was always agreed upon that I would get that condo and he’d have the house. In the 2004 agreement, there was a quitclaim deed where I quitclaimed the house to him and he quitclaimed the condo to me. And it was always agreed upon that I would get that condo, which is why we didn’t sell it from the very get-go. ... [E]ven when we were having trouble in 2005, he always promised that I would have that condo. That’s why he didn’t go off and sell it right away. (Formatting altered.) b.

The AITD Wife testified that the couple negotiated the AITD during their first separation in contemplation of divorce in 2004, but they reconciled shortly thereafter. Wife stated: We had a negotiated contract in 2004, and ... we signed the contract in 2004. But we went right back together almost immediately.... And we still had problems, but we hoped that it would work out. So we never initiated the contract. Wife related that Husband filed the complaint in the second divorce case

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