Pavao v. Bartolini

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-JUL-2024
11:08 AM
Dkt. 59 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MARISA PAVAO, formerly known as
Marisa Ke#ala Bartolini, Plaintiff-Appellee, v.
DOMINIC S. BARTOLINI, Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
(FC-D NO. 5DV171000080)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and Nakasone, JJ.)

This appeal arises out of post-judgment proceedings in
a divorce case between Plaintiff-Appellee Marisa Pavao, formerly
known as Marisa Ke#ala Bartolini (Wife), and Defendant-Appellant
Dominic S. Bartolini (Husband). Husband appeals from the
June 24, 2020 "Order Denying [Husband's] Motion to Set Aside
Divorce Decree or[,] in the Alternative, for Post-Decree Relief
Filed on November 12, 2019" (Order), entered in the Family Court
of the Fifth Circuit (Family Court).1/
On appeal, Husband contends that the Family Court erred
in denying Husband's November 12, 2019 motion to set aside
divorce decree or, in the alternative, for post-decree relief
(Motion), and in declining to hold an evidentiary hearing on the
matter. Relatedly, Husband challenges findings of fact (FOFs) 32
and 33, and conclusions of law (COLs) 1-4, in the Family Court's
November 6, 2020 "Findings of Fact and Conclusions of Law"
(FOFs/COLs).

1/
The Honorable Joseph Kobayashi presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Husband's contentions as follows, and affirm.
Husband contends that the Family Court erred in denying
the Motion, which sought to set aside the court's January 23,
2018 Decree Granting Absolute Divorce (Divorce Decree or Decree),
pursuant to Hawai#i Family Court Rules (HFCR) Rule 60(b)(3) and
(6)2/ or, in the alternative, to amend the Decree to equally
divide the parties' assets and debts. Specifically, Husband
argues that Wife's representations to the court in support of her
October 24, 2017 Ex Parte Motion for Service by Publication
constitute misconduct that requires setting aside the Divorce
Decree under HFCR Rule 60(b)(3) and (b)(6).
At a January 28, 2020 hearing on the Motion, the Family
Court set a briefing schedule and concluded that the Motion would
be decided based upon the parties' written submissions. Both
sides were represented by counsel and agreed there was no need
for an evidentiary hearing.3/
The Family Court subsequently denied the Motion and
entered the FOFs/COLs. The court found in relevant part:

2/
HFCR Rule 60(b) states, in relevant part:

Mistakes; inadvertence; excusable neglect; newly
discovered evidence; fraud. On motion and upon such terms
as are just, the court may relieve a party or a party's
legal representative from any or all of the provisions of a
final judgment, order, or proceeding for the following
reasons:
. . . .

(3) fraud (whether heretofore denominated intrinsic
or extrinsic), misrepresentation, or other misconduct
of an adverse party; [or]
. . . .

(6) any other reason justifying relief from the
operation of the judgment.

The motion shall be made within a reasonable time, and
for reasons (1), (2), and (3) not more than one year after
the judgment, order, or proceedings was entered or taken.

3/
Husband's current contention that the Family Court erred in
declining to hold an evidentiary hearing was therefore waived.

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

7. At [a 2016] hearing [in a prior divorce case that was
later dismissed], [Husband's then-]Counsel provided
[Husband's] contact information as 13819 Victoria
Drive, Victorville, CA 92395.

. . . .

11. On June 2, 2017, [Wife] filed a new Complaint for
Divorce in FC-D 17-000080 and represented herself.

12. On June 26, 2017, [Wife] filed a Motion for Service by
Mail and Affidavit, which was granted.
. . . .

14. Also on July 10, 2017, [Wife] mailed the Complaint for
Divorce, Summons to Answer Complaint, Motion for
Service by Mail and Affidavit, Order for Service by
Mail, Asset and Debt Statement and Income and Expense
Statement by Certified Mail to the last known address
provided by Husband's former Counsel: 13819 Victoria
Drive, Victorville, CA 92395[.]

15. These Documents were returned to [Wife] as
undeliverable on August 14, 2017.
16. [Wife] made multiple attempts to determine [Husband's]
address to no avail.

17. [Wife] then filed an Ex Parte Motion for Service by
Publication, which was granted on October 24, 2017.
18. [Wife] then had Notice to [Husband] published in the
Garden Island Newspaper on November 7, 14, 21, and 28,
2017.
. . . .

29. The [a]llegations made by [Husband] in the Declaration
attached to [Husband's] Motion are not persuasive
and/or credible as it relates to his contention that
[Wife] did not exercise diligent and reasonable
efforts to effect proper service upon him.

30. [Wife] reasonably employed knowledge at her command,
made diligent inquiry, and exerted an honest and
conscientious effort appropriate to the circumstances
to acquire the information necessary to enable her to
effect personal service on [Husband].

. . . .
32. [Wife's] request for Publication, which was granted by
this Court, further evidenced her diligent and
reasonable efforts to provide proper notice to
[Husband] in this case.

33. [Wife] did not engage in fraud, misrepresentation, or
misconduct in this case in her attempts to serve
[Husband] and/or to seek publication in lieu of
personal service.

The court concluded in relevant part:

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

1. [Husband's] failure to file the Motion to Set Aside
Divorce Decree or, in the Alternative, for Post Decree
Relief, within one year of the Divorce Decree renders
the Motion untimely under [HFCR] Rule 60(b).
2. [Husband's] filing of the Motion to Set Aside Divorce
Decree or, in the Alternative, for Post Decree Relief,
9 months after his Attorney requested transcripts
(February 12, 2019) in the case, was not "within a
reasonable time" under these circumstances and as
required by [HFCR] Rule 60(b).
3. Even if the Motion were filed within a reasonable time
after the Decree, as is required by [HFCR] Rule 60(b),
[Husband] failed to establish any other reason
justifying relief under [HFCR] Rule 60(b)(6).
4. [Husband's] request in the alternative, to amend the
Divorce Decree "so that the Decree will equally
distribute the assets and debts of the parties" does
not sufficiently state the grounds upon which
[Husband] relies to support this request, nor does it
adequately set forth the relief or order sought, as is
required by [HFCR] Rule 10(a).

At the outset, we note that Husband does not challenge
FOFs 7, 12, 14-18, 29 and 30.4/ They are therefore binding on
appeal. See Okada Trucking Co. v. Bd. of Water Supply, 97
Hawai#i 450, 458, 40 P.3d 73, 81 (2002). The Family Court set
forth the specific efforts made by Wife to effect service on
Husband in FOFs 14 through 18, and concluded that Wife made
diligent and reasonable efforts under the circumstances to serve
Husband. The court further determined that Husband's allegations
regarding Wife's efforts to effect proper service upon him were
not credible. We "will not pass upon issues dependent upon the
credibility of witnesses and the weight of the evidence; this is
the province of the trier of fact." Fisher v. Fisher, 111
Hawai#i 41, 46, 137 P.3d 355, 360 (2006) (quoting In re Doe, 95
Hawai#i 183, 190, 20 P.3d 616, 623 (2001)).
Based on our review of the record, we conclude that
FOFs 32 and 33 and COL 3, which present mixed determinations of
fact and law, were supported by substantial evidence and are not
clearly erroneous.5/ Given our conclusion, we need not address

4/
FOF 30 is a mixed determination of fact and law.
5/
Husband argues that he was entitled to relief under HFCR Rule
60(b)(6) because "he did not know about the then pending divorce case because
he had never been served." It is undisputed, however, that Husband was served
by publication. To the extent Husband challenges Wife's efforts to effect
proper service upon him, we have concluded that the Family Court's related

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Husband's remaining contentions regarding the time limits for
filing a motion seeking relief under HFCR Rule 60(b)(3) and (6).
The Family Court did not abuse its discretion in denying the
Motion to the extent it sought relief under these provisions.
See Meyers v. Meyers, 151 Hawai#i 492, 496, 517 P.3d 775, 779
(App. 2022).
Husband next contends that the Family Court erred in
denying his alternative request for post-decree relief under HFCR
Rule 10(c). He argues that even if his Rule 60(b) motion was
properly denied, he "should have been allowed to pursue an
equitable division of the marital estate[.]"
The Family Court denied Husband's alternative request
because it did not sufficiently state the grounds supporting the
request and did not adequately set forth the relief or order
sought, as required by HFCR Rule 10(a). Indeed, Husband's
request relied on a single conclusory sentence that failed to
supply the grounds for relief or even to identify the marital
assets or debts at issue. COL 4 was not wrong, and the Family
Court did not err in denying Husband's alternative request for
post-decree relief.
For the reasons discussed above, the June 24, 2020
"Order Denying [Husband's] Motion to Set Aside Divorce Decree
or[,] in the Alternative, for Post-Decree Relief Filed on
November 12, 2019," entered in the Family Court of the Fifth
Circuit, is affirmed.
DATED: Honolulu, Hawai#i, July 17, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Mitchell S. Wong Presiding Judge
(The Law Offices of Mitchell
S. Wong) /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge

Jacob G. Delaplane, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge

FOFs were not clearly erroneous.

5