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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-11-0001074
                                                               07-AUG-2014
                                                               01:55 PM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                 ---o0o---


        SANDRA C.J. BALOGH, Respondent/Plaintiff-Appellant,

                                     vs.

       DONALD RAYMOND BALOGH, Petitioner/Defendant-Appellee.


                              SCWC-11-0001074

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-11-0001074; FC-D NO. 10-1-0149)

                              AUGUST 7, 2014

          RECKTENWALD, C.J., NAKAYAMA, MCKENNA, JJ., AND
       CIRCUIT JUDGE CHAN, IN PLACE OF ACOBA, J., RECUSED,
      WITH POLLACK, J., CONCURRING AND DISSENTING SEPARATELY

              OPINION OF THE COURT BY RECKTENWALD, C.J.

            We consider whether various documents signed by a

husband and wife should control the division and distribution of

their marital partnership property upon divorce.            Donald Raymond

Balogh (Ray) and Sandra C.J. Balogh (Sandra)1 married in New



      1
            Because both parties in this case share the same surname, we refer
to them by their first names, i.e., Ray and Sandra.
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Jersey in 1981.    After moving to Oahu in 2003, the couple began

constructing a home on a vacant lot they had purchased (Kahalakua

property or the property).      The parties held title to the

property as tenants by the entirety.

           On October 6, 2008, following a period of tension

between Ray and Sandra, they each signed a handwritten document

stating that if they separated, Sandra would receive seventy-five

percent of the profit from the sale of the property, the contents

of their home (excluding Ray’s tools and clothes), and all of

their vehicles.    A few weeks later, on October 24, 2008, the

parties signed a typewritten Memorandum of Understanding (MOU)

stating that upon separation or divorce, Sandra would receive

seventy-five percent of the proceeds from the sale of the

property, the contents of their home (excluding Ray’s tools and

building equipment), all of their vehicles, and $100,000 from Ray

in lieu of alimony and court proceedings.

           After a period of continued tension between Ray and

Sandra, Ray agreed to move out of the couple’s home on August 15,

2009.   On September 1, 2009, Ray signed a quitclaim deed

transferring his entire interest in the property to Sandra for

ten dollars and “other valuable consideration.”

           In January 2010, Sandra filed a complaint for divorce

in the Family Court of the First Circuit.         Notwithstanding the

quitclaim deed and two agreements, the family court awarded Ray

and Sandra each a one-half interest in the property, which it

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valued at $1.6 million at the time of divorce.2          The family court

concluded that it would be unconscionable to enforce the

quitclaim deed and that all three agreements were unenforceable

because Ray acted under duress and coercion when he signed them.

           Sandra appealed, and the Intermediate Court of Appeals

vacated in part the family court’s divorce decree and its

findings of fact and conclusions of law, and remanded for further

proceedings.   The ICA concluded that both the quitclaim deed and

MOU were enforceable.     The ICA explained that the quitclaim deed

was not unconscionable and that Ray executed both the deed and

the MOU voluntarily.     The ICA also concluded that the deed

superseded the MOU only to the extent it modified the disposition

of the Kahalakua property, and therefore remanded to the family

court to determine whether Ray owed Sandra an additional $100,000

pursuant to the MOU.

           In his application, Ray presents two questions:

(1) whether the ICA erred in vacating the family court’s decision

that the postmarital agreements and the quitclaim deed were

unenforceable because they were unconscionable; and (2) whether

the ICA erred in vacating the family court’s decision that the

postmarital agreements and quitclaim deed were unenforceable

because they were entered into involuntarily.

           As a threshold matter, we hold that the quitclaim deed



     2
           The Honorable Paul T. Murakami presided.

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does not constitute a separation agreement that alters the

parties’ rights to an equitable division of their marital

partnership property, such that Sandra should receive the entire

value of the Kahalakua property.        The ICA therefore erred in

concluding that the quitclaim deed was an enforceable separation

agreement.

            Because the quitclaim deed did not affect the

disposition of the couple’s marital partnership property upon

divorce, we must also consider whether the MOU is enforceable.

We hold that the MOU is enforceable because it is not

unconscionable and was entered into voluntarily.            Because we

conclude that the MOU is enforceable, we do not consider the

October 6, 2008 handwritten agreement.          The ICA’s judgment is

therefore vacated, the family court’s divorce decree and findings

of fact and conclusions of law are vacated in part, and we remand

this case to the family court for further proceedings consistent

with this opinion.

                              I.   Background

            The following factual background is taken from the

record on appeal and the family court’s findings of fact and

conclusions of law.3


      3
            On appeal, Sandra challenged only two of the family court’s
factual findings. Specifically, Sandra challenged finding of fact 48 to the
extent it stated that “Sandra told Ray he should leave,” and finding of fact
53, which stated the following: “After discussions with Sandra, Ray thought
the Quitclaim deed would protect the home from potential lawsuits, but title
would be transferred back to joint ownership when thing[s] returned to
                                                                (continued...)

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A.     Factual background

             Ray and Sandra married in 1981 in New Jersey.           At the

time of the marriage, Sandra owned two properties in Monmouth

County, New Jersey.       Sandra sold the first property in 1982 for

$89,000.     The second property was a vacant lot which Sandra had

purchased for $28,750 (Wall Township property).             At the time of

the marriage, Ray owned one property which he sold shortly

thereafter for $40,000.        According to Ray, after he and Sandra

married, they built a home on the Wall Township property.

             Ray and Sandra are both well educated.          Ray has a

bachelor of science and a master’s degree in electrical

engineering.     Sandra has a bachelor of science in biological

science and a master’s degree in education and student personal

services.     While living in New Jersey, Ray worked as a contractor

for various companies.        Before retiring in 2002, Sandra worked as

a high school guidance counselor for more than twenty-five years.

             While Ray and Sandra were living in New Jersey, they

regularly vacationed in Hawai#i.         In 2002, Ray and Sandra

purchased the Kahalakua property, which was a vacant lot on O#ahu

on Kahalakua Street, for $280,000.          Ray and Sandra took out a

home-equity loan on the Wall Township property to pay for the



      3
        (...continued)
normal.” All of the family court’s remaining findings of fact are binding on
this court. See Bremer v. Weeks, 104 Hawai#i 43, 63, 85 P.3d 150, 170 (2004)
(“[F]indings of fact that are not challenged on appeal are binding on the
appellate court.” (quotation marks, ellipsis, and citation omitted)).

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Kahalakua property.     Ray and Sandra held title to the Kahalakua

property as tenants by the entirety.

            In 2003, Ray and Sandra decided to move to Hawai#i so

that Sandra could care for her elderly parents.           The couple sold

the Wall Township property for $545,000.

            Soon after arriving in Hawai#i, Ray and Sandra hired a

contractor to build a home on the Kahalakua property for

$595,000.    The couple used the proceeds from the sale of the Wall

Township property, as well as approximately $350,000 Ray had

inherited and money from their joint savings, to help pay for the

Kahalakua property and the construction of the home on the

property.

            Construction on the property began in 2004 and the home

was supposed to be completed within two years.           There were

problems with the construction process from the start.            The

builder showed up only sporadically and eventually walked off the

project without completing the work.        In 2006, the builder placed

a mechanic’s lien on the property, even though there was a list

of approximately 150 incomplete items.

            The homeowner’s association then sought to assess Ray

and Sandra a penalty totaling $350,000 because the house had not

been completed within the prescribed two-year period.            The couple

sued the homeowner’s association, and the parties agreed on a

reduced penalty of $5,000 with an additional two-year period to

complete construction of the home.

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           In order to complete the home, Ray and Sandra paid a

total of $60,000 to six additional subcontractors, but the home

was still not completed.      About six months after the original

builder had walked off the job, Ray and Sandra were able to move

into the house.

           During this time, Sandra was working as a part-time

secretary, and Ray was working for Northrop Grumman.            Sandra

coordinated the work of most of the subcontractors, and Ray

worked on the house when he was home from work.           For example, Ray

finished the kitchen.

           Tension arose between Ray and Sandra after Ray began

going outside their home without clothes on.          Ray’s behavior

resulted in complaints from neighbors and a visit to the couple’s

home by the police.     Sandra also suspected that Ray was having an

affair because he had lost weight, was working out, and was well

tanned.   Sandra also observed Ray giving other women what she

described as “lecherous looks.”

           Ray stopped working in July 2008, after his contract

with Northrop Grumman had expired and he was unable to find

additional work.    At the time of his retirement, Ray was earning

between $115,000 and $120,000 per year.         Following his

retirement, Ray continued to work on the house.

           After months of arguing and still questioning Ray’s

fidelity, Sandra told Ray that if he was serious about being

committed to the marriage, that they should “write something up.”

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On October 6, 2008, Ray wrote an agreement, as dictated by

Sandra, that provided the following:
           If Sandy and Ray Balogh are to separate from each
           other their assets are to be divided as such:

           I Donald Raymond Balogh agree that my wife Sandra C.
           Balogh will receive:

           1. ¾ or 75% of the profits of the sale of [] Kahalakua
           St.

           2. The entire contents of the house excluding Ray’s
           tools and clothes

           3. All vehicles at time of separation[.]

           Both Ray and Sandra signed the agreement.             Sandra was

not thinking about divorce when she asked Ray to sign this

agreement; instead, Sandra thought that Ray was committing to

saving their marriage.      Ray acknowledged that he had agreed to

the terms of the agreement, and Sandra testified that she did not

threaten Ray to get him to sign the agreement.           According to Ray,

he was not in his right mind when he signed the agreement, but

nevertheless signed the agreement to show his good faith and

commitment to save the marriage.        Ray thought that if he did not

sign the agreement, his and Sandra’s relationship would further

degrade and he would be thrown out of the house.

           Sandra, however, remained suspicious of Ray’s fidelity.

Just over two weeks after they had signed the first agreement,

Ray and Sandra executed the MOU in front of a notary.               The MOU

provided the following:
           This Agreement between Donald Balogh and Sandra Balogh
           will be implemented if they are to separate and/or
           divorce from each other.


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           Their assets will be divided as follows:

           1. In regards to the contents of the house at []
           Kahalakua St., Honolulu, HI []: Donald Balogh (Ray)
           will receive his tools and building equipment. Sandra
           Balogh (Sandy) will receive the entire contents of the
           house, furniture, appliances, electronics
           (televisions, etc.)

           2. In regards to vehicles: Sandy will receive the
           vehicles.

           3. In regards to the proceeds of the house, due to a
           sale: Sandy will receive 75% of the sale proceeds and
           Ray will receive 25% of the proceeds.

           4. In regards to compensation: Ray agrees to pay
           $100,000.00 to Sandy in lieu of Alimony and court
           proceedings.

           Again, both Ray and Sandra signed the agreement.

Sandra testified that the MOU was intended as an inducement for

Ray to work on the marriage because if Ray was “going to sign

something like that, which gives [Sandra] quite a bit, then [Ray]

must [have been] serious about working on the marriage.”             Sandra

testified that she added the additional term requiring Ray to pay

her $100,000 to obtain further commitment from Ray to their

marriage and to “see how serious he was.”         Ray acknowledged that

he agreed to the terms of the MOU, and Sandra testified that she

did not threaten Ray before he signed the MOU.           Because Ray

signed the MOU, Sandra thought that Ray would tell her the truth

and stop his inappropriate behavior.        Ray signed the MOU in a

“desperate attempt to hold the marriage together.”

           In November 2008, an attorney representing the

homeowner’s association mailed a letter to Ray and Sandra.             The

letter stated that a number of individuals had complained about


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Ray’s behavior.    In January 2009, a second letter was mailed to

Ray and Sandra.    This letter detailed another incident involving

Ray and demanded that Ray cease and desist.          Ray hid both of

these letters from Sandra.      Ray’s behavior, however, did not

stop.

           In June 2009, Ray and Sandra were walking on the

Makapu#u Trail when police stopped Ray to question him about

exposing his buttocks.      The following month, Ray and Sandra were

at Ala Moana shopping center when security officers again stopped

the couple to question Ray about exposing his buttocks.            Ray was

issued a trespass warning, banning him from the shopping center

for one year.    Following both incidents, Ray told Sandra that he

had not exposed himself.

           Ray sent a written request to Ala Moana, asking that

the one-year ban be lifted, but on August 10, 2009, that request

was denied.   Upon receiving the letter denying Ray’s request,

Sandra wanted to contact a lawyer because she believed Ray that

he had done nothing wrong.      Ray then admitted to exposing his

buttocks at Ala Moana.      Sandra was shocked.      Ray agreed to move

out of the couple’s home the following day.

           Ray testified that by that point, the marriage had

“melted down,” the anxiety and friction were constant, and there

was “just so much tension in the house,” that he “decided that

it’d be best that [he] leave.”       Before Ray left, Sandra asked him

to call their relatives to tell them what was happening.             While

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Ray was speaking to his sister on the telephone, Sandra heard Ray

mention the possibility of divorce and she got upset.              Sandra

then told Ray, “I need security, Ray, I need security, I need you

to sign the house over to me.”         Ray agreed to do so, and Sandra

said that she would make the necessary arrangements.              Ray moved

out of the couple’s home on August 15, 2009.

             On September 1, 2009, Ray and Sandra met to execute a

quitclaim deed, in which Ray granted his interest in the

Kahalakua property to Sandra in exchange for ten dollars and

“other valuable consideration.”         According to Ray, he thought the

deed was only a “temporary agreement,” that would protect the

home from potential lawsuits, and that title would eventually be

transferred back to joint ownership.          Ray testified that he

signed the deed in an effort to save the marriage and that he

signed the document “in a panic.”

             On September 24, 2009, Ray and Sandra met with Dr.

Renee Robinson for marriage counseling.           Dr. Robinson referred

Ray to a specialist on obsessive-compulsive behavior.              Ray saw

the specialist three times, who recommended ways for Ray to deal

with his behavior.

B.     Family court proceedings

             Ray and Sandra attempted to execute an uncontested

divorce, which failed because Ray refused to sign the divorce

documents.     On January 14, 2010, Sandra filed a Complaint for

Divorce.     Following a trial, the family court rendered an oral

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decision.    As relevant here, the family court stated the

following:
            The Court considered what it thought to be the
            appropriate motivations and reasonings of the parties.
            What was clear to the Court is that at the time the
            documents were done, both were focused –- both husband
            and wife were focused on I think, in their own words,
            saving the marriage. That was the primary motivation
            for the documents. At some point those actions --
            what may have been intent became actions. A quitclaim
            was signed. But it is unclear as to what the
            motivations of both parties were, and that’s why,
            again, you folks went to trial. Based on the relevant
            case law, the Court finds that this would be an
            inequitable provision to hold both parties to.

                  Court’s going to rule as follows:

                  With regard to the marital property, which is
            the Kahala home, the Court is going to basically award
            Mr. Balogh a one half interest. That one half
            interest may be satisfied either by way of a sale of
            the property, in which case the net proceeds are cut
            in half, or Mrs. Balogh may buy out Mr. Balogh.

                  The Court’s going to set the buy-out price --
            I’m sorry, the value of the property at 1.6 based on
            the relevant testimony. Again, the Court comes to
            that number based on what was presented in court. I
            know there’s conflicting testimony, but that’s the
            price the Court’s going to -- or the –- the value the
            Court will set. Again, if it comes to an actual sale,
            it may be more, it may be less. For purposes of a
            buy-out, the Court will set it at 1.6. So basically
            it’s 800,000, if it’s a buy-out.

            On December 2, 2011, the family court issued the

divorce decree.     The decree provided the following:
            a. The Court finds that it is inequitable to enforce
            the agreements entered into by the parties on October
            6, 2008, October 24, 2008, and September 1, 2009, as
            to the real property located at [] Kahalakua Street,
            Honolulu, Hawaii (marital residence).

            b. The gross value of said property is $1,600,000.00.

            c. Said property shall be sold in a commercially
            reasonable manner. From the proceeds of the sale, the
            realtor commissions, escrow fees, and costs of sale
            shall be paid. Thereafter, the net proceeds shall be
            divided equally between the parties.

            d. Either party may buy-out the other party.


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           e. The foregoing provisions shall be enforced upon the
           expiration of 90 days from the effective date of this
           Decree.

           f. The parties [are] to cooperate on resolving the
           mechanics lien.

           On February 15, 2012, the family court issued its

findings of fact and conclusions of law.         As relevant here, the

family court made the following conclusions of law:
           K. To enforce the parties’ agreement or the Quitclaim
           Deed is to award Sandra with a marital asset worth
           $1,600,000. In doing so, Sandra would be receiving
           more than 85% of the marital estate.

           L. In addition, Ray contributed $350,000 of his
           inheritance and $40,000 of his premarital asset[s] to
           the marital partnership, for which he is not receiving
           a credit. Sandra contributed $89,000 of her
           premarital asset[s] to the marital partnership for
           which she is not receiving a credit.

           M. If Ray received credit for his $390,000 capital
           contribution, Ray’s share of the retirement/securities
           accounts would just be sufficient to repay him his
           capital contribution. He would in essence receive 0%
           of the marital estate if Sandra is awarded the Kahala
           Kua property.

           N. After thirty years of marriage, the Court concludes
           it would be unconscionable to award Sandra the Kahala
           Kua property by enforcing the Quitclaim Deed. Kuroda
           v. Kuroda, 87 Haw. 419, 958 P.2d 541 (Haw. App. 1998);
           and Lewis v. Lewis, 69 Haw. 497, 748 P.2d 1362 (1988).

           O. Further, after considering their testimony, the
           Court finds that the parties were motivated to save
           the marriage when they signed the various agreements.
           When Ray signed the Quitclaim Deed, Ray was protecting
           their marital home from potential lawsuits and had no
           intent of permanently transferring his interest to
           Sandra. Neither party intended their marriage to
           result in a divorce and to divide their marital estate
           accordingly.

           P. The Court finds Ray was suffering from extreme
           distress as a result of the ongoing construction of
           their Kahala Kua residence, the contractor’s walk-off
           and lawsuit in 2006, the penalties assessed by the
           [homeowner’s association] and parties’ lawsuit against
           [the homeowner’s association], his high security
           clearance job which also required twenty-four
           hour/seven days on call one week a month, the
           continuing issues with the subcontractors, and his
           uncontrollable obsessive behavior that escalated from


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             his backyard nudity to public display, his shame and
             embarrassment, his fear of being discovered, and the
             constant argument with Sandra about his inappropriate
             behavior. At the same time, Sandra suspected him of
             infidelity which further exacerbated the marital
             relationship and escalated the tension and the
             friction in their home. Ray was thus under duress
             and coercion when he signed the agreements. Prell v.
             Silverstein, 114 Haw. 286, 162 P.3d 2 (Haw. App.
             2007).

             Q. Therefore, the Court concludes that the parties’
             agreements on October 6, 2008, October 24,2008, and
             September 1, 2009, are not enforceable.

             R. Accordingly, each party shall be awarded
             fifty-percent (50%) interest in their Kahala Kua
             property. The parties may sell said property and
             divide the net sales proceeds equally or Sandra may
             buyout Ray’s interest for the amount of Eight Hundred
             Thousand and No/l00 Dollars ($800,000.00). Said
             provision shall take place within 90 days of the
             effective date of the Divorce Decree.

C.     ICA proceedings and proceedings in this court

             On December 20, 2011, Sandra timely filed a notice of

appeal.    In her amended opening brief — and as relevant here —

Sandra argued that the agreements and the quitclaim deed were not

unconscionable, Ray was not under duress when he signed each

agreement and the deed, and in signing the three documents, Ray

did not intend to protect the Kahalakua property from the claims

of third parties.      Sandra argued, therefore, that the agreements

and the deed were enforceable.

             The ICA agreed with Sandra that the family court erred

with regard to the agreements’ enforceability.             The ICA first

concluded that the quitclaim deed was not unconscionable.               The

ICA noted that “nothing in the record indicates unfair surprise,”

and that “this is not an exceptional case where the agreement was

so one-sided that it is unconscionable even without a showing of

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unfair surprise.”    The ICA explained that “[t]he fact that

[Ray’s] (perhaps shortsighted) decision to quitclaim his interest

to [Sandra] ultimately turned out to be a bad one from his

perspective is irrelevant and does not warrant invalidating the

quitclaim deed.”

            The ICA further concluded that Ray “freely and

voluntarily entered into the agreements.”         Specifically, the ICA

noted that both Ray and Sandra were well educated, and that

“there is nothing in the record showing that [Sandra] used

threats or any other improper methods of persuasion.”            The ICA

also rejected Ray’s argument that he never intended to convey his

interest in the Kahalakua property.        The ICA explained that Ray’s

statements regarding intent “were inadmissible for purposes of

contradicting the deed’s clear language, under which he granted

his interest in the [Kahalakua property] to [Sandra] as tenant in

severalty.”    The ICA further explained that because the deed was

unambiguous, extrinsic evidence of the facts and circumstances

surrounding the execution of the deed was not “competent to

contradict, defeat, modify or otherwise vary the meaning or legal

effect of the deed.”     (Internal quotation marks and citation

omitted).    The ICA concluded, therefore, that the “Family Court

erred in failing to classify the [Kahalakua property] as

[Sandra’s] separate property pursuant to the plain language of

the deed.”

            In a concurring opinion, Judge Foley stated that

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unconscionability encompasses two basic principles:               one-

sidedness and unfair surprise, and indicated that both must be

present in order for the doctrine to apply.            Specifically, Judge

Foley noted that, even assuming the quitclaim deed was one-sided,

“nothing in the record indicates unfair surprise.”

             The ICA entered its judgment on appeal on October 3,

2013, and, on December 2, 2013, Ray timely filed an application

for writ of certiorari.        In his application for writ of

certiorari, Ray presents two questions:
             1.    Whether the ICA erred in vacating the Family
                   Court’s decision that postmarital agreements
                   were unenforceable because they were
                   unconscionable.

             2.    Whether the ICA erred in vacating the Family
                   Court’s decision that postmarital agreements
                   were unenforceable because they were
                   involuntary.


                         II.   Standards of Review

A.     Construction of contract

             “[T]he construction and legal effect to be given a

contract is a question of law freely reviewable by an appellate

court.”    Brown v. KFC Nat’l Mgmt. Co., 82 Hawai#i 226, 239, 921

P.2d 146, 159 (1996).       Unconscionability is a question of law

this court reviews de novo.         See, e.g., HRS § 490:2-302(1)

(2008).    “Whether particular circumstances are sufficient to

constitute . . . duress is a question of law, although the

existence of those circumstances is a question of fact.”                 Gruver

v. Midas Int’l Corp., 925 F.2d 280, 282 (9th Cir. 1991) (citing

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Oregon law on economic duress).

B.      Findings of Fact and Conclusions of Law

              The family court’s findings of fact are reviewed under

the clearly erroneous standard.          Kakinami v. Kakinami, 127

Hawai#i 126, 136, 276 P.3d 695, 706 (2012) (citation omitted).                 A

finding of fact is clearly erroneous when “(1) the record lacks

substantial evidence to support the finding, or (2) despite

substantial evidence in support of the finding, the appellate

court is nonetheless left with a definite and firm conviction

that a mistake has been made.”          Id.   “‘Substantial evidence’ is

credible evidence which is of sufficient quality and probative

value to enable a person of reasonable caution to support a

conclusion.”      Id.

              The family court’s conclusions of law are reviewed de

novo.     Id.

                               III.   Discussion

              At the outset, we must decide whether the quitclaim

deed in fact constituted a separation agreement that altered the

parties’ rights to an equitable division of the couple’s marital

partnership property, such that Sandra must receive the entire

value of the Kahalakua property pursuant to the deed.               For the

reasons set forth below, the answer to this threshold question is

no.     Accordingly, the ICA erred in concluding that the quitclaim

deed was an enforceable separation agreement.



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             Because the quitclaim deed did not affect the

disposition of the parties’ property upon divorce, we must also

decide whether the MOU is enforceable.           For the reasons set forth

below, the MOU is enforceable because it is not unconscionable

and Ray entered into the agreement voluntarily.             Because we

conclude that the MOU is enforceable, we do not consider the

enforceability of the October 6, 2008 handwritten agreement.

A.     The quitclaim deed was not an agreement to alter the
       division of Ray and Sandra’s marital partnership property

             “In Hawai#i, there is no fixed rule for determining the

amount of property to be awarded each spouse in a divorce action

other than as set forth HRS § 580–47.”           Kakinami, 127 Hawai#i at

136-37, 276 P.3d at 706-06 (brackets and internal quotation marks

omitted) (quoting Tougas v. Tougas, 76 Hawai#i 19, 26, 868 P.2d

437, 444 (1994)).      Pursuant to HRS § 580-47(a), the family court

has broad discretion to divide the estate of divorcing parties in

a “just and equitable” manner.         HRS § 580-47(a) (Supp. 2011); see

also Kakinami, 127 Hawai#i at 137, 276 P.3d at 706.             This court

has adopted the “partnership model of marriage” to guide the

family court in its exercise of this discretion.             Kakinami, 127

Hawai#i at 137, 276 P.3d at 706 (citing Gussin v. Gussin, 73 Haw.

470, 486, 836 P.2d 484, 492 (1992)).          Pursuant to the partnership

model, “the family court can utilize the following five

categories of net market values (NMVs) as guidance in divorce

cases”:


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             Category 1. The [NMV], plus or minus, of all property
             separately owned by one spouse on the date of marriage
             (DOM) but excluding the NMV attributable to property
             that is subsequently legally gifted by the owner to
             the other spouse, to both spouses, or to a third
             party.

             Category 2. The increase in the NMV of all property
             whose NMV on the DOM is included in category 1 and
             that the owner separately owns continuously from the
             DOM to the DOCOEPOT [date of the conclusion of the
             evidentiary part of the trial.]

             Category 3. The date-of-acquisition NMV, plus or
             minus, of property separately acquired by gift or
             inheritance during the marriage but excluding the NMV
             attributable to property that is subsequently legally
             gifted by the owner to the other spouse, to both
             spouses, or to a third party.

             Category 4. The increase in the NMV of all property
             whose NMV on the date of acquisition during the
             marriage is included in category 3 and that the owner
             separately owns continuously from the date of
             acquisition to the DOCOEPOT.

             Category 5. The difference between the NMVs, plus or
             minus, of all property owned by one or both of the
             spouses on the DOCOEPOT minus the NMVs, plus or minus,
             includable in categories 1, 2, 3, and 4.

Id. at 137-38, 276 P.3d at 706-07 (brackets in original).

             These NMVs generally determine the division of marital

partnership property upon divorce.          However, spouses may

expressly contract for a different division of marital

partnership property, and the family court must enforce all valid

and enforceable agreements with regard to marital property

division.4    See HRS § 572-22 (2006) (“All contracts made between



      4
             Spouses may contract regarding marital property rights in
premarital, postmarital, or settlement agreements. Premarital or prenuptial
agreements are entered into before marriage. See, e.g., Prell v. Silverstein,
114 Hawai#i 286, 287-88, 162 P.3d 2, 3-4 (App. 2007). Postmarital or
postnuptial agreements are entered into after marriage. See, e.g., Chen v.
Hoeflinger, 127 Hawai#i 346, 352, 279 P.3d 11, 17 (App. 2012). Settlement
agreements are entered into after separation or in anticipation of immediate
separation. See, e.g., Bienvenue v. Bienvenue, 102 Hawai#i 59, 61, 72 P.3d
531, 533 (App. 2003).

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spouses . . . not otherwise invalid because of any other law,

shall be valid.”); Epp v. Epp, 80 Hawai#i 79, 87, 905 P.2d 54, 62

(App. 1995).     In addition, spouses may exclude certain assets

from the marital partnership entirely, thereby segregating those

assets as marital separate property.          Marital separate property

includes:
             a. All property that was excluded from the marital
             partnership by an agreement in conformity with the
             Hawai#i Uniform Premarital Agreement Act (HUPAA), HRS
             chapter 572D (Supp. 1992);

             b. All property that was excluded from the marital
             partnership by a valid contract; and

             c. All property that (1) was acquired by the
             spouse-owner during the marriage by gift or
             inheritance, (2) was expressly classified by the
             donee/heir-spouse-owner as his or her separate
             property, and (3) after acquisition, was maintained by
             itself and/or sources other than one or both of the
             spouses and funded by sources other than marital
             partnership income or property.

Kakinami, 127 Hawai#i at 138-39, 276 P.3d at 707-08 (brackets and

ellipsis omitted) (emphasis added).

             In the instant case, the quitclaim deed does not

constitute either an express agreement to deviate from the

partnership model of marital property division, or a valid

contract converting the Kahalakua property into marital separate

property.5    Although the deed stated that Ray “remise[d],

release[d] and forever quitclaim[ed]” his interest in the

property to Sandra, nothing on the face of the deed indicates


      5
            The other two means of converting marital partnership property
into marital separate property — an agreement pursuant to the HUPAA or the
special treatment of a gift or inheritance — are not implicated in the instant
case.

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that it was intended to alter Ray’s right to an equitable

division of the property upon divorce, or to convert the property

to marital separate property.        Thus, although the language of the

deed effectuated a change in who held title to the property, it

was not, standing alone, sufficient to remove the property from

the marital partnership.       See Reithbrock v. Lange, 128 Hawai#i 1,

16 n.9, 282 P.3d 543, 558 n.9 (2012) (noting that awarding

property solely on the basis of which spouse holds title would

conflict with the partnership model of property division).

            Accordingly, this court must look to the circumstances

surrounding the quitclaim deed to determine whether it was

intended to alter the disposition of the Kahalakua property.6

According to Ray, he signed the deed to protect the property from

lawsuits, and he and Sandra intended to eventually “restore the

title to joint ownership.”       However, according to Sandra, Ray

signed the quitclaim deed because she told him, “I need

security.”    Sandra further testified that, pursuant to the deed,

she “gave up” the $100,000 due to her under the MOU in exchange

for receiving the entire Kahalakua property.

            The family court credited Ray’s explanation for the



      6
            Thus, the ICA erred in concluding that “[Ray’s] statements
regarding intent were inadmissible for purposes of contradicting the deed’s
clear language.” Although the deed was unambiguous with respect to the
transfer of title, it was ambiguous with respect to whether it was intended to
alter the division of the property upon the parties’ divorce. Accordingly,
the ICA was incorrect in stating that “[t]he Family Court erred in failing to
classify the Property as [Sandra’s] separate property pursuant to the plain
language of the deed.”

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quitclaim deed, finding that, “[a]fter discussions with Sandra,

Ray thought the Quitclaim deed would protect the home from

potential lawsuits, but title would be transferred back to joint

ownership when things returned to normal.”           Although Sandra

challenged this finding on appeal, it is supported by substantial

evidence in the form of Ray’s testimony.           In re Doe, 95 Hawai#i

183, 190, 20 P.3d 616, 623 (2001) (“[I]t is well-settled that an

appellate court 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.” (internal quotation marks and

brackets omitted)).      Accordingly, the family court’s finding is

not clearly erroneous, and it is therefore binding on this court.

            Based on the family court’s finding, the parties did

not intend the quitclaim deed to alter the disposition of their

marital partnership property upon their divorce.            Accordingly,

the quitclaim deed did not bar the family court from equitably

dividing the Kahalakua property.         Thus, this court need not

determine whether the quitclaim deed was unconscionable or agreed

to under duress.7


      7
            In general, a deed is not a contract. See, e.g., Brown v. Brown,
501 So. 2d 24, 26 n.1 (Fla. Dist. Ct. App. 1986) (“As distinguished from
covenants of warranty, et cetera, which are often in a deed but which are not
essential to its character, a deed is not a contract. A deed does something
(conveys land) as distinguished from promising to do something.”).
Nevertheless, to the extent the parties here treat the quitclaim deed as a
contract, it is well settled that “there must be a meeting of the minds on all
essential elements or terms in order to create a binding contract.” Moss v.
Am. Int’l Adjustment Co., 86 Hawai#i 59, 63, 947 P.2d 371, 375 (1997)
(internal quotations marks and citation omitted). Because Ray thought that
the deed would protect the property from lawsuits and that title would
                                                                 (continued...)

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             We next must determine whether either of the parties’

other two agreements are enforceable.           In her appeal to the ICA,

Sandra described the October 6, 2008 agreement, the MOU, and the

quitclaim deed as a “series of agreements for their divorce,” and

maintained that each of the agreements was enforceable.              However,

Sandra also argued that, even if the family court’s findings and

conclusions regarding the quitclaim deed are affirmed, the

October 6, 2008 agreement and subsequent MOU should nonetheless

be enforced.     Consistent with this view, Sandra continues to

argue in this court that all three agreements are enforceable.

Accordingly, we next consider whether the MOU is enforceable.

B.     In general, a postmarital agreement is unconscionable if it
       is impermissibly one-sided and is the result of unfair
       surprise

             As stated, the family court must enforce all valid and

enforceable postmarital and separation agreements.             See Epp, 80

Hawai#i at 87, 905 P.2d at 62.         A postmarital or separation

agreement is enforceable if the agreement is “not unconscionable

and has been voluntarily entered into by the parties with the

knowledge of the financial situation of the [other] spouse.”                  See

Lewis v. Lewis, 69 Haw. 497, 501, 748 P.2d 1362, 1366 (1988); see

also Chen v. Hoeflinger, 127 Hawai#i 346, 356-57, 279 P.3d 11,




       7
       (...continued)
eventually be restored to joint ownership, and Sandra thought that Ray signed
the deed in order to provide her with “security,” there plainly was no meeting
of the minds with respect to the effect of the deed.

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21-22 (App. 2012).8     Ray argues that the ICA applied the wrong

legal standard for determining unconscionability.            For the

reasons set forth below, Ray’s argument is without merit.

             Unconscionability encompasses two principles: one-

sidedness and unfair surprise.        Lewis, 69 Haw. at 502, 748 P.2d

1366.     One-sidedness (i.e., substantive unconscionability) means

that the agreement “leaves a post-divorce economic situation that

is unjustly disproportionate.”        Id.   Unfair surprise (i.e.,

procedural unconscionability) means that “one party did not have

full and adequate knowledge of the other party’s financial

condition when the [marital] agreement was executed.”             Id.   A

contract that is merely “inequitable” is not unenforceable.9                Id.

at 500, 748 P.2d at 1366.       The unconscionability of an agreement

regarding the division of property is evaluated at the time the



      8
            Some jurisdictions have concluded that postmarital agreements are
subject to greater scrutiny than premarital agreements because of the nature
of the marital relationship. See, e.g., Bedrick v. Bedrick, 17 A.3d 17, 27
(Conn. 2011) (“This leads us to conclude that postnuptial agreements require
stricter scrutiny than prenuptial agreements.”). The dissent adopts such a
view, arguing that “transactions between spouses should be subject to the
general rules governing fiduciary relationships,” and that “an agreement that
[is] not in accordance with fiduciary standards should be presumptively
involuntary and unenforceable.” Dissent at 28-29. Neither the family court
nor the ICA concluded that a heightened standard should be applied in
evaluating postmarital agreements, and neither party has argued that this
court should apply such a standard. We therefore do not consider whether
postmarital agreements should be subject to greater scrutiny than premarital
agreements.

      9
            Although the family court stated in the divorce decree that it
would be “inequitable to enforce the agreements entered into by the parties,”
the family court’s findings of fact and conclusions of law indicate that the
family court concluded that “it would be unconscionable to award Sandra the
Kahala Kua property by enforcing the Quitclaim Deed,” not merely
“inequitable.” The family court therefore applied the correct legal standard
in determining whether the deed was unconscionable.

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agreement was executed.      See id. at 507, 748 P.2d at 1369.

           Generally, “[a] determination of unconscionability

. . . requires a showing that the contract was both procedurally

and substantively unconscionable when made,” but there may be

“exceptional cases where a provision of the contract is so

outrageous as to warrant holding it unenforceable on the ground

of substantive unconscionability alone.”         Gillman v. Chase

Manhattan Bank, N.A., 534 N.E.2d 824, 828-29 (N.Y. 1988); see

also Adler v. Fred Lind Manor, 103 P.3d 773, 782 (Wash. 2004) (en

banc) (“individual contractual provisions may be so one-sided and

harsh as to render them substantively unconscionable despite the

fact that the circumstances surrounding the parties’ agreement to

the contract do not support a finding of procedural

unconscionability”); Maxwell v. Fidelity Fin. Servs., Inc., 907

P.2d 51, 59 (Ariz. 1995) (concluding under state statute that “a

claim of unconscionability can be established with a showing of

substantive unconscionability alone”).         Although some courts have

concluded that “[t]o be unenforceable, a contract must be both

procedurally and substantively unconscionable,” see, e.g., Marin

Storage & Trucking, Inc. v. Benco Contracting and Eng’g, Inc.,

107 Cal. App. 4th 1042, 1052 (Cal. Ct. App. 2001), most

authorities have recognized that, in at least some cases,

substantive unconscionability, without more, can render an

agreement unenforceable, see Restatement (Second) of Contracts

§ 208 cmt. c (1981) (“Theoretically it is possible for a contract

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to be oppressive taken as a whole, even though there is no

weakness in the bargaining process and no single term which is in

itself unconscionable.”); 7 Joseph M. Perillo, Corbin on

Contracts § 29.1 at 377 (revised ed. 2002) (“Some cases hold that

the defense of unconscionability cannot be invoked unless the

contract or clause is both procedurally and substantively

unconscionable, but there is no basis in the text of [Uniform

Commercial Code §2-302] for such a conclusion.” (footnotes

omitted)).    Indeed, the courts of this state have recognized

that, under certain circumstances, an impermissibly one-sided

agreement may be unconscionable even if there is no unfair

surprise.

            For example, in Kuroda v. Kuroda, 87 Hawai#i 419, 428

(App. 1998), the court held that a postnuptial agreement was

unconscionable where it awarded the wife all personal and real

property held in common, implicitly allowed the wife to keep her

personal property including her accounts, required the husband to

pay the wife one half of his net income from every source until

either spouse passed away, and required the husband to pay all

attorney’s fees and costs associated with the separation and

divorce.    The Kuroda court reached this conclusion without

considering whether there was unfair surprise.           Thus, although

under Hawai#i law “two basic principles are encompassed within

the concept of unconscionability, one-sidedness and unfair

surprise,” Lewis, 69 Hawai#i at 502, 748 P.2d at 1366, in certain

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circumstances, one-sidedness alone can render an agreement

unconscionable, see Kuroda, 87 Hawai#i at 428, 958 P.2d at 550.

           Here, the ICA applied the correct legal standard in its

memorandum opinion.     Specifically, the majority stated that

“there need not be both one-sidedness and unfair surprise in

reaching a determination that a marital agreement is

unconscionable.”    The ICA concluded, however, that the quitclaim

deed was not “so outrageously oppressive as to be unconscionable

in the absence of unfair surprise.”

           Ray nevertheless argues that instead of applying the

well settled law, “the ICA held that a marital agreement is only

enforceable if there is both one-sidedness and unfair surprise.”

Ray’s description of the ICA’s analysis does not accurately

characterize the approach taken by that court.           The ICA did not

hold that one-sidedness, without more, would never be enough to

find an agreement unconscionable.         Instead, the ICA concluded

that the deed was not so “one-sided that it is unconscionable

even without a showing of unfair surprise.”          Thus, the ICA

plainly applied the correct legal standard in considering the

validity of the deed.

           Ray also appears to argue that this legal standard is

overly narrow.    According to Ray, “a marital agreement is

unenforceable if it is one-sided,” and unconscionability in the

context of marital agreements does not require a showing of

unfair surprise.    Put another way, Ray appears to argue that a

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marital agreement need not be exceptionally one-sided in order to

be unconscionable.      Ray further argues that requiring a showing

of unfair surprise is absurd in the context of postmarital

agreements because spouses “are in an obvious[ly] better position

to be knowledgeable about their spouse’s financial condition.”

            Ray’s arguments are without merit.         First, Ray does not

cite to any cases invalidating a postmarital agreement solely on

the basis of that agreement being somewhat one-sided.10

Furthermore, parties may have legitimate reasons for entering

into a somewhat one-sided postmarital agreement, and may do so

knowingly and voluntarily.       Permitting the family court to

invalidate such agreements without requiring a showing of

extraordinary one-sidedness would frustrate the purpose of HRS

§ 572-22, which permits spouses to enter into enforceable

contracts with each other.

            Accordingly, the ICA applied the correct legal standard

in evaluating unconscionability.



      10
            Ray cited two cases involving unconscionability in divorce
actions. The first, In re Marriage of Thomas, 199 S.W.3d 847, 860 (Mo. App.
2006), does not support Ray’s argument because the court there noted that
parties are bound to the provisions of a pre-nuptial agreement “only if the
agreement was conscionable and fairly made,” i.e., both substantively and
procedurally conscionable. Id. at 852 (emphasis added). Additionally, the
court emphasized a similar standard of one-sidedness as that articulated by
the ICA: “An agreement is unconscionable when the inequality is so strong,
gross, and manifest that it must be impossible to state it to one with common
sense without producing an exclamation at the inequality of it.” Id.
(internal quotation marks and citation omitted). Similarly, in the second
case, In re Marriage of Manzo, 659 P.2d 669, 671 (Colo. 1983), the court
considered both whether the agreement was procured through “overreaching,
fraud, concealment of assets, or sharp dealing,” and whether it was
substantively “fair, just and reasonable.” Id. at 675.

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C.     The MOU is not unconscionable

               Ray argues that the marital agreements were one-sided

and therefore unconscionable.11        In her response to this court,

Sandra agrees that it would be one-sided to award the Kahalakua

property to her in its entirety pursuant to the deed.              Sandra

argues, however, that the MOU is not “unjustly disproportionate”

because Ray would receive 25% of the proceeds of the sale of the

property, in addition to any cash accounts and retirement

benefits awarded by the family court.           (Citing Chen, 127 Hawai#i

at 357, 279 P.3d at 22).

               Although the family court did not address whether the

MOU is unconscionable, this court may nonetheless reach the issue

because unconscionability is a question of law, reviewable de

novo.       See, e.g., HRS § 490:2-302(1).      For the reasons set forth

below, the MOU is not unconscionable with respect to the division

of the Kahalakua property, nor is it unconscionable to the extent

it required Ray to pay Sandra $100,000 in lieu of alimony.12                The

MOU is therefore an enforceable marital agreement with regard to

these clauses.

               Again, the terms of the MOU were as follows:



       11
            Nothing in the record suggests that Ray was surprised by the terms
of the MOU, and Ray did not argue otherwise in his answering brief or
application. The only issue, therefore, is whether the MOU was so
impermissibly one-sided that it is unconscionable.
      12
            Although the MOU also addressed Ray’s tools and building
equipment, the contents of the house, and the couple’s vehicles, the
disposition of those items is not being disputed by the parties.

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                This Agreement between Donald Balogh and Sandra Balogh
                will be implemented if they are to separate and/or
                divorce from each other.

                Their assets will be divided as follows:

                . . . .

                3. In regards to the proceeds of the house, due to a
                sale: Sandy will receive 75% of the sale proceeds and
                Ray will receive 25% of the proceeds.

                4. In regards to compensation: Ray agrees to pay
                $100,000.00 to Sandy in lieu of Alimony and court
                proceedings.

                Even if the allocation of the entire Kahalakua property

to Sandra pursuant to the quitclaim deed could be characterized

as so one-sided as to have been unconscionable, the 75%/25% split

set forth in the MOU and the requirement that Ray pay $100,000 in

lieu of alimony are not.           First, in addition to his share of the

Kahalakua property, Ray was entitled to an equitable share of the

couple’s other major assets, which totaled $760,000.13                   Second,

although Ray will receive a lesser share of the proceeds under

the MOU than he would under the family court’s 50%/50% division

of the property, such imbalance was the express purpose of the

MOU.        As the family court found, “Sandra believed Ray would tell

her the truth and stop his inappropriate behavior by signing the

MOU.        Ray signed it in his desperate attempt to hold the marriage

together.”        It is unlikely that the MOU would have been construed

as demonstrative of Ray’s commitment to the marriage had it



       13
            The record does not indicate the exact values of Ray’s and
Sandra’s respective shares of their other assets. Based on the family court’s
calculations, however, it appears that Ray and Sandra each received about half
of the other assets.

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provided for the same division of property Ray was likely to

receive in the family court under an equitable division upon

divorce.        Moreover, as noted above, “unless the agreement rises

to the level of unconscionability, a merely ‘inequitable’

contract is not unenforceable under contract law.”             Lewis, 69

Haw. at 500, 748 P.2d at 1365-66.           Accordingly, the 75%/25%

division of the Kahalakua property and the $100,000 payment set

forth in the MOU are not unconscionable.

D.     The MOU was entered into voluntarily

                Ray also argues that the ICA erred in vacating the

family court’s decision because he did not enter into each of the

marital agreements voluntarily.         For the reasons set forth below,

Ray executed the MOU voluntarily.14

                “Involuntariness is shown by evidence of ‘duress,

coercion, undue influence, or any other circumstance indicating

lack of free will or voluntariness.’”           Chen, 127 Hawai#i at 357,

279 P.3d at 22 (quoting Prell, 114 Hawai#i at 298, 162 P.3d at

14).        Here, the family court concluded that Ray was “under duress

and coercion when he signed the agreements” because of the

ongoing construction of the Kahalakua home, the contractor

walking off and the resulting mechanic’s lien, the penalties

assessed by the homeowner’s association and the resulting


       14
            For the reasons stated above, this court need not address whether
the quitclaim deed was voluntarily executed. Moreover, because we conclude
that the MOU is enforceable, we do not consider the voluntariness of the
October 6, 2008 agreement.

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litigation, the demands of Ray’s job, the continuing issues with

subcontractors, and Ray’s uncontrollable obsessive behavior.                The

family court’s factual findings, however, are not sufficient to

support a conclusion that Ray signed the agreements under either

duress or coercion.15

            Duress is defined as “a threat of harm made to compel a

person to do something against his or her will or judgment;

[especially], a wrongful threat made by one person to compel a

manifestation of seeming assent by another person to a

transaction without real volition.”         Black’s Law Dictionary 614

(10th ed. 2014).     It is well established that an agreement is

voidable due to duress when “a party’s manifestation of assent is

induced by an improper threat by the other party that leaves the

victim no reasonable alternative.”         Standard Fin. Co., Ltd. v.

Ellis, 3 Haw. App. 614, 621, 657 P.2d 1056, 1061 (1983)

(quotation marks and citation omitted); see also Restatement

(Second) of Contracts § 175(1) (“If a party’s manifestation of

assent is induced by an improper threat by the other party that

leaves the victim no reasonable alternative, the contract is

voidable by the victim.”).16


      15
            It appears that the family court used the terms duress and
coercion interchangeably, i.e., there is nothing in the Findings of Fact and
Conclusions of Law to indicate that the court viewed them as legally distinct
terms. We address each doctrine separately.
      16
            Section 175(2) of the Restatement concerns improper threats made
by a third party to induce the recipient to enter into a contract. However,
Ray does not contend, and the record does not suggest, that any third party
threatened Ray to enter into the agreements.

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           A threat of divorce does not constitute an improper

threat since the party making it has the legal right to seek a

divorce.   See Kam Chin Chun Ming v. Kam Hee Ho, 45 Haw. 521, 558,

371 P.2d 379, 402 (1962) (it is not duress for a party to

“threaten to do what they had a legal right to do”); see also

Rubenstein v. Sela, 672 P.2d 492, 494 (Ariz. Ct. App. 1983)

(concluding that husband’s threat to leave the marriage did not

constitute duress because he had a right to leave the marriage);

Autin v. Autin, 617 So.2d 229, 233 (La. Ct. App. 1993) (holding

that “a threat of doing a lawful act or a threat of exercising a

right does not constitute duress”).

           However, a threat of exposure of publicly embarrassing

information can be the basis of a claim of duress.           See

Restatement (Second) of Contracts § 176(2) (“A threat is improper

if the resulting exchange is not on fair terms, and . . . the

threatened act would harm the recipient and would not

significantly benefit the party making the threat”); id. cmt. f

(“A typical example is a threat to make public embarrassing

information concerning the recipient unless he makes a proposed

contract.”).

           The record here does not support a finding that Ray’s

assent to the MOU was induced by an improper threat by Sandra and

that he had no reasonable alternative to signing that agreement.

There was conflicting testimony regarding whether Sandra had

threatened Ray in order to get him to sign any of the documents.

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Sandra repeatedly testified that she did not threaten Ray in

connection with the two agreements and the deed.                Ray testified

at one point that Sandra had told him that if he did not sign,

she would tell family members about his behavior and that she

would “go public” with that information.17

                In its findings of fact and conclusions of law,

however, the trial court did not find that Sandra had threatened

Ray.        Rather, it simply identified a number of factors that

contributed to Ray’s “extreme distress,” ranging from problems

with the construction to “his uncontrollable obsessive behavior

that escalated from his backyard nudity to public display, his

shame and embarrassment, his fear of being discovered, and the

constant argument with Sandra about his inappropriate behavior.”

Moreover, Ray failed to establish that he had no reasonable

alternative to signing the MOU.             Ray could have declined to sign

the MOU but still attempted to resolve his issues with Sandra in



       17
            At another point Ray appeared to deny that Sandra had threatened
him. However, this testimony was subject to an objection that was sustained
by the court:

                      Q. So was it –- was there a -– threat of divorce
                or exposure to others--
                      A. No.
                      Q. –or --
                             MR. HIOKI: Objection, leading, Your Honor.
                             THE COURT: Getting there. Sustained.
                Rephrase the question.

(Emphasis added).
            Sandra argues that because the answer was not stricken from the
record, it is in evidence. Even assuming arguendo that Ray’s response can be
considered, the fact remains that there was conflicting testimony on this
issue, and the family court implicitly resolved those conflicts in Sandra’s
favor when it declined to find that she had threatened Ray.

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an effort to save the marriage.       In sum, because the family court

did not make a finding that Sandra had improperly threatened Ray,

and since Ray had a reasonable alternative to signing the MOU,

the record does not support the family court’s conclusion that

Ray signed that agreement under duress.

           The record also does not support a conclusion that the

MOU was the result of coercion.       Coercion is defined as

“[c]ompulsion of a free agent by physical, moral, or economic

force or threat of physical force.”        Black’s Law Dictionary 315

(10th ed. 2014).    “Coercion sufficient to avoid a contract need

not . . . consist of physical force or threats of it.            Social or

economic pressure illegally or immorally applied may be

sufficient.”   Billouris v. Billouris, 852 N.E.2d 687, 693 (Mass.

App. Ct. 2006).    For all the reasons set forth above, the record

does not support a conclusion that Sandra employed physical,

moral, or economic force to obtain Ray’s assent.

           Although the family court found Ray was under stress

due to a variety of factors, those factors do not establish

either duress or coercion.      Moreover, Ray cannot rely on those

factors to establish that he lacked mental capacity when he

signed the agreements, since he had specifically agreed prior to

trial that he was “not claiming lack of mental capacity as to any

issue herein.”    Ray therefore executed the MOU voluntarily.

           In sum, the record does not support the family court’s

conclusion that Ray’s assent to the MOU was the product of duress

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and coercion.    The dissent does not dispute that analysis, but

rather suggests that the family court did not intend to rely

specifically on those doctrines, as opposed to other potential

grounds for finding that Ray’s assent was involuntary.            See

Dissent at 10-24.    Respectfully, the family court’s Conclusion of

Law P quite specifically refers to “duress and coercion” as the

basis for invalidating the agreement, and the court’s

accompanying citation to the Prell case implies that its reliance

on those two doctrines was intentional.

           In any event, we respectfully disagree with the

dissent’s contention that Ray did not enter into the MOU

voluntarily because his “mental state was extremely vulnerable”,

he was unduly influenced, and “other circumstances” demonstrate

involuntariness.    Dissent at 15, 22-24, 17-22.         First, to the

extent the dissent suggests that Ray’s “mental state” deprived

him of the capacity to contract, Ray explicitly agreed prior to

trial that he was not claiming a lack of mental capacity.

           Second, the record does not establish that Ray was

unduly influenced.     Undue influence is “[t]he improper use of

power or trust in a way that deprives a person of free will and

substitute’s another’s objective.”        Black’s Law Dictionary 1760

(10th ed. 2014); Cvitanovich-Dubie v. Dubie, 125 Hawai#i 128,

160, 254 P.3d 439, 471 (2011).       As a threshold matter, the family

court did not find that Sandra exerted undue influence over Ray,

and Ray does not argue otherwise in this court.           Moreover, the

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record does not support a conclusion that Sandra either attempted

to impose or actually imposed improper influence on Ray.

           Finally, there are no “other circumstances” indicating

a lack of free will on Ray’s part.        The dissent asserts that Ray

was motivated by saving the marriage and that Ray believed he had

no other choice but to sign the agreements.          Dissent at 21.     The

facts of this case, however, do not support a conclusion that Ray

executed the MOU involuntarily.       As noted above, Ray was well

educated, with a bachelor’s and master’s degree in electrical

engineering, and he held a high-level security clearance.             There

is no suggestion in the record that Ray was unaware of what he

was doing, nor do the facts otherwise support a conclusion that

the MOU was the result of a lack of free will.           In fact, Ray

expressly testified that he agreed to all of the terms of the

MOU.   While Ray was under stress from a number of sources, that

stress is not sufficient to establish that the MOU was not

entered into voluntarily.

           The dissent also asserts that the MOU is voidable for a

lack of consideration.      Dissent at 29.     The family court,

however, made no findings or conclusions relating to the adequacy

of consideration, and Ray has made no argument in this regard to

this court.   Thus we do not consider the issue.

           We therefore vacate the family court’s conclusions of

law N, P (in part), Q, and R.       We vacate conclusion of law N

because the family court treated the quitclaim deed as a

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separation agreement.     We vacate conclusion of law P to the

extent the family court concluded that Ray signed the agreements

under duress and coercion.      We vacate conclusion of law Q because

the family court concluded that the parties’ agreements were

unenforceable.    Finally, we vacate conclusion of law R because it

awarded Ray and Sandra each a fifty-percent interest in the

Kahalakua property.

                             IV.   Conclusion

           For the foregoing reasons, the ICA’s judgment is

vacated, the family court’s divorce decree is vacated, and the

family court’s findings of fact and conclusions of law are

affirmed in part and vacated in part.         The case is remanded to

the family court for further proceedings consistent with this

opinion.

Rebecca A. Copeland                /s/ Mark E. Recktenwald
for petitioner
                                   /s/ Paula A. Nakayama
Stephen T. Hioki
for respondent                     /s/ Sabrina S. McKenna

                                   /s/ Derrick H.M. Chan




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