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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-29927
                                                              27-JUN-2013
                                                              10:42 AM




             IN THE SUPREME COURT OF THE STATE OF HAWAI#I
                                  ---o0o---


         EMILY THOMAS-YUKIMURA, Respondent/Plaintiff-Appellee,

                                      vs.

            DAVID YUKIMURA, Petitioner/Defendant-Appellant.


                                  SCWC-29927

            CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                  (ICA NO. 29927; FC-D NO. 07-1-0098)

                                June 27, 2013

  RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.
                    OPINION OF THE COURT BY ACOBA, J.

             We hold that the Family Court of the Fifth Circuit (the

court)1 was foreclosed from modifying the Decree Granting Divorce

and Child Custody as to the apportioned liability for capital

gains taxes between Petitioner/Defendant-Appellant David Yukimura

(Petitioner) and Respondent/Plaintiff-Appellee Emily Thomas-

Yukimura (Respondent), because the circumstances herein did not


     1
             The Honorable Calvin K. Murashige presided.
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permit such modification under Hawai#i Family Court Rules (HFCR)

Rule 52(b), Rule 59, or Rule 60.2         3



            The Intermediate Court of Appeals (ICA)4 affirmed the

court’s order modifying the decree.           In light of the court’s

aforesaid error, we vacate its June 4, 2009 “Order on

[Respondent’s] and [Petitioner’s] Motions for Post-Decree Relief”

(Order on Post-Decree Relief) and the February 12, 2013 judgment
of the ICA affirming the said Order on Post-Decree Relief.              We

remand the case to the court with instructions to reinstate the

September 26, 2008 Decree Granting Divorce and Awarding Child

Custody (Decree).

                                     I.

                                     A.

            This case involves divorce proceedings between

Petitioner and Respondent.5       At issue during the proceedings was

the disposition of property located at “Parcel 55, off Papalina

Road, Kalaheo, Kauai.”      (Kalaheo Property)       In Petitioner’s
closing argument, submitted by memorandum, he stated that the


      2
            The texts of these Rules are set forth infra.

      3
            In his Application for Writ of Certiorari Petitioner seeks review
of the February 12, 2013 judgment of the ICA filed pursuant to its January 22,
2013 Summary Disposition Order (SDO), affirming the “Order on Plaintiff’s and
Defendant’s Motions for Post-Decree Relief” entered by the court on June 4,
2009.

      4
            The ICA’s SDO was filed by Presiding Judge Daniel R. Foley, and
Associate Judges Alexa D.M. Fujise and Lawrence M. Reifurth.

      5
            Petitioner and Respondent were married for five years. Their
marriage began in July, 2002. They were separated on April 24, 2007.

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parties had come to an agreement regarding the Kalaheo Property:
            The parties agree that the Kalaheo Property [] will be sold.
            The agreed upon appraised value of the Property at the Date
            of Marriage is $135,000. As further agreed in Judge’s
            Chambers on April 15, 2008, Plaintiff is entitled to one-
            half the appreciation of the property after factoring in the
            sales price of the Property minus the balance of the loan on
            the Property, minus the capital gains tax, minus the costs
            of sale (including escrow fees, realtor commissions, taxes)
            minus the net value of the property at the Date of Marriage
            ($135,000 minus loan balance at time of marriage).
            Defendant avers that he should also be credited for one-half
            of the debt and one-half of the taxes paid on the Property
            from the Date of Separation . . . until the date the
            Property is actually sold.

(Emphases added).

            Respondent’s closing argument did not contest

Petitioner’s characterization of the parties’ agreement regarding

the Kalaheo Property.      Instead, Respondent stated that “all

issues for the divorce have been agreed to” except for (1) travel

time, (2) Christmas vacation, (3) child care expenses, (4)

custody over one of the children’s bank account, (5) tax

liability for the parties for 2006 and prior, (6) division of

personal property, and (7) division of certificates and debts.

            In Respondent’s proposed divorce decree, Respondent

included terms for the division of the Kalaheo Property that were

ultimately adopted in the final divorce decree.6           Respondent’s


      6
            The capital gains tax was mentioned in the record for the first
time in Respondent’s Exhibit entitled “[Respondent’s] Proposed Divorce
Decree,” filed on May 2, 2008. [RA 1 at 105] The proposed divorce decree
stated that before dividing the proceeds of the sale, the proceeds would be
used to, inter alia, “pay all fees, costs, and capital gains tax from the
sales transaction of the Kalaheo Property.” [RA 1 at 157] (Emphasis added.)
            Identical language was also included in Petitioner’s Exhibit
entitled “[Petitioner’s] Proposed Divorce Decree,” also filed on May 2, 2008.
[RA 2 at 2, 114]
                                                                (continued...)

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attorney prepared the Decree.        Those terms were substantially

similar to the understanding expressed in Petitioner’s closing

argument.

            The court entered the Decree on September 26, 2008.             In

relevant part, the Decree provided that the Kalaheo Property

would be sold, and the proceeds divided as proposed by the

parties:
            9.    Real Property: The [Kalaheo Property] . . . was
            acquired by [Petitioner] prior to the parties’ marriage, and
            is thus [Petitioner’s] separate property.
                  The parties agree to sell the Kalaheo Property for
            $235,000.00.
                  The sale proceeds of the Kalaheo Property shall be
            divided as follows:
            a. Pay off the loan at Kauai Community Federal Credit Union
            [] and/or an real property tax debt for the Kalaheo Property
            as of the date of separation ($18,482.87);
            b. Pay all fees, costs, and capital gains tax from the sales
            transaction at Kalaheo Property, including realtor
            commissions, if any;
            c. Pay [Petitioner] $96,755.89 ($135,000, the appraised
            value of the Kalaheo Property at the time of the marriage,
            July 2002 minus $38,244.11, the amount of the debt on the
            property at the time of marriage).
            d. Pay [Petitioner] one-half of the costs of the Appraisal
            of the Kalaheo Property performed by Jose Diogo on August
            27, 2007, and paid for in full by [Petitioner].
            e. Balance to be divided equally between the parties.

(First emphasis in original.) (Remaining emphases added.)

                                     B.

            Both parties filed post-decree motions.          On December 8,

2008, Respondent filed a Motion for Post Decree Relief.             In her


      6
       (...continued)
            Identical language was again included in a Proposed Divorce Decree
attached as an exhibit to Respondent’s final argument on May 19, 2008. [RA 2
at 168, 189] The terms regarding the Kalaheo Property set forth in this final
Proposed Decree were identical to those ultimately adopted by the court,
except for the deletion of the phrase “minus ½ of the debt [on the Kauai
Community Federal Credit Union loan for the property] paid between the date of
separation and the date of sale.” [RA 2 at 189, 261]

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motion, Respondent asked the court “for an Order enforcing the

Decree.”   The Motion was filed “pursuant to Rules 4, 7, and 70 of

the Hawai#i Family Court Rules [and] HRS § 580-56.”            In a

declaration attached to the Motion, Respondent’s counsel averred

that Petitioner had failed to pay Respondent as required by the

Decree.    In relevant part, Respondent claimed that “[b]ased upon

the calculations set forth in the subsections of provision 9 in
the Decree, and the $230,000.00 sale price of the Kalaheo lot,

[Petitioner] owes [Respondent] $57,146.62.”          Respondent’s counsel

also maintained that Petitioner had not complied with the terms

of the Decree regarding the disposition of personal property.              On

December 16, 2008, Respondent also filed a Motion for

Modification of Child Support.

           On January 23, 2009, Petitioner filed a Motion for

Relief From Decree Granting Divorce and Awarding Child Custody.

This motion was filed “pursuant to Rules 77 and 608 of the

[HFCR].”   In the attached memorandum, Petitioner contended that


     7
           HFCR Rule 7 provides in relevant part as follows:

           (b)   Motions and Other Papers.

           (1) An application to the court for an order shall be by motion,
           . . . shall be made in writing, shall state with particularity the
           grounds therefor, and shall set forth the relief or order sought.

           (5) Any motion seeking an order for or modification of financial
           or monetary relief of any kind, . . . shall have attached,
           typewritten . . . income and expense and asset and debt statements
           on the forms provided by the court or equivalent forms, executed
           by the movant and duly notarized or executed under penalty of
           perjury . . . .

     8
           See infra for relevant text of HRCF Rule 60.

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Petitioner and Respondent had agreed to use specific language in

paragraphs nine and ten of the Decree.         However, Respondent had

modified or omitted relevant language in the final Decree

submitted to the court.     Regarding paragraph nine, Petitioner

maintained that Respondent had omitted from section D the

language “‘pay [Petitioner] the principal paid by him on the loan

from the date of separation to the date of sale.’”
           On January 26, 2009, Petitioner filed a Motion in

Opposition to Respondent’s Motion for Post-Decree Relief.

Petitioner argued, inter alia, that if the request in his Motion

for Relief from Decree for modification of the Decree was

granted, then the amount he owed Respondent pursuant to paragraph

nine of the Decree should be reduced.        He also argued that,

pursuant to paragraph nine, he had subtracted the amount paid in

capital gains tax from the amount he ultimately paid Petitioner.

           A hearing on the above motions was apparently held on

January 29, 2009.    The record does not contain a transcript of
the hearing.

           On May 14, 2009, the court denied Petitioner’s Motion

for Relief From Decree Granting Divorce and Awarding Child

Custody.   The court did not issue findings of fact and

conclusions of law or otherwise explain its denial of the motion.

           On May 20, 2009, Petitioner’s counsel withdrew as

counsel of record.    Proceeding pro se, Petitioner filed a motion

requesting the court to reconsider its order denying Petitioner’s

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Motion for Relief From Decree Granting Divorce and Awarding Child

Custody.

           On June 4, 2009, the court issued its Order on Post

Decree Relief.     In relevant part, the said Order resulted in

Respondent paying less than half of the capital gains taxes on

the income from the sale of the Kalaheo Property.             Paragraph

three stated:
           3. Plaintiff’s share of the equity in the Kalaheo Property
           shall be adjusted to reflect that her share of the capital
           gains tax paid as a result of the sale of the property shall
           be based on the appreciation in the value of the property
           from date of marriage of the parties to the date of sale of
           the property and not from the initial date of purchase of
           the property.

(Emphasis added.)

           On July 20, 2009 the court issued the following

relevant Findings of Fact (findings) relating to its Order on

Post-Decree Relief:
           3. Pursuant to the Decree Granting Divorce and Awarding
           Child Custody filed herein on September 26, 2008, the
           Kalaheo Property was order sold and the proceeds divided
           equally between the parties, with [Petitioner] being
           credited in the amount of $96,755.89, which amount reflected
           the net value of the Kalaheo Property at the date of
           marriage

           4.   The Kalaheo Property was subsequently sold;

           5. As the owner of the Kalaheo Property, [Petitioner] is
           required to pay a capital gains tax based upon the
           appreciation of said property from date of purchase to date
           of sale;

           6. [Respondent] and [Petitioner] were to share equally in
           the appreciation of the Kalaheo Property from the date of
           marriage to the date of sale, after the costs of sale,
           payment of the existing mortgage on the property and capital
           gains tax from the sale were paid;

           7. Because [Petitioner] is entitled to a credit for the net
           value of the Kalaheo Property at the date of marriage and
           because the property had appreciated in value from the date


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          of purchase to the date of marriage, it would not be
          equitable to require that [Respondent] share equally in the
          capital gains tax which taxed the appreciation of the
          property from the date of purchase (and not the date of
          marriage) to the date of the sale of said property;

          8. The Decree Granting Divorce and Awarding Child Custody
          did not specifically detail how much of the capital gains
          tax incurred by the sale of the Kalaheo Property each party
          should bear.
          . . .

(Emphases added).    The court also issued the following

Conclusions of Law (conclusions):
          1. Where an order or decree is ambiguous, it is within the
          court’s discretion to clarify the ambiguity;

          2. That portion of the Decree Granting Divorce and Awarding
          Child Custody filed herein on September 26, 2008 which
          addressed the division of the proceeds of the sale of the
          Kalaheo Property was ambiguous as to each party’s share of
          the capital gains tax incurred on said property;

          3. Based upon the fact that [Petitioner] was to receive
          credit for the net value of the Kalaheo Property on the date
          of marriage, then it would be only equitable that
          [Petitioner] alone be responsible for the tax on any capital
          gains incurred on said property from the date of purchase to
          the date of marriage and that both parties be responsible
          for the tax on any capital gains incurred on said property
          from the date of marriage to the date of sale.

(Emphases added.)    The court then issued an “Order” which

repeated verbatim paragraph three of its June 4, 2009 Order.

                                    II.

                                    A.

          Petitioner, continuing pro se, appealed to the ICA.

Petitioner argued, inter alia, (1) that contrary to conclusion 2,

the Divorce Decree was not ambiguous, (2) Respondent did not file

a written motion to modify the divorce decree, but instead

“brought the issue of Plaintiff’s ‘pro rata’ share of the capital

gains tax in a hearing for another matter on January 29, 2009,”

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and (3) because the issue was raised for the first time at the

hearing, Petitioner was unable to prepare and therefore was

denied due process.      Respondent did not file an answering brief.9

                                     B.

            The ICA declined to address Petitioner’s substantive

arguments.    Instead, the ICA noted that the transcript of the

January 29, 2009 hearing was not made a part of the record, and
without the transcript, the court was “unable to consider the

merits of [Petitioner’s] contention[s].”          Thomas-Yukimura v.

Yukimura, No. 29927, 2013 WL 238833 at *1.          Therefore, the ICA

“le[ft] undisturbed the [ c]ourt’s decision and order.”10             Id.

                                    III.

            The relevant question presented in Petitioner’s




      9
             Respondent’s failure to file an Answering Brief did not require
the ICA to decide in favor of Petitioner. See Omerod v. Heirs of Kaheananui,
116 Hawai#i 239, 268, 172 P.2d 983, 1012 (2007) (“Reversal is not
automatically mandated by the appellee's failure to respond [in the Answering
Brief] to an alleged error argued by the appellant.”); see also Costa v. Sunn,
5 Haw. App. 419, 430, 697 P.2d 43, 51 (1985) (“[A]ppellee's failure to file an
answering brief does not entitle appellant to the relief sought from the
appellate court, even though the court may accept appellant's statement of
facts as correct.”). However, this court has said that “when an appellee
fails to respond, an appellant is required only to make a prima face showing
of error to obtain the relief sought.” Omerod, 116 Hawai#i at 269, 172 P.3d
at 1013.

      10
            Petitioner filed a motion for reconsideration before the ICA on
Feburary 1, 2013. Petitioner argued that, (1) the documents provided to the
ICA were sufficient to demonstrate “that the court procedurally erred in
modifying the Decree to adjust [Respondent’s] share of capital gains tax, (2)
Petitioner should be allowed to supplement the record, and (3) Petitioner was
unable to file the hearing transcript because the courts on Kaua#i only
provide video transcripts, and Petitioner had to contact someone on Maui to
obtain a written transcript, which created an “unfair time disadvantage” in
submitting the appeal by the deadline. [Motion for Reconsideration at 1-2]
On Feburary 11, 2013, the ICA denied Petitioner’s motion for reconsideration.

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Application is whether the ICA gravely erred in affirming the

court’s order modifying the divorce decree.11

            In his Application, Petitioner reiterates the arguments

raised in his Opening Brief and Motion for Reconsideration.

Construing Petitioner’s arguments liberally, see Dupree v. Higa,

127 Hawai#i 297, 315, 219 P.2d 1084, 1102 (2009) (“Pleadings

prepared by pro se litigants should be interpreted liberally”),
Petitioner contends in his Application (1) that the court did not

have the power to amend the final judgment in these

circumstances, (2) he was denied due process because he did not

have an opportunity to respond to the arguments raised by

Respondent at the hearing, and (3) he should be allowed to

supplement the record to provide the court with the written

transcript of the hearing, if necessary.

                                     IV.

            As to Petitioner’s first question, this court in Wong

v. Wong, 79 Hawai#i 26, 897 P.2d 953 (1995), addressed the power
of the trial courts to review their own judgments.             79 Hawai#i at

29, 897 P.2d at 956.      It was explained that “[i]n the absence of

rules or terms of court, a court may act to alter its own

judgment within ‘proper limitations of time.’”           Id.    However,

this court noted that the circuit courts “are now governed by the


      11
            Petitioner also contended that the ICA gravely erred in denying
his motion for reconsideration, whereas Petitioner had previously obtained a
DVD transcript of the relevant hearing, and the ICA would not allow Petitioner
to supplement the Record on Appeal with a written transcript.

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Hawai#i Rules of Civil Procedure [(HRCP)],” which “set forth the

circumstances under and the times within which the circuit courts

may take actions to review and set aside their own judgments.”

This court specifically cited HRCP Rules 50, 52(b), 59, and 60 as

governing the review of final judgments.

            In the instant case, the family court is governed by

the HFCR.    Analogous to the HRCP in Wong, HFCR 52(b), 59, and 60
govern the circumstances under which the family courts may “take

actions to review and set aside their own judgments.”             79 Hawai#i

at 29, 897 P.2d at 956.       Wong also cited HRCP Rule 50; however,

there is no analogous Rule 50 in the HFCR.          Therefore, the court

in this case could not review its final judgment unless its

actions conformed with HFCR Rules 52(b),12 59,13 or 60.14

      12
            HFCR Rule 52(b) provides as follows:

            Upon motion of a party made not later than 10 days after
            entry of judgment the court may amend its findings or make
            additional findings and may amend the judgment accordingly.
            The motion may be made with a motion for a new trial
            pursuant to Rule 59. When findings of fact are made by the
            court, the question of sufficiency of the evidence to
            support the findings may thereafter be raised whether or not
            the party raising the question has made in the family court
            an objection to such findings or has made a motion to amend
            them or a motion for judgment.

(Emphasis added.)

      13
            HFCR Rule 59 provides in relevant part as follows:

            (a) Grounds. A new trial may be granted to all or any of the
            parties and on all or part of the issues for good cause
            shown. On a motion for a new trial, the court may open the
            judgment if one has been entered, take additional testimony,
            amend findings of fact and conclusions of law, or make new
            findings and conclusions, and direct the entry of a new
            judgment.
            (b) Time for motion. A motion for a new trial shall be filed
                                                                (continued...)

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      13
           (...continued)
                not later than 10 days after the entry of the judgment
                unless otherwise provided by statute.
                . . .
                (d) On initiative of court. Not later than 10 days after
                entry of judgment the court of its own initiative may order
                a new trial, for any reason for which it might have granted
                a new trial on motion of a party. After giving the parties
                notice and an opportunity to be heard on the matter, the
                court may grant a motion for a new trial, timely served, for
                a reason not stated in the motion. In either case, the court
                shall specify in the order the grounds therefor.
                (e) Motion to reconsider, alter or amend a judgment or
                order. Except as otherwise provided by HRS section 571-54
                regarding motions for reconsideration in proceedings based
                upon HRS sections 571-11(1), (2), or (6), a motion to
                reconsider, alter or amend a judgment or order is not
                required but may be filed no later than 10 days after entry
                of the judgment or order and shall be a non-hearing motion,
                except that the court in its discretion may set any matter
                for hearing. Responsive pleadings to a motion for
                reconsideration shall be filed no later than 10 days after
                filing of the motion to reconsider, alter or amend the
                judgment or order.

(Emphases added.)


      14
               HRCP Rule 60 provides in relevant part as follows:

               (a) Clerical mistakes. Clerical mistakes in judgments,
               orders or other parts of the record and errors therein
               arising from oversight or omission may be corrected by the
               court at any time of its own initiative or on the motion of
               any party and after such notice, if any, as the court
               orders. During the pendency of an appeal, such mistakes may
               be so corrected before the appeal is docketed, and
               thereafter while the appeal is pending may be so corrected
               with leave of the appellate court.
               (b) 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:
               (1) mistake, inadvertence, surprise, or excusable neglect;
               (2) newly discovered evidence which by due diligence could
               not have been discovered in time to move for a new trial
               under Rule 59(b); (3) fraud (whether heretofore denominated
               intrinsic or extrinsic), misrepresentation, or other
               misconduct of an adverse party; (4) the judgment is void;
               (5) the judgment has been satisfied, released, or
               discharged, or a prior judgment upon which it is based has
               been reversed or otherwise vacated, or it is no longer
               equitable that the judgment should have prospective
               application; or (6) any other reason justifying relief from
                                                                    (continued...)

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                                     A.

            As Petitioner argues, under HFCR Rule 59(e), a motion

to reconsider, alter, or amend a judgment or order must be filed

“no later than 10 days after entry of the judgment or order.”

HFCR Rule 59(e).15     HFCR Rule 6(d) further provides that the

court “may not extend the time for taking any action under . . .

Rules 59(b), (d), and (e).”       Additionally, it appears that a
court may not act sua sponte to extend the 10 day time limit.

Cf. Wong, 79 Hawai#i at 31, 897 P.2d at 958 (“Nor could the

circuit court sua sponte vacate its final judgment to allow

untimely service of an HRCP 59 motion, for doing so would allow

precisely what is prohibited by HRCP 6(b).”); Escritor v. Maui

County Council, Ltd., 2 Haw. App. 200, 202, 629 P.2d 1146, 1148

(1981) (“Rule 6(a) expressly provides that the circuit court has

no power to extend the time for taking any action under Rule

59(e).”).




      14
       (...continued)
            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. . . .

(Emphases added.)

      15
            HFCR Rule 59(e) provides an exception for cases governed by HRS §
571-11(1), (2), or (6). None of the relevant subsections of HRS § 571-11 are
at issue in this case. HRS § 571-11(1) addresses alleged crimes committed by
persons under 18 years of age. HRS § 571-11(2) addresses children who are
neglected, fail to attend school, or violate curfew. HRS § 571-11(6)
addresses judicial consent to the “marriage, employment, or enlistment of a
child.” In contrast, the instant case involves a divorce decree.

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          In the instant case, the court entered its Decree on

September 26, 2008.     No further motions regarding the Decree were

filed until December 8, 2008, when Respondent filed her Motion

for Post-Decree relief.     Thus, it is evident that no actions were

taken to modify the Decree until well after the 10 day time limit

provided by HFCR Rule 59(e) had passed.         Hence, the court could

not act to modify its judgment under Rule 59(e).
          For the same reasons, the court could not act to amend

its judgment under HFCR Rule 52(b).        Rule 52(b) also requires the

party to file a motion within 10 days, and HFCR Rule 6(d) also

precludes the court from extending the time to file a Rule 52(b)

motion.   Therefore, HFCR Rule 52(b) was also inapplicable.

                                    B.

                                    1.

          However, as explained by Wong, Rule 60 also grants the

court power to modify a final judgment.         To reiterate, HFCR Rule

60(a) provides that “[c]lerical mistakes in judgments, orders, or
other parts of the record and errors therein arising from

oversight or omission may be corrected by the court at any time

o[n] its own initiative or on the motion of any party and after

such notice, if any, as the court orders.”         (Emphasis added.)       In

the instant case, the court may have relied on Rule 60(a) to

amend the judgment.     Conclusion one stated that “where an order

of the court is ambiguous, it is within the court’s discretion to



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correct the ambiguity.”       In other words, the court’s conclusion

suggested that the court was simply “correcting” a mistake in the

original judgment.

            However, Rule 60(a) was not available to the court in

the instant case.     Relief is not appropriate under Rule 60(a)

“when the change is substantive in nature.”           Wright and Miller,

Federal Practice and Procedure § 2854.16         “[A] motion under Rule
60(a) . . . cannot be used to make [the judgment or order] say

something other than what was originally pronounced.”             Id.

(emphasis added); see also Davis v. Wholesale Motors, 86 Hawai#i

405, 416, 949 P.2d 1026, 1037 (App. 1997) (allowing modification

of a judgment under HRCP Rule 60 because “the amended judgment

did not make any substantive changes to the original judgment.”).

Consequently, “Rule 60(a) is not a vehicle for relitigating

matters that already have been litigated and decided, nor to

change what has been deliberately done.”          Id. (emphasis added);

see also Donnelly v. Donnelly, 98 Hawai#i 280, 286, 47 P.3d 747,
753 (App. 2002) (“HFCR Rule 60(a) applies ‘to situations in which

a judgment clearly misrepresents what the court meant to




      16
            Rule 60 of the Federal Rules of Civil Procedure (FRCP) is
essentially identical to HFCR Rule 60. Therefore, authorities interpreting
the Federal Rules are “highly persuasive.” Kawamata Farms, Inc. v. United
Agri Products, 86 Hawai#i 214, 252, 948 P,2d 1055, 1093 (1997) (“Where we have
patterned a rule of procedure after an equivalent rule within the FRCP,
interpretations of the rule by the federal courts are deemed to be highly
persuasive in the reasoning of this court.”) (internal quotation marks
omitted).

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state.’”) (quoting 2 James Wm. Moore, Moore’s Federal Practice §

60.11[1][c] (3d ed.)).

             In the instant case, the court’s amendment of the final

judgment was “substantive in nature.”           First, contrary to

conclusion two, the original divorce decree was not “ambiguous as

to each parties’ share of the capital gains tax.”              [See RA 3 at

138]    Instead, the Decree provided that the parties would pay any
capital gains tax equally.         To reiterate, the Decree stated that

the proceeds of the sale of the Kalaheo Property would be used to

(1) pay a loan at Kauai Community, (2) pay all of the fees,

costs, and capital gains tax from the sales transaction of the

Kalaheo Property, (3) pay Petitioner the appraised value of the

property at the time of marriage, and (4) pay one-half of the

costs of the appraisal of the property.            The balance of the

proceeds was to be divided between the parties.              [RA 2 at 261]

             Balance is defined as, inter alia, the “remainder” or

“an amount in excess, especially on the credit side of an
account.”      Merriam Webster’s Collegiate Dictionary at 87 (10th

ed. 1993).      By providing that the “remainder” of the proceeds

would be divided by the parties, the Decree plainly indicated

that the first four requirements were to be satisfied before the

proceeds of the sale were divided.           This included, inter alia,

paying all of the capital gains tax from selling the property.




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The original decree unambiguously provided that the proceeds of

the sale would be used to pay the capital gains tax before the

proceeds were divided by the parties.        In other words, the

parties would be equally responsible for paying the capital gains

tax, because that tax would have to be paid before the proceeds

were divided equally.

          The court’s Order on Post-Decree Relief, however,
reduced Respondent’s liability for the capital gains tax.             That

Order provided that Respondent’s “share of the equity in the

Kalaheo Property shall be adjusted to reflect that her share of

the capital gains tax paid as a result of the sale of the

property shall be based on the appreciation in the value of the

property from the date of marriage . . . .”          [RA 2 at 101]     The

appreciation value of the property from the date of marriage was

less than the total proceeds of the sale.         [See id. at 261]

Therefore, requiring the capital gains tax to be based only on

the appreciation of the property from the date of marriage meant
that Respondent’s share of the capital gains tax would be less

than one-half of the total.      The Order effectively absolved

Respondent of the requirement in the Decree that she pay one-half

of the capital gains tax.      Hence, the effect of the Order was to

make the judgment “say something other than was originally

pronounced.”   Wright and Miller, Federal Practice and Procedure §

2854.



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             Second, the effect of the court’s Order was to “change

something that was deliberately done.”            Id.   The record

demonstrates that the parties agreed that the proceeds of the

sale of the Kalaheo Property to pay all of the capital gains

taxes arising from the sale before distributing the proceeds of

the sale to the parties.         Petitioner’s closing statement asserted

that “as agreed in Judge’s Chambers,” Respondent was to receive
“one-half the appreciation of the property” but that appreciation

was to be calculated by “factoring in the sales price of the

property” minus, inter alia, “the capital gains tax.”               [RA 2 at

158]

             This agreement was also reflected in the proposed

decree drafted by Respondent, which stated that the proceeds of

the sale of the Kalaheo Property would be used to pay all of the

capital gains tax before the proceeds were divided by the

parties.     [Id. at 198]     The reason that the Decree required that

the parties pay the capital gains tax equally, therefore, was
that this reflected the agreement of the parties on that issue.

Hence, this requirement was “deliberate.”            It was inappropriate

then to use HFCR Rule 60(a) to change this “deliberate”

understanding.       Wright and Miller, Federal Practice and Procedure

§ 2854.     Consequently, the court’s action amending the judgment

cannot be justified by HFCR Rule 60(a).

                                       2.

             Finally, the court’s findings and conclusions

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demonstrate that the court’s order cannot be justified by Rule

60(b).     HFCR Rule 60(b) provides that:
             On motion 17 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: (1) mistake,
             inadvertence, surprise, or excusable neglect; (2) newly
             discovered evidence which by due diligence could not have
             been discovered in time to move for a new trial under Rule
             59(b); (3) fraud (whether heretofore denominated intrinsic
             or extrinsic), misrepresentation, or other misconduct of an
             adverse party; (4) the judgment is void; (5) the judgment
             has been satisfied, released, or discharged, or a prior
             judgment upon which it is based has been reversed or
             otherwise vacated, or it is no longer equitable that the
             judgment should have prospective application; or (6) any
             other reason justifying relief from the operation of the
             judgment.

(Emphasis added.)      The court’s conclusions stated that the

judgment was “ambiguous” and that the court could “clarify the

ambiguity.”     [RA 3 at 139]     Ambiguity, however, is not one of the

bases for granting a party relief from a final judgment under

Rule 60(b).     As discussed supra, it is plain that the “ambiguity”

did not constitute a “mistake” because the parties agreed that

they would pay the capital gains tax equally.            Further, Rule

60(b)(6) allows the court to grant a Rule 60(b) motion for “any



      17
            Although the plain language of Rule 60(b) would appear to require
a motion by the parties to allow the court to act, the majority of courts
apparently allow the court to reconsider decisions under Rule 60(b) sua
sponte. See, e.g., Kingvision Pay-Per View Ltd. v. Lake Alice Bar, 168 F.3d
347, 352 (9th Cir. 1999) (Noting that “[t]he traditional definition of sua
sponte is that the court acts of ‘its own will or motion,’ and therefore “the
words “on motion” in Rule 60(b) do not plainly exclude sua sponte repairs of
mistakes or inadvertence”) (quoting Blacks Law Dictionary 1424 (6th ed. 1990)
(emphasis in original)); Fort Knox Music Inc. v. Baptiste, 257 F.3d 108 (2d
Cir 2001); cf. Wright and Miller, Federal Practice and Procedure § 2865. But
see, e.g., Eaton v. Jamrog, 984 F.2d 760, 762 (6th Cir. 1993) (holding that
court did not have authority to vacate judgment under Rule 60(b) because,
inter alia, “Rule 60(b) explicitly requires a motion from the affected party,
and in this case the district court acted sua sponte.”).

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other reason justifying relief.”            HFCR Rule 60(b)(6).     However,

HFCR Rule 60(b)(6) “provides for extraordinary relief and is only

invoked upon a showing of exceptional circumstances.”               Isemoto

Contracting Co. v. Andrade, 1 Haw. App. 202, 205, 616 P.2d 1022,

1025 (1980).      The court’s findings and conclusions do not address

“exceptional circumstances.”          Nothing in the court’s findings or

conclusions suggest that the requirements of Rule 60(b) have been
met.    Hence, the court’s Order cannot be justified by Rule 60(b).

             Moreover, reliance on Rule 60(b) is precluded by Nakata

v. Nakata, 3 Haw. App. 51, 641 P.2d 333 (1982).              In Nakata,

during divorce proceedings, the parties prepared an “Agreement”

which provided, inter alia, that the plaintiff would be granted

possession of specific real property, but would be required to

pay 25% of the equity in the property to the defendant within six

months.     Id. at 52, 641 P.2d at 334.         If the plaintiff could not

pay 25% within six months, the property was to be sold.               Id.     At

the request of both parties, the family court incorporated the
Agreement into the decree of divorce.            Id. at 56, 641 P.3d at

336.

             In the six months following the entry of the decree of

divorce, the plaintiff failed to pay 25% of the value of the

property.      Id. at 53, 641 P.2d at 335.        The defendant filed an

order to show cause requesting that the property be sold.                Id.




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The court allowed the plaintiff an additional three months to

exercise her right to purchase.       Id.   This was done because “the

parties both anticipated and recognized in the Agreement” that

the plaintiff’s ability to pay defendant 25% of the equity in the

property was contingent upon the sale of property on Molokai, and

that the failure to sell the property on Molokai was not within

the plaintiff’s control.      Id. at 54, 641 P.2d at 335.
          The defendant appealed, arguing that the family court

“amended the clear, unambiguous, and enforceable language of its

[decree of divorce].”     Id. at 54-55, 641 P.2d at 335.         The

plaintiff responded that the court “did not modify the decree,”

but “merely clarified ambiguities.”         Id. at 54, 641 P.2d at 335.

The ICA held that “[t]he authority for the [family] court’s

action comes, if at all, from [HFCR] Rule 60(b).”           Id. at 55, 641

P.2d at 336.    However, “the broad power granted by [HFCR] Rule

60(b) [] is not for the purpose of relieving a party from free,

calculated, and deliberate choices he, she, or it has made.” Id.
at 56, 641 P.2d at 336 (citing Wright and Miller, Federal

Practice and Procedure § 2864 (1st ed. 1973)); accord In Re RGB,

123 Hawai#i 1, 20, 229 P.3d 1066, 1085 (2010).          Because the

Agreement was incorporated into the decree at the request of both

parties, the ICA held that the use of HFCR Rule 60(b) “was

excessive.”    Nakata, 3 Haw. App. at 56, 641 P.2d at 336.




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             Similarly, as discussed supra, the Decree’s equal

apportionment of the capital gains tax was the result of the

agreement of the parties.       Inasmuch as Rule 60(b) cannot be used

for the “purpose of relieving a party from [a] free, calculated,

and deliberate choice[] he, she, or it has made,” id., the court

could not have amended the Decree under Rule 60(b).

                                     C.
             Petitioner argues that Respondent’s failure to file an

HFCR 59(e) motion within 10 days rendered the court powerless to

amend the Decree to reduce the amount of capital gains tax paid

by Respondent.     To amend the decree, the court must have acted

under one of HFCR Rule 52(b), HFCR Rule 59, or HFCR Rule 60.

Wong, 79 Hawai#i at 29, 897 P.2d at 956.         Based on the foregoing,

the court’s Order amending the Decree did not meet the

requirements of any of these Rules.         Hence, the court lacked the

power to amend the Decree.       The court’s Order must therefore be

vacated.18
                                    VII.

             Based on the foregoing, we vacate the ICA’s February

12, 2013 judgment and the court’s June 4, 2009 Order on Post-




      18
            As noted, Petitioner also argued in the second question of his
Application that he was deprived of due process because the court amended the
Decree without allowing him to respond. However, as discussed supra, the
court did not have the authority to amend the decree at all under the HFCR.
Therefore, it is unnecessary to address this argument.

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Decree Relief, and remand19 this case to the court for

disposition consistent with the opinion herein.

David Yukimura,                       /s/ Mark E. Recktenwald
petitioner pro se
                                      /s/ Paula A. Nakayama

                                      /s/ Simeon R. Acoba, Jr.

                                      /s/ Sabrina S. McKenna

                                      /s/ Richard W. Pollack




      19
             As noted, Petitioner maintained in the third question of his
Application that if it was necessary to demonstrate that the court erred, he
should have been allowed to supplement the record with the hearing transcript.
However, as shown supra, it is possible to determine that the court erred
without recourse to the transcript.
             “The law is clear in this jurisdiction that the appellant has the
burden of furnishing the appellate court with a sufficient record to
positively show the alleged error.” Bettencourt v. Bettencourt, 80 Hawai#i
225, 230-31, 909 P.2d 553, 558-59 (1995) (citation omitted). “When an
appellant desires to raise any point on appeal that requires consideration of
the oral proceedings before the court,” the appellant also must request
transcripts of those proceedings. HRAP Rule 10(a)(b)(1)(A); Bettencourt, 80
Hawai#i at 230-31, 909 P.2d at 558-59. However, in the instant case, the
record clearly discloses that the court did not have the authority under the
HFCR to amend or modify the Decree, Wong, 79 Hawai#i at 29, 897 P.2d at 956,
therefore, a transcript of the January 29, 2009 hearing was not necessary, see
HRAP Rule 10(a)(b)(1)(A); Bettencourt, 80 Hawai#i at 230-31, 909 P.2d at
558-59.



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