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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-SEP-2026
07:55 AM
Dkt. 173 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
HAVI NIU, Plaintiff-Appellee,
v.
NERISHA IVALANI FOTU NIU, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NO. 2FDV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Guidry, JJ.)
Defendant-Appellant Nerisha Ivalani Fotu Niu (Wife)
appeals from the Family Court of the Second Circuit's (family
court) June 17, 2024 "Divorce Judgment." On December 31, 2024,
the family court entered its "Findings of Facts [(FOFs)] and
Conclusions of Law" (FOFs/COLs) and, on July 1, 2025, it entered
its post-judgment "Order Denying [Wife's] Motion to Dismiss and
[Wife's] Answer to Judgment Divorce Regarding Hearing of
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July 29, 2024 Filed on August 2, 2024" (Order Denying
Reconsideration).1
Wife raises six points of error on appeal, contending
that the family court erred: (1) when it "ruled that all
properties were Category 5 Marital Property," "failed to address
[Plaintiff-Appellee Havi Niu's (Husband)] property in Tonga,"
and "ruled that Wife be ordered to pay $1000.00/month to Husband
as alimony"; (2) "where it ordered $2,953.11 in [attorney's]
fees for [Husband] based on 'good cause'"; (3) "where it found
[Wife] in contempt of court, and consequently ordered
[attorney's] fees and costs [to] be paid by [Wife]"; (4) "where
it did not allow [Wife] to call witnesses related to her case";
(5) "where it did not allow [Wife] to call [Husband] as a
witness during her case-in-chief"; and (6) "where it denied
[Wife's] motions for reconsideration based on newly discovered
evidence."
Upon careful review of the record, briefs, and
relevant legal authorities, and having given due consideration
to the arguments advanced and the issues raised by the parties,
we resolve Wife's contentions of error as follows:
1 The Honorable James R. Rouse presided over the trial and entry of the Divorce Judgment, FOFs/COLs, and Order Denying Reconsideration. Wife's appeal is timely taken from the Order Denying Reconsideration.
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(1) Category 5 Property. Wife contends that the
family court erred in including four parcels of real property
(the Properties) as Category 5 properties. "We review the
family court's final division and distribution of the estate of
the parties under the abuse of discretion standard, in view of
the factors set forth in [Hawaii Revised Statutes (HRS)] § 580-47 [(2018)][2] and partnership principles." Selvage v. Moire,
139 Hawaiʻi 499, 506-07, 394 P.3d 729, 736-37 (2017) (citation
omitted).
"Hawaiʻi law follows a framework based on partnership
principles for the division of marital partnership property
during divorce proceedings." Id. at 507, 394 P.3d at 737
(citation omitted). Pursuant to this framework, family courts
divide property into five categories of net market values. Id.
Category 5 property consists of marital partnership property
that is divided equally between the parties. Aoki v. Aoki, 105
Hawaiʻi 403, 405, 98 P.3d 274, 276 (App. 2004). Wife contends
that the Properties were not Category 5 properties, but rather,
her "sole and separate propert[ies]" pursuant to a post-marital
2 Upon granting a divorce, the family court "may make any further orders as shall appear just and equitable . . . finally dividing and distributing the estate of the parties, real, personal, or mixed, whether community, joint, or separate." HRS § 580-47(a) (2018). HRS § 580-47 gives the family court "wide discretion to divide Marital Partnership Property in a manner that is just and equitable under the facts and circumstances of each case." Hamilton v. Hamilton, 138 Hawaiʻi 185, 200, 378 P.3d 901, 916 (2016) (cleaned up).
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agreement entered into between the parties or, in the
alternative, because she used her funds and gift monies from her
family to purchase the Properties. Husband disputes Wife's
contentions.
At trial, Wife argued that Husband knew that the
Properties were to be treated as marital separate property; the
family court found Wife not credible. "It 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." In re Doe, 95 Hawaiʻi 183,
190, 20 P.3d 616, 623 (2001) (cleaned up). The record reflects
that Wife provided no evidence to support her claim that she and
Husband had entered into a post-marital agreement.
The record also reflects that Wife's father and sister
testified at trial that they collectively gave Wife over
$200,000 towards the purchase of the Properties, but that
neither witness presented any other evidence to corroborate
their testimony. The family court found that their testimony
was not credible.
On this record, we conclude that Wife did not meet her
burden of establishing that the Properties were her own separate
properties. The family court therefore did not clearly err in
determining that they were not her own separate properties.
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Tonga Property. Wife contends on appeal that the
family court erred in failing to include property in Tonga
(Tonga Property), that is allegedly owned by Husband, as part of
the marital estate. The only evidence at trial was Husband's
testimony that the Tonga Property is owned by his parents.
There was no clear error in failing to include the Tonga
Property in the marital estate. "As a general rule, if a party
does not raise an argument at trial, that argument will be
deemed to have been waived on appeal; this rule applies in both
criminal and civil cases." County of Hawaiʻi v. C & J Coupe Fam.
Ltd. P'ship, 119 Hawaiʻi 352, 373, 198 P.3d 615, 636 (2008)
(citations omitted).
Spousal Support Award. Wife contends that the family
court abused its discretion in awarding spousal support to
Husband, by not properly considering the factors set forth in
HRS § 580-47(a)3 and in awarding spousal support as a sanction
3 HRS § 580-47(a) provides, in relevant part,
Upon granting a divorce . . . the [family] court may make
any further orders as shall appear just and equitable . . .
(2) compelling either party to provide for the support and
maintenance of the other party . . . .
In addition to any other relevant factors considered,
the court, in ordering spousal support and maintenance,
shall consider the following factors:
(1) Financial resources of the parties;
(2) Ability of the party seeking support and
maintenance to meet his or her needs
independently;
(3) Duration of the marriage;
(continued . . .)
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against Wife for her misconduct. "[T]he family court has wide
discretion when making its decision regarding spousal support,"
but in exercising this discretion, "the family court must
consider all of the factors enumerated in HRS § 580-47(a)."
Jacoby v. Jacoby, 150 Hawaiʻi 158, 166, 498 P.3d 689, 697 (2021)
(citations omitted).
Wife does not point to any evidence that supports her
argument that spousal support was awarded as a sanction against
Wife. The family court's finding that Wife's monthly income was
$12,554.36, and Husband's monthly income was $2,500, is
consistent with the information provided in Wife and Husband's
submitted Income and Expense Statements. The family court also
made specific findings that the parties' ages, length of
3(. . . continued)
(4) Standard of living established during the
marriage;
(5) Age of the parties;
(6) Physical and emotional condition of the parties;
(7) Usual occupation of the parties during the
marriage;
(8) Vocational skills and employability of the party
seeking support and maintenance;
(9) Needs of the parties;
(10) Custodial and child support responsibilities;
(11) Ability of the party from whom support and
maintenance is sought to meet his or her own needs
while meeting the needs of the party seeking
support and maintenance;
(12) Other factors which measure the financial
condition in which the parties will be left as the
result of the action under which the determination
of maintenance is made; and
(13) Probable duration of the need of the party seeking
support and maintenance.
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marriage, lack of children, financial assets, and occupations
support the Spousal Support Award. Wife does not specifically
challenge these findings on appeal. The family court did not
abuse its discretion by awarding spousal support to Husband.
For the foregoing reasons, we conclude that the family
court acted within the permissible scope of its discretion in
categorizing the Properties as category 5 properties, not
including the Tonga Property as part of the marital estate, and
awarding spousal support to Husband.
(2) Wife contends that the family court erred by
entering its August 24, 2023 "Amended [FOFs], Conclusions of
Law[], and Orders Regarding [Husband's] June 16, 2023 Filed
Motion for Attorney's Fees and Costs and [Husband's] August 3,
2023 Filed Non-Hearing Motion for Attorney's Fees and Costs"
(August 2023 Fees Order).4 The family court therein directed
Wife to reimburse Husband $2,953.11 in attorney's fees incurred
for work on Husband's motion for an order directing Wife to
cease any attempts to refinance the Properties.5 We review a
4 The family court did not cite HRS § 580-47(f) (2018) as a statutory basis for awarding fees. Nor did Husband cite HRS § 580-47(f) as statutory authority for his fees request. HRS § 580-47 therefore did not govern the family court's fees award. See Cox v. Cox, 138 Hawaiʻi 476, 489, 382 P.2d 288, 301 (2016) ("[T]he provisions of HRS § 580-47 must govern in all instances where a party to a family court proceeding seeks an award for attorney's fees and costs subject to this statute." (footnote omitted)).
5 These fees relate to counsel's work on Husband's "Ex Parte Motion for an Order That [Wife] Cease Immediately All Refinancing and Money Distributions Related to the Parties['] Four Real Properties Until Further
(continued . . .)
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family court's award of attorney's fees and costs for abuse of
discretion, limiting the family court's discretion "only by the
standard that [the imposition of fees and costs] be fair and
reasonable." Hamilton, 138 Hawaiʻi at 209, 378 P.3d at 925
(citation omitted).
In awarding fees, the family court awarded fees
pursuant to HRS §§ 580-9 (2018), 580-10.5 (2018), and 584-16
(2018) (repealed 2026), concluding that,
9. H.R.S. §607-14.5 authorizes an award of attorneys' fees
when the court finds that a claim or defense is
frivolous. The record is devoid of any court finding
[Wife] or [Husband's] claims frivolous, accordingly
[the court] will not be awarding fees and costs
pursuant to this statute.
10. This court finds however, pursuant to H.R.S. §§580-9;
§580-10.5; §584-16; H.F.C.R. Rules 2.1; 7; 8; 9; 10;
11; 12; 37; 54; 60(b); 89; and H.C.C. Rule 7.2 that
[Husband's] request for reimbursement of fees and costs
is warranted, and good cause exists to grant in its
entirety [Husband's] counsel's Non-hearing Motion for
Fees.
(Emphasis added) (footnotes omitted.) See City & County of
Honolulu v. Hsiung, 109 Hawaiʻi 159, 178, 124 P.3d 434, 453
(2005) ("Ordinarily, attorneys' fees cannot be awarded as
damages or costs unless so provided by statute, stipulation, or
agreement." (citation omitted)). We consider the applicability
of these statutory provisions in turn.
5(. . . continued)
Order of the Court and for Attorney's Fees and Costs." Although Husband subsequently withdrew his request for an order directing Wife to cease any attempts to refinance the subject properties, he did not withdraw his request for attorney's fees incurred for work on the motion.
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HRS § 580-9 permits the family court to "compel either
spouse to advance reasonable amounts" for the trial expenses
"including attorney's fees . . . incurred by the other spouse."
This statute does not apply here because the family court's fees
award was not an "advance," but an outright award of fees to
Husband.
HRS § 580-10.5, which governs automatic restraining
orders, instructs that a restraining order "shall specify that
. . . [n]either party shall . . . dispose of any property . . .
belonging to or acquired by either party, except as," among
other things, "[r]equired for payment of reasonable attorney's
fees and costs in connection with the action." This statute
does not apply here. While HRS § 580-10.5 contemplates that the
parties' property may be used to pay reasonable attorney's fees,
it does not authorize the family court to award attorney's fees.
HRS § 584-16, which gave the family court discretion
to award reasonable costs in parentage proceedings, was repealed
in 2026 with the adoption of portions of the Uniform Parentage
Act, as codified in HRS chapter 584A. Like HRS § 584-16, the
newly adopted costs provision in HRS Chapter 584A authorizes
attorney's fees and costs to be awarded in parentage
proceedings. 2025 Haw. Sess. Laws Act 298, § 2 at 971 (eff.
Jan. 1, 2026) (to be codified at HRS § 584A-505) (instructing
that the family court "may order reasonable fees of counsel
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. . . and other costs of the action and pretrial proceedings
. . . to be paid by the parties in proportions and at times
determined by the court."). This is not a parentage proceeding,
and this statute therefore does not apply.
On this record, we conclude that the award of
attorney's fees was outside of the permissible scope of the
statutory authority cited by the family court, and we therefore
vacate the August 2023 Fees Order.
(3) Wife contends that the family court erred by
entering the September 25, 2023 "Order Granting [Husband's]
Motion Filed August 31, 2023" (Contempt Order), which held Wife
in contempt of court for failing to comply with the August 22,
2023 "Order on Settlement Conference Held on August 9, 2023"
(Occupancy Order).6 We review the family court's Contempt Order
for abuse of discretion. LeMay v. Leander, 92 Hawaiʻi 614, 620,
994 P.2d 546, 552 (2000).
Pursuant to the Occupancy Order, the family court
ordered that Husband "shall have exclusive occupancy of the
[parties' West Wakea residence] . . . from August 18, 2023
through August 22, 2023 to visit with [Husband's] daughter."
The family court further ordered that Wife was not to be at the
6 The Honorable Adrianne N. Heely entered the Occupancy Order, and the Honorable James R. Rouse entered the Contempt Order.
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West Wakea residence during this time. Wife moved for
reconsideration; the family court denied Wife's motion.
Following Wife's failure to adhere to the Occupancy
Order, the family court held Wife "in contempt for willfully
violating the [family court's] [Occupancy Order]," and ordered
Wife to reimburse "[Husband's] attorney's fees and costs for
having to file and pursue [the contempt] motion" and "for
[Husband's] expenses spent for lodging in the amount of
$3,187.36."
Hawaiʻi courts possess the inherent authority to hold
parties in contempt. Id. at 621, 994 P.2d at 553. To establish
contempt, the moving party must demonstrate that: "(1) the order
with which the contemnor failed to comply is clear and
unambiguous; (2) the proof of noncompliance is clear and
convincing; and (3) the contemnor has not diligently attempted
to comply in a reasonable manner." Id. at 625, 994 P.2d at 557
(citation omitted). "A knowing or intentional state of mind is
immaterial when determining civil contempt violations due to its
remedial purpose; the real question is whether the alleged
contemnor has failed to comply with the court's order." Id.
(citations omitted).
It is undisputed that Wife did not comply with the
Occupancy Order, and that Wife's son and his family were in fact
living at the West Wakea residence from August 18 through
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August 22, 2023. Wife did not deny this, but instead attempted
to justify her noncompliance with the Occupancy Order by making
arguments that had previously been rejected by the family court.7
We conclude that the family court acted within the scope of its
permissible discretion in holding Wife in contempt for not
complying with the Occupancy Order.
(4) Wife contends that the family court erred by not
allowing her to call "Elena and Steve Walker" (the Walkers),8
7 Wife argued at the contempt hearing that her son and his family were living at the West Wakea residence because they had been displaced by the Maui fires. Wife had previously made these arguments in her motion for reconsideration of the Occupancy Order, and the family court had rejected them, as set forth in FOF 16:
16. Prior to [Husband's] daughter's visit, [Wife]
filed an Emergency Ex Parte Motion for Reconsideration of
the [family court's] decision to allow [Husband] to spend
time with his daughter at the marital home. [Wife] claimed
that following the hearing she received a text from "her
son who lives in Lahaina that he needed her house as
shelter because of the Lahaina fires he had nowhere to go".
Therefore, [Wife] argued that the house would be
unavailable to [Husband] and his daughter. The [family
court] scheduled the hearing on [Wife's] Motion to August
17, 2023, the day before the visit.
[Wife's] Motion for Reconsideration was heard by the
[family court] the day before the visit. There was a short
hearing on August 17th wherein the Judge asked [Wife]
several questions regarding her request. The Judge who
also resided in Lahaina at the time of the fires asked
[Wife] questions such as where does your son live? [Wife]
would or could not answer the questions. The Judge was
able to ascertain that [Wife's] son did not live in the
section of Lahaina that suffered from the fires and that
his home was intact. The [family court] did not find
[Wife's] testimony credible and denied her Ex Parte Motion
for Reconsideration.
(Citations omitted.)
8 Wife alludes to other "witnesses [who would] substantiate the cash payments made to Husband for work he did" but does not identify or make
(continued . . .)
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"based solely on [Wife] allegedly failing to give notice of said
witnesses to opposing counsel prior to the February 15, 2024[]
hearing." The family court's imposition of sanctions is
reviewed for abuse of discretion. Weinberg v. Dickson-Weinberg,
123 Hawaiʻi 68, 71, 229 P.3d 1133, 1136 (2010). "[T]he sanction
chosen must be commensurate with the offense[.]" Id. at 77, 229
P.3d at 1142.
Wife attempted to call the Walkers as witnesses during
her case-in-chief at the February 2024 trial. The family court
gave Wife the opportunity to demonstrate that she had provided
notice of her intent to call the Walkers as witnesses. The
Walkers' names were not included on Wife's October 17, 2023
witness list, nor did she seek to amend the witness list to
include the Walkers.
In Weinberg, the Hawaiʻi Supreme Court explained that
the trial court's inherent powers include the authority to,
curb abuses and promote a fair process which extends to the
preclusion of evidence and may include dismissal in severe
circumstances. It follows that if the trial court has the
inherent power to level the "ultimate sanction" of
dismissal, it necessarily has the power to take all
reasonable steps short of dismissal, depending on the
equities of the case.
Id. at 75, 229 P.3d at 1140 (cleaned up). The supreme court
instructed that, "the imposition of a sanction," including the
8(. . . continued)
arguments specific to those other witnesses. Wife's argument as to witnesses other than the Walkers is therefore waived.
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preclusion of evidence, "requires an analysis of the relevant
facts and circumstances that resulted in the exercise of
discretion." Id. at 76, 229 P.3d at 1141 (cleaned up).
Here, the family court, in balancing the equities,
determined that Wife could not call witnesses that had not been
included on Wife's filed witness list. Wife did not request an
extension of the pretrial discovery deadlines, or a continuance
of trial, but nevertheless maintained that she should be allowed
to call the Walkers during the ongoing trial. Husband objected
on the basis that his counsel had not been given any notice that
Wife intended to call the Walkers as witnesses, and that
counsel's inability to prepare for the Walkers' testimony would
prejudice Husband.
Weinberg distinguished this court's prior holding in
Glover v. Grace Pac. Corp., 86 Hawaiʻi 154, 164, 948 P.2d 575,
585 (App. 1997), in which we concluded that the trial court did
not abuse its discretion by striking an expert witness. The
supreme court therein clarified that "the striking of one expert
witness——whose value to the outcome of trial was unknown
inasmuch as neither the trial court nor the parties knew what
the expert's as yet unfurnished final opinion would have been——
does not have the same effect of essentially barring nearly an
entire body of evidence, as in this case." Weinberg, 123 Hawaiʻi
at 77-78, 229 P.3d at 1142-43. We find this instructive.
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Here, the family court precluded Wife from calling two
witnesses whose testimony was of unknown value. When the family
court asked Wife for an offer of proof, Wife said this: "[Steve
Walker] has a lot because that's Blue Hawaiʻi. He represents --he's the property manager, and he does the admin [sic] for Blue
Hawaiʻi. So he has a lot to clear up with issues that [Husband's
counsel has] been discussing."9 On this record, we conclude that
the family court did not abuse its discretion by determining
that, on balance, the prejudice to Husband was significant and
warranted preclusion of Wife's undisclosed witness testimony,
the value of which could not be discerned based on Wife's offer
of proof. Unlike Weinberg, this is not a case where "[t]he
family court's ruling effectively precluded [a party] from
presenting any expert witnesses and reports, as well as other
documentary evidence," such that the prejudice to the party "was
tantamount to entering a default against [the party]." Id. at
76, 229 P.3d at 1141.
(5) Wife contends that the family court erred by not
allowing her to recall Husband as a witness during her case-inchief. We review Wife's contention for abuse of discretion.
See State v. Locken, 134 Hawaiʻi 376, 387, 341 P.3d 1176, 1187
(App. 2014) (citing Hawaii Rules of Evidence Rule 611(a) ("The
9 Wife did not make any offer of proof as to Elena Walker's testimony.
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court shall exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence so as to (1)
make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of
time, and (3) protect witnesses from harassment or undue
embarrassment.")).
Wife misstates the record by representing that the
family court denied her the opportunity to recall Husband for
examination. Wife was allowed to cross-examine and conduct a
recross-examination of Husband at the February 13, 2024 trial
proceedings. Wife was thereafter allowed to conduct a separate
direct examination of Husband.
Wife contends that she was denied the opportunity to
question Husband as to "new" evidence regarding his "unreported"
income. Although Wife characterizes the evidence as "new," she
concedes that the evidence was available to her at the time of
trial and would have been addressed "had she been allowed to
call [Husband]." Again, the record reflects that Wife examined
Husband, and had ample opportunity to question Husband as to his
income on both cross and direct examination. Any failure to
"confront[]" Husband as to evidence in Wife's possession at
trial was therefore due to Wife's own oversight. See id.
("Defense counsel had a full and fair opportunity to examine
[the witness]. However, due to oversight, he forgot to ask [the
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witness] a question that he had intended to ask. Under standard
rules of trial practice, an attorney for a party is required to
ask all desired questions before a witness is excused.").
Wife's contention that she was denied the opportunity to
adequately examine Husband lacks merit.
(6) Wife contends that the family court erred by
denying her motion for reconsideration based on "newly
discovered" evidence. We review the family court's denial of
Wife's motion for reconsideration under the abuse of discretion
standard. Bettencourt v. Bettencourt, 80 Hawaiʻi 225, 231, 909
P.2d 553, 559 (1995).
Wife sought to introduce the evidence discussed in
sections (4) and (5), supra, consisting of testimony by the
Walkers and Husband that would allegedly have "provided valuable
insight into the gift monies used, the state of the rentals, and
the ownership of the [P]roperties," and that "would have
authenticated . . . invoices" purportedly establishing Wife's
ownership of the Properties. This evidence was not new. Wife
admits that she had this evidence prior to trial; she contends
that it should be considered "newly discovered" because she was
not permitted to introduce this evidence at trial.
As addressed in sections (4) and (5), supra, the
family court did not err in denying Wife's requests to call the
Walkers as witnesses, nor was she denied the opportunity to
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thoroughly question Husband. We conclude that the family court
did not abuse its discretion by denying Wife's motion to
reconsider those rulings.
For the foregoing reasons, we affirm in part and
vacate in part. We vacate the August 2023 Fees Order, which
awarded Husband fees in the amount of $2,953.11. We affirm the
Contempt Order, and the family court's award of attorney's fees
and costs pursuant to that order. We affirm the Divorce
Judgment, FOFs/COLs, and Order Denying Reconsideration in all
other respects.
DATED: Honolulu, Hawaiʻi, September 22, 2026.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Kai Lawrence,
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Sarah M. Nishioka,
for Plaintiff-Appellee. /s/ Kimberly T. Guidry
Associate Judge
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