***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-12-0000060
28-JUN-2016
10:04 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
KARYN EILEEN HERRMANN, Petitioner/Plaintiff-Appellee,
vs.
KENNETH ROSS HERRMANN, Respondent/Defendant-Appellant.
SCWC-12-0000060
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000060; FC-D NO. 95-0-0475)
JUNE 28, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.
OPINION OF THE COURT BY POLLACK, J.
I. Introduction
This case involves child support and education
expenses for the two children of Karyn Eileen Herrmann (Wife)
and Kenneth Ross Herrmann (Husband): Son, born July 1, 1987, and
Daughter, born June 16, 1991. The dispute revolves around the
correct interpretation of the divorce decree and a subsequent
amendment to that decree, which govern Husband’s child support
obligations to Son and Daughter. The issue presented is whether
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Husband overpaid child support per the terms of the divorce
decree and the amendment and, if so, whether Husband should be
allowed recovery of his overpayments.
II. Background
A. 1998 Divorce Decree
On February 11, 1998, Husband and Wife were divorced
by decree in the family court. The terms of the February 11,
1998 divorce decree (1998 Decree) included custody arrangements
for Son and Daughter and terms of child support obligations for
each child. Specifically, pursuant to Paragraph 4 of the 1998
Decree, the parties were each awarded joint legal custody and
shared physical custody of Son and Daughter.1
The 1998 Decree, in Paragraph 5, provided that Husband
was to pay child support payments to Wife in the amount of
$1,600 per month for each child and that payments for each child
were to continue until the child “attains the age of 18 years or
graduates from or discontinues high school, whichever occurs
last.” The Decree further stated that “[t]he issue of child
support thereafter, if any, including the amount, duration,
manner of payment, payor, and payee, shall be reserved for
future agreement by the parties or future determination by the
1
Husband subsequently moved to Indiana on October 1, 2003, after
which, as discussed infra, Husband filed a motion for sole custody of Son.
2
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Court, if necessary.” Pursuant to Paragraph 5, Husband was to
make his child support payments through the Child Support
Enforcement Agency (CSEA).
B. Husband’s Motion for Post-Decree Relief
Husband filed a Motion and Affidavit for Post-Decree
Relief (2003 Motion) seeking sole custody of Son. Thereafter,
Wife made a settlement offer in an effort to resolve Husband’s
2003 Motion. Wife’s settlement offer proposed that, inter alia,
Husband would have sole custody of Son beginning with Son’s
upcoming school break and that child support would then be
recalculated. Husband subsequently accepted Wife’s settlement
offer, but Husband indicated that he wanted to “work together to
draft a revision” of the terms. Wife filed a notice of
acceptance of the settlement offer on December 1, 2003, and Son
began living with Husband on December 18, 2003.
Although Husband and Wife initially agreed on proposed
substantive changes to the 1998 Decree, the family court
returned the proposed amendments to the parties because the
amendments were incomplete.2 The parties were unable to reach
agreement to incorporate the family court’s required changes.
2
The family court indicated that the amendments failed to “address
that the change in custody [for Son] is in the child’s best interests,” did
not include a Child Support Guidelines Worksheet, and was not signed by an
attorney for the CSEA.
3
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Wife then filed a motion to compel compliance with the accepted
settlement offer, which the family court granted.3 The family
court’s order granting Wife’s motion to compel (August 2004
Order) also stated that “child support shall be modified
effective September 5, 2004,” and instructed Wife to submit a
proposed order.
On September 1, 2004, the amendment to the 1998 Decree
was approved and filed by the family court (September 2004
Amendment). The September 2004 Amendment reflected that Son was
now living with Husband and, thus, modified the amount of
Husband’s child support obligation set forth in Paragraph 5 of
the 1998 Decree. Specifically, under the September 2004
Amendment, Paragraph 5 of the 1998 Decree was “withdrawn” and a
new Paragraph 5 was “substituted,” which, in pertinent part,
stated the following:
5. [Husband] shall pay to [Wife] as and for
the support and maintenance of [Daughter] the sum of
[$2,630] per month commencing on the fifth day of
September, 2004. . . . [Wife] shall pay to [Husband] as
and for the support and maintenance of [Son] the sum of
[$50] per month commencing on the fifth day of January
2004. . . .
Child support for each child shall continue
until he or she attains the age of 18 years or graduates
from or discontinues high school, whichever occurs last.
The issue of child support thereafter, if any, including
the amount[,] duration, manner or payment, payor, and
3
The Honorable Christine E. Kuriyama presided.
4
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
payee, shall be reserved for future agreement by the
parties or future determination by the Court, if necessary.
On November 1, 2004, Husband received a letter from
CSEA advising him that he had overpaid child support payments to
Wife in the amount of $14,040 and that “[a]ny issues concerning
the recovery of the above over payments should be handled
between the custodial and non-custodial parents.”4 Thereafter,
according to Husband, he verbally asked Wife on numerous
occasions to reimburse him for the overpayments, but he did not
file an action with the family court. Wife did not repay
Husband’s claimed overpayment, believing that she did not owe
Husband any money.
Four years later, in anticipation of Daughter’s high
school graduation, Wife filed a Motion and Affidavit for Post-
Decree Relief asking the family court for an order requiring
Husband to pay Daughter’s college expenses. Husband stipulated
to pay “all costs and fees for [Daughter] to attend [college]
including tuition, books and student supplies, room and board
and a reasonable allowance for clothing and student activities
and/or additional fees” as long as Daughter was a fulltime
4
According to Husband, the amount of the overpayment calculated by
CSEA in its letter was incorrect, and the correct amount is $14,400 ($1,600 a
month for nine months) rather than $14,040. Husband agreed during a hearing
in the family court to seek only the amount represented in the CSEA letter,
i.e., $14,040.
5
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
student in good standing. The family court issued an order that
reflected Husband’s agreement to pay Daughter’s college
expenses.
On June 16, 2009, Daughter attained the age of
eighteen years old, and in September 2009, Daughter moved to
Washington State to attend college. CSEA continued to assign
Husband’s wages in the amount of $2,630 a month for child
support for Daughter. Husband contacted CSEA starting in
September 2009 to request that the child support payments for
Daughter be terminated pursuant to the 1998 Decree and September
2004 Amendment, but Husband’s efforts to terminate payments were
unsuccessful.
C. Husband’s April 2011 Motion
Unable to resolve his dispute with CSEA over
Daughter’s child support payments, Husband filed a Motion and
Affidavit for Post-Decree Relief (April 2011 Motion) in which he
asked the family court to (1) retroactively terminate his child
support obligation for Daughter to September 2010, when Daughter
moved to Washington to begin college, and require Wife to
reimburse him for the amount that he paid in child support for
Daughter from September 2009 to the date the court terminates
child support and (2) require Wife to reimburse him for the
$14,040 he overpaid in child support for Son.
6
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Wife filed an opposing memorandum responding to
Husband’s contentions that he was entitled to relief. Wife
argued that Husband did not overpay child support for Son
because the August 2004 Order became effective on September 5,
2004, and it did not apply retroactively. Wife alternatively
argued that under the Hawaiʻi Family Court Rules (HFCR) Rule
60(b) (2006), any reasonable time for Husband to seek relief had
long passed as almost 7 years had passed since these
overpayments were made.5 Wife contended that Husband’s April
2011 Motion included no explanation of why he waited to bring
his action for reimbursement of overpaid child support.
Next, in regards to Daughter’s support, Wife argued
that the family court should not retroactively order
reimbursement of support paid prior to the April 2011 Motion.
Wife maintained that the 1998 Decree and the September 2004
Amendment reserved the issue of Daughter’s child support
payments beyond her eighteenth birthday, and Wife argued that it
was appropriate for Husband to continue to pay child support for
5
Pursuant to HFCR Rule 60(b), a motion to be relieved “from any or
all of the provisions of a final judgment, order, or proceeding” because of
mistakes, inadvertence, excusable neglect, newly discovered evidence, or
fraud “shall be made within a reasonable time.” If the motion is based upon
mistake, inadvertence, surprise, excusable neglect, newly discovered
evidence, or fraud, the motion must be made “not more than one year after the
judgment, order, or proceedings was entered or taken.” HFCR Rule 60(b).
7
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Daughter because Wife had been providing support for Daughter
while she attended college. In addition, Wife argued that
granting Husband’s requested relief would be a “horrendous
financial problem” for her. Finally, Wife maintained that,
pursuant to HRS § 580-47(a) (2007), the family “court has the
ability to provide for the payment of child support for a child
who is continuing his/her education even if the matter is raised
subsequent to the time when the child becomes an adult.” In
conclusion, Wife argued that there was no legal basis for
Husband’s motion and that the child support payments were both
reasonable and justified. Accordingly, Wife asked the family
court to deny Husband’s April 2011 Motion.
In his reply, Husband first responded to the
overpayment of child support for Son, arguing that despite the
language in the family court’s August 2004 Order stating that
child support was modified effective September 2004, the
subsequent September 2004 Amendment mandated a different result.
Specifically, Husband argued that the September 2004 Amendment
replaced provisions of the 1998 Decree and required Wife to
commence paying child support for Son in January 2004, not
September 2004. Husband contended that this modification was
consistent with the fact that Son had starting living with
Husband in December 2003. Husband argued that the September
8
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
2004 Amendment, which was approved by the court and made an
order of the court, superseded any contrary statement in the
family court’s August 2004 Order. Accordingly, Husband argued
that the CSEA correctly determined that there had been an
overpayment of child support based on the September 2004
Amendment in the amount of $14,040.
Next, Husband argued that under the terms of the 1998
Decree and September 2004 Amendment, his child support
obligation to Daughter ended after June 2009 when she “attained
the age of 18 years (and had already graduated from high
school).” Husband argued that because there was no agreement by
the parties or a determination by the Court that child support
would continue, child support payments incorrectly were assigned
to Wife by CSEA. Consequently, Husband argued that Wife should
be ordered to pay back Husband’s overpayment of child support
for Daughter from September 2009, when Daughter moved to
college, to the time of the order terminating Husband’s child
support obligation.
Finally, Husband argued that he should not be required
to continue to pay child support for Daughter. Husband asserted
that because he was paying all of Daughter’s college education
expenses and because Daughter was not living with Wife in
Honolulu, there was no basis for Wife to continue receiving
9
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
$2,630.00 a month in child support. Accordingly, Husband asked
the family court to terminate his child support obligation for
Daughter retroactively to September 2009, when Daughter moved
from Wife’s home to attend college.
At the hearing on Husband’s April 2011 Motion, Husband
and Wife each adopted as their direct testimony offers of proof
made by their respective attorneys, after which each was cross-
examined by opposing counsel.6 Husband explained that he had
been paying all of Daughter’s college, living, and healthcare
expenses since she left for college in September 2009 and that
Daughter had never asked him for more monies or claimed that she
did not have sufficient funds for all of her living expenses.
Husband additionally testified that although Son had begun
living with him in December 2003 and that the parties had agreed
that child support for Son would stop as of January 2004, he
continued to pay child support for Son through August 2004.
Thus, Husband testified that he overpaid child support for Son
for nine months.
Wife testified that Husband’s child support obligation
for Son was to continue through September 5, 2004, and that she
did not believe she owed Husband any amount of reimbursement.
6
The Honorable Paul T. Murakami presided.
10
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Wife stated that she spends more in support of Daughter than she
receives from Husband on a monthly basis, including
transportation and keeping the home for Daughter, and that such
funds are necessary in order to maintain her relationship with
Daughter. Wife further explained that she had been experiencing
physical challenges impeding her ability to work, she was
receiving unemployment compensation because she had not been
employed full time, her net income was low, and the variance
between her financial situation and that of Husband’s made it
inequitable for her to be required to repay Husband’s alleged
child support overpayments. Finally, Wife testified that
Husband’s attempt to try and recoup this alleged amount was not
timely or appropriate.
D. Decision and Order of the Family Court
After the hearing on the April 2011 Motion, the family
court issued its “Decision Re: Hearing on Order to Show Cause
Filed 04/13/2011” (Decision) and “Order Denying Defendant’s
Motion and Affidavit for Post-Decree Relief Filed 04-13-2011”
(Order). The family court, in ruling against Husband, declined
to reimburse Husband for claimed child support overpayments and
determined that Daughter’s child support payments were to
continue. In its subsequently issued Findings of Fact and
Conclusions of Law, the family court found that the overpayment
11
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
of child support for Son was “a result of the delay in the entry
of the [September 2004 Amendment] caused by disagreements
between the parties as to the form and content of the document,”
during which time the amount due under the 1998 Decree
“continued to be garnished from [Husband’s] income.” The court
noted that “Husband waited for approximately 7 years before
raising the issue of his claimed overpayment of child support.”
Thus, the family court concluded that, “given the passage of
time and opportunities to have previously raised” the
overpayment of child support for Son, Husband “is now estopped
from pursuing said claim.”7
The family court then considered Daughter’s child
support. The court found that Husband paid Daughter’s college
expenses and that such payments were separate from child support
payments due under the 1998 Decree and September 2004 Amendment.
The court further found that Wife had sent additional sums of
money to Daughter after she moved to attend college. The court
determined that the funds received by Wife from Husband are used
7
It is not clear what the family court meant by “estopped.”
Estoppel was not raised by either of the parties in the family court, and the
court did not explain whether it was referring to equitable estoppel, quasi-
estoppel, the doctrine of laches, or another legal principle altogether.
Wife had specifically predicated her objection to Husband’s April 2011 Motion
on HFCR Rule 60(b) and a statute of limitations challenge, neither of which
the family court ruled upon.
12
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
by Wife to pay for expenses related to and necessary for
Daughter’s support and maintenance. In addition, the court
stated that Husband could have challenged the ongoing payment of
Daughter’s child support during litigation between Husband and
Wife from 2009 through 2011, but instead Husband waited 24
months after “the triggering event” of Daughter leaving for
college to contest ongoing child support payments. Based on
these findings, the court concluded that it “would be
inequitable to require [Wife] to reimburse for child support
payments made with regard to [Daughter] for the period
commencing in September of 2009.” The court further concluded
that “[b]ased upon the credible evidence, [Husband] is not
entitled to an order terminating his child support obligation to
[Daughter],” and “[c]hild support for [Daughter] shall remain in
effect until such time as [Daughter] graduates from college or
reaches the age of 23, whichever comes first.”
III. ICA Proceedings
Husband timely appealed from the Decision and Order.
In their briefs submitted to the ICA, Husband and Wife presented
arguments that paralleled those that were made to the family
court. Because the basis upon which the family court concluded
that Husband was estopped from pursuing his claim is unclear,
Husband asserted on appeal that the family court meant quasi-
13
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
estoppel when it ruled in favor of Wife. To the contrary, Wife
contended that the family court was actually referring to laches
in its decision.
The ICA issued its memorandum opinion (Opinion) on
February 17, 2015. As a general matter, the ICA concluded that,
under Hawaiʻi Revised Statutes (HRS) § 571-52.2(d) (2006), which
governs child support payments collected through salary
assignments, the individual receiving child support has the
“primary” responsibility for terminating a salary assignment and
that reimbursement is permitted in the event of overpayment of
child support. The ICA next determined that the September 2004
Amendment provided that, effective as of January 2004, Husband
was no longer required to pay $1,600 per month as child support
for Son and that Wife had to pay Husband $50 monthly toward
Son’s child support.
The ICA noted that the family court denied Husband’s
claim for reimbursement of overpayment for Son’s support on the
sole ground that Husband, by waiting too long before contesting
his alleged overpayments, was estopped from doing so. The ICA
remarked that the family court was not clear as to the legal
theory upon which it predicated its conclusion regarding
estoppel. Hence, the ICA adopted Wife’s position and presumed
that the family court based its Decision and Order on the
14
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
doctrine of estoppel by laches--an equitable doctrine by which
courts deny relief to a claimant who has unreasonably delayed or
been negligent in asserting a claim. Citing Adair v. Hustace,
64 Haw. 314, 321, 640 P.2d 294, 300 (1982), the ICA held that
estoppel by laches has two required elements: first, “a delay by
the plaintiff in bringing his claim” and the “delay must have
been unreasonable under the circumstances”; and, second, the
“delay must have resulted in prejudice to defendant.” Id.
Applying the elements of estoppel by laches in this
case, the ICA noted that Husband’s delay in filing the April
2011 Motion is considerable, given that he waited over six years
after CSEA notified him of the overpayment before taking action.
However, the ICA also determined that Wife did not claim, nor
did the family court make an independent conclusion, that Wife
was prejudiced by the delay. Accordingly, the ICA concluded
that “both elements of laches are not present,” the family court
“failed to apply the applicable law,” and, by doing so, “abused
its discretion” in concluding that Husband was precluded from
seeking reimbursement for his overpayment of child support for
Son.
The ICA also addressed Husband’s argument that he
overpaid child support for Daughter and that his obligation to
pay child support for Daughter automatically terminated per the
15
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
terms of the 1998 Decree and September 2004 Amendment.
Construing Paragraph 5 of the September 2004 Amendment, the ICA
concluded that its “plain language [] terminated child support
for both children upon the attainment of age 18 or graduation
from high school, whichever was later.” As to Daughter, the ICA
found that both of these conditions were satisfied by June 2009.
Accordingly, the ICA concluded that, pursuant to the 2004
Amendment, Husband’s obligation to pay child support for
Daughter should have terminated in June 2009. The ICA, however,
did not address Wife’s argument on appeal that “HRS 580-47(a)
took precedence over a provision in a divorce decree that said
that [Husband’s] obligation to provide support terminated at 18”
and that the family court did not therefore err when it held, on
Wife’s motion, that “it was appropriate and necessary that
support should continue for [Daughter] past the age of 18 and
graduation from high school.”
Having concluded that Husband’s obligation to pay
child support for Daughter ended in June 2009, the ICA then
addressed whether and in what amount Husband should be
reimbursed for his overpayment. The ICA noted that Husband’s
agreement and obligation, separate from the issue of child
support, to pay Daughter’s college expenses complicated the
issue of reimbursement for three reasons. First, the ICA found
16
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
that the record does not show whether “the amount of support
Daughter was entitled to while she attended college was ever
calculated using the appropriate Child Support Guidelines as
required by HRS § 580-47.” Second, the ICA also found that
Husband may have paid for items that would be considered a
component of child support as part of the payments he made for
Daughter’s college expenses; thus, there may have been
duplicative payment for some items. The final complicating
factor that the ICA noted was Wife’s contribution to Daughter’s
college expenses and the amount Wife spent in order to allow
Daughter to return to Hawaiʻi during semester breaks, some monies
for which were drawn from Husband’s child support payments for
Daughter. Consequently, the ICA reasoned that determining if
and how much Husband overpaid in support for Daughter depends on
“a determination of what amount was necessary to meet Daughter’s
needs while in college,” as Husband was required to pay those
expenses. Thus, the ICA concluded that the family court, on
remand, must “determine whether offsets against the overpaid
child support [for Daughter] might be appropriate.” Notably,
the ICA did not address the family court’s finding--challenged
by Husband on appeal--that it would be inequitable to allow
Husband to recover overpayments of child support paid for
Daughter since Husband waited two years before filing the April
17
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
2011 Motion and did not take advantage of several opportunities
to raise the issue of overpayments.
Based on the foregoing, the ICA vacated the Decision
and Order of the family court and remanded the case to the
family court for further proceedings.
IV. Application for Writ of Certiorari
In her Application, Wife challenges the ICA’s holding
that HRS § 571-52.2(d) applies in this case and that Wife had
the primary responsibility to terminate Husband’s salary
assignment. Wife also asserts that the ICA erred in holding
that Husband’s delay in filing his April 2011 Motion did not
estop Husband from recovering child support overpayments made to
Wife for Son. Further, Wife contends that the ICA erroneously
held that Husband’s child support obligations to Son ended in
January 2004 because the September 2004 Amendment did not take
effect until September 2004. Wife also argues that the ICA
erred in holding that Husband’s child support obligations to
Daughter automatically terminated when she reached the age of
18. Relatedly, Wife maintains that it would be inequitable to
permit Husband to recoup overpaid child support for Daughter
because he waited approximately two years before raising his
claim.
18
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
V. Standards of Review
When the relief granted by the family court is
equitable in nature and discretionary, it “will not be
overturned on review unless the . . . court abused its
discretion by issuing a decision that clearly exceeds the bounds
of reason or disregarded rules or principles of law or practice
to the substantial detriment of the appellant.” Aickin v. Ocean
View Invs. Co., 84 Hawaiʻi 447, 453, 935 P.2d 992, 998 (1997)
(quoting AIG Haw. Ins. Co. v. Bateman, 82 Hawaiʻi 453, 457, 923
P.2d 395, 398 (1996)).
The family court’s findings of facts are reviewed on
appeal under the clearly erroneous standard. In re Doe, 95
Hawaiʻi 183, 190, 20 P.3d 616, 623 (2001). 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. (quoting State v. Okumura, 78 Hawaiʻi 383, 392, 894
P.2d 80, 89 (1995)). “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.
(alteration omitted) (quoting State v. Doe, 84 Hawaiʻi 41, 46,
928 P.2d 883, 888 (1996)).
19
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
“The interpretation or construction of a judgment,
decree, or order ‘presents a question of law,’” State v. Guyton,
135 Hawaiʻi 372, 377, 351 P.3d 1138, 1143 (2015) (quoting Cain v.
Cain, 59 Haw. 32, 39, 575 P.2d 468, 474 (1978)), and is
“reviewable de novo under the right/wrong standard of review,”
Bank of Haw. v. DeYoung, 92 Hawaiʻi 347, 351, 992 P.2d 42, 46
(2000) (quoting Ditto v. McCurdy, 90 Hawaiʻi 345, 351, 978 P.2d
783, 789 (1999)).
VI. Discussion
A. Overpayment of Child Support for Son
1. Husband’s Child Support Obligation to Son Terminated in
January 2004
The September 2004 Amendment modified the respective
parties’ child support obligations. The 1998 Decree, in
Paragraph 5, provided that Husband was to make child support
payments to Wife in the amount of $1,600 per child per month,
for a total of $3,200 per month. The 2004 Amendment substituted
Paragraph 5 of the 1998 Decree with the following:
5. [Husband] shall pay to [Wife] as and for the
support and maintenance of [Daughter] the sum of [$2,630]
per month commencing on the fifth day of September, 2004. .
. . [Wife] shall pay to [Husband] as and for the support
and maintenance of [Son] the sum of [$50] per month
commencing on the fifth day of January 2004.
The ICA held that, based on the above language, Husband,
“as of January 2004, would no longer pay [Wife] child
support for Son.”
20
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Wife’s argument is that Husband’s obligation to
continue paying $1,600 for Son’s child support did not end
until September 2004, when the amendment was approved and
adopted by the family court. However, this is not a
reasonable construction of the terms of the September 2004
Amendment relating to child support. See Cain v. Cain, 59
Haw. 32, 39, 575 P.2d 468, 474 (1978) (stating that court
orders and decrees must “be construed reasonably” (citing
Smith v. Smith, 56 Haw. 295, 301, 535 P.2d 1109, 1114
(1974))).
Prior to the September 2004 Amendment, under the
1998 Decree, Wife was not required to pay any child support
to Husband. Son began living with Husband in December
2003. The plain language of Paragraph 5 of the September
2004 Amendment states that Wife must pay Husband $50 per
month for Son’s child support starting on January 5, 2004.
State v. Guyton, 135 Hawaiʻi 372, 378, 351 P.3d 1138, 1144
(2015) (reasoning that plain language governs if the decree
is unambiguous). It would be incongruous to conclude that
Husband was still required to pay Wife child support for
Son at the same time that Wife was mandated to pay Husband
for Son’s support. If Wife’s position were adopted, it
would mean that Wife and Husband were concurrently
21
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
obligated to pay each other child support for Son from
January to September 2004, a conclusion that would not be
logical given that Son started living with Husband in
January 2004. The most reasonable reading of the September
2004 Amendment, therefore, is that at the point in which
Wife was required to pay Son’s child support in January
2004, Husband’s child support obligations for Son
terminated.8
The August 2004 Order, which stated that “child
support shall be modified effective September 5, 2004,” is
also consistent with the conclusion that Husband’s child
support obligations to Son terminated in January 2004. The
August 2004 Order is not controlling as to the issue of
child support modification, for the subject matter of that
order only compelled Husband to comply with Wife’s
settlement offer and awarded Wife costs and fees; it did
not directly modify the parties’ child support obligations
under the 1998 Decree. As such, the August 2004 Order’s
statement that “child support shall be modified effective
8
The first sentence of Paragraph 5 of the September 2004 Amendment
is not contrary to this conclusion. The fact that Husband was obligated to
pay $2,630 per month as child support for Daughter beginning in September
2004 means only that, from January 2004 to September 2004, Husband’s child
support for Daughter remained at $1,600 monthly based on the 1998 Decree.
22
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
September 5, 2004,” is reasonably construed as merely
setting a prospective date at which the actual modification
was to be effectuated.9 Accordingly, the ICA did not err in
holding that the September 2004 Amendment terminated
Husband’s child support obligations to Son as of January
2004.
2. The Issue of Whether Laches Applies Requires Remand to the
Family Court
Estoppel by laches is an equitable doctrine with two
components that must be satisfied in order to become applicable:
First, there must have been a delay by the plaintiff in
bringing his claim, and that delay must have been
unreasonable under the circumstances. Delay is reasonable
if the claim was brought without undue delay after
plaintiff knew of the wrong or knew of facts and
circumstances sufficient to impute such knowledge to him.
Second, that delay must have resulted in prejudice to
defendant.
Adair v. Hustace, 64 Haw. 314, 321, 640 P.2d 294, 300 (1982)
(citations omitted) (emphases added); accord Ass’n of Apartment
Owners of Newtown Meadows ex rel. its Bd. of Dirs. v. Venture
15, Inc., 115 Hawaiʻi 232, 284, 167 P.3d 225, 277 (2007). Thus,
9
Even assuming that the August 2004 Order directly modified the
parties’ child support obligations under the 1998 Decree, the September 2004
Amendment, which was subsequently filed and entered, superseded any
conflicting terms of the August 2004 Order. See Okazaki v. Okazaki, 38 Haw.
148, 151 (1948) (holding that all orders inconsistent with a final decree are
superseded); Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 40 (Tex. App.
2000) (holding that a subsequent order granting summary judgment modifies,
corrects, or reforms a previous summary judgment order in favor of the same
party).
23
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
as to the first requirement of unreasonable delay, a court
considers whether, under the circumstances, the delay in
bringing the claim was unreasonable. Adair, 64 Haw. at 321, 640
P.2d at 300. As to the second requirement of prejudice to the
opposing party, a court may consider, for example, “loss of
evidence with which to contest plaintiff’s claims, including the
fading memories or deaths of material witnesses, changes in the
value of the subject matter, changes in defendant’s position,
and intervening rights of third parties.” Id.
The ICA, in presuming that the family court applied
the doctrine of laches to estop Husband’s claim for
reimbursement, held that the “Family Court failed to apply the
applicable law [on laches] and thereby abused its discretion in
ruling [that Husband] was prevented from being reimbursed for
his overpayments of support for Son.” The ICA determined that
neither requirement of laches was present and that the family
court abused its discretion in holding otherwise. However,
while the family court did not expressly find “unreasonable
delay,” it did so inferentially when it concluded that Husband
was estopped from pursuing reimbursement for claimed overpayment
of child support for Son “[b]ecause [Husband] waited for
approximately 7 years before raising the issue . . . and did not
avail himself of opportunities to raise the issue when the
24
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
parties were before the court on other matters relating to the
children.”
The underlying factual findings of the court were
correct because Husband had been aware of his claim against Wife
since at least the time he received the letter from CSEA on
November 1, 2004, advising him that he had overpaid child
support to Wife in the amount of $14,040, but Husband waited
until April 13, 2011, to move for reimbursement against Wife.
As noted by the family court, Husband did not proffer a
satisfactory excuse for the almost seven-year delay, see In re
Kawai, 36 Haw. 533, 536 (1943) (holding that the party who waits
for an unreasonably protracted period before commencing an
action must provide a “satisfactory excuse”), despite having
several opportunities to raise this issue to the family court
during the intervening years.10 See Brown v. Bishop Trust Co.,
44 Haw. 385, 394—400, 355 P.2d 179, 185-186 (1960) (concluding
that the plaintiffs were barred by laches from commencing an
action because they waited more than 18 years after they were
apprised of “enough facts . . . to put them upon inquiry” of
their claim against the defendant). Since the family court
10
For example, Husband could have raised the issue of reimbursement
when Wife moved, on November 14, 2008, for post-decree relief asking the
family court to order Husband to pay Daughter’s college expenses.
25
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
concluded that Husband was estopped from seeking reimbursement,
the family court, based on its factual findings, implicitly
concluded that Husband’s delay in moving for reimbursement for
Son’s support payments was unreasonable. See Hayashi v.
Hayashi, 4 Haw. App. 286, 293, 666 P.2d 171, 176 (1983) (noting
that the family court did not specifically hold that the claim
was barred by laches, but reasoning that the family court’s
“finding was in fact equivalent to a determination that laches
was a bar”).
As to prejudice, the second element of laches, the ICA
reasoned that “[Wife] did not claim and the [f]amily court did
not find that [Wife] was prejudiced by the delay.” This ruling
is not supported by the record. What qualifies as prejudice for
purposes of the laches doctrine invariably depends on the facts
and circumstances of a particular case, but it is ordinarily
understood as anything that places the defendant “in a less
favorable position.” See 27A Am. Jur. 2d Equity § 143 (2008).
However, “the mere prospect that a defendant might
lose a case does not suffice to warrant the imposition of laches
as a barrier to a plaintiff’s action,” since “that sort of
prejudice could be claimed by all defendants all of the time.”
Wauchope v. U.S. Dep’t of State, 985 F.2d 1407, 1412 (9th Cir.
1993) (quoting TransWorld Airlines, Inc. v. Am. Coupon Exch.,
26
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Inc., 913 F.2d 676, 696 (9th Cir. 1990)). Prejudice must be
established by adducing evidence, and conclusory allegations of
harm would not suffice. Ass’n of Apartment Owners of Newtown
Meadows ex rel. its Bd. of Dirs., 115 Hawaiʻi at 284, 167 P.3d at
277.
In determining whether prejudice exists in child
support disputes, “[o]ne factor to be considered by the court .
. . is whether ‘the defendant may have changed [his or her]
position in a manner that would not have occurred but for
plaintiff’s delay.’” Kerrigan v. Kerrigan, 642 A.2d 1324, 1326
(D.C. 1994) (quoting Gull Airborne Instruments, Inc. v.
Weinberger, 694 F.2d 838, 844 (D.C. Cir. 1982)). In Kerrigan,
the husband unilaterally reduced his child support payments when
the child turned 21 years old. Id. The wife, without any
explanation, waited almost eight years before taking action to
challenge the husband’s reduction in his support payments. Id.
at 1327. In defense, the husband contended that the wife was
barred by laches from claiming arrearages in child support
because (1) “he changed his financial position significantly in
reliance upon the consent to modification implied” by the wife’s
extended silence; (2) “he made medical and educational payments
on behalf of his daughter and paid approximately $18,000 for her
wedding, which he would not have done without a reduction in the
27
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
monthly payments”; and (3) his advanced age and current
financial difficulties should be factored in the balance of
equities. Id. The District of Columbia Court of Appeals agreed
with the husband that laches was an available defense, that
these “factors must be taken into account as part of [the
husband’s] laches defense,” and that the husband had established
“a prima facie showing of laches,” thereby shifting the burden
to the wife to rebut it. Id.
Here, Wife argued in her opposition papers that
granting Husband’s requested relief would be a “horrendous
financial problem” for her. In addition, in her testimony
during the hearing in the family court, Wife related that “she
has real challenges as far as her work,” “her net after all” of
the expenses associated with her work in the summer as a scuba
diving instructor “is really quite small,” her work as a yoga
instructor had not been “a source of significant income,” she
had been experiencing physical challenges impeding her ability
to work, she was receiving unemployment compensation because she
had not been employed full time, and “it would be inequitable to
force her to pay” what Husband alleges is owed to him “given her
financial situation as well as the huge disparity that exists
between her situation and [Husband’s] situation.” We agree with
the D.C. Court of Appeals in Kerrigan that the current personal
28
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
and financial circumstances of the defendant (here, the Wife)
and the economic prejudice resulting from the plaintiff’s delay
are relevant factors in determining whether laches bars the
plaintiff’s claim. Kerrigan, 642 A.2d at 1327 (indicating that
the husband’s age and “current financial difficulties should
also be weighed in the balance” as part of the laches analysis).
Hence, it was error for the ICA to find that Wife “did not
claim” prejudice from Husband’s delay.
On the other hand, because the family court did not
address or make any findings of fact relating to the prejudice
prong, which includes economic harm to Wife resulting from
Husband’s delay in asserting his claim, the ICA’s statement that
“the [f]amily court did not find that [Wife] was prejudiced by
the delay” is not inaccurate. There appear to be three
possibilities that could explain the absence of a specific
finding by the family court as to prejudice. First, the family
court may not have been applying the laches doctrine. Second,
assuming that the family court applied the laches doctrine, the
court implicitly found that the prejudice prong had been
satisfied. Third, the family court failed to recognize that
prejudice was a required prong for the application of laches
and, consequently, did not make any finding as to prejudice.
29
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
In any event, the basis for the family court’s silence
on whether the prejudice prong was satisfied is uncertain.
Consequently, the family court’s conclusion that Husband is
estopped from pursuing reimbursement is not supported, under a
laches analysis, by findings of fact as to the presence or
degree of prejudice to Wife resulting from Husband’s delay.
Thus, the issue as to whether laches barred Husband from
claiming reimbursement from Wife for his overpayment of Son’s
child support must be remanded to permit the family court to
consider whether Wife was prejudiced by Husband’s unreasonable
delay and to render factual findings with respect to the
prejudice prong of laches. See Gussin v. Gussin, 73 Haw. 470,
836 P.2d 484 (1992) (holding that the ICA erred in not remanding
the case to the family court for further fact finding where the
family court did not make any findings as to donative intent or
any other element bearing on whether a legal gift had been
made). Alternatively, if the family court was applying another
legal doctrine, the court’s findings and conclusions should so
clarify. See id. As noted, the family court may have been
applying a different legal doctrine or rule in concluding that
Husband was “estopped from pursuing [his] claim.” But because
the family court did not specify the legal theory upon which its
conclusions were based, it is unclear whether the court’s denial
30
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
of Husband’s April 2011 Motion was based on equitable estoppel,
estoppel by laches, quasi-estoppel, HFCR Rule 60(b), or another
legal principle altogether.11
The ICA therefore erred by concluding that “both
elements of laches are not present” and that Husband was not
estopped from pursuing reimbursement for overpayment of Son’s
child support, rather than remanding this issue to the family
court for further consideration.12
B. Termination and Overpayment of Child Support for Daughter
The family court denied Husband’s request to
retroactively terminate Daughter’s child support to September
2009, when Daughter commenced her college education. In
11
Equitable estoppel is a defense requiring “proof that one person
wilfully caused another person to erroneously believe a certain state of
things, and that person reasonably relied on this erroneous belief to his or
her detriment.” Maria v. Freitas, 73 Haw. 266, 273, 832 P.2d 259, 264
(1992). Quasi-estoppel, on the other hand, is a species of equitable
estoppel precluding one “from asserting to another’s disadvantage, a right
inconsistent with a position previously taken by him” or her. Id. at 274,
832 P.2d at 264 (quoting Aehegma v. Aehegma, 8 Haw. App. 215, 234, 797 P.2d
74, 80 (1990)).
12
As an additional basis for its decision that Husband should be
reimbursed for his child support overpayments for Son, the ICA held that HRS
§ 557-52.5(d) applies in this case and that Wife had primary responsibility
for terminating the assignment of Husband’s income for child support.
However, the ICA’s reference to HRS § 571-52.2(d) does not affect its
conclusion as to Husband’s overpayment of Son’s child support and was not
dispositive of its holding. And even though the ICA discussed the
applicability of HRS § 571-52.2(d) and Wife’s responsibility under this
statute, the ICA’s ultimate holding as to Husband’s overpayment of Son’s
child support was based on its finding that the family court erred in
applying the doctrine of estoppel by laches. As such, it is unclear why the
ICA discussed the application of HRS § 571-52.2(d).
31
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
addition, the family court declined to “halt the child support
previously ordered until such a time that [Daughter] graduates
or attains the age of 23, whichever comes first.”
The September 2004 Amendment relating to child support
provides as follows:
Child support for each child shall continue until he or she
attains the age of 18 years or graduates from or
discontinues high school, whichever occurs last. The issue
of child support thereafter, if any, including the amount,
duration, manner of payment, payor, and payee, shall be
reserved for future agreement by the parties or future
determination by the Court, if necessary.
(Emphases added).
Where the language of the decree is clear and
unambiguous on its face, there is no room for interpretation and
its plain language must control. Guyton, 135 Hawaiʻi at 378, 351
P.3d at 1144; see Kawamata Farms, Inc. v. United Agri Prods., 86
Hawaiʻi 214, 259, 948 P.2d 1055, 1100 (1997) (according “plain
meaning” to this court’s remand order in construing its scope).
The language of the child support provision is clear
and unambiguous. The conjunction “until” means “up to the time
that” or “up to such time as.”13 Because “[c]hild support for
13
Merriam-Webster, http://www.merriam-webster.com/dictionary/until
(last visited May 18, 2016). A court may consult well-accepted dictionaries
in determining the meaning of words. In re Taxes, Hawaiian Pineapple Co.,
Ltd., 45 Haw. 167, 188, 363 P.2d 990, 1001 (1961); Leslie v. Bd. of Appeals
of Cty. of Haw., 109 Hawaiʻi 384, 393, 126 P.3d 1071, 1080 (2006) (using the
Webster’s Dictionary to find the meaning of “shall”).
32
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
each child shall continue until he or she attains the age of 18
years or graduates from or discontinues high school, whichever
occurs last,” Husband’s child support obligation continues “up
to the time that” or “up to such time as” the child turns 18,
graduates from high school, or discontinues high school,
whichever occurs last.
The plain meaning of the first sentence of the
September 2004 Amendment expressly obligates Husband to pay
child support for a particular child until that child reaches
the age of 18 years or graduates from or discontinues high
school, whichever occurs last. Thus, when Daughter turned 18 on
June 16, 2009, after graduating from high school, Husband’s
child support obligation under the first sentence of the
September 2004 Agreement for Daughter expired. Wife’s contrary
argument--that “[t]here is nothing in the language of the Decree
that provides that the support was to terminate on the later of
the child’s 18th birthday or graduation from high school”--
essentially disavows the plain meaning of the first sentence.
However, we note that under HRS § 580-47(a),14 the
family court, at the time of granting a divorce or later, if
14
In relevant part, HRS § 580-47(a) provides as follows:
Upon granting a divorce, or thereafter if . . .
jurisdiction of those matters is reserved under the decree
(continued. . .)
33
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
jurisdiction is reserved, has the authority to compel parties to
provide child support “of an adult or minor child . . . whether
or not the petition is made before or after the child has
attained the age of majority.” HRS § 580-47(a). In this case,
the family court reserved jurisdiction over the matter of child
support in both the 1998 Divorce Decree and the September 2004
Amendment. As such, the family court had the authority,
pursuant to HRS § 580-47(a), to order Husband to continue paying
child support for Daughter after Daughter attained the age of 18
years. See Richardson v. Richardson, 8 Haw. App. 446, 449, 808
P.2d 1279, 1282 (1991) (noting that HRS § 580-47(a) “takes
(. . .continued)
by agreement of both parties or by order of court after
finding that good cause exists, the court may make any
further orders as shall appear just and equitable (1)
compelling the parties or either of them to provide for the
support, maintenance, and education of the children of the
parties . . . . In making these further orders, the court
shall take into consideration: the respective merits of the
parties, the relative abilities of the parties, the
condition in which each party will be left by the divorce,
the burdens imposed upon either party for the benefit of
the children of the parties, the concealment of or failure
to disclose income or an asset, or violation of a
restraining order issued under section 580-10(a) or (b), if
any, by either party, and all other circumstances of the
case. In establishing the amounts of child support, the
court shall use the guidelines established under section
576D-7. Provision may be made for the support,
maintenance, and education of an adult or minor child and
for the support, maintenance, and education of an
incompetent adult child whether or not the petition is made
before or after the child has attained the age of majority.
HRS § 580-47(a).
34
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
precedence over [the provision] terminati[ng] . . . Father’s
child support obligation when the children reach the age of
18”). Wife expressly argued this point in the family court and
the ICA, but neither court addressed Wife’s contention. Thus,
on remand the family court should address whether, pursuant to
its authority under HRS § 580-47(a), it was appropriate to order
child support payments for Daughter after the obligation for
child support expired under the first sentence of the September
2004 Amendment.15
Additionally, under HRS § 580-47(b) (2007), the family
court “at all times . . . ha[s] the power to grant any and all
orders that may be necessary to protect and provide for the
support and maintenance of the parties and any children of the
parties to secure justice.” HRS § 580-47(b). Accordingly, the
family court on remand also retains the discretionary authority
provided by HRS § 580-47(b) to craft appropriate relief
regarding child support.16
15
We note that HRS § 580-47(a) requires awards of child support to
be consistent with the child support guidelines. HRS § 580-47(a). The
family court did not reference the child support guidelines in its Decision
and Order.
16
Relatedly, under HRS § 580-47(c),
[n]o order entered under the authority of subsection (a) or
entered thereafter revising so much of such an order as
provides for the support, maintenance, and education of the
children of the parties shall impair the power of the court
(continued. . .)
35
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
The family court’s decision not to allow Husband to
recoup child support overpayments for Daughter was also based,
at least in part, on the fact that it would be inequitable if
Husband were allowed to do so. This is similar to the family
court’s reasoning that Husband was estopped from recouping
overpayments made for Son’s child support. Based on this
perceived inequity, the family court concluded that Husband was
not entitled to have his child support obligation to Daughter
terminated.
The ICA did not address this finding. Similar to the
estoppel conclusion of the family court with respect to child
support overpayments for Son, it is not clear from the family
court’s Decision and Order what legal theory was utilized in
order to reach the conclusion of inequity. Hence, upon remand,
the family court must clearly state the basis for its conclusion
of inequity and render sufficient findings of fact in support of
that conclusion.
(. . .continued)
from time to time to revise its orders providing for the
support, maintenance, and education of the children of the
parties upon a showing of a change in the circumstances of
either party or any child of the parties since the entry of
any prior order relating to the support, maintenance, and
education.
HRS § 580-47(c) (2007).
36
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
VII. Conclusion
Accordingly, the ICA erred in determining that the
circuit court abused its discretion in concluding that Husband
was precluded from seeking reimbursement for his overpayment of
child support for Son. Instead, for the reasons stated, the ICA
should have remanded the case to the family court for a
determination of whether Husband was estopped, under laches or
other applicable legal principles, from seeking reimbursement
for overpaid child support for Son. Additionally, the ICA erred
by failing to address (1) the family court’s finding of inequity
as to Husband’s reimbursement claim for overpaid child support
for Daughter and (2) Wife’s argument that the family court was
authorized under HRS § 580-47(a) to order Husband to continue
paying Daughter’s child support. The ICA should have remanded
the case in order for the family court (1) to consider in the
first instance whether it was appropriate to order child support
payments for Daughter after the obligation expired under the
2004 Amendment and (2) as necessary, to clarify the basis for
its conclusion of inequity as to reimbursement of Daughter’s
child support and to render adequate findings of fact to support
this conclusion. For the foregoing reasons, we vacate in part
the ICA Judgment on Appeal and affirm to the extent that it
vacated the Decision and Order of the family court. This case
37
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
is remanded to the family court for further proceedings
consistent with this opinion.
Francis T. O’Brien /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Charles T. Kleintop and
Dyan M. Medeiros /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
38