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Electronically Filed
Supreme Court
SCWC-15-0000048
06-APR-2017
08:16 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
P.O.,
Respondent/Petitioner-Appellee,
vs.
J.S.,
Petitioner/Respondent-Appellant.
SCWC-15-0000048
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000048; FC-P NO. 08-1-0162)
APRIL 6, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
This case addresses the manner in which the family
court determined monthly child support for the Child of
Petitioner JS (Father) and Respondent PO (Mother). Following a
series of written and oral agreements between Mother and Father
regarding child support, Father sought court review and
modification of his monthly support obligation. The family
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court, citing in part Father’s failure to show a material change
in circumstances, denied the request and set Father’s monthly
payment at the same amount provided in the parties’ prior oral
agreement. Father appealed the child support ruling, which the
ICA affirmed. On certiorari to this court, Father contends that
he is entitled to review of his child support obligation
irrespective of changed circumstances and that the family court
erred in determining his monthly payment without utilizing the
Hawaiʻi Child Support Guidelines.
We hold that, pursuant to Hawaii Revised Statutes §
576D-7(e) (2006), a responsible or custodial parent for which
support has previously been ordered is entitled to a review of a
child support order not more than once every three years without
having to show a change in circumstances. We also hold that the
family court is required by multiple provisions of the Hawaii
Revised Statutes to use the Hawaiʻi Child Support Guidelines when
it reviews the merits of a request for adjustment of a monthly
support obligation. Thus, we vacate in part the rulings of the
family court and the ICA and remand the case so that the family
court may calculate Father’s support payment in accordance with
these statutory requirements.
2
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I. BACKGROUND
Child was born to Mother and Father in October 2007.
At the time Child was born, Father was employed as a
professional football player.
On February 14, 2008, Mother filed a petition for
paternity with the Family Court of the First Circuit (family
court). The petition included a Hawaiʻi Child Support Guidelines
Worksheet (Guidelines Worksheet) that included Father’s income,
Mother’s income, monthly child care expenses, and health and
dental care expenses for Child. The Guidelines Worksheet was
prepared by Mother’s attorney, signed by both Mother and Father,
and stated that Father’s payable child support obligation was
calculated at $4,870 per month.
Following submission of the petition, Father and
Mother, with the assistance of Mother’s attorney, entered into a
stipulated agreement regarding custody, visitation, and child
support.1 On March 19, 2008, Father and Mother memorialized
their agreement by filing a stipulation with the family court
(2008 Stipulation). In the 2008 Stipulation, the parties agreed
that Father would pay Mother $4,870 per month in child support
1
Issues relating to custody and visitation are not raised on
certiorari and will not be addressed further.
3
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starting March 1, 2008. The 2008 Stipulation did not include a
Guidelines Worksheet.
On January 20, 2010, Mother filed with the family
court a Motion and Declaration to Modify Child Support. The
motion included a Guidelines Worksheet that reflected the
incomes of both Mother and Father. The Guidelines Worksheet was
signed by Mother and calculated Father’s monthly child support
obligation at $16,050. Father’s signature does not appear on
the Guidelines Worksheet.
On July 21, 2010, Father and Mother amended their
child support agreement by filing a stipulation to modify the
2008 Stipulation (2010 Stipulation). In the 2010 Stipulation,
Father agreed to pay Mother $8,500 per month in child support
and deposit $2,500 per month into a savings account for Child,
effective June 2010. A Guidelines Worksheet was also not
included with the 2010 Stipulation.
In October 2010, Father was released from employment
as a professional football player. By oral agreement in
February 2011 (2011 Agreement), Mother and Father reduced
Father’s monthly child support obligation to $3,500 in light of
Father’s loss of employment. No written agreement was filed
with the family court memorializing the reduction in Father’s
child support payment.
4
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In November 2012, Father married his current spouse.
Father related that he depleted the savings accrued from his
employment as a professional football player by the end of 2012.
In explaining his depleted savings at trial, Father referred to
an expenditure of $200,000 for his wedding and payment of
various other debts and expenses.
According to Father, as his funds started to dwindle,
he realized that he could not continue to pay the previously
agreed-upon $3,500 per month. Father testified that as a
result, he initiated contact with Mother to reduce child support
and the parties orally agreed to lower support towards the end
of 2012. Father could not recall whether this agreement lowered
support to $2,000 or $1,500 per month. Mother testified that
she did not agree to further reduce child support in 2012 and
that Father unilaterally decided to decrease support to $1,500
per month without saying anything to her. In late 2012, Father
began making monthly child support payments between $1,500 and
$2,000. Towards the end of 2013, Father stopped paying child
support.
Father testified that his spouse pays for all family
living expenses because of his reduced savings. Father, who is
a college graduate, indicated that he remains unemployed, citing
a sports-related injury and a pending disability claim.
5
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II. FAMILY COURT PROCEEDINGS
On August 19, 2013, Father filed a Motion for Relief
after Judgment or Order and Declaration (Motion for Relief)
requesting that the family court recalculate his child support
obligation based on the parties’ current incomes. On September
18, 2013, Mother filed a motion to award her sole legal custody
of Child, enforce the 2010 Stipulation, and for attorneys’ fees.2
On October 7, 2013, pursuant to an agreement between
the parties, the family court ordered that (1) all issues raised
by Mother and Father would be tried together, (2) the parties
were to engage in mediation, and (3) beginning in October 2013
and going forward, Father would pay child support in the amount
of $3,500 per month pending resolution of the motions at
mediation or trial (Pretrial Order).3
The family court held a six-day trial pertaining to
the parties’ motions that began on June 16, 2014, and concluded
on September 16, 2014. The court heard testimony on the matter
of child support as stated above.4 On December 30, 2014, the
family court entered an Order Re: Trial (Trial Order)
2
The Honorable Jennifer L. Ching presided in the proceedings in
this case.
3
There is no indication in the Pretrial Order that the Guidelines
were used to calculate the $3,500 monthly support obligation.
4
The family court also received testimony relating to other issues
not before this court.
6
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determining Father’s child support as $3,500 per month,
effective February 1, 2011.
In its Findings of Fact and Conclusions of Law, the
court found that on or about February 2011, the parties orally
agreed to set child support at $3,500 per month. The court
found that Father’s testimony regarding an alleged agreement in
2012 to lower the amount to $2,000 or $1,500 per month lacked
credibility.
The family court also found that Father was a college
graduate and had not sought work following his 2010 employment
termination. However, the court made no findings regarding
Father’s potential earning capacity, Father’s assets, or any
joint assets held with Father’s spouse.
With regard to Father’s request for modification of
his monthly child support obligation, the family court found
that Father “failed to meet his burden of proof” to show that
the $3,500 support obligation that the parties agreed to should
be modified. The court also found that there had been no
“material change of circumstances” from the 2011 Agreement,
which set child support at $3,500 per month.5 Based on these
5
The relevant findings of fact (FOFs) state as follows:
52. Father failed to meet his burden of proof to show
that the $3,500 monthly child support agreed to should be
modified, or the amount of any warranted modification.
(continued. . .)
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findings, the court determined that Father owed Mother $64,490
in past due child support through January 2015.
In its conclusions of law, the family court quoted the
requirement of Hawaii Revised Statutes (HRS) § 584-15(e) (2006)
that the Hawaiʻi Child Support Guidelines (Guidelines) were to be
utilized in determining the amount to be paid by a parent for
support of a child. However, there is no indication in its
findings of fact or conclusions of law that the family court
applied the Guidelines in considering Father’s support
obligation. Rather, the court concluded that Father had not
proved that the $3,500 per month amount agreed to by the parties
in the 2011 Agreement and in the Pretrial Order should be
modified and that it was “appropriate and fair” that support be
set at that amount.6
(. . .continued)
53. There has not been any material change of
circumstances from the time when Father agreed to child
support in the amount of $3,500 per month.
6
The relevant conclusions of law (COLs) state the following:
7. Father has not proven that the $3,500 per month
child support that was agreed to by the parents (in
approximately December of 2010); and agreed to and ordered
in the [Pretrial Order], should be modified.
8. It is appropriate and fair that Father's monthly
child support commencing February 1, 2011, and his current
monthly child support, be $3,500.
8
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The family court entered an Order Re: Child Support
Arrears on January 21, 2015 (Arrears Order), providing for
$64,490 in past due child support.
III. ICA PROCEEDINGS
Father appealed the Trial Order and Arrears Order to
the Intermediate Court of Appeals (ICA),7 arguing that the family
court erred when it denied his request for child support
modification, set monthly child support in the amount of $3,500
effective February 1, 2011, and concluded that Father owed
Mother $64,490 in child support arrears. Specifically, Father
submitted that the family court had failed to calculate his
monthly child support obligation using the Guidelines as
required by the Hawaii Revised Statutes. Father also contended
that he had made a sufficient showing to receive a reduction of
his monthly child support payment.8
In its June 15, 2016 published opinion (Opinion), the
ICA determined that the family court had not erred in rejecting
7
At oral argument before this court, it was disclosed that Father
stopped paying monthly child support pending appeal of this case. Oral
Argument at 42:15-41, PO v. JS, SCWC-15-0000048 (2017),
http://oaoa.hawaii.gov/jud/oa/17/SCOA_020217_SCWC_15_48.mp3. Testimony at
trial suggests that Father’s last support payment was made in late 2013. We
observe that there was no stay entered by the family court authorizing
cessation of child support payments.
8
Additionally, Father argued that Mother should be barred from
requesting past due child support under the principles of laches and/or
equitable estoppel. The ICA rejected this argument, PO v. JS, 138 Hawai#i
109, 123, 377 P.3d 50, 64 (App. 2016), and because Father has not raised it
on certiorari, it is not further addressed.
9
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Father’s request for child support modification. PO v. JS, 138
Hawai#i 109, 122, 377 P.3d 50, 63 (App. 2016). The ICA quoted
Davis v. Davis, 3 Haw. App. 501, 506, 653 P.2d 1167, 1170
(1982), for the proposition that a party seeking to modify an
existing child support obligation must show that there has been
a “substantial and material change in the relevant circumstances
so as to permit consideration of the modification request.” PO
v. JS, 138 Hawai#i at 122, 377 P.3d at 63. The ICA considered
the most recently enforceable child support agreement by which
to measure changed circumstances to be the 2011 Agreement to
reduce Father’s payment to $3,500 per month.9 Id. The ICA
agreed with the family court’s determination that Father’s
wedding expenses and debt payments in 2012 did not constitute a
material change in circumstances sufficient to warrant a
modification of the child support amount set by the 2011
Agreement. Id.
The ICA then addressed Father’s contention that the
family court should have utilized the Guidelines in setting his
monthly child support obligation. Id. at 122-23, 377 P.3d at
63-64. The ICA cited HRS § 571-52.5 (2006), which requires the
9
The ICA noted Father’s testimony that the parties had agreed to
further reduce child support in 2012, but stated that it would not reverse
the family court’s finding that Father’s testimony on this issue was not
credible because it was supported by substantial evidence in the record and
not clearly erroneous. PO v. JS, 138 Hawai#i at 121, 377 P.3d at 62.
10
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court to use the Guidelines when establishing or modifying a
child support order “except when exceptional circumstances
warrant departure.” Id. The ICA concluded that the family
court could have declined to use the Guidelines because it found
that the existence of the 2011 Agreement to reduce child support
was an “exceptional circumstance.” Id. at 123, 377 P.3d at 64.
Thus, the ICA could not “conclude that enforcing the February
2011 Agreement without reliance on the Guidelines was a manifest
abuse of discretion.” Id. The ICA also held that the family
court did not abuse its discretion in setting Father’s past due
child support at $64,490. Id. at 123-24, 377 P.3d at 64-65.
Based on separate errors not raised on certiorari to
this court,10 the ICA vacated in part the family court’s Trial
Order and Arrears Order and remanded the case for proceedings
consistent with its Opinion. Id. at 124, 377 P.3d at 65.
IV. STANDARDS OF REVIEW
The family court’s [findings of fact (FOFs)] are reviewed
on appeal under the “clearly erroneous” standard. A FOF 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. “Substantial evidence” is credible
10
The ICA held that the family court erred when it (1) waived the
psychologist-client privilege held by Child without determining whether
waiving the privilege and allowing the psychologist to testify at trial was
in the best interests of Child, and (2) concluded that Father had not
demonstrated a material change in circumstances warranting a change of the
parties’ visitation schedule. PO v. JS, 138 Hawai#i at 118, 120, 377 P.3d at
59, 61.
11
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evidence which is of sufficient quality and probative value
to enable a person of reasonable caution to support a
conclusion.
Kakinami v. Kakinami, 127 Hawaiʻi 126, 136, 276 P.3d 695, 705
(2012) (quoting Fisher v. Fisher, 111 Hawaiʻi 41, 46, 137 P.3d
355, 360 (2006)). A family court’s conclusions of law are
reviewed de novo. Id.
V. DISCUSSION
On certiorari, Father argues that he has the right
under Hawaiʻi law to a review of his child support obligation
once every three years irrespective of changed circumstances and
that the family court erred in applying a different standard.
Father also contends that in considering his request for
modification, the family court was required to calculate his
support payment by utilizing the Guidelines. Because the family
court did not use the Guidelines, Father submits that the court
erred in setting child support at $3,500 per month as of
February 1, 2011. Mother responds that the family court acted
reasonably in declining to reduce Father’s monthly child support
payment.
A. Request for Review and Modification of Child Support Order
Father first contends that Hawaiʻi law entitles him to
a review of his monthly child support obligation once every
three years without having to show a change in circumstances.
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Chapter 576D of the Hawaii Revised Statutes, entitled
“Child Support Enforcement,” establishes the Child Support
Enforcement Agency (CSEA), the Guidelines, and other matters
specific to child support orders. HRS § 576D-7(e) provides the
right to petition the family court for a review and modification
of a child support order:
The responsible or custodial parent for which child support
has previously been ordered shall have a right to petition
the family court or the child support enforcement agency
not more than once every three years for review and
adjustment of the child support order without having to
show a change in circumstances. The responsible or
custodial parent shall not be precluded from petitioning
the family court or the child support enforcement agency
for review and adjustment of the child support order more
than once in any three-year period if the second or
subsequent request is supported by proof of a substantial
or material change of circumstances.
HRS § 576D-7(e) (2006) (emphases added). Thus, the responsible
or custodial party is entitled to a review and reassessment of a
child support order once every three years “without having to
show a change in circumstances.” Id.; see also HRS § 576E-14(d)
(2006) (same in administrative child support proceedings); HRS §
580-47(e) (2006) (same following divorce proceedings). An
individual who seeks review of a child support order more than
once “in any three-year period” may do so provided the request
is supported by proof of a substantial or material change in
circumstances.11 HRS § 576D-7(e).
11
Unlike in Waldecker v. O’Scanlon, where this court held that a
petitioner need not demonstrate a material change in circumstances to obtain
(continued. . .)
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The right to review of a child support order not more
than once every three years was included in Hawaii’s child
support enforcement framework by legislative enactment in 1997.
See 1997 Haw. Sess. Laws Act 293, § 28 at 664-65. This right
was codified at HRS § 576D-7(e) with respect to judicial child
support enforcement, HRS § 576E-14(d) regarding administrative
child support enforcement, and HRS § 580-47(e) as it relates to
child support orders and divorce proceedings. See supra. Thus,
as a result of these 1997 amendments, an individual is entitled
to receive review of an existing child support order without
showing changed circumstances “not more than once every three
years.” HRS § 576D-7(e); HRS § 576E-14(d); HRS § 580-47(e).
In this case, the family court found that there had
been no “material change of circumstances” from the parties’
oral 2011 Agreement to set support at $3,500 per month to the
August 19, 2013 filing of Father’s Motion for Relief, and, as a
result, it concluded that modification was not appropriate.
Likewise, the ICA in its Opinion in this case relied on Davis v.
(. . .continued)
modification of a child custody order, the child support modification
statutes require a showing of a substantial or material change in
circumstances when review is sought more than once in any three-year period
and explicitly reject such a requirement when review is sought not more than
once every three years. 137 Hawaiʻi 460, 467-70, 375 P.3d 239, 246-49 (2016)
(explaining that child custody statute did not expressly require party
seeking review and modification of custody order to demonstrate material
change in circumstances and that requirement to do so as developed by caselaw
was inconsistent with statute).
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Davis, 3 Haw. App. 501, 506, 653 P.2d 1167, 1170 (1982), and
determined that Father was required to show a substantial change
in circumstances from the 2011 Agreement to receive review of
his request for reduction in child support. PO v. JS, 138
Hawai#i 109, 122, 377 P.3d 50, 63 (App. 2016). Neither the
family court nor the ICA cited or otherwise acknowledged the
impact of HRS § 576D-7(e) on Father’s right to review of his
monthly support payment.
There are two possible rationales for the rulings of
the family court and the ICA. First, the family court, like the
ICA, may have relied on the ICA’s 1982 decision in Davis, which
held that a request for modification of a child support order
must be based on “a substantial and material change in the
relevant circumstances which were before the court when it made
the original order.”12 3 Haw. App. at 505-06, 653 P.2d at 1170
(citing HRS § 580-47(c) (1976, as amended)). However, any
reliance on Davis in this case would be misplaced. Davis was
decided by the ICA 15 years before the 1997 legislative
enactment that amended the standard for child support
modification requests, see supra, and there is no indication
12
The family court did not affirmatively cite to Davis, but it
concluded in its findings of fact that there had “not been any material
change of circumstances from the time when Father agreed to child support in
the amount of $3,500 per month.”
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from the ICA’s Opinion that the impact of these amendments was
recognized.13 To the extent that the family court and the ICA
may have relied exclusively on Davis to reject Father’s request
for child support modification and failed to consider the effect
of the enactment of HRS § 576D-7(e) on this case, each held
Father to an incorrect standard with respect to review of
requests for child support modification.
Alternatively, the family court and the ICA may have
considered that the oral 2011 Agreement to reduce monthly
support to $3,500 constituted the parties’ most recent “child
support order” and determined that Father’s August 19, 2013
Motion for Relief required him to show “a substantial or
material change of circumstances” because the motion was a
13
It is noted that in Jaylo v. Jaylo, the ICA acknowledged the
right of a custodial or responsible parent to seek review of a child support
order once every three years without having to show a change in
circumstances. 124 Hawaiʻi 488, 498–99, 248 P.3d 1219, 1229–30 (App. 2011),
vacated on other grounds, 125 Hawaiʻi 369, 262 P.3d 245. However, in several
other decisions following the 1997 enactment of HRS §§ 576D-7(e), 576E-14(d),
and 580-47(e), the ICA has cited to Davis for the proposition that “[a]
petition to modify an order for child support cannot be based on the same set
of facts that were before the court when the original order was made” and
that “[t]here must have been substantial and material change in relevant
circumstances which were before the court when it made the original order.”
Rao v. Rao, 121 Hawaiʻi 541, 221 P.3d 519 (App. 2009) (mem.); see also Hoernig
v. Hoernig, 129 Hawaiʻi 427, 301 P.3d 1268 (App. 2013) (SDO); Jackson v.
Jackson, 137 Hawaiʻi 206, 366 P.3d 1085 (App. 2016) (SDO). It is noted that
in none of these cases does the record indicate that a request to modify
child support had been made within the three years preceding the request at
issue on review, which would have otherwise affected an analysis under HRS §
576D-7(e). To the extent that these cases imply that a party cannot rely on
HRS §§ 576D-7(e), 576E-14(d), and 580-47(e) to request review of a support
order not more than once every three years absent a showing of changed
circumstances, they are incorrect.
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“subsequent request” for adjustment of support within “any
three-year period.” HRS § 576D-7(e).14 However, as noted, no
reference was made to HRS § 576D-7(e) or its substantive
principles in the family court’s rulings or in the ICA’s
Opinion.
In any event, Father and Mother’s oral 2011 Agreement
to modify Father’s child support obligation is not relevant to
an analysis of the right to review of a “child support order”
under HRS § 576D-7(e). The 2011 Agreement was not memorialized
in writing and filed with the family court. As such, it does
not constitute a “child support order” within the meaning of HRS
§ 576D-7(e). See HRS § 576D-1 (2006) (defining “order of
support” as “a judgment, decree, or order, whether temporary,
final, or subject to modification, issued by a court or an
administrative agency of competent jurisdiction, for the support
and maintenance of a child”); HRS § 576E-1 (2006) (defining
“support order” for purposes of administrative child support
proceedings as “an obligation determined by a court or duly
authorized administrative agency, for the maintenance of a
dependent child”); HRS § 576B-102 (2006) (defining “child
14
Because the July 21, 2010 Stipulation filed with the family
court, rather than the oral 2011 Agreement, is the relevant “child support
order” for purposes of HRS § 576D-7(e), we do not address whether a party who
files an initial request for review and adjustment of a “child support order”
within the three-year period immediately following entry of that order must
show a “substantial or material change of circumstances” pursuant to the
statute. See HRS § 576D-7(e).
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support order” for purposes of Uniform Interstate Family Support
Act as a “support order” for a child, and, in turn, defining
“support order” as a “judgment, decree, order, decision, or
directive, whether temporary, final, or subject to modification,
issued in a state or foreign country for the benefit of a
child”). Accordingly, the 2010 Stipulation filed with and
approved by the family court constituted the relevant “child
support order” for purposes of HRS § 576D-7(e), and the family
court and the ICA erred to the extent that they may have
determined otherwise.
As recounted, Father and Mother’s 2010 Stipulation
modifying their respective support, visitation, and custody
rights and obligations was filed with the family court on July
21, 2010. The record does not indicate that Father ever
submitted to the family court a request for review of his child
support obligation before he filed his August 19, 2013 Motion
for Relief. Thus, pursuant to HRS § 576D-7(e), because the
August 19, 2013 Motion for Relief sought review and adjustment
of a “child support order,” which in this case was entered on
July 21, 2010, Father was entitled to a review and reassessment
of his monthly support payment without having to show a change
in circumstances. As a result, the family court erred to the
extent that it conditioned review of Father’s support obligation
on his ability to show a material change in circumstances, and
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the ICA erred when it affirmed this ruling of the family court.
PO v. JS, 138 Hawai#i at 122, 124, 377 P.3d at 63, 65.
B. Use of Child Support Guidelines
Father also contends the family court erred when it
failed to use the Guidelines in determining his monthly child
support obligation.
The Hawai#i Child Support Guidelines are promulgated by
the Family Courts of Hawai#i and are used by the family courts to
determine monthly child support. See HRS § 576D-7(a) (2006).
The Guidelines contain substantive rules and principles relating
to calculation of support and include various appendices;
Appendix A includes the “Child Support Guidelines Worksheet”
(Guidelines Worksheet), which is used to determine the initial
calculation of a parent’s monthly support obligation. Haw.
State Judiciary, 2010 Hawai#i Child Support Guidelines app. A,
http://www.courts.state.hi.us/docs/form/maui/2CE248.pdf (last
visited Mar. 16, 2017).
There are several sources of authority that set forth
a family court’s obligation to calculate monthly child support
using the Guidelines. HRS chapter 571, entitled “Family
Courts,” governs the family courts in general. HRS § 571-52.5
provides in relevant part as follows:
When the court establishes or modifies the amount of child
support required to be paid by a parent, the court shall
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use the guidelines established under section 576D-7, except
when exceptional circumstances warrant departure.
HRS § 571-52.5 (2006) (emphasis added). Therefore, the family
courts are required to use the Guidelines when establishing or
modifying child support unless exceptional circumstances warrant
departure. Id.
Relatedly, HRS chapter 576D provides that “[t]he
family court . . . shall establish guidelines to establish the
amount of child support when an order for support is sought or
being modified.” HRS § 576D-7(a). Additionally, HRS § 576D-
7(b)(5) provides that “[t]he guidelines shall be . . .
considered by the [family court] judges in the establishment of
each child support order.”15 HRS § 576D-7(b)(5) (emphases
added).
Use of the Guidelines is also required by HRS chapter
584, the “Uniform Parentage Act.” Chapter 584 “is concerned
specifically and exclusively with actions to establish the
paternity of a child and to obtain child support, reimbursement
15
HRS chapter 576D was enacted in 1986 to bring the State of Hawaiʻi
into compliance with recently enacted federal law that required the states to
(1) establish child support guidelines, and (2) make the guidelines available
to all judges who have the power to determine child support, though the
guidelines “need not be binding upon such judges.” See Child Support
Enforcement Amendments of 1984, Pub. L. No. 98-378, 98 Stat. 1305 (1984)
(codified as amended at 42 U.S.C. § 667). However, in enacting chapter 576D,
the Hawaiʻi legislature departed from its federal counterpart and made the use
of the Guidelines by family court judges mandatory rather than discretionary.
See 1986 Haw. Sess. Laws Act 332, § 2 at 698 (“The guidelines shall be . . .
[a]pplied statewide.”).
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and other relief.” Child Support Enf’t Agency v. Doe, 98 Hawaiʻi
58, 63, 41 P.3d 720, 725 (App. 2001) (comparing HRS chapters 571
and 584). HRS § 584-15(e) provides in relevant part:
In determining the amount to be paid by a parent for
support of the child and the period during which the duty
of support is owed, a court enforcing the obligation of
support shall use the guidelines established under section
576D-7.
HRS § 584-15(e) (2006) (emphases added).
Thus, the statutory framework relating to child
support mandates that the family courts utilize the Guidelines
in setting and modifying child support orders. Indeed, in its
COL 6, the family court acknowledged that HRS § 584-15(e)
required it to administer the Guidelines whenever it
“determin[es] the amount to be paid by a parent for support of
[a] child.” However, there is no indication that the family
court utilized the Guidelines in determining Father’s monthly
support obligation in the Trial Order. The family court also
made no mention of the Guidelines in its Findings of Fact and
Conclusions of Law, except to reference testimony that the
Guidelines were not used in setting the support amount in the
2010 Stipulation. The Pretrial Order setting Father’s support
obligation at $3,500 per month pending resolution of the case at
trial also makes no reference to the Guidelines. Further, the
family court made no findings with respect to key factors
utilized by the Guidelines to calculate child support. For
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example, the court did not make findings regarding Mother’s
income, Father’s earning capacity,16 or the needs of Child. In
fact, rather than using the Guidelines or its underlying
factors, the family court in COL 7 appears to have justified its
child support determination of $3,500 per month based on the
parties’ 2011 Agreement and Father’s agreement to pay that sum
pending resolution at mediation or trial.17
Father’s Motion for Relief in this case specifically
requested that the family court conduct a recalculation of child
support based on the parties’ current incomes. The family court
did not apply the Guidelines, and its failure to do so deprived
Father of a calculation of his monthly support obligation using
the “wisdom of . . . the Guidelines.” Mack v. Mack, 7 Haw. App.
171, 172, 749 P.2d 478, 479 (1988) (determining that family
court’s decision not to administer Guidelines in setting support
amount because the children were partially self-sufficient
16
We note that in determining gross income for calculation of child
support, the Guidelines permit the family court to use “imputed income” when
“a parent is not employed full-time or is employed below full earning
capacity.” Haw. State Judiciary, 2010 Hawai#i Child Support Guidelines 23.
When the parent is unemployed or underemployed for reasons other than caring
for the child, the parent’s income may be determined and imputed by the
family court according to the parent’s “income capacity in the local job
market” and “considering both the reasonable needs of the child(ren) and the
reasonable work aspirations of the parent.” Id.
17
In COL 7, the family court determined that “Father has not proven
that the $3,500 per month child support that was agreed to by the parents (in
approximately December of 2010); and agreed to and ordered in the [Pretrial
Order], should be modified.”
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adults was wrong). Additionally, the failure of the family
court to apply the Guidelines rendered the child support award
in essence unreviewable, as there is no meaningful way to
evaluate how the amount was determined or whether it was
correctly calculated. See Gordon v. Gordon, 135 Hawaiʻi 340,
350-51, 350 P.3d 1008, 1018-19 (2015) (family court’s failure to
make adequate findings on the record did not permit meaningful
appellate review of family court’s division of marital estate).
Thus, the family court erred when it determined Father’s monthly
support obligation without using the Guidelines as required by
statute.
C. Exceptional Circumstances
As stated, the family court must utilize the
Guidelines in establishing or modifying child support “except
when exceptional circumstances warrant departure.” HRS § 571-
52.5; see also Haw. State Judiciary, 2010 Hawai#i Child Support
Guidelines 11, http://www.courts.state.hi.us/docs/form/
maui/2CE248.pdf (last visited Mar. 16, 2017) (detailing that the
family court may deviate from the support amount calculated
using the Guidelines Worksheet upon a showing of “exceptional
circumstances”). Courts of this jurisdiction have found
“exceptional circumstances” to encompass a broad variety of
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factual scenarios.18 The Guidelines also give examples of when
“exceptional circumstances” may or may not exist and grant broad
discretion to the family court to find the existence of “other
exceptional circumstances” beyond those enumerated. Haw. State
Judiciary, 2010 Hawai#i Child Support Guidelines 11-13 (for
example, identifying as enumerated “exceptional circumstances”
the extraordinary needs of the child or other parent, other
payments made on behalf of the child or other parent, and a
parent’s inability to earn income).
Pursuant to HRS § 571-52.5 and the Guidelines, the
existence of exceptional circumstances may allow for deviation
from the support amount calculated using the Guidelines
Worksheet.19 However, exceptional circumstances do not excuse a
18
See, e.g., Child Support Enf’t Agency v. Doe, 104 Hawai#i 449,
457-58, 91 P.3d 1092, 1100-01 (App. 2004) (support of additional legal
children may constitute an exceptional circumstance); Child Support Enf’t
Agency v. Doe, 98 Hawai#i 58, 65, 41 P.3d 720, 727 (App. 2001) (monthly income
that would result in a “computation higher than the reasonable needs of the
children based on the relevant standard of living” may constitute an
exceptional circumstance (quoting Nabarrete v. Nabarrete, 86 Hawai#i 368, 371,
949 P.2d 208, 211 (App. 1997))); Nabarrete, 86 Hawai#i at 371, 949 P.2d at 211
(adult child’s own income may reduce his or her “reasonable needs” and may
therefore constitute an exceptional circumstance); Child Support Enf’t Agency
v. Mazzone, 88 Hawaiʻi 456, 462, 967 P.2d 653, 659 (App. 1998) (“leav[ing]
open” the question of whether a difference in cost of living between Hawai#i
and child’s present state of residence constituted an exceptional
circumstance); Jaylo v. Jaylo, 124 Hawaiʻi 488, 498–99, 248 P.3d 1219, 1229–30
(App. 2011) (physical disability may constitute an exceptional circumstance),
vacated on other grounds, 125 Hawaiʻi 369, 262 P.3d 245; Doe v. Roe, 85
Hawai#i 151, 162, 938 P.2d 1170, 1181 (App. 1997) (private education expenses
may, in certain circumstances, constitute exceptional circumstances).
19
In its Opinion, the ICA noted a possible inconsistency in the
child support statutory framework because HRS § 571-52.5 grants explicit
(continued. . .)
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failure to use the Guidelines Worksheet. The language of HRS §
571-52.5 states that exceptional circumstances may “warrant
departure,” which presumes that the Guidelines Worksheet was
utilized in the first place. HRS § 571-52.5; see also Matsunaga
v. Matsunaga, 99 Hawaiʻi 157, 167, 53 P.3d 296, 306 (App. 2002)
(noting that “[p]resumptively, the amount of child support
necessary . . . is the total amount computed according to [the
Guidelines]” and considering whether exceptional circumstances
warranted deviation); Child Support Enf’t Agency v. Mazzone, 88
Hawaiʻi 456, 462, 967 P.2d 653, 659 (App. 1998) (in cases of
alleged “exceptional circumstances,” “[t]he amount calculated
pursuant to [the Guidelines] is presumptively the amount that
should be ordered and the party seeking a deviation from it has
(. . .continued)
permission to deviate from the Guidelines based on “exceptional
circumstances,” while HRS §§ 584-15(e) and 576D-7(b)(5) do not. PO v. JS,
138 Hawai#i at 122-23, 377 P.3d at 63-64. Although departure from the
Guidelines based on “exceptional circumstances” is not expressly provided for
by HRS §§ 584-15(e) and 576D-7, the Guidelines in effect at the time this
case was decided contain an optional “Exceptional Circumstances Form,” which
allows parties to request a deviation from the support amount tabulated on
the Guidelines Worksheet. See Haw. State Judiciary, 2010 Hawai#i Child
Support Guidelines app. C. An optional “exceptional circumstances” section
appears to have been included within the Guidelines since at least 1989.
See, e.g., Richardson v. Richardson, 8 Haw. App. 446, 447, 808 P.2d 1279,
1280 (1991) (describing 1988 and 1989 Guidelines). Thus, the only
“inconsistency” between these statutes pertains to the source of the
authority for deviating from the support amount calculated using the
Guidelines Worksheet upon a showing of “exceptional circumstances.” Under
HRS § 571-52.5, the ability to deviate from this amount is authorized by the
statute itself; under HRS §§ 584-15(e) and 576D-7, in contrast, the authority
for such deviation comes from the Guidelines whose promulgation and usage the
child support statutes require.
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the burden of proof”). The Guidelines likewise permit
“deviation” based on exceptional circumstances, and the
Guidelines’ requirement that the family court make factual
findings on the “amount of support that would have been required
as calculated using [the Guidelines Worksheet]” further
demonstrates that even in cases of exceptional circumstances,
the court must first calculate a support amount utilizing the
Guidelines Worksheet. Haw. State Judiciary, 2010 Hawai#i Child
Support Guidelines 11 (also noting that in cases of exceptional
circumstances, the parent seeking deviation has the burden of
proving that the circumstances “warrant a departure from the
child support as calculated by the [Guidelines Worksheet]”).
Therefore, even when “exceptional circumstances” exist within
the meaning of HRS § 571-52.5 and the Guidelines, the family
court is initially required to use the Guidelines Worksheet to
determine the amount of the child support obligation.
In its Opinion, the ICA theorized that the existence
of “exceptional circumstances,” such as the parties’ 2011
Agreement, excused the family court from administering the
Guidelines pursuant to HRS § 571-52.5. PO v. JS, 138 Hawai#i at
123, 377 P.3d at 64. However, as stated, the family court was
first required to utilize the Guidelines Worksheet and compute a
support amount. Only after determining the support amount using
the Guidelines Worksheet may the court consider whether
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exceptional circumstances permit deviation from that amount. If
the court concludes that such circumstances exist, it must then
make findings of fact with respect to both the support amount
determined by the Guidelines Worksheet and the exceptional
circumstance(s) that would justify deviation from this amount.
See Haw. State Judiciary, 2010 Hawai#i Child Support Guidelines
11 (required findings of fact in cases of exceptional
circumstances must include “the amount of support that would
have been required as calculated using [the Guidelines
Worksheet]” and “findings . . . regarding the exceptional
circumstances”). In this case, the family court did not utilize
the Guidelines Worksheet to calculate a support amount, nor did
it include oral or written findings identifying any exceptional
circumstances. Therefore, the ICA erred in concluding that the
existence of “exceptional circumstances” permitted the family
court to forgo use of the Guidelines. PO v. JS, 138 Hawai#i at
123, 377 P.3d at 64.
D. Child Support Arrears
In addition to contending that the family court erred
because it failed to use the Guidelines, Father argues that the
ICA also erred when it upheld the family court’s ruling setting
support at $3,500 per month as of February 1, 2011.
Mother and Father each testified at trial that they
agreed to a reduction in child support in February 2011, and
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Father has not contested the validity of the 2011 Agreement on
appeal. The family court found in its Findings of Fact and
Conclusions of Law that the parties agreed to reduce child
support to $3,500 in February 2011, and this finding is
supported by substantial evidence and not clearly erroneous.
Further, appellate courts are required to “give full play to the
right of the fact finder to determine credibility,” State v.
Valdivia, 95 Hawaiʻi 465, 471, 24 P.3d 661, 667 (2001) (quoting
State v. Jenkins, 93 Hawaiʻi 87, 99, 997 P.2d 13, 25 (2000)), and
the family court’s finding that Father’s testimony regarding a
reduction of support in late 2012 was not credible is supported
by substantial evidence and not clearly erroneous. Father also
agreed in the Pretrial Order to pay $3,500 per month in child
support pending resolution of the parties’ motions at mediation
or trial. We therefore affirm the family court’s Arrears Order
calculating Father’s past due child support as $64,490 through
and including January 2015.
VI. CONCLUSION
For the reasons discussed, the family court erred in
failing to use the Guidelines to calculate Father’s child
support obligation and by requiring Father to show a material
change in circumstances to obtain modification of his monthly
payment. Likewise, the ICA erred in affirming these rulings.
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On remand, the family court is required to utilize the
Guidelines in evaluating Father’s request to modify his monthly
support obligation. See HRS § 576D-7(b)(5); HRS § 584-15(e);
HRS § 571-52.5. After calculating the amount of monthly support
using the Guidelines Worksheet, the family court may deviate
from this amount if it finds the existence of exceptional
circumstances within the meaning of the Guidelines and
applicable law. In accordance with the Guidelines, such a
deviation would require the family court to make written or oral
findings of fact regarding the support amount from the
Guidelines Worksheet and the applicable exceptional
circumstances. See HRS § 571-52.5; see also Haw. State
Judiciary, 2010 Hawai#i Child Support Guidelines 11.20
Therefore, the family court’s Trial Order, which was
vacated in part by the ICA on other grounds, is also vacated
with respect to its determination of Father’s monthly child
support obligation. The family court’s Arrears Order, which was
20
The Guidelines further permit the family court to require a
parent to “convert [to cash] all or some portion of” the parent’s assets for
payment of support when the parent has inadequate income to meet a child
support obligation. Haw. State Judiciary, 2010 Hawai#i Child Support
Guidelines 21; see also Child Support Enf’t Agency v. Roe, 96 Hawai#i 1, 6, 25
P.3d 60, 65 (2001) (noting that “the value of Father’s properties may have
been relevant” in calculating support based on provision of 1994 Hawai#i Child
Support Guidelines stating that when “a parent has inadequate income to meet
his/her support obligation but owns assets, he/she may be required to convert
all or some portion of said assets to cash for payment of support” (internal
quotations omitted)). We note that on remand this provision may be relevant.
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vacated in part by the ICA on other grounds, is affirmed as to
its determination that Father owes Mother $64,490 in past due
child support through and including January 2015. The ICA’s
July 13, 2016 Judgment on Appeal is (1) vacated as to its
affirmance of the family court’s child support determination in
the Trial Order and (2) affirmed as to the family court’s
Arrears Order. Accordingly, this case is remanded to the family
court for further proceedings consistent with this opinion.
Steven L. Hartley, /s/ Mark E. Recktenwald
Elsa F. M. McGehee, and
/s/ Paula A. Nakayama
Elena L. Bryant
for petitioner /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
Steven J. Kim,
Courtney N. Naso, and /s/ Michael D. Wilson
Candra S. Rivers
for respondent
30