WW v. DS.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
12-MAR-2021
07:54 AM
Dkt. 38 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

WW, Petitioner/Petitioner-Appellant,

vs.

DS, and CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAIʻI,
Respondents/Respondents-Appellees.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; FC-P NO. 16-1-0149)

MARCH 12, 2021

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
CIRCUIT JUDGE VIOLA, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

This case involves a custody dispute between WW

(Father) and DS (Mother). Father sought joint legal and

physical custody of the parties’ minor child (Child). In

October 2017, the case proceeded to a bench trial before the
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Family Court of the Second Circuit. The parties settled during

the trial, and Father now contends that the family court used

improper techniques to convince him to settle.

As set forth below, it appears that the court spoke to

Father alone without obtaining consent from counsel on the

record, initiated settlement discussions and recommended

specific terms on a highly-contested issue after trial had

commenced, and by all appearances would have remained the

factfinder had the parties not reached a settlement. On these

facts, we hold that the family court’s actions were improper.

Accordingly, the family court plainly erred, and the settlement

agreement must be vacated.

II. BACKGROUND

In October 2017, the family court held a bench trial

regarding the custody of Mother and Father’s minor child. 1 The

custody proceedings were acrimonious and contested, particularly

regarding whether Father should be allowed overnight visits with

Child. Both parties were represented by counsel during the

custody proceedings.

During the testimony of the court-appointed custody

evaluator, who was Father’s expert witness, the family court

took a lunch recess. When the parties returned from the recess,

1 The Honorable Douglas J. Sameshima presided.

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they told the family court they had reached an agreement.

Counsel for Mother read the terms into the record with

occasional corrections by Father’s counsel and suggestions from

the family court and Father’s expert witness. After Mother’s

attorney finished reading the terms into the record, Father’s

attorney stated, “Your Honor, um, we agree with what [Mother’s

attorney] said. Except there’s one thing I guess I failed to

discuss with my client. There were so many loose ends.”

Father’s attorney went on to request that Father be allowed to

initiate good night phone calls to Child, at which point the

family court explained to Father that he was not barred from

making calls to Child, and Father responded, “Oh, okay.” At the

end of the hearing, the family court told Mother’s counsel to

put the agreement in writing, and the court would sign it.

Neither Father nor Father’s counsel objected to the terms put on

the record or asserted that Father did not agree to settle.

Mother submitted a proposed Stipulated Order. The

next day, Father filed an objection, arguing that Mother’s

Proposed Order did not reflect the parties’ on-the-record

agreement. The family court signed the Stipulated Order without

acknowledging Father’s objections. Neither Father nor his

counsel signed the Stipulated Order.

Father, through counsel, then filed a motion for

reconsideration. He contended that “[d]ue process demands that

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this Court modify the Stipulated Order to conform with the

settlement of October 25, 2017 as placed on the record at that

time.”

Although the family court never made specific findings

about the circumstances that led to the settlement agreement,

the parties submitted declarations during the ensuing dispute

over the Stipulated Order that address the family court’s role

in facilitating the agreement.

According to the declaration of Mother’s counsel, when

counsel returned from lunch, the family court called the

attorneys for both parties into chambers, where he “made it

clear that he had concerns and suggested that the part[ies]

attempt to settle the case using Mother’s Proposed Order.”

Negotiations went on “with the help of the Judge . . . for a

three hour period” according to a letter from Mother’s counsel

to the family court.

In his declaration attached to his motion for

reconsideration, Father explained:

3. After my first witness . . . testified and was cross-
examined and after his written report was admitted into
evidence, [the family court] called a recess so he could
talk to the attorneys. That was the beginning of a series
of settlement discussions. First, the attorneys came out
of the Judge’s chambers to report what the judge had said
and to discuss settlement along those lines. On at least
one more occasion, the attorney’s [sic] went back in the
judge’s chamber to conference with him.

4. At one point, I was invited into judge’s chambers to
conference with him. I was alone with the judge. He told
me that he knew I was a good father but that he thought my

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overnights with my four[-]year-old son should be introduced
more gradually. He strongly recommended one overnight a
week for six months, then adding a second overnight.

5. I did not agree with the judge. I thought I was
perfectly capable of having our son on as many overnights
as I could have. I have taken a parenting class, I went
through co-parenting counseling with [Mother] for about
five months and I co-parented our son when I was living
with [Mother]. I’ve taken care of him when he was sick.
I’ve taken care of him when he was an infant and was
completely dependent on me. But because I realized that
the judge was adamant and, of course, that the decision was
ultimately his, I agreed to his recommendation.

(Emphases added.)

At no point during the proceedings did Mother or

Father’s attorney consent on the record to the family court

meeting with their clients individually and without counsel

present.

The family court denied Father’s motion for

reconsideration, and Father appealed pro se.

Following the notice of appeal, the family court

ordered the parties to submit proposed findings of fact and

conclusions of law. Father’s proposed findings, which he

submitted while pro se, primarily recited the order of motions

filed and how they were resolved. However, the proposed

findings did include a statement about how the family court

facilitated the settlement: “During a pause in cross-

examination, this Court called a recess to talk to the attorneys

about a possible settlement in chambers. After the attorneys

left, the judge met with the parties in chambers separately,

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first [Father] then [Mother].” Mother’s proposed findings,

submitted by counsel, included specific findings that each

provision in the Stipulated Order accurately reflected the

transcript. Mother’s proposed findings did not include any

statements about the court speaking to Mother and Father without

their attorneys.

The family court entered its own findings of fact and

conclusions of law, incorporating almost all of Mother’s

proposed findings verbatim. The family court neither adopted

Father’s proposed finding about the court’s communications with

Mother and Father while their attorneys were not present, nor

made any independent findings regarding the issue. But the

court did find that “[a]fter the lunch break, there was a

discussion between the Court and counsel for both parties, in

chambers, during which counsel for the parties agreed that there

would be a concerted effort to resolve the issues in the case

without further testimony.” Additionally, “[t]here was

agreement to use Mother’s Exhibit AAA (Proposed Order) . . . as

the template for the settlement negotiations between the parties

and their counsel.”

In its findings, the family court also specifically

addressed each challenged provision in the Stipulated Order,

finding the Stipulated Order consistent with the agreement put

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on the record. 2 In its conclusions of law, the court concluded,

“There is no violation of due process as alleged by Petitioner

in his Motion for Reconsideration. Father presented no facts or

legal basis to support such allegations.” It also found,

“Mother’s Stipulated Order, submitted to the Court on

January 23, 2018, accurately reflects the agreement placed on

the record as agreed to by the parties on October 25, 2017.”

On appeal to the Intermediate Court of Appeals (ICA),

Father, who was pro se, argued the terms of the Stipulated Order

did not reflect the terms of the agreement placed on the record. 3

Although Father did not argue that the family court’s ex parte

communications with him were improper, he reiterated the family

court’s involvement in the agreement: “Trial ended that day with

a settlement because the judge called a recess in the middle of

2 The family court did acknowledge that two provisions —
“Reimbursement by Father to Mother for his share of cost[s] for Custody
Evaluation” and “Reimbursement of Preschool Expenses” — were not consistent
with what was stated on the record, but the court did not strike those
provisions from the Stipulated Order, even though Father had specifically
objected to those terms.

3 Father raised four specific points of error: (1) the family court
erred in denying Father’s motion for reconsideration because the Stipulated
Order “does not accurately nor comprehensively reflect the agreement made in
the settlement proceeding as substantiated by the record on appeal and due
process requires that it conforms to that record and any substantive issues
in a [Hawaiʻi Rules of Civil Procedure (HRCP) Rule 60 motion] should be
allowed a hearing”; (2) the Stipulated Order included express and implied
provisions that were not agreed to, particularly the use of Mother’s Proposed
Order “as a default order where there was no express agreement to do so on
the record”; (3) “[d]ue process is denied where opposing counsel made
misrepresentations in her declaration to fraudulently taint the proceedings”;
and (4) the family court made erroneous findings of fact and conclusions of
law.

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[Father’s expert witness’s] testimonial on cross-examination and

asked the parties into chambers.” Father requested that the ICA

“reverse or vacate, as appropriate, the Family Court’s

order[s] . . . and remand to the Family Court to address the

array of conflicting and existing issues to the Order in [an]

equitable manner, in compliance with law, and with the spirit of

co-parenting for the best interests of the child.”

The ICA first implicitly concluded that Father

knowingly and voluntarily entered into a settlement:

The Family Court did not ask Father or Mother on the record
whether they understood and agreed with the settlement
terms that had been placed on the record, if they had any
questions about what had just taken place, or if anyone was
forcing, pressuring, or threatening either of them into
settling. However, Father and Mother were both represented
by counsel.

Quoting our decision in Associates Financial Services

Co. of Hawai‘i v. Mijo, 87 Hawai‘i 19, 31, 950 P.2d 1219, 1231

(1998), the ICA explained, “Courts presume that attorneys abide

by their professional responsibilities; outside of disciplinary

proceedings, we do not interfere with the attorney-client

relationship and conduct relating thereto.”

The ICA then addressed each of the family court’s

findings of facts and conclusions of law that Father contested.

Recognizing that “Father cannot be bound to a stipulation that

was not either in writing and signed by him or his counsel, or

made in open court — e.g., stated in the transcript of

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proceedings,” the ICA found most of the challenged findings of

fact and conclusions of law to be clearly erroneous after

comparing each provision in the Stipulated Order to the

transcript. 4 Accordingly, the ICA vacated the Stipulated Order

and the family court’s Order Denying Reconsideration and

remanded the case “to the Family Court for further proceedings

consistent with this opinion.”

Father filed a pro se application for writ of

certiorari arguing that “the ICA gravely erred by not remanding

the case back to the Family Court to be retried where their

opinion recognized there were improprieties in the lower court’s

proceedings,” and “by not acknowledging that the Family Court

judge’s unilateral decision to abruptly end the evidentiary

hearing and call parties into chambers without their respective

legal counsel was an abuse of discretion resulting in the

failure to provide both parties their due process.” He asked

this court to “review the ICA’s Memorandum Opinion and affirm

4 The ICA found “substantial evidence in the record” supporting the
family court’s finding that “the parties agreed [Mother’s] Proposed Order
would serve as the template for the settlement, and that portions of the
Proposed Order not modified would remain in the final order.” But the ICA
found that the Stipulated Order failed to accurately reflect the terms
contained in the Proposed Order and modifications made on the record during
the proceedings. Specifically, while the transcripts supported findings of
fact regarding Mother’s right to make final decisions and the cancellation of
visits if Child is sick, they did not support factual findings regarding
drop-off and pick-up locations, telephone calls, the holiday schedule, co-
parenting classes, custody evaluation reimbursement, preschool reimbursement,
or the Stipulated Order being “a true and accurate representation of the
parties’ agreement” or the conclusion of law that the Stipulated Order
“accurately reflects” the parties’ agreement on the record.

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the ICA’s order to vacate the Stipulated Order and the Order

Denying Reconsideration and remand this case back to the Second

Circuit Family Court for retrial.”

This court accepted Father’s application, and after

the parties obtained counsel through the Hawai‘i Appellate Pro

Bono Program, permitted the parties to file supplemental briefs

addressing “[w]hether the family court’s involvement in

settlement negotiations during trial invalidates the parties’

settlement agreement.”

III. STANDARD OF REVIEW

Whether the parties entered into an agreement is

“essentially a question of fact” the court reviews under the

clearly erroneous standard. Mijo, 87 Hawai‘i at 28, 950 P.2d at

1228 (citing Island Directory Co. v. Iva’s Kinimaka Enters., 10

Haw. App. 15, 23, 859 P.2d 935, 940 (1993)).

However, whether a settlement agreement is enforceable

is “a conclusion of law reviewable de novo.” Id. (citing

Sylvester v. Animal Emergency Clinic of Oahu, 72 Haw. 560, 565,

825 P.2d 1053, 1056 (1992)). “[S]ince very important rights are

at stake in most cases, appellate courts must strive to ensure

that the purported compromise agreement sought to be enforced is

truly an agreement of the parties.” Id. at 29, 950 P.2d at 1229

(emphasis omitted) (quoting Miller v. Manuel, 9 Haw. App. 56,

63, 828 P.2d 286, 291 (1991)). “To determine the validity of

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the settlement agreement, the court looks to the totality of the

circumstances surrounding the making of the agreement.” Id.

(quoting Ziarko v. Soo Line R.R., 641 N.E.2d 402, 410 (Ill.

1994)).

IV. DISCUSSION

A. Plain Error

As a threshold matter, Father’s arguments that the

family court acted improperly in facilitating the settlement are

unpreserved. Before the family court, when Father was

represented by counsel, he asserted only that “[d]ue process

demands that this Court modify the Stipulated Order to conform

with the settlement of October 25, 2017 as placed on the record

at that time.” Although Father’s declaration, attached to his

motion for reconsideration, could have alerted the family court

that Father felt pressured to agree to the settlement because it

suggested that the court called him into chambers without his

attorney and was “adamant” that Father agree to terms based on

Mother’s Proposed Order, Father never argued that the family

court’s involvement in the settlement negotiations was improper

or that he did not voluntarily agree to settlement. In fact,

not only did Father never object when the settlement agreement

was put on the record, Father repeatedly stated that the parties

had reached an agreement on October 25, 2017.

Moreover, even if Father’s declaration adequately

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raised the issue before the family court, Father waived it

before the ICA. In his opening brief, Father did not argue that

the family court’s involvement in the settlement negotiations

was improper or that the ICA should remand the case for trial

because he did not voluntarily agree to settle. To the

contrary, Father asserted that “the Stipulated Order does not

accurately nor comprehensively reflect the agreement made in the

settlement proceeding as substantiated by the record on appeal

and due process requires that it conforms to that record,” and

asked the ICA to vacate the Stipulated Order and “remand to the

Family Court to address the array of conflicting and existing

issues to the Order in [an] equitable manner[.]” Accordingly,

Father’s claims on certiorari have been waived.

Nevertheless, we can review the family court’s actions

in facilitating settlement for plain error.

In civil cases, the plain error rule is only invoked when
“justice so requires.” We have taken three factors into
account in deciding whether our discretionary power to
notice plain error ought to be exercised in civil cases:
(1) whether consideration of the issue not raised at trial
requires additional facts; (2) whether its resolution will
affect the integrity of the trial court’s findings of fact;
and (3) whether the issue is of great public import.

U.S. Bank Nat’l Ass’n v. Castro, 131 Hawai‘i 28, 42, 313 P.3d

717, 731 (2013) (quoting Montalvo v. Lapez, 77 Hawai‘i 282, 290,

884 P.2d 345, 353 (1994)).

Mother argues that each of the three factors weighs

against reviewing the family court’s actions for plain error.

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As to the first and second factors, she contends the record is

undeveloped and that there are “virtually no facts that could

support a conclusion the Family Court abused its discretion,[ 5]

much less engaged in conduct that ‘shocks the conscience.’”

Further, she contends that plain error would entirely undermine

the family court’s findings of fact. 6 Similarly, Mother argues

the third factor “cuts most severely against Father” because

“the new judicial duty this Court is being asked to recognize

would rewrite the traditional duties of judges and lawyers,

especially in Family Court cases.”

Mother’s contention that this court should not apply

plain error review lacks merit, and we conclude that noticing

plain error is appropriate under these circumstances. First,

additional factual findings are not necessary because the record

does not demonstrate any factual dispute about the relevant

aspects of the family court’s involvement in the settlement

negotiations. Father’s declaration that the judge called him

5 Although Mother analyzes the family court’s actions for an abuse
its discretion, “[a] trial court’s determination regarding the enforceability
of a settlement agreement is a conclusion of law reviewable de novo.” Mijo,
87 Hawai‘i at 28, 950 P.2d at 1228 (citing Sylvester, 72 Haw. at 565, 825 P.2d
at 1056); Balogh v. Balogh, 134 Hawai‘i 29, 37–38, 332 P.3d 631, 639–40 (2014)
(“Whether particular circumstances are sufficient to constitute duress is a
question of law, although the existence of those circumstances is a question
of fact.” (ellipsis omitted) (quoting Gruver v. Midas Int’l Corp., 925 F.2d
280, 282 (9th Cir. 1991))).

6 Mother does not specifically indicate which factual findings
would be undermined.

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into chambers without his attorney and that the judge “strongly

recommended one overnight a week for six months” and was

“adamant” about that recommendation was uncontradicted. 7

Mother’s response to Father’s motion for reconsideration states

that the court “called counsel into chambers and suggested

negotiation” because of Father’s expert witness’s testimony.

The parties then reached an agreement “after a long negotiation

at Court using [Mother’s] proposed Order . . . as directed by

the Court.” Moreover, the family court’s findings of fact,

while containing less detail, are consistent with the foregoing

accounts:

14. After the lunch break, there . . . was a discussion
between the Court and counsel for both parties, in
chambers, during which counsel for the parties agreed that
there would be a concerted effort to resolve the issues in
the case without further testimony.

15. There was agreement to use Mother’s Exhibit AAA
(Proposed Order) . . . as the template for the settlement
negotiations between the parties and their counsel.

As to the second plain error factor, we conclude that

resolution of Father’s due process claim will not undermine the

integrity of the family court’s findings of fact. Most of the

family court’s factual findings concerned whether the terms of

the agreement placed on the record matched the terms of the

Stipulated Order the court later signed, and the ICA already

7 We also note that in her supplemental brief, Mother relied on the
facts in Father’s declaration to argue settlement was voluntary, contending
the declaration is “[t]he only affirmative evidence in the record about the
Family Court’s role in facilitating settlement[.]”

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held that many of those findings were clearly erroneous. The

family court’s remaining findings pertain to the history of the

case and what was said on the record, none of which will be

invalidated by holding that the family court’s ex parte

communications were improper. In other words, “there are no

‘findings of fact’ whose ‘integrity’ could be ‘affected’ by the

instant appeal[.]” Alvarez Family Tr. v. Ass’n of Apartment

Owners of Kaanapali Alii, 121 Hawai‘i 474, 491, 221 P.3d 452, 469

(2009) (citation omitted).

Third, the propriety of judicial ex parte

communications during settlement negotiations is a matter of

great public importance because it implicates the fairness and

impartiality of the judicial system. See Moran v. Guerreiro, 97

Hawai‘i 354, 373, 37 P.3d 603, 622 (App. 2001) (“Ex parte

communications deprive the absent party of the right to respond

and be heard. They suggest bias or partiality on the part of

the judge.” (citation omitted)). Thus, reviewing Father’s

contentions for plain error will safeguard the integrity of our

judicial system. 8

8 We disagree with Mother’s contention that reviewing ex parte
communications will create a “new judicial duty.” As explained further in
Part IV.B, this court has previously observed that trial courts should be
wary of involvement that could coerce settlement, although we have not
previously defined the parameters of that rule. See Mijo, 87 Hawai‘i at 28,
30, 950 P.2d at 1228, 1230 (noting that “the judge must guard against
indirectly coercing a settlement by ‘nudging’ or ‘shoving’ the parties toward
settlement,” but holding that a judge may offer their assessment of the case
and recommend settlement).

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B. The Family Court Committed Plain Error by Speaking to
Father in Chambers Alone During a Bench Trial Without
Obtaining the Consent of Father’s Counsel on the Record,
and By Initiating Settlement Discussions and Strongly
Recommending Father Agree to Specific Settlement Terms on a
Contested Issue

A court must look to the “the totality of the

circumstances surrounding the making of the agreement” to

evaluate the validity of a settlement. Mijo, 87 Hawai‘i at 29,

950 P.2d at 1229 (quoting Ziarko, 641 N.E.2d at 410). To

determine whether a trial court impermissibly “nudged” or

“shoved” the parties into settling, “the perceptions of all the

players — judges, counsel, and litigants — are the key.” Id. at

28, 950 P.2d at 1228 (citation omitted). “Whether particular

circumstances are sufficient to constitute duress is a question

of law, although the existence of those circumstances is a

question of fact.” Balogh v. Balogh, 134 Hawai‘i 29, 37–38, 332

P.3d 631, 639–40 (2014) (ellipsis omitted) (quoting Gruver v.

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

The Hawai‘i Revised Code of Judicial Conduct (HRCJC)

permits judges to be involved in settlement negotiations: “A

judge may encourage settlement of disputed matters in a

proceeding but shall not act in a manner that coerces any party

into settlement.” HRCJC Rule 2.6(b). In the commentary, the

HRCJC sets out factors for a judge to consider in deciding to

what extent the court should be involved in settlement

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negotiations:

The judge plays an important role in overseeing the
settlement of disputes, but should be careful that efforts
to further settlement do not undermine any party’s right to
be heard according to law. The judge should keep in mind
the effect that the judge’s participation in settlement
discussions may have, not only on the judge’s own views of
the case, but also on the perceptions of the lawyers and
the parties if the case remains with the judge after
settlement efforts are unsuccessful. Among the factors
that a judge should consider when deciding upon an
appropriate settlement practice for a case are (1) whether
the parties have requested or voluntarily consented to a
certain level of participation by the judge in settlement
discussions, (2) whether the parties and their counsel are
relatively sophisticated in legal matters, (3) whether the
case will be tried by a judge or a jury and, if by a judge,
whether he or she will be the settlement judge or another
judge, (4) whether the parties participate with their
counsel in settlement discussions, (5) whether any parties
are unrepresented by counsel, and (6) whether the matter is
civil or criminal.

HRCJC Rule 2.6 cmt.

As commentators have recognized, the line between

permissible judicial encouragement and coercive judicial tactics

is frequently unclear. See Jaclyn Barnao, In Pursuit of

Settlement: Deciphering Judicial Activism, 18 Geo. J. Legal

Ethics 583, 588 (2005) (noting that the Model Code of Judicial

Conduct, upon which the HRCJC is based, leaves open the

question, “[W]here does the line between permissible persuasion

and overbearing tactics lie?”); James J. Alfini, Risk of

Coercion Too Great: Judges Should Not Mediate Cases Assigned to

Them for Trial, 6 Disp. Resol. Mag., no. 1, Fall 1999, at 11

(noting that “settlement culture” is “in a state of anarchy”

because “[t]here are few rules to govern the behavior of

judges . . . during settlement”). “Courts should, and do, so

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far as they can do so legally and properly, support agreements

which have for their object the amicable settlement of doubtful

rights by parties[.]” Sylvester, 72 Haw. at 566, 825 P.2d at

1057 (emphasis omitted) (quoting Ragland v. Davis, 782 S.W.2d

560, 562 (Ark. 1990)).

In Mijo, we recognized that “settlement can be

coerced . . . by a strong judge in a settlement conference,” and

explained that “throughout the settlement process, the judge

must guard against indirectly coercing a settlement by ‘nudging’

or ‘shoving’ the parties toward settlement.” 87 Hawai‘i at 28,

950 P.2d at 1228 (citation and alterations omitted). However,

we also stressed that “a judge who is conducting a settlement

conference acts within the bounds of propriety when he or she

offers his or her assessment of a case as he or she understands

it and recommends a settlement.” Id. (citation and alterations

omitted). And we further explained that “the fact that

settlement was reached on the eve of trial is inconsequential; a

judge’s responsibility to encourage settlement does not diminish

as trial approaches.” Id. at 30, 950 P.2d at 1230.

We have also recognized that, in the context of a

settlement conference, it is appropriate for judges to be

actively involved in crafting a settlement:

[T]he judge who is likely to contribute most to the
settlement dynamic is active rather than passive,
analytical rather than emotional or coercive, learns the

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facts and law involved in the dispute instead of relying on
superficial formulas or simplistic compromises, and, after
listening and learning with an open mind, offers explicit
assessments of parties’ positions and specific suggestions
for ways to reach solutions.

Kamaunu v. Kaaea, 99 Hawai‘i 503, 507, 57 P.3d 428, 432 (2002)

(quoting William L. Adams, Let’s Make a Deal: Effective

Utilization of Judicial Settlements in State and Federal Courts,

72 Or. L. Rev. 427, 446–47 (1993)).

However, in Kamaunu, when we encouraged judicial

involvement in settlement, we also noted that the same judge

would generally not preside over further proceedings as a

factfinder. Id. at 508, 57 P.3d at 433 (“[E]ven in a bench

trial, the interests of the party litigants are similarly

preserved because the settlement judge customarily would not

preside over the trial, unless counsel and the parties

affirmatively stipulate to the trial judge’s participation in

settlement discussions.”).

Although we sanctioned court involvement in settlement

negotiations in Mijo and Kamaunu, we have not yet determined at

what point a court crosses the line from permissible to coercive

involvement. Father argues the family court crossed this line:

the family court’s actions “suggest[ed] a high probability of

bias,” “create[d] the possibility of coercing the parties into

settlement contrary to due process and the [HRCJC],” and

“demonstrate[d] the appearance of impropriety.” Accordingly,

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Father contends the settlement agreement should be invalidated.

Mother disagrees and argues that the family court

acted within its discretion to facilitate a settlement because

judges are encouraged to facilitate compromise, especially in

family court “where disputes are highly personal, and emotions

are often tied to decision-making.” She also contends that

Father was not coerced into the settlement agreement because

“the totality of the circumstances show that Father voluntarily

settled”: Father agreed to the family court’s recommendation;

“Father was represented by a lawyer”; “neither Father nor his

lawyer ever objected to the Family Judge’s facilitating role”;

and “the factual record is bereft of any evidence that he was

coerced by the Family Judge into settlement.” In conclusion,

Mother asserts that “there is nothing extraordinary” or

“unusual” about a court discussing settlement with a party.

We agree with Father that the family court crossed the

line from permissible to coercive involvement. 9 Here, it appears

that the family court initiated the settlement discussions

during trial, when it was acting as factfinder; it met with the

parties without counsel present and without obtaining counsel’s

9 While we agree that the family court crossed the line from
permissible to coercive involvement, we decline to adopt the restrictive rule
that Father urges. We do not agree that courts must “refrain from making
unsolicited statements on settlement recommendations in chambers to the
parties[.]” To the contrary, as we explained in Mijo and Kamaunu, courts may
and often should facilitate settlement, and doing so does not necessarily
create the appearance of impropriety.

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consent on the record; and it directed the parties to settle

using Mother’s Proposed Order as a template. These techniques,

when considered in the totality, were improper and created the

appearance of partiality, as well as an impermissible risk of

coercing the parties to settle. See Carrie Menkel-Meadow, For

and Against Settlement: Uses and Abuses of the Mandatory

Settlement Conference, 33 UCLA L. Rev. 485, 509 (1985)

(identifying “suggesting a particular result . . . [and]

directing meetings with clients or parties” as “coercive

techniques”).

We have not found any cases — in any jurisdiction — in

which a court met with the parties in chambers individually

without obtaining the consent of counsel on the record, and

Mother has cited none. 10 In the few cases in which an appellate

court has found that a trial court’s meeting with a party in

chambers without counsel present was not per se coercive, the ex

parte meeting took place with counsel’s consent — and even in

those cases, appellate courts have still discouraged that

practice.

10 Mother cites Franks v. Nimmo, 796 F.2d 1230, 1233 (10th Cir.
1986), for the proposition that “meeting with a party without an attorney
during a settlement conference” did not “give rise to an objective appearance
of bias.” Franks is not on point here. Aside from the fact that the case
did not involve the validity of a settlement agreement (it concerned
mandatory recusal under federal statutes), in Franks, the trial judge spoke
with the plaintiff about settlement “at the behest of his attorney, and with
the concurrence of the defendants’ counsel[.]” Id. at 1235 (emphasis added).

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In Deicher v. Corkery, the California District Court

of Appeal for the Second District explained that “interviewing

litigants separately in chambers, even with the consent of

counsel, in an effort to settle the case during the trial, is

ill-advised.” 23 Cal. Rptr. 270, 274 (Dist. Ct. App. 1962).

However, the court held that the trial court did not coerce

settlement because “[t]he record . . . reflects that the court’s

discussions with the parties were had with the full knowledge,

acquiescence and approval of counsel and without the slightest

suggestion of any objection,” and there was “no evidence of

coercion, bias, or prejudgment on the part of the court.” Id.

at 273–74. Similarly, in Chertkof v. Harry C. Weiskittel Co.,

the Maryland Court of Appeals noted that “generally, [the judge]

should [facilitate settlement] through counsel and not deal with

the parties alone,” but held that the judge did not act

improperly where counsel had urged the judge to meet with the

parties alone and the attorneys were kept apprised throughout

the negotiations. 248 A.2d 373, 377 (Md. 1968).

The Superior Court of New Jersey, Appellate Division,

has taken a stricter approach, instructing courts not to meet ex

parte with the parties, even if both parties and their counsel

consent, unless there are extraordinary circumstances present:

We note that the trial court, perhaps with the best of
intentions and albeit with the consent of the attorneys for
both parties, held a pre-trial, ex parte conference with
plaintiff in chambers during which it explored with her

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some of the financial issues involved and solicited her
views as to what she “envisioned” would be a fair
settlement. In our view, this practice is inappropriate
and, except in the most extraordinary of circumstances,
should not be employed by our trial courts, particularly in
non-jury cases.

Peskin v. Peskin, 638 A.2d 849, 858 n.1 (N.J. Super. Ct. App.

Div. 1994) (emphasis added).

We agree with the courts in California, Maryland, and

New Jersey that trial courts should rarely meet with parties to

discuss settlement when counsel is not present. 11 While there

may be cases in which doing so is appropriate due to special

circumstances, in those cases, the judge must ensure counsel for

both parties have consented to the ex parte communications, and

the judge speaking to the parties should not preside over the

trial. See Kamaunu, 99 Hawai‘i at 508, 57 P.3d at 432.

The family court’s actions here are especially

concerning because it apparently called the parties into

chambers in the middle of a bench trial to address overnight

visits, which had been one of the central issues to be resolved

at the hearing. Whether a court’s specific recommendation for a

settlement is coercive is a fact-specific inquiry that depends

11 According to one survey, these views are shared widely among
attorneys and judges. In a 1988 National Survey conducted by the American
Judicature Society, only four percent of judges and five percent of attorneys
believed a judge should speak personally with a represented party to persuade
them to accept a settlement, and only five percent of judges and eight
percent of attorneys felt a judge should suggest a particular settlement
figure to the client. James A. Wall, Jr. & Dale E. Rude, Judicial
Involvement in Settlement: How Judges and Lawyers View It, 72 Judicature 175,
177 (1988).

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on the circumstances in each case. Compare Rosenfield v.

Vosper, 114 P.2d 29, 33 (Cal. Dist. Ct. App. 1941) (reversing

judgment where trial court called parties into chambers and

recommended a particular settlement during a bench trial) with

Gardner v. Mobil Oil Co., 31 Cal. Rptr. 731, 734-35 (Cal. Dist.

Ct. App. 1963) (distinguishing Rosenfield where court

“tentative[ly]” inquired about settlement when plaintiff had not

established a prima facie case after three days of trial); see

also D.L. Spillman, Jr., Annotation, Propriety and Prejudicial

Effect of Suggestion or Comments by Judge as to Compromise or

Settlement of Civil Case, 6 A.L.R.3d 1457 (1966).

In In re Marriage of Hitchcock, 265 N.W.2d 599 (Iowa

1978), the Iowa Supreme Court invalidated a marital settlement

agreement because the family court coerced wife into settling.

After hearing a half-day of testimony in a contested divorce

proceeding, the family court judge called the attorneys for the

parties into chambers and told them “he thought they should get

together and try to work out a settlement.” Id. at 602. The

judge then met with both attorneys and their clients. Although

the parties disputed exactly what was said, wife’s attorney

testified that the judge told wife, who had stayed home raising

children during the marriage, that she was not entitled to any

part of husband’s business, but would be entitled to alimony to

maintain her standard of living. Id. The judge also told the

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parties that “if they could not get it settled, he was ready to

continue to hear the evidence.” Id. at 603. After about an

hour-and-a-half of negotiations, the parties entered into a

settlement. Id. at 602. Wife filed a motion to vacate the

divorce decree and for a new trial a few days later. Id. at

605.

The Iowa Supreme Court found that “the announcements

and conduct of the trial judge at the noon recess relative to

what he considered to be a just distribution of the assets of

the parties actually induced [wife’s] manifestation of assent to

the purported settlement.” Id. at 605. The court noted that

wife’s only option was “to follow the judge’s suggestion and

settle the matter in accordance therewith or proceed to try her

case on its merits before a tribunal which had apparently

prejudged the issue[.]” Id. at 606. Accordingly, the court

remanded the case for retrial on the division of marital assets.

Id. at 607.

By contrast, as we held in Mijo, “a judge who is

conducting a settlement conference acts within the bounds of

propriety when he or she offers his or her assessment of a case

as he or she understands it and recommends a settlement.” 87

Hawai‘i at 28, 950 P.2d at 1228 (alterations omitted). Other

jurisdictions have similarly held that encouraging parties to

settle by “correctly stat[ing] the law as it existed at the time

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of the hearing” is not coercive, Blejski v. Blejski, 480 S.E.2d

462, 467 (S.C. Ct. App. 1997), nor is telling the parties,

“[h]owever you want to put it, it seems to me both of you people

are at risk here when I take a further look at this case,”

Urlaub v. Urlaub, 348 N.W.2d 454, 455 (N.D. 1984).

Here, the family court’s actions are more similar to

the court in Hitchcock than in Mijo. As in Hitchcock, the

family court here was the factfinder and ultimate decision-

maker. 265 N.W.2d at 606. By contrast, in Mijo, the parties’

case was set for a jury trial, and therefore the court

recommending settlement would not have been resolving the

parties’ factual disputes. 87 Hawai‘i at 21, 950 P.2d at 1221.

Moreover, this was not a situation in which the family

court suggested the parties settle prior to commencing the

evidentiary hearing, see id., nor did the family court merely

inquire about settlement during the lunch recess, see Gardner,

31 Cal. Rptr. at 734-35. According to Mother’s counsel, the

family court “made it clear that he had concerns and suggested

that the part[ies] attempt to settle the case using Mother’s

Proposed Order.” In a different pleading, Mother’s counsel

explained that the parties “us[ed Mother’s] proposed Order . . .

as directed by the Court.” Father’s declaration — which was

uncontested — stated that when the court met with Father alone,

it “strongly recommended” Father to settle according to Mother’s

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Proposed Order, and that Father agreed to the settlement

“because [he] realized that the judge was adamant and, of

course, that the decision was ultimately his[.]” (Emphasis

added.) Thus, as in Hitchcock, Father was seemingly given a

choice between agreeing to the family court’s settlement

recommendation, with which he disagreed, or to “proceed to try

[his] case on its merits before a tribunal which had apparently

prejudged the issue[.]” 265 N.W.2d at 606.

Under these circumstances, we conclude that the family

court committed plain error in speaking to the parties in

chambers alone without the consent of counsel on the record, and

by initiating settlement discussions and suggesting specific

settlement terms about a heavily-contested issue in the middle

of the trial during which it was the factfinder.

Trial courts should ensure there is documentation that

counsel has consented to any ex parte communications between the

court and a party in furtherance of settlement. We recognize

that not all settlement conferences will be on the record, and

therefore we do not create a per se rule that counsel must

always consent on the record. However, because the settlement

negotiations here took place in the courtroom, and proceedings

were on the record both before and after the negotiations,

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counsel’s consent could have easily been put on the record. 12

V. CONCLUSION

Accordingly, we vacate the ICA’s November 25, 2019

judgment on appeal, and the family court’s April 4, 2018 order

denying motion for reconsideration to alter or to amend judgment

or order for relief from judgment or order, and February 15,

2018 stipulated order in its entirety, and remand this case to

the family court for further proceedings consistent with this

opinion.

Richard E. Mitchell /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Robert H. Thomas and
Joanna C. Zeigler /s/ Sabrina S. McKenna
for respondent DS
/s/ Michael D. Wilson

/s/ Matthew J. Viola

12 Father also argues in his application for writ of certiorari that
the family court violated due process by “fail[ing] to ask petitioner or
respondent in open court whether they understood and agreed with the
settlement terms that had been placed on the record, if they had any
questions about it, or if anyone was forcing, pressuring or threatening
either [party] into settling.” We agree with the ICA that family courts need
not conduct such a colloquy to ensure settlement is voluntary, when both
parties are represented by counsel and agree to the terms of the settlement.

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