NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAR-2022
07:52 AM
Dkt. 42 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
PM, Appellant-Appellant,
v.
CHILD SUPPORT ENFORCEMENT AGENCY,
STATE OF HAWAII AND EM,
Appellees-Appellees.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. FC-AP 20-1-6004)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.)
In this secondary agency appeal, self-represented
Appellant-Appellant PM (Father), appeals from the "Decision and
Order Affirming the Administrative Findings and Order Filed July
8, 2020" (Decision and Order) and the "Notice and Judgment on
Appeal" (Judgment), both filed on December 21, 2020 by the Family
Court of the First Circuit (Family Court).1 The underlying
appeal to the Family Court challenged a July 8, 2020
Administrative Findings and Order (Administrative Order), filed
by the Office of Child Support Hearings (OCSH), which denied
Father's request to modify monthly child support payments. On
December 21, 2020, the Family Court issued its Decision and
Order, and Judgment, from which Father timely appealed.2
1
The Honorable Christine E. Kuriyama presided.
2
Father's opening brief contains no record references as required
by Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(3), (4)(ii)-(iii),
and (4)(C). Nevertheless, to promote access to justice, pleadings prepared by
self-represented litigants should be interpreted liberally, and self-
(continued...)
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On appeal, Father contends: (1) the OCSH Hearings
Officer (Hearings Officer) failed to calculate the correct number
of days pursuant to the 2014 Child Support Guidelines
(Guidelines) per the "Order RE Evidentiary Hearing on Final
Divorce"3 and the May 15, 2019 divorce decree (Divorce Decree);
and (2) the Hearings Officer "failed to enforce HRS § 576D-7."4
2
(...continued)
represented litigants should not be automatically foreclosed from appellate
review because they fail to comply with court rules. Erum v. Llego, 147
Hawai#i 368, 380-81, 465 P.3d 815, 827-28 (2020). Accordingly, we address
Father's appeal on the merits to the extent feasible and practicable.
3
The "Order RE Evidentiary Hearing on Final Divorce" is not
included in this record.
4
Hawaii Revised Statutes (HRS) § 576D-7 (2018), entitled
"Guidelines in establishing amount of child support," provides in pertinent
part:
(a) The family court, in consultation with the agency,
shall establish guidelines to establish the amount of child
support when an order for support is sought or being
modified under this chapter. The guidelines shall be based
on specific descriptive and numeric criteria and result in a
computation of the support obligation. . . .
[(A list of criteria is set forth in subsections (a)(1) -
(a)(9))]
(b) The guidelines shall be:
. . . .
(5) Transmitted to the agency and all family court
judges when available or updated, and shall be
considered by the judges in the establishment of
each child support order.
. . . .
(d) The establishment of the guidelines or the adoption of
any modifications made to the guidelines set forth in this
section may constitute a change in circumstances sufficient
to permit review of the support order. A material change of
circumstances will be presumed if support as calculated
pursuant to the guidelines is either ten per cent greater or
less than the support amount in the outstanding support
order. The most current guidelines shall be used to
calculate the amount of the child support obligation.
(e) 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
(continued...)
2
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We construe Father's contentions as also challenging the Family
Court's affirmance of the Hearings Officer's Administrative
Order.
Upon careful review of the record and the brief
submitted by Father,5 the supplemental briefs submitted by the
CSEA and Mother,6 and having given due consideration to the
arguments advanced and the issues raised, we resolve Father's
points of error as follows, and affirm.
The background of this case is set forth in the Family
Court's Decision and Order, which Father does not dispute.
Father and Mother have one child (Child) together, born in 2013.
On May 15, 2019, the Family Court's Divorce Decree ordered, in
relevant part: sole physical custody of Child to Mother, subject
to Father's reasonable visitation rights; Father to pay child
support of $1,136 per month; Father to maintain medical and
dental insurance for the Child; and Father to pay Mother alimony
of $1,000 per month for 24 consecutive months. Father filed for
reconsideration with the Family Court in May 2019, but was
denied.
Approximately nine months later, on February 21, 2020,
Father initiated a request to the CSEA to modify his child
support obligation. A proposed Administrative Order was
4
(...continued)
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.
5
Appellee-Appellee Child Support Enforcement Agency (CSEA) filed a
"Statement of No Position," and Appellee-Appellee-Custodial-Parent EM (Mother)
filed a notice that no Answering Brief would be filed. Father did not file a
Reply Brief.
6
We ordered supplemental briefing pursuant to HRAP Rule 28(b)(4),
and Father and the CSEA were ordered, and Mother was allowed, to file a
supplemental brief regarding whether this was Father's "second or subsequent
request" for child support modification under HRS §§ 576D-7(e) and 576E-14(d),
and whether the correct burden of proof under these statutes was applied by
the Family Court and OCSH. Father's mailed copy of the Order for Supplemental
Briefing was returned and filed as "not deliverable" on February 24, 2022.
The CSEA and Mother filed their supplemental briefs on March 11, 2022. Father
did not file a supplemental brief.
3
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generated, proposing a child support obligation of $1,041 per
month for Father. Father objected and requested a hearing.
The OCSH hearing was held on June 4, 2020, where Father
represented himself, and Mother attended with her attorney. The
Hearings Officer admitted only the Divorce Decree, submitted by
the CSEA, into evidence. The Divorce Decree did not have an
attached Child Support Guidelines Worksheet (Guidelines
Worksheet).7 Father argued: 1) his monthly income from his
Alabama property should be $77; 2) Mother's income should include
alimony she receives; 3) he should be given credit for paying for
Child's dental health insurance; 4) Mother should not get credit
for child care; and 5) the Hearings Officer should consider
utilizing either an extensive timesharing worksheet or an
exceptional circumstances worksheet to determine his child
support obligation.
At the conclusion of the hearing, the Hearings Officer
found that Father failed to meet his burden of proof to establish
his monthly gross income, Mother's monthly gross income, and
credit for dental care. The Hearings Officer was thus unable to
complete the Guidelines Worksheet, and denied Father's request
for a modification.
Father thereafter appealed to the Family Court
challenging the OCSH's findings regarding: 1) Father's income;
2) Mother's income; 3) calculating time sharing hours; and 4) the
child support amount. The Family Court construed and applied HRS
§ 576D-7(e), stating: "Father can request a modification of his
child support obligation within three (3) years of the Family
Court Order pursuant to HRS § 576D-7(e), if the request is
supported by proof of a substantial or material change in
circumstances." The Family Court affirmed the Administrative
Order, concluding in pertinent part as follows:
[D]espite the harmless errors on some of OCSH's findings and
conclusions, as noted above, Father failed to show that
7
The Hearings Officer noted in the Administrative Order that no
Guidelines Worksheet was attached to the Divorce Decree; nor was the worksheet
provided at the June 4, 2020 hearing.
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there has been a substantial and material change in his
circumstances since the May 15, 2019 Decree, which set his
current child support obligation at $1,136 per month, to
warrant modification of his child support obligation.
Our review of a family court decision on an appeal from
an administrative agency determination is a secondary appeal; we
must determine whether the family court was right or wrong in its
decision, applying the standards set forth in HRS § 91-14(g)8 to
the agency's decision. CH v. Child Support Enf't Agency, 149
Hawai#i 523, 531, 495 P.3d 373, 381 (App. 2021); see Flores v.
Bd. of Land & Nat. Res., 143 Hawai#i 114, 120, 424 P.3d 469, 475
(2018) (citations omitted) (reviewing circuit court agency
appeal). "Under HRS § 91-14(g), conclusions of law are
reviewable under subsections (1), (2), and (4); questions
regarding procedural defects under subsection (3); findings of
fact under subsection (5); and an agency's exercise of discretion
under subsection (6)." Flores, 143 Hawai#i at 121, 424 P.3d at
476 (brackets and citations omitted).
(1) In his first point of error, Father contends that
the "court or agency failed to calculate the correct number of
days per the [Guidelines] per the Order RE Evidentiary Hearing .
. . and [Divorce Decree]." Father argues that:
the number of over nights [sic] is not calculated correctly
by either the court and/or agency. The total number of days
every month, is 12 overnight. The mathematical calculation
is, 13 4-week segments for each calendar year (52 weeks per
year ÷ 4-week cycle = 13 4-week cycle per year), 12
overnights x 13 4-week cycle = 156 overnight [sic] per year.
The Order Re: Evidentiary Hearing is not included in this record,
and Father's figures and calculation above, do not appear in the
Divorce Decree.
8
HRS § 91-14 (2012 & Supp. 2019) provides for "Judicial review of
contested cases."
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The Family Court found that the Hearings Officer did
erroneously calculate Father's overnights, but concluded the
miscalculation was harmless:
Time Sharing. Father requested that the hearing
officer consider an Extensive Visitation Calculation, which
requires at least 143 overnights. Id. at 52. Although
OCSH's calculation of Father's overnights appear to be
miscalculated, the error is harmless because the correct
calculation based on the Divorce Decree would still yield
less than 143 overnights.
(Emphasis added).
The time sharing calculation is a factual finding that
we review under the clearly erroneous standard. See P.O. v.
J.S., 139 Hawai#i 434, 439, 393 P.3d 986, 992 (2017). A finding
of fact is clearly erroneous when the record lacks substantial
evidence to support it. Id. In its Decision and Order, the
Family Court calculated Father's overnights at "approximately 138
overnights during odd-numbered years, and about 142 overnights
during even-numbered years."9 The Family Court's calculation is
9
The Divorce Decree ordered sole physical custody to Mother,
subject to Father's reasonable visitation rights, which the Family Court
summarized in its Decision and Order:
• Week 1: Child has 2 overnights with Father
• Week 2: Child has 2 overnights with Father
• Week 3: Child has 4 overnights with Father
• Week 4: Child has 2 overnights with Father
• Child has overnights with Father for either Spring or
Fall break every year.
• Child has overnights with Father on Thanksgiving,
Christmas, and New Year during even-numbered years.
• Child has overnights with Father on Father's birthday
and Father's Day.
• Child has overnights with Father on Child's birthday
during odd-numbered years.
• Child has overnights with Father for half of the
roughly 3-month summer time.
Based on the Divorce Decree, the Family Court calculated that Father would
have:
6-8 overnights during two months with Spring and Fall Breaks
= 13-15 overnights depending on the week of the break
Summer months = 45 overnights each
(continued...)
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supported by the Divorce Decree, appears accurate, and is not
clearly erroneous. See id. The overnights as correctly
calculated by the Family Court were still not sufficient to
qualify Father for the "Extensive Visitation Calculation"
referenced in the Decision and Order. The Family Court did not
err in its conclusion of law that the Hearings Officer's
calculation error was nevertheless harmless. See id. (reviewing
conclusions of law de novo).
(2) In his second point of error, Father contends that
"the court or agency failed to enforce HRS § 576D-7," due to
failure to "enforce" the Guidelines. In his argument, Father
asserts that the "amount of alimony received by [Mother] and the
imputed amount which was agreed by [Mother]" was a "substantial
change in circumstance." In his Statement of the Case,10 Father
challenges Mother's counsel's "erroneous theory that alimony is
not taxable and should not be considered in [sic] part of gross
monthly income." Father points to the Guidelines, and asserts
that the Guidelines "clearly stated that alimony (spousal
support) income is included in gross income." However, Father
does not refer to, or identify, any finding, conclusion, or
ruling, by OCSH or the Family Court, that contains the claimed
error regarding alimony. See HRAP Rule 28(b)(4). Father also
9
(...continued)
10 overnights during a 4-week cycle for 7 months = 70
Other holidays and breaks = 10-12 overnights depending on
the year. . . .
(Emphases added).
10
While some of Father's argument regarding his challenge to the
alimony issue appears in the Statement of the Case rather than in the argument
section as required by HRAP Rule 28(b)(7), we have nevertheless considered it.
See Marvin v. Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88, 94 (2012) (internal
citations, quotation marks, brackets, ellipses omitted) ("[N]oncompliance with
Rule 28 does not always result in dismissal of the claims, and this court has
consistently adhered to the policy of affording litigants the opportunity to
have their cases heard on the merits, where possible. This is particularly so
where the remaining sections of the brief provide the necessary information to
identify the party's argument.").
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argues that the Guidelines were not followed, no child support
worksheet was filled out, and no exceptional circumstances were
established to deviate from the Guidelines. These arguments are
also untethered to any claimed error in any finding, conclusion,
or ruling, by OCSH or the Family Court. We do not address
Father's contention. See id.
Based on the foregoing, the "Decision and Order
Affirming the Administrative Findings and Order and "Notice and
Judgment on Appeal," Filed July 8, 2020," both filed on December
21, 2020 by the Family Court of the First Circuit, are affirmed.
DATED: Honolulu, Hawai#i, March 31, 2022.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
PM, Self-Represented
Appellant-Appellant /s/ Karen T. Nakasone
Associate Judge
Mark T. Nugent
Jorge Keoki R. Cadiz /s/ Sonja M.P. McCullen
Deputy Attorneys General Associate Judge
for Appellee-Appellee Child
Support Enforcement Agency,
State of Hawaii
Michael A. Glenn
for Appellee-Appellee EM
8