FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-MAY-2022
07:46 AM
Dkt. 118 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
—o0o—
CAAP-XX-XXXXXXX
KS, Plaintiff-Appellant,
v.
RS, Defendant/Appellee
AND
CAAP-XX-XXXXXXX
KS, Plaintiff-Appellant,
v.
RS, Defendant/Appellee
CAAP NOS. XX-XXXXXXX and XX-XXXXXXX
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. FC-D 18-1-0119)
MAY 27, 2022
GINOZA, CHIEF JUDGE, WADSWORTH AND NAKASONE, JJ.
OPINION OF THE COURT BY NAKASONE, J.
This appeal considers whether, under Hawai#i law, a
family court may grant tie-breaking authority to one parent in a
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
joint legal custody award, if the court determines that it is in
the child's best interests. We hold that a family court is not
precluded from ordering joint legal custody with tie-breaking
authority to one parent based on the court's broad discretion, if
it determines that doing so is in the child's best interest.
In this consolidated appeal,1 Plaintiff-Appellant "KS"
(Mother) appeals from orders and a decree arising out of a trial
regarding her divorce from Defendant-Appellee "RS" (Father),
entered by the Family Court of the First Circuit (Family Court).2
In CAAP-XX-XXXXXXX, Mother appeals from the November 25, 2019
Decision and Order Re: Trial, Child Support Guidelines Worksheet,
and Property Division Chart (Trial Order); and the December 16,
2019 Decree Granting Absolute Divorce and Awarding Child Custody
(Divorce Decree).3 In CAAP-XX-XXXXXXX, Mother appeals from the
June 29, 2020 Order Re: Plaintiff's Motion to Amend or Alter
Decision and Order and Granting Defendant's Motion to Enforce
Decree (Order Re: Post-Judgment Motions).4
In CAAP-XX-XXXXXXX, Mother raises twelve (12) points of
error (POEs), contending that the Family Court erred:
(1) in FOF 47 by determining that the Court could not
order joint legal custody with tie-breaking authority;
(2) in FOF 47 by finding that it would not be in
Child's best interest if either party has sole legal custody;
1
We consolidated CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX by an Order of
Consolidation filed on June 15, 2021, and the appeals were consolidated under
CAAP-XX-XXXXXXX.
2
The Honorable Jessi L.K. Hall presided.
3
In CAAP-XX-XXXXXXX, after Mother filed her December 23, 2019
Notice of Appeal, the Family Court entered its March 9, 2020 Supplemental
Record on Appeal: Findings of Fact and Conclusions of Law ( March 9, 2020
FOFs/COLs).
4
In CAAP-XX-XXXXXXX, after Mother filed her July 29, 2020 Notice of
Appeal from the Order Re: Post-Judgment Motions, the Family Court entered its
September 21, 2020 Supplemental Record on Appeal: FOFs/COLs ( September 21,
2020 FOFs/COLs), regarding the post-judgment motions.
2
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(3) by failing to apply the statutory factors for
determining the "best interest of the child;"
(4) in COL 14 by concluding that "some" of Mother's
behavior was "detrimental" to Child;
(5) in FOFs 59, 62-64 by making certain findings
regarding a video of a time-sharing exchange of Child between
Mother and Father;
(6) in COL 15 by determining that it is in the best
interest of Child that the parties shall have joint legal and
joint physical custody;
(7) in FOF 20 by finding that the parties could have
joint custody if there was a neutral body to assist with making
decisions;
(8) by "imposing a mandatory two-part dispute
resolution process on the parents, who were ordered to share
equally in the costs of this process, instead of awarding final
decision-making authority to [Mother];"
(9) in refusing to allow Mother to introduce
stipulated exhibits, pursuant to a "personal policy" of the
judge;
(10) in FOF 108 by finding that each side chose to
withdraw several exhibits at the end of trial;
(11) in FOF 101 and COL 31, in which the Family Court
imposed an "erroneous and inequitable equalization payment on
[Mother] based on [Father's] undisclosed and unsubstantiated
debt" for attorney's fees and a student loan "which was not
supported by competent evidence;" and
(12) in COLs 22 and 32 where the Court "denied spousal
support to [Mother] as an offset" for the "erroneous and
inequitable equalization payment set forth in COL 31, without
first calculating the amount of spousal support to which [Mother]
was entitled to under [Hawaii Revised Statutes (HRS)] § 580-
47(a), utilizing the factors and principles set forth in Wong v.
3
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Wong," 87 Hawai#i 475, 485, 960 P.2d 145, 155 (App. 1998), "which
would have outweighed the equalization payment that the Court
arrived at."
In CAAP-XX-XXXXXXX, Mother raises seventeen POEs of
which twelve are identical to the POEs in CAAP-XX-XXXXXXX. The
following five additional POEs5 pertain to the disposition of
"Plaintiff's Motion to Alter or Amend Decision and Order After
Trial filed November 25, 2019, and to Stay Execution of Order and
for Hearing Pursuant to Rules 59(e) and 62(b), Hawai#i Family
Court Rules" (Motion to Alter), in which Mother contends the
Family Court erred:
(13) in refusing to grant Mother's Motion to Alter;
(14) in concluding as a matter of law that it could not
grant Mother's Motion to Alter because an appeal was pending;
(15) in COLs 5-7 in the September 21, 2020 FOFs/COLs
setting forth the reasoning why the Family Court took no further
action on the Motion to Alter;
(16) in FOF 5 in the September 21, 2020 FOFs/COLs by
making a finding of an erroneous filing date; and
(17) in not granting Mother's Motion to Alter to make
Father responsible for health care coverage for Child, and erred
in COL 21 in the March 9, 2020 FOFs/COLs where Mother was made
responsible for Child's health coverage.
As to CAAP-XX-XXXXXXX, we vacate in part with respect
to the dispute resolution provisions of the award of joint
custody, and the determinations regarding spousal support. As to
CAAP-XX-XXXXXXX, we vacate the Order Re: Post-Judgment Motions to
the extent it did not address Mother's Motion to Alter.
I. BACKGROUND
Mother and Father were married in 2006 and separated in
2017. Mother and Father are the parents of Child, who was born
in 2014 during the marriage. The Complaint for Divorce was filed
on January 30, 2018, and trial was held on October 28 and 29,
2019. Following trial, the Family Court filed: 1) the November
5
We have renumbered the new POEs 13 to 17.
4
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25, 2019 Decision and Order; 2) the December 16, 2019 Divorce
Decree; and 3) the March 9, 2020 FOFs/COLs.6
In the Divorce Decree, the Family Court: 1) granted
the divorce; 2) ordered joint legal and joint physical custody to
Father and Mother; 3) set forth the joint physical custody
schedule, with exchange times and locations, and set alternating
holiday schedules; 4) directed Father and Mother to mutually
agree to division of school breaks, and if no agreement could be
reached, discussion with a Parenting Coordinator; 5) ordered
Father to pay child support to Mother; 6) addressed other issues
such as child-related expenses, education and educational
expenses, and extracurricular expenses; 7) ordered Father to
provide for Child's medical and dental insurance coverage; 8)
declined to award alimony to either parent; 9) discussed award of
Father and Mother's assets, insurance, and individual debts; 10)
waived the equalization payment Mother would have had to pay
Father, in lieu of an award of alimony;7 11) ordered the parties
to file separate taxes for 2019, and going forward; and 12)
ordered that each party be responsible for their own attorney's
fees and costs.
Mother timely appealed from the Trial Order and Divorce
Decree in CAAP-XX-XXXXXXX on December 23, 2019, as a self-
represented litigant. Mother submitted the Motion to Alter on
December 5, 2019, but it was not heard until March 11, 2020,
along with Father's motion to enforce the Divorce Decree. At the
March 11, 2020 hearing, per Mother's request, the hearing on her
Motion to Alter was continued to May 20, 2020. No transcript was
requested for the May 20, 2020 hearing. The Order Re: Post-
Judgment Motions filed on June 29, 2020 contains the disposition
of the motions from the May 20, 2020 hearing, and reflects that
the Family Court took "no further action" and did not render a
decision as to Mother's Motion to Alter, citing the pending
6
The Divorce Decree is substantially similar to the Decision and
Order. The March 9, 2020 FOFs/COLs set forth the Family Court's reasoning.
7
As to the equalization payment, the Divorce Decree stated: "15.
Equalization Payment. In lieu of alimony, [Mother] shall not be required to
pay the equalization payment set out in the Property Division Chart attached
hereto."
5
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appeal in CAAP-XX-XXXXXXX. Instead, the Family Court granted
Father's motion to enforce the Divorce Decree. On July 29, 2020,
under CAAP-XX-XXXXXXX, Mother filed a Notice of Appeal from the
June 29, 2020 Order Re: Post-Judgment Motions.
II. STANDARDS OF REVIEW
A. Family Court Decisions
"Generally, the family court possesses wide discretion
in making its decisions and those decisions will not be set aside
unless there is a manifest abuse of discretion." Hamilton v.
Hamilton, 138 Hawai#i 185, 197, 378 P.3d 901, 913 (2016) (citing
Kakinami v. Kakinami, 127 Hawai#i 126, 136, 276 P.3d 695, 705
(2012) (quoting Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d
355, 360 (2006))).
It is well established that a family court abuses its
discretion where "(1) the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant; (2) the family court failed to exercise
its equitable discretion; or (3) the family court's decision
clearly exceeds the bounds of reason."
Kakinami, 127 Hawai#i at 155-56, 276 P.3d at 724-25 (citations
omitted). "[T]he family court is given much leeway in its
examination of the reports concerning a child's care, custody,
and welfare, and its conclusions in this regard, if supported by
the record and not clearly erroneous, must stand on appeal."
Fisher, 111 Hawai#i at 46, 137 P.3d at 360 (citation omitted).
B. Family Court's Findings of Fact and
Conclusions of Law
"The family court's findings of fact are reviewed under
the clearly erroneous standard, while the court's conclusions of
law are reviewed de novo under the right/wrong standard." Gordon
v. Gordon, 135 Hawai#i 340, 348, 350 P.3d 1008, 1016 (2015)
(citing Kakinami, 127 Hawai#i at 136, 276 P.3d at 705)).
A [finding of fact] is clearly erroneous when (1) the record
lacks substantial evidence to support the finding, or (2)
despite substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made. "Substantial
evidence" is credible evidence which is of sufficient
6
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quality and probative value to enable a person of reasonable
caution to support a conclusion.
Kakinami, 127 Hawai#i at 136, 276 P.3d at 705.
"[W]hen a conclusion of law presents mixed questions of
fact and law, we review it under the 'clearly erroneous' standard
because the court's conclusions are dependent on the facts and
circumstances of each individual case." JW v. RJ, 146 Hawai#i
581, 585, 463 P.3d 1238, 1242 (App. 2020) (citing Estate of Klink
ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523
(2007)). "A conclusion of law that is supported by the trial
court's findings of fact and reflects an application of the
correct rule of law will not be overturned." Id.
C. Statutory interpretation
"Statutory interpretation is a question of law
reviewable de novo." JD v. PD, 149 Hawai#i 92, 96, 482 P.3d 555,
559 (App. 2021) (citation omitted). In construing statutes, we
observe the following principles:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.
Id. (citation omitted).
D. Family Court Post-Judgment Motions
We review a family court's ruling on a Hawai#i Family
Court Rules (HFCR) Rule 59(e) motion under the abuse of
discretion standard. See Tagupa v. Tagupa, 108 Hawai#i 459, 465,
121 P.3d 924, 930 (App. 2005) (citation omitted). "An abuse of
discretion occurs if the trial court has clearly exceeded the
bounds of reason or disregarded rules or principles of law or
practice to the substantial detriment of a party litigant." Id.
(internal quotation marks and citation omitted).
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III. DISCUSSION8
A. Custody Award, POEs 1-8
1. The Family Court's award of joint legal
and physical custody was not erroneous.
We first address Mother's contentions in POEs 2-6 that
the Family Court's award of joint legal custody was erroneous.
In POE 2, Mother challenges FOF 47's finding that: "it would not
be in the minor child's best interest if either party has sole
legal custody, as the other party would be prohibited from
providing input;" and in POE 6, COL 15's conclusion that "it is
in the best interest of the Child that the parties shall have
joint legal and joint physical custody." In POE 3, Mother claims
the Family Court failed to apply the "best interest" factors in
HRS § 571-46(b).9 In POEs 4 and 5, Mother challenges FOFs 59,
8
We have reorganized, consolidated, and restated Mother's points of
error for clarity.
9
HRS § 571-46 (2018), entitled "Criteria and procedure in awarding
custody and visitation; best interest of the child," provides in subsection
(b) that:
(b) In determining what constitutes the best interest of
the child under this section, the court shall consider, but
not be limited to, the following:
(1) Any history of sexual or physical abuse of a
child by a parent;
(2) Any history of neglect or emotional abuse of a
child by a parent;
(3) The overall quality of the parent-child
relationship;
(4) The history of caregiving or parenting by each
parent prior and subsequent to a marital or other
type of separation;
(5) Each parent's cooperation in developing and
implementing a plan to meet the child's ongoing
needs, interests, and schedule; provided that this
factor shall not be considered in any case where
the court has determined that family violence has
been committed by a parent;
(6) The physical health needs of the child;
(7) The emotional needs of the child;
(8) The safety needs of the child;
(9) The educational needs of the child;
(continued...)
8
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62-64, and COL 14,10 which contain the Family Court's findings
9
(...continued)
(10) The child's need for relationships with
siblings;
(11) Each parent's actions demonstrating that they
allow the child to maintain family connections
through family events and activities; provided
that this factor shall not be considered in any
case where the court has determined that family
violence has been committed by a parent;
(12) Each parent's actions demonstrating that they
separate the child's needs from the parent's
needs;
(13) Any evidence of past or current drug or alcohol
abuse by a parent;
(14) The mental health of each parent;
(15) The areas and levels of conflict present within
the family; and
(16) A parent's prior wilful misuse of the protection
from abuse process under chapter 586 to gain a
tactical advantage in any proceeding involving
the custody determination of a minor. Such
wilful misuse may be considered only if it is
established by clear and convincing evidence,
and if it is further found by clear and
convincing evidence that in the particular
family circumstance the wilful misuse tends to
show that, in the future, the parent who engaged
in the wilful misuse will not be able to cooperate
successfully with the other parent in their shared
responsibilities for the child. The court shall
articulate findings of fact whenever relying upon
this factor as part of its determination of the
best interests of the child. For the purposes of
this section, when taken alone, the voluntary
dismissal of a petition for protection from abuse
shall not be treated as prima facie evidence that
a wilful misuse of the protection from abuse
process has occurred.
10
FOFs 59, 62-64, and COL 14 state as follows:
[(Findings of Fact)]
59. The video shows that the minor child did not wish to
transition to [Mother].
. . . .
62. [Mother] then requested a uniformed police officer to
walk up to the minor child to bring the minor child to her.
63. There was nothing that prohibited [Mother] from walking
to the minor child, who was no longer near [Father].
64. The Court finds that said action was not in the best
interest of the minor child.
(continued...)
9
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regarding a video showing a time-sharing exchange of Child
between the parents at the main police station, and the Court's
conclusions regarding the video evidence. POE 4 also challenges
the conclusion that "some of [Mother's] behavior" was
"detrimental" to Child in COL 14.
Mother argues that the Family Court erred in COLs 14
and 15, and FOFs 47, 59, and 62-64, because, "[i]nstead of and
without applying all of the sixteen statutory factors in HRS §
571-46(b), the family court at COL 14 made vague references to
'[Mother]'s behavior' being 'detrimental' to [Child]." Mother
claims the "lack of explanation" shows that there was "some
unwritten factor or bias [that] formed a substantial basis" of
the Court's custody decision. Mother asserts that instead of
looking at the totality of all of the best interest factors, the
Family Court abused its discretion by its "myopic focus on one
time-sharing exchange" which occurred pursuant to court order
with restrictions imposed by the police station.
The findings in FOFs 59, 62, and 63, and the mixed
conclusion of law and fact in FOF 64 regarding the video of the
time-sharing exchange, are supported by substantial evidence and
not clearly erroneous.11 See Gordon, 135 Hawai#i at 348, 350 P.3d
at 1016; JW, 146 Hawai#i at 585, 463 P.3d at 1242. "It is well-
settled that an appellate court will not pass upon issues
dependent upon the credibility of witnesses and the weight of
10
(...continued)
. . . .
[(Conclusions of Law)]
14. The Court finds that some of [Mother's] behavior has
been detrimental to the minor child, but the Court further finds
that the minor child's need to be with both parents outweighs the
effects of [Mother's] actions.
11
The video recorded by Mother is 9 minutes, 45 seconds long, and
appears to show the parties exchanging Child at the Honolulu Police Department
main station. Child is seen crying and reluctant to walk through the metal
detector, from Father outside the security barrier, to Mother seated inside
the area past the metal detector, recording the video. Father comforts Child.
Mother is heard repeatedly asking Father to help Child through the metal
detector. Father does not respond, except to hold his hand up in response to
Mother who says: "This is part of the problem - can you help [Child]
through?" Mother tells an officer sitting nearby that she may need assistance
to escort Child through the metal detector, but the officer declines. Father
says goodbye and leaves. The remaining video shows Mother talking to Child.
10
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evidence; this is the province of the trier of fact." Fisher,
111 Hawai#i at 46, 137 P.3d at 360 (quoting In re Doe, 95 Hawai#i
183, 190, 20 P.3d 616, 623 (2001)). The Family Court viewed and
weighed the video evidence as factfinder, and we do not disturb
its findings on appeal.
The record does not show that the Family Court abused
its broad discretion in weighing the best interest factors in
determining the award of custody. In determining custody, "the
family court is granted broad discretion to weigh the various
factors involved, with no single factor being given presumptive
paramount weight, in determining whether the standard has been
met." Inoue v. Inoue, 118 Hawai#i 86, 105, 185 P.3d 834, 853
(App. 2008) (quoting Fisher, 111 Hawai#i at 50, 137 P.3d at 364).
Numerous findings appear pertinent to the factors the Family
Court had to consider in its custody determination, including any
history of abuse by a parent, the quality of the parent-child
relationship, each parent's ability to separate their own needs
from the child's needs, each parent's mental health, areas and
levels of conflict present in the family, and parental
cooperation to implement plans to meet Child's needs. See HRS §
571-46(b)(1), (b)(2), (b)(3), (b)(5), (b)(12), (b)(14), (b)(15).
The Court made findings regarding Father's lack of mental health
diagnosis or any other issue affecting his ability to parent.
FOFs 15, 16, and 17. Abuse was not a concern in this case. FOF
19. The Family Court found the parents had poor communication,
difficulty co-parenting in a peaceful manner, with Mother driving
much of the conflict. FOFs 22, 46, and 48. Mother quit and
refused using the Parenting Coordinator, and failed to respond to
Father's requests to discuss the issue. FOFs 49 and 50. The
Court noted there were incidents where Mother would not share
information with Father and said it was because Father did not
ask. FOF 51. Mother told Child that she feared Father. FOF 52.
Mother's actions in the time-sharing video were "not in the best
interest" of Child. FOFs 59-64. COL 14, containing the Court's
finding and conclusion that some of Mother's behavior was
"detrimental" but nevertheless outweighed by Child's need to be
with both parents, is actually a mixed FOF and COL subject to the
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clearly erroneous standard of review. See JW, 146 Hawai#i at
585, 463 P.3d at 1242. The Court's finding in COL 14 that
Mother's behavior was "detrimental" to Child is supported by the
unchallenged findings above12 and the challenged video findings
in FOFs 59, and 62-64, all of which were within the Court's
province as the factfinder. The record shows the Court weighed
the facts that it found and applied the best interest factors in
arriving at its conclusion that Child's "need to be with both
parents outweigh[ed]" the effects of Mother's "detrimental"
actions. COL 14. Thus, COL 14 was not wrong.
The family court "is given much leeway in its
examination of the reports concerning a child's care, custody,
and welfare, and its conclusions in this regard, if supported by
the record and not clearly erroneous, must stand on appeal."
Fisher, 111 Hawai#i at 46, 137 P.3d at 360. On this record, the
Court's conclusion in FOF 47, that it would not be in Child's
best interest if either parent had sole legal custody because the
other parent would not have an opportunity for input, and
ultimate conclusion in COL 15 that joint legal and physical
custody of Child was in Child's best interest, were not
erroneous. See Gordon, 135 Hawai#i at 348, 350 P.3d at 1016.
2. A joint custody award with a tie-breaking
provision is not precluded by statute.
We next address Mother's contentions in POEs 1, 7, and
8, related to the joint custody award. In these POEs, Mother
challenges FOF 20, and the second sentence of FOF 47, which
state:
20. Although Dr. Acklin's report recommended what was
equivalent to sole legal custody to [Mother] or
alternatively joint legal custody with tie breaking
authority to [Mother], he testified that he would agree that
the parties could have joint legal custody so long as there
was a neutral body that could assist them with any disputes.
. . . .
47. It would not be in the minor child's best
interest if either party has sole legal custody, as the
other party would be prohibited from providing input. The
12
Unchallenged findings of fact are binding upon appeal. In re Doe,
99 Hawai#i 522, 538, 57 P.3d 447, 463 (2002).
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Court cannot order joint legal custody with tie breaking
authority.
(Emphasis added).
FOF 20 is a recitation of Dr. Marvin Acklin's (Dr.
Acklin) report and testimony as custody evaluator, which Mother
disagrees with, but does not specifically challenge. As FOF 20
appears to accurately set forth Dr. Acklin's recommendation and
testimony, it is not clearly erroneous. Gordon, 135 Hawai#i at
348, 350 P.3d at 1016.
In POEs 1 and 2, Mother contends that the Family Court
erred in FOF 47 by ruling that the court "could not order joint
legal custody with tie-breaking authority." In POEs 7 and 8,
Mother challenges FOF 20 that the parties could have joint legal
custody so long as there was a neutral body to assist them in
disputes; and Mother opposes the imposition of a costly and
burdensome dispute resolution process that Mother says she could
not afford.13
Mother argues that the Family Court made an erroneous
"conclusion of law about tie-breaking authority that is
reviewable de novo," when it stated in FOF 47 that it could not
order joint legal custody with tie-breaking authority. Mother
asserts that the Family Court was not barred, under the
13
As to custody and timesharing of Child, the Divorce Decree
provided:
6. Custody and Timesharing. The parties shall have
joint legal and joint physical custody.
For joint legal custody, the parties shall be required
to discuss any legal issues via Our Family Wizard. A party
shall have forty-eight (48) hours to respond regarding a
legal custody issue. If there is no response within forty-
eight (48) hours, then the non-responsive party will be
considered to be in agreement with the legal custody
decision proffered.
In the event of an impasse regarding child-related
issues, [Mother] and [Father] shall attempt to resolve the
issue through Mediation Center of the Pacific or other
mutually agreed upon mediator. If the parties are unable to
resolve the issue through mediation, then they shall retain
the services of a Parenting Coordinator if they are unable
to agree on any child-related issues.
[Mother] and [Father] shall share equally the cost of
mediation and the Parenting Coordinator.
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"governing statutory scheme" of HRS § 571-4614 or HRS § 571-
46.1,15 from awarding tie-breaking authority to one parent in a
joint custody award; and that the Family Court could do so as a
"court of equity" under HRS § 571-3.16 Mother urges that the
14
HRS § 571-46(a)(1) specifies the legal criteria for a custody
award, and subsection (a)(4) provides for an investigation and report by a
child custody evaluator to aid the court:
(a) . . . . In awarding the custody, the court shall be
guided by the following standards, considerations, and
procedures:
(1) Custody should be awarded to either parent or to
both parents according to the best interests of the
child, and the court also may consider frequent,
continuing, and meaningful contact of each parent with
the child unless the court finds that a parent is
unable to act in the best interest of the child;
. . . .
(4) Whenever good cause appears therefor, the court
may require an investigation and report concerning the
care, welfare, and custody of any minor child of the
parties. When so directed by the court, investigators
or professional personnel attached to or assisting the
court, hereinafter referred to as child custody
evaluators, shall make investigations and reports that
shall be made available to all interested parties and
counsel before hearing . . . .
(Emphases added).
15
HRS § 571-46.1 (2018), entitled "Joint custody," provides:
(a) Upon the application of either parent, joint custody
may be awarded in the discretion of the court. For the
purpose of assisting the court in making a determination
whether an award of joint custody is appropriate, the court
shall, upon the request of either party, direct that an
investigation be conducted pursuant to the provisions of
section 571-46(a)(4).
(b) For the purposes of this section, "joint custody" means
an order awarding legal custody of the minor child or
children to both parents and providing that physical custody
shall be shared by the parents, pursuant to a parenting plan
developed pursuant to section 571-46.5 . . . .
(Emphasis added). The child custody evaluator's report is also used by a
court to determine the appropriateness of a joint custody award. See HRS §
571-46(a)(4).
16
HRS § 571-3 (2018), entitled "Family courts, divisions of circuit
courts," provides:
The family courts shall be divisions of the circuit courts
of the State and shall not be deemed to be other courts as
that term is used in the State Constitution. . . . In any
case in which it has jurisdiction the court shall exercise
(continued...)
14
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Family Court has "broad powers," "inherent authority[,] and
discretion to include tie-breaking provisions in a joint legal
custody award under appropriate circumstances involving parents
who cannot communicate effectively, where not otherwise
constrained by statute."
To support her argument, Mother primarily relies on a
Maryland case, Santo v. Santo, 141 A.3d 74, 89 (Md. 2016), in
which the Maryland Court of Appeals held:
[A] court of equity ruling on a custody dispute may, under
appropriate circumstances and with careful consideration
articulated on the record, grant joint legal custody to
parents who cannot effectively communicate together
regarding matters pertaining to their children. In doing
so, the court has the legal authority to include tie-
breaking provisions in the joint legal custody award.
(Emphasis added). In Santo, the father challenged the trial
court's award of joint custody with tie-breaking provisions as
illegal, because it violated the custody statute as it was
"neither single nor joint, but a hybrid of the two—an option not
set forth in the statute." Id. at 83. The Santo Court explained
that the lower court's authority to award custody did not derive
solely from statute, but also from common law, and the "broad and
inherent authority of a court exercising its equitable powers to
determine child custody." Id. at 84 (quoting Taylor v. Taylor,
508 A.2d 964, 968 (Md. 1986)).17 The Court considered the
propriety of "tie-breaking provisions" in joint custody awards
that "grant one parent the authority to make a decision about a
matter affecting the child when the parents cannot agree." Id.
at 76. The Santo Court explained:
In a joint legal custody arrangement with tie-breaking
provisions, the parents are ordered to try to decide
together matters affecting their children. When, and only
16
(...continued)
general equity powers as authorized by law.
(Emphasis added).
17
In Taylor, decided thirty years prior, the Maryland Court of
Appeals held that "an award of joint custody was a permissible exercise of a
trial court's general equity powers" and the "most important factor for a
court to consider before awarding joint custody is the capacity of the parents
to communicate and to reach shared decisions affecting a child's welfare."
Santo, 141 A.3d at 76 (citing Taylor, 508 A.2d at 964).
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when the parties are at an impasse after deliberating in
good faith does the tie-breaking provision permit one parent
to make the final call. Because this arrangement requires a
genuine effort by both parties to communicate, it ensures
each has a voice in the decision-making process.
Id. at 81. Because the Maryland custody statute authorized joint
custody without any limitations, and because the Santo Court
considered joint custody with tie-breaking provisions to be a
form of joint custody, it held that such a custody award was not
precluded by statute. Id. at 84.
The Santo Court considered authority from other
jurisdictions that have affirmed such provisions granting one
parent "tie-breaking authority," or "final decision-making
authority," in light of a family court's broad discretionary
powers. See id. at 81-83 (citing Ronny M. v. Nanette H., 303
P.3d 392, 405 (Alaska 2013) ("The court's approach [awarding
joint legal custody with final decision-making authority to
mother] is reasonably intended to encourage both parents to
communicate and attempt to make decisions about their children .
. . ."); State on behalf of Maddox S. v. Matthew E., 873 N.W.2d
208, 219 (Neb. Ct. App. 2016) ("We also point out that the court
maintained the goal of 'mutual agreement' between the parties . .
. .; only now, the final say as to certain major issues rests
with the designated parent if they cannot otherwise agree.");
Shea v. Metcalf, 712 A.2d 887, 891 (Vt. 1998) ("By avoiding an
'all or nothing approach,' the order keeps both parents in the
role of active parenting, takes full advantage of their
individual strengths, and avoids awarding either parent
responsibility for which he or she is not suited.")).
Other jurisdictions have affirmed provisions granting
tie-breaking or final decision-making authority to one parent in
shared or joint legal custody situations, as within the family
court's broad discretionary powers. See, e.g. Nicaise v.
Sundaram, 432 P.3d 925, 928 (Ariz. 2019) (providing that vesting
final decision-making authority in one parent may be appropriate
in instances where "the parents cannot reach a joint agreement in
good faith," and such award of joint legal decision-making with
one parent having final authority does not "necessarily give[]
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that parent sole legal decision-making authority"); Cassady v.
Signorelli, 56 Cal. Rptr. 2d 545, 549 (Cal. Ct. App. 1996)
(affirming the trial court's ruling that father should have the
"final say" as to child's health care decisions in the event of
disagreement between the parties due to trial court's "very
extensive discretion" as to best interests of the child); Lopes
v. Ferrari, 204 A.3d 1254, 1260-61 (Conn. App. Ct. 2019)
(affirming the trial court's grant to mother of primary physical
custody and "final decision-making authority" on major issues);
Macklin v. Johnson, 268 A.3d 1273, 1281 (D.C. 2022) (holding the
trial court did not abuse its discretion by granting mother
"final decision-making authority" based on practical issue of
parents' inability to reach joint decisions about the children's
welfare); Rembert v. Rembert, 674 S.E.2d 892, 894 (Ga. 2009)
(concluding it was unlikely the parents would agree on the
children's education and it was necessary to designate a "final
decision-maker" and no abuse of discretion where trial court
selected primary custodial parent as that decision-maker); Klein
v. Klein, 208 A.3d 802, 805 n.2 (Me. 2019) (citations omitted)
("[A] court is authorized to award a combination of shared and
allocated parental rights by granting one parent explicitly final
decision-making authority when necessary for the best interest of
a child."); D.B. v. J.B., 144 N.E.3d 911, 922 (Mass. App. Ct.
2020) (affirming grant of "final decision-making authority" to
mother for children's medical needs based on judge's discretion);
S.K.B.-G. by and through J.P.G. v. A.M.G., 532 S.W.3d 231, 240-41
(Mo. Ct. App. 2017) (affirming trial court's order awarding joint
legal custody of the child and vesting "final decision-making
authority" with father in event the parties could not agree);
Prohaszka v. Prohaszka, 958 N.Y.S.2d 508, 509 (N.Y. App. Div.
2013) (amending order as to mother's primary physical custody of
the children to give mother "final decision-making authority"
after consulting with father); Ward v. Halprin, 853 S.E.2d 7, 9
(N.C. Ct. App. 2020) (upholding trial court's "substantial
latitude" in fashioning a joint legal custody arrangement such as
"final decision-making authority" on major issues involving the
children that was given to mother based on the trial court's
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findings); Glidewell v. Glidewell, 869 N.W.2d 796, 808 (Wis. Ct.
App. 2015) (holding that circuit court did not erroneously
exercise its discretion in ordering joint custody with final
decisions as to medical matters to mother, and "final decision-
making authority" as to education to father, "after the parties
have conferred").
Here, the Family Court concluded that tie-breaking was
not an option available to it, and did not consider it.18 The
Family Court's statement in FOF 47 that: "[t]he Court cannot
order joint legal custody with tie breaking [sic] authority" is a
conclusion of law reviewable de novo. See Doe, 95 Hawai#i at
190, 20 P.3d at 623. We conclude that the applicable statutes in
Hawai#i -- HRS § 571-3, HRS § 571-46, and HRS § 571-46.1 –- do
not preclude a family court from granting tie-breaking authority
to one parent in a joint legal custody award if such a provision
18
The transcript also reflects that the Family Court believed it
could not order tie-breaking authority:
Q [FATHER'S COUNSEL]: Do you think that you should be
the only one making the decision in the event of a
disagreement?
A [MOTHER]: No. I don't think I'm the only one. I
think that there should be discussion, and that's ultimately
what I had proposed numerous times.
THE COURT: I want to make sure everybody is aware. I
cannot order tiebreaking authority. So I don't know why we
even discuss it. It's either joint or sole. So you
mentioned it too.
[MOTHER'S COUNSEL]: I know.
THE COURT: It's in your position even. So let's –-
[MOTHER'S COUNSEL]: Well, we were hoping at some
point there might be a stip still.
THE COURT: As long as everybody's clear, I can't
order it.
[FATHER'S COUNSEL]: The reason I'm discussing it now,
Your Honor, is just to essentially demonstrate what was
taking place during the pendency of this litigation.
THE COURT: No. I understand that. But when you're
talking about what the decree is going to look like, I can't
do tiebreaking.
[FATHER'S COUNSEL]: Understood.
(Emphases added).
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is in the best interests of the child. HRS § 571-46(a), setting
forth the best interests of the child criteria for custody
determinations, does not have language that would preclude an
award of joint custody with tie-breaking authority to one parent.
The joint custody statute, HRS § 571-46.1(a), provides for joint
custody awards "in the discretion of the court." HRS § 571-
46.1(b) provides:
For the purposes of this section, "joint custody" means an
order awarding legal custody of the minor child or children
to both parents and providing that physical custody shall be
shared by the parents, pursuant to a parenting plan
developed pursuant to section 571-46.5, in such a way as to
assure the child or children of frequent, continuing, and
meaningful contact with both parents; provided, however,
that such an order may award joint legal custody without
awarding joint physical custody.
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A "parenting plan" under HRS § 571-46.519 may include provisions
related to "[p]arental decision-making" and methods "for
resolving disputes." HRS § 571-46.5(c)(3) and (c)(10); see
Hollaway v. Hollaway, 133 Hawai#i 415, 422 n.6, 329 P.3d 320, 327
n.6 (App. 2014), overruled on other grounds by Waldecker v.
O'Scanlon, 137 Hawai#i 460, 375 P.3d 239 (2016) (noting that in
19
HRS § 571-46.5 (2018) provides:
(a) For every action that includes a contested custody of
children, both parties or both parents shall develop
either a mutually agreed-upon general parenting plan
or separate individually-desired parenting plan, and
file the plan at the outset of the action.
. . . .
(c) A detailed parenting plan may include, but is not
limited to, provisions relating to:
(1) Residential schedule;
(2) Holiday, birthday, and vacation planning;
(3) Parental decision-making and responsibility;
(4) Breastfeeding, if applicable;
(5) Information sharing and access;
(6) Relocation of parents;
(7) Telephone access and other means of
communication;
(8) Right of first refusal procedures;
(9) Transportation; and
(10) Methods for changing or enforcing the parenting
plan and for resolving disputes.
(d) If the parties cannot agree on a parenting plan, the
court may:
(1) Order the parties to participate in alternative
dispute resolution and in counseling with a
person with professional experience in child
custody or parenting issues, or with other
appropriate education, unless there is a finding
of family violence; and
(2) Develop and file a detailed parenting plan when
requested by either of the parties or parents.
The March 9, 2020 FOFs/COLs do not reflect whether a parenting
plan under HRS § 571-46.5 was used in determining joint custody. The record
does not indicate that a "mutually agreed-upon" parenting plan or "separate
individually-desired" parenting plans were filed "at the outset of the action"
under HRS § 571-46.5(a).
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cases where joint custodial parents reach an impasse in decision-
making regarding their child, preliminary alternatives such as a
parenting plan could lead to a better-informed resolution of
immediate issues, as well as serving as a means for the parents
to develop co-parenting skills that would best serve the child).
It is well-recognized that the family courts possess "wide
discretion" in making decisions. Fisher, 111 Hawai#i at 46, 137
P.3d 355 at 360.
Here, Dr. Acklin recommended that "the parties share
physical custody," and that the Court order "shared legal custody
with [Mother] having tie breaking [sic] authority . . . ." FOF
12. The Family Court found that Mother and Father did not
communicate effectively and blamed each other for their inability
to communicate. See FOFs 21 and 46. Several e-mails in evidence
reflected the parties' difficulties with communicating in a
"peaceful and co-parenting manner." FOF 48. Although Dr.
Acklin's report recommended "what was equivalent to sole legal
custody to [Mother] or alternatively joint legal custody with tie
breaking [sic] authority to [Mother]," Dr. Acklin testified that
the parties "could have joint legal custody" as long as "there
was a neutral body that could assist them with any disputes."
FOF 20. Even though Dr. Acklin had recommended joint legal
custody with tie-breaking authority to Mother, the Family Court
determined that it "cannot order joint legal custody with tie
breaking [sic] authority" and imposed joint legal custody with a
mandatory dispute resolution process. FOFs 12 and 47. Thus, the
record reflects that the Family Court rejected tie-breaking
authority as a matter of law, and ordered a dispute resolution
process modeled after Dr. Acklin's testimony that the parties
"could have joint legal custody so long as there was a neutral
body that could assist them with any disputes." FOF 20.
Under the circumstances of this case, we conclude that
the Family Court was not precluded from ordering joint legal
custody with tie-breaking authority to one parent, based on its
broad discretion, if the Court determined that this was in
Child's best interests. See Fisher, 111 Hawai#i at 46, 137 P.3d
at 360; Santo, 141 A.3d at 84. FOF 47 reflects that the Court
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wanted to avoid a situation where one parent was prohibited from
providing input. An approach awarding parents joint custody with
one parent having tie-breaking authority can be structured to
encourage both parties to communicate and to require both parents
to attempt to make decisions together. See Santo, 141 A.3d at
81. Joint custody with tie-breaking authority is an alternative
that addresses the Court's expressed concern of avoiding a
situation where one parent is excluded from having input. In
light of the above, we vacate the Family Court's orders to the
extent it held it could not order joint legal custody with tie-
breaking authority and regarding the dispute resolution process
and costs set forth in the Divorce Decree, which were raised in
POEs 1, 7, and 8. We remand for further proceedings on these
issues consistent with this opinion.
B. Equalization payment, POE 11
Mother challenges FOF 101, and COL 31,20 where the
Family Court imposed the "inequitable equalization payment" based
on Father's "late-disclosed" and "unsubstantiated" debts, which
consisted of (1) a personal loan for attorneys' fees and costs
claimed by Father in an asset and debt statement dated one week
before trial; and (2) a student loan that was not supported by
corroborating evidence. Mother did not object to the testimony
or exhibits regarding these debts at trial,21 and her contention
20
FOF 101 states: "[Father]'s Asset and Debt Statement dated
September 19, 2019 was used to create the PDC with regards to [Father]'s
assets and debts. (See [Father]'s Exhibit "F".)" COL 31 states: "31. The
Court finds that per the PDC [Mother] would owe [Father] an equalization
payment of $20,871.48."
21
The trial transcript reflects the following:
Q [FATHER'S COUNSEL]: Okay. You also have a –- a
personal loan listed; correct?
A [FATHER]: Yes.
Q: In the amount of $75,000; correct?
A: Yes.
Q: Is that a –- who is that loan from?
A: That loan is from my sister and her husband.
(continued...)
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is waived. See Kawamata Farms, Inc. v. United Agr Products, 86
Hawai#i 214, 248, 948 P.2d 1055, 1089 (1997) ("The general rule
is that an issue which was not raised in the lower court will not
be considered on appeal.") (citations and internal quotation
marks omitted)).
21
(...continued)
Q: Okay. When did the loan –- when was the loan
initiated?
A: It was initiated in January of –- January,
February of 2018.
Q: Okay. And was that at the commencement of the –-
this litigation?
A: Yes.
Q: Okay. And has that loan been extended for
purposes of litigation fees?
A: Yes, it has.
Q: Okay. And has it also helped you meet your
monthly deficiency –- meet your expenses?
A: It has and –-
Q: Okay. Also you have here listed a student loan;
correct?
A: Yes.
Q: And this has not been included on your prior
income and expense statements; correct?
A: Correct.
Q: And was that an unintentional omission?
A: It was, yeah. And it's on auto pay so it's not
something I really think about.
Q: Okay.
A: It's a –-
Q: Comes out of your account? Okay. But that is an
accurate reflection of your outstanding balance?
A: Yes, it is.
Q: Correct?
Your Honor, I'd like to move Exhibit F [Father's
Asset & Debt Statement] into evidence.
THE COURT: Exhibit F is received.
(Emphases added).
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C. Spousal Support, POE 12
In POE 12, Mother contends that the Family Court erred
in making COLs 22 and 32,22 where the Court "denied spousal
support" to Mother as an "offset" for the $20,871.48 equalization
payment in COL 31, without first calculating the amount of
spousal support to which Mother was entitled. Mother's
contention has merit.
"We review the family court's final division and
distribution of the estate of the parties under the abuse of
discretion standard, in view of the factors set forth in HRS §
580-47 and partnership principles." Gordon, 135 Hawai#i at 348,
350 P.3d at 1016 (citations omitted).
When deciding the issue of spousal support:
The first relevant circumstance is the payee's need. What
amount of money does he or she need to maintain the standard
of living established during the marriage? The second
relevant circumstance is the payee's ability to meet his or
her need without spousal support. Taking into account the
payee's income, or what it should be, including the net
income producing capability of his or her property, what is
his or her reasonable ability to meet his or her need
without spousal support? The third relevant circumstance is
the payor's need. What amount of money does he or she need
to maintain the standard of living established during the
marriage? The fourth relevant circumstance is the payor's
ability to pay spousal support. Taking into account the
payor's income, or what it should be, including the income
producing capability of his or her property, what is his or
her reasonable ability to meet his or her need and to pay
spousal support?
Wong, 87 Hawai#i at 485, 960 P.2d at 155 (citations and brackets
omitted).
HRS § 580-47(a) (2018) requires the family court to
consider the following criteria in deciding spousal support:
"the respective merits of the parties, the relative abilities of
the parties, the condition in which each party will be left by
the divorce, the burdens imposed upon either party for the
benefit of the children of the parties, . . . and all other
circumstances of the case." HRS § 580-47(a) further requires the
court to consider a list of thirteen additional factors. Id.
22
COL 22 states: "Neither party shall be required to provide
support or maintenance for the other party." COL 32 states: "In lieu of
alimony, [Mother] shall not be required to pay the equalization payment set
out in the PDC."
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While the record reflects some findings pertinent to the
statutory considerations such as the parties' financial resources
(see FOFs 76, 79, and 83 relating to each party's income),
ability of Mother to meet her needs independently (see FOF 89
regarding Mother's work history and desire for further education,
and FOFs 95 and 96 regarding changes in Mother's earning
capacity), the findings and conclusions do not reflect an
assessment of the statutory factors and a determination of the
factual inquiries set forth in Wong, which the Family Court
itself quoted in COLs 6 and 7. See I.S. v. P.S., Nos. 30179,
CAAP-XX-XXXXXXX, 2013 WL 4458889, at *8 (App. Aug. 21, 2013)
(mem.) (holding that the family court "abused its discretion in
awarding Wife $2,000 a month in alimony without some indication
that it had considered the factors pursuant to HRS § 580-47(a) or
made the relevant factual determinations."). In light of this
record, the Family Court's conclusions in COLs 22 and 32, where
the Court found neither party should provide support or
maintenance for the other party and the Court waived Mother's
equalization payment in lieu of alimony, are erroneous and thus
vacated because the record does not indicate that the Family
Court considered the HRS § 580-47(a) factors or made the relevant
factual determinations set out in Wong. See id.; Fisher, 111
Hawai#i at 46, 137 P.3d at 360. On remand, the Family Court must
conduct the statutory analysis under HRS § 580-47(a) and the Wong
inquiries to determine whether or not Mother should receive
spousal support, and if so, determine the appropriate amount.
D. Exhibits, POEs 9-10
Mother contends in POE 9 that the Family Court erred by
refusing to allow Mother to introduce stipulated exhibits due to
the Court's "personal policy." In POE 10, Mother challenges FOF
108, which states: "Each side chose to withdraw several exhibits
at the end of trial." Mother argues that the Family Court abused
its discretion in "deeming as withdrawn" the majority of Mother's
trial exhibits which were not objected to by Father, pursuant to
the Family Court's "personal policy." The Family Court stated in
unchallenged FOF 38, however, that the Court "does not have a
policy, nor is there a rule that the Court will automatically
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accept stipulations made by the parties." Mother did not object
or request that any particular exhibit be admitted, and her
contentions are waived.23 See Kawamata Farms, 86 Hawai#i at 248,
948 P.2d at 1089.
E. CAAP-XX-XXXXXXX, Motion to Alter
1. Jurisdiction in CAAP-XX-XXXXXXX
Father contends that the appeal in CAAP-XX-XXXXXXX of
the June 29, 2020 Order Re: Post-Judgment Motions should be
dismissed for lack of jurisdiction, due to Mother's untimely
filing of her Notice of Appeal on July 29, 2020. Father argues
that because there was no disposition of Mother's December 5,
23
The October 29, 2019 transcript provides:
THE COURT: You want me to read what was received?
Because you guys are done presenting at this point.
[FATHER'S COUNSEL]: Yeah. That's fine. I can run
through it. I just want to make sure that I have mine all
–-
THE COURT: And with that being said, the remainder of the
exhibits that have not been received, are they being withdrawn?
[FATHER'S COUNSEL]: Your Honor, could we offer MM and NN as
evidence as [Father] testified to those?
THE COURT: MM and NN are received.
([Father's] Exhibits MM & NN were received in evidence.)
[FATHER'S COUNSEL]: Thank you, Judge. Other than that,
withdrawn.
[MOTHER'S COUNSEL]: Your Honor, I would –- I would
respectfully inquire when the Court's policy changed on counsel
being able to stipulate. I mean, especially when we have a short
time for trial and we get jammed –-
THE COURT: It's my personal policy.
[MOTHER'S COUNSEL]: I understand. Thank you.
THE COURT: Okay. All right. So any exhibits that were not
received will be withdrawn. If I could have an expedited order,
you can just leave it at the bailiff's desk just stating the
deadline of the written closing please.
[FATHER'S COUNSEL]: I'm happy to do that, Your Honor.
THE COURT: All right. Thank you.
(End of proceedings.)
(Emphases added).
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2019 Motion to Alter within 90 days of its filing under Hawai#i
Rules of Appellate Procedure (HRAP) Rule 4(a)(3),24 Mother was
required to file her Notice of Appeal "within 30 days of the
expiration of the 90-day period" in HRAP Rule 4(a)(3). Father
asserts that Mother's December 5, 2019 Motion to Alter was
accordingly "deemed denied" after 90 days, and Mother's July 29,
2020 Notice of Appeal in CAAP-XX-XXXXXXX was "extremely
untimely." We conclude that Mother's appeal is timely and that
we have appellate jurisdiction to review the June 29, 2020 Order
Re: Post-Judgment Motions.
a. Mother's Motion to Alter filed on
December 5, 2019 was a timely filed
motion under HFCR Rule 59(e).
HRAP Rule 4(a)(3) applies to "timely" filed post-
judgment motions. The Motion to Alter was filed on December 5,
2019, within ten days of the November 25, 2019 Trial Order,
24
HRAP Rule 4(a)(3), entitled "Time to appeal affected by post-
judgment motions," provides in pertinent part:
If any party files a timely motion . . . to reconsider,
alter or amend the judgment or order, . . . and court or
agency rules specify the time by which the motion shall be
filed, then the time for filing the notice of appeal is
extended for all parties until 30 days after entry of an
order disposing of the motion. The presiding court or
agency in which the motion was filed shall dispose of any
such post-judgment motion by entering an order upon the
record within 90 days after the date the motion was filed.
If the court or agency fails to enter an order on the
record, then, within 5 days after the 90th day, the clerk of
the relevant court or agency shall notify the parties that,
by operation of this Rule, the post-judgment motion is
denied and that any orders entered thereafter shall be a
nullity. The time of appeal shall run from the date of
entry of the court or agency's order disposing of the post-
judgment motion, if the order is entered within the 90 days,
or from the filing date of the clerk's notice to the parties
that the post-judgment motion is denied pursuant to the
operation of the Rule.
The notice of appeal shall be deemed to appeal the
disposition of all post-judgment motions that are timely
filed after entry of the judgment or order.
The 90-day period shall be computed as provided in
Rule 26 of these Rules.
(Emphasis added).
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
pursuant to the ten-day deadline in HFCR Rule 59(e),25 and thus
was timely filed. Both Mother and Father agree that the Motion
to Alter was filed on December 5, 2019, and not January 9, 2020
as indicated in FOF 5 in the September 21, 2020 FOFs/COLs.26 In
DL v. CL, 146 Hawai#i 415, 421, 463 P.3d 1072, 1078 (2020), the
Hawai#i Supreme Court held that "the family court clerk's
acceptance and date stamping of a HFCR Rule 59 motion as
'received' was 'a filing that satisfied the jurisdictional
requirements of HFCR Rule 59(a) and (e).'" Here, the Motion to
Alter had a "received" stamp of December 5, 2019 by the family
court clerk but was not file-stamped until January 9, 2020.
Under DL, the "received" stamp date of December 5, 2019
constituted filing of the motion on that date, and not January 9,
2020. Id. We agree with Mother's contention in POE 16 that the
Family Court clearly erred when it found the motion was filed on
the latter date in FOF 5. See Gordon, 135 Hawai#i at 348, 350
P.3d at 1016.
b. This court has jurisdiction to
review the Order Re: Post-Judgment
Motions.
HRAP Rule 4(a)(3) required the Family Court to dispose
of Mother's December 5, 2019 Motion to Alter "within 90 days
after the date the motion was filed." The Order Re: Post-
Judgment Motions that took no action on the Motion to Alter was
not issued until June 29, 2020, which is beyond the 90-day period
specified by HRAP Rule 4(a)(3). HRAP Rule 4(a)(3) requires that,
if the court fails to enter an order disposing of the motion
within 90 days, then "within 5 days after the 90th day," the
25
HFCR Rule 59(e), entitled "Motion to reconsider, alter or amend a
judgment or order," provides in relevant part: "[A] motion to reconsider,
alter or amend a judgment or order is not required but may be filed no later
than 10 days after entry of the judgment or order and shall be a non-hearing
motion, except that the court in its discretion may set any matter for
hearing." (Emphases added).
26
FOF 5 states: "5. [Mother], via counsel, filed her Motion to
Alter or Amend Decision and Order After Trial Filed November 25, 2019 and Stay
Execution of Order and Hearing Pursuant to Rules 59(e) and 62(b), Hawaii
Family Court Rules, on January 9, 2020." (Emphases added).
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court clerk "shall notify the parties that, by operation of this
Rule, the post-judgment motion is denied and that any orders
entered thereafter shall be a nullity."
Here, the Family Court did not dispose of Mother's
Motion to Alter within 90 days of the filing of the motion, and
the clerk of the court also failed to issue a notice by the 95th
day, informing the parties that the motion was denied pursuant to
HRAP Rule 4(a)(3) and that any order entered thereafter was a
nullity. The rule "does not contemplate this dual failure of
both the court and the court's clerk to execute the requirements
of the rule." Sanchez v. Sanchez, NO. CAAP-XX-XXXXXXX, 2021 WL
4777103, at *8 (App. Oct. 13, 2021) (SDO). Under the
circumstances of this case, we conclude that the Order Re: Post-
Judgment Motions was not a nullity for purposes of determining
whether the appeal was timely because the required clerk's notice
under the rule was never provided. If we interpreted the rule as
Father urges us to, that after 90 days there was a "deemed
denial" of Mother's Motion to Alter for purposes of whether an
appeal was timely, it "renders superfluous the requirement that
the clerk provide notice to the parties of the deemed denial."
Id. For purposes of the deadline to appeal, the Motion to Alter
was not "deemed" denied under HRAP Rule 4(a)(3) where no clerk's
notice was issued. Rather, we conclude that the Order Re: Post-
Judgment Motions constituted the disposition of Mother's post-
judgment Motion to Alter. See HRAP Rule 4(a)(3) ("The notice of
appeal shall be deemed to appeal the disposition of all post-
judgment motions that are timely filed after entry of the
judgment or order."). Thus, Mother's appeal is timely because
her earlier, timely-filed Notice of Appeal from the Divorce
Decree in CAAP-XX-XXXXXXX is deemed to appeal the disposition of
her timely filed Motion to Alter. See id.; Sanchez, 2021 WL
4777103, at *8.
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2. Motion to Alter, POEs 14 and 15
Mother's contentions in POEs 14 and 15, that the Family
Court erred in COLs 5-7 in ruling that it could not consider the
Motion to Alter because a Notice of Appeal had been filed, have
merit. COLs 5-7 in the September 21, 2020 FOFs/COLs, state:
5. It is well settled that "once a party files a
notice of appeal, the lower court is generally divested of
jurisdiction to proceed further on the matter." Kakinami v.
Kakinami, 127 Hawai#i 126, 143, 276 P.3d 695, 712 (2012)
(citing Lowther v. Lowther, 99 Hawai#i 569, 578, 57 P.3d
494, 503 (App. 2002)). While a case is up on appeal, the
Court may enforce a prior order, but may not modify the
prior order. Id.
6. The Family Court was divested of jurisdiction to
hear [Mother's] Motion to Alter or Amend Decision and Order
After Trial Filed November 25, 2019 and Stay Execution of
Order and Hearing Pursuant to Rules 59(e) and 62(b), Hawaii
Family Court Rules, filed on January 9, 2020.
7. It was proper for the Family Court to take no
further action on [Mother's] January 9, 2020 Motion.
Mother argues that, although courts are generally divested of
jurisdiction upon the filing of a notice of appeal, pursuant to
HRAP Rule 4(a)(3), the Family Court "retained jurisdiction to
alter or amend the decree for another 90 days . . . ."
The Hawai#i Supreme Court has explained that:
The general rule is that courts are divested of jurisdiction
upon the filing of a notice of appeal. Kakinami, 127
Hawai#i at 143, 276 P.3d at 712. However, in Buscher v.
Boning, 114 Hawai#i 202, 221, 159 P.3d 814, 833 (2007), this
court held that the 1999 version of HRAP Rule 4(a)(3)
"supersedes the line of cases standing for the proposition
that the circuit court lacks jurisdiction to award costs
after a notice of appeal is filed" and "provides that the
court has 90 days to dispose of a post-judgment motion to
reconsider, vacate, or alter the judgment, or seeks
attorney's fees or costs, regardless of when the notice of
appeal was filed." Although HRAP Rule 4(a)(3) has since
been amended, the language providing that a court has 90
days to dispose of a timely post-judgment motion has not
changed substantively.
DL, 146 Hawai#i at 421-22, 463 P.3d at 1078-79 (brackets,
internal quotation marks, and footnotes omitted). Here, as noted
supra, the Motion to Alter filed December 5, 2019 was a timely
filed post-judgment motion. The Family Court retained
jurisdiction to consider it, even though a Notice of Appeal had
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been filed on December 23, 2019. The Family Court erred in
concluding in COLs 5-7 that it lacked jurisdiction over the
motion because an appeal had been filed. See id.; HRAP Rule
4(a)(3).
Accordingly, we vacate the Order Re: Post-Judgment
Motions to the extent the Family Court took no further action on
the Motion to Alter, and remand for the Family Court to consider
the motion on its merits. In view of this resolution, it is
unnecessary to address Mother's remaining contentions in POEs 13
and 17 regarding the merits of the Motion to Alter.
IV. CONCLUSION
For the foregoing reasons, as to CAAP-XX-XXXXXXX, we
vacate in part (1) the Family Court of the First Circuit's
November 25, 2019 Decision and Order Re: Trial, Child Support
Guidelines Worksheet, and Property Division Chart; and (2) the
December 16, 2019 Decree Granting Absolute Divorce and Awarding
Child Custody, and remand for further proceedings consistent with
this Opinion, as follows:
(1) The award of joint custody is affirmed, but the
orders regarding the dispute resolution process and
costs are vacated;
(2) The award of joint custody is remanded to
determine whether a grant of tie-breaking authority
is appropriate as part of the joint custody award; and
(3) The issue of spousal support is remanded to
determine whether spousal support should be awarded,
and if so, a determination of the amount.
We otherwise affirm in part as to the remainder.
As to CAAP-XX-XXXXXXX, we vacate in part the June 29,
2020 Order Re: Plaintiff's Motion to Amend or Alter Decision and
Order and Granting Defendant's Motion to Enforce Decree to the
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extent it did not address the Plaintiff's Motion, and remand for
consideration of that motion on the merits, consistent with this
Opinion.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Sharla A. Manley
for Plaintiff-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Rosa Flores
(Law Office of Rosa Flores) /s/ Karen T. Nakasone
for Defendant-Appellee Associate Judge
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