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Electronically Filed
Supreme Court
SCWC-12-0000762
16-AUG-2016
08:01 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
BRUCE EDWARD COX,
Petitioner/Plaintiff-Appellant,
vs.
CARLYN DAVIDSON COX,
Respondent/Defendant-Appellee
SCWC-12-0000762
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000762; FC-DIVORCE NO. 06-1-0096)
AUGUST 16, 2016
McKENNA, POLLACK, AND WILSON, JJ.,
AND RECKTENWALD, C.J., DISSENTING,
WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY POLLACK, J.
The 2006 and 2015 versions of Hawaiʻi Family Court
Rules (HFCR) Rule 68 mandate an award of costs, including
reasonable attorney’s fees, to a party who offers to settle
certain classes of family court cases in the amount or upon the
terms specified in the offer, if the offer is refused by the
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offeree and “the judgment in its entirety finally obtained by
the offeree is patently not more favorable than the offer,
unless the court shall specifically determine that such would be
inequitable.”
The issue that we resolve in this case is whether
Bruce Edward Cox (Husband) is entitled to appellate attorney’s
fees pursuant to HFCR Rule 68. We hold that both the 2006 and
2015 versions of HFCR Rule 68 1 do not apply to family court cases
governed by Hawaiʻi Revised Statutes (HRS) § 580-47 (Supp. 2011)
for the following reasons: (1) the rule contravenes HRS § 580-
47; (2) it is analytically problematic with respect to cases
subject to HRS § 580-47; (3) its application may be unsuited to
principles of equity and justice inherent in matters commonly
resolved in family court proceedings governed by HRS § 580-47;
and (4) it may improperly coerce settlements. Hence, HRS § 580-
47 exclusively governs the determination of whether to award
attorney’s fees in all cases to which HRS § 580-47 applies.
Husband is therefore not entitled to appellate attorney’s fees
under HFCR Rule 68.
1
The 2006 and 2015 versions of HFCR Rule 68 are hereinafter
collectively referred to as “HFCR Rule 68.” When a specific version of HFCR
Rule 68 is referred to, the year in which the version became effective is
expressly stated.
2
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I. BACKGROUND
This case stems from the divorce action by Bruce
Edward Cox (Husband) against Carlyn Davidson Cox (Wife). While
the divorce action was pending in the Family Court of the First
Circuit (family court), Husband, through counsel, tendered a
settlement offer to Wife, agreeing to pay Wife a property
equalization in the amount of $9,000. 2 Wife did not agree to the
offer, the case was tried, and the family court ultimately
issued a divorce decree that divided the parties’ property,
retirement funds, insurance policies, securities, bank accounts,
debts, and unpaid taxes. The divorce decree provided a final
property equalization payment against Wife in the amount of
$22,223.46. Thereafter, following an unsuccessful appeal by
wife, 3 Husband moved in the family court for an award of post-
2
In full, the settlement offer was as follows:
The property division shall be as outlined in this letter
and prior position statements (i.e., everybody keeps the
assets and debts they have now, Mr. Cox to refinance the
Hawaiʻi property to remove Mrs. Cox from the mortgage, and
he will own the boat and motor still in storage in
Tennessee) and he will make a property equalization payment
of $9,000. He will also agree to Mrs. Cox’s participating
in the SBP program with her paying the premiums, if she so
elects to participate.
3
Wife appealed from the divorce decree, and in Cox v. Cox, 125
Hawaiʻi 19, 250 P.3d 775 (2011), this court upheld the Intermediate Court of
Appeals’ affirmance of the divorce decree but held that the family court had
no jurisdiction to rule on an HFCR Rule 68 (2006) motion that had been filed
after Wife’s notice of appeal was filed from the divorce decree. The
disposition of the appeal allowed Husband to refile his HFCR Rule 68 (2006)
motion in the family court.
3
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offer attorney’s fees and costs, totaling $38,163.39, pursuant
to HFCR Rule 68 (2006). Husband predicated his request on the
fact that the family court’s decree that Wife pay Husband an
equalization payment of $22,223.46 was patently not more
favorable than Husband’s offer to pay Wife an equalization
payment of $9,000. Husband did not address whether his request
for post-offer fees and costs comported with equity and
fairness.
The family court granted the motion as to Husband’s
post-offer trial fees and costs totaling $18,051.12 and denied
the motion as to Husband’s appellate fees and costs (August 6,
2012 family court order). 4 The family court concluded that
because Husband’s offer included an equalization payment to Wife
but the divorce decree instead ordered Wife to pay Husband an
equalization payment, “Husband clearly prevailed at trial” and
“is entitled to an award of fees.” The family court declined to
award Husband his appellate costs because “[n]o Rule 68 offer
was presented to Family Court regarding the appeal.” The family
4
Specifically, the family court decided as follows:
1) Husband shall be awarded the sum of $18,051.12 for an
award of attorney’s fees and costs for trial, pursuant to
HFCR Rule 68. Husband shall be awarded a judgment against
Wife in the amount of $18,051.12 for the trial fees and
costs he incurred at trial.
2) Husband’s request for appellate costs shall be denied.
4
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court also opined that “even if Husband contends the appellate
costs are automatically included in the Rule 69 [sic] offer,”
the court would decline to award such costs and advised Husband
“to consider applying to the appellate court for the award of
his appellate fees and costs.” Nothing in the August 6, 2012
family court order indicated that the award of post-offer trial
fees and costs was consistent with equity or was made after due
consideration of equitable factors and the totality of the
circumstances pursuant to HRS § 580-47.
Husband then appealed from the August 6, 2012 family
court order, contending that the family court erred in denying
his motion as to the appellate fees and costs related to Wife’s
appeal. The Intermediate Court of Appeals (ICA) vacated the
August 6, 2012 family court order, concluding that appellate
fees are recoverable under HFCR Rule 68 (2006) and remanding the
case to the family court for a determination of whether an award
of appellate fees to Husband would be inequitable pursuant to
the provisions of HRS § 580-47. 5 Husband challenges on
5
Pursuant to Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 39(d)
(2007), Husband filed a motion for appellate fees and costs incurred for his
appeal to the ICA. In an order entered March 12, 2015, the ICA denied
Husband’s motion as follows: as to costs, the ICA concluded that Husband’s
counsel failed to provide supporting documentation, and as to fees, the ICA
reasoned that the denial was “without prejudice to an award by the Family
Court.” After Husband filed the requisite documentation for claimed costs,
the ICA, in an order entered April 9, 2015, awarded appellate costs to
Husband; hence, the determination of those costs was not remanded for the
family court’s consideration.
5
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certiorari the ICA’s remand to the family court. He contends
that he is entitled to appellate fees as a matter of law, that
the equitable factors were already considered by the family
court in awarding post-offer attorney’s fees for the trial
proceedings, and that the family court’s denial of his request
for appellate costs and fees deprived him of his constitutional
rights to due process and equal protection.
II. DISCUSSION
The question presented on certiorari is whether
Husband is entitled to appellate fees as a matter of law
pursuant to HFCR Rule 68 (2006) because appellate fees, pursuant
to the terms of 2006 version of HFCR Rule 68, are “incurred
after the making of the offer.” 6 The ICA, relying upon Nelson v.
6
The version of HFCR Rule 68 (2006) that applies in this case
provides as follows:
At any time more than 20 days before any contested
hearing held pursuant to HRS sections 571-11 to 14
(excluding law violations, criminal matters, and child
protection matters) is scheduled to begin, any party may
serve upon the adverse party an offer to allow a judgment
to be entered to the effect specified in the offer. Such
offer may be made as to all or some of the issues, such as
custody and visitation. . . . An offer not accepted shall
be deemed withdrawn and evidence thereof is not admissible,
except in a proceeding to determine costs and attorney’s
fees. If the judgment in its entirety finally obtained by
the offeree is patently not more favorable than the offer,
the offeree must pay the costs, including reasonable
attorney’s fees incurred after the making of the offer,
unless the court shall specifically determine that such
would be inequitable in accordance with the provisions of
HRS section 580-47 or other applicable statutes, as
amended.
(continued . . .)
6
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University of Hawaiʻi, 99 Hawaiʻi 262, 265, 54 P.3d 433, 436
(2002), and Nakasone v. Nakasone, 102 Hawaiʻi 177, 178, 73 P.3d
715, 716 (2003), held that “appellate fees and costs . . . are
necessarily incurred after the making of the Rule 68 offer and
thus are included within the time frame set forth in the rule.”
Cox v. Cox, 134 Hawaiʻi 475, 344 P.3d 359 (App. 2015), cert.
granted, No. SCWC-12-0000762, 2015 WL 3539785 (Haw. June 3,
2015) (emphasis omitted). 7 We therefore consider the application
(. . . continued)
HFCR Rule 68 (emphasis added). The current iteration of Rule 68 (2015),
effective January 1, 2015, omits the reference to “provisions of HRS section
580-47 or other applicable statutes, as amended.”
7
Because of our disposition of this case, it is unnecessary to
reach the issue of whether HFCR Rule 68 authorizes the award of reasonable
appellate fees and costs. However, in response to the dissent’s resolution
of this issue, we note that the plain language of HFCR Rule 68 expressly
obligates a party-offeree that rejected a settlement offer to “pay the costs,
including reasonable attorney’s fees incurred after the making of the offer.”
Hence, the only costs and attorney’s fees excluded by HFCR Rule 68, based on
its plain language, are those incurred prior to the making of the offer.
According to the dissent, however, reading in pari materia HFCR
Rule 54 and Rule 68 yields the conclusion that HFCR Rule 68 applies only to
trial fees and costs incurred by a party-offeror after the making of the
offer. But the plain language of HFCR Rule 68 does not state that the costs
are limited to those incurred before the family court renders a judgment
within the meaning of that term under HFCR Rule 54(a). See Cox v. Cox, 134
Hawaiʻi 475, 344 P.3d 359 (App. 2015), cert. granted, No. SCWC-12-0000762,
2015 WL 3539785 (Haw. June 3, 2015); Carlisle v. One (1) Boat, 119 Hawaiʻi
245, 256, 195 P.3d 1177, 1188 (2008) (“[W]here the statutory language is
plain and unambiguous, our sole duty is to give effect to its plain and
obvious meaning.” (quoting In re Contested Case Hearing on Water Use Permit
Application, 116 Hawaiʻi 481, 489–90, 174 P.3d 320, 328–29 (2007))).
The dissent uses the definition of “judgment” under HFCR Rule
54(a) to confine the expansive plain language of HFCR Rule 68 to costs and
fees incurred before a judgment is rendered. However, the definition of a
“judgment” under HFCR Rule 54(a) states only that it “includes a decree and
any order from which an appeal lies.” Reading the definition of a “judgment”
under HFCR Rule 54(a) in pari materia with Rule 68 results only in the
construction that the term “judgment” under Rule 68 “includes a decree and
(continued . . .)
7
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of HFCR Rule 68 in family court proceedings in light of the
existence of statutory law dealing with the same subject matter
and the effect of this rule on the method by which issues
subject to this rule are determined.
A. HFCR Rule 68 Does Not Apply to Cases Governed by HRS § 580-47
1. HFCR Rule 68 Contravenes HRS § 580-47
Nothing in HRS § 580-47 mandates the family court to
award attorney’s fees to a party in a divorce action. 8 Indeed,
(. . . continued)
any order from which an appeal lies.” Hence, such decrees and orders “in
their entirety” qualify as a “judgment” that must be evaluated by the family
court as to whether they are “patently not more favorable than the offer.”
HFCR Rule 68. HFCR Rule 54 does not delimit fees and costs awardable under
Rule 68 to those incurred prior to the family court’s judgment.
8
HRS § 580-47 provides, in pertinent part,
(a) Upon granting a divorce, . . . if . . .
jurisdiction . . . is reserved under the decree by
agreement of both parties or by order of court after
finding that good cause exists, the court may make
any further orders as shall appear just and equitable
. . . allocating, as between the parties, the
responsibility for the payment of the debts of the
parties whether community, joint, or separate, and
the attorney’s fees, costs, and expenses incurred by
each party by reason of the divorce. In making these
further orders, the court shall take into
consideration: the respective merits of the parties,
the relative abilities of the parties, the condition
in which each party will be left by the divorce, the
burdens imposed upon either party for the benefit of
the children of the parties, the concealment of or
failure to disclose income or an asset, or violation
of a restraining order issued under section 580-10(a)
or (b), if any, by either party, and all other
circumstances of the case. . . .
(b) An order as to the custody, management, and
division of property and as to the payment of debts
and the attorney’s fees, costs and expenses incurred
in the divorce shall be final and conclusive as to
both parties subject only to appeal as in civil
(continued . . .)
8
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an award of attorney’s fees is discretionary, with the
significant caveat that such an award “shall appear just and
equitable.” HRS § 580-47(a); see Owens v. Owens, 104 Hawaiʻi
292, 307, 88 P.3d 664, 679 (App. 2004) (“The award of attorney’s
fees under HRS § 580-47 is discretionary.”). Additionally, HRS
§ 580-47 instructs the family court, in awarding attorney’s
fees, to consider the following:
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
(. . . continued)
cases. The court shall at all times, including
during the pendency of any appeal, have the power to
grant any and all orders . . . to compel either party
to advance reasonable amounts for the expenses of the
appeal including attorney’s fees to be incurred by
the other party, and to amend and revise such orders
from time to time.
. . . .
(f) Attorney’s fees and costs. The court
hearing any motion for orders either revising an
order for the custody, support, maintenance, and
education of the children of the parties, or an order
for the support and maintenance of one party by the
other, or a motion for an order to enforce any such
order or any order made under subsection (a) of this
section, may make such orders requiring either party
to pay or contribute to the payment of the attorney’s
fees, costs, and expenses of the other party relating
to such motion and hearing as shall appear just and
equitable after consideration of the respective
merits of the parties, the relative abilities of the
parties, the economic condition of each party at the
time of the hearing, the burdens imposed upon either
party for the benefit of the children of the parties,
the concealment of or failure to disclose income or
an asset, or violation of a restraining order issued
under section 580-10(a) or (b), if any, by either
party, and all other circumstances of the case.
HRS § 580-47 (2014) (emphases added).
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either party for the benefit of the children of the
parties, the concealment of or failure to disclose income
or an asset, or violation of a restraining order issued
under section 580-10(a) or (b), if any, by either party,
and all other circumstances of the case.
HRS § 580-47(a).
In contrast, HFCR Rule 68 mandates the award of
attorney’s fees to a party who tenders a settlement offer that
the other party refuses to accept “[i]f the judgment in its
entirety finally obtained by the offeree is patently not more
favorable than the offer . . . unless the court shall
specifically determine that such would be inequitable.” HFCR
Rule 68. Absent such a specific finding, the offeree must pay
the “reasonable attorney’s fees incurred after the making of the
offer.” HFCR Rule 68.
Hence, the framework of the rule appears to be in
conflict with the statute because, while the statute vests the
family court with discretion to determine, as shall appear just
and equitable, whether attorney’s fees should be awarded to a
party, see HRS § 580-47(a) (stating that “the court may make . .
. orders as shall appear just and equitable . . . allocating . .
. the attorney’s fees” (emphasis added)), the rule reformulates
the family court’s statutory-based discretion and instead
requires the family court to award attorney’s fees to a party-
offeror so long as the judgment in its entirety is patently not
more favorable than the offer, see HFCR Rule 68 (specifying that
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“the offeree must pay the costs, including reasonable attorney’s
fees” (emphasis added)), which can be avoided only after a
court’s specific finding that payment of costs would be
inequitable.
Thus, while HRS § 580-47(a) requires the family court
to consider a host of factors and the totality of the
circumstances to determine whether it is just and equitable to
award a party attorney’s fees, consideration of presumably the
same or similar equitable factors under HFCR Rule 68 are
relegated to a mere afterthought, see HFCR Rule 68 (mandating an
award of attorney’s fees “unless the court shall specifically
determine that such would be inequitable in accordance with the
provisions of HRS section 580-47 or other applicable statutes”).
The 2015 version of HFCR Rule 68 is even more problematic than
the 2006 version because it omits the phrase “in accordance with
the provisions of HRS section 580-47 or other applicable
statutes, as amended.” By deleting the reference to HRS § 580-
47, HFCR Rule 68 now appears to have been decoupled from the
statute. Thus, the current form of HFCR Rule 68 does not
provide any guidance or standard for its mandate that reasonable
post-offer attorney’s fees should not be awarded if “such would
be inequitable,” making it susceptible of subjective and
differing applications.
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As stated, HRS § 580-47 directs the family court to
determine the equity and justice of awarding attorney’s fees
based on a multifactor analysis in the course of deciding
whether to award such fees. HFCR Rule 68, on the other hand,
treats the award of attorney’s fees to a party-offeror as
presumptively mandatory--a presumption absent from the statute--
and to be overridden only if the family court specifically finds
such an award to be inequitable. Viewed another way, while HRS
§ 580-47 places the burden on the offeror to demonstrate that an
award of attorney’s fees is just and equitable, HFCR Rule 68
inherently places the burden on the offeree to show the
opposite. Hence, as a practical matter, under HFCR Rule 68, the
offeror need only show to the family court the terms of the
offer and illustrate how the judgment obtained is patently not
more favorable than the terms of the offer. Once the offeror
makes this showing, the presumption that the offeror is entitled
to attorney’s fees attaches, and it becomes incumbent upon the
offeree to demonstrate that an award of post-offer attorney’s
fees to the offeror would be inequitable under HRS § 580-47 or
another statute. The rule creates, in essence, a presumption of
fairness and equity upon a finding that the judgment is patently
not more favorable than the offer, whereas the statute requires
an affirmative showing of fairness and equity. In design and
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effect, the test under the rule is different from the test under
the statute.
The inconsistency of HFCR Rule 68’s mandate to that of
HRS § 580-47 is clearly demonstrated in this case. After
Husband moved for post-offer attorney’s fees and costs, the
family court determined that he is “entitled to an award of fees
pursuant to [HFCR] Rule 68” because Wife was ordered “to pay
Husband the sum of $22,222.36 as an equalization payment” while
“Husband’s Rule 68 offer to Wife was for Husband to pay Wife the
sum of $9,000.00 as an equalization payment.” Thus, the family
court applied the presumptive mandate of HFCR Rule 68 to award
Husband his post-offer trial fees and costs because, in the
family court’s view, Wife obtained a judgment not patently more
favorable than Husband’s offer. Nothing in the family court’s
determination indicates that the award of attorney’s fees was
consistent with principles of fairness and equity and that the
award was made in consideration of the totality of the
circumstances. This is to be expected, since the language of
HFCR Rule 68--“unless the court shall specifically determine
that such would be inequitable”--signifies that consideration of
equitable factors under “HRS § 580-47 or other applicable
statutes” is subsidiary to the threshold determination of
whether post-offer fees and costs should be awarded based on the
“patently not more favorable” test; an assessment of the
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statutory criteria is merely a secondary inquiry meant to
potentially override the rule’s presumptive mandate to award a
party-offeror’s post-offer fees and costs when the “patently not
more favorable” test has been met.
On the other hand, had Husband requested attorney’s
fees pursuant to HRS § 580-47, the cardinal consideration of the
family court would have been whether such an award appears just
and equitable, not whether the judgment as a whole is patently
not more favorable than the settlement offer. In such an
instance, the family court’s order in this case would not have
sufficed because it is silent as to how the attorney fee award
to Husband is just and equitable in light of the HRS § 580-47
factors and the totality of the circumstances.
2. HFCR Rule 68 Abridges Substantive Rights
The Hawaiʻi Constitution accords this court the “power
to promulgate rules and regulations in all civil and criminal
cases for all courts relating to process, practice, procedure
and appeals, which shall have the force and effect of law.”
Haw. Const. art. VI, § 7. “However, pursuant to HRS § 602–11
(1985), ‘[s]uch rules shall not abridge, enlarge, or modify the
substantive rights of any litigant, nor the jurisdiction of any
of the courts, nor affect any statute of limitations.’” In re
Doe, 77 Hawaiʻi 109, 113, 883 P.2d 30, 34 (1994) (alteration in
original) (emphasis added). Where a court-made rule affecting
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litigants’ substantive rights contravenes the dictates of a
parallel statute, the rule must give way. See In re Doe
Children, 94 Hawaiʻi 485, 487, 17 P.3d 217, 219 (2001) (holding
that HRAP Rule 4(a)(3) cannot be construed “in such a way as to
modify the requisite deadline for filing an HRS § 571–54 motion
for reconsideration and the subsequent notice of appeal,” and
thus, “HRAP Rule 4(a)(3) is inapplicable to family court cases
governed by HRS § 571–54”).
Here, HFCR Rule 68 abridges the substantive rights
of parties in family court proceedings because, as discussed, it
modifies the standard by which the family court should decide
whether to award post-offer attorney’s fees to the party-
offeror. Cf. Shady Grove Orthopedic Assocs., P.A. v. Allstate
Ins. Co., 559 U.S. 393, 407 (2010) (“What matters is what the
rule itself regulates: If it governs only ‘the manner and the
means’ by which the litigants’ rights are ‘enforced,’ it is
valid; if it alters ‘the rules of decision by which [the] court
will adjudicate [those] rights,’ it is not.” (quoting Miss.
Publ’g Corp. v. Murphree, 326 U.S. 438, 446 (1946))). That HFCR
Rule 68 modifies the governing standard for awarding post-offer
attorney’s fees is even more apparent in the 2015 version of the
rule, which explicitly decoupled the analytical framework from
that prescribed by HRS § 580-47. By conferring on a party to a
family court proceeding a presumptive entitlement to post-offer
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attorney’s fees, HFCR Rule 68 creates a decisional framework
that is inconsistent with the legislature’s manifest directive
in HRS § 580-47 that attorney’s fees may be discretionarily
awarded to a party only if such an award “shall appear just and
equitable” after considering the factors outlined in the statute
and the totality of the circumstances. See Bank of Haw. v.
Shinn, 120 Hawaiʻi 1, 8, 200 P.3d 370, 377 (2008) (“Allowing a
party, through reliance on HRCP Rule 5(a), to avoid giving
notice to a party in default prior to extension of a judgment
would eviscerate the legislature’s unmistakable mandate in HRS §
657–5 that ‘[n]o extension shall be granted without notice.’”);
In re Doe, 77 Hawaiʻi at 113, 883 P.2d at 34 (resolving the
conflict between HFCR 59(g)(1) and HRS § 571–54 in favor of the
statute and holding HFCR Rule 59(g)(1) void as “Rule 59(g)(1)
mandates an earlier motion deadline than does the statute and
consequently infringes on an aggrieved party’s right to appeal
by curtailing the time in which to file a timely notice of
appeal”). 9
9
As a related matter, a bedrock principle of constitutional law is
the recognition that the right to care, custody, and control of one’s
children is a fundamental liberty interest. In re RGB, 123 Hawaiʻi 1, 229
P.3d 1066 (2010) (stating “that article 1, section 5 of the Hawaiʻi
Constitution provides parents a ‘substantive liberty interest in the care,
custody, and control of their children,’ independent of the United States
Constitution” (quoting In re Doe, 99 Hawaiʻi 522, 533, 57 P.3d 447, 458
(2002))). Although this fundamental right is not involved here because the
parties did not have minor children at the time this divorce action was
commenced, there certainly are cases where application of HFCR Rule 68 could
(continued . . .)
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3.
Consequently, because HFCR Rule 68 affects substantive
rights of parties in a divorce proceeding and it is in
derogation of HRS § 580-47, we hold that HFCR Rule 68 is
inapplicable to cases governed by HRS § 580-47. 10
Correspondingly, in cases within the purview of HRS § 580-47,
requests for attorney’s fees and costs must be evaluated
pursuant to the factors and circumstances set forth in HRS §
580-47(a) and (f) in order to determine that an award of such
fees and costs is just and equitable. 11
(. . . continued)
potentially infringe upon fundamental parental rights by coercing parents to
settle on matters of custody and visitation because of the looming threat of
paying the other party’s attorney’s fees. See infra Part II.B.2. In that
regard, HFCR Rule 68 clearly affects substantive rights.
10
Because this case is one that is governed by HRS § 580-47, we
intimate no opinion as to the applicability of HFCR Rule 68 to family court
cases not governed by HRS § 580-47.
11
Although Husband generally argues that the family court violated
his constitutional due process and equal protection rights, he makes no
discernible argument with respect to each and, aside from making conclusory
allegations, does not attempt to show that the facts and circumstances of
this case satisfy the elements of due process and equal protection claims.
Because this “court is not obliged to address matters for which the appellant
has failed to present discernible arguments,” there is no need for this court
to reach the due process and equal protection issues. Haw. Ventures, LLC v.
Otaka, Inc., 114 Hawaiʻi 438, 478—79, 164 P.3d 696, 736—37 (2007); see Norton
v. Admin. Dir. of the Court, 80 Hawaiʻi 197, 200, 908 P.2d 545, 548 (1995)
(observing that this court may “disregard [a] particular contention” if
appellant “makes no discernible argument in support of that position”).
Further, because we hold that HFCR Rule 68 does not apply to
cases governed by HRS § 580-47, Husband’s argument that he was deprived of
due process and equal protection rights based on the family court’s alleged
violation of HFCR Rule 68 need not be addressed.
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B. The Operation of HFCR Rule 68 Generates Substantial
Complications
In addition to HFCR Rule 68’s inconsistency with HRS §
580-47, the rule is also often analytically unworkable, commonly
unsuited to issues typically implicated in family court
proceedings governed by HRS § 580-47, and may improperly coerce
parties to settle.
1. The Inherent Difficulties in Applying HFCR Rule 68
HFCR Rule 68 is similar to Hawaiʻi Rules of Civil
Procedure (Civil Procedure Rule or HRCP) Rule 68 (1999). 12 See
12
Civil Procedure Rule 68 provides as follows:
At any time more than 10 days before the trial
begins, any party may serve upon any adverse party an offer
of settlement or an offer to allow judgment to be taken
against either party for the money or property or to the
effect specified in the offer, with costs then accrued. If
within 10 days after the service of the offer the adverse
party serves written notice that the offer is accepted,
either party may then file the offer and notice of
acceptance together with proof of service thereof and
thereupon the clerk shall, in accordance with the
agreement, enter an order of dismissal or a judgment. An
offer not accepted shall be deemed withdrawn and evidence
thereof is not admissible except in a proceeding to
determine costs. If the judgment finally obtained by the
offeree is not more favorable than the offer, the offeree
must pay the costs incurred after the making of the offer.
The fact that an offer is made but not accepted does not
preclude a subsequent offer. When the liability of one
party to another has been determined by verdict or order or
judgment, but the amount or extent of the liability remains
to be determined by further proceedings, either party may
make an offer of judgment, which shall have the same effect
as an offer made before trial if it is served within a
reasonable time not less than 10 days prior to the
commencement of hearings to determine the amount or extent
of liability.
HRCP Rule 68 (1999) (emphasis added).
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Criss v. Kunisada, 89 Hawaiʻi 17, 968 P.2d 184 (App. 1998)
(noting that Civil Procedure Rule 68 and its family court
counterpart, HFCR Rule 68, “cover[] the same subject”).
However, a rule that requires a party-offeree who rejects a
settlement offer to pay the party-offeror’s attorney’s fees if
the judgment obtained is not patently more favorable than the
offer is frequently problematic in the realm of family court
proceedings. See In re Marriage of Saunders, 975 P.2d 927, 929—
30 (Or. Ct. App. 1999) (reasoning that the Oregon civil
procedure rule similar to HRCP Rule 68 does not apply to
dissolution cases and that those cases must be governed by a
statute similar to HRS § 580-47, which requires the family court
to exercise its discretion to award attorney’s fees after
conducting a multifactor analysis and considering the totality
of the circumstances); Mohr v. Mohr, 573 S.E.2d 729, 731 (N.C.
Ct. App. 2002) (holding that “offers of judgment are
inconsistent with [North Carolina’s] framework for determining
child custody”); Leeming v. Leeming, 490 P.2d 342, 344 (Nev.
1971) (concluding that Nevada’s version of HRCP Rule 68 is
“inapplicable to divorce proceedings” because they “involve
entirely different social considerations than other civil
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actions” and “to hold [Rule] 68 applicable to divorce matters
would be incompatible with the pattern and policy of our law”). 13
Determining whether “the judgment in its entirety
finally obtained by the offeree is patently not more favorable
than the offer,” as required by HFCR Rule 68 (emphases added),
is incompatible with the nature of issues commonly involved in
family court proceedings subject to HRS § 580-47 and
consequently results in considerable complications. The ICA has
held “that an offer of settlement pursuant to [HFCR Rule 68] may
be made concerning any item as to which ‘a decree or order’ may
be entered, and is not required to encompass all issues in a
divorce proceeding.” Criss, 89 Hawaiʻi at 18, 968 P.2d at 185.
The item, for example, may involve custody, visitation, property
division, or child or spousal support. In comparing an HFCR
Rule 68 offer to the family court’s final judgment, the ICA has
explained that the comparison should be done “issue by issue.”
Owens v. Owens, 104 Hawaiʻi 292, 309—10, 88 P.3d 664, 681—82
(App. 2004). In Criss, the ICA concluded that “Wife’s Rule 68
offer with respect to custody must be compared ‘as a whole’ to
13
The North Carolina Court of Appeals, in Mohr, identified Hawaiʻi
as an example of a jurisdiction that defies “a clear trend to hold offers of
judgment [pursuant to a civil procedure rule] inapplicable in the context of
domestic relations.” Mohr, 573 S.E.2d at 731 (enumerating Nevada, Colorado,
Florida, and Massachusetts as examples of jurisdictions that have
specifically exempted domestic relations cases from civil procedure rules
governing offers of judgment and citing Criss as a case that applied a family
court rule governing offers of judgment to custody actions).
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those terms of the divorce decree to which the offer was
directed, i.e., custody.” Criss, 89 Hawaiʻi at 25, 968 P.2d at
192. The ICA may have reasoned that HFCR Rule 68 required an
item-by-item comparison because in family court cases, where a
judgment often resolves issues relating to child custody and
visitation, child and spousal support, valuation of real and
personal property, stocks and securities, bank accounts and
retirement funds, and tax liability, the comparative analysis
that Rule 68 requires would be analytically unmanageable if
combinations of nonmonetary variables and monetary variables are
weighed against each other. See In re Marriage of Saunders, 975
P.2d at 930 (characterizing the evaluation of the different
aspects of a divorce judgment in order to determine whether the
judgment is more favorable than a party’s offer as
“intrinsically impossible”). Although the issue-by-issue
approach appears practical from a logical standpoint, we note
that the ICA’s interpretation appears to contravene the plain
language of HFCR Rule 68, which requires a comparison between a
“judgment in its entirety” and the offer. 14 HFCR Rule 68.
Further, severing different aspects of a judgment, as the ICA
has suggested, in order to compare each item to a corresponding
14
In light of our disposition in this case, we need not resolve
this question.
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portion of an offer does not simplify the comparative analysis
required under HFCR Rule 68.
Consider, under an item-by-item analysis, an offer by
Party A that provides primary physical custody of the parties’
children to Party A and that allows Party B once-per-week
visitation rights. If the judgment awards Party B primary
physical custody and once-per-week visitation rights to Party A-
-that is, the exact opposite of what the offer provided--there
is little doubt that the judgment is patently more favorable
than the offer, and the family court should not award post-offer
attorney’s fees and costs to Party A. The difficult
complication arises in cases where an item in the offer differs
slightly from the parallel item in the final judgment. Suppose
the judgment awards Party A primary physical custody of the
children and gives Party B an extra day of visitation in
alternate months. Is the judgment obtained, despite the
additional visitation days, “patently not more favorable” than
the offer even though, in Party B’s view, the extra visitation
is critical to the children’s well-being? To what extent must
the visitation days awarded in the judgment exceed those
contained in the offer in order for the offeree to surmount the
“patently not more favorable” threshold and avoid paying the
offeror’s post-offer attorney’s fees and costs? The obvious
answer is that it is unclear, for the weight that parties to
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family court proceedings ascribe to different aspects of the
judgment undoubtedly differs in every case. See Leeming, 490
P.2d at 345 (reasoning that “an offer’s ‘favorable’ character
will often depend on the parties’ personal goals”). 15
In short, the comparative analysis embodied by HFCR
Rule 68 is analytically problematic given the issues and
concerns that a family court judgment typically encompasses in
cases governed by HRS § 580-47, and the ICA’s efforts to make
the required analysis workable do not resolve difficulties
associated with the application of HFCR Rule 68 to nontangible,
nonmonetary aspects of a family court judgment in such cases.
2. The Magnitude and Expansive Reach of HFCR Rule 68
Not only are the sanctions provided for in HFCR Rule
68 problematic in the context of family court proceedings, the
rule’s breadth and character are also remarkably more extensive
than the parallel Civil Procedure Rule 68, such that, under
15
The analytical difficulties attendant to the family court’s
obligation to apply the dictates of HFCR Rule 68 are paralleled by the
decisional difficulties that parties to family court proceedings must undergo
once the rule is triggered by a settlement offer. The decision of whether to
accept an HFCR Rule 68 offer is remarkably complex because, as mentioned,
family court judgments encompass the resolution of various issues, many of
which are not readily convertible to purely monetary terms. Since equity and
justice (not hard-and-fast, black-letter rules) permeate judicial decision-
making in family court proceedings, a party-offeree and counsel do not
necessarily have the informational base to reasonably appraise whether an
HFCR Rule 68 offer should be accepted because a subsequent family court
judgment would be patently not more favorable than the offer.
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certain facts and circumstances, the rule may coerce, rather
than just encourage, a settlement. Under Civil Procedure Rule
68, this court has unequivocally held “that ‘costs’ . . . do not
include attorneys’ fees.” Collins v. S. Seas Jeep Eagle, 87
Hawaiʻi 86, 90, 952 P.2d 374, 378 (1997). In contrast, HFCR Rule
68 is unambiguous in its express requirement that a party-
offeree who obtains a judgment not patently more favorable than
the offer must pay “reasonable attorney’s fees incurred after
the making of the offer.” 16 As this court has recognized in
Collins, “the inclusion or exclusion of attorneys’ fees within
the definition of ‘costs’ will make a significant difference in
a plaintiff’s consideration of whether to accept or reject an
offer of judgment.” Id. at 88, 952 P.2d at 376. The express
inclusion of reasonable attorney’s fees as awardable costs under
16
The expansiveness of HFCR Rule 68 is further underscored by
comparing it to its federal counterpart. The Supreme Court of the United
States has held that the phrase “judgment . . . obtained by the offeree”
means that the “plain language of [FRCP] Rule 68 confines its effect to . . .
case[s] in which the plaintiff has obtained a judgment for an amount less
favorable than the defendant’s settlement offer.” Delta Air Lines v. August,
450 U.S. 346, 351 (1981). That is, “it is clear that [FRCP Rule 68] applies
only to offers made by the defendant and only to judgments obtained by the
plaintiff.” Id. at 352. Because the judgment in August was in favor of the
defendant-offeror and against the plaintiff-offeree, the Court concluded that
FRCP Rule 68 was “simply inapplicable to this case because it was the
defendant that obtained the judgment.” Id. In contrast, the plain language
of HFCR Rule 68 permits an award of post-offer costs even in instances where
the judgment obtained favors the defendant-offeror and is against the
plaintiff-offeree since “any party may serve upon the adverse party an offer
to allow a judgment to be entered to the effect specified in the offer.”
HFCR Rule 68 (emphasis added); cf. Kikuchi v. Brown, 110 Hawaiʻi 204, 209, 130
P.3d 1069, 1074 (App. 2006) (holding the same with respect to Civil Procedure
Rule 68).
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HFCR Rule 68 renders this rule significantly more potent than
Civil Procedure Rule 68, since attorney’s fees are generally not
insubstantial even in the least contentious of cases. In this
case, for example, the family court determined that Husband is
entitled to post-offer trial fees and costs of $18,051.12.
The more potent nature of HFCR Rule 68 is further
illustrated by a comparison of the respective frameworks in
which HFCR Rule 68 and Civil Procedure Rule 68 operate. Under
the Civil Procedure Rules, prevailing parties as a matter of
course are awarded costs. HRCP Rule 54(d)(1) (providing that
“costs shall be allowed as of course to the prevailing party”
unless a statute, Civil Procedure Rule, or the court otherwise
directs (emphasis added)). Hence, “[i]f the offer is rejected,
and the offeree ultimately obtains a judgment that is less
favorable than the offer, the offeree must pay the offeror’s
post-offer costs, and the offeree is precluded from obtaining
his or her post-offer costs.” Collins, 87 Hawaiʻi at 88, 952
P.2d at 376. If an offeree “rejects a [Civil Procedure] Rule 68
settlement offer, he [or she] will lose some of the benefits of
victory if his [or her] recovery is less than the offer.” Id.
(emphasis added) (quoting Delta Air Lines v. August, 450 U.S.
346, 352 (1981)). The prevailing offeree essentially forfeits
his or her entitlement to costs under Civil Procedure Rule 54
and must instead pay the offeror’s respective costs. Id. Thus,
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under Civil Procedure Rule 68, the penalty that may encourage
offerees to settle is the possibility of foregoing some
attendant “benefits of victory” that are recoverable as a matter
of course pursuant to the Civil Procedure Rules. Id. (quoting
August, 450 U.S. at 352); see HRCP Rule 54.
The same framework does not underlie family court
proceedings. The Hawaiʻi Family Court Rules do not include a
provision requiring a party as a matter of course to pay the
other party’s costs, including reasonable attorney’s fees.
Compare HFCR Rule 54(d) (stating that “[c]osts shall be allowed
where expressly provided by statute, stipulation, agreement,
order, or these rules”), with Civil Procedure Rule 54(d)(1). 17
Thus, the possible penalty, under HFCR Rule 68, for the party-
offeree who declines an offer is not merely to forego something
that he or she would commonly receive as an incident to winning
the litigation; instead, the penalty is the payment of something
that does not normally accrue as a matter of course to a party
in family court proceedings, i.e., costs and attorney’s fees.
See HRS § 580-47. Plainly, a party stands to lose more, both in
17
Indeed, one can posit that HFCR’s lack of a provision that
closely parallels Civil Procedure Rule 54 is due to the fact that, in family
court cases, judgments rendered often contain different aspects and forms of
relief that can make it difficult to identify who is the “prevailing party.”
See HRCP Rule 54(d)(1).
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kind and in magnitude, under HFCR Rule 68 than under Civil
Procedure Rule 68.
Consequently, there may be instances where HFCR Rule
68 would go beyond merely effectuating the purpose for which it
was created--to “encourage settlements . . . before a contested
matrimonial trial or a contested hearing for an order is
scheduled to begin.” Nakasone v. Nakasone, 102 Hawaiʻi 177, 181,
73 P.3d 715, 719 (2003) (quoting Criss, 89 Hawaiʻi at 22, 968
P.2d at 189). Decision-making in which parties to a family
court proceeding engage in the course of litigation too often
involves “interrelated as well as unrelated motives and
problems, where far more may be at stake than the mere dollar
amount of a support award.” Leeming, 490 P.2d at 345. By
subjecting such sensitive and often emotionally charged
decision-making to the threat of paying the other party’s
attorney’s fees, under some factual scenarios, HFCR Rule 68 has
the tendency to coerce a party to settle instead of simply
encouraging settlements.
This tendency to potentially coerce a settlement is
all the more problematic in actions involving child custody and
visitation, which are both subject to HFCR Rule 68 (stating that
a judgment offered under the rule “may be made as to all or some
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of the issues, such as custody and visitation”). 18 Because the
determination of the terms of custody and visitation is dictated
by the “best interests of the child,” HRS § 571-46 (Supp. 2013),
the ICA has thoughtfully observed that “the possible impact on a
party’s pocketbook should have no influence on the child custody
18
HFCR Rule 68 has been utilized in cases involving child custody
and visitation that illustrate the problematic application of the rule. In
Criss, a party made an offer of settlement awarding herself “the care,
custody, and control of the child, . . . subject to [Husband’s] rights of
reasonable visitation.” 89 Hawaiʻi at 19, 968 P.2d at 186. The issue was
whether the family court’s judgment, which paralleled the wife’s offer but
provided more details as to the husband’s visitation rights, was patently not
more favorable than the wife’s offer. Because the wife’s offer was prefaced
by the phrase, “The following is [Wife’s HFCR] Rule 68 offer of settlement to
[Husband] on the issue of child custody,” id., the ICA concluded that the
more detailed terms on visitation rights in the family court’s decree were
immaterial and that the decree, having the identical terms on custody as the
wife’s offer, was therefore patently not more favorable than the offer. Id.
at 25, 968 P.2d at 192.
In Owens, the wife’s offer included terms relating “to custody,
visitation, amount of child support, monies owed to each other, and
attorney’s fees and costs.” 104 Hawaiʻi at 308, 88 P.3d at 680. The issues
were whether the terms of the offer were sufficiently specific and whether
the family court erred by deciding the HFCR Rule 68 request by comparing all
the issues raised in the wife’s offer to the outcome of those issues as
reflected in the family court’s judgment instead of engaging in an issue-by-
issue comparison. Id. at 308—10, 88 P.3d at 680—82.
The husband’s offer in Brutsch v. Brutch also involved child
custody, and the family court denied the husband’s request for attorney’s
fees after comparing his offer to the entirety of the divorce decree. 135
Hawaiʻi 217, 347 P.3d 1023 (App. 2015) (SDO), cert. granted, No. SCWC-12-
0000703, 2015 WL 6457143 (Haw. Oct. 23, 2015). The ICA disagreed and
instructed the family court to sever the issue of custody from other issues
resolved by the divorce decree when engaging in the comparative analysis
required by HFCR Rule 68. Id.
Finally, in Nakasone v. Nakasone, the husband’s settlement offer
and the wife’s counteroffer both included provisions as to custody of the
parties’ minor children. 102 Hawaiʻi 108, 112, 73 P.3d 62, 66 (App. 2002),
rev’d, 102 Hawaiʻi 177, 73 P.3d 715 (2003). The custody issue was later
resolved by an out-of-court stipulation, and the issue on appeal was whether
the comparative analysis required by HFCR Rule 68 applied to issues contained
in the original offer but settled pretrial; the ICA answered in the
affirmative. Id. at 118—19, 73 P.3d 72—73.
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issue.” Nakasone v. Nakasone, 102 Hawaiʻi 108, 117 n.5, 73 P.3d
62, 71 (App. 2002) rev’d on other grounds, 102 Hawaiʻi 177, 73
P.3d 715 (2003). However, HFCR Rule 68’s threat of penalizing a
party-offeree, by requiring payment of the party-offeror’s
attorney’s fees, could “deter a party whose genuine concern for
the best interests of the child is motivating him or her to
contest the award of child custody and/or visitation from
continuing to contest the award of child custody and/or
visitation.” Id. It is contrary to societal interests that
HFCR Rule 68 should penalize and, thus, dissuade a party from
continuing with litigation to contest an offer of settlement
involving custody or visitation, when a party genuinely believes
that the offer is not in the best interests of the child. See
id. (“[T]he possibility that a party is contesting the award of
child custody and/or visitation for reasons other than the best
interests of the child is insufficient to justify imposition of
an HFCR Rule 68 type bright line rule that would deter a party
whose genuine concern for the best interests of the child is
motivating him or her to contest the award of child custody
and/or visitation from continuing to contest the award of child
custody and/or visitation.”).
In sum, the breadth, scope, and application of HFCR
Rule 68 may, in certain cases, improperly coerce parties to
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settle rights and issues whose resolution should not be driven
by the threat of monetary penalties. This attribute of HFCR
Rule 68, exacerbated in its deleterious effect by its
application to family court proceedings governed by HRS § 580-
47, provides another reason for our holding that HRS § 580-47
controls the determination of whether to award attorney’s fees
and costs in all cases subject to HRS § 580-47. 19
C.
The dissent asserts that the issue of appellate fees
and the applicability of HFCR Rule 68 to cases governed by HRS §
580-47 are distinct issues and that we are therefore engaging in
plain error review. Because we resolve a properly preserved
issue by answering, at the threshold, a dispositive question of
law, the plain error doctrine has no application. In Waldecker
v. O’Scanlon, one of the issues raised was whether the
19
The dissent maintains that our decision to limit the application
of HFCR Rule 68 so as not to include cases covered by HRS § 580-47 “bypasses
this court’s usual process for amendments to the HFCR.” Dissent at 10. The
dissent seems to be advocating that this court should be precluded from
directly determining the validity of court rules and instead defer to the
rules committee to address any errors in the rules. However, this court is
authorized to invalidate, or modify the scope of, rules without going through
the “usual process” that the dissent describes, as this court has done in
numerous occasions. See, e.g., In re Doe Children, 94 Hawaiʻi 485, 487, 17
P.3d 217, 219 (2001) (rendering “HRAP Rule 4(a)(3) . . . inapplicable to
family court cases governed by HRS § 571–54” without going through the
amendment process); In Interest of Doe, 77 Hawaiʻi 109, 113-14, 883 P.2d 30,
34-35 (1994) (voiding HFCR 59(g)(1) without undergoing the amendment
process); Bank of Haw. v. Shinn, 120 Hawaiʻi 1, 8, 200 P.3d 370, 377 (2008)
(limiting the scope of HRCP Rule 5(a) without regard to the amendment
process).
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petitioner’s relocation was a material change in circumstances
that would warrant a reexamination of the best interests of the
child. No. SCWC-14-0000780, 2016 WL 3364695, at *7 (Haw. June
17, 2016). The dispositive argument that this court chose to
resolve, even though neither party asserted it, was the
continued application of the material change of circumstances
standard as a prerequisite to modifying a custody order. Id. at
*8—*12. The Waldecker court did not utilize the plain error
doctrine. In Akamine & Sons, Ltd. v. Hawaii National Bank, the
issue of attorney’s fees was raised, but the parties failed to
advance a dispositive legal argument contained in the provisions
of the promissory notes and mortgage involved in that case. 54
Haw. 107, 114—15, 503 P.2d 424, 429 (1972). The court resolved
the issue by answering the dispositive legal argument, and plain
error was not invoked. Id. at 114—20, 503 P.2d at 429—31.
Thus, in cases similar to Waldecker and Akamine, where this
court resolves a properly preserved issue by answering a
threshold or dispositive question of law, even though the
argument is not advanced by the parties, the plain error
doctrine simply has no application.
Here, the overarching issue is whether Husband should
have been awarded appellate attorney’s fees under HFCR Rule 68,
an issue that Husband raised and properly preserved. A
foundational and dispositive question of law that the parties
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did not advance is whether HFCR Rule 68 applies to family court
cases governed by HRS § 580-47. In resolving this dispositive
legal question in this case, plain error review is not
triggered. Id.; Waldecker, 2016 WL 3364695, at *8—12. To not
address this threshold question regarding the application of
HFCR Rule 68 to cases governed by HRS § 580-47 because neither
party advances this argument would mean employing a legal
principle that is not applicable in this case to resolve the
issue on appeal, a course of action that this court has
repeatedly rejected. See, e.g., Hawaiian Ass’n of Seventh-Day
Adventists v. Wong, 130 Hawaiʻi 36, 46, 305 P.3d 452, 462 (2013)
(holding that “the parties’ stipulation as to a question of law
is not binding on the court, and does not relieve us from the
obligation to review questions of law de novo”); Chung Mi Ahn v.
Liberty Mut. Fire Ins. Co., 126 Hawaiʻi 1, 10, 265 P.3d 470, 479
(2011) (disregarding the parties’ agreement that the statute
involved had retrospective effect and instead holding that the
statute was not retroactive); State v. Schnabel, 127 Hawaiʻi 432,
445, 279 P.3d 1237, 1250 (2012) (judicially noticing on appeal
an unraised statute because “[i]t is axiomatic that a court must
‘know’ the law within its jurisdiction; hence a court is
required to ‘notice’ applicable law and to instruct the jury
thereon” (quoting State v. West, 96 Hawaiʻi 22, 26—27, 18 P.3d
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884, 888—89 (2001))); Waldecker, 2016 WL 3364695, at *11 (sua
sponte overturning prior appellate decisions that required a
showing of a material change of circumstances as a prerequisite
to modifying a custody order because that standard deviated from
HRS § 571-46(a)(6)).
III. CONCLUSION
Our process in crafting court rules is not infallible,
and this infallibility generated occasions where this court, in
the context of litigation, had to invalidate or limit the scope
of rules that it promulgated based upon their dissonance with
statutes enacted by the legislature. See, e.g., In re Doe
Children, 94 Hawaiʻi 485, 487, 17 P.3d 217, 219 (2001); In
Interest of Doe, 77 Hawaiʻi 109, 113-14, 883 P.2d 30, 34-35
(1994); Bank of Haw. v. Shinn, 120 Hawaiʻi 1, 8, 200 P.3d 370,
377 (2008). These cases illustrate this court’s obligation not
to knowingly ignore errors in the rules that it promulgated,
especially when those errors, brought to light by litigation,
produce unintended consequences detrimental to the substantive
rights of litigants subject to the rules. As Justice
Frankfurter once said, “Wisdom too often never comes, and so one
ought not to reject it merely because it comes late.” Henslee
v. Union Planters Bank, 335 U.S. 595, 600 (1949) (Frankfurter,
J., dissenting) (quoted with approval by Boys Markets, Inc. v.
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Retail Clerks Union, Local 770, 398 U.S. 235, 255 (1970)
(Stewart, J., concurring)). The dissent’s preferred alternative
is to allow HFCR Rule 68 to continue to be applied in cases
governed by HRS § 580-47 even if the rule contains a presumption
of entitlement to fees and costs that is plainly absent from the
statute. Employing this approach will jeopardize the fairness,
integrity, and public reputation of family court proceedings in
this jurisdiction and penalize Wife and similarly situated
parties. See Johnson v. United States, 520 U.S. 461 (1997). We
therefore elect not to follow this course.
We hold that both the 2006 and 2015 versions of HFCR
Rule 68 do not apply to family court cases governed by HRS §
580-47 because they are contrary to the provisions of HRS § 580-
47 and abridge substantive rights of litigants; because HFCR
Rule 68’s breadth, magnitude, and application is inconsistent
with the concepts of fairness and equity inherent in family
court proceedings subject to HRS § 580-47; because HFCR Rule 68
requires a comparative analysis of nontangible, nonmonetary
aspects of family court judgments, a process unsuited to the
host of issues that the family court is routinely called upon to
resolve; and because the rule’s penalty has a potential to
coerce settlement of rights and issues whose resolution should
not be driven primarily by financial motivations. Hence, the
provisions of HRS § 580-47 must govern in all instances where a
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party to a family court proceeding seeks an award for attorney’s
fees and costs subject to this statute. 20
Accordingly, we vacate the ICA’s Judgment on Appeal to
the extent it vacated the portion of the August 6, 2012 family
court order denying appellate fees and costs. The ICA’s
Judgment on Appeal is also vacated as to the ICA’s March 12,
2015 order that denied Husband’s HRAP Rule 39 motion for
appellate costs “without prejudice to an award by the Family
Court” and the April 9, 2015 order that awarded appellate costs
to Husband pursuant to HRAP Rule 39(d). The case is remanded to
the family court for consideration, as appropriate, of appellate
fees and costs under HRS § 580-47.
R. Steven Geshell /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Carlyn Davidson Cox
respondent pro se /s/ Michael D. Wilson
20
Because we are proscribing the application of HFCR Rule 68 to
family court cases governed by HRS § 580-47, our decision announces a new
rule. See Schwartz v. State, 136 Hawaiʻi 258, 272—73, 361 P.3d 1161, 1175—76
(2015) (“The prototypical manner in which this court creates a new rule is
when it . . . announces a superseding principle of law.”). “As such, this
decision applies only to this case and to all cases pending on direct appeal
or not yet final at the time that this decision is rendered. By final, we
mean those cases in which the judgment . . . has been rendered and the
availability of appeal and certiorari has elapsed.” State v. Won, 136 Hawaiʻi
292, 318 n.49, 361 P.3d 1195, 1221 n.49 (2015).
35