Cox v. Cox.

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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.

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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.

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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.

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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 . . .)
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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 . . .)
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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 . . .)
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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

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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).

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