*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-14-0000895
21-OCT-2016
08:02 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
BRELIE GAIL BALON TUMANENG, Petitioner/Plaintiff-Appellant,
vs.
BRIXON ANDRES TUMANENG, Respondent/Defendant-Appellee.
________________________________________________________________
SCWC-14-0000895
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0000895; FC-D NO. 12-1-7982)
OCTOBER 21, 2016
RECTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This case arises out of a custody dispute regarding
physical custody of B.C.B.T., born in 2006 (“Son”). Son’s
mother, Brelie Gail Balon Tumaneng (“Mother”), moved to modify
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
custody terms contained in an uncontested decree filed in her
divorce from Son’s father, Brixon Andres Tumaneng (“Father”).
Mother alleges she should have been allowed to present
evidence of Father’s pre-decree domestic violence at the trial
on her motion. Intermediate Court of Appeals (“ICA”) precedent
at the time required the Family Court of the First Circuit
(“family court”)1 to find a material change in circumstances
before it could reconsider the original custody order. A
majority of the ICA ruled that Mother had failed to show how
alleged pre-decree domestic violence related to the material
change in circumstances the family court preliminarily found to
exist. See Tumaneng v. Tumaneng, No. CAAP-14-0000895, at 2
(App. Oct. 26, 2015) (SDO). The ICA therefore ruled that the
family court properly excluded evidence of alleged pre-decree
domestic violence on relevance grounds because such evidence was
not related to the material change in circumstances
preliminarily found to exist by the family court, which was
Father’s relocation to Arizona and Mother’s possible move away
from Hawaiʻi with her new husband. Id.
In Waldecker v. O’Scanlon, 137 Hawaiʻi 460, 375 P.3d 239
(2016), we recently overruled several ICA cases to the extent
they suggested that a material change in circumstances is
1
The Honorable Sherri L. Iha presided.
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
required before a court can consider the best interests of a
child in modifying a custody order. See id. at 470, 375 P.3d at
249. We stated, “Rather than [a] two-step analysis, there is a
single inquiry which focuses on the best interests of the
child.” Id. We held that the requirement of a material change
in circumstances is inconsistent with HRS § 571-46 (2014). See
id. We also noted that “jurisprudential concerns regarding
repetitive motions cannot be addressed in a manner that
conflicts with the requirements of HRS 571–46 that ‘custody
should be awarded . . . according to the best interests of the
child’ and ‘any custody award shall be subject to modification
or change whenever the best interests of the child require or
justify the modification or change.’” Id. (citing HRS § 571–
46(a)(1), (6)) (emphasis in original).
In addition, as pointed out by Judge Ginoza in her dissent
from the ICA majority in this case, HRS § 571-46(a)(9) provides
that in child custody proceedings, “a determination by the court
that family violence has been committed by a parent raises a
rebuttable presumption that it is detrimental to the child and
not in the best interest of the child to be placed in . . .
custody . . . with the perpetrator of family violence.” See
Tumaneng, SDO Dissent at 7 (Ginoza, J., dissenting) (discussing
HRS § 571-46(a)(9)).
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
We therefore hold that the family court erred by excluding
evidence of alleged pre-decree domestic violence in making its
custody determination. Accordingly, we remand this case to the
family court for further proceedings consistent with this
opinion.
II. Background
A. Factual Background
Son was born in 2006. At the time of his birth, both
Mother and Father had not finished high school. Son lived with
Mother and her parents; Father visited after school. Mother and
Father married on August 19, 2008, but Father still did not live
with Mother and Son. Father enlisted in the Air Force in early
2010. When Father was stationed in Japan later that year,
Mother and Son joined him. In 2012, Father remained in Japan
and Mother and Son returned to Hawaiʻi from Japan.
After returning to Hawaiʻi, Mother filed for divorce on
December 13, 2012, and asked that physical custody of Son be
awarded solely to her. In his answer, Father indicated that he
and Mother had agreed that she would have temporary physical
custody of Son, but that he intended to take physical custody of
Son should he be stationed in the United States. He stated that
he sought physical custody due to Mother’s alleged marital
infidelity, stating that he would be providing a witness
statement regarding this allegation.
4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
About three weeks later, on January 3, 2013, Mother signed
Father’s proposed uncontested divorce decree, which was later
approved by the family court and filed on April 4, 2013
(“Decree”). The Decree provided that physical custody of Son
would be temporarily awarded to Mother until September 2013 then
permanently to Husband after September 2013. Details regarding
time sharing were reflected in a Proposed Parenting Plan
(“Plan”) also prepared by Father and signed by both parents.
The Plan stated that physical custody of Son should be awarded
to Father after his relocation to the U.S. and that Mother
should have visitation every other weekend from Friday at 2:00
p.m., to Sunday at 6:00 p.m. Further, the Plan provided that
time with Son during vacations and school breaks would be split
in half between Mother and Father, and that each parent would
have half the day on Son’s birthdays. The “out-of-state
visitation” space was left blank.
Two months after the April 4, 2013 Decree, Mother remarried
a servicemember who was scheduled to be re-stationed in Germany,
although it was unclear whether she also intended to leave
Hawaiʻi.
B. Post-decree Motion to Modify Custody Arrangement
On August 7, 2013, four months after the Decree, the family
court received Mother’s pro se Motion and Declaration for Post-
Decree Relief (“Motion”). Mother requested a change to give her
5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
physical custody of Son, alleging that circumstances had changed
(as required by the form) because Father planned to move Son out
of Oahu to Arizona in October 2013. She asserted that he was a
single father and that she had visitation rights.
Mother also requested an expedited hearing, but this
request was denied on August 22, 2013. On October 9, 2013,
Father responded pro se to Mother’s Motion through a letter
dated October 7, 2013. The letter alleged that Mother had been
aware of the relocation and requested that custody arrangement
in the Decree not be changed. Father also filed a “Proposed
Parenting Plan (After Relocation),” suggesting changes to
Mother’s visitation schedule.
On October 15, 2013, Mother filed a pro se ex parte motion
to prevent Father from relocating Son. Mother noted that the
original Decree did not state that Son would be relocated. She
asserted that she had agreed to full custody to Husband because
she had been “afraid and confused.” She indicated she was
trying to regain full custody of Son. She noted that the Decree
had provided her with regular time sharing, but that Father had
said he would be relocating with Son to Arizona on October 21,
2013. The family court ordered that Son not be removed from the
state until Mother’s Motion was decided.
Mother then retained counsel, and filed a declaration on
October 22, 2013, stating in part:
6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
5. [Father] for a long time had only part time jobs, but
in March of 2010 he joined the military. In September of
2010 he was stationed in Japan. In October of 2010, [Son]
and I went to Japan to join him.
6. While we were in Japan, I was always the one who took
care of [Son]. [Father] never bathed him or fed him or
put him to bed.
7. It was very difficult for us in Japan, as [Father]
would often hit me and I would have to leave the house,
quickly so I would not be hurt further, and if I had time I
always tried to take . . . [Son] with me so he would be
safe, but sometimes I was forced to leave him behind, I was
so scared.
8. I spoke to my mother and she told me to come home,
since there was no reason for me to stay there and let him
hit me all the time.
9. [Son] and I returned to Hawaii in September of 2012
and moved back in with my mother.
The affidavit contained additional information regarding pre-
decree circumstances, such as Son’s living arrangements from
birth, and also included an allegation that Father had forced
her to sign his version of the Decree by telling her she would
never see Son again if he told the judge about her alleged
infidelity.
Mother, with counsel, appeared at a November 6, 2013
hearing before the family court to determine whether a material
change of circumstances existed that would allow modification of
the custody arrangement contained in the Decree. Father
appeared pro se by telephone. Mother testified that she had
signed the Decree requiring her to hand over physical custody of
Son because she felt threatened by Father’s answer indicating he
would take Son away from her forever. Father indicated that
7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
although he had hoped for a new duty station in Hawaiʻi, there
had been no guarantee it would happen. Upon hearing testimony
from both Mother and Father, the court preliminarily found a
material change in circumstances, i.e., Father’s relocation to
Arizona as well as Mother’s possible move away from Hawaiʻi with
her new husband the following year. The family court ruled that
the case would proceed to trial because of the material change
in circumstances.
At the March 3, 2014 trial, both Father and Mother appeared
with counsel. Before the family court received testimony,
Father’s counsel argued that “certainly no evidence under the
Nadeau[2] decision prior to the last custody order is relevant to
today’s proceeding. . . . The Court must confine the evidence,
we believe at least, to everything that occurred since April the
4th, 2013 . . . .” The family court treated the oral motion as
a motion in limine, and granted it, stating, “Basically on this
point there was a prior custody decree and we found that there
was a material change in circumstance since then. So the
evidence will be limited to what happened since April 4th,
2013.” Although Mother’s counsel did not refer specifically at
that time to domestic violence allegations, he objected to the
2
Nadeau v. Nadeau, 10 Haw. App. 111, 861 P.2d 754 (1993).
8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
exclusion of pre-decree evidence based on Father’s mentioning of
pre-decree allegations in his pre-trial memorandum.
Accordingly, based on the family court’s pre-trial
evidentiary ruling, evidence regarding factual circumstances
existing before April 4, 2013, including evidence regarding
Mother’s claims that Father physically abused her in Japan, was
precluded from the trial. At trial, the family court received
evidence that included various exhibits and testimony from
Mother, Mother’s mother, and Father regarding the parents’
respective abilities to care for Son. During closing arguments,
Mother’s counsel urged:
[Mr. Fanelli:] And you know, we weren’t allowed --
we were precluded from testifying or discussing matters
that happened prior to April 4th. There is a history
between these two that would perhaps lend a little more –-
Mr. Diehl: Objection.
Mr. Fanelli: Withdrawn.
Mr. Diehl: And you know, he’s done his
closing.
The Court: And Mr. Fanelli, basically
everything you’ve said so far -- I mean, this is not a
motion to set aside the decree.
Mr. Fanelli: I understand.
The Court: We’re here to determine what’s in
the best interest of the child post-decree.
Mr. Fanelli: Yes, Your Honor.
At the conclusion of the trial, the family court granted
sole physical custody of Son to Father. The family court filed
an order on April 14, 2014 awarding Father sole physical custody
of Son effective May 30, 2014. The order also addressed time
sharing during Son’s school breaks and vacations, awarded Mother
temporary physical custody if Father was deployed, and stated
9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
that if Mother and Father resided in the same locale in the
future, the parties would be awarded joint physical custody.
On April 24, 2014, Mother, through new counsel, filed a
motion for reconsideration pursuant to Hawaiʻi Family Court Rules
(“HFCR”) Rule 59, requesting a new trial because the family
court’s preclusion of pre-decree evidence had prevented evidence
of Father’s family violence and abuse of Mother during the
marriage from coming to light, “which should have been
considered by the Court in making a decision regarding physical
custody.” Without a hearing, the family court denied the motion
for reconsideration on May 20, 2014.
The family court entered Findings of Fact and Conclusions
of Law on August 6, 2014. Among other things, the family court
found and concluded that: (1) the Decree filed on April 4, 2013
awarded Father sole physical custody of Son in September 2013,
(2) relocation was contemplated at the time of the divorce, (3)
Mother failed to establish a material change in circumstance
since Father’s relocation back to the United States and
subsequent new assignment was contemplated at the time the
Decree was entered, (4) Mother did not have a history of stable
employment, often went out to bars and left Son with his
grandmother, had been hospitalized for intoxication3 and
3
Mother’s counsel objected to Father’s counsel’s reference to the incident
in his closing argument, arguing that it occurred before the April 4, 2013
(continued . . .)
10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
arrested4 for trespassing, (5) Father was an active duty
servicemember stationed near Tucson, Arizona, had always been a
consistent nurturing caregiver, and had demonstrated that he was
better able than mother to provide a safe, loving and nurturing
home for Son, and (6) even if Father’s reassignment outside of
Hawaiʻi had not been contemplated and the court were to find that
Father’s relocation to Arizona was a material change in
circumstances, it was still in Son’s best interest to live with
Father.
C. Appeal to the ICA
Mother filed a notice of appeal to the ICA as to both the
April 14, 2014 order on her Motion and the May 20, 2014 order
denying her motion for reconsideration. She asserted two points
of error, the first of which serves as the basis of her present
Application, that the family court erred when it excluded
evidence prior to April 4, 2013.5
(. . . continued)
Decree. The trial transcript does not reflect when this incident allegedly
occurred, but it was represented in Father’s trial memorandum that it
occurred in January 2013. The family court overruled the objection.
4
Mother testified that she was “ticketed.”
5
The second point of error was, “[t]he Family Court committed plain error in
awarding child custody without making any findings regarding the best
interest of the child.” Mother’s reply brief acknowledged, however, that the
family court did address the best interests of the child in conclusions of
law (“COL”) 1 and 4. Mother nevertheless continued to assert error because
the statements were identified as COLs and not findings of fact (“FOF”). The
ICA found Mother’s argument to be without merit because COL 6 stated, “To the
extent that any [FOF] herein may be a [COL], it shall be so construed. To
the extent that a [COL] herein may be a [FOF], it shall be so construed.”
(continued . . .)
11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
In its October 26, 2015 Summary Disposition Order (“SDO”),
the ICA majority ruled based on cases subsequently overruled by
Waldecker that “[u]pon a finding of a material change, the
relevant inquiry is whether the material change itself is
sufficient to alter the best interests of the child,” and
therefore Mother “was required to show that the evidence of
domestic violence prior to the divorce decree was related to
[Father’s] pending relocation to Arizona.” Tumaneng, SDO at 2.
The ICA found no error because Mother did not show such a
relationship. See id. The ICA stated that the family court’s
evidentiary ruling was not based on the principles of res
judicata, but rather was “based on the relevance of the evidence
under [HRE] Rule 402.” Id.
Judge Ginoza dissented on the basis that the family court
abused its discretion when it denied Mother’s request for a new
trial within her motion for reconsideration, as there existed
good cause for granting Mother’s request. See Tumaneng, SDO
Dissent at 4 (Ginoza, J., dissenting). She explained:
Given the circumstances in this case, where the family
court did not previously have occasion to consider family
violence and Mother was unrepresented when the Divorce
Decree was entered, I believe evidence of family violence
should have been considered in determining the best
(. . . continued)
Tumaneng, SDO at 3. Further, what was in the best interest of Son was a
“mixed question of law and fact,” and “[t]he family court’s characterization
of its determination as a ‘COL’ rather than a ‘FOF’ does not mean the family
court awarded custody of Son without considering the best interest of the
child. Id. The Application does not challenge this portion of the ICA’s
SDO.
12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
interests of [Son] and whether to modify custody, even if
the evidence pertained to incidents prior to the Divorce
Decree.
Id. at 8.
D. Application for Writ of Certiorari
Mother presents three questions to this court:
[1]. Did the Intermediate Court of Appeals commit grave
error of fact or law in holding that evidence of domestic
violence which occurred before an earlier award of custody
must be related to a material change of circumstances to be
considered on a motion for change or modification of
custody pursuant to HRS § 571-46(a)(6)?
[2]. Did the Intermediate Court of Appeals commit grave
error of fact or law in holding that evidence of domestic
violence which occurred before an earlier award of custody
must be related to a material change of circumstances to be
considered on a motion for change or modification of
custody pursuant to HRS § 571-46(a)(6), where the issue of
custody was not previously fully litigated and adjudicated
by the court?
[3]. Did the Intermediate Court of Appeals commit grave
error of fact or law in holding that evidence of domestic
violence which occurred before an earlier award of custody
must be related to a material change of circumstances to be
considered on a motion for change or modification of
custody pursuant to HRS § 571-46(a)(6), where the prior
order awarding custody was based upon an uncontested
stipulation allegedly obtained by fraud and/or duress or
from a moving party who was previously unrepresented by
counsel?
All three questions assert that the family court erred in
excluding evidence of domestic violence that had allegedly
occurred before April 4, 2013. We address this issue in Section
IV below.
III. Standard of Review
“A trial court’s determination that evidence is ‘relevant’
within the meaning of HRE Rule 401 (1993) is reviewed under the
right/wrong standard of review.” State v. St. Clair, 101 Hawaiʻi
13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
280, 286, 67 P.3d 779, 785 (2003). HRE Rule 401 defines
relevant evidence as “evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” HRE Rule 402 provides that
“[a]ll relevant evidence is admissible, except as otherwise
provided by the Constitutions of the United States and the State
of Hawaiʻi, by statute, by these rules, or by other rules adopted
by the supreme court. Evidence which is not relevant is not
admissible.”
IV. Discussion
A. Child Custody Determinations Must Be Based on the Best
Interests of the Child, and a Material Change in
Circumstances is not Required to Modify a Child Custody
Order
We note at the outset that the family court applied ICA
cases binding on it at the time, which required a threshold
showing of a “material change in circumstances” before a change
in a child custody order could be considered. In Waldecker, 137
Hawaiʻi 460, 375 P.3d 239, we overruled the cases cited by the
ICA in its Summary Disposition Order to the extent they
suggested that a material change in circumstances is required
before a court can consider the best interests of a child in
modifying a custody order. See id. at 470, 375 P.3d at 249.
14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
We addressed HRS § 571-46, which provides as follows with
respect to the family court’s modification of a custody order:
Criteria and procedure in awarding custody and visitation;
best interest of the child. (a) In actions for divorce, .
. . or any other proceeding where there is at issue a
dispute as to the custody of a minor child, the court,
during the pendency of the action . . . or any time during
the minority of the child, may make an order for the
custody of the minor child as may seem necessary or proper.
In awarding the custody, the court shall be guided by the
following standards, considerations, and procedures:
(1) Custody should be awarded to either parent or to
both parents according to the best interests of the child .
. . . ;
(6) Any custody award shall be subject to
modification or change whenever the best interests of the
child require or justify the modification or change and,
wherever practicable, the same person who made the original
order shall hear the motion or petition for modification of
the prior award. . . .
In Waldecker, construing HRS § 571-46, we stated, “Rather
than [a] two-step analysis, there is a single inquiry which
focuses on the best interests of the child. . . . [T]he
question is ‘whether or not there has been such a change of
circumstances that the modification will be for the [best
interest] of the child.’” Id. (citation omitted) (brackets in
original). We held that the requirement of a material change in
circumstances is inconsistent with the statute. See id. We
also noted that “jurisprudential concerns regarding repetitive
motions cannot be addressed in a manner that conflicts with the
requirements of HRS 571–46 that ‘custody should be awarded . . .
according to the best interests of the child’ and ‘any custody
award shall be subject to modification or change whenever the
best interests of the child require or justify the modification
15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
or change.’” Id. (citing HRS § 571–46(a)(1), (6)) (emphasis in
original).
Pursuant to HRS § 571-46, as construed in Waldecker, the
family court was required to consider all evidence relevant to
the issue of whether modification of the Decree would be in the
best interests of the child. In this case, pre-decree evidence
was clearly relevant to this determination. Therefore, the
family court erred by excluding pre-decree evidence to ascertain
Son’s best interests.6 Although Mother’s application is based
solely on the exclusion of pre-decree domestic violence
evidence, on remand, pursuant to HRS § 571-46 and Waldecker,
other pre-decree evidence may be relevant to Son’s best
interests.
B. In Determining the Best Interests of the Child, the Family
Court Must Consider Evidence of Domestic Violence and Apply
the Rebuttable Presumption of HRS § 571-46(9)
This case also presents the specific question of whether
the family court erred by excluding all pre-decree evidence of
domestic violence. In this regard, HRS § 571-46(9) and (10)
provided at the times relevant to this case as it does now:
(9) In every proceeding where there is at issue a
dispute as to the custody of a child, a determination by
the court that family violence has been committed by a
parent raises a rebuttable presumption that it is
detrimental to the child and not in the best interest of
6
The family court compounded the error by considering pre-decree evidence
adverse to Mother while excluding evidence of Father’s domestic violence, as
well as other relevant circumstances of Son’s upbringing.
16
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the child to be placed in sole custody, joint legal
custody, or joint physical custody with the perpetrator of
family violence. In addition to other factors that a court
shall consider in a proceeding in which the custody of a
child or visitation by a parent is at issue, and in which
the court has made a finding of family violence by a
parent:
(A) The court shall consider as the primary
factor the safety and well-being of the child and of the
parent who is the victim of family violence;
(B) The court shall consider the perpetrator’s
history of causing physical harm, bodily injury, or assault
or causing reasonable fear of physical harm, bodily injury,
or assault to another person; and
(C) If a parent is absent or relocates because of
an act of family violence by the other parent, the absence
or relocation shall not be a factor that weighs against the
parent in determining custody or visitation;
(10) A court may award visitation to a parent who
has committed family violence only if the court finds that
adequate provision can be made for the physical safety and
psychological well-being of the child and for the safety of
the parent who is a victim of family violence . . . .
We also note that HRS § 571-2 (Supp. 2014) defines “family
violence” as:
the occurrence of one or more of the following acts by a
family or household member, but does not include acts of
self-defense:
(1) Attempting to cause or causing physical harm to
another family or household member;
(2) Placing a family or household member in fear of
physical harm; or
(3) Causing a family or household member to engage
involuntarily in sexual activity by force, threat of force,
or duress.
We note that this definition of “family violence” is not limited
to physical acts of domestic violence, which are alleged by
Mother in this case, but also includes non-physical acts, such
as threats.
HRS § 571-46(9) requires that the family court address
whether “family violence has been committed by a parent” in
“every proceeding” at which a court considers a “dispute as to
17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the custody of a child.” The statute imposes a “rebuttable
presumption that it is detrimental to the child and not in the
best interest of the child to be placed in . . . custody . . .
with the perpetrator of family violence.” Id. Indeed, the
legislature mandates the court to “consider the perpetrator’s
history of causing physical harm, bodily injury, or assault or
causing reasonable fear of physical harm, bodily injury, or
assault to another person.” HRS § 571-46(a)(9)(A).
As we noted in Doe v. Doe, 98 Hawaiʻi 144, 44 P.3d 1085
(2002):
A determination of family violence bears directly
upon the best interests of the child, as indicated in HRS §
571–46(9), which provides that, when a determination of
family violence is made by the family court, a rebuttable
presumption is created that custody should not be placed
with the perpetrator[.]
. . . .
Father was allowed to testify and present all of his
witnesses to the court. Mother testified, but the court did
not hear from any of her other witnesses, in particular,
those who would have testified, according to their
affidavits, about Father’s alleged abuse of Mother and its
related effect on Child. Evidence supporting such
allegations was pertinent to whether Father should have
sole legal and physical custody of Child.
Id. at 156, 44 P.3d at 1097 (citations omitted).
Doe highlights the importance of considering all testimony
relevant to allegations of domestic violence in custody
determinations. In this case, the family court did not allow
any evidence of domestic violence in its custody determination.
The custody arrangement set out in the Decree was in an
uncontested divorce filing, with no hearing before the family
18
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
court. Although the family court had approved the Son’s custody
arrangement in the Decree, in her post-decree Motion, Mother
alleged coercion and duress regarding the original “agreement.”
In addition, a clear dispute between Mother and Father over
Son’s custody arose when Mother filed her Motion. The March 3,
2014 trial was the first proceeding at which the family court,
under HRS § 571-46(9), had occasion to receive evidence and
consider the issue of whether family violence was committed by
Father, and what custody arrangement was actually in Son’s best
interests.
As noted in Doe, the statute sets out clear guidelines
regarding custody decisions when a determination of family
violence is made. The legislature’s intent to require family
courts to address issues of family violence in determining child
custody and visitation decisions is clear on the face of the
statute. In enacting HRS § § 571-46(9) and (10) in 1996, the
legislature also stated:
Because current laws relative to child custody and
visitation are based on an assumption that . . . divorcing
parents are in relatively equal positions of power and that
such parents will act in the children’s best interest,
these laws often work against the protection of the
children and the abused spouse in families with a history
of family violence. . . .
1996 Haw. Sess. Laws Act 198, § 1 at 450. Therefore, in order
to determine Son’s actual best interests as mandated by HRS §
571-46, the family court was required to address the specific
19
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
and direct allegations of domestic violence in this case before
making its custody determination.
V. Conclusion
For these reasons, we vacate the family court’s April 14,
2014 order on Mother’s Motion, its May 20, 2014 order denying
Mother’s motion for reconsideration, and its August 6, 2014
Findings of Fact and Conclusions of Law. We also vacate the
ICA’s October 26, 2015 Summary Disposition Order and November
23, 2015 Judgment on Appeal. We remand this case to the family
court for further proceedings consistent with this opinion.
Charles H. Brower /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Richard J. Diehl
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
20