C.M. v. E.K.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-FEB-2025
07:56 AM
Dkt. 64 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

C.M., Plaintiff-Appellee,
v.
E.K., Defendant-Appellant.

APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
(CASE NO. 5DV131000149)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth, and McCullen, JJ.)

Defendant-Appellant E.K. (Mother) appeals from the June

30, 2023 Consolidated and Superseding Order of: 1) Amended

Stipulated Order Regarding Private School and Findings and Order

Granting in Part Plaintiff's Motion to Suspend Child Support and

for Related Relief, filed May 11, 2023 and 2) Order Granting in

Part Plaintiff's Motion to Suspend Child Support and for Related

Relief filed on August 6, 2021, filed on May 26, 2023

(Consolidated and Superseding Order) entered by the Family Court

of the Fifth Circuit (Family Court)1 in favor of Plaintiff-

Appellee C.M. (Father).

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The Honorable Stephanie Char presided.
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Mother raises five points of error on appeal,

contending that the Family Court: (1) clearly erred in the

Consolidated and Superseding Order's Findings of Fact (FOFs) 4,

6, 15, 16, 17, and 20, and erred in Conclusions of Law (COLs) 3,

4, 5, and 7;2 (2) erred in deviating from the Hawai#i Child

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The challenged FOFs are as follows:
4) The children will spend equal time with each parent
during school breaks and holidays.

. . . .
6) An exception to the [Guidelines] in accordance with
this order is warranted on account that the minor
children spend the school year living on the Oahu
campus of Kamehameha Schools and only return to reside
with their parents on an equal timesharing basis
during major holidays and school breaks. Kamehameha
Schools pays the substantial majority of the
children's room and board and is, therefore, covering
the majority of the expenses towards which a parents'
[sic] child support is intended.

. . . .
15) The court does not find it credible that mother gives
[MM] $1,000 a month.

16) Because of her academic achievements and financial
aid, up to this point, the majority of her post-high
school education is paid for, with the exception of
books, which father helped with when asked.
17) Based on [MM's] testimony, which the court found to be
credible, her income more or less zeros out at the end
of the month to pay for her reasonable living
expenses.

. . . .

20) The court did not have sufficient evidence to
determine the amount of arrearage, if any, Father has
in child support.
The challenged COLs (which are mixed FOFs and COLs) are as
follows:
3) Beginning August 1, 2022, Father shall pay child
support in the amount he presently pays into each
minor child's bank account- i.e., $100/month into each
minor child's bank account. Father shall provide a
receipt to Mother by the 6th day of every month
showing his deposit of said amounts into the
(continued...)

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Support Guidelines (2020) (Guidelines) as to the parties' minor

children, KM and HM; (3) erred in deviating from the Guidelines

as to the parties' older child (MM); (4) erred in ordering that

Father's child support arrearages be zeroed out by the Child

Support Enforcement Agency (CSEA); and (5) erred in overruling

Mother's objections to questions regarding her written financial

statements, and subsequently finding Mother not credible

concerning the amount Mother claimed she gave monthly to MM.

Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, we resolve Mother's

points of error as follows:

The Consolidated and Superseding Order arises in the

first instance out of (1) Father's August 6, 2021 Motion to

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(...continued)
children's bank accounts. An Order Terminating Child
Support shall be filed forthwith. The amount and
method of payments of Father's child support
arrearage, if any, shall be determined once property
division has been ultimately decided, and the CSEA
shall zero out any child support arrearage presently,
if any, owed from Father to Mother.

4) Based on the findings of this Court, per the testimony
of the parties, the Court is finding that there does
exist Exceptional Circumstances as to [MM] that
justify a deviation from the Child Support Guidelines
§ III(A)1 and 2.
5) Therefore, the Court will deviate from the
[Guidelines] and order Father to pay $250 a month
directly to [MM], effective as of January 2023.
Father is to make arrangements with [MM] within one
week to determine how these payments are to be made.
. . . .

7) The issue of child support arrearages, if any, shall be
determined at a further hearing.

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Suspend Child Support and for Related Relief (Motion to Suspend

Support) and (2) Mother's August 30, 2021 Motion and Declaration

for Post-Decree Relief (Motion for Relief).

In the Motion to Suspend Support, Father argued that

the Family Court should suspend the $557.52 per month child

support he pays Mother, "credit" child support payments he would

otherwise pay Mother against the "balance of $203,672.27 due and

owing" from Mother to Father, order that Father's child support

arrearages are satisfied and credited against the $203,672.27 due
and owing, and issue any further order to satisfy Mother's "debt"

to Father in the amount of $203,672.27.

In the Motion for Relief, Mother argued that she should

be awarded sole physical custody of the parties' children, child

support should be awarded accordingly, judgment should be entered

against Father for child support arrearages (which he allegedly

stopped paying in April 2020), along with related relief, and

Father should be ordered to pay one-half of MM's post-high school

educational expenses.

Mother's points of error are best addressed in the

context of her supporting arguments.
Mother argues, inter alia, that the Family Court erred

when it deviated from the Guidelines as to all three children

based on the allegation that Mother owed Father approximately

$200,000 in "equity" in the marital residence, which includes

Mother's Department of Hawaiian Homelands (DHHL) leasehold

interest under the Hawaiian Homes Commission Act.

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The Family Court split its consideration of the

parties' motions based on the minority/majority status of the

children. The court initially entered a March 20, 2023

Stipulated Order Regarding Private School and Findings and Order

Granting in Part [the Motion to Suspend Support] (Stipulation and

Order re Minor Children), which pertained to the minor children.

On May 26, 2023, the Family Court entered an Order Granting in

Part [the Motion to Suspend Support], which pertained to MM

(Order re MM).

The stipulated part of the Stipulation and Order re

Minor Children reflected the parties' agreement relating to the

minor children's attendance at a private school on Oahu,

including payment of private school expenses, time-sharing during

school breaks, holidays and other scenarios, transportation

expenses, graduation tickets, and song contest tickets. In

addition, the Family Court made findings of "an exception to the

[Guidelines]" based in part on the children's school-year

residence on O#ahu, including tuition, room, board, and

transportation mostly paid by the school. The findings also

included that Father's gross income was $8,142.84 per month and
Mother's gross income was $2,580 per month, as well as the

following (Paragraph h):
h. Since this Court issued its order in this matter
on April 5, 2016, Mother has owed Father approximately
$203,672.27, which represents the equity in the marital
residence in which Mother presently resides. The marital
residence is Hawaiian Homelands property requiring approval
by [DHHL] before it can be sold and transferred to another
person of native Hawaiian ancestry. Pursuant to multiple
orders issued and filed by this Court, the marital residence
was ordered to be sold and the proceeds therefrom awarded to
Father. Mother has failed and refused to cooperate in the
sale and transfer of the marital residence. Over Mother's
objection, the sale and transfer of the property was

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submitted to the DHHL for approval, but Mother enlisted the
assistance of the Native Hawaiian Legal Corporation, which
filed an action resulting in a temporary hold being placed
on the sale and transfer of the marital residence. The sale
and transfer of the marital residence is still pending
approval by DHHL, therefore Father continues to be deprived
of the monies owed to him as the equity in the marital
residence.

No Guidelines Worksheets appear in the record in

conjunction with the Stipulation and Order. The Family Court

concluded:
4. Child Support Orders. Beginning August 1, 2022,
Father shall pay child support in the amount he presently
pays into each child's bank account – i.e., $100/month into
each child's bank account. . . . An Order Terminating
Child Support shall be filed forthwith. Father's child
support arrearage, if any, shall be credited against the
monies owed by Mother to Father, and the CSEA shall zero out
any child support arrearage presently owed by Father to
Mother.

On April 25, 2023, the Intermediate Court of Appeals

(ICA) filed a Memorandum Opinion in CAAP-XX-XXXXXXX concluding,

inter alia, that the Family Court had erred in failing to address

Mother's contention that her leasehold interest in the Hawaiian

Home Lands property was not marital property subject to transfer

in this divorce proceeding. Thereafter, on May 11, 2023, the

Family Court filed an Amended [Stipulation and Order re Minor

Children] that was identical to the original [Stipulation and

Order re Minor Children], except that it deleted Paragraph h and

changed the last sentence of the order to state:
The method of payment of Father's child support arrearage,
if any, shall be determined once property division has
ultimately been decided, and the CSEA shall zero out any
child support arrearage presently owed from Father to
Mother.

In the separate Order re MM, the Family Court, inter

alia, found exceptional circumstances justified a deviation from

the Guidelines, ordered Father to pay $250 per month directly to

MM, ordered the parties to split 50/50 any educational expenses

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not covered by financial aid, grants, or scholarship until age 23

provided MM remained a full-time student, and deferred the issue

of child support arrearages.

The Consolidated and Superseding Order acknowledges the

entry of the ICA's Memorandum Opinion, but is otherwise identical

to the contents of the Amended Stipulation and Order re Minor

Children and the Order re MM.

With respect to child support for the minor children,

Mother argues that Paragraph h was a basis for the original
Stipulation and Order re Minor Children that was simply removed

after the ICA's Memorandum Opinion, and the Family Court erred

where it failed to use the Guidelines and where it deviated from

the Guidelines based on inadequate reasoning.

This argument has merit. The original Stipulation and

Order re Minor Children was based on dual grounds. First, the

Family Court found that an "exception" to the Guidelines was

warranted by the extensive time KH and HM spent living at school

away from Kaua#i, the extraordinary support provided by their

school, and the "equal time" with the parents when the children

were not away at school. In addition, the Family Court's order

that the child support be terminated and arrearages be "zeroed

out" was clearly grounded in the Family Court's finding that

Father was "deprived of monies owed to him" by Mother as a result

of the ongoing dispute concerning Mother's leasehold interest in

the the Hawaiian Home Lands property.

While the existence of exceptional circumstances may

warrant a deviation from a hard-and-fast application of the child

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support calculations, the Family Court is nevertheless required

to use the Guidelines to calculate the support obligation, before

deviating from it. The Hawai#i Supreme Court has held:
Pursuant to [Hawaii Revised Statutes (HRS)] § 571-52.5
and the Guidelines, the existence of exceptional
circumstances may allow for deviation from the support
amount calculated using the Guidelines Worksheet. However,
exceptional circumstances do not excuse a failure to use the
Guidelines Worksheet. The language of HRS § 571-52.5 states
that exceptional circumstances may "warrant departure,"
which presumes that the Guidelines Worksheet was utilized in
the first place. HRS § 571-52.5; see also Matsunaga v.
Matsunaga, 99 Hawai#i 157, 167, 53 P.3d 296, 306 (App. 2002)
(noting that "[p]resumptively, the amount of child support
necessary . . . is the total amount computed according to
[the Guidelines]" and considering whether exceptional
circumstances warranted deviation); Child Support Enf't
Agency v. Mazzone, 88 Hawai#i 456, 462, 967 P.2d 653, 659
(App. 1998) (in cases of alleged "exceptional
circumstances," "[t]he amount calculated pursuant to [the
Guidelines] is presumptively the amount that should be
ordered and the party seeking a deviation from it has the
burden of proof"). The Guidelines likewise permit
"deviation" based on exceptional circumstances, and the
Guidelines' requirement that the family court make factual
findings on the "amount of support that would have been
required as calculated using [the Guidelines Worksheet]"
further demonstrates that even in cases of exceptional
circumstances, the court must first calculate a support
amount utilizing the Guidelines Worksheet. Haw. State
Judiciary, 2010 Hawai#i Child Support Guidelines 11 (also
noting that in cases of exceptional circumstances, the
parent seeking deviation has the burden of proving that the
circumstances "warrant a departure from the child support as
calculated by the [Guidelines Worksheet]"). Therefore, even
when "exceptional circumstances" exist within the meaning of
HRS § 571-52.5 and the Guidelines, the family court is
initially required to use the Guidelines Worksheet to
determine the amount of the child support obligation.

P.O. v. J.S., 139 Hawai#i 434, 443-44, 393 P.3d 986, 995-96

(2017).

Here, we conclude the Family Court erred in failing to

use the Guidelines Worksheets to determine the child support

obligation before deviating from it. We note that the Guidelines

include provisions and worksheets for equal time-sharing, and

extensive time-sharing, the use of which allows calculations that

reflect, inter alia, the difference between the parties' incomes,

even if the Guidelines Worksheets operate as a starting place,

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not the final calculation. While the minor children here may be

away at school much of the year, they are nevertheless entitled

to support during the other times of the year. Thus, the Family

Court erred in terminating all child support, year-around. On

remand, the Family Court is required to use the Guidelines to

calculate the amount of monthly support before deviating from the

support amount based on exceptional circumstances.

The Family Court deleted Paragraph h from the

subsequent orders, including the Superseding and Consolidated
Order. However, as argued by Mother, the Family Court did not

otherwise change the child support obligations for the minor

children and retained its order that "CSEA shall zero out any

child support arrearage presently." Child support obligations

and property division are separate matters, and neither Father

nor the Family Court provided any authority supporting the offset

of child support payments against property division obligations,

or vice versa. Child support is for the benefit of the parties'

children. Child support arrearages reflect a party's failure to

provide court-ordered support for that party's children. We

conclude that the Family Court erred in zeroing out child support

arrearages, effectively excusing Father's child support

obligations, and possibly reducing Father's ongoing support

obligations, based on Mother's outstanding debt to Father for his

interest in the marital assets. In addition, while the Family

Court in effect found good cause for directing Father's payment

of $100 per month to accounts accessible to HM and KM while they

are away at school, this assessment must be done after (or as

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part of), not in lieu of, child support calculations under the

Guidelines.

As to the Family Court's order of support for MM,

Section III.A.2.b. of the Guidelines provides:
If the [Family Court] orders support for adult children,
then the [Family Court] must order the amount as calculated
by the worksheets unless there are exceptional circumstances
that warrant a deviation.

As discussed above, the supreme court has held that the

Family Court is required to use the Guidelines to calculate the

amount of monthly support before deviating from the support

amount based on exceptional circumstances. In this case, the

Family Court's findings appear to support the order for MM's

parents to provide support of MM, as well as a possible deviation

for MM based on consideration of "both parents' incomes and

resources, and [MM's] reasonable expenses, income, and

resources." See Guidelines Section III.A.2.c. We nevertheless

conclude that the Family Court erred in its calculation of the

support obligation for MM because it did not calculate support

based on the Guidelines Worksheet, prior to ordering a deviation
from that calculation.3

Finally, Mother argues that the Family Court erred when

it overruled her objections to the cross-examination of Mother

about her written financial statements. However, Mother cites no

rule of evidence or other authority barring such questioning.

Essentially, Mother argues that it caused the court to unfairly

conclude her representations concerning her financial matters

3
The Family Court's findings do not provide any explanation or
support for the specific amount of $250 that Father was ordered to provide to
MM.

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were not credible, while allowing Father to simply give oral

testimony concerning his income, without submitting updated

written financial statements. These are separate issues. Mother

has failed to demonstrate error with respect to the cross-

examination and we will not disturb the Family Court's

determination that Mother's testimony that she gave MM $1,000 per

month was not credible in light of, inter alia, Mother's

testimony that her gross monthly income was $3,200. Mother has

not properly raised any challenge to the Family Court's allowance
of Father's testimony regarding his income. Accordingly, we

conclude that this point of error is without merit.

For these reasons, the Family Court's June 30, 2023

Consolidated and Superseding Order is vacated, and this case is

remanded to the Family Court for further proceedings consistent

with this Summary Disposition Order.

DATED: Honolulu, Hawai#i, February 27, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Kai Lawrence,
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge

/s/ Sonja M.P. McCullen
Associate Judge

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