G.W. v. D.C.

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-JUN-2024
10:09 AM
Dkt. 76 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

G.W., Petitioner-Appellee, v.
D.C., Respondent-Appellant,
and
CHILD SUPPORT ENFORCEMENT AGENCY,
STATE OF HAWAI#I, Appellee

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1PP201006366)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and McCullen, JJ.)

This appeal arises out of a paternity petition and
related custody dispute between Petitioner-Appellee G.W. (Father)
and Respondent-Appellant D.C. (Mother). Mother appeals from the
following orders entered by the Family Court of the First Circuit
(Family Court):1/ (1) the May 1, 2023 "Decision and Order
Following Trial" (Decision); and (2) the July 11, 2023 "Order
Granting in Part and Denying in Part [Mother's] Motion for
Reconsideration, Alteration or Amendment of the Decision . . .,
Filed May 1, 2023 Filed 05/11/23" (Reconsideration Order). The
Decision, among other things, awarded Mother and Father joint
legal and physical custody of their minor child (Child) and
determined Father's child support obligation.
On appeal, Mother presents nine points of error, which
fall generally into three categories. First, Mother contends
that the Family Court erred by modifying a physical custody

1/
The Honorable Lesley N. Maloian presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

timesharing agreement between Mother and Father: (1) "even
though that issue was never before the court at trial"; (2) in
violation of the law of the case doctrine; and (3) in violation
of Mother's right to procedural due process. Second, Mother
contends that the Family Court erred in determining Father's
child support obligation by: (4) "limiting the child support . .
. to only the period of after May 1, 2023"; (5) "denying child
support . . . from the [C]hild's date of birth to the date of the
Petition"; and (6) "denying child support . . . from June 1, 2022
to May 1, 2023." Third, Mother contends that the Family Court
erred by: (7) "ordering Mother to pay half of mediation costs
without having the statutory authority to do so" and without
finding that she was financially able to comply. Mother's eighth
and ninth points of error challenge certain aspects of the Family
Court's October 19, 2023 Findings of Fact and Conclusions of Law
(FOFs/COLs) that are related to her first seven points of error.2/
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Mother's contentions as follows.

I. Background

On December 21, 2020, Father filed a Petition For
Paternity or For Custody, Visitation and Support Orders After
Voluntary Establishment of Paternity (Petition). Father sought,
among other things, joint legal and physical custody of Child and
the determination of child support. On February 4, 2021, Mother
filed her answer to the Petition. Mother sought, among other
things, sole legal and physical custody of Child with reasonable
visitation by Father, and the determination of child support.
On July 19, 2021, the Family Court entered a Stipulated
Judgment of Paternity Order Regarding Custody, Visitation, and
Support after Voluntary Establishment of Paternity. Father was
ordered to continue providing employer-based medical and dental

2/
Specifically, Mother contends that FOFs IBi22, IBii26, 30, 34, 43,
46, 47, IBiii69, 73, 83 and IBiv119, and COLS IIiii134, 140, 141, 143, 150,
IIiiv183, 186, 203, 205, 207, 212, 216, 223 and 229, "were made in error."

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health insurance coverage for Child. All other issues raised in
the Petition were reserved for further hearing/trial.
Pre-trial motions included Mother's September 16, 2021
motion to continue trial and for past support and other relief.
Mother requested, among other things, that the Family Court order
Father to pay "back child support" for the period from the birth
of Child to the present.
At a March 17, 2022 hearing, Father's attorney placed
on the record the parties' agreement regarding physical custody
and timesharing. The parties agreed to the following: (1)
shared (i.e., joint physical) custody of Child; (2) Father was to
enroll in and complete the SCOPES Parenting Course; and (3) upon
completion of the SCOPES parenting course or in June 2022,
whichever occurred later, Father was to have three "overnights,"
alternating each week from Friday to Monday with drop-off at
school on Monday, and then Wednesday through Saturday with drop-
off at 9:00 a.m. on Saturday. It does not appear that this
agreement, though placed on the record, was ever reduced to a
stipulated order.
On May 5, 2022, PreTrial Order No. 2 was filed.
PreTrial Order No. 2 identified the issues in dispute for trial
as: "1.) Legal Custody; 2.) The parties' Income and Expenses;
3.) Child Support; 4.) Dependency Tax Exemption; 5.) Child Health
Care; 6.) Maintenance Of Insurance; 7.) Payment Of Excess
Expenses; and 8.) Tax Credit." Physical Custody and timesharing
were not identified as disputed issues for trial.
Trial began on May 24, 2022. At that time, the Family
Court stated that the issues to be tried were "[p]ast child
support, current child support, the child tax credit, custody,
only legal, and who should, in fact, be providing medical and
dental for the child." (Emphasis added.) Regarding timesharing,
Father's counsel raised the issue of "major holidays" and "summer
break," which the court reserved for consideration. Later that
day, the court indicated that Mother should be prepared to
address "major holidays and breaks" during a June trial date, and
gave the parties additional time to "exchange any exhibits that
are going to assist this Court in deciding the issue of major

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holidays and breaks . . . ."
The trial concluded after six days, ending on
February 7, 2023.
On May 1, 2023, the Family Court issued its Decision.
As to timesharing, the court modified the parties' March 17, 2022
agreement, ordering the following "Regular Timesharing" schedule
to apply after May 1, 2023:

The parties shall have visitation with the minor child on a
two-week alternating schedule:
Week 1. [Father] shall have Weekend Visitation with the minor
child every other Friday after school to Monday drop off at
school.

Week 2. [Father] shall also have visitation with the
minor child every other Wednesday after school to Sunday at
9:00 A.M.

The Regular Timesharing is illustrated by the following
model:

Weeks Sun Mon Tues Wed Thurs Fri Sat
Week 1 Mother Mother Mother Mother Mother Father Father
Week 2 Father Mother Mother Father Father Father Father
Week 3 Mother Mother Mother Mother Mother Father Father
Week 4 Father Mother Mother Father Father Father Father

As to child support, the court determined Father's
child support obligation commencing May 1, 2023. The court
denied Mother's request for past child support, pursuant to
Hawaii Revised Statutes (HRS) § 584-15(d).
On May 11, 2023, Mother filed a motion for
reconsideration of the Decision. On July 11, 2023, the Family
Court denied the motion, except as to Mother's request that child
support continue until Child reaches age 23, as provided in the
Reconsideration Order.

II. Discussion

A. Modification of Custodial Timesharing Agreement

In her first three points of error, Mother challenges
the Family Court's modification of the parties' March 17, 2022
timesharing agreement. Mother argues that the Family Court
"ignored the stipulated time-sharing agreement of the parties,

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disregarded the issues set for trial in Pre-Trial Orders, ignored
the restrictions of [Hawai#i Family Court Rules (HFCR)] Rule 16
and did so to the detriment of . . . Mother's right to procedural
due process and in violation of the law of the case." Mother
asserts that, as a result, Father now has every Friday and
Saturday evening with Child, such that Mother and Child's half-
brother on Mother's side are not allowed to spend any weekend
time with Child, except for one Sunday every two weeks. Mother
argues that because the parties' timesharing agreement was not an
issue for trial, she did not have an opportunity to show that the
new schedule is not in Child's best interest.
Parents have a substantive liberty interest in the care
and custody of their children protected by the due process clause
of article 1, section 5 of the Hawai#i Constitution. In re Doe,
99 Hawai#i 522, 533, 57 P.3d 447, 458 (2002). Relatedly,
parental rights cannot be denied without notice and an
opportunity to be heard at a meaningful time and in a meaningful
manner. See In re JH, 152 Hawai#i 373, 380-81, 526 P.3d 350,
357-58 (2023) (quoting In re Doe, 99 Hawai#i at 533, 57 P.3d at
458)); see also Doe v. Doe, 120 Hawai#i 149, 169, 202 P.3d 610,
630 (App. 2009) ("[U]nder the Hawai#i Constitution, absent
express findings of exigent or emergency circumstances, due
process requires that a parent be given notice and an opportunity
to be heard prior to a change in primary physical or legal
custody in family court custody matters. . . ."); S.G. v. B.A.,
No. CAAP-XX-XXXXXXX, 2024 WL 1697560, at *2 (Haw. App. Apr. 19,
2024) (ruling that the family court erred in awarding sole legal
custody to father without adequate notice to mother that her
legal custody could be terminated). Further, "[p]rocedural due
process requires that an individual whose rights are at stake
understand the nature of the proceedings he or she faces." In re
Doe, 99 Hawai#i at 533, 57 P.3d at 458.
Here, neither Mother nor Father sought to modify the
regular timesharing schedule that was part of their March 17,
2022 agreement – before or during trial. The Family Court, in
turn, did not identify their agreed upon schedule, or physical
custody more generally, as a disputed issue for trial. The court

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indicated only that Mother should be prepared to address "major
holidays and breaks." In his answering brief, Father argues that
the parties' timesharing agreement was never reduced to a
stipulated order, and the Family Court was not bound by it, but
he acknowledges that the court "apparently sua sponte, chose not
to order the six/eight split" that was part of the parties'
agreement. Indeed, the Family Court itself acknowledged in COL
134 that "the issue of modification of the visitation schedule
was not decidedly before the court . . . ."3/
On this record, we conclude that the Family Court erred
in modifying the regular timesharing schedule that was part of
the parties' March 17, 2022 custodial timesharing agreement
without adequate notice to Mother that her related custodial
interests could be materially affected (and changed), and we
cannot conclude that the error was harmless. Accordingly, we
vacate the Decision as to regular time sharing and remand the
case for a new hearing or trial on this issue.4/

B. Child Support

1. Child Support Commencing May 1, 2023
Mother appears to challenge the Family Court's
calculation of Father's monthly child support obligation
commencing May 1, 2023.
The Family Court determined Father's child support
obligation commencing May 1, 2023, pursuant to HRS § 576D-7 and
the Child Support Guidelines Worksheet (Guidelines). Under the
Guidelines, Father was credited with the Equal Time-Sharing
Calculation on the Extensive Time-Sharing Worksheet, based on the
court's Regular Time-Sharing Schedule, which provided for equal
timesharing. Because we are vacating the Decision as to regular
time sharing, including the Regular Time-Sharing Schedule, we

3/
In COLs 134 and 135, the court further states that the parties
purposely elicited testimony regarding, and voluntarily chose to litigate, the
issue of Father's regular visitation schedule. Although there was limited
testimony regarding the parties' agreement, the record does not support the
overly broad findings made in COLs 134 and 135.
4/
Given our ruling, we need not reach Mother's other contentions
regarding the Family Court's modification of the timesharing agreement.

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also vacate the Family Court's calculation of Father's monthly
child support obligation commencing May 1, 2023. On remand,
Father's monthly child support obligation must be recalculated
based on any new regular time sharing schedule ordered by the
Family Court.5/

2. Past Child Support
Mother challenges the Family Court's decision to deny
Mother's request for past child support, i.e., from the date of
Child's birth to May 1, 2023. In response, Father, joined by
Respondent-Appellee Child Support Enforcement Agency, argues that
the court did not err or abuse its discretion in limiting past
child support pursuant to HRS § 584-15(d) (2018).
HRS § 584-15(d) states in relevant part: "Support
judgment or orders ordinarily shall be for periodic payments
which may vary in amount. . . . The court may limit the father's
liability for past support of the child to the proportion of the
expenses already incurred that the court deems just." We review
the family court's application of HRS § 584-15(d) for abuse of
discretion. See Child Support Enf't Agency v. Doe (CSEA v. Doe),
98 Hawai#i 58, 64-65, 41 P.3d 720, 726-27 (App. 2001).
In limiting Father's liability for past support, the
Family Court found: "In November of 2012, [Father] paid [Mother]
monthly support which increased over time to the current amount
of $700 per month." The Family Court also made the following
FOFs, among others, none of which Mother contests:6/

188. From November 2012, Mother failed to inform
Father of the amount of monthly expenses she incurred for
the child.
. . . .

190. From November 2012, Mother never objected to the
amount of financial support Father paid for the support and
care of the minor child.

5/
Given our ruling, we need not reach Mother's other contentions
regarding the calculation of Father's monthly child support obligation
commencing May 1, 2023.
6/
Unchallenged findings of fact are binding on appeal. In re Doe,
99 Hawai#i at 538, 57 P.3d at 463.

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191. Father testified [i]n November of 2012, he asked
Mother how much he should pay for her expenses. Mother
replied, "Whatever you think." Mother offered no evidence
to refute Father's testimony.
. . . .

194. Father consistently made monthly financial
payments for the support and care of the minor child from
November 2012 up to the date trial commenced.

195. Father voluntarily increased the amount of
financial support he paid to Mother in accordance with any
raises or promotions he received.
196. Mother willingly accepted financial payments
made by Father from November 2012 up to and including the
date trial commenced.
. . . .

201. It was clear from the evidence Mother failed to
inform Father the amount of support he paid her was
insufficient to cover all of the minor child's monthly
expenses.
202. It is also clear from the record, Mother didn't
wish to discuss finances with father.

. . . .

213. Mother willingly accepted ten (10) years of
financial support from Father without objection or utterance
that the amount he paid was insufficient to cover all the
child's expenses.

(Letter cases altered.)
On this record, we cannot say that the Family Court
"clearly exceeded the bounds of reason or disregarded rules or
principles of law or practice," CSEA v. Doe, 98 Hawai#i at 65, 41
P.3d at 727, in determining that "it is unreasonable and wholly
unjust for Mother to now assert her entitlement to reimbursement
for expenses and past child support." (Letter cases altered.)
Accordingly, the Family Court did not abuse its discretion in
limiting past child support pursuant to HRS § 584-15(d).

C. Mandatory Private Mediation

Mother contends that the Family Court erred by ordering
the parties to mediate any future disputes about "[m]ajor
decisions" regarding Child, and requiring her to pay one-half of
a private mediator's fee, while specifically excluding mediation
at the Mediation Center of the Pacific. Mother argues that this
order is "punitive" and curtails her access to justice, "because

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she does not have the financial ability to pay for private
mediation." Father agrees that "the court erred by ordering the
parties to mediate any future disputes prior to filing a motion."
The Decision sets out a procedure for addressing
"[m]ajor decisions" regarding Child. The contested provision
states:

If after engaging in good faith discussions, the parties are
unable to reach a decision, the parties shall engage in
private mediation with a mutually agreed-upon mediator. The
parties shall discuss the issue in mediation until a
decision is reached. Each party shall pay one-half (1/2) of
the mediator's fees. Mediation at the Mediation Center Of
The Pacific shall not satisfy this requirement. The parties
shall not file any motions with the Family Court unless the
private mediator has declared an impasse. If a party
refuses to engage in mediation or files a motion with the
Family Court without first having attended mediation,
sanctions or fines may be imposed upon that party.

Mother contends that the Family Court lacked the statutory
authority to impose this requirement and failed to make any
finding that Mother had the financial ability to pay for private
mediation.
HFCR Rule 53.1 provides, in relevant part:

(a) Authority to order. The court, sua sponte or upon
motion by a party, may, in exercise of its discretion, order
the parties to participate in a nonbinding Alternative
Dispute Resolution process (ADR or ADR process) subject to
terms and conditions imposed by the court. ADR includes
mediation or other such process the court determines may be
helpful in encouraging an economic and fair resolution of
all or any part of the disputes presented in the matter.

The Family Court's power to order parties to mediate is not
unbounded. See Kaufman v. Kaufman, No. CAAP-XX-XXXXXXX, 2016 WL
7468057, at *1 (Haw. App. Dec. 28, 2016) ("Generally, the family
court possesses wide discretion in making its decisions and those
decisions will not be set aside unless there is a manifest abuse
of discretion." (quoting Fisher v. Fisher, 111 Hawai#i 41, 46,
137 P.3d 355, 360 (2006))).
The plain language of HFCR Rule 53.1 authorizes the
family court to order the parties to participate in an ADR
process, including mediation, that may be helpful in resolving
"all or any part of the disputes presented in the matter."
(Emphasis added.) The Family Court did not cite any authority,

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and we have found none, that authorizes the court to order
parties to a paternity case such as this to participate in
private mediation regarding unknown future disputes about the
subject child. Moreover, the court's FOFs/COLs do not reflect
consideration of any of the factors identified in HFCR Rule
53.1(b) as relevant to the decision to order a case to ADR. On
this record, we conclude that the Family Court abused its
discretion by requiring private mediation as a precondition to
seeking future judicial relief regarding unknown future disputes
about Child.
III. Conclusion
For the reasons discussed above, the May 1, 2023
Decision and Order Following Trial, entered by the Family Court
of the First Circuit, is vacated as to regular time sharing,
Father's monthly child support obligation commencing May 1, 2023,
and mandatory private mediation, and affirmed in all other
respects. The case is remanded to the Family Court for further
proceedings consistent with this Summary Disposition Order.

DATED: Honolulu, Hawai#i, June 21, 2024.

On the briefs: /s/ Kathering G. Leonard
Acting Chief Judge
Michael A. Glenn
for Respondent-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Thomas D. Farrell
for Petitioner-Appellee. /s/ Sonja M.P. McCullen
Associate Judge

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