JW v. LW

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-OCT-2021
08:09 AM
Dkt. 177 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JW, Plaintiff-Appellant, v.
LW, Defendant-Appellee

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 16-1-0008)

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

Plaintiff-Appellant JW (JW or Mother) appeals from the

Family Court of the First Circuit's (Family Court)1 March 7, 2019

Decree Granting Absolute Divorce and Awarding Child Custody

(Divorce Decree).

JW raises three multi-faceted points of error on

appeal, contending that the Family Court: (1) abused its

discretion in awarding JW reduced spousal support and for a

shorter term than requested; (2) abused its discretion in denying

JW's request to relocate with the parties' children and in its

related joint physical custody and child support decisions; and

1
The Honorable Kevin T. Morikone presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(3) erred in (a) failing to attribute marital waste to Defendant-

Appellee LW (LW or Father) and (b) determining that LW was

entitled to a Category 1 credit for premarital house payments.

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 by the parties, we

resolve JW's points of error as follows:

(1) JW argues that the Family Court abused its

discretion when it ordered spousal support in the amount of

$2,500 per month for five years, instead of $2,900 per month for

six years. Hawaii Revised Statutes (HRS) § 580-47(a) (2018)

requires that the Family Court consider the following when making

orders for spousal support:
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.

The Family Court also must consider:
(1) Financial resources of the parties;
(2) Ability of the party seeking support and
maintenance to meet his or her needs independently;
(3) Duration of the marriage;
(4) Standard of living established during the marriage;
(5) Age of the parties;
(6) Physical and emotional condition of the parties;
(7) Usual occupation of the parties during the
marriage;
(8) Vocational skills and employability of the party
seeking support and maintenance;
(9) Needs of the parties;
(10) Custodial and child support responsibilities;
(11) Ability of the party from whom support and
maintenance is sought to meet his or her own needs
while meeting the needs of the party seeking
support and maintenance;

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(12) Other factors which measure the financial condition
in which the parties will be left as the result of
the action under which the determination of
maintenance is made; and
(13) Probable duration of the need of the party seeking
support and maintenance.

Id.

When deciding the issue of spousal support:
The first relevant circumstance is the payee's need.
What amount of money does he or she need to maintain the
standard of living established during the marriage? The
second relevant circumstance is the payee's ability to
meet his or her need without spousal support. Taking
into account the payee's income, or what it should be,
including the net income producing capability of his or
her property, what is his or her reasonable ability to
meet his or her need without spousal support? The third
relevant circumstance is the payor's need. What amount
of money does he or she need to maintain the standard of
living established during the marriage? The fourth
relevant circumstance is the payor's ability to pay
spousal support. Taking into account the payor's income,
or what it should be, including the income producing
capability of his or her property, what is his or her
reasonable ability to meet his or her need and to pay
spousal support?

. . . .

When answering any of the above questions, the
following two rules apply: Any part of the payor's
current inability to pay that was unreasonably caused by
the payor may not be considered and must be ignored. Any
part of the payee's current need that was caused by the
payee's violation of his or her duty to exert reasonable
efforts to attain self-sufficiency at the standard of
living established during the marriage may not be
considered and must be ignored.

Wong v. Wong, 87 Hawai#i 475, 485, 960 P.2d 145, 155 (App. 1998)

(citations and brackets omitted); accord Vorfeld v. Vorfeld, 8

Haw. App. 391, 804 P.2d 891 (1991) (which was cited by the Family

Court in this case).

In its November 29, 2018 Decision and Order (Decision

and Order), as well as in its June 25, 2019 Findings of Fact and

Conclusions of Law (FOFs/COLs), the Family Court expressly states

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

that its alimony (spousal support) determination was based on,

inter alia, the factors enunciated in HRS § 580-47(a) as well as

the analysis set forth in the case law, and JW does not

persuasively argue otherwise.

Instead, JW primarily argues, in essence, that the

Family Court did not give proper weight to her testimony

regarding her work history, education, and financial needs. For

example, JW points to her desire to finish college in order to

improve her earning capacity. However, as noted by LW, JW took

no steps to continue her education or obtain any employment

during the pendency of the divorce proceedings, and JW points to

no testimony or other evidence supporting a conclusion that the

Family Court's determination that five years – as opposed to six

years – of spousal support, in light of the applicable

considerations, was an abuse of discretion. JW further argues

that LW had the means to pay spousal support in the additional

amount requested because his claimed personal needs, plus child

support and the requested alimony, would be "just over his stated

take-home pay" and LW could trim some of his "exaggerated"

expenses. It is the purview of the Family Court to give weight

and assess credibility of all of the testimony and other

evidence, in light of both parties' arguments and the required

factors, and determine an appropriate balancing of the standard

of living of both parents. It appears from the record that the

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Family Court did so in this case and we cannot conclude that the

Family Court abused its discretion in so doing.

JW also argues that there was a dearth of evidence

supporting an imputation of income to her for the purposes of the

spousal support calculation. In conjunction with JW's argument

that child support was improperly calculated, JW further argues

that the Family Court erred in its imputation of income in the

amount of $1,751.

The Family Court applied the 2014 Hawai#i Child

Support Guidelines (Guidelines) provision concerning imputed

income. Section V.J.3. of the Guidelines states:

IMPUTED INCOME may be used when a parent is not employed
full-time or is employed below full earning capacity. The
reasons for this limitation must be considered.

If a parent's income is limited in order to care for
children to whom the parents owe a joint legal
responsibility, at least one of whom is 3 years of age or
younger, then no additional income will be imputed to that
parent. If all of the subject children are over 3 years of
age, and the parent who receives support is mentally and
physically able to work, and remains at home and does not
work, then thirty (30) hours or less of weekly earnings at
the minimum wage may be imputed to that parent. 42

If a parent's income is limited for any other reason, the
parent's income will be determined according to his or her
income capacity in the local job market, considering both
the reasonable needs of the children and the reasonable work
aspirations of the parent. 43
42
See § 576D-7(a)(9).
43
Cleveland v. Cleveland, 1 Haw. App. 187, 616 P.2d
1014 (1980).

Guidelines (Section V.J.3.) at 20-21, 24 (format altered).

In COL 21, the Family Court concluded that: "Mother is

currently unemployed for reasons not related to caring for a

child 3 years of age or younger to whom the parents owe a joint

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

legal responsibility." Mother does not argue that this

particular conclusion is wrong. However, in COL 22, the Family

Court further concluded that: "Mother's income should be

determined/imputed according to her income capacity in the local

job market, considering the reasonable needs of the parties' 3

sons and the reasonable work aspirations of Mother." The Family

Court's conclusion as to Mother's income capacity in the local

job market is supported by, inter alia, FOFs 80 - 85, which are

supported by the evidence in the record. Nevertheless, Mother

argues, both in the Family Court and on appeal, that she has

stayed home to take care of the parties' children. The Family

Court entered no FOFs or COLs as to why it imputed income at

Mother's income capacity in the local job market, as opposed to

imputing income at "thirty (30) hours or less of weekly earnings

at the minimum wage."

We recently discussed these alternative grounds and

methods for imputing income to a parent who is not employed full-

time or is employed below full earning capacity, as follows:
[T]he consideration of imputed income has three parts.
The first part provides that imputed income "may" be used in
one of two circumstances: (1) when a parent is not employed
full-time; or (2) when a parent is employed below "full
earning capacity." [Guidelines] at 20. In both instances,
imputed income is plainly discretionary. The Guidelines
indicate that the decision-maker "may" in one of these
circumstances, enter a support order that is not based on a
parent's actual income, but it is not a mandate. Id. The
Guidelines further provide that "[t]he reasons for this
limitation must be considered," echoing the intent of the
Guidelines to apply the standard calculations in the vast
majority of cases, and providing that even if a parent's
employment situation falls below full earning capacity, the
reasons for the limited employment must be considered. Id.
(emphasis added). In context, this supports the conclusion

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

that imputed income is the exception, not the rule, even
when one of the two circumstances arises, and we so hold.

The second part deals with the specific situation of a
custodial parent staying home to care for one or more of the
parties' children to whom they owe a joint legal
responsibility. Id. If there is a child 3 years of age or
younger, no additional income will be imputed. If the child
or children are older, and other specified facts are
demonstrated, then earnings for thirty hours or less, at
minimum wage, may be imputed to the stay-at-home parent.
Id. [W]e note this as one of the two circumstances that may
support imputed income, and further note that this is the
only circumstance that is directly supported by statute. As
referenced in footnote 42 of the Guidelines, HRS § 576D-
7(a)(9) provides that the Guidelines may include a
consideration that "[i]f any obligee parent (with a school
age child or children in school), who is mentally and
physically able to work, remains at home and does not work,
thirty (or less) hours of weekly earnings at the minimum
wage may be imputed to that parent's income."

The third part is plainly intended to apply after a
determination that a parent is "employed below full earning
capacity" for any reason other than care of a joint child,
and after the reasons for the limited employment – i.e.,
below full earning capacity – are considered. Guidelines at
20-21. It states that in that situation, the parent's
income will be determined – i.e., may be imputed to be an
amount different than his or her actual income – according
to three factors: (1) the parent's income capacity in the
local job market; (2) the reasonable needs of the children;
and (3) the reasonable work aspirations of the parent. Id.
at 21. We note that the authority identified in the
Guidelines for this alternative basis for imputed income is
an Intermediate Court of Appeals (ICA) case, Cleveland v.
Cleveland, 1 Haw. App. 187, 616 P.2d 1014 (1980), not a
statutory provision.

In Cleveland, the obligor-father argued that a family
court's child support order must be based on the payor's
present ability to pay child support. Id. at 191-92, 616
P.2d at 1017. The ICA rejected the father's argument and
held:

We hold that in ordering child support, the
family court may consider what the payor is capable of
earning if the payor attempts in good faith to secure
proper employment, where the payor is temporarily
unemployed or is engaged in work from which the payor
does not receive the amount he or she is capable of
earning in other fields of endeavor.

We further hold that the court may consider the
size of the payor's estate and his or her net worth.

Id. at 192, 616 P.2d at 1017 (citations omitted; emphasis
added).

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Various aspects of the ICA's analysis in Cleveland do
not square up with the standardized determinations of child
support under the Guidelines, which were adopted years after
the Cleveland decision. Nevertheless, the drafters of the
Guidelines expressly embraced the ICA's holding that the
family court (or administrative agency) may consider "what
the payor is capable of earning if the payor attempts in
good faith to secure proper employment." Id. (emphasis
added).

CH v. Child Support Enf't Agency, CAAP-XX-XXXXXXX, 2021 WL

2430809, *15-16 (Haw. App. June 15, 2021) (Op.) (footnote

omitted).

In this case, the Family Court did not abuse its

discretion in determining that income should be imputed to Mother

based on the evidence in the record and the Family Court's FOFs.

However, the Family Court made no findings or conclusions

supporting its decision to apply the third part of Section V.J.3.

of the Guidelines, as opposed to the second alternative of the

second part of this Section - i.e., the alternative concerning

parents of children over 3 years of age, who are mentally and

physically able to work and remain at home to care for children

to whom the parents owe a joint legal responsibility. In short,

the Family Court did not make findings as to the reason for

Mother's lack of income.2 As there are insufficient findings to

support the Family Court's determination to apply the third part

of Section V.J.3. of the Guidelines to impute income to JW, we

2
Father's position appears to be that, in light of the 50/50
custody arrangement ordered by the Family Court, Mother's unemployment should
not be attributed to her remaining at home to care for their children.
However, as the Family Court has not made the necessary findings concerning
the reason(s) Mother's income was limited, we express no opinion as to whether
the record supports any such findings or resulting conclusion.

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

must vacate the determination of spousal support based in part on

such imputed income and remand this case for further findings and

conclusions concerning imputed income and spousal support, to the

extent that it is based on such imputed income.

(2) Mother argues that the Family Court abused its

discretion in denying Mother's proposed relocation of the

parties' children, ordering joint physical custody, and ordering

Father to pay $2,499 monthly child support.

HRS § 571-46(a) (2018) provides, in part, that the

family court should award custody of a minor child to "either

parent or to both parents according to the best interests of the

child, and the court also may consider frequent, continuing, and

meaningful contact of each parent with the child unless the court

finds that a parent is unable to act in the best interest of the

child[.]" HRS 571-46(b) (2018) provides that in determining the

"best interest of the child," the family court "shall consider,

but not be limited to," sixteen factors, including:
(3) The overall quality of the parent-child
relationship;
(4) The history of caregiving or parenting by
each parent prior and subsequent to a marital
or other type of separation;
(5) Each parent's cooperation in developing and
implementing a plan to meet the child's
ongoing needs, interests, and schedule; . . .
(6) The physical health needs of the child;
(7) The emotional needs of the child;
(8) The safety needs of the child;
(9) The educational needs of the child;
. . . .
(11) Each parent's actions demonstrating that they
allow the child to maintain family
connections through family events and
activities; . . .

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(12) Each parent's actions demonstrating that they
separate the child's needs from the parent's
needs; [and]
. . . .
(15) The areas and levels of conflict present
within the family[.]

The Family Court is "granted broad discretion to weigh

the various factors involved, with no single factor being given

presumptive paramount weight, in determining whether the standard

has been met." Fisher v. Fisher, 111 Hawai#i 41, 50, 137 P.3d

355, 364 (2006).

Mother first argues that the Family Court failed to

consider the HRS § 571-46(b) factors in determining Children's

best interests and instead relied "on a single factor" in HRS

§ 571-46(a)(1): whether Children would have "frequent,

continuing, and meaningful contact" with Father. Mother

specifically points to COLs 2-6, which state:
Mother's Proposed Relocation

2. Hawaii Revised Statutes Section 571-46(a)(1)
provides in its entirety, "Custody should be
awarded to either parent or to both parents
according to the best interests of the child, and
the court also may consider frequent, continuing,
and meaningful contact of each parent with the
child unless the court finds that a parent is
unable to act in the best interest of the child."
(emphasis added in italics).

3. The sole issue in a relocation case is the
children's best interests. Fisher v. Fisher, 111
Hawai#i 41, 137 P.3d 355 (2006) (citing Maeda v.
Maeda, 8 Haw. App. 139, 143, 794 P.2d 268, 270
(1990) and In re Jane Doe, 7 Haw. App. 547, 558,
784 P.2d 873, 875 (1989)).

4. If Mother was allowed to relocate the parties' 3
sons to California, then the parties' 3 sons would
not have frequent, continuing, and meaningful
contact with Father.

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

5. It is not in the parties' 3 sons' best interests
for them to not have frequent, continuing, and
meaningful contact with Father.

6. After careful consideration of the case law and the
standards, considerations, and procedures contained
in Hawaii Revised Statutes (HRS) Section 571-46,
along with the credible and reliable evidence
adduced at trial, the Court concludes that it is in
the best interests of the children to deny Mother's
request to relocate the children to the state of
California.

Mother's argument lacks merit. First, the Family Court

is not required to expressly discuss each of the HRS § 571-46(b)

factors in custody decisions. See RC v. MC, CAAP-XX-XXXXXXX,

2019 WL 338344, *3 (Haw. App. Jan. 28, 2019) (mem. op.). Second,

while the COLs regarding relocation focus on Children's

"frequent, continuing, and meaningful contact" with Father, the

Decision and Order states, inter alia, that "the sole issue in a

relocation case is the children's best interest," and FOFs

indicate that the Family Court considered, inter alia, Children's

"physical, emotional, and educational needs":
Mother's Proposed Relocation

13. After the Fact Finder was discharged on May 25,
2017, Mother filed a Notice Of Change Of Position
And Request To Relocate With The Children on August
16, 2017.

14. Mother initially testified that she wanted to
relocate the parties' 3 sons to California because
things were worse than ever in terms of conflict in
her household.

15. Mother acknowledged that some of their oldest son's
behaviors existed before the parties' physical
separation, and that their oldest son could have a
negative attitude or be upset with her as the
result of her not letting him do things, including
spend more time with Father.

16. Mother acknowledged that she started having
problems with the parties' middle son in her
household, and that he could be upset with her
because she did not take him to baseball practices

11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

and games, and then she did not take him to soccer
practices and games.

17. Mother subsequently testified that after the
parties' middle son was allowed to change soccer
teams, then there was a big switch in the family
dynamic for the boys and things were better in her
household.

18. Mother also testified that she wanted to relocate
to California to be close to her family and friends
and for financial reasons.

19. There is no substantial and material change in
circumstances that supports Mother relocating the
parties' 3 sons to California.

20. Mother testified about general protective factors
related to all 3 sons if she was allowed to
relocate them to California. Father testified
about specific risk factors related to each of the
parties' 3 sons if Mother was allowed to relocate
them to California. Mother acknowledged on direct
examination that she thinks it is going to be hard
for the boys to adjust to living in California.
Mother did not refute Father's testimony about
specific risk factors related to each of the
parties' 3 sons.

21. Father's testimony about the specific risks to each
of the parties' 3 sons' physical, emotional, and
educational needs if Mother was allowed to relocate
them to California outweighed Mother's testimony
about the general benefits for the parties' 3 sons
if she was allowed to relocate them to California.

Mother also argues that the Family Court "factually

erred" in denying her proposed relocation and awarding Father

joint physical custody. Specifically, Mother cites, inter alia,

portions of her trial testimony and Nicole Cummings's (Cummings)

second report and testimony and contends that such evidence

"contradict[s]" the Family Court's findings and conclusions.

Mother also argues that the Family Court erroneously relied on

Marvin Acklin's (Acklin) opinions to disregard Cummings's

testimony and second report because Acklin's testimony was

irrelevant and therefore inadmissible.

12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

One of the "touchstones of admissibility for expert

testimony under HRE 702" is relevance. State v. Vliet, 95

Hawai#i 94, 106, 19 P.3d 42, 54 (2001). In determining

relevancy, "a trial courts' function is akin to the relevancy

analysis adopted in applying HRE Rules 401 [] and 402[.]" Id.

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." See also CP v. JO, CAAP-

XX-XXXXXXX, 2017 WL 5899874, *4 (Haw. App. Nov. 30, 2017) (mem.

op.) ("[R]elevant evidence in a child custody hearing is evidence

that has a tendency to make the existence of facts regarding the

best interests of the child more or less probable."). Evidence

which is not relevant is not admissible. HRE Rule 402.

Mother contends that Acklin's testimony about

Cummings's reports is irrelevant because, while Cummings was a

"fact-finder/investigator," Acklin's review of Cummings's work

was premised on what was appropriate for a custody evaluator.

First of all, determinative fact-finding is the role of the

Family Court and, while HRS § 571-46.4 (2018) permits the Family

Court to require an investigation and report concerning facts

related to custody, the appointment of a child evaluator or a

fact-finding investigator does not bind the Family Court in its

decision-making, as discussed below. Thus, to the extent that

13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Mother's relevance argument is based on Cummings's appointment as

a "fact-finder," it is without merit.

Mother also argues that Acklin's testimony regarding

education and training for custody evaluators was irrelevant

because "[t]he law of the case is that the court-appointed expert

for custody is Ms. Cummings." However, the record indicates the

Family Court did not rely on Acklin's testimony as to general

qualifications for custody evaluators; specifically, the Family

Court's FOFs and COLs did not discuss whether Cummings was

qualified to conduct custody investigations or make custody

recommendations. Moreover, to the extent Mother contends that

the stipulated order appointing Cummings shields Cummings's

reports from scrutiny by another expert, such a contention runs

counter to case law granting family courts discretion in

considering custody recommendations. See In re Doe, 95 Hawai#i

183, 190, 20 P.3d 616, 623 (2001) (stating that the family court

has "much leeway" in its examination of reports concerning a

child's care, custody, and welfare, and if its determinations are

supported by the record, they must stand on appeal); MHL v. HJKL,

CAAP-XX-XXXXXXX, 2016 WL 806200, *3 (Haw. App. Mar. 1, 2016)

(SDO) (stating that the custody evaluator's "recommendation is

not binding on the family court, and is only considered part of

the evidence of the best interests of the Child"). In sum,

Mother's arguments that Acklin's testimony was irrelevant and

contrary to the law of the case lack merit.

14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Mother cites various portions of her testimony and

Cummings's second report and testimony to argue that the Family

Court clearly erred and abused its discretion in its

determinations regarding whether relocation was in the best

interests of the parties' children. However, there is

substantial evidence in the record to support the Family Court's

determinations regarding relocation and physical custody. As

noted, the FOFs regarding Mother's proposed relocation included

that: (1) Mother testified that she wanted to relocate because

"things were worse than ever in terms of conflict in her

household;" (2) Mother acknowledged that some of NW's behaviors

existed before the parties' separation and that NW could have a

negative attitude resulting from her not letting him do things,

including spending more time with Father; (3) Mother acknowledged

that she started having problems with TW and that he could be

upset with her because she did not take him to baseball practices

and games, and then did not take him to soccer practices and

games, and (4) Mother later testified that after TW changed

soccer teams, things had improved in her household. These

findings are supported in the record.

The Family Court also noted Mother's testimony that she

wanted to relocate to California to be close to her family and

friends and for financial reasons, and found that:

20. Mother testified about general protective factors
related to all 3 sons if she was allowed to
relocate them to California. Father testified
about specific risk factors related to each of the

15
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

parties' 3 sons if Mother was allowed to relocate
them to California. Mother acknowledged on direct
examination that she thinks it is going to be hard
for the boys to adjust to living in California.
Mother did not refute Father's testimony about
specific risk factors related to each of the
parties' 3 sons.

21. Father's testimony about the specific risks to each
of the parties' 3 sons' physical, emotional, and
educational needs if Mother was allowed to relocate
them to California outweighed Mother's testimony
about the general benefits for the parties' 3 sons
if she was allowed to relocate them to California.

Mother acknowledged that "of course I think it's going

to be hard" for Children to adjust to living in California, and

Father testified about the negative impacts that relocation could

have on each of the Children; Mother's closing arguments did not

address Father's testimony regarding such negative impacts, and

she does not contend on appeal that she refuted such testimony.

Moreover, finding that Father's testimony outweighed Mother's

testimony was "the province of" the Family Court as trier of

fact, and this court will not disturb it based on this record.

See Fisher, 111 Hawai#i at 46, 137 P.3d at 360 (citation

omitted). The Family Court's FOFs as to Mother's relocation

request thus do not appear clearly erroneous and its decision to

deny Mother's request to relocate the parties' children to

California was not an abuse of discretion.

The Family Court's FOFs regarding physical custody are

extensive (FOFs 35-76), they are supported by evidence in the

record or reasonable inferences therefrom, and are not clearly

erroneous. Based on the Family Court's factual findings and

credibility findings, we conclude that the Family Court did not

16
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

abuse its discretion in concluding it was in Children's best

interest to award joint physical custody of Children to Mother

and Father.

Mother argues that the Family Court erred in awarding

her $2,499 in child support because the Family Court did not

correctly calculate Father's income and improperly imputed income

to Mother. As discussed above in conjunction with Mother's

arguments concerning child support, there are insufficient

findings to support the Family Court's determination to apply the

third part of Section V.J.3. of the Guidelines to impute income

to JW. Thus, we must vacate the determination of child support

to the extent that it was based on such imputed income and remand

this case for further findings and conclusions concerning imputed

income and child support.

With respect to the calculation of child support,

Mother also argues that the Family Court erred in its

determination of Father's income. The Family Court found that

Father's monthly income "is $23,666 based upon 2017 tax

information plus $618 per month for use of his business vehicle

for a total of $24,284." Mother argues that the Family Court

should have found Father's gross monthly income to be "well over"

$30,000.

Father testified that his 2017 taxable income was

$284,000 ($284,000/12 months = $23,666) and Mother acknowledges

on appeal that Father's 2017 monthly gross income (not including

17
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the "business vehicle") was $23,666. Mother contends, however,

that "it would have been more correct" to use Father's 2018 year-

to-date compensation figures because Father "consistently

claimed" to use year-to-date averages "to create [his] court

financials, and because [Father] claimed he used 2018 numbers" in

his income and expense report admitted into evidence. Mother

states that Father's 2018 year-to-date figures "yielded $33,380

take home before taxes and medical," however, it is unclear as to

how she calculated that figure and she cites no authority

supporting her argument that the Family Court clearly erred or

abused its discretion in its calculation of Father's income. The

evidence in the record shows variable income and business

expenses for Father in 2016, 2017 and 2018, and we conclude that

it was not error or an abuse of discussion for the Family Court

to calculate Father's gross monthly income based on income

reported for the 2017 tax year, as opposed to year-to-date income

for 2018.

(3) Mother argues that the Family Court erred in

allocating the parties' home equity line of credit (HELOC) debt

equally between the parties and that the Family Court should have

instead charged Father with marital waste. "Waste of marital

assets is chargeable to a divorcing party when, during the time

of the divorce, a party's action or inaction caused a reduction

of the dollar value of the marital estate under such

circumstances that he or she equitably should be charged with

18
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

having received the dollar value of the reduction." Chen v.

Hoeflinger, 127 Hawai#i 346, 358, 279 P.3d 11, 23 (App. 2012)

(citation and quotation marks omitted).

Mother first argues that "the totality of the trial

evidence" established that Father used "many of the funds" from

the HELOC to pay his personal expenses, for which Mother received

no benefit, and that they were not used for the ordinary course

of business or for living expenses. The Family Court received

extensive, detailed testimony and other evidence from both

parties on this issue and entered numerous FOFs based on its

assessment of this evidence. Ultimately, the Family Court

accorded more weight to Father's evidence detailing his HELOC

expenditures, and the Family Court had discretion to do so. See

In re Doe, 95 Hawai#i at 190, 20 P.3d at 623 (noting that an

appellate court will not pass upon issues dependent upon the

credibility of witnesses and the weight of the evidence, as such

is the province of the trier of fact).

Mother submits that Father "repeatedly spent

exorbitantly on personal expenses, trips, a silent auction,

multiple meals out, a football pool, taking his girlfriend to a

hotel." But the evidence Mother cited pertaining to Father's

spending in 2017 (the year he took out the HELOC) concern:

(1) three guitars (beginner, acoustic and electric) for NW; (2) a

$407 Holiday Inn "staycation" with Children; (3) various meals

out and recreation with Children; and (4) a $180 football pool.

19
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Mother also cites two pages of Father's credit card statements;

at trial, Mother's counsel questioned Father about those pages to

establish that he spent a $331 Costco Rewards balance down to

$52. It appears that the Family Court did not abuse its

discretion by refusing to deem the foregoing as marital waste.

Finally, Mother appears to contend that Father's HELOC

expenditures for his own expenses constitute waste because they

did not benefit her. But "a reduction in the marital estate does

not, in and of itself, trigger the court's equitable power to

charge the spending party." H.K. v. R.L., No. 29370, 2010 WL

894810, *3 (Haw. App. Mar. 11, 2010) (SDO) (holding that family

court did not abuse its discretion in refusing to equitably

charge husband for a $92,546 down payment on a new house, $4,627

monthly mortgage payments, $22,000 in new furnishings, $30,947

for a new truck, and a $30,000 company debt payment, where wife

failed to demonstrate how such expenditures were fiscally

irresponsible or occurred "under such circumstances" as to

trigger the family court's equitable powers); see also Kakinami

v. Kakinami, No. 29340, 2011 WL 1836718, *2-3 (Haw. App. May 11,

2011) (SDO) (holding that family court did not err in finding

that wife spent certain funds for "ordinary and customary

household and living expenses" — including attorneys' fees,

expenses incident to purchasing and setting up a new home, and

vacations—and noting that while husband submitted testimony and

evidence "that could give rise to an inference of dissipation,"

20
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the family court was entitled to weigh conflicting evidence and

make credibility determinations).

Mother also contends that the Family Court erred (in,

inter alia, FOFs 118-132) in finding that Father's business

income was "not sufficient to cover the expenses for two separate

households, that he was justified in using the HELOC to move his

business [(his lease had expired)], and that he used the funds to

pay only the family's personal expenses." Upon review, although

there is conflicting evidence in the record, substantial evidence

supports FOFs 118-132, and as noted above, it is within the

Family Court's discretion to assess the weight of the evidence

presented. See, e.g., In re Doe, 95 Hawai#i at 197, 20 P.3d at

630 ("it is not the province of the appellate court to reassess

the credibility of the witnesses or the weight of the evidence,

as determined by the family court").

For these reasons, we conclude that the Family Court

did not err or abuse its discretion in allocating the HELOC debt

equally between the parties.

Also in conjunction with her third point of error, JW

contends that the Family Court erred in awarding LW Category 1

credit of $46,581 for pre-marriage monthly house payments for the

Ewa house. LW correctly notes that JW did not challenge LW's

pre-marital equity claims at trial. JW states that she preserved

this error for review in her closing statement and in her

proposed FOF/COL. However, JW's closing statement does not

21
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

discuss premarital claims. Although Mother's May 29, 2019

proposed FOF/COL states that Father "did not prove that his

monthly house payment statements on the [Ewa house] prior to

marriage contributed to any increase in value," the proposed

FOF/COL (submitted after the Family Court entered the March 7,

2019 Divorce Decree) does not "raise an argument at trial." See

State v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003)

("As a general rule, if a party does not raise an argument at

trial, that argument will be deemed to have been waived on

appeal; this rule applies in both criminal and civil cases.").

Accordingly, this argument is waived.

For these reasons, the Family Court's March 7, 2019

Divorce Decree is affirmed in part and vacated in part. The

determinations of spousal support and child support, as set forth

in the Divorce Decree, as well as the Family Court's November 29,

2018 Decision and Order and June 25, 2019 FOFs/COLs, are vacated

in part to the extent that those determinations are based in part

on imputation of income to JW in the amount of $1,751. This case

is remanded to the Family Court for further proceedings

consistent with this Summary Disposition Order.

DATED: Honolulu, Hawai#i, October 28, 2021.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Rebecca A. Copeland,
for Plaintiff-Appellant. /s/ Katherine G. Leonard
Associate Judge
Peter Van Name Esser,
for Defendant-Appellee. /s/ Clyde J. Wadsworth
Associate Judge

22