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PO v. JS

Intermediate Court of Appeals of Hawaii

June 15, 2016

PO, Petitioner-Appellee,
JS, Respondent-Appellant


          Steven L. Hartley, Elsa F.M. McGehee (Hartley & McGehee) for Respondent-Appellant.

          Steven J. Kim for Petitioner-Appellee.



          FOLEY, J.

         Respondent-Appellant JS appeals from the the (1) December 30, 2014 "Order Re: Trial" and (2) January 21, 2015 "Order Re: Child Support Arrears" both entered in the Family Court of the First Circuit[1] (family court).

         On appeal, JS contends the family court erred in:

(1) awarding Petitioner-Appellee PO sole legal custody "based primarily on testimony that [JS] did not want to communicate with [PO] except for emergencies and to facilitate visitation with the child";
(2) finding JS "ha[d] not demonstrated a material change in circumstances to warrant a change in the visitation/time-sharing schedule set forth in the ["Stipulated Order Re Paternity, Custody, Visitation, and Support" (March 2008 Stipulation)]";
(3) finding "even if [JS] demonstrated a material change in circumstances to warrant a change in the visitation/time-sharing schedule set forth in the March 2008 Stipulation, the current visitation schedule is reasonable and in the best interests of the child";
(4) "allowing [Rob B. Welch, PhD. (Dr. Welch)] to testify at trial as [JS] did not waive the child's psychologist-client privilege and Dr. Welch's testimony proved to be extremely biased in favor of [PO]";
(5) "finding and concluding that [JS] failed to meet his burden of proof to show that monthly child support warranted modification"; and
(6) finding "monthly child support in the amount of $3, 500.00 should have been paid effective February 1, 2011, thus concluding that [JS] owes [PO] $64, 490.00 in past due child support." (Emphasis omitted.)

         I. BACKGROUND

         JS and PO are the parents of JO (Child), born in October 2007. On March 19, 2008, JS and PO filed the March 2008 Stipulation in the family court, which provided:

3. LEGAL CUSTODY: Legal custody of the Child is awarded to [PO] and [JS] jointly. Legal custody includes, but is not limited to, decision making authority regarding major medical decisions, the decision as to where the Child should go to school, travel outside of the United States, and major financial decisions.
4. PHYSICAL CUSTODY: Physical custody of the Child is awarded to [PO] solely, subject to [JS's] right to timesharing as set out in this Order.
5. TIME-SHARING: [JS] shall have unlimited daytime visitation-'with the Child when he travels to Hawaii. [PO] shall make efforts to make Child available to spend time with [JS]. [JS] shall give [PO] two weeks notice of travel, dates and plans for visitation.
All visitation should be reasonable, as mutually agreed upon by both parties. Nothing in this agreement shall prohibit the parties from agreeing upon additional visits or extended time sharing.

         On July 21, 2010, JS and PO filed in the family court a "Stipulation Modifying March 19, 2008 Stipulated Order Re Paternity, Custody, Visitation, and Support" (July 2010 Stipulation). The July 2010 Stipulation increased child support payments to $8, 500 per month, provided for a college savings account for the Child's benefit to which JS agreed to deposit $2, 500 per month, and described plans for timesharing in June and July 2010.

         In February 2011, JS and PO agreed to reduce the child support payment to $3, 500 per month (February 2011 Agreement) because JS had become unemployed in October 2010. The parties did not file a written agreement with the family court reflecting the new agreement.

         Until July 2012, JS's visitations with the Child in Hawai'i and on the mainland were worked out cooperatively between JS and PO. In July 2012, the Child, who was four years old at the time, was visiting JS in Florida without the accompaniment of PO. Believing he had been left alone, the Child called the police because he was scared. JS did not call PO to inform her of the incident. A few months later, in November 2012, the Child was visiting Washington for JS's wedding, again without the company of PO. JS was arrested two days before his wedding, but was not charged. JS did not call PO to inform her of his arrest.

         In December 2012, JS began making child support payments in the amount of $1, 500 per month. JS attributed the reduced payments to the depletion of his savings due to his wedding expenses and payment of his debts.

         On August 19, 2013, JS filed a "Motion for Relief after Judgment or Order and Declaration" requesting a recalculation of child support and modification of the visitation/time-sharing schedule. On September 18, 2013, PO filed a "Motion to Award f [PO] Sole Legal Custody, Enforce [July 2010 Stipulation], and for Attorney's Fees."

         The family court held a trial on the parties' motions on June 16, 17, 25, September 8, 9, and 16, 2014. At trial, both parties testified about the acrimonious nature of their relationship that had emerged over the two years prior to trial. JS testified that he did not want an on-going relationship with PO and that he wanted no communication from her except for email contact regarding emergencies or notices of visitation.

         On December 30, . 2014, the family court entered the "Order Re: Trial" awarding PO with sole legal custody, enforcing the March 2008 Stipulation with regard to school expenses and time-sharing, and determining JS's child support obligation to be $3, 500 per month. The family court entered the "Order Re: Child Support Arrears" on January 21, 2015, determining that JS owed PO for child support arrears through January 2015 in the amount of $64, 490. JS filed his notice of appeal on January 28, 2015. The family court entered its "Supplemental Record on Appeal Findings of Fact and Conclusions of Law" on August 18, 2015. (Brackets omitted.)


         A. Family Court Decisions

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. Thus, we will not disturb the family court's decision on appeal unless the family court disregarded rules or principles of law or practice to the substantial detriment of a party litigant and its decision clearly exceeded the bounds of reason.

Kakinami v. Kakinami, 127 Hawai'i 126, 136, 276 P.3d 695, 705 (2012) (quoting Fisher v. Fisher, 111 Hawai'i 41, 46, 137 P.3d 355, 360 (2006)).

         B. Findings of Fact and Conclusions of Law

The family court's [findings of fact (FOF)] are reviewed on appeal under the "clearly erroneous" standard. A FOF is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made. "Substantial evidence" is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.

Kakinami, 127 Hawai'i at 136, 276 P.3d at 705 (quoting Fisher, 111 Hawai'i at 46, 137 P.3d at 360).

         A family court's conclusions of law (COL) are reviewed de novo. Baloah v. Balogh, 134 Hawai'i 29, 38, 332 P.3d 631, 640 (2014).

         C. Evidentiary Rulings

         "We apply two different standards of review in addressing evidentiary issues. Evidentiary rulings are reviewed for abuse of discretion, unless application of the rule admits of only one correct result, in which case review is under the right/wrong standard." Inoue v. Inoue, 118 Hawai'i 86, 93, 185 P.3d 834, 841 (App. 2008) (quoting State v. Ortiz, 91 Hawai'i 181, 189, 981 P.2d 1127, 1135 (1999)).

         D. Material Change in Circumstances

         "Whether a substantial and material change has been presented is reviewed under the right/wrong standard." Hollaway v. Hollaway, 133 Hawai'i 415, 421, 329 P.3d 320, 326 (App. 2014) (citing Davis v. Davis, 3 Haw.App. 501, 506, 653 P.2d 1167, 1171 (1982)) .


         A. Psychologist-Client Privilege

         JS argues that the testimony provided by the Child's therapist, Dr. Welch, was admitted in violation of the psychologist-patient privilege. JS contends that under Hawaii Rules of Evidence (HRE) Rule 504.1(b) (Supp. 2015), a child and both parents are authorized to claim the psychologist-patient privilege, and the circuit court erred in allowing Dr. Welch's testimony over JS's objection.

         HRE Rule 504.1 provides in relevant part:

Rule 504.1 Psychologist-client privilege.
(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the client's mental or emotional condition, including substance addiction or abuse, among the client, the client's psychologist, and persons who are participating in the diagnosis or treatment under the direction of the psychologist, including members of the client's family.
(d) Exceptions.
(3) Condition an element of claim or defense. There is no privilege under this rule as to a communication relevant to the physical, mental, or emotional condition of the client in any proceeding in which the client relies upon the condition as an element of the client's claim or defense or, after the client's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.

         JS objected at trial to Dr. Welch's testimony regarding the discussions he had with the Child at the Child's therapy sessions under the psychologist-patient privilege. The family court overruled the objection, presumably based on PO's position that Dr. Welch's testimony regarding how JS's inconsistent contact with the Child had affected the Child was "central to the paramount issue" and therefore subject to the HRE Rule 504.1(d)(3) exception. JS relies on Sussman v. Sussman, 112 Hawai'i 437, 146 P.3d 597 (App. 2006) to argue that "seeking custody of one's children is not tantamount to relying on one's mental or emotional condition as an element o[f] a claim or defense, and accordingly, does not trigger the rule 504.1(d)(3) exception."

         In response to JS's argument, PO cites Hollaway, in which this court held, "where joint custodial parents are deadlocked regarding an important decision implicating their child's future or7welfare, such an impasse qualifies as a material change in circumstances sufficient to warrant the [family court's] consideration of a change in the custody order's terms with respect to the deadlocked matter." Holloway, 133 Hawai'i at 422, 329 P.3d at 327. Specifically, PO points to this court's statement, "There is ... no infringement on [constitutionally protected liberty interests in the right of parents to direct the upbringing of their children] when a court, properly interposed between two parents, each equally vested with such rights, resolves an impasse between them regarding the exercise of those rights." Id. at 423, 329 P.3d at 328. Hollaway, however, does not guide our decision. Hollaway involved the fundamental right of a parent to determine the school their child would attend . Id.. at 416, 329 P.3d at 321. Here, we consider whether one parent can waive the statutory psychologist-patient privilege over the objection of another parent. Our focus is not on whether the family court may act as tie-breaker, but whether the child's mental and/or emotional condition is an element in determining child custody and child support under the HRE Rule 504.1(d)(3) exception.

         In cases involving a dispute as to the custody of a minor child, the court is required to evaluate the "best interests of the child." HRS § 571-46(a) (Supp. 2015); see AC v. AC, 134 Hawai'i 221, 230, 339 P.3d 719, 728 (2014). PO offered Dr. Welch's testimony at trial as pertinent to "what would be better for the [Child]" and "how the ...

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