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Waldecker v. OScanlon

Supreme Court of Hawaii

June 17, 2016

ANASTASIA Y. WALDECKER, Petitioner/Petitioner-Appellant,
JOHN O'SCANLON, Respondent/Respondent-Appellee.


          Michael A. Glenn for petitioner.

          A. Debbie Jew for respondent.



          RECKTENWALD, C.J.

         This case arises from the 2010 divorce of Anastasia Waldecker and John O'Scanlon in Nevada. When they divorced, Waldecker and O'Scanlon had one minor child together (Daughter). In anticipation of the divorce, Waldecker and O'Scanlon entered into a Property Settlement Agreement that was incorporated into the Divorce Decree entered by a Nevada court. The Settlement Agreement provided that Waldecker and O’Scanlon would have joint physical custody of Daughter, but if either parent moved more than two hundred miles away from either O'ahu or San Francisco, then sole custody would automatically revert to the remaining parent.

         Following the divorce, Waldecker and O’Scanlon both moved to O'ahu. In early 2014, Waldecker filed a petition in the Family Court of the First Circuit to change the custody arrangement because she had remarried and was anticipating a move to Florida with her new husband. According to Waldecker, her anticipated relocation constituted a material change in circumstances that required the family court to examine whether the change in custody would be in Daughter's best interests. Waldecker also argued that O’Scanlon had become a bad parent, and that this also constituted a material change in circumstances.

         O’Scanlon argued that because the parties had agreed to the Settlement Agreement, which had been approved by the Nevada court and which provided for Daughter's custody in the event of a relocation, there was no material change in circumstances. He contended that the family court should therefore enforce the change of custody provision in the Divorce Decree without performing a "best interests of the child" analysis.

         The family court agreed with O’Scanlon and concluded that because the parties had contemplated a future relocation in the change of custody provision in the Divorce Decree, there was no material change in circumstances. The family court thus enforced the Divorce Decree and awarded sole physical custody of Daughter to O’Scanlon without explicitly finding that the change of custody was in Daughter's best interests. Waldecker appealed, and the Intermediate Court of Appeals (ICA) affirmed the family court's decision.

         We hold that the family court erred in failing to consider the best interests of the child. Accordingly, we vacate the ICA's judgment on appeal and the family court's order, and remand this case to the family court for further proceedings consistent with this opinion.

         I. Background

         A. The Divorce Decree

         Waldecker and O’Scanlon were divorced in Reno, Nevada, pursuant to the Nevada district court's May 13, 2010 Findings of Fact, Conclusions of Law, and Decree of Divorce (Divorce Decree), which incorporated the parties' Settlement Agreement. Waldecker subsequently filed the Divorce Decree in the State of Hawai'i on January 22, 2014.

         According to the Divorce Decree, Waldecker and O’Scanlon were married on or about October 4, 2003, and physically separated on October 7, 2009. The parties have one minor child, Daughter, who was born on August 17, 2005. At the time of the divorce, O’Scanlon, Waldecker, and Daughter were residents of Nevada.

         The Settlement Agreement explicitly awarded joint legal and joint physical custody of Daughter to both parties. Relevant to the instant proceedings, the Settlement Agreement contained the following provisions:

4. Husband and Wife shall have the joint legal and physical care, custody and control of [Daughter]. Shared custody and visitation shall be on a week-on/week-off basis, commencing May 15, 2010. No provision is made for visitation during holidays or school breaks such that the week-on/week-off cycle will continue except to the extent that the parties agree otherwise.
5. Nevada shall retain exclusive continuing jurisdiction over issues of child custody, visitation, support and related matters. It is contemplated that both Husband, Wife and the minor child will initially be residing on the island of Oahu, Hawaii. If in the future either party relocates to a residence beyond a 200-mile radius of Oahu or San Francisco, modification of custody shall automatically occur then changing to the other party remaining having primary physical custody of said minor child, at the option of the remaining party.
6. Husband shall pay child support to Wife in the amount of $500.00 per month, commencing upon the entry of a Decree of Divorce. This provision for child support satisfies the statutory formula. Health care expenses which are not reimbursed by insurance will be equally divided. Husband shall be entitled to the exemption annually for income tax purposes. Any applicable Social Security benefits based upon the age of Husband and/or said minor child will revert to Husband upon the entry of a Decree of Divorce. Husband shall pay for the school said minor child will attend, and will be entitled to choose the school and its location. In the event that Husband dies or becomes mentally or physically incompetent, the responsibility regarding choice of school shall be assigned to Husband's adult children.

(Emphasis added).

         The Nevada Divorce Decree specifically found that "Plaintiff and Defendant executed a Property Settlement Agreement on May 13, 2010, which is fair and equitable, and should be ratified, approved and incorporated into the Decree of Divorce[, ]" but did not include any findings regarding Daughter's best interests.

         In 2010, Waldecker relocated to O'ahu with Daughter, and O’Scanlon followed shortly thereafter. They resided on O'ahu from the initial move through the 2014 change of custody hearing in the present action.

         B. 2014 Motions Regarding Custody

         Waldecker filed a Motion to Change Custody, Visitation, and Child Support in the family court on February 4, 2014, and attached a declaration she made on January 2, 2014.

         In her declaration, Waldecker alleged several grounds by which the family court could find that there had been a material change in circumstances since the Divorce Decree: (1) Waldecker remarried, (2) Waldecker was pregnant with another child from her new husband and was expecting to give birth at the end of March, (3) Waldecker's husband is active-duty military and was scheduled to change duty stations to the mainland, and (4) O’Scanlon had become an unfit parent for a number of reasons.

         On March 10, 2014, O’Scanlon filed a motion to enforce the custody and education provisions of the original decree and attached an affidavit in opposition to Waldecker's motion.

         In his affidavit, O’Scanlon addressed several of the facts alleged in Waldecker's declaration. O’Scanlon acknowledged Waldecker's marriage to an active-duty military husband, as well as her anticipated relocation to the mainland. O’Scanlon also claimed to be "an experienced father of three sons" who can provide Daughter "with a stable and wholesome life."

         In addition, O’Scanlon alleged that in 2009, after he filed for divorce in Nevada, Waldecker took Daughter and moved in with a mutual friend and "avoided making arrangements for [O’Scanlon] to have timesharing with [Daughter]." O’Scanlon stated that after approximately two months, Waldecker left to live in Reno without notifying him, during which time O’Scanlon had no contact with Daughter for a few weeks. Waldecker subsequently informed O’Scanlon she had moved to Hawai'i with Daughter and her then-boyfriend. According to O’Scanlon, at some point thereafter, Waldecker's then-boyfriend allegedly became abusive, and O’Scanlon offered Waldecker money and a vehicle if she promised to never take Daughter away from O’Scanlon again. According to O’Scanlon, Waldecker agreed to abide by the relocation and school provisions in the Divorce Decree in exchange for O’Scanlon's financial help.

         C. Family Court Hearing

         The Family Court of the First Circuit held a hearing on both motions on March 19, 2014.[1] Waldecker agreed with the family court that to change custody, the court must make a finding that there had been a material change in circumstances since the Divorce Decree issued.[2]

         At the hearing, Waldecker's counsel mixed legal arguments with assertions regarding what Waldecker would testify to, and asserted that she would testify regarding the same four grounds for finding a material change that she alleged in her declaration. Waldecker did respond to some questions from her counsel and from the court, although not under oath.[3]

         When the court asked Waldecker specifically about the relocation-custody provision in the Divorce Decree, her counsel replied that she "would argue that she never agreed to that. She was forced--." The court then inquired how the provision got into the Divorce Decree. Her counsel replied that "[i]t was put in there by Mr. O’Scanlon's counsel. And Mrs. Waldecker, it seems that she had no choice but to sign it in exchange for assistance and--financial assistance." Her counsel continued, "[s]he felt like she was being bribed and had to."

         Waldecker also argued that the main reason she was seeking a change of custody was "O’Scanlon's bad parenting skills and mistreatment of their daughter." In support, Waldecker offered a letter she allegedly wrote to O’Scanlon about his bad parenting. However, after O’Scanlon's counsel objected to the letter on hearsay grounds, and Waldecker acknowledged that she had never sent the letter to O’Scanlon, Waldecker's counsel agreed that Waldecker would not attempt to enter the letter into evidence.

         With regard to O’Scanlon's motion to enforce the Divorce Decree and thereby change custody, Waldecker argued that Hawai'i Revised Statutes (HRS) § 571-46 (2014) requires that any change in custody requires a finding by the family court that it is in the best interests of the child. When challenged by the court, Waldecker argued:

[WALDECKER'S COUNSEL]: [N]o matter what the decree says as far as if she relocates, custody must go to father, that that's not how things are done in Hawaii, that the [sic] 571-46 makes it clear that post-divorce change of custody are based on best interest of the child alone, not--
THE COURT: No, that's not-that's not what 571-46 says.
[WALDECKER'S COUNSEL]: 46 says-says that. It says based solely on the best interest, 571-46.
THE COURT: That a post-decree change in custody is--
THE COURT: --based solely on the best--
THE COURT: It's not-so you're saying that the court would not need to find a material change in circumstances?
[WALDECKER'S COUNSEL]: Right. After that. But what I'm trying to say here is a divorce decree is much like a pre-marital agreement. You can't say this will automatically change custody because before that has to happen the judge has to find that that change has to be in the best interest of the child. So even if the divorce says she gets custody, it won't happen unless you find that that's best. So that's what controls, not the divorce.

         O’Scanlon argued that the holding from Nadeau v. Nadeau, 10 Haw.App. 111, 861 P.2d 754 (1993), should control because the Divorce Decree specifically provided for the event of a relocation similar to Nadeau. O’Scanlon stressed that Waldecker knowingly and with the advice of counsel entered into the Settlement Agreement:

[The custody provision] was bargained [sic]. She did not have to accept financial help. She could have gotten financial help from someone else. She signed the divorce decree, the property settlement agreement. Not only did she sign it. She had the assistance of legal counsel at the time that she entered into that agreement. Both parties had the ...

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