ANASTASIA Y. WALDECKER, Petitioner/Petitioner-Appellant,
JOHN O'SCANLON, Respondent/Respondent-Appellee.
TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0000780; UCCJEA
Michael A. Glenn for petitioner
Debbie Jew for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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.
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.
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"
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.
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.
The Divorce Decree
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.
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.
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
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
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 g to 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.
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.
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.
2014 Motions Regarding Custody
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.
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
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
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."
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.
Family Court Hearing
Family Court of the First Circuit held a hearing on both
motions on March 19, 2014. 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.
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.
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
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
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
[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–-
[WALDECKER'S COUNSEL]: Yes.
THE COURT: --based solely on the best-
[WALDECKER'S COUNSEL]: Yes.
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
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 ...