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Herrmann v. Herrmann

Supreme Court of Hawaii

June 28, 2016

KARYN EILEEN HERRMANN, Petitioner/Plaintiff-Appellee,
v.
KENNETH ROSS HERRMANN, Respondent/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000060; FC-D NO. 95-0-0475)

          Francis T. O’Brien for petitioner

          Charles T. Kleintop and Dyan M. Medeiros for respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.

          OPINION

          POLLACK, J.

         I. Introduction

         This case involves child support and education expenses for the two children of Karyn Eileen Herrmann (Wife) and Kenneth Ross Herrmann (Husband): Son, born July 1, 1987, and Daughter, born June 16, 1991. The dispute revolves around the correct interpretation of the divorce decree and a subsequent amendment to that decree, which govern Husband's child support obligations to Son and Daughter. The issue presented is whether Husband overpaid child support per the terms of the divorce decree and the amendment and, if so, whether Husband should be allowed recovery of his overpayments.

         II. Background

         A. 1998 Divorce Decree

         On February 11, 1998, Husband and Wife were divorced by decree in the family court. The terms of the February 11, 1998 divorce decree (1998 Decree) included custody arrangements for Son and Daughter and terms of child support obligations for each child. Specifically, pursuant to Paragraph 4 of the 1998 Decree, the parties were each awarded joint legal custody and shared physical custody of Son and Daughter.[1]

         The 1998 Decree, in Paragraph 5, provided that Husband was to pay child support payments to Wife in the amount of $1, 600 per month for each child and that payments for each child were to continue until the child "attains the age of 18 years or graduates from or discontinues high school, whichever occurs last." The Decree further stated that "[t]he issue of child support thereafter, if any, including the amount, duration, manner of payment, payor, and payee, shall be reserved for future agreement by the parties or future determination by the Court, if necessary." Pursuant to Paragraph 5, Husband was to make his child support payments through the Child Support Enforcement Agency (CSEA).

         B. Husband's Motion for Post-Decree Relief

         Husband filed a Motion and Affidavit for Post-Decree Relief (2003 Motion) seeking sole custody of Son. Thereafter, Wife made a settlement offer in an effort to resolve Husband's 2003 Motion. Wife's settlement offer proposed that, inter alia, Husband would have sole custody of Son beginning with Son's upcoming school break and that child support would then be recalculated. Husband subsequently accepted Wife's settlement offer, but Husband indicated that he wanted to "work together to draft a revision" of the terms. Wife filed a notice of acceptance of the settlement offer on December 1, 2003, and Son began living with Husband on December 18, 2003.

         Although Husband and Wife initially agreed on proposed substantive changes to the 1998 Decree, the family court returned the proposed amendments to the parties because the amendments were incomplete.[2] The parties were unable to reach agreement to incorporate the family court's required changes. Wife then filed a motion to compel compliance with the accepted settlement offer, which the family court granted.[3] The family court's order granting Wife's motion to compel (August 2004 Order) also stated that "child support shall be modified effective September 5, 2004, " and instructed Wife to submit a proposed order.

         On September 1, 2004, the amendment to the 1998 Decree was approved and filed by the family court (September 2004 Amendment). The September 2004 Amendment reflected that Son was now living with Husband and, thus, modified the amount of Husband's child support obligation set forth in Paragraph 5 of the 1998 Decree. Specifically, under the September 2004 Amendment, Paragraph 5 of the 1998 Decree was "withdrawn" and a new Paragraph 5 was "substituted, " which, in pertinent part, stated the following:

5. [Husband] shall pay to [Wife] as and for the support and maintenance of [Daughter] the sum of [$2, 630] per month commencing on the fifth day of September, 2004. . . . [Wife] shall pay to [Husband] as and for the support and maintenance of [Son] the sum of [$50] per month commencing on the fifth day of January 2004. . . .
Child support for each child shall continue until he or she attains the age of 18 years or graduates from or discontinues high school, whichever occurs last. The issue of child support thereafter, if any, including the amount[, ] duration, manner or payment, payor, and payee, shall be reserved for future agreement by the parties or future determination by the Court, if necessary.

         On November 1, 2004, Husband received a letter from CSEA advising him that he had overpaid child support payments to Wife in the amount of $14, 040 and that "[a]ny issues concerning the recovery of the above over payments should be handled between the custodial and non-custodial parents."[4] Thereafter, according to Husband, he verbally asked Wife on numerous occasions to reimburse him for the overpayments, but he did not file an action with the family court. Wife did not repay Husband's claimed overpayment, believing that she did not owe Husband any money.

         Four years later, in anticipation of Daughter's high school graduation, Wife filed a Motion and Affidavit for Post-Decree Relief asking the family court for an order requiring Husband to pay Daughter's college expenses. Husband stipulated to pay "all costs and fees for [Daughter] to attend [college] including tuition, books and student supplies, room and board and a reasonable allowance for clothing and student activities and/or additional fees" as long as Daughter was a fulltime student in good standing. The family court issued an order that reflected Husband's agreement to pay Daughter's college expenses.

         On June 16, 2009, Daughter attained the age of eighteen years old, and in September 2009, Daughter moved to Washington State to attend college. CSEA continued to assign Husband's wages in the amount of $2, 630 a month for child support for Daughter. Husband contacted CSEA starting in September 2009 to request that the child support payments for Daughter be terminated pursuant to the 1998 Decree and September 2004 Amendment, but Husband's efforts to terminate payments were unsuccessful.

         C. Husband's April 2011 Motion

         Unable to resolve his dispute with CSEA over Daughter's child support payments, Husband filed a Motion and Affidavit for Post-Decree Relief (April 2011 Motion) in which he asked the family court to (1) retroactively terminate his child support obligation for Daughter to September 2010, when Daughter moved to Washington to begin college, and require Wife to reimburse him for the amount that he paid in child support for Daughter from September 2009 to the date the court terminates child support and (2) require Wife to reimburse him for the $14, 040 he overpaid in child support for Son.

         Wife filed an opposing memorandum responding to Husband's contentions that he was entitled to relief. Wife argued that Husband did not overpay child support for Son because the August 2004 Order became effective on September 5, 2004, and it did not apply retroactively. Wife alternatively argued that under the Hawai'i Family Court Rules (HFCR) Rule 60(b) (2006), any reasonable time for Husband to seek relief had long passed as almost 7 years had passed since these overpayments were made.[5] Wife contended that Husband's April 2011 Motion included no explanation of why he waited to bring his action for reimbursement of overpaid child support.

         Next, in regards to Daughter's support, Wife argued that the family court should not retroactively order reimbursement of support paid prior to the April 2011 Motion. Wife maintained that the 1998 Decree and the September 2004 Amendment reserved the issue of Daughter's child support payments beyond her eighteenth birthday, and Wife argued that it was appropriate for Husband to continue to pay child support for Daughter because Wife had been providing support for Daughter while she attended college. In addition, Wife argued that granting Husband's requested relief would be a "horrendous financial problem" for her. Finally, Wife maintained that, pursuant to HRS § 580-47(a) (2007), the family "court has the ability to provide for the payment of child support for a child who is continuing his/her education even if the matter is raised subsequent to the time when the child becomes an adult." In conclusion, Wife argued that there was no legal basis for Husband's motion and that the child support payments were both reasonable and justified. Accordingly, Wife asked the family court to deny Husband's April 2011 Motion.

         In his reply, Husband first responded to the overpayment of child support for Son, arguing that despite the language in the family court's August 2004 Order stating that child support was modified effective September 2004, the subsequent September 2004 Amendment mandated a different result. Specifically, Husband argued that the September 2004 Amendment replaced provisions of the 1998 Decree and required Wife to commence paying child support for Son in January 2004, not September 2004. Husband contended that this modification was consistent with the fact that Son had starting living with Husband in December 2003. Husband argued that the September 2004 Amendment, which was approved by the court and made an order of the court, superseded any contrary statement in the family court's August 2004 Order. Accordingly, Husband argued that the CSEA correctly determined that there had been an overpayment of child support based on the September 2004 Amendment in the amount of $14, 040.

         Next, Husband argued that under the terms of the 1998 Decree and September 2004 Amendment, his child support obligation to Daughter ended after June 2009 when she "attained the age of 18 years (and had already graduated from high school)." Husband argued that because there was no agreement by the parties or a determination by the Court that child support would continue, child support payments incorrectly were assigned to Wife by CSEA. Consequently, Husband argued that Wife should be ordered to pay back Husband's overpayment of child support for Daughter from September 2009, when Daughter moved to college, to the time of the order terminating Husband's child support obligation.

         Finally, Husband argued that he should not be required to continue to pay child support for Daughter. Husband asserted that because he was paying all of Daughter's college education expenses and because Daughter was not living with Wife in Honolulu, there was no basis for Wife to continue receiving $2, 630.00 a month in child support. Accordingly, Husband asked the family court to terminate his child support obligation for Daughter retroactively to September 2009, when Daughter moved from Wife's home to attend college.

         At the hearing on Husband's April 2011 Motion, Husband and Wife each adopted as their direct testimony offers of proof made by their respective attorneys, after which each was cross-examined by opposing counsel.[6] Husband explained that he had been paying all of Daughter's college, living, and healthcare expenses since she left for college in September 2009 and that Daughter had never asked him for more monies or claimed that she did not have sufficient funds for all of her living expenses. Husband additionally testified that although Son had begun living with him in December 2003 and that the parties had agreed that child support for Son would stop as of January 2004, he continued to pay child support for Son through August 2004. Thus, Husband testified that he overpaid child support for Son for nine months.

         Wife testified that Husband's child support obligation for Son was to continue through September 5, 2004, and that she did not believe she owed Husband any amount of reimbursement. Wife stated that she spends more in support of Daughter than she receives from Husband on a monthly basis, including transportation and keeping the home for Daughter, and that such funds are necessary in order to maintain her relationship with Daughter. Wife further explained that she had been experiencing physical challenges impeding her ability to work, she was receiving unemployment compensation because she had not been employed full time, her net income was low, and the variance between her financial situation and that of Husband's made it inequitable for her to be required to repay Husband's alleged child support overpayments. Finally, Wife testified that Husband's attempt to try and recoup this alleged amount was not timely or appropriate.

         D. Decision and Order of the Family Court

         After the hearing on the April 2011 Motion, the family court issued its "Decision Re: Hearing on Order to Show Cause Filed 04/13/2011" (Decision) and "Order Denying Defendant's Motion and Affidavit for Post-Decree Relief Filed 04-13-2011" (Order). The family court, in ruling against Husband, declined to reimburse Husband for claimed child support overpayments and determined that Daughter's child support payments were to continue. In its subsequently issued Findings of Fact and Conclusions of Law, the family court found that the overpayment of child support for Son was "a result of the delay in the entry of the [September 2004 Amendment] caused by disagreements between the parties as to the form and content of the document, " during which time the amount due under the 1998 Decree "continued to be garnished from [Husband's] income." The court noted that "Husband waited for approximately 7 years before raising the issue of his claimed overpayment of child support." Thus, the ...


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