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Tumaneng v. Tumaneng

Supreme Court of Hawaii

October 21, 2016

BRELIE GAIL BALON TUMANENG, Petitioner/Plaintiff-Appellant,
BRIXON ANDRES TUMANENG, Respondent/Defendant-Appellee.


          Charles H. Brower for petitioner

          Richard J. Diehl for respondent



          McKENNA, J.

         I. Introduction

         This case arises out of a custody dispute regarding physical custody of B.C.B.T., born in 2006 ("Son"). Son's mother, Brelie Gail Balon Tumaneng ("Mother"), moved to modify custody terms contained in an uncontested decree filed in her divorce from Son's father, Brixon Andres Tumaneng ("Father").

         Mother alleges she should have been allowed to present evidence of Father's pre-decree domestic violence at the trial on her motion. Intermediate Court of Appeals ("ICA") precedent at the time required the Family Court of the First Circuit ("family court")[1] to find a material change in circumstances before it could reconsider the original custody order. A majority of the ICA ruled that Mother had failed to show how alleged pre-decree domestic violence related to the material change in circumstances the family court preliminarily found to exist. See Tumaneng v. Tumaneng, No. CAAP-14-0000895, at 2 (App. Oct. 26, 2015) (SDO). The ICA therefore ruled that the family court properly excluded evidence of alleged pre-decree domestic violence on relevance grounds because such evidence was not related to the material change in circumstances preliminarily found to exist by the family court, which was Father's relocation to Arizona and Mother's possible move away from Hawai'i with her new husband. Id.

         In Waldecker v. O'Scanlon, 137 Hawai'i 460, 375 P.3d 239 (2016), we recently overruled several ICA cases to the extent they suggested that a material change in circumstances is required before a court can consider the best interests of a child in modifying a custody order. See id. at 470, 375 P.3d at 249. We stated, "Rather than [a] two-step analysis, there is a single inquiry which focuses on the best interests of the child." Id. We held that the requirement of a material change in circumstances is inconsistent with HRS § 571-46 (2014). See id. We also noted that "jurisprudential concerns regarding repetitive motions cannot be addressed in a manner that conflicts with the requirements of HRS 571-46 that 'custody should be awarded . . . according to the best interests of the child' and 'any custody award shall be subject to modification or change whenever the best interests of the child require or justify the modification or change.'" Id. (citing HRS § 571- 46(a)(1), (6)) (emphasis in original).

         In addition, as pointed out by Judge Ginoza in her dissent from the ICA majority in this case, HRS § 571-46(a)(9) provides that in child custody proceedings, "a determination by the court that family violence has been committed by a parent raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in . . . custody . . . with the perpetrator of family violence." See Tumaneng, SDO Dissent at 7 (Ginoza, J., dissenting) (discussing HRS § 571-46(a)(9)).

         We therefore hold that the family court erred by excluding evidence of alleged pre-decree domestic violence in making its custody determination. Accordingly, we remand this case to the family court for further proceedings consistent with this opinion.

         II. Background

         A. Factual Background

         Son was born in 2006. At the time of his birth, both Mother and Father had not finished high school. Son lived with Mother and her parents; Father visited after school. Mother and Father married on August 19, 2008, but Father still did not live with Mother and Son. Father enlisted in the Air Force in early 2010. When Father was stationed in Japan later that year, Mother and Son joined him. In 2012, Father remained in Japan and Mother and Son returned to Hawai'i from Japan.

         After returning to Hawai'i, Mother filed for divorce on December 13, 2012, and asked that physical custody of Son be awarded solely to her. In his answer, Father indicated that he and Mother had agreed that she would have temporary physical custody of Son, but that he intended to take physical custody of Son should he be stationed in the United States. He stated that he sought physical custody due to Mother's alleged marital infidelity, stating that he would be providing a witness statement regarding this allegation.

         About three weeks later, on January 3, 2013, Mother signed Father's proposed uncontested divorce decree, which was later approved by the family court and filed on April 4, 2013 ("Decree"). The Decree provided that physical custody of Son would be temporarily awarded to Mother until September 2013 then permanently to Husband after September 2013. Details regarding time sharing were reflected in a Proposed Parenting Plan ("Plan") also prepared by Father and signed by both parents. The Plan stated that physical custody of Son should be awarded to Father after his relocation to the U.S. and that Mother should have visitation every other weekend from Friday at 2:00 p.m., to Sunday at 6:00 p.m. Further, the Plan provided that time with Son during vacations and school breaks would be split in half between Mother and Father, and that each parent would have half the day on Son's birthdays. The "out-of-state visitation" space was left blank.

         Two months after the April 4, 2013 Decree, Mother remarried a servicemember who was scheduled to be re-stationed in Germany, although it was unclear whether she also intended to leave Hawai'i.

         B. Post-decree Motion to Modify Custody Arrangement

         On August 7, 2013, four months after the Decree, the family court received Mother's pro se Motion and Declaration for Post-Decree Relief ("Motion"). Mother requested a change to give her physical custody of Son, alleging that circumstances had changed (as required by the form) because Father planned to move Son out of O'ahu to Arizona in October 2013. She asserted that he was a single father and that she had visitation rights.

         Mother also requested an expedited hearing, but this request was denied on August 22, 2013. On October 9, 2013, Father responded pro se to Mother's Motion through a letter dated October 7, 2013. The letter alleged that Mother had been aware of the relocation and requested that custody arrangement in the Decree not be changed. Father also filed a "Proposed Parenting Plan (After Relocation), " suggesting changes to Mother's visitation schedule.

         On October 15, 2013, Mother filed a pro se ex parte motion to prevent Father from relocating Son. Mother noted that the original Decree did not state that Son would be relocated. She asserted that she had agreed to full custody to Husband because she had been "afraid and confused." She indicated she was trying to regain full custody of Son. She noted that the Decree had provided her with regular time sharing, but that Father had said he would be relocating with Son to Arizona on October 21, 2013. The family court ordered that Son not be removed from the state until Mother's Motion was decided.

         Mother then retained counsel, and filed a declaration on October 22, 2013, stating in part:

5. [Father] for a long time had only part time jobs, but in March of 2010 he joined the military. In September of 2010 he was stationed in Japan. In October of 2010, [Son] and I went to Japan to join him.
6. While we were in Japan, I was always the one who took care of [Son]. [Father] never bathed him or fed him or put him to bed.
7. It was very difficult for us in Japan, as [Father] would often hit me and I would have to leave the house, quickly so I would not be hurt further, and if I had time I always tried to take . . . [Son] with me so he would be safe, but sometimes I was forced to leave him behind, I was so scared.
8. I spoke to my mother and she told me to come home, since there was no reason for me to stay there and let him hit me all the time.
9. [Son] and I returned to Hawaii in September of 2012 and moved back in with my mother.

         The affidavit contained additional information regarding pre-decree circumstances, such as Son's living arrangements from birth, and also included an allegation that Father had forced her to sign his version of the Decree by telling her she would never see Son again if he told the judge about her alleged infidelity.

         Mother, with counsel, appeared at a November 6, 2013 hearing before the family court to determine whether a material change of circumstances existed that would allow modification of the custody arrangement contained in the Decree. Father appeared pro se by telephone. Mother testified that she had signed the Decree requiring her to hand over physical custody of Son because she felt threatened by Father's answer indicating he would take Son away from her forever. Father indicated that although he had hoped for a new duty station in Hawai'i, there had been no guarantee it would happen. Upon hearing testimony from both Mother and Father, the court preliminarily found a material change in circumstances, i.e., Father's relocation to Arizona as well as ...

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