TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0000895; FC-D
Charles H. Brower for petitioner
Richard J. Diehl for respondent
RECTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
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").
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") 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.
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).
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 §
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
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.
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
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.
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
Post-decree Motion to Modify Custody Arrangement
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.
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.
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.
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
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.
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.
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 ...