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P.O. v. J.S.

Supreme Court of Hawaii

April 6, 2017

P.O., Respondent/Petitioner-Appellee,
J.S., Petitioner/Respondent-Appellant.


          Steven L. Hartley, Elsa F. M. McGehee, and Elena L. Bryant for petitioner

          Steven J. Kim, Courtney N. Naso, and Candra S. Rivers for respondent



          POLLACK, J.

         This case addresses the manner in which the family court determined monthly child support for the Child of Petitioner JS (Father) and Respondent PO (Mother). Following a series of written and oral agreements between Mother and Father regarding child support, Father sought court review and modification of his monthly support obligation. The family court, citing in part Father's failure to show a material change in circumstances, denied the request and set Father's monthly payment at the same amount provided in the parties' prior oral agreement. Father appealed the child support ruling, which the ICA affirmed. On certiorari to this court, Father contends that he is entitled to review of his child support obligation irrespective of changed circumstances and that the family court erred in determining his monthly payment without utilizing the Hawai'i Child Support Guidelines.

         We hold that, pursuant to Hawaii Revised Statutes § 576D-7(e) (2006), a responsible or custodial parent for which support has previously been ordered is entitled to a review of a child support order not more than once every three years without having to show a change in circumstances. We also hold that the family court is required by multiple provisions of the Hawaii Revised Statutes to use the Hawai'i Child Support Guidelines when it reviews the merits of a request for adjustment of a monthly support obligation. Thus, we vacate in part the rulings of the family court and the ICA and remand the case so that the family court may calculate Father's support payment in accordance with these statutory requirements.

          I. BACKGROUND

         Child was born to Mother and Father in October 2007. At the time Child was born, Father was employed as a professional football player.

         On February 14, 2008, Mother filed a petition for paternity with the Family Court of the First Circuit (family court). The petition included a Hawai'i Child Support Guidelines Worksheet (Guidelines Worksheet) that included Father's income, Mother's income, monthly child care expenses, and health and dental care expenses for Child. The Guidelines Worksheet was prepared by Mother's attorney, signed by both Mother and Father, and stated that Father's payable child support obligation was calculated at $4, 870 per month.

         Following submission of the petition, Father and Mother, with the assistance of Mother's attorney, entered into a stipulated agreement regarding custody, visitation, and child support.[1] On March 19, 2008, Father and Mother memorialized their agreement by filing a stipulation with the family court (2008 Stipulation). In the 2008 Stipulation, the parties agreed that Father would pay Mother $4, 870 per month in child support starting March 1, 2008. The 2008 Stipulation did not include a Guidelines Worksheet.

         On January 20, 2010, Mother filed with the family court a Motion and Declaration to Modify Child Support. The motion included a Guidelines Worksheet that reflected the incomes of both Mother and Father. The Guidelines Worksheet was signed by Mother and calculated Father's monthly child support obligation at $16, 050. Father's signature does not appear on the Guidelines Worksheet.

         On July 21, 2010, Father and Mother amended their child support agreement by filing a stipulation to modify the 2008 Stipulation (2010 Stipulation). In the 2010 Stipulation, Father agreed to pay Mother $8, 500 per month in child support and deposit $2, 500 per month into a savings account for Child, effective June 2010. A Guidelines Worksheet was also not included with the 2010 Stipulation.

         In October 2010, Father was released from employment as a professional football player. By oral agreement in February 2011 (2011 Agreement), Mother and Father reduced Father's monthly child support obligation to $3, 500 in light of Father's loss of employment. No written agreement was filed with the family court memorializing the reduction in Father's child support payment.

          In November 2012, Father married his current spouse. Father related that he depleted the savings accrued from his employment as a professional football player by the end of 2012. In explaining his depleted savings at trial, Father referred to an expenditure of $200, 000 for his wedding and payment of various other debts and expenses.

         According to Father, as his funds started to dwindle, he realized that he could not continue to pay the previously agreed-upon $3, 500 per month. Father testified that as a result, he initiated contact with Mother to reduce child support and the parties orally agreed to lower support towards the end of 2012. Father could not recall whether this agreement lowered support to $2, 000 or $1, 500 per month. Mother testified that she did not agree to further reduce child support in 2012 and that Father unilaterally decided to decrease support to $1, 500 per month without saying anything to her. In late 2012, Father began making monthly child support payments between $1, 500 and $2, 000. Towards the end of 2013, Father stopped paying child support.

         Father testified that his spouse pays for all family living expenses because of his reduced savings. Father, who is a college graduate, indicated that he remains unemployed, citing a sports-related injury and a pending disability claim.


         On August 19, 2013, Father filed a Motion for Relief after Judgment or Order and Declaration (Motion for Relief) requesting that the family court recalculate his child support obligation based on the parties' current incomes. On September 18, 2013, Mother filed a motion to award her sole legal custody of Child, enforce the 2010 Stipulation, and for attorneys' fees.[2]

         On October 7, 2013, pursuant to an agreement between the parties, the family court ordered that (1) all issues raised by Mother and Father would be tried together, (2) the parties were to engage in mediation, and (3) beginning in October 2013 and going forward, Father would pay child support in the amount of $3, 500 per month pending resolution of the motions at mediation or trial (Pretrial Order).[3]

         The family court held a six-day trial pertaining to the parties' motions that began on June 16, 2014, and concluded on September 16, 2014. The court heard testimony on the matter of child support as stated above.[4] On December 30, 2014, the family court entered an Order Re: Trial (Trial Order) determining Father's child support as $3, 500 per month, effective February 1, 2011.

         In its Findings of Fact and Conclusions of Law, the court found that on or about February 2011, the parties orally agreed to set child support at $3, 500 per month. The court found that Father's testimony regarding an alleged agreement in 2012 to lower the amount to $2, 000 or $1, 500 per month lacked credibility.

         The family court also found that Father was a college graduate and had not sought work following his 2010 employment termination. However, the court made no findings regarding Father's potential earning capacity, Father's assets, or any joint assets held with Father's spouse.

         With regard to Father's request for modification of his monthly child support obligation, the family court found that Father "failed to meet his burden of proof" to show that the $3, 500 support obligation that the parties agreed to should be modified. The court also found that there had been no "material change of circumstances" from the 2011 Agreement, which set child support at $3, 500 per month.[5] Based on these findings, the court determined that Father owed Mother $64, 490 in past due child support through January 2015.

         In its conclusions of law, the family court quoted the requirement of Hawaii Revised Statutes (HRS) § 584-15(e) (2006) that the Hawai'i Child Support Guidelines (Guidelines) were to be utilized in determining the amount to be paid by a parent for support of a child. However, there is no indication in its findings of fact or conclusions of law that the family court applied the Guidelines in considering Father's support obligation. Rather, the court concluded that Father had not proved that the $3, 500 per month amount agreed to by the parties in the 2011 Agreement and in the Pretrial Order should be modified and that it was "appropriate and fair" that support be set at that amount.[6]

          The family court entered an Order Re: Child Support Arrears on January 21, 2015 (Arrears Order), providing for $64, 490 in past due child support.


         Father appealed the Trial Order and Arrears Order to the Intermediate Court of Appeals (ICA), [7] arguing that the family court erred when it denied his request for child support modification, set monthly child support in the amount of $3, 500 effective February 1, 2011, and concluded that Father owed Mother $64, 490 in child support arrears. Specifically, Father submitted that the family court had failed to calculate his monthly child support obligation using the Guidelines as required by the Hawaii Revised ...

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