Waldecker v. O'Scanlon. , 137 Haw. 460 ( 2016 )

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Electronically Filed
Supreme Court
SCWC-14-0000780
17-JUN-2016
07:54 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
ANASTASIA Y. WALDECKER, Petitioner/Petitioner-Appellant,
vs.
JOHN O’SCANLON, Respondent/Respondent-Appellee.
SCWC-14-0000780
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0000780; UCCJEA No. 14-1-0002)
JUNE 17, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
This 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
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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.
Following 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.
O’Scanlon 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” analysis.
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The 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.
We hold 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.
I. Background
A. The Divorce Decree
Waldecker 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.
According to the Divorce Decree, Waldecker and
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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.
The 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 following provisions:
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
agree otherwise.
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
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
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becomes mentally or physically incompetent, the
responsibility regarding choice of school shall be
assigned to Husband’s adult children.
(Emphasis added).
The 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.
In 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.
B. 2014 Motions Regarding Custody
Waldecker 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.
In her 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
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was scheduled to change duty stations to the mainland, and (4)
O’Scanlon had become an unfit parent for a number of reasons.
On 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 motion.
In his 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.”
In 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.
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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.
C. Family Court Hearing
The Family Court of the First Circuit held a hearing on
both motions on March 19, 2014.1 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.2
At the 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
1
The Honorable Kevin Souza presided.
2
THE COURT: [I]sn’t it correct that if I’m going to
change the custody orders that are currently contained
in a divorce decree that the court has to make a
finding that there’s been a material change in
circumstances?
[WALDECKER’S COUNSEL]: Yes, that–-and that–-and that
it’s in the child’s best interest–-
THE COURT: Right.
[WALDECKER’S COUNSEL]: –-to address that change by a
change of custody.
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counsel and from the court, although not under oath.3
When 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 to.”
Waldecker 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
evidence.
With regard to O’Scanlon’s motion to enforce the
3
The court explained to the parties that because it was hearing the
motions during the “Wednesday OSC calendar,” both parties would have an
opportunity to proceed by offer of proof and argument, with Waldecker going
first since it was her motion. The court interjected questions throughout the
hearing.
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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
says.
[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 divorce.
O’Scanlon 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
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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 assistance of legal
counsel when they entered into that agreement. So it
was bargained for.
O’Scanlon also alleged that Waldecker’s behavior with
regard to allowing O’Scanlon to see Daughter prior to the divorce
was a large factor in including the relocation-custody provision
in the Settlement Agreement.4
In response to Waldecker’s claims about O’Scanlon’s
fitness as a parent, O’Scanlon made an offer of proof regarding
many of the same issues that he asserted in his affidavit. He
argued that he was: “an experienced father,” who has “raised
three sons already”; he provides Daughter with a “stable and
wholesome life”; he has “flexible hours” to provide care for
Daughter; and he has the help of two adult sons who live with him
4
[O’SCANLON’S COUNSEL]: . . . Part of the impetus for
their arriving at that provision is during the time of
separation Ms. Waldecker was the primary custodian
because she kept the child away from him and refused
to tell him where she was. And she actually moved
from state to state. So--
THE COURT: This is prior to the divorce or this is--
[O’SCANLON’S COUNSEL]: This is prior to the divorce.
That was the impetus for putting in these special
provisions about relocation. It was to prevent that
from happening again.
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and help him take care of Daughter.
After hearing the parties’ arguments, the family court
concluded:
[B]ased on the relevant and applicable Hawai#i case
law that the parties did have a provision that
addressed relocation in the decree and therefore the
court is going to find that there is no material
change in circumstance here based on mother’s proposed
relocation. So I am going to respectfully . . . find
that there is no material change in circumstance. I
am going to deny mother’s motion.
On May 19, 2014, the family court entered its Findings
of Fact (FOFs) and Conclusions of Law (COLs) and ordered that, in
the event Waldecker relocated beyond 200 miles of O#ahu as she
planned, O’Scanlon be awarded sole custody of Daughter, subject
to a visitation schedule, which included allowing Daughter to
visit Waldecker for up to two months in the summer, during spring
break and winter break on even numbered years, and during fall
break on odd numbered years. The family court’s order also
provided that upon Waldecker’s relocation, O’Scanlon’s monthly
child support obligation would be terminated, and Waldecker would
be obligated to pay O’Scanlon $70.00 per month in child support.
D. ICA Appeal
On appeal, Waldecker argued that the family court erred
by failing to make any finding whatsoever that its anticipated
change of custody and visitation was in the best interests of the
child, and by failing to consider or even mention any of Mother’s
alleged changes of circumstances in its findings of fact or
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conclusions of law.
Waldecker acknowledged that to amend the custody
arrangement in a prior judicial order, the party seeking to
change the arrangement must show both a “material change in
circumstances” since the entry of the order and that the proposed
change in custody would be in the best interests of the child.
However, Waldecker argued that her relocation from Hawai#i to
Florida would be a material change in circumstances “sufficient
to warrant the Family Court’s reexamination of existing custody
and visitation orders.”
Waldecker finally argued that paragraph 5 of the
Settlement Agreement, which provides for automatic change of
custody in the event one of the parents relocates to a place
beyond 200 miles of O#ahu or San Francisco, contravenes the
requirement of HRS § 571-46(6) “that any modification or change
of child custody must be required or justified by the best
interests of the child.”
O’Scanlon argued that under Nadeau, 10 Haw. App. at
111, 861 P.2d at 754, and Turoff v. Turoff, 56 Haw. 51, 527 P.2d
1275 (1974), a party proposing a change in custody from a prior
custody order must first show a material change in circumstances
since the prior custody order, and must further show that the
proposed change in custody would be in the best interests of the
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child.
O’Scanlon, relying on Nadeau, argued that “[r]elocation
is not a material change in circumstance if the Divorce Decree
contains provisions which govern future relocations.” O’Scanlon
further relied upon an ICA decision, Child Support Enforcement
Agency v. MS-M, No. CAAP-11-0000387 (Haw. App. Sept. 20, 2013)
(SDO), in which the ICA stated that a parent’s out-of-state
relocation would be a material change of circumstances “absent a
divorce decree or custody order provision addressing the issue.”
Id. at *3. According to O’Scanlon, because the Divorce Decree
specifically addresses relocation of a parent, there is no
material change of circumstances to warrant changing the divorce
decree.
In reply, Waldecker reiterated that the family court
made no findings regarding Daughter’s best interests. According
to Waldecker, pursuant to HRS § 571-46(a)(1) and (6), it was
error for the court to change the custody of Daughter without a
finding regarding her best interests. Waldecker argued that
parents cannot “pre-decide” or “pre-determine” child custody
arrangements by contract because any future change in custody can
only be made after a court has determined the child’s best
interests.
The ICA agreed with the family court’s conclusion that
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although, in general, a relocation is a material change in
circumstances, that is not the case where a provision in the
divorce decree specifically addresses the relocation of one
parent. The ICA affirmed the family court’s order awarding
custody to O’Scanlon and entered its judgment on appeal on
February 27, 2015.
Waldecker timely filed her Application for Writ of
Certiorari, in which she raises the following questions:
1. Is Hawai#i Family Court Rule 54.2(a)[5] violated
by a Post-Decree Order that changes physical custody
of a minor child but fails to make any finding that
the change of custody is in the best interests of the
minor child.
2. Can a Divorce Decree that automatically changes
custody of a minor child upon a child’s future
relocation, without any requirement that the change
made be in the best interests of the minor, be
enforced if one parent does not believe the custody
change would be in the minor’s best interests?
3. Did the lower courts violate HRS § 571-46.1(c)[6]
by refusing to consider Mother’s arguments to
5
Hawai#i Family Court Rule 54.2(a) provides:
(a) Custody and Visitation. A proposed stipulation
seeking to establish or amend provisions in a judgment
or any order relating to custody or visitation of
minor children will not be approved unless there is a
showing that the proposal is in the best interests of
the children. Unless waived by the court, such
stipulation shall be signed by both parties.
6
HRS § 571-46.1(c) provides:
(c) Any order for joint custody may be modified or
terminated upon the petition of one or both parents or
on the court’s own motion if it is shown that the best
interests of the child require modification or
termination of the order.
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terminate joint custody by showing that the best
interests of the child require termination of the
order and by instead finding that Mother’s relocation
was not a material change of circumstances.
II. Standard of Review
The family court’s FOFs are reviewed on appeal
under the “clearly erroneous” standard. A FOF is
clearly erroneous when (1) the record lacks
substantial evidence to support the finding, or (2)
despite substantial evidence in support of the
finding, the appellate court is nonetheless left with
a definite and firm conviction that a mistake has been
made. “Substantial evidence” is credible evidence
which is of sufficient quality and probative value to
enable a person of reasonable caution to support a
conclusion.
On the other hand, the family court’s COLs are
reviewed on appeal de novo, under the right/wrong
standard. COLs, consequently, are not binding upon an
appellate court and are freely reviewable for their
correctness.
. . . .
Moreover, the family court is given much leeway
in its examination of the reports concerning a child’s
care, custody, and welfare, and its conclusions in
this regard, if supported by the record and not
clearly erroneous, must stand on appeal.
In re Doe, 95 Hawai#i 183, 190, 20 P.3d 616, 623 (2001) (internal
quotation marks, citations, brackets, and ellipsis omitted)
(emphasis in original).
III. Discussion
Waldecker argues that the family court erred under both
HRS § 571-46 and Hawai‘i Family Court Rules (“HFCR”) Rule 54.2 by
enforcing the Divorce Decree’s automatic change of custody
provision and awarding O’Scanlon sole physical custody of
Daughter without specifically considering or finding that the
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change was in Daughter’s best interests.7
Waldecker further argues that her relocation from O‘ahu
to Florida is a material change in circumstances sufficient to
warrant the family court to reexamine whether modification of
custody pursuant to the provisions in the Divorce Decree would be
in the best interests of the child.
We agree that the family court erred by not considering
the best interests of the child as required by HRS § 571-46.
A. Hawai#i Family Court Rule 54.2(a)
Waldecker raises in her application but does not
present a cogent argument that the family court’s order violates
HFCR Rule 54.2(a) (2000). Waldecker has waived this argument by
raising it for the first time in this court. Ass’n of Apt.
Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai#i 97, 107,
58 P.3d 608, 618 (2002) (“Legal issues not raised in the trial
court are ordinarily deemed waived on appeal.”); see HRS § 641-2
(2014 Supp.) (“The appellate court may correct any error
appearing on the record, but need not consider a point that was
not presented in the trial court in the appropriate manner.”).
7
Neither party has questioned the jurisdiction of Hawai#i courts to
rule on the issue of child custody, despite the Divorce Decree’s provision
that: “Nevada shall retain exclusive continuing jurisdiction over issues of
child custody, visitation, support and related matters.” Because we address
issues of subject matter jurisdiction sua sponte, we consider this issue and
conclude that under HRS §§ 583A-203(2) and 583A-201(a)(1), Hawai#i courts have
jurisdiction to modify the custody determination of the Nevada court based
upon the family court’s finding in May 2014 that O’Scanlon, Waldecker, and
Daughter have lived in Hawai#i since 2010.
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Waldecker has also waived this argument by not
addressing its merits. See Tauese v. State, Dep’t. of Labor &
Indus. Relations, 113 Hawai#i 1, 26, 147 P.3d 785, 810 (2006)
(“This court may disregard [a] particular contention if an
appellant makes no discernable argument in support of that
position.”) (quotation marks and citation omitted) (alterations
in original).
Moreover, even if we were to address this question, it
is inapplicable to the facts presented. HFCR Rule 54.2(a)
provides:
(a) Custody and Visitation. A proposed stipulation
seeking to establish or amend provisions in a judgment
or any order relating to custody or visitation of
minor children will not be approved unless there is a
showing that the proposal is in the best interests of
the children. Unless waived by the court, such
stipulation shall be signed by both parties.
(Emphasis added).
HFCR Rule 54.2(a) only applies where the parties are
seeking to establish or amend provisions in a judgment or any
order, and even then, only applies when the parties have
stipulated to the amendment. Here, neither is true. The family
court did not amend or establish any provision in a judgment or
order. To the contrary, the family court enforced the custody
provision in the Divorce Decree exactly as written.
Thus, Waldecker’s argument that the family court
violated HFCR Rule 54.2(a) is waived and without merit.
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B. The Family Court Erred in Enforcing the Automatic Change in
Custody Provision in the Divorce Decree Without Considering
the Best Interests of the Child
The next issue requires us to examine the development
of the “material change in circumstances” requirement in Hawaii’s
case law and whether it remains applicable for the purposes of
modifying a child custody order. In addition, we consider
whether the family court must conduct a “best interests of the
child” analysis and enter specific findings thereon.8
8
In determining what constitutes the best interest of the child
under HRS § 571-46, the court shall consider, but not be limited to, the
following:
(1) Any history of sexual or physical abuse of a child
by a parent;
(2) Any history of neglect or emotional abuse of a
child by a parent;
(3) The overall quality of the parent-child relationship;
(4) The history of caregiving or parenting by each
parent prior and subsequent to a marital or other type
of separation;
(5) Each parent’s cooperation in developing and
implementing a plan to meet the child’s ongoing needs,
interests, and schedule; . . . .
(6) The physical health needs of the child;
(7) The emotional needs of the child;
(8) The safety needs of the child;
(9) The educational needs of the child;
(10) The child’s need for relationships with siblings;
(11) Each parent’s actions demonstrating that they
allow the child to maintain family connections through
family events and activities; . . . .
(12) Each parent’s actions demonstrating that they
separate the child’s needs from the parent’s needs;
(13) Any evidence of past or current drug or alcohol
abuse by a parent;
(14) The mental health of each parent;
(15) The areas and levels of conflict present within
the family; and
(16) A parent’s prior wilful misuse of the protection
from abuse process under chapter 586 to gain a
tactical advantage in any proceeding involving the
custody determination of a minor[.]
HRS § 571-46(b) (Supp. 2013).
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It is undisputed that the Divorce Decree in this case
provides for an automatic change of primary physical custody to
the remaining parent in the event that one parent relocates more
than two hundred miles from O#ahu or San Francisco.9 It is also
undisputed that in February 2014, Waldecker anticipated
relocating to Florida, which is more than two hundred miles from
either O#ahu or San Francisco.10 Thus, Waldecker’s arguments
focus on why, despite the automatic change of custody provision
in the Divorce Decree, there was a material change in
circumstances that required the family court to make a
determination of whether enforcement of the provision was in
Daughter’s best interests.
In COL 7, the family court concluded that, “to prevail
on a motion to modify a custody or visitation order, as a
threshold matter, the moving party must demonstrate that there
has been a material change in circumstances since that prior
order.” In COLs 8-9, the family court concluded that generally,
relocation of a parent is a material change in circumstances, but
where the divorce decree specifically outlines a custody
arrangement in the event of a relocation, relocation of a parent
9
The family court made this conclusion in COL 12, which Waldecker
has not challenged on appeal.
10
The family court made these findings in FOFs 16-17, which
Waldecker has not challenged on appeal.
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does not constitute a material change in circumstances. Further,
in COLs 10-11, the family court concluded that the Divorce Decree
provided for the custody arrangement for Daughter in the event of
a relocation, and thus there was no material change of
circumstances. It appears that because Waldecker had not shown
this threshold change in circumstances, the family court did not
explicitly analyze whether enforcing the change of custody
provision was in Daughter’s best interests.
We begin our analysis by examining the origin of the
“material change in circumstances” test. HRS § 571-46, which
sets forth the criteria for awarding child custody, provides in
relevant part:
(a) In actions for divorce, separation, annulment,
separate maintenance, or any other proceeding where
there is at issue a dispute as to the custody of a
minor child, the court, during the pendency of the
action, at the final hearing, or any time during the
minority of the child, may make an order for the
custody of the minor child as may seem necessary or
proper. In awarding the custody, the court shall be
guided by the following standards, considerations, and
procedures:
(1) Custody should be awarded to either parent or to
both parents according to the best interests of the
child, and the court may also consider frequent,
continuing, and meaningful contact of each parent with
the child unless the court finds that a parent is
unable to act in the best interest of the child;
. . . .
(6) Any custody award shall be subject to modification
or change whenever the best interests of the child
require or justify the modification or change and,
wherever practicable, the same person who made the
original order shall hear the motion or petition for
modification of the prior award[.]
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(Emphasis added).
There is nothing in the statute that expressly requires
that a party seeking to change a custody order must demonstrate a
material change in circumstances before the order can be
modified. Notably, HRS § 571-46(a)(6), which specifically
addresses modification of custody, does not require a material
change in circumstance--stating instead that “[a]ny custody award
shall be subject to modification or change whenever the best
interests of the child require or justify the modification or
change.” (Emphasis added). However, over time, the requirement
of a material change of circumstances has developed in our case
law.
In Dela Cruz v. Dela Cruz, 35 Haw. Terr. 95 (1939),
mother brought a motion to modify a previous award of custody to
father. Although she “did not answer or make any appearance” at
the original custody proceeding, the circuit judge found that
mother had “rehabilitated herself; is now remarried and is able
to give these children a fit and proper home,” and that “the
remarriage of the mother and her rehabilitation constitutes
sufficient change of circumstances since the entry of the
Decree.” Id. at 96-97. This court explained:
In approaching the question of whether or not a decree
of custody of a child of divorced parents should be
modified so as to give the custody to the parent
denied its custody upon the granting of the divorce,
the court is confronted with the task of determining
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whether or not there has been such a change of
circumstances that the modification will be for the
good of the child. Just what change will be
sufficient to work that good varies in each particular
case.
Id. at 98.
We held that the circuit judge did not err in holding
that there was a “sufficient change of circumstances since the
entry of the decree to warrant a consideration of whether or not
it would be for the best welfare of the children to be placed in
the custody of their mother[.]” Id. at 103. Our ruling
emphasized that “the welfare of the child is in all such cases
the paramount consideration.” Id. at 98.
In Dacoscos v. Dacoscos, 38 Haw. Terr. 265 (1948),
father appealed from an order awarding custody of three minor
children to mother. This court explained that it was required
“to ascertain whether there occurred such a change of
circumstances that the replacement of custody in the father would
be for the best interests of the children.” Id. at 266. The
evidence revealed that father had remarried and lived “happily,”
whereas mother had remarried, had two more children, divorced,
and had another child with a “paramour” while working late nights
as a “taxi dancer.” Id. at 266-67. After finding that “the
changed circumstances of the father are advantageous to his
prospective custody,” we awarded him custody consistent with “the
general rule that the welfare of the child has paramount
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consideration.” Id. at 267.
In Turoff, the family court granted a father custody of
a child after ten hearings held over a period of six months. 56
Haw. at 52, 527 P.2d at 1276. The next year, the mother sought a
change of custody, arguing that “the change of circumstances,
namely the father’s transfer away from Hawai#i, necessitates a
complete re-evaluation of custody, and that the only
consideration is what is in the child’s best interest at the
present time.” Id. at 53, 527 P.2d at 1277. The family court
agreed that the proper consideration was what is in the child’s
best interest, but it also noted that the testimony from the
prior proceeding was essential to the present determination. Id.
As such, the family court stated that, “when the first decision
was made in January of 1972, the court was aware that the father
would be transferred in approximately a year, and that factor was
weighed in the original determination of custody. In that sense
the present situation is not a change of circumstances.” Id.
The family court then held that the child was receiving good care
in the custody of her father, and that her best interests would
not be facilitated by the transfer of her custody. Id.
On the mother’s appeal, we stated that the question was
“whether substantial change ha[d] occurred since the initial
decision and order requiring modification or change in the award
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of custody of the minor child.” Id. at 55, 527 P.2d at 1278. We
then held that the family court, in reviewing the evidence, “made
the proper factual determinations and reached the correct legal
conclusions.” Id.
Importantly, although the family court found no change
in circumstances in Turoff, it still considered what was in the
best interests of the child at the present time. Id. Moreover,
this court did not adopt a material change in circumstances
requirement.
In Nadeau, the ICA considered a situation where a
relocation provision provided for a change of visitation.
Similar to the facts of this case, the divorce decree in Nadeau
contained an automatic change of visitation provision in the
event of one parent’s relocation. 10 Haw. App. at 112-13, 861
P.2d at 755-56. Specifically, the decree provided for a change
in visitation arrangements if the parties, who were both in the
United States Navy, relocated outside the same geographical area.
Id. at 113, 861 P.2d at 756. When the father relocated to the
continental United States, the mother sought and received a
modification of the father’s visitation schedule. Id. at 114,
861 P.2d at 756. The family court reduced the father’s
visitation, and father appealed, arguing that his relocation was
not a material change of circumstances that permitted the family
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court to change the visitation schedule. Id. at 119, 861 P.2d at
758.
The ICA held that the father’s relocation was not a
material change in circumstances and revised visitation
consistent with the divorce decree because when the divorce
decree was entered, “the family court knew that both Father and
Mother would each be ordered to different duty stations within
the following three years” and provided for that occurrence in
the order. Id. The ICA agreed with the family court “that a
person seeking a change of custody must show a material change of
circumstances since the previous custody order, and must show
that such a change of custody is in the best interest of the
child.” Id. at 121, 861 P.2d at 759.
In Hollaway v. Hollaway, the ICA considered an appeal
from the modification of a joint custody arrangement which gave
“Mother sole custody regarding educational decisions made on
behalf of [Son].” 133 Hawai#i 415, 416, 329 P.3d 320, 321
(2014). After discussing HRS §§ 571-46 and 571-46.1(c),11 the
ICA said that “[w]hile the statutory language . . . grants family
11
The text of HRS § 571-46 is set forth supra. HRS § 571-46.1(c),
which the ICA described as “its sister statute,” 133 Hawai#i at 421, 329 P.3d
at 326, provides as follows:
(c) Any order for joint custody may be modified or
terminated upon the petition of one or both parents or
on the court’s own motion if it is shown that the best
interests of the child require modification or
termination of the order.
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courts the jurisdiction to modify a joint custody order, our case
law requires that the party seeking modification must first make
a threshold showing of material change in circumstances.” Id. at
421, 329 P.3d at 326 (emphasis added). The ICA further noted
that requiring a material change in circumstances:
reflects the importance of the family courts’ focus on
the best interests of the child in evaluating proposed
custodial modifications[.] The prior custody order,
founded as it must be on the child’s best interests,
and including, among others, the implicit component
factors of stability and security, should not be
overturned lightly.[12]
Id. at 421 n.5, 329 P.3d at 326 n.5 (emphasis added).
As the ICA acknowledged in Hollaway, the requirement of
a material change in circumstances is set forth in Nadeau and
other ICA cases. Id. at 421, 329 P.3d at 326. It has not been
adopted by this court. We conclude that the requirement of a
material change in circumstances is inconsistent with HRS § 571-
46. Accordingly, we overrule Nadeau and Hollaway to the extent
they suggest that a material change in circumstances is required
before the court can consider the best interests of the child in
modifying a custody order. Rather than that two-step analysis,
12
We note that in both Turoff and Nadeau, the custody orders were
entered pursuant to contested family court proceedings, whereas in this case,
the agreement was stipulated. Furthermore, in those cases, the relocations
were certain to occur within the next few years as a result of the parents’
military status. That is not the case here. Waldecker and O’Scanlon could
not have predicted the nature of this relocation to such a degree of
certainty. In fact, at the time of their divorce, there were no plans for
relocation. As such, the Nevada court did not and could not have evaluated
whether some future, unknown relocation was in the best interests of the child
when it approved the parties’ stipulated settlement agreement.
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there is a single inquiry which focuses on the best interests of
the child. As this court held in Dela Cruz, the question is
“whether or not there has been such a change of circumstances
that the modification will be for the [best interest] of the
child.” 35 Haw. Terr. at 98.
We acknowledge that there are legitimate interests in
preventing continued relitigation of issues and reducing
repetitive motions. However, the family courts have various
tools at their disposal to address such situations, including the
power to impose sanctions, as appropriate.
In short, 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.” HRS § 571-46(a)(1) and (6) (emphasis added). Such a
conflict occurred in the instant case. Daughter is experiencing
significant change in her life, as her mother has remarried and
is moving to the mainland. The fact that the parties--in 2010--
attempted to account for a relocation of one of Daughter’s
parents does not mean that the best interests of the child had
not changed. Indeed, the parties and the Nevada court did not
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know in 2010 when this relocation would occur or what Daughter’s
circumstances would be at the time of the relocation.
Waldecker’s decision to relocate with her new husband required
the court to consider whether, because of the “change in
circumstances,” modification of the custody order would be “in
the best interests” of Daughter.
A custody determination should not be so inflexible as
to foreclose inquiry into the best interests of the child solely
based on an existing custody arrangement related to relocation
that was made when neither the parties nor the court had any idea
of what the circumstances of that relocation would be. The
family court here did not scrutinize whether, at the time of the
expected relocation, the automatic change of custody was in the
best interests of the child. It should have done so, since the
best interests of the child should be the “paramount
consideration.” Dela Cruz, 35 Haw. at 98.
Here, Waldecker and O’Scanlon’s divorce decree included
an automatic change of custody provision. Enforcement of the
relocation provision resulted in a change from joint physical
custody, to O’Scanlon receiving sole physical custody. Yet HRS
§ 571-46 provides that child custody shall be modified only if
the best interests of the child justify a modification.
Furthermore, HRS § 571-46.1(c), which governs joint custody
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arrangements like the one in this case, provides that “[a]ny
order for joint custody may be modified or terminated upon the
petition of one or both parents or on the court’s own motion if
it is shown that the best interests of the child require
modification or termination of the order.” (Emphasis added).
Thus, the family court was required to ascertain whether
Waldecker’s planned relocation constituted “such a change in
circumstances” that modification of the custody order “would be
for the best interests of” Daughter. Dacoscos, 38 Haw. Terr. at
266. Therefore, the family court erred when it awarded sole
custody to O’Scanlon without considering the child’s best
interests.13
IV. Conclusion
We hold that the family court erred when it enforced
the Divorce Decree and awarded sole physical custody of Daughter
to O’Scanlon without explicitly finding that the change in
custody was in Daughter’s best interests. Thus, we vacate the
13
Waldecker also argues that paragraph 6 of the Settlement Agreement
is an “invalid, un-enforceable order and in can not [sic] be given full force
and effect.” Waldecker failed to raise this argument before the family court,
so the issue is waived. Even if the issue had been properly raised, it would
likely have been premature and dismissed on ripeness grounds. The provision
provides for “the event that [O’Scanlon] dies or becomes mentally or
physically incompetent.” However, Waldecker has not alleged that O’Scanlon
has died, become mentally ill or incompetent, and the record does not suggest
otherwise.
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ICA’s February 27, 2015 judgment, and the family court’s May 19,
2014 order, and remand to the family court for further
proceedings.
Michael A. Glenn /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
A. Debbie Jew
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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