Child Support Enforcement Agency v. MI ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-SEP-2022
07:54 AM
Dkt. 92 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI#I,
Plaintiff-Appellee,
v.
MI, Defendant-Appellant,
and
EB, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1PP191000107)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and Chan, JJ.)
Defendant-Appellant MI (Mother) appeals from the "Order
Following Trial" entered by the Family Court of the First Circuit
on September 10, 2021.1 For the reasons explained below, we
affirm.
Mother gave birth to RI (Child) in 2016. Child's
certificate of live birth did not identify a father. On
March 22, 2019, Plaintiff-Appellee Child Support Enforcement
Agency (CSEA) filed a "Complaint for Establishment of Paternity"
against Mother and Defendant-Appellee EB (Father). On May 17,
2019, genetic test results were filed showing a 99.99%
probability that Father is Child's biological father.
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The Honorable Courtney N. Naso presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Father acknowledged paternity. A "Judgment of
Paternity" establishing Father as Child's natural father was
entered on September 12, 2019. Mother was awarded physical
custody of Child. Father was ordered to pay child support of
$600 per month beginning September 2019. A number of issues,
including past child support, were reserved for future
determination.
Trial took place over five days during December 2020
and January 2021. The Order Following Trial was entered on
September 10, 2021. Relevant to this appeal, the family court
ruled:
Child Support. The Court calculated the past and current
child support per the Child Support Guidelines Worksheet
("CSGW"), based on Father's testimony that his income is
$36,000/year and Mother's Paternity Financial Information
Sheet and testimony that she has had no employment since
April, 2020. . . .
(A) Arrears (May 17, 2019 — March 31, 2020). The
Court finds that Father owes child support arrears beginning
May 17, 2019 (i.e., the date the paternity test found father
to be natural father)[,] and does not owe any child support
from the date of the child's birth [date redacted] through
May 16, 2019. . . . Father shall pay to Mother child
support arrears in the sum of $600.00 per month for the
period of May 17, 2019[,] thru March 31, 2020 . . . .
(B) Current (commencing April 1, 2020). Based on
the above, Father shall pay Mother as and for the support
and maintenance of the minor child the sum of $600.00 per
month commencing April 1, 2020. . . . All of the foregoing
shall be subject to further order of the Court.
Mother filed a timely notice of appeal. She argues
that the family court erred by: (1) failing to order that Father
pay child support from the date of Child's birth until the date
the genetic testing results were filed; and (2) improperly
calculating the amount of child support owed by Father after the
date the genetic testing results were filed.
The family court entered findings of fact and
conclusions of law on December 13, 2021. Findings of fact are
reviewed under the "clearly erroneous" standard. Fisher v.
Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006). A finding
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of fact is clearly erroneous when the record lacks substantial
evidence to support the finding. Id. Conclusions of law are
reviewed de novo, under the right/wrong standard. Id. A
conclusion of law that is supported by the trial court's findings
of fact and reflects an application of the correct rule of law
will not be overturned. Est. of Klink ex rel. Klink v. State,
113 Hawai#i 332, 351, 152 P.3d 504, 523 (2007).
(1) Mother challenges the family court's conclusion of
law (COL) no. 13:
13. Pursuant to HRS § 584-15(c) and (d), and based
on the credible testimony by the parties at trial,
specifically the testimony about Mother's mixed
communications with Father about his paternity of minor
child, Mother's expressed desire that she was uninterested
in communicating with Father, and the fact that Mother did
not file a paternity action sooner, the Court deems it just
and appropriate that zero child support arrears are ordered
from Father to Mother retroactive to the Child's date of
birth . . . , but arrears would be just and appropriate
effective May 17, 2019, the date the genetic test results
for Father were filed, reflecting Father's probability of
paternity being 99.99%.
Hawaii Revised Statutes (HRS) § 584-15 (2018) provides,
in relevant part:
(c) The [paternity] judgment or order may contain
any other provision directed against the appropriate party
to the proceeding, concerning the duty of support . . . .
The court may further order the noncustodial parent to
reimburse the custodial parent . . . for reasonable expenses
incurred prior to entry of judgment, including support . . .
for the benefit of the child.
(d) Support judgment or orders ordinarily shall be
for periodic payments which may vary in amount. . . . The
court may limit the father's liability for past support of
the child to the proportion of the expenses already incurred
that the court deems just.
(Emphasis added.) We review the family court's application of
HRS § 584-15(c) and (d) for abuse of discretion. See State,
Child Support Enf't Agency v. Doe, 98 Hawai#i 58, 64-65, 41 P.3d
720, 726-27 (App. 2001).
COL no. 13 was supported by the family court's findings
of fact (FOF):
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17. [Father] is found by the Court to be a credible
witness.
18. . . . Mother's testimony lacked credibility, in
part, and her testimony regarding (a) her communications
with Father about the parentage of the Child and (b) her
willingness to include Father in Child's life is
specifically not credible.
. . . .
20. Mother and Father were no longer in a dating or
romantic relationship during Mother's pregnancy, but were in
contact with each other.
21. The Court found both parties to be credible in
their accounts of the strained relationship and strained
communications between Mother and Father.
22. While pregnant and after the birth of minor
child, Mother told Father numerous times that he was not the
biological father of minor child. The Court found Father's
testimony to be credible regarding this matter.
23. Following the birth of minor child, Mother told
Father to stay away from her, alleging abuse by Father and
threatening to petition for a protective order against him.
The Court found Father's testimony to be credible regarding
this matter.
24. Mother did not name Father on the birth
certificate.
25. After the birth of minor child, Father asked to
participate in a paternity test, but Mother refused. The
Court found Father's testimony to be credible regarding this
matter.
26. Neither party petitioned for paternity until
CSEA initiated this case.
27. Mother never sought or received any financial
assistance from the State of Hawaii, Department of Human
Services or other State agencies in regards to the care and
maintenance of the Child, nor did Mother request child
support from Father until CSEA became involved.
28. Both parties were aware of the court process for
petitioning for paternity and child support.
These findings are supported by substantial evidence in the
record and are not clearly erroneous. Mother cites contrary
evidence including her own testimony, and argues that she was
more credible than Father. However, evaluating the credibility
of witnesses and weighing conflicting evidence lies in the sole
province of the trial court. See Fisher, 111 Hawai#i at 46, 137
P.3d at 360 ("It is well-settled that an appellate court will not
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pass upon issues dependent upon the credibility of witnesses and
the weight of evidence; this is the province of the trier of
fact.") (citation omitted).
COL no. 13 is not wrong; it is supported by the family
court's findings of fact, which are not clearly erroneous, and
reflects an application of the correct rule of law. See Est. of
Klink, 113 Hawai#i at 351, 152 P.3d at 523. We conclude that the
family court did not abuse its discretion by not awarding Mother
child support from Child's date of birth until the date Father's
genetic test results were filed.
(2) Mother challenges the family court's COL no. 9:
9. Pursuant to HRS § 576D-7, the Court finds that
based on the parties' incomes, child support payments owing
from Father to Mother would otherwise be set at $552 per
month per the Hawai#i Child Support Guidelines, but Father
agreed to pay $600 per month. Therefore, exceptional
circumstances exist to order an upward deviation to $600 per
month. Father is credited for any previous child support
payments made.
HRS § 576D-7 (2018) requires that the family court
"establish guidelines to establish the amount of child
support[.]" The family court must use the Hawai#i Child Support
Guidelines established under HRS § 576D-7 to establish the amount
of child support required to be paid by a parent, except when
exceptional circumstances warrant departure. HRS § 571-52.5
(2018); PO v. JS, 139 Hawai#i 434, 442, 393 P.3d 986, 994 (2017).
COL no. 9 was supported by the family court's findings
of fact:
29. Father has been self-employed since at least
2018 doing business as EKB Construction.
30. In tax year 2020, Father earned thirty-six
thousand dollars ($36,000).
31. In tax year 2019, Father earned fifty-seven
thousand six hundred dollars ($57,600).
32. In tax year 2018, Father earned approximately
thirty-six thousand dollars ($36,000).
. . . .
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
37. The Court utilized the Child Support Guidelines
Worksheet ("CSGW") to calculate the parties' child support
obligation based on their respective monthly gross incomes
[$36,000 per year or $3,000 per month for Father; $0 for
Mother].
. . . .
40. The resulting child support obligation reflected
Father being obligated to pay Mother child support in the
amount of $552.00 per month.
41. Father was willing and agreed to pay $600 per
month to Mother as and for child support.
These findings are supported by substantial evidence in the
record and are not clearly erroneous. The Guidelines worksheet
filed by the family court reflects data consistent with the
court's findings.
Mother argues that the family court "failed to utilize
verified gross annual income for Father when calculating Father's
child support . . . . Instead, the Court relied on untrustworthy
and unsupported figures for Father's self-employed annual gross
income when calculating child support[.]" But Mother fails to
cite evidence in the record of Father's "verified gross annual
income" upon which she claims the family court should have
relied. We are not obligated to search the record for
information that should have been provided by Mother. Haw.
Ventures, LLC v. Otaka, Inc., 114 Hawai#i 438, 480, 164 P.3d 696,
738 (2007) (first quoting Lanai Co. v. Land Use Comm'n, 105
Hawai#i 296, 309 n.31, 97 P.3d 372, 385 n.31 (2004) (explaining
that an appellate court "is not obligated to sift through the
voluminous record to verify an appellant's inadequately
documented contentions"); then citing Miyamoto v. Lum, 104
Hawai#i 1, 11 n.14, 84 P.3d 509, 519 n.14 (2004)). Mother's
argument was not properly presented to the family court or
preserved for appeal.
We also note that the family court did not err by
ordering support greater than required by the Guidelines. On
cross-examination Father agreed that he was paying $600 per month
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in child support and was not contesting that amount. In closing
Mother argued:
In terms of child support, Your Honor, we ask that the
child support be maintained at $600 a month. There has been
no request by either party that that be modified[.]
(Emphasis added.) The Guidelines note that "the parents'
agreement to an amount of child support higher than the amount
calculated according to the worksheets may be enforceable[.]"
Haw. State Judiciary, 2020 Hawai#i Child Support Guidelines at
10. We have stated that "the parties' agreeing . . . to more
child support than the Guidelines specify" is an exceptional
circumstance warranting departure. Ching v. Ching, 7 Haw. App.
221, 224, 751 P.2d 93, 96 (1988).2 COL no. 9 is not wrong; it is
supported by the family court's findings of fact, which were not
clearly erroneous, and reflects an application of the correct
rule of law. See Est. of Klink, 113 Hawai#i at 351, 152 P.3d at
523.
For the foregoing reasons, the Order Following Trial
entered by the family court on September 10, 2021, is affirmed.
DATED: Honolulu, Hawai#i, September 30, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Jacqueline E. Thurston, Presiding Judge
for Defendant-Appellant MI.
/s/ Karen T. Nakasone
Lisa E. Engebretsen, Associate Judge
Anthony A. Perrault,
for Defendant-Appellee EB. /s/ Derrick H.M. Chan
Associate Judge
Mark T. Nugent,
Deputy Attorney General,
for Petitioner-Appellee
(no brief filed).
2
The $600 agreed-upon amount is subject to recalculation or
modification under the family court's "continuing jurisdiction regarding the
support of the parties' minor children." Napoleon v. Napoleon, 59 Haw. 619,
624, 585 P.2d 1270, 1273 (1978) (citing HRS § 580-47).
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