DL v. CL. ( 2020 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
29-APR-2020
09:00 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
DL,
Petitioner/Plaintiff-Appellant,
vs.
CL,
Respondent/Defendant-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; FC-D. NO. 16-1-1014)
APRIL 29, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This case arises from the Family Court of the First
Circuit’s (“family court”) determination of child custody, child
support, and property division in a divorce proceeding between
DL (“Father”) and CL (“Mother”).
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This is Father’s third appeal in this divorce proceeding.
We decided Father’s first appeal in a published opinion, DL v.
CL, -- P.3d ---, 2020 WL 1902319 (April 16, 2020) (“DL I”).1
Father’s application for certiorari (“Application”) presents two
questions:
(1) Did the ICA gravely err in finding [Father’s] motions
untimely, and not reviewing the motions on their
merits?
(2) Did the ICA gravely err by not reviewing the family
court’s denial of [Father’s] motion for new trial?
(Capitalization altered.)
We hold that the ICA erred in holding that Father’s Hawaiʻi
Family Court Rules (“HFCR”) Rule 52(b) (2015) motion to amend
findings of fact and conclusions of law, enter additional
findings of fact and conclusions of law, and to amend judgment
accordingly (“motion to amend” or “HFCR Rule 52(b) motion to
amend”) and motion for new trial pursuant to HFCR Rule 59 (2015)
(“motion for new trial” or “HFCR Rule 59 motion for new trial”)
were untimely.
We also hold that the ICA erred in holding that the family
court’s orders denying Father’s motion to amend and motion for
new trial were void for lack of jurisdiction.
We therefore reverse the ICA’s judgment on appeal except to
the extent it affirmed the family court’s order denying Father’s
1 We are concurrently dismissing Father’s second application for
certiorari in SCWC-XX-XXXXXXX on the grounds it was improvidently granted.
2
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HFCR Rule 60(a) (2015) motion for relief from judgment, and we
affirm the family court’s orders denying Father’s motion to
amend and motion for new trial on the grounds relied upon by the
family court.
II. Background
A. Factual background
Father and Mother were married in 2008 and had two
children, who were minors at the time of trial. In 2015,
Father, Mother, and the children moved from Sacramento,
California to Honolulu. While in Hawaiʻi, Father, Mother, and
the children lived in a cottage located on Father’s parents’
property.
On July 10, 2016, Mother took both children with her to
Arizona due to family abuse by Father. On July 20, 2016, Mother
filed for divorce in Arizona. On August 3, 2016, Father filed
for divorce in Hawaiʻi. On September 2, 2016, Mother’s petition
for divorce was dismissed. The family court ordered the
children to be returned to Hawaiʻi by May 16, 2017, and Mother
returned with the children.
B. Family court proceedings
Trial commenced on July 31, 2017 and ended on January 9,
2018.2 Near the end of the trial, Mother testified that she had
2 The Honorable Gale L.F. Ching presided.
3
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accepted a job in Arizona, and that her start date was January
2, 2018. She testified that she “cannot make it [in Hawaiʻi]”
and had “no money.” Mother remained in Hawaiʻi until the end of
trial.
In January 2018, shortly after the trial ended, Mother
moved to Arizona to start her job. Because the family court had
not yet ruled on child custody and relocation, the parties’ two
minor children remained in Hawaiʻi with Father.
On March 26, 2018, Father filed his notice of appeal in DL
I.
On April 3, 2018, the family court ordered both parties to
submit proposed findings of fact and conclusions of law. On
April 20, 2018, Mother submitted four separate sets of proposed
findings of fact, conclusions of law, and orders, and Father
submitted 484 proposed findings of fact and 48 conclusions of
law, not including subparts.
On April 23, 2018, the family court entered four separate
orders of findings of fact and conclusions of law (“April 23,
2018 FOFs/COLs”), adopting Mother’s proposals.
On April 26, 2018, the family court entered a divorce
decree (“Divorce Decree”) awarding Mother sole physical custody
of the children and authorizing the children to relocate to
Arizona after July 1, 2018.
4
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Later on April 26, 2018, the family court filed its first
amended findings of fact and conclusions of law (“Amended
FOF/COL”), which replaced the first of the four April 23, 2018
FOFs/COLs. There were no substantial changes to the April 23,
2018 findings. The family court found that Father had committed
family violence, and that it was in the best interest of the
children to relocate with Mother to Arizona.
On May 7, 2018, Father submitted to the family court: (1) a
HFCR Rule 52(b) motion to amend; (2) a HFCR Rule 59 motion for
new trial; and (3) a HFCR Rule 60(a) motion for relief from
judgment.3 Father’s motions were stamped as “REC’D” on May 7,
2018. However, the motions were not stamped as “filed” until
May 22, 2018.
Father’s HFCR Rule 52(b)4 motion to amend argued that many
of the family court’s findings were “contrary to the actual
3 The family court denied Father’s motion for relief, and the ICA
affirmed the family court’s denial. DL v. CL III, CAAP-XX-XXXXXXX, at 7
(App. Dec. 26, 2019) (mem.) (“DL III”). Father does not raise the denial of
his motion for relief as an issue on certiorari. Therefore, we do not
further discuss Father’s motion for relief.
4 HFCR Rule 52(b) provides:
Upon motion of a party made not later than 10 days after
entry of judgment the court may amend its findings or make
additional findings and may amend the judgment accordingly.
The motion may be made with a motion for a new trial
pursuant to Rule 59 of these rules. When findings of fact
are made by the court, the question of sufficiency of the
evidence to support the findings may thereafter be raised
whether or not the party raising the question has made in
the family court an objection to such findings or has made
a motion to amend them or a motion for judgment.
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uncontroverted evidence at trial” and that several findings were
“unsupported by any credible evidence in the record.” Father
contended that nearly every finding of fact and conclusion of
law in the April 23, 2018 FOFs/COLs and Amended FOF/COL should
be stricken or amended. Father then requested that the family
court enter additional findings of fact and conclusions of law
and amend its judgment, and he attached 491 proposed findings of
fact and 40 conclusions of law substantively similar to the
proposed findings and conclusions he had submitted to the court
on April 20, 2018.
Father stated that his motion for new trial was made
pursuant to HFCR Rule 59,5 Hawaiʻi Revised Statutes (“HRS”) §
571-50 (Supp. 1998),6 HRS § 635-56 (2016),7 and Waldecker v.
5 HFCR Rule 59(a) provides:
A new trial may be granted to all or any of the parties and
on all or part of the issues for good cause shown. On a
motion for a new trial, the court may open the judgment if
one has been entered, take additional testimony, amend
findings of fact and conclusions of law, or make new
findings and conclusions, and direct the entry of a new
judgment.
6 HRS § 571-50 provides, in relevant part:
Except as otherwise provided by this chapter, any decree or
order of the court may be modified at any time.
. . . .
A parent, guardian, custodian, or next friend of any child
whose status has been adjudicated by the court, or any
adult affected by a decree of the court, at any time may
petition the court for a rehearing on the ground that new
evidence, which was not known or not available through the
exercise of due diligence at the time of the original
(continued . . .)
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O’Scanlon, 137 Hawaiʻi 460, 375 P.3d 239 (2016). Father
requested that the court order a new trial on physical child
custody, legal child custody, visitation, relocation, child
support, the division of the parties’ assets and debts, and
attorney’s fees. Father argued the facts of the case had
changed “in significant and material ways” since trial because
Mother had moved to Arizona and the children had been living
exclusively with him.
On June 21, 2018, Mother filed oppositions to Father’s
motion to amend and motion for new trial. Mother argued that
Father’s motion to amend should be denied because Father had the
opportunity to present proposed findings of fact and conclusions
of law after trial, which he actually did. Mother argued
Father’s motion for new trial should be denied because she had
testified about her job offer in Arizona and the family court
(. . .continued)
hearing and which might affect the decree, has been
discovered. Upon a satisfactory showing of this evidence,
the court shall order a new hearing and make any
disposition of the case that the facts and the best
interests of the child warrant.
7 HRS § 635-56 provides:
In any civil case or in any criminal case wherein a verdict
of guilty has been rendered, the court may set aside the
verdict when it appears to be so manifestly against the
weight of the evidence as to indicate bias, prejudice,
passion, or misunderstanding of the charge of the court on
the part of the jury; or the court may in any civil or
criminal case grant a new trial for any legal cause.
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“knew there would likely be a separation between Mother and the
children” if she returned to Arizona to start her new job.
On July 5, 2018, Father filed his second notice of appeal
(“DL II”).
On July 11, 2018, a hearing was held on Father’s motion to
amend and motion for new trial. Near the end of the hearing,
Father’s counsel brought the timeliness of Father’s motions to
the attention of the court and the following exchange took
place:
[FATHER’S COUNSEL]: Your Honor, before we close the record,
at the beginning I think you identified the motions as
having been filed May 22. They were actually filed
technically and received on May 7th. The importance is
that those are ten-day motions. And so we just . . . want
the record to be clear that they were timely.
THE COURT: Okay. Yeah. I mean, it was – I’m just going by
the date that the file stamp appears when I look at the
motion.
[FATHER’S COUNSEL]: I understand. I think on the original
copy it has the received stamp of May 7th, which is when
they were actually submitted. And technically that was the
file date for purposes of compliance with the ten-day rule.
THE COURT: I understand. Okay. Thank you.
On July 16, 2018, the family court issued orders denying
Father’s motion to amend and motion for new trial. Both orders
stated that the family court had reviewed the parties’ motions
and memorandums, reviewed the files, heard the arguments of the
parties, and was “fully informed of the facts and circumstances
involved . . . .”
8
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On August 15, 2018, Father appealed the family court’s July
16, 2018 orders.
C. ICA proceedings
1. Father’s arguments
Father argued the family court erred in denying his motion
to amend because the family court lacked authority to enter the
Amended FOF/COL pursuant to HFCR Rule 52, which he contended
“expressly forbids the entry of any such findings if the
previously entered order already contains them.”
Father argued the family court erred in denying his motion
for new trial because he had “raised significant and material
new facts” regarding relocation, and it was an abuse of
discretion for the court to “not consider all evidence relevant
to the Children’s best interest.”
2. Mother’s arguments
Mother argued the family court properly denied Father’s
motion to amend because the Amended FOF/COL was supported by the
“voluminous testimony and evidence.”
Mother asserted the family court properly denied Father’s
motion for new trial because Mother had testified that she would
likely have to leave the children with Father in Hawaiʻi to
accept a job offer in Arizona.
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3. The ICA’s memorandum opinion
On December 26, 2019, the ICA filed its memorandum opinion.
The ICA held that Father’s HFCR Rule 52(b) motion to amend was
untimely. DL III, mem. op. at 5-6. HFCR Rule 52 requires
motions to amend the court’s findings to be made “not later than
10 days after entry of judgment . . . .” Because the family
court entered the Divorce Decree on April 26, 2018, Father’s
motion to amend was due on May 7, 2018.8 DL III, mem. op. at 6.
However, the ICA noted that Father’s motion to amend was not
stamped as “filed” until May 22, 2018. Id. The ICA also
determined that Father’s July 5, 2018 notice of appeal for DL II
divested the family court of jurisdiction to enter its July 16,
2018 order denying Father’s motion to amend. Id. (citing
Lowther v. Lowther, 99 Hawaiʻi 569, 578, 57 P.3d 494, 503 (App.
2002)). Therefore, the ICA held the order denying Father’s
motion to amend was void. Id.
The ICA similarly held that Father’s motion for new trial,
stamped as “filed” on May 22, 2018, was untimely because HFCR
Rule 59(b) requires motions for new trial to be filed within ten
days after entry of judgment, which would have been May 7, 2018.
8 Ten days after April 26, 2018 was Sunday, May 6, 2018. Pursuant to
HFCR Rule 6(a) (2015), in computing a period of time under the HFCR, “[t]he
last day of the period so computed shall be included unless it is a Saturday,
a Sunday or a holiday, in which event the period runs until the end of the
next day which is not a Saturday, a Sunday or a holiday.” Therefore,
Father’s filing deadline was Monday, May 7, 2018.
10
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DL III, mem. op. at 6-7. The ICA held the July 16, 2018 order
denying Father’s motion for new trial was void because Father’s
July 5, 2018 notice of appeal for DL II divested the family
court of jurisdiction to rule on the motion. DL III, mem. op.
at 7 (citing Lowther, 99 Hawaiʻi at 578, 57 P.3d at 503).
In discussing how Father’s notice of appeal divested the
family court of jurisdiction, the ICA noted that, “[h]ad
[Father’s] HFCR Rule 52(b) motion been timely filed, a notice of
appeal filed before timely disposition of the motion would have
been null and void and the family court would have retained
jurisdiction to decide the motion,” citing Richardson v. Sport
Shinko (Waikiki Corp.), 76 Hawaiʻi 494, 502, 880 P.3d 169, 177
(1994) (construing the 1985 version of Hawaiʻi Rules of Appellate
Procedure (“HRAP”) Rule 4(a)(4)). DL III, mem. op. at 6 n.8.
Because the ICA determined the family court’s orders
denying Father’s motion to amend and motion for new trial were
void and that both motions were untimely, the ICA remanded “with
instructions for the family court to enter orders denying both
motions on that basis.” Id.
On January 24, 2020, the ICA entered its judgment on
appeal.
D. Application for certiorari
Father’s Application presents two questions:
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(1) Did the ICA gravely err in finding [Father’s] motions
untimely, and not reviewing the motions on their
merits?
(2) Did the ICA gravely err by not reviewing the family
court’s denial of [Father’s] motion for new trial?
(Capitalization altered.)
Father asserts that his HFCR Rule 52(b) motion to amend and
HFCR Rule 59(b) motion for new trial were timely because both
were “received” by the family court on May 7, 2018, citing In re
Doe, 101 Hawaiʻi 220, 227 n.14, 65 P.3d 167, 174 n.14 (2003)
(stating that the clerk’s acceptance and date stamping of a
motion as “received” constitutes a “filing” for the purposes of
HFCR Rule 59).
Father argues that, following his third notice of appeal,
the family court was required to enter findings of fact and
conclusions of law pursuant to HFCR Rule 52(a). Therefore,
Father asserts there is no basis to review the family court’s
orders for the proper exercise of discretion. Father also
contends that there is “no reason to believe that the Family
Court actually exercised discretion in deciding the Motions,”
which constitutes an abuse of discretion. Father argues his
motion for new trial was also brought under HRS § 571-50 and the
family court’s “continuing authority to adjudicate the best
interest of the children,” and that the ICA should have
“reviewed the family court’s decision accordingly.”
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Finally, Father argues the ICA erred in holding the family
court was divested of jurisdiction to decide his motion to amend
and motion for new trial after he filed his notice of appeal in
DL II.
III. Standards of Review
A. Family court decisions
Generally, the family court possesses wide discretion in
making its decisions and those decisions will not be set
aside unless there is a manifest abuse of discretion.
Thus, we will not disturb the family court’s decision on
appeal unless the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant and its decision clearly exceeded the
bounds of reason.
Brutsch v. Brutsch, 139 Hawaiʻi 373, 381, 390 P.3d 1260, 1268
(2017) (quoting Kakinami v. Kakinami, 127 Hawaiʻi 126, 136, 276
P.3d 695, 705 (2012)).
It is well established that a family court abuses its
discretion where “(1) the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant; (2) the family court failed to
exercise its equitable discretion; or (3) the family
court’s decision clearly exceeds the bounds of reason.”
Id. (quoting Kakinami, 127 Hawaiʻi at 155-56, 276 P.3d at 724-25)
(emphasis omitted).
B. New Trial
“We review a court’s ruling upon a motion for new trial for
an abuse of discretion.” Doe v. Doe, 98 Hawaiʻi 144, 150, 44
P.3d 1085, 1091 (2002) (citing Shanghai Inv. Co., Inc. v. Alteka
Co., 92 Hawaiʻi 482, 491, 993 P.2d 516, 525 (2000). The family
court may grant a motion for a new trial “to all or any of the
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parties and on all or part of the issues for good cause
shown[.]” HFCR Rule 59(a).
IV. Discussion
A. The ICA erred in holding that Father’s HFCR Rule 52(b)
motion to amend and HFCR Rule 59 motion for new trial were
untimely
Father argues his HFCR Rule 52(b) motion to amend and HFCR
Rule 59 motion for new trial were timely because they were
submitted and stamped as “received” by the family court clerk on
the May 7, 2018 deadline, even though they were not stamped as
“filed” until May 22, 2018.
In Doe, 98 Hawaiʻi at 150-51, 44 P.3d at 1091-92, this court
held that the family court clerk’s acceptance and date stamping
of a HFCR Rule 59 motion as “received” was “a filing that
satisfied the jurisdictional requirements of HFCR Rule 59(a)
and (e).” Pursuant to HFCR Rules 52(b) and 59(b), Father was
required to file his motion to amend and motion for new trial
within ten days after the family court entered the April 26,
2018 Divorce Decree – May 7, 2018. Father’s motion to amend and
motion for new trial were both stamped as “received” by the
family court clerk on May 7, 2018. Therefore, Father’s motion
to amend and motion for new trial were timely, and the ICA erred
in holding they were untimely.
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B. The family court had jurisdiction to enter the July 16,
2018 orders
The ICA held the family court’s orders denying Father’s
motions were void because the filing of Father’s notice of
appeal in DL II divested the court of jurisdiction. DL III,
mem. op. at 6-7.
The general rule is that courts are divested of
jurisdiction upon the filing of a notice of appeal. Kakinami,
127 Hawaiʻi at 143, 276 P.3d at 712. However, in Buscher v.
Boning, 114 Hawaiʻi 202, 221, 159 P.3d 814, 833 (2007), this
court held that the 1999 version of HRAP Rule 4(a)(3)9
“supersedes the line of cases standing for the proposition that
the circuit court lacks jurisdiction to award costs after a
notice of appeal is filed” and “provides that the court has 90
days to dispose of a postjudgment motion [to reconsider, vacate,
9 HRAP Rule 4(a)(3) (1999) provided:
If, not later than 10 days after entry of judgment,
any party files a motion that seeks to reconsider, vacate,
or alter the judgment, or seeks attorney’s fee’ or costs,
the time for filing the notice of appeal is extended until
30 days after entry of an order disposing of the motion;
provided, that the failure to dispose of any motion by
order entered upon the record within 90 days after the date
the motion was filed shall constitute a denial of the
motion.
All timely post-judgment motions shall be disposed of
by order entered upon the record at the same time. The
notice of appeal shall be deemed to appeal disposition of
all post-judgment motions that are filed within 10 days
after entry of judgment.
The 90-day period shall be computed as provided in
Rule 26.
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or alter the judgment, or seeks attorney’s fees or] costs,
regardless of when the notice of appeal was filed.” Although
HRAP Rule 4(a)(3) has since been amended,10 the language
providing that a court has 90 days to dispose of a timely post-
judgment motion has not changed substantively. The family court
denied Father’s motion to amend and motion for new trial on July
16, 2018 – within 90 days after the motions were filed on May 7,
2018. Therefore, the ICA erred in holding that the family
court’s orders denying Father’s motion to amend and motion for
new trial were void for lack of jurisdiction.
10 HRAP Rule 4(a)(3) (2016), the rule in effect when Father filed his
motion to amend, motion for new trial, and notice of appeal, provided:
If any party files a timely motion for judgment as a
matter of law, to amend findings or make additional
findings, for a new trial, to reconsider, alter or amend
the judgment or order, or for attorney’s fees or costs, and
court or agency rules specify the time by which the motion
shall be filed, then the time for filing the notice of
appeal is extended for all parties until 30 days after
entry of an order disposing of the motion. The presiding
court or agency in which the motion was filed shall dispose
of any such post-judgment motion by entering an order upon
record within 90 days after the date the motion was filed.
If the court or agency fails to enter an order on the
record, then, within 5 days after the 90th day, the clerk
of the relevant court or agency shall notify the parties
that, by operation of this Rule, the post-judgment motion
is denied and that any orders entered thereafter shall be a
nullity. The time of appeal shall run from the date of
entry of the court or agency’s order disposing of the post-
judgment motion, if the order is entered within the 90
days, or from the filing date of the clerk’s notice to the
parties that the post-judgment motion is denied pursuant to
the operation of the Rule.
The notice of appeal shall be deemed to appeal the
disposition of all post-judgment motions that are timely
filed after entry of the judgment or order.
The 90-day period shall be computed as provided in
Rule 26 of these Rules.
(Emphasis added.) Compare supra note 9.
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Additionally, the ICA stated that, “[h]ad [Father’s] HFCR
Rule 52(b) motion been timely filed, a notice of appeal filed
before timely disposition of the motion would have been null and
void,” citing Richardson, 76 Hawaiʻi at 502, 880 P.2d at 177. DL
III, mem. op. at 6 n.8 (emphasis added). However, Richardson
construed the 1985 version of HRAP Rule 4(a)(4), which
specifically stated that “[a] notice of appeal filed before the
disposition of any of the above motions shall have no effect.”
Richardson, 76 Hawaiʻi at 500-02, 880 P.2d at 175-77. HRAP
Rule 4 was amended to remove this language prior to the filing
of the notice of appeal in this case. See HRAP Rule 4(a)
(2016). Therefore, Richardson no longer controls due to the
amendments to HRAP Rule 4(a).
C. The family court did not abuse its discretion in denying
Father’s motion to amend and motion for new trial
Father argues the family court “may” have abused its
discretion by denying his motion to amend and motion for new
trial because it incorrectly believed they were untimely. The
record does not support this speculative contention. At the
July 11, 2018 hearing on Father’s motions, Father’s counsel
specifically brought the motions’ timeliness to the attention of
the family court. Father’s counsel stated, “I think on the
original copy [of the motions] it has the received stamp of May
7th, which is when they were actually submitted. And
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technically that was the file date for purposes of compliance
with the ten-day rule.” The family court responded, “I
understand. Okay. Thank you.” Furthermore, the court’s orders
ruled on the merits of Father’s motions and did not state that
the motions were untimely.
Father also argues that there is “no basis to believe that
the Family Court actually evaluated [Father’s] motion[s] and
supporting evidence, and actually exercised discretion in
denying it.” However, the family court’s orders stated that the
court had reviewed the motions and memorandums, and a hearing
was held on both motions. Therefore, the orders indicated that
the family court evaluated the written submissions, referenced
the hearing on both motions at which extensive arguments were
presented, and denied Father’s motions based upon its review of
the merits of the motions.
Father contends that the family court was required to enter
findings of fact and conclusions of law after he filed his third
notice of appeal pursuant to HFCR Rule 52(a). HFCR Rule 52(a)
provides that, upon notice of appeal, “the court shall enter its
findings of fact and conclusions of law where none have been
entered . . . .” In this case, the family court entered
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complete findings of fact and conclusions of law on April 23,
2018.11 Therefore, Father’s argument is without merit.
1. The family court did not abuse its discretion in
denying Father’s motion to amend
Father’s HFCR Rule 52 motion to amend argued the family
court’s findings were “unsupported by any credible evidence in
the record.” Father challenged nearly every finding and
conclusion in the April 23, 2018 FOFs/COLs and the Amended
FOF/COL, and he attached proposed findings of fact and
conclusions of law substantively similar to those he had
submitted to the court on April 20, 2018.
The family court did not adopt Father’s April 20, 2018
proposed findings of fact and conclusions of law. However, the
family court considered and held a hearing on Father’s motion to
amend, which asked the court to enter findings and conclusions
substantively similar to those Father had previously proposed.
To the extent Father argues the evidence supporting the family
court’s findings and conclusions was not credible, appellate
courts “will not pass upon issues dependent upon the credibility
of witnesses and the weight of the evidence . . . .” Fisher v.
Fisher, 111 Hawaiʻi 41, 46, 137 P.3d 355, 360 (2006). Therefore,
11 On April 26, 2018, the family court filed its first amended findings of
fact and conclusions of law, which did not amend the April 23, 2018 findings
of fact and conclusions of law, but merely added a child support guidelines
worksheet and property division chart as attachments.
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the family court did not abuse its discretion by denying
Father’s motion to amend.
2. The family court did not abuse its discretion in
denying Father’s motion for new trial
Father argues that his motion for new trial was brought
pursuant to HFCR Rule 59, HRS § 571-50, and “the Family Court’s
ongoing powers confirmed in [Waldecker, 137 Hawaiʻi at 470, 375
P.3d at 249],”12 and that the ICA “should have reviewed the
family court’s decision accordingly.”
Father’s motion for new trial argued that the facts had
materially changed since the conclusion of trial due to Mother’s
move to Arizona, and therefore a new trial should be held to
determine the best interest of the children. Father also argued
that the family court’s findings, including findings of family
violence, were unsupported by the evidence.
The family court did not abuse its discretion by denying
Father’s motion for new trial under HFCR Rule 59 (providing a
motion for a new trial may be granted “on all or part of the
issues for good cause shown[.]”). Mother testified at trial
that she would likely move to Arizona to start her job in
January 2018. The family court knew Mother had actually moved
12 While Waldecker provides that “any custody award shall be subject to
modification or change whenever the best interests of the child require or
justify the modification or change,” it does not discuss motions for new
trial. 137 Hawaiʻi at 470, 375 P.3d at 249 (quoting HRS § 571-46 (Supp.
2013)).
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to Arizona and that Father was taking care of the children prior
to entering the Divorce Decree.13 The family court also
considered Father’s motion for new trial and held a hearing on
the motion.
The family court also did not abuse its discretion in
denying Father’s motion for new trial pursuant to HRS § 571-50.
HRS § 571-50 provides:
A parent . . . of any child whose status has been
adjudicated by the court . . . at any time may petition the
court for a rehearing on the ground that new evidence,
which was not known or not available through the exercise
of due diligence at the time of the original hearing and
which might affect the decree, has been discovered. Upon a
satisfactory showing of this evidence, the court shall
order a new hearing and make any disposition of the case
that the facts and the best interests of the child warrant.
(Emphasis added.)
Father argues that Mother’s move to Arizona and his months
taking care of the children constitute “new evidence.” However,
as previously discussed, Mother testified at trial that she
would probably need to move to Arizona to start her new job.
Father also testified that he would be able to care for the
children if Mother moved to Arizona. The family court was aware
that Mother had moved and that the children were in Father’s
care when it entered the Divorce Decree, meaning Father’s “new
evidence” did not actually “affect the decree.” See HRS
13 At a March 14, 2018 hearing on Mother’s motion for pre-decree relief,
Mother’s counsel explained to the family court that Mother was currently
living in Arizona and that she had been visiting the children in Hawaiʻi on
alternating weekends. The family court issued the Divorce Decree a month
later on April 26, 2018.
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§ 571-50. Therefore, Father did not make a satisfactory showing
of new evidence requiring the family court to order a new
hearing under HRS § 571-50.
V. Conclusion
We therefore reverse the ICA’s judgment on appeal except to
the extent it affirmed the family court’s order denying Father’s
HFCR Rule 60(a) motion for relief from judgment, and we affirm
the family court’s orders denying Father’s motion to amend and
motion for new trial.
Philip Leas /s/ Mark E. Recktenwald
for Petitioner
/s/ Paula A. Nakayama
CL
Respondent pro se /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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