JL v. MV ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-SEP-2020
08:45 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JL, Petitioner-Appellee,
v.
MV, Respondent-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-P NO. 13-1-6287)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)
This case involves a dispute between Petitioner-
Appellee JL (Mother) and Respondent-Appellant MV (Father) over
which school their minor child (Child) should attend. Father
appeals from the "Order for Relief After Judgment or Order"
entered by the Family Court of the First Circuit on November 18,
2019 (November 2019 Order).1 For the reasons explained below, we
affirm the November 2019 Order.
BACKGROUND
Mother and Father were never married. On August 1,
2013, Mother filed a "Petition for Paternity or for Custody,
Visitation and Support Orders After Voluntary Establishment of
Paternity" (Petition). On October 3, 2013, the family court
1
The Honorable Natasha R. Shaw signed the November 2019 Order.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
entered a stipulated order2 that awarded joint legal custody of
Child to Mother and Father and sole physical custody to Mother.
The order also set a temporary visitation schedule for Father
pending trial, and ordered Father to pay temporary child support.
A trial was held on February 20, 2014. On April 4,
2014, the family court entered a "Decision & Order" that
addressed Father's visitation rights and payment of child
support, medical insurance, and uninsured medical costs.3
On September 21, 2018, Mother filed a motion seeking
modification of Father's visitation rights and child support
obligations. On November 9, 2018, Father filed his own motion
seeking joint physical custody of Child and modification of child
support. A trial on both motions was held on April 29, 2019. On
May 31, 2019, the family court entered its "Decision and Order
Following Trial" (May 2019 Order).4 That order addressed, among
other things, joint legal and physical custody of Child, subject
to a time-sharing schedule. Of relevance to this appeal, the May
2019 Order provided:
1. Legal Custody. The parties shall maintain joint
legal custody of the child. The parties shall confer on all
major legal decisions regarding the child, including
decisions regarding those affecting education . . . .
Major legal decisions shall include . . . major
decisions regarding the child's education, such as choice of
school [and] change in school . . . .
Each party shall notify the other in writing of
any major decision that needs to be made for a child as soon
as possible after learning of the issue that needs to be
decided. Parties are to respond to the other parent's
request for a decision or any other request within 24-hours.
The parties shall communicate with each other in an effort
to reach an agreement regarding the decision. If the
2
The Honorable Linda S. Martell signed the stipulated order.
3
The Honorable Linda S. Martell presided over the trial and signed
the April 4, 2014 Decision & Order.
4
The Honorable Kristine Y. Yoo presided over the trial and signed
the May 2019 Order.
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
parties are unable to agree on the issue, they shall discuss
it with their parenting counselor before either party files
a motion with the Court.
. . . .
3. Timesharing. The Court finds the following
timesharing schedule to be in the child's best interest.
a. Regular Timesharing Schedule. The
parties' regular timesharing schedule
shall be as follows: FATHER shall have the
child every Friday from afterschool [sic]
until Sunday evening at 6:00 p.m. on the
first (1st), second (2nd), and fourth
(4th) weekends of each month. Regular
Pick-up/Drop-off Arrangement: FATHER shall
pick up the child immediately afterschool
[sic] on Fridays. MOTHER shall pick up
the child at 6:00 p.m. from FATHER's
residence on Sundays.
. . . .
19. Mediation. The parties are hereby ordered to
participate in mediation with the Mediation Center of the
Pacific, or with some other professional mediator, prior to
filing any additional motions before this Court, and/or if
the parties have any dispute regarding a legal custody issue
in the future. Failure to participate in mediation prior to
filing a motion, absent exigent circumstances, may result in
sanctions being imposed by this Court, which could include
dismissal of any motion, an order to pay reasonable
attorneys' fees and costs, or any other appropriate sanction
the Court deems just and equitable under the circumstances.
On August 15, 2019, Father filed the motion that gave
rise to this appeal. He claimed that the May 2019 Order required
Father and Mother to agree before changing Child's school, but
Mother changed Child's school on August 5, 2019, without Father's
agreement. He also claimed that Mother did not list him as the
first emergency contact for Child's new school. Father's motion
was heard on September 4, 2019.5 The November 2019 Order granted
Father's request to be named as the first emergency contact for
Child, and also ordered Mother to list Father as an authorized
person to pick Child up from Child's after-school programs. Of
relevance to this appeal, the November 2019 Order provided:
5
The Honorable Natasha R. Shaw presided.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
1. [Father]'s request for an order directing re-
enrollment of the subject child in [Child's former school]
is denied. Considering the best interests of the child,
[Mother]'s residence and place of employment, and the time
schedule in effect, it is not in [Child's] best interests to
return to [Child's former school] and [Child] shall remain
enrolled in [Child's new school].
The family court entered findings of fact and conclusions of law
on January 8, 2020, after Father filed his notice of appeal,
pursuant to Rule 52(a) of the Hawai#i Family Court Rules.
DISCUSSION
Father's opening brief contains five separately
numbered points of error, but argues only two: (1) the family
court's November 2019 Order violated the doctrines of res
judicata (claim preclusion) and collateral estoppel (issue
preclusion); and (2) the November 2019 Order violated the law of
the case established by the May 2019 Order. The applicability of
preclusive doctrines such as res judicata, collateral estoppel,
or law of the case present questions of law that we review de
novo. In re Thomas H. Gentry Revocable Tr., 138 Hawai#i 158,
168, 378 P.3d 874, 884 (2016).
Res Judicata/Claim Preclusion and
Collateral Estoppel/Issue Preclusion
Father argues that the May 2019 Order had preclusive
effect over the November 2019 Order because: (a) the May 2019
Order required the parties to mediate disputed issues and to see
a family counselor before filing a post-decree motion; and
(b) the issue of whether Child should change schools was raised
during the April 29, 2019 evidentiary hearing, but the family
court did not authorize a change. We disagree.
Res judicata (claim preclusion) and collateral estoppel
(issue preclusion) are legal doctrines that limit a party to one
opportunity to litigate a case to prevent inconsistent results
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
among multiple suits, and to promote finality and judicial
economy. Bremer v. Weeks, 104 Hawai#i 43, 53, 85 P.3d 150, 160
(2004). They are, however, separate doctrines that involve
distinct questions of law. Id.Claim preclusion "prohibits a party from relitigating a
previously adjudicated cause of action." Bremer, 104 Hawai#i at
53, 85 P.3d at 160 (citation omitted). The party asserting claim
preclusion has the burden of establishing that (1) there was a
final judgment on the merits, (2) both parties are the same or in
privity with the parties in the original suit, and (3) the claim
decided in the original suit is identical with the one presented
in the action in question. Id. at 54, 85 P.3d at 161.
Issue preclusion "applies to a subsequent suit between
the parties or their privies on a different cause of action and
prevents the parties or their privies from relitigating any issue
that was actually litigated and finally decided in the earlier
action." Bremer, 104 Hawai#i at 54, 85 P.3d at 161 (citation
omitted). The party asserting issue preclusion must establish
that (1) the issue decided in the prior suit is identical to the
one presented in the action in question, (2) there is a final
judgment on the merits, (3) the issue decided in the prior suit
was essential to the final judgment, and (4) the party against
whom issue preclusion is asserted was a party, or is in privity
with a party, to the prior suit. Id. It is not necessary that
the party asserting issue preclusion in the second suit was a
party in the first suit. Id.Neither doctrine applies in this case, which involves a
child custody dispute to which Hawaii Revised Statute (HRS)
§ 571-46 (2018) applies. The statute, titled "Criteria and
procedure in awarding custody and visitation; best interest of
the child[,]" provides, in relevant part:
(a) In . . . any . . . proceeding where there is at issue
a dispute as to the custody of a minor child, the [family]
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
court, during the pendency of the action . . . 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:
. . . .
(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[.]
(Underscoring added).
Waldecker v. O'Scanlon, 137 Hawai#i 460, 375 P.3d 239(2016) is instructive. In that case, mother and father were
married and had a child. In anticipation of their divorce, they
entered into a settlement agreement that was incorporated into a
divorce decree. The agreement provided, and the decree stated,
that mother and father would have joint physical custody of their
child, but if either moved more than 200 miles away from O#ahu,
sole physical custody would automatically revert to the remaining
parent. Four years later, mother anticipated moving to Florida
with her new husband. She petitioned the family court to change
the child custody arrangement, contending that there had been a
material change in circumstances that required the family court
to examine whether a change in custody would be in the child's
best interests. Father argued that the divorce decree
specifically provided for the child's custody if a parent
relocated, and that the family court should enforce the divorce
decree without performing a "best interests of the child"
analysis.
The family court agreed with father and awarded sole
physical custody of child to father, as provided for by the
divorce decree. Mother appealed. Even though the divorce decree
specifically provided that father would gain sole physical
custody if mother relocated more than 200 miles away from O#ahu,
the supreme court held that "the family court erred by not
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
considering the best interests of the child as required by HRS
§ 571–46." Waldecker, 137 Hawai#i at 466, 375 P.3d at 245.
After discussing the existing case law on the issue, the supreme
court concluded:
that the requirement of a material change in circumstances
is inconsistent with HRS § 571–46. Accordingly, we overrule
Nadeau[6] and Hollaway[7] 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, there is a single inquiry which focuses on the
best interests of the child. As this court held in Dela
Cruz,[8] 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).
Id. at 470, 375 P.3d at 249 (footnotes and first emphasis added).
In this case the May 2019 Order required that if the
parties did not agree about a change in Child's school, "they
shall discuss it with their parenting counselor before either
party files a motion with the Court." Father testified, during
the September 4, 2019 evidentiary hearing, that Mother raised the
change of schools issue during a mediation in July 2019, but no
agreement was reached. Father also testified that he met with a
counselor recommended by his attorney, and with a counselor
6
Nadeau v. Nadeau, 10 Haw. App. 111, 861 P.2d 754 (1993).
7
Hollaway v. Hollaway, 133 Hawai#i 415, 329 P.3d 320 (App. 2014).
8
Dela Cruz v. Dela Cruz, 35 Haw. Terr. 95 (1939).
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
selected by Mother, on the choice-of-school issue before filing
his August 15, 2019 motion.
Although Mother did not file a motion before changing
Child's school, Father's August 15, 2019 motion brought the issue
before the family court after the parties could not resolve it
through mediation or counseling. The record indicates that
Mother had custody of Child during the week. Mother's place of
residence changed, resulting in a change in Child's public school
district. Child's old school was located across the island from
Child's new school. The family court found that if Child was
returned to the old school, the lengthy commute would not have
been in Child's best interest. Although Father's opening brief
cites the family court's finding of Child's best interest as
error, Father presents no argument about why the family court
abused its discretion in making the finding. The point is
waived. See Hawai#i Rules of Appellate Procedure Rule 28(b)(7)
("Points not argued may be deemed waived.").
Law of the Case Doctrine
The law of the case doctrine has been applied under two
circumstances. First, if an appeal is taken, "a determination of
a question of law made by an appellate court in the course of an
action becomes the law of the case and may not be disputed by a
reopening of the question at a later stage of the litigation."
Fought & Co. v. Steel Eng'g & Erection, Inc., 87 Hawai#i 37, 48-
49, 951 P.2d 487, 498-99 (1998) (citation omitted). The family
court's November 2019 Order at issue in this case was not entered
after a remand. The appellate law of the case doctrine has no
application in this case.
Second, in cases upon which more than one judge has
presided, "the usual practice of courts to refuse to disturb all
prior rulings in a particular case" is referred to as the "law of
the case" doctrine. Chun v. Bd. of Trs. of Emps.' Ret. Sys. of
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
State of Hawai#i, 92 Hawai#i 432, 441, 992 P.2d 127, 136 (2000)
(citation omitted). "Unless cogent reasons support the second
court's action, any modification of a prior ruling of another
court of equal and concurrent jurisdiction will be deemed an
abuse of discretion." Wong v. City & Cty. of Honolulu, 66 Haw.
389, 396, 665 P.2d 157, 162 (1983) (emphasis and citations
omitted).
The law of the case doctrine was not violated here
because the November 2019 Order did not modify the terms of the
May 2019 Order. The May 2019 Order did not contain any provision
about which school Child would attend. The May 2019 Order
actually anticipated potential future disagreements on "major
decisions regarding the child's education, such as choice of
school [and] change in school," and incorporated alternative
dispute resolution provisions for mediation and counseling before
any party could file a motion for relief. We hold that the
family court's decision to allow Child to remain enrolled in
Child's new school did not violate the law of the case doctrine.
CONCLUSION
Based upon the foregoing, the order entered by the
Family Court of the First Circuit on November 18, 2019, is
affirmed.
Dated: Honolulu, Hawai#i, September 9, 2020.
On the briefs:
/s/ Lisa M. Ginoza
Thomas D. Farrell, Chief Judge
for Petitioner-Appellee.
/s/ Derrick H.M. Chan
Samuel P. King, Jr., Associate Judge
for Respondent-Appellant.
/s/ Keith K. Hiraoka
Associate Judge
9