RQ v. KQ ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-MAR-2023
08:13 AM
Dkt. 247 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
RQ, Plaintiff-Appellant, v.
KQ, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 10-1-2770)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
Self-represented Plaintiff-Appellant RQ (Father)
appeals from the January 11, 2021 "Order Re: Hearing on
[Father's] Motion Filed March 6, 2020 and [Defendant-Appellee KQ
(Mother)]'s Motion Filed March 13, 2020" (January 11, 2021
Order), entered in the Family Court of the First Circuit (Family
Court).1/ Father also challenges the Family Court's February 22,
2021 Findings of Fact and Conclusions of Law (FOFs/COLs).
Father and Mother were divorced in 2012. The parties'
August 1, 2012 Divorce Decree (Divorce Decree) awarded Mother
sole legal and physical custody of the parties' then-minor
children, with visitation to Father. In 2016, the parties
entered into a Stipulated Order for Post-Decree Relief
(Stipulated Order), which, inter alia, awarded Mother and Father
joint physical custody of their minor children with a
visitation/time-sharing schedule, and provided that "both parents
expressly agree to bear their own burden of child support."
1/
The Honorable Brian A. Costa presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Father filed motions on March 6, 2020, August 26,
2020,2/ and September 1, 2020, seeking sole legal and physical
custody of the parties' remaining minor child (Child),3/ child
support, and "enforcement" of the Stipulated Order. On March 13,
2020, Mother filed a motion for post-decree relief (March 13,
2020 Motion), seeking sole physical custody of Child and child
support. Following hearings on June 10, 2020, July 22, 2020, and
October 30, 2020, the Family Court entered the January 11, 2021
Order, which, inter alia, awarded Mother sole physical custody of
Child, subject to Father's visitation rights, and ordered that
Mother retain sole legal custody of Child.
On appeal, Father appears to contend that the Family
Court erred by: (1) determining there was no cause of action
against Mother for criminal custodial interference, and ordering
a temporary parenting plan without a custody investigation or a
hearing on the merits; (2) failing to later reinstate equal time-
sharing of Child during a pandemic and improperly relying upon
the parties' 2012 Divorce Decree; (3) subjecting Father to
"wrongful detainment and witness intimidation"; (4)(a) refusing
to enforce an interim "Protection from Parental Disputes Order,"
(b) denying Father's motions without an evidentiary hearing, and
(c) awarding Mother sole physical custody of Child and ruling on
other custody-related matters without sufficient evidence; and
(5) ordering Father to give Mother, in lieu of child support, the
monthly social security payments he receives for Child's benefit.
Initially, we note that Father has not provided a
sufficient record for our review of his contentions on appeal.
Without transcripts of the relevant proceedings, this court is
left with an incomplete record of what transpired.4/ See HRAP
2/
The record indicates that Father later withdrew his March 6, 2020
and August 26, 2020 motions.
3/
The parties' other children were at least 18 years old at the time
of the Family Court's rulings at issue in this appeal.
4/
We further note that Father's opening brief fails to comply with
Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(4) and (7) in material
respects. Nonetheless, as Father is self-represented, we address Father's
arguments "to the extent they can reasonably be discerned." Wagner v. World
Botanical Gardens, Inc., 126 Hawai#i 190, 193, 268 P.3d 443, 446 (App. 2011).
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Rule 10(b)(1)(A) and (b)(3); State v. Hoang, 93 Hawai#i 333, 336,
3 P.3d 499, 502 (2000) (holding that defendant's failure to
include arraignment transcript in record precluded review of
claimed error); Bettencourt v. Bettencourt, 80 Hawai#i 225, 230,
909 P.2d 553, 558 (1995) ("The burden is upon appellant in an
appeal to show error by reference to matters in the record, and
he or she has the responsibility of providing an adequate
transcript." (brackets omitted) (quoting Union Building Materials
Corp. v. The Kakaako Corp., 5 Haw. App. 146, 151, 682 P.2d 82, 87
(1984))). Nonetheless, we attempt to address Father's
contentions to the extent possible.
Upon careful review of the record and the briefs
submitted by Father,5/ and having given due consideration to the
arguments advanced and the issues raised on appeal, as well as
the relevant statutory and case law, we resolve Father's
contentions as follows.
(1) In his first point of error, Father appears to
contend that the Family Court erred at the June 10, 2020 hearing
in two respects. First, Father argues that the Family Court
erred in determining there was no "cause of action" for Mother's
"violation of HRS § 707-727." HRS § 707-727 (2014), which is
part of Hawaii's Penal Code, provides in part that a person
commits the offense of custodial interference in the second
degree if "[t]he person intentionally or knowingly takes,
entices, conceals, or detains a minor knowing that the person has
no right to do so[.]"
At the outset, Father has not shown how this alleged
error was preserved at the June 10, 2020 hearing and, without a
transcript, we cannot determine what, if anything, was said or
determined regarding this issue. In any event, this appeal
involves post-decree divorce matters, not a criminal charge
against Mother for custodial interference. See Schmidt v.
Carroll, CAAP-XX-XXXXXXX, 2016 WL 2940850, at *1-2 (Haw. App.
Apr. 29, 2016) (SDO) (rejecting father's argument that the Family
Court erroneously disregarded mother's violation of the custodial
5/
Mother did not file an answering brief pursuant to HRAP Rule
28(c).
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interference statute, where, inter alia, the case was not an
appeal of a criminal proceeding, and Father failed to provide any
Hawai#i precedent or persuasive authority that the family court
was obligated in custody proceedings to treat Mother's relocation
as a violation of the custodial interference statute).6/ Thus,
Father has not met his burden of demonstrating error by the
Family Court.
Second, Father appears to argue that at the June 10,
2020 hearing, the Family Court improperly changed the parties'
custody arrangements by ordering a temporary parenting plan that
provided Father "parenting time" with Child every Saturday
morning to Monday morning.7/ Specifically, Father appears to
argue that the Family Court's temporary parenting plan was
improperly based "solely" on Mother's counsel's uncorroborated
"testimony," which raised a "collaterally estopped claim."
However, absent a transcript of the June 10, 2020 hearing, we
cannot determine precisely what happened at the hearing and thus
have an insufficient record to review this contention.
Father also appears to contend that the Family Court
violated his due process rights by imposing the temporary
parenting plan without ordering a custody investigation into
Mother's child abuse allegations and relying on Mother's
counsel's "testimony . . . without requiring any evidence or a
hearing on the merits[.]"
6/
Father also appears to argue that Mother's "refusal to honor" the
Stipulated Order "is a violation of HRS § 584-17(c)." HRS chapter 584,
Hawaii's Uniform Parentage Act, concerns actions to establish parent-child
relationships (e.g., paternity actions) and the enforcement of duties arising
from such relationships. See Child Support Enf't Agency v. Doe, 98 Hawai #i
58, 63, 41 P.3d 720, 725 (App. 2001). Again, without a transcript, we cannot
determine what, if anything, was said or determined regarding this statute
during the June 10, 2020 hearing.
For the same reason, we are unable to review Father's apparent argument
that Mother and her counsel violated HRS § 571-81(a) and HRS § 710-1077(g) by
acting "in contempt for" the Family Court's January 29, 2020 order dissolving
a temporary restraining order in a separate case, Case No. 1DA20-1-000102. In
any event, the January 29, 2020 order does not order Mother to do (or not do)
anything, and this appeal does not arise from Case No. 1DA20-1-000102.
7/
Although Father argues that the Family Court erred in awarding
Mother "injunctive relief,"neither the June 10, 2020 hearing minutes nor the
Family Court's July 14, 2020 order (July 14, 2020 Order), which memorialized
the court's June 10, 2020 oral orders, reference injunctive relief; rather,
Father appears to refer to the Family Court's "temporary parenting plan."
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Father has a fundamental liberty interest in the care,
custody, and control of Child, and the State may not deprive him
of this interest without providing a fair procedure for
deprivation. See In re Doe, 99 Hawai#i 522, 533, 57 P.3d 447,
458 (2002); Doe v. Doe, 120 Hawai#i 149, 168, 202 P.3d 610, 629
(App. 2009). "At its core, procedural due process of law
requires notice and an opportunity to be heard at a meaningful
time and in a meaningful manner before governmental deprivation
of a significant liberty interest." Doe, 120 Hawai#i at 168, 202
P.3d at 629 (quoting State v. Bani, 97 Hawai#i 285, 293, 36 P.3d
1255, 1263 (2001)).
Father does not cite any authority requiring the Family
Court to order a custody investigation in these circumstances.
HRS § 571-46(a)(4) (2018) provides in part that "[w]henever good
cause appears therefor, the court may require an investigation
and report concerning the care, welfare, and custody of any minor
child of the parties." (Emphasis added.) The Family Court has
"considerable discretion in requiring investigations and reports
concerning the care, welfare, and custody" of the parties' minor
child. Turoff v. Turoff, 56 Haw. 51, 55, 527 P.2d 1275, 1278
(1974); see also Tri-S Corp. v. W. World Ins. Co., 110 Hawai#i
473, 489, 135 P.3d 82, 98 (2006) (stating that "may" implies
discretion). Father does not claim he requested an investigation
or otherwise point to where in the record he made such a request.
Father thus fails to demonstrate that the Family Court erred by
not ordering a custody investigation.
Moreover, our review of the due process issue is
hindered by an incomplete record. Court minutes indicate that
the Family Court's June 10, 2020 hearing included "testimony" by
Mother and Father.8/ Absent a transcript, however, we cannot
determine precisely what occurred during the hearing. As it is
Father's responsibility to provide an adequate record, Father has
not met his burden of demonstrating error.
In any event, Father does not assert, and the record
does not indicate, that the Family Court relied on the temporary
8/
Court minutes also indicate that the Family Court held a July 22,
2020 hearing that included "testimony" by Mother and Father, and an
evidentiary hearing on October 30, 2020.
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parenting plan (or resulting circumstances) to ultimately award
Mother sole physical custody of Child. Rather, the FOFs indicate
that the court's custody ruling was based on an October 12, 2020
Order for Protection (Protective Order) entered against Father in
a separate case, Case No. 1DA-20-1-002043 (Protective Order
Case),9/ as well as the court's own findings in this case that
Father engaged in family violence and did not overcome that
finding:
43. [The Family Court in the Protective Order Case]
found that Father committed domestic abuse against the Minor
Child, and this Court finds that is a sufficient change in
circumstances to warrant a change in physical custody based
upon the best interest of the Minor Child.
. . . .
45. The Court finds that Father has engaged in
physical and emotional abuse of the Minor Child, Father has
a poor relationship with the Minor Child, Father does not
put the Minor Child's needs above his own, the Minor Child
does not feel safe in Father's care, Father has an anger
management problem and would benefit from participating in
treatment for anger management, and the parties would
benefit from engaging in parenting classes and other
services offered by [Child Welfare Services].
46. The court finds that Father engaged in family
violence with Mother and the Minor Child as defined in HRS §
571-2, and that the presumption contained in HRS § 571-
46(a)(9) is applicable.
47. This Court finds that pursuant to HRS § 576-
46(a)(9), Father did not meet his burden in overcoming the
finding of family violence. Based upon Mother's Order for
Protection and the records and files therein, and the
credible testimony and evidence presented herein, sole
physical custody shall be awarded to Mother.
On this record, Father has failed to establish error by the
Family Court.
(2) In his second point of error, Father appears to
contend that the Family Court erred at the July 22, 2020 hearing
by failing to amend the temporary parenting plan to reinstate
"equal time-share/joint custody in the face of a global
pandemic," and that such refusal constitutes "wrongful
emancipation" and/or "child neglect." However, absent a
transcript of the July 22, 2020 proceeding, we have an
9/
The Honorable Natasha R. Shaw presided. The Protective Order,
granted to Mother on behalf of Child, was set to expire on April 12, 2021, and
provided, inter alia, that Father have supervised visitation with Child.
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insufficient record to review this contention.
Father also appears to contend that the Family Court
erred on July 22, 2020, by relying on the Divorce Decree to
"reinstat[e] sole legal and physical custody" to Mother. Father
appears to argue that the Divorce Decree is subject to Hawai#i
Family Court Rules (HFCR) Rule 60(b)(3)10/ relief "as shown by the
records originating since 01/31/2012" and by Mother's testimony
on October 30, 2020, in which she allegedly "admitted to perjury
reaching back to the date of 08/01/2012[.]"
Father's argument lacks merit for three reasons.
First, the record does not show that the Family Court granted
Mother sole legal and physical custody on July 22, 2020. Second,
absent transcripts of the relevant hearings, we have an
insufficient record to review Father's contention, and he has not
met his burden of demonstrating error. Third, Father has failed
to show that he timely sought and was entitled to HFCR Rule
60(b)(3) relief from the Divorce Decree.
(3) In his third point of error, Father argues that
(a) "prior to the conclusion of" the Family Court's July 22, 2020
hearing, the Family Court unlawfully "detained" him by
prohibiting the parties from leaving the courtroom until they
signed an "interim order,"11/ and (b) while Father was "unlawfully
detained," Mother's counsel engaged in "witness intimidation" by
instructing Father to make an accounting of gifts from Mother and
recommending he seek employment to support "an upcoming judgment
for child support[.]"
Father does not point to, nor can we find, any part of
the record supporting his arguments.12/ Father's third point of
10/
While Father cites Hawai#i Rules of Civil Procedure (HRCP) Rule
60(b)(3), which is inapplicable to family court proceedings, see HRCP Rule
81(a)(4), it appears Father refers to HFCR Rule 60(b)(3), which is
substantially identical to HRCP Rule 60(b)(3).
11/
The "interim order" appears to be the Family Court's July 22, 2020
order, which reflects Father's signature approving the order as to form.
12/
We thus do not address Father's contention that the Family Court's
and/or opposing counsel's alleged actions constitute violations of HRS § 710-
1071, 18 U.S.C. § 242, 42 U.S.C. § 1985, the Americans with Disabilities Act,
and his first, fourth, fifth, and fourteenth amendment rights under the U.S.
Constitution.
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error thus lacks merit.
(4) In his fourth point of error, Father appears to
argue that the Family court erred at the October 30, 2020 hearing
in three respects.13/ First, Father argues that the Family Court
infringed upon his religious freedom, due process, and equal
protection rights by improperly refusing to enforce its
"Protection from Parental Disputes" order, which was attached to
the July 14, 2020 order, and which prohibited each party from
interfering with the other's parent-child relationship.
Specifically, Father (a) contends that on October 30, 2020,
Mother "testified to acts in violation of" the Protection from
Parental Disputes order, and (b) describes alleged events that
"clearly show" Mother violated the order. But Father fails to
provide supporting record citations or a transcript and thus
fails to meet his burden to demonstrate error.
Second, Father argues that the Family Court erred by
"repeatedly" denying Father's motions without an evidentiary
hearing. But Father fails to specifically identify the motions
or provide further argument. This point is thus waived. See
HRAP Rule 28(b)(7).
Third, Father contends that the Family Court issued
"irregular rulings unsupported by the evidence and made in the
face of [Mother's] acts of statutory violations and fraud on the
court." To this end, as best as we can discern, Father appears
to assert three arguments:
(a) First, Father appears to challenge the sufficiency
of the evidence supporting the Family Court's decisions: to award
Mother sole legal and physical custody of Child, with visitations
by Father; to deny Father's child support request; and to order
Father to subscribe to "My Family Wizard" and pay for and attend
anger management classes. Sufficient evidence exists when "the
record contains 'substantial evidence' supporting the family
court's determinations . . . ; the testimony of a single witness,
if found by the trier of fact to have been credible, will
suffice." In re Doe, 95 Hawai#i 183, 196, 20 P.3d 616, 629
13/
Father appears to refer to the Family Court's oral rulings on
October 30, 2020, which were memorialized in the January 11, 2021 Order.
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(2001) (citation omitted).
Here, the Family Court heard the testimonies of Father,
Mother, and the parties' eldest son (Eldest Son), reviewed
Father's exhibits, and judicially noticed and considered, among
other things, the records and files in the Protective Order Case.
It appears from the FOFs/COLs that the Family Court implicitly
found Mother more credible than Father at least as to the
testimony the court expressly relied on. Additionally, the FOFs,
including FOFs 28-37 and 41-47, support the legal rulings
challenged by Father:
28. Father testified to using physical discipline on
the Minor Child when he believes it is appropriate to
address her behavior. The Court finds that Father's use of
physical discipline is excessive in light of the Minor
Child's age and maturity level and reason for the
discipline.
29. Regarding Mother's Order for [P]rotection [in the
Protective Order Case], Father testified on October 30, 2020
to getting into an argument with the Minor Child over the
issue of school work. Father believes as a parent he has
the discretion to use physical discipline when he sees fit.
30. Minor Child does not currently feel safe with
Father.
31. Mother wants to get services in place in both
households. Mother requested an order for protection for a
period of six months so that Minor Child could feel safe and
receive appropriate services and counseling. Minor Child is
receiving therapy through Kaiser Permanente, and Mother is
participating in weekly at home therapy sessions with the
Minor Child regarding physical abuse and Minor Child's fear
of Father.
32. Mother is receiving services and therapy through
Domestic Violence Action Center.
33. Mother requested sole physical custody in part
because of an escalation in physical altercations between
Father and [Second Son], who was eighteen years old at the
time of the October 30, 2020 hearing. Mother fears for the
Minor Child's safety when in the presence of Father.
34. Mother heard Father and [Second Son] get into an
altercation when she was speaking to [Second Son] on the
phone. Mother called the police to go to Father's home.
When Mother arrived at Father's home, Mother was informed by
the police that Father had [Second Son] in a choke-hold on
the ground when the police arrived at the home. [Second
Son] was seventeen at the time of the altercation, but
turned eighteen May 17, 2020.
35. Mother witnessed Father physically discipline the
children at various times in the past, which she did not
agree with.
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36. Father was physically abusive toward Mother in
the past.
37. Father threatened to have Mother arrested
numerous times over text messages, and Mother is afraid of
Father.
. . . .
41. The relationship and communication between Mother
and Father has deteriorated, and they cannot effectively co-
parent together.
42. Father's concerns throughout the trial were
focused on what he believes are his rights as a parent and
what he perceives as being unfair to him, rather than what
is in the best interest of the Minor Child.
. . . .
44. Mother has sole legal custody over the Minor
Child, and the Court does not find a sufficient change in
circumstances to warrant a change in legal custody to
Father.
See FOFs 43, 45-47 quoted supra. Further, absent the relevant
transcripts, "this court has no basis to determine that the
Family Court's findings of fact were clearly erroneous and,
therefore, the Family Court's findings and conclusions will not
be disturbed." Ramirez v. Ramirez, No. CAAP-XX-XXXXXXX, 2019 WL
4954976, at *2 (Haw. App. Oct. 8, 2019) (SDO) (citing Hawaiian
Tr. Co. v. Cowan, 4 Haw. App. 166, 172, 663 P.2d 634, 638
(1983)).
Nonetheless, Father appears to argue that the Family
Court's rulings conflict with (1) Father's trial exhibits,
(2) Father's and Eldest Son's testimonies, and (3) Mother's
testimony "admitting to acts" violating the Protection from
Parental Disputes order. Again, the lack of hearing transcripts
hinders this court's review of Father's contentions. In any
event, judgments "based on conflicting evidence will not be set
aside where there is substantial evidence to support the trier of
fact's findings." State v. Mattiello, 90 Hawai#i 255, 259, 978
P.2d 693, 697 (1999) (brackets omitted) (quoting Tsugawa v.
Reinartz, 56 Haw. 67, 71, 527 P.2d 1278, 1282 (1974)); see also
Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)
("[A]n appellate court will not pass upon issues dependent upon
the credibility of witnesses and the weight of evidence; this is
the province of the trier of fact." (quoting Doe, 95 Hawai#i at
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190, 20 P.3d at 623)). As discussed above, the FOFs support the
rulings challenged by Father, and we have no basis to determine
that the FOFs were clearly erroneous.
Father also appears to argue that "newly discovered
evidence" — a November 25, 2020 "Notice of [Child Welfare
Services] Disposition" (Disposition) — disproves Mother's abuse
allegations against him in the Protective Order Case and thus
undermines the Family Court's rulings in this case and shows that
Mother and her counsel committed fraud. However, Father does not
claim he sought relief from the Family Court in this case based
on the Disposition. In any event, this court already held, in
Father's appeal from the Protective Order, that the Disposition
is not a basis to set aside the Protective Order. See KQ v. RQ,
CAAP-XX-XXXXXXX, 2022 WL 855981, at *5 (Haw. App. Mar. 23, 2022)
(SDO).
(b) Second, Father appears to contend that Mother
misrepresented her financial information, as evidenced by
Mother's testimony and her 2020 reported gross income. Again,
without a transcript, we cannot review Father's assertions about
Mother's testimony. Moreover, Father does not show how any
alleged misrepresentation affected or conflicted with the
challenged rulings by the Family Court.14/
(c) Finally, Father appears to claim "insufficient
service" of Mother's March 13, 2020 Motion because Mother failed
to support the motion with financial documents; Father further
asserts that the Family Court nonetheless found, over Father's
objection, that Mother's "declaration" was "sufficient proof."
Specifically, Father appears to argue that Mother did not comply
with the Family Court's scheduling order, which required that
each party provide the other with certain income documents.
Father does not cite where in the record he objected to
Mother's alleged failure to provide him with documents, and we
14/
Father contends that Mother's declared 2020 gross income appears
lower than her 2012 income. Mother's 2020 Income and Expense Statement
declares a higher gross income than that in 2012, though her attached Child
Support Guidelines Worksheet (CSG Worksheet) appears to list her take home pay
as gross income. This discrepancy is immaterial insofar as the Family Court's
CSG Worksheet used Mother's (higher) gross income amount from the Income and
Expense Statement.
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are not obligated to search the record for information that
should have been provided by Father. See Haw. Ventures, LLC v.
Otaka, Inc., 114 Hawai#i 438, 480, 164 P.3d 696, 738 (2007)
(stating that an appellate court "is not obligated to sift
through the voluminous record to verify an appellant's
inadequately documented contentions" (quoting Lanai Co. v. Land
Use Comm'n, 105 Hawai#i 296, 309 n.31, 97 P.3d 372, 385 n.31
(2004))). On this record, Father has failed to establish error
by the Family Court.
5) In his fifth point of error, Father contends that
the Family Court erred in ordering him to provide Mother the
monthly $389.0015/ social security payment he receives for Child's
benefit on account of Father's disability (derivative payments or
dependency benefits),16/ in lieu of $77 monthly child support.
Father appears to assert three supporting arguments, which we
conclude lack merit.
First, Father contends that Mother did not seek "a
judgment for child support" and that she testified on October 30,
2020, that she did not want to seek child support. However, the
record does not include a transcript of the October 30, 2020
hearing, and does not otherwise support this contention.
Second, Father appears to contend that the Family Court
failed to "fairly consider": (a) Father is disabled with a
household income below the poverty level, and (b) "the standard
of living of both parents and child" and costs of "reasonable
necessities." However, Father's income and disability, by
themselves, do not entitle him to keep derivative payments, see
infra, and the Family Court's CSG Worksheet includes a Standard
of Living Adjustment.
Third, Father appears to argue that the Family Court
erroneously deviated from the Hawai#i Child Support Guidelines
15/
While Father states the social security payment for Child's
benefit is $363, this difference is immaterial because the Family Court
required Father to give Mother the social security payment of $389 "or the
actual amount of the check for the child if it is a different amount."
16/
Although the January 11, 2021 Order refers to the payments as "SSI
moneys," Father's arguments and the Family Court's FOFs/COLs appear to
indicate that the benefits received on Child's behalf are dependency benefits.
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(HCSG) and "wrongly assumed and articulated that" the derivative
payments "were made available monthly to [Father] by Social
Security on behalf of [Father] maintaining custody of a child[.]"
Father states that the derivative payments "are NOT provided on
the basis of custody but [are] made available for a disabled
individual with eligible dependents for reasons including, but
not limited to, to assist with a relationship and/or to provide
gifts to a child, irrespective of custody, for an individual
surviving with economic and physical incapacitation" and are
"only made available to a disabled person who is receiving
supplemental security income (SSI) or social security disability
insurance (SSDI) and who qualifies for [derivative] payments with
eligible children[.]"
Preliminarily, the available record does not reflect
that the Family Court "articulated" that Father should receive
derivative payments only if he has custody. Additionally, the
HCSG neither expressly includes nor excludes derivative payments
as possible "exceptional circumstances" warranting deviation from
child support amounts calculated in the CSG Worksheet.
In any event, Father's argument appears to be based on
the erroneous premise that derivative payments are "only made
available to a disabled person . . . ." Under federal law,
social security "child's insurance benefits" are payable to minor
children who are dependents of an individual entitled to
disability or "old-age" benefits. 42 U.S.C. § 402(d)(1); 20
C.F.R. § 404.350. Child's insurance benefits may be made payable
to a "representative payee," who must spend the funds for the
child's "use and benefit," i.e., the child's "current
maintenance," including costs "incurred in obtaining food,
shelter, clothing, medical care, and personal comfort items." 42
U.S.C. § 405(j)(1)(A);17/ 20 C.F.R. 404.2010(b) ("Generally, if a
17/
42 U.S.C. § 405(j)(1)(A) provides, in part:
Representative payees
(1)(A) If the Commissioner of Social Security determines
that the interest of any individual under this subchapter
would be served thereby, certification of payment of such
individual's benefit under this subchapter may be made,
(continued...)
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beneficiary is under age 18, we will pay benefits to a
representative payee."); 20 C.F.R. §§ 404.2035(a) (describing
representative payee responsibilities); 404.2040(a) (describing
beneficiary's "use and benefit"). A "representative payee" may
be, among others, a child's custodial or non-custodial parent.
See 20 C.F.R. § 404.2021(c) (enumerating categories of preferred
payees for beneficiaries under age 18, including a custodial
parent, followed by a non-custodial parent). Thus, while
derivative payments may be sent to a non-custodial parent, such
payments are not, as argued by Father, "only made available to a
disabled person[.]"
Moreover, the HCSG not only recognizes that derivative
payments based on a parent's disability may be received by the
other parent, it also indicates that the disabled parent has no
ownership interest in such payments. Specifically, the HCSG
provides, inter alia, that (1) "dependency benefit" amounts may
be credited against the disabled parent's child support
obligation if the benefit is paid to the other parent or other
representative payee, and (2) any such benefit amount exceeding
the child support obligation is a "gift" to the subject child.
2014 HCSG, at 16-17, https://ag.hawaii.gov/ocsh/files/2019/02/
DOC093.pdf; see also Child Support Enf't Agency v. Doe, 92
Hawai#i 276, 284-86, 990 P.2d 1158, 1166-68 (App. 1999) (holding
that while social security payments (for child's benefit due to
non-custodial parent's disability) received by custodial parent
exceeded the child support obligation amount, custodial parent
need not repay non-custodial parent the excess because "the
amount of social security disability payments in excess of a
child support obligation shall be deemed a gratuity to the child
or children involved"). Accordingly, Father's argument lacks
merit.
17/
(...continued)
regardless of the legal competency or incompetency of the
individual, either for direct payment to the individual,
or for his or her use and benefit, to another individual,
or an organization, with respect to whom the requirements
of paragraph (2) have been met (hereinafter in this
subsection referred to as the individual's
"representative payee").
14
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
For the reasons discussed above, we affirm the
January 11, 2021 "Order Re: Hearing on [Father's] Motion Filed
March 6, 2020 and [Mother's] Motion Filed March 13, 2020,"
entered in the Family Court of the First Circuit.
DATED: Honolulu, Hawai#i, March 15, 2023.
On the brief: /s/ Katherine G. Leonard
Presiding Judge
RQ,
Self-represented Plaintiff-
Appellant. /s/ Keith K. Hiraoka
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
15