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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.


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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.


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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.



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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 . . . .”




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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.


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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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