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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000060
                                                              28-JUN-2016
                                                              10:04 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                 ---o0o---


      KARYN EILEEN HERRMANN, Petitioner/Plaintiff-Appellee,

                                    vs.

     KENNETH ROSS HERRMANN, Respondent/Defendant-Appellant.


                              SCWC-12-0000060

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-12-0000060; FC-D NO. 95-0-0475)

                               JUNE 28, 2016

  RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.

                OPINION OF THE COURT BY POLLACK, J.

                         I.       Introduction

          This case involves child support and education

expenses for the two children of Karyn Eileen Herrmann (Wife)

and Kenneth Ross Herrmann (Husband): Son, born July 1, 1987, and

Daughter, born June 16, 1991.       The dispute revolves around the

correct interpretation of the divorce decree and a subsequent

amendment to that decree, which govern Husband’s child support

obligations to Son and Daughter.       The issue presented is whether
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Husband overpaid child support per the terms of the divorce

decree and the amendment and, if so, whether Husband should be

allowed recovery of his overpayments.

                          II.       Background

                           A. 1998 Divorce Decree

            On February 11, 1998, Husband and Wife were divorced

by decree in the family court.        The terms of the February 11,

1998 divorce decree (1998 Decree) included custody arrangements

for Son and Daughter and terms of child support obligations for

each child.    Specifically, pursuant to Paragraph 4 of the 1998

Decree, the parties were each awarded joint legal custody and

shared physical custody of Son and Daughter.1

            The 1998 Decree, in Paragraph 5, provided that Husband

was to pay child support payments to Wife in the amount of

$1,600 per month for each child and that payments for each child

were to continue until the child “attains the age of 18 years or

graduates from or discontinues high school, whichever occurs

last.”    The Decree further stated that “[t]he issue of child

support thereafter, if any, including the amount, duration,

manner of payment, payor, and payee, shall be reserved for

future agreement by the parties or future determination by the
      1
            Husband subsequently moved to Indiana on October 1, 2003, after
which, as discussed infra, Husband filed a motion for sole custody of Son.



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Court, if necessary.”      Pursuant to Paragraph 5, Husband was to

make his child support payments through the Child Support

Enforcement Agency (CSEA).

                B. Husband’s Motion for Post-Decree Relief

            Husband filed a Motion and Affidavit for Post-Decree

Relief (2003 Motion) seeking sole custody of Son.            Thereafter,

Wife made a settlement offer in an effort to resolve Husband’s

2003 Motion.     Wife’s settlement offer proposed that, inter alia,

Husband would have sole custody of Son beginning with Son’s

upcoming school break and that child support would then be

recalculated.     Husband subsequently accepted Wife’s settlement

offer, but Husband indicated that he wanted to “work together to

draft a revision” of the terms.        Wife filed a notice of

acceptance of the settlement offer on December 1, 2003, and Son

began living with Husband on December 18, 2003.

            Although Husband and Wife initially agreed on proposed

substantive changes to the 1998 Decree, the family court

returned the proposed amendments to the parties because the

amendments were incomplete.2       The parties were unable to reach

agreement to incorporate the family court’s required changes.

      2
            The family court indicated that the amendments failed to “address
that the change in custody [for Son] is in the child’s best interests,” did
not include a Child Support Guidelines Worksheet, and was not signed by an
attorney for the CSEA.



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Wife then filed a motion to compel compliance with the accepted

settlement offer, which the family court granted.3           The family

court’s order granting Wife’s motion to compel (August 2004

Order) also stated that “child support shall be modified

effective September 5, 2004,” and instructed Wife to submit a

proposed order.

          On September 1, 2004, the amendment to the 1998 Decree

was approved and filed by the family court (September 2004

Amendment).   The September 2004 Amendment reflected that Son was

now living with Husband and, thus, modified the amount of

Husband’s child support obligation set forth in Paragraph 5 of

the 1998 Decree.    Specifically, under the September 2004

Amendment, Paragraph 5 of the 1998 Decree was “withdrawn” and a

new Paragraph 5 was “substituted,” which, in pertinent part,

stated the following:

                      5.    [Husband] shall pay to [Wife] as and for
          the support and maintenance of [Daughter] the sum of
          [$2,630] per month commencing on the fifth day of
          September, 2004. . . . [Wife] shall pay to [Husband] as
          and for the support and maintenance of [Son] the sum of
          [$50] per month commencing on the fifth day of January
          2004. . . .

                      Child support for each child shall continue
          until he or she attains the age of 18 years or graduates
          from or discontinues high school, whichever occurs last.
          The issue of child support thereafter, if any, including
          the amount[,] duration, manner or payment, payor, and


     3
          The Honorable Christine E. Kuriyama presided.



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            payee, shall be reserved for future agreement by the
            parties or future determination by the Court, if necessary.

            On November 1, 2004, Husband received a letter from

CSEA advising him that he had overpaid child support payments to

Wife in the amount of $14,040 and that “[a]ny issues concerning

the recovery of the above over payments should be handled

between the custodial and non-custodial parents.”4            Thereafter,

according to Husband, he verbally asked Wife on numerous

occasions to reimburse him for the overpayments, but he did not

file an action with the family court.         Wife did not repay

Husband’s claimed overpayment, believing that she did not owe

Husband any money.

            Four years later, in anticipation of Daughter’s high

school graduation, Wife filed a Motion and Affidavit for Post-

Decree Relief asking the family court for an order requiring

Husband to pay Daughter’s college expenses.           Husband stipulated

to pay “all costs and fees for [Daughter] to attend [college]

including tuition, books and student supplies, room and board

and a reasonable allowance for clothing and student activities

and/or additional fees” as long as Daughter was a fulltime

      4
            According to Husband, the amount of the overpayment calculated by
CSEA in its letter was incorrect, and the correct amount is $14,400 ($1,600 a
month for nine months) rather than $14,040. Husband agreed during a hearing
in the family court to seek only the amount represented in the CSEA letter,
i.e., $14,040.



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student in good standing.      The family court issued an order that

reflected Husband’s agreement to pay Daughter’s college

expenses.

            On June 16, 2009, Daughter attained the age of

eighteen years old, and in September 2009, Daughter moved to

Washington State to attend college.        CSEA continued to assign

Husband’s wages in the amount of $2,630 a month for child

support for Daughter.     Husband contacted CSEA starting in

September 2009 to request that the child support payments for

Daughter be terminated pursuant to the 1998 Decree and September

2004 Amendment, but Husband’s efforts to terminate payments were

unsuccessful.

                     C. Husband’s April 2011 Motion

            Unable to resolve his dispute with CSEA over

Daughter’s child support payments, Husband filed a Motion and

Affidavit for Post-Decree Relief (April 2011 Motion) in which he

asked the family court to (1) retroactively terminate his child

support obligation for Daughter to September 2010, when Daughter

moved to Washington to begin college, and require Wife to

reimburse him for the amount that he paid in child support for

Daughter from September 2009 to the date the court terminates

child support and (2) require Wife to reimburse him for the

$14,040 he overpaid in child support for Son.

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            Wife filed an opposing memorandum responding to

Husband’s contentions that he was entitled to relief.             Wife

argued that Husband did not overpay child support for Son

because the August 2004 Order became effective on September 5,

2004, and it did not apply retroactively.          Wife alternatively

argued that under the Hawaiʻi Family Court Rules (HFCR) Rule

60(b) (2006), any reasonable time for Husband to seek relief had

long passed as almost 7 years had passed since these

overpayments were made.5      Wife contended that Husband’s April

2011 Motion included no explanation of why he waited to bring

his action for reimbursement of overpaid child support.

            Next, in regards to Daughter’s support, Wife argued

that the family court should not retroactively order

reimbursement of support paid prior to the April 2011 Motion.

Wife maintained that the 1998 Decree and the September 2004

Amendment reserved the issue of Daughter’s child support

payments beyond her eighteenth birthday, and Wife argued that it

was appropriate for Husband to continue to pay child support for


      5
            Pursuant to HFCR Rule 60(b), a motion to be relieved “from any or
all of the provisions of a final judgment, order, or proceeding” because of
mistakes, inadvertence, excusable neglect, newly discovered evidence, or
fraud “shall be made within a reasonable time.” If the motion is based upon
mistake, inadvertence, surprise, excusable neglect, newly discovered
evidence, or fraud, the motion must be made “not more than one year after the
judgment, order, or proceedings was entered or taken.” HFCR Rule 60(b).



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Daughter because Wife had been providing support for Daughter

while she attended college.      In addition, Wife argued that

granting Husband’s requested relief would be a “horrendous

financial problem” for her.      Finally, Wife maintained that,

pursuant to HRS § 580-47(a) (2007), the family “court has the

ability to provide for the payment of child support for a child

who is continuing his/her education even if the matter is raised

subsequent to the time when the child becomes an adult.”            In

conclusion, Wife argued that there was no legal basis for

Husband’s motion and that the child support payments were both

reasonable and justified.      Accordingly, Wife asked the family

court to deny Husband’s April 2011 Motion.

          In his reply, Husband first responded to the

overpayment of child support for Son, arguing that despite the

language in the family court’s August 2004 Order stating that

child support was modified effective September 2004, the

subsequent September 2004 Amendment mandated a different result.

Specifically, Husband argued that the September 2004 Amendment

replaced provisions of the 1998 Decree and required Wife to

commence paying child support for Son in January 2004, not

September 2004.    Husband contended that this modification was

consistent with the fact that Son had starting living with

Husband in December 2003.      Husband argued that the September

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2004 Amendment, which was approved by the court and made an

order of the court, superseded any contrary statement in the

family court’s August 2004 Order.        Accordingly, Husband argued

that the CSEA correctly determined that there had been an

overpayment of child support based on the September 2004

Amendment in the amount of $14,040.

            Next, Husband argued that under the terms of the 1998

Decree and September 2004 Amendment, his child support

obligation to Daughter ended after June 2009 when she “attained

the age of 18 years (and had already graduated from high

school).”   Husband argued that because there was no agreement by

the parties or a determination by the Court that child support

would continue, child support payments incorrectly were assigned

to Wife by CSEA.    Consequently, Husband argued that Wife should

be ordered to pay back Husband’s overpayment of child support

for Daughter from September 2009, when Daughter moved to

college, to the time of the order terminating Husband’s child

support obligation.

            Finally, Husband argued that he should not be required

to continue to pay child support for Daughter.          Husband asserted

that because he was paying all of Daughter’s college education

expenses and because Daughter was not living with Wife in

Honolulu, there was no basis for Wife to continue receiving

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$2,630.00 a month in child support.        Accordingly, Husband asked

the family court to terminate his child support obligation for

Daughter retroactively to September 2009, when Daughter moved

from Wife’s home to attend college.

          At the hearing on Husband’s April 2011 Motion, Husband

and Wife each adopted as their direct testimony offers of proof

made by their respective attorneys, after which each was cross-

examined by opposing counsel.6      Husband explained that he had

been paying all of Daughter’s college, living, and healthcare

expenses since she left for college in September 2009 and that

Daughter had never asked him for more monies or claimed that she

did not have sufficient funds for all of her living expenses.

Husband additionally testified that although Son had begun

living with him in December 2003 and that the parties had agreed

that child support for Son would stop as of January 2004, he

continued to pay child support for Son through August 2004.

Thus, Husband testified that he overpaid child support for Son

for nine months.

          Wife testified that Husband’s child support obligation

for Son was to continue through September 5, 2004, and that she

did not believe she owed Husband any amount of reimbursement.

     6
          The Honorable Paul T. Murakami presided.



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Wife stated that she spends more in support of Daughter than she

receives from Husband on a monthly basis, including

transportation and keeping the home for Daughter, and that such

funds are necessary in order to maintain her relationship with

Daughter.   Wife further explained that she had been experiencing

physical challenges impeding her ability to work, she was

receiving unemployment compensation because she had not been

employed full time, her net income was low, and the variance

between her financial situation and that of Husband’s made it

inequitable for her to be required to repay Husband’s alleged

child support overpayments.      Finally, Wife testified that

Husband’s attempt to try and recoup this alleged amount was not

timely or appropriate.

               D. Decision and Order of the Family Court

            After the hearing on the April 2011 Motion, the family

court issued its “Decision Re: Hearing on Order to Show Cause

Filed 04/13/2011” (Decision) and “Order Denying Defendant’s

Motion and Affidavit for Post-Decree Relief Filed 04-13-2011”

(Order).    The family court, in ruling against Husband, declined

to reimburse Husband for claimed child support overpayments and

determined that Daughter’s child support payments were to

continue.   In its subsequently issued Findings of Fact and

Conclusions of Law, the family court found that the overpayment

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of child support for Son was “a result of the delay in the entry

of the [September 2004 Amendment] caused by disagreements

between the parties as to the form and content of the document,”

during which time the amount due under the 1998 Decree

“continued to be garnished from [Husband’s] income.”            The court

noted that “Husband waited for approximately 7 years before

raising the issue of his claimed overpayment of child support.”

Thus, the family court concluded that, “given the passage of

time and opportunities to have previously raised” the

overpayment of child support for Son, Husband “is now estopped

from pursuing said claim.”7

            The family court then considered Daughter’s child

support.   The court found that Husband paid Daughter’s college

expenses and that such payments were separate from child support

payments due under the 1998 Decree and September 2004 Amendment.

The court further found that Wife had sent additional sums of

money to Daughter after she moved to attend college.            The court

determined that the funds received by Wife from Husband are used


      7
            It is not clear what the family court meant by “estopped.”
Estoppel was not raised by either of the parties in the family court, and the
court did not explain whether it was referring to equitable estoppel, quasi-
estoppel, the doctrine of laches, or another legal principle altogether.
Wife had specifically predicated her objection to Husband’s April 2011 Motion
on HFCR Rule 60(b) and a statute of limitations challenge, neither of which
the family court ruled upon.



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by Wife to pay for expenses related to and necessary for

Daughter’s support and maintenance.        In addition, the court

stated that Husband could have challenged the ongoing payment of

Daughter’s child support during litigation between Husband and

Wife from 2009 through 2011, but instead Husband waited 24

months after “the triggering event” of Daughter leaving for

college to contest ongoing child support payments.           Based on

these findings, the court concluded that it “would be

inequitable to require [Wife] to reimburse for child support

payments made with regard to [Daughter] for the period

commencing in September of 2009.”        The court further concluded

that “[b]ased upon the credible evidence, [Husband] is not

entitled to an order terminating his child support obligation to

[Daughter],” and “[c]hild support for [Daughter] shall remain in

effect until such time as [Daughter] graduates from college or

reaches the age of 23, whichever comes first.”

                     III.      ICA Proceedings

           Husband timely appealed from the Decision and Order.

In their briefs submitted to the ICA, Husband and Wife presented

arguments that paralleled those that were made to the family

court.   Because the basis upon which the family court concluded

that Husband was estopped from pursuing his claim is unclear,

Husband asserted on appeal that the family court meant quasi-

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estoppel when it ruled in favor of Wife.         To the contrary, Wife

contended that the family court was actually referring to laches

in its decision.

            The ICA issued its memorandum opinion (Opinion) on

February 17, 2015.    As a general matter, the ICA concluded that,

under Hawaiʻi Revised Statutes (HRS) § 571-52.2(d) (2006), which

governs child support payments collected through salary

assignments, the individual receiving child support has the

“primary” responsibility for terminating a salary assignment and

that reimbursement is permitted in the event of overpayment of

child support.    The ICA next determined that the September 2004

Amendment provided that, effective as of January 2004, Husband

was no longer required to pay $1,600 per month as child support

for Son and that Wife had to pay Husband $50 monthly toward

Son’s child support.

            The ICA noted that the family court denied Husband’s

claim for reimbursement of overpayment for Son’s support on the

sole ground that Husband, by waiting too long before contesting

his alleged overpayments, was estopped from doing so.            The ICA

remarked that the family court was not clear as to the legal

theory upon which it predicated its conclusion regarding

estoppel.   Hence, the ICA adopted Wife’s position and presumed

that the family court based its Decision and Order on the

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doctrine of estoppel by laches--an equitable doctrine by which

courts deny relief to a claimant who has unreasonably delayed or

been negligent in asserting a claim.           Citing Adair v. Hustace,

64 Haw. 314, 321, 640 P.2d 294, 300 (1982), the ICA held that

estoppel by laches has two required elements: first, “a delay by

the plaintiff in bringing his claim” and the “delay must have

been unreasonable under the circumstances”; and, second, the

“delay must have resulted in prejudice to defendant.”               Id.

             Applying the elements of estoppel by laches in this

case, the ICA noted that Husband’s delay in filing the April

2011 Motion is considerable, given that he waited over six years

after CSEA notified him of the overpayment before taking action.

However, the ICA also determined that Wife did not claim, nor

did the family court make an independent conclusion, that Wife

was prejudiced by the delay.         Accordingly, the ICA concluded

that “both elements of laches are not present,” the family court

“failed to apply the applicable law,” and, by doing so, “abused

its discretion” in concluding that Husband was precluded from

seeking reimbursement for his overpayment of child support for

Son.

             The ICA also addressed Husband’s argument that he

overpaid child support for Daughter and that his obligation to

pay child support for Daughter automatically terminated per the

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terms of the 1998 Decree and September 2004 Amendment.

Construing Paragraph 5 of the September 2004 Amendment, the ICA

concluded that its “plain language [] terminated child support

for both children upon the attainment of age 18 or graduation

from high school, whichever was later.”         As to Daughter, the ICA

found that both of these conditions were satisfied by June 2009.

Accordingly, the ICA concluded that, pursuant to the 2004

Amendment, Husband’s obligation to pay child support for

Daughter should have terminated in June 2009.          The ICA, however,

did not address Wife’s argument on appeal that “HRS 580-47(a)

took precedence over a provision in a divorce decree that said

that [Husband’s] obligation to provide support terminated at 18”

and that the family court did not therefore err when it held, on

Wife’s motion, that “it was appropriate and necessary that

support should continue for [Daughter] past the age of 18 and

graduation from high school.”

          Having concluded that Husband’s obligation to pay

child support for Daughter ended in June 2009, the ICA then

addressed whether and in what amount Husband should be

reimbursed for his overpayment.       The ICA noted that Husband’s

agreement and obligation, separate from the issue of child

support, to pay Daughter’s college expenses complicated the

issue of reimbursement for three reasons.         First, the ICA found

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that the record does not show whether “the amount of support

Daughter was entitled to while she attended college was ever

calculated using the appropriate Child Support Guidelines as

required by HRS § 580-47.”      Second, the ICA also found that

Husband may have paid for items that would be considered a

component of child support as part of the payments he made for

Daughter’s college expenses; thus, there may have been

duplicative payment for some items.        The final complicating

factor that the ICA noted was Wife’s contribution to Daughter’s

college expenses and the amount Wife spent in order to allow

Daughter to return to Hawaiʻi during semester breaks, some monies

for which were drawn from Husband’s child support payments for

Daughter.   Consequently, the ICA reasoned that determining if

and how much Husband overpaid in support for Daughter depends on

“a determination of what amount was necessary to meet Daughter’s

needs while in college,” as Husband was required to pay those

expenses.   Thus, the ICA concluded that the family court, on

remand, must “determine whether offsets against the overpaid

child support [for Daughter] might be appropriate.”           Notably,

the ICA did not address the family court’s finding--challenged

by Husband on appeal--that it would be inequitable to allow

Husband to recover overpayments of child support paid for

Daughter since Husband waited two years before filing the April

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2011 Motion and did not take advantage of several opportunities

to raise the issue of overpayments.

            Based on the foregoing, the ICA vacated the Decision

and Order of the family court and remanded the case to the

family court for further proceedings.

            IV.       Application for Writ of Certiorari

            In her Application, Wife challenges the ICA’s holding

that HRS § 571-52.2(d) applies in this case and that Wife had

the primary responsibility to terminate Husband’s salary

assignment.     Wife also asserts that the ICA erred in holding

that Husband’s delay in filing his April 2011 Motion did not

estop Husband from recovering child support overpayments made to

Wife for Son.     Further, Wife contends that the ICA erroneously

held that Husband’s child support obligations to Son ended in

January 2004 because the September 2004 Amendment did not take

effect until September 2004.        Wife also argues that the ICA

erred in holding that Husband’s child support obligations to

Daughter automatically terminated when she reached the age of

18.   Relatedly, Wife maintains that it would be inequitable to

permit Husband to recoup overpaid child support for Daughter

because he waited approximately two years before raising his

claim.



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                 V.      Standards of Review

           When the relief granted by the family court is

equitable in nature and discretionary, it “will not be

overturned on review unless the . . . court abused its

discretion by issuing a decision that clearly exceeds the bounds

of reason or disregarded rules or principles of law or practice

to the substantial detriment of the appellant.”          Aickin v. Ocean

View Invs. Co., 84 Hawaiʻi 447, 453, 935 P.2d 992, 998 (1997)

(quoting AIG Haw. Ins. Co. v. Bateman, 82 Hawaiʻi 453, 457, 923

P.2d 395, 398 (1996)).

            The family court’s findings of facts are reviewed on

appeal under the clearly erroneous standard.          In re Doe, 95

Hawaiʻi 183, 190, 20 P.3d 616, 623 (2001).         A finding of fact “is

clearly erroneous when (1) the record lacks substantial evidence

to support the finding, or (2) despite substantial evidence in

support of the finding, the appellate court is nonetheless left

with a definite and firm conviction that a mistake has been

made.”   Id. (quoting State v. Okumura, 78 Hawaiʻi 383, 392, 894

P.2d 80, 89 (1995)).     “Substantial evidence is credible evidence

which is of sufficient quality and probative value to enable a

person of reasonable caution to support a conclusion.”            Id.

(alteration omitted) (quoting State v. Doe, 84 Hawaiʻi 41, 46,

928 P.2d 883, 888 (1996)).

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          “The interpretation or construction of a judgment,

decree, or order ‘presents a question of law,’” State v. Guyton,

135 Hawaiʻi 372, 377, 351 P.3d 1138, 1143 (2015) (quoting Cain v.

Cain, 59 Haw. 32, 39, 575 P.2d 468, 474 (1978)), and is

“reviewable de novo under the right/wrong standard of review,”

Bank of Haw. v. DeYoung, 92 Hawaiʻi 347, 351, 992 P.2d 42, 46

(2000) (quoting Ditto v. McCurdy, 90 Hawaiʻi 345, 351, 978 P.2d

783, 789 (1999)).

                         VI.      Discussion

                A. Overpayment of Child Support for Son

    1.   Husband’s Child Support Obligation to Son Terminated in
                              January 2004

          The September 2004 Amendment modified the respective

parties’ child support obligations.         The 1998 Decree, in

Paragraph 5, provided that Husband was to make child support

payments to Wife in the amount of $1,600 per child per month,

for a total of $3,200 per month.         The 2004 Amendment substituted

Paragraph 5 of the 1998 Decree with the following:

                5.    [Husband] shall pay to [Wife] as and for the
          support and maintenance of [Daughter] the sum of [$2,630]
          per month commencing on the fifth day of September, 2004. .
          . . [Wife] shall pay to [Husband] as and for the support
          and maintenance of [Son] the sum of [$50] per month
          commencing on the fifth day of January 2004.

The ICA held that, based on the above language, Husband,

“as of January 2004, would no longer pay [Wife] child

support for Son.”
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            Wife’s argument is that Husband’s obligation to

continue paying $1,600 for Son’s child support did not end

until September 2004, when the amendment was approved and

adopted by the family court.      However, this is not a

reasonable construction of the terms of the September 2004

Amendment relating to child support.        See Cain v. Cain, 59

Haw. 32, 39, 575 P.2d 468, 474 (1978) (stating that court

orders and decrees must “be construed reasonably” (citing

Smith v. Smith, 56 Haw. 295, 301, 535 P.2d 1109, 1114

(1974))).

            Prior to the September 2004 Amendment, under the

1998 Decree, Wife was not required to pay any child support

to Husband.   Son began living with Husband in December

2003.   The plain language of Paragraph 5 of the September

2004 Amendment states that Wife must pay Husband $50 per

month for Son’s child support starting on January 5, 2004.

State v. Guyton, 135 Hawaiʻi 372, 378, 351 P.3d 1138, 1144

(2015) (reasoning that plain language governs if the decree

is unambiguous).    It would be incongruous to conclude that

Husband was still required to pay Wife child support for

Son at the same time that Wife was mandated to pay Husband

for Son’s support.    If Wife’s position were adopted, it

would mean that Wife and Husband were concurrently

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obligated to pay each other child support for Son from

January to September 2004, a conclusion that would not be

logical given that Son started living with Husband in

January 2004.    The most reasonable reading of the September

2004 Amendment, therefore, is that at the point in which

Wife was required to pay Son’s child support in January

2004, Husband’s child support obligations for Son

terminated.8

            The August 2004 Order, which stated that “child

support shall be modified effective September 5, 2004,” is

also consistent with the conclusion that Husband’s child

support obligations to Son terminated in January 2004.             The

August 2004 Order is not controlling as to the issue of

child support modification, for the subject matter of that

order only compelled Husband to comply with Wife’s

settlement offer and awarded Wife costs and fees; it did

not directly modify the parties’ child support obligations

under the 1998 Decree.      As such, the August 2004 Order’s

statement that “child support shall be modified effective


      8
            The first sentence of Paragraph 5 of the September 2004 Amendment
is not contrary to this conclusion. The fact that Husband was obligated to
pay $2,630 per month as child support for Daughter beginning in September
2004 means only that, from January 2004 to September 2004, Husband’s child
support for Daughter remained at $1,600 monthly based on the 1998 Decree.



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September 5, 2004,” is reasonably construed as merely

setting a prospective date at which the actual modification

was to be effectuated.9      Accordingly, the ICA did not err in

holding that the September 2004 Amendment terminated

Husband’s child support obligations to Son as of January

2004.

    2. The Issue of Whether Laches Applies Requires Remand to the
                              Family Court

            Estoppel by laches is an equitable doctrine with two

components that must be satisfied in order to become applicable:

            First, there must have been a delay by the plaintiff in
            bringing his claim, and that delay must have been
            unreasonable under the circumstances. Delay is reasonable
            if the claim was brought without undue delay after
            plaintiff knew of the wrong or knew of facts and
            circumstances sufficient to impute such knowledge to him.
            Second, that delay must have resulted in prejudice to
            defendant.

Adair v. Hustace, 64 Haw. 314, 321, 640 P.2d 294, 300 (1982)

(citations omitted) (emphases added); accord Ass’n of Apartment

Owners of Newtown Meadows ex rel. its Bd. of Dirs. v. Venture

15, Inc., 115 Hawaiʻi 232, 284, 167 P.3d 225, 277 (2007).               Thus,


      9
            Even assuming that the August 2004 Order directly modified the
parties’ child support obligations under the 1998 Decree, the September 2004
Amendment, which was subsequently filed and entered, superseded any
conflicting terms of the August 2004 Order. See Okazaki v. Okazaki, 38 Haw.
148, 151 (1948) (holding that all orders inconsistent with a final decree are
superseded); Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 40 (Tex. App.
2000) (holding that a subsequent order granting summary judgment modifies,
corrects, or reforms a previous summary judgment order in favor of the same
party).



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as to the first requirement of unreasonable delay, a court

considers whether, under the circumstances, the delay in

bringing the claim was unreasonable.        Adair, 64 Haw. at 321, 640

P.2d at 300.   As to the second requirement of prejudice to the

opposing party, a court may consider, for example, “loss of

evidence with which to contest plaintiff’s claims, including the

fading memories or deaths of material witnesses, changes in the

value of the subject matter, changes in defendant’s position,

and intervening rights of third parties.”         Id.

          The ICA, in presuming that the family court applied

the doctrine of laches to estop Husband’s claim for

reimbursement, held that the “Family Court failed to apply the

applicable law [on laches] and thereby abused its discretion in

ruling [that Husband] was prevented from being reimbursed for

his overpayments of support for Son.”        The ICA determined that

neither requirement of laches was present and that the family

court abused its discretion in holding otherwise.           However,

while the family court did not expressly find “unreasonable

delay,” it did so inferentially when it concluded that Husband

was estopped from pursuing reimbursement for claimed overpayment

of child support for Son “[b]ecause [Husband] waited for

approximately 7 years before raising the issue . . . and did not

avail himself of opportunities to raise the issue when the

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parties were before the court on other matters relating to the

children.”

             The underlying factual findings of the court were

correct because Husband had been aware of his claim against Wife

since at least the time he received the letter from CSEA on

November 1, 2004, advising him that he had overpaid child

support to Wife in the amount of $14,040, but Husband waited

until April 13, 2011, to move for reimbursement against Wife.

As noted by the family court, Husband did not proffer a

satisfactory excuse for the almost seven-year delay, see In re

Kawai, 36 Haw. 533, 536 (1943) (holding that the party who waits

for an unreasonably protracted period before commencing an

action must provide a “satisfactory excuse”), despite having

several opportunities to raise this issue to the family court

during the intervening years.10       See Brown v. Bishop Trust Co.,

44 Haw. 385, 394—400, 355 P.2d 179, 185-186 (1960) (concluding

that the plaintiffs were barred by laches from commencing an

action because they waited more than 18 years after they were

apprised of “enough facts . . . to put them upon inquiry” of

their claim against the defendant).         Since the family court


      10
            For example, Husband could have raised the issue of reimbursement
when Wife moved, on November 14, 2008, for post-decree relief asking the
family court to order Husband to pay Daughter’s college expenses.



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concluded that Husband was estopped from seeking reimbursement,

the family court, based on its factual findings, implicitly

concluded that Husband’s delay in moving for reimbursement for

Son’s support payments was unreasonable.         See Hayashi v.

Hayashi, 4 Haw. App. 286, 293, 666 P.2d 171, 176 (1983) (noting

that the family court did not specifically hold that the claim

was barred by laches, but reasoning that the family court’s

“finding was in fact equivalent to a determination that laches

was a bar”).

          As to prejudice, the second element of laches, the ICA

reasoned that “[Wife] did not claim and the [f]amily court did

not find that [Wife] was prejudiced by the delay.”           This ruling

is not supported by the record.       What qualifies as prejudice for

purposes of the laches doctrine invariably depends on the facts

and circumstances of a particular case, but it is ordinarily

understood as anything that places the defendant “in a less

favorable position.”     See 27A Am. Jur. 2d Equity § 143 (2008).

          However, “the mere prospect that a defendant might

lose a case does not suffice to warrant the imposition of laches

as a barrier to a plaintiff’s action,” since “that sort of

prejudice could be claimed by all defendants all of the time.”

Wauchope v. U.S. Dep’t of State, 985 F.2d 1407, 1412 (9th Cir.

1993) (quoting TransWorld Airlines, Inc. v. Am. Coupon Exch.,

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Inc., 913 F.2d 676, 696 (9th Cir. 1990)).            Prejudice must be

established by adducing evidence, and conclusory allegations of

harm would not suffice.        Ass’n of Apartment Owners of Newtown

Meadows ex rel. its Bd. of Dirs., 115 Hawaiʻi at 284, 167 P.3d at

277.

             In determining whether prejudice exists in child

support disputes, “[o]ne factor to be considered by the court .

. . is whether ‘the defendant may have changed [his or her]

position in a manner that would not have occurred but for

plaintiff’s delay.’”        Kerrigan v. Kerrigan, 642 A.2d 1324, 1326

(D.C. 1994) (quoting Gull Airborne Instruments, Inc. v.

Weinberger, 694 F.2d 838, 844 (D.C. Cir. 1982)).              In Kerrigan,

the husband unilaterally reduced his child support payments when

the child turned 21 years old.          Id.   The wife, without any

explanation, waited almost eight years before taking action to

challenge the husband’s reduction in his support payments.                Id.

at 1327.     In defense, the husband contended that the wife was

barred by laches from claiming arrearages in child support

because (1) “he changed his financial position significantly in

reliance upon the consent to modification implied” by the wife’s

extended silence; (2) “he made medical and educational payments

on behalf of his daughter and paid approximately $18,000 for her

wedding, which he would not have done without a reduction in the

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monthly payments”; and (3) his advanced age and current

financial difficulties should be factored in the balance of

equities.   Id.   The District of Columbia Court of Appeals agreed

with the husband that laches was an available defense, that

these “factors must be taken into account as part of [the

husband’s] laches defense,” and that the husband had established

“a prima facie showing of laches,” thereby shifting the burden

to the wife to rebut it.      Id.

            Here, Wife argued in her opposition papers that

granting Husband’s requested relief would be a “horrendous

financial problem” for her.      In addition, in her testimony

during the hearing in the family court, Wife related that “she

has real challenges as far as her work,” “her net after all” of

the expenses associated with her work in the summer as a scuba

diving instructor “is really quite small,” her work as a yoga

instructor had not been “a source of significant income,” she

had been experiencing physical challenges impeding her ability

to work, she was receiving unemployment compensation because she

had not been employed full time, and “it would be inequitable to

force her to pay” what Husband alleges is owed to him “given her

financial situation as well as the huge disparity that exists

between her situation and [Husband’s] situation.”           We agree with

the D.C. Court of Appeals in Kerrigan that the current personal

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and financial circumstances of the defendant (here, the Wife)

and the economic prejudice resulting from the plaintiff’s delay

are relevant factors in determining whether laches bars the

plaintiff’s claim.    Kerrigan, 642 A.2d at 1327 (indicating that

the husband’s age and “current financial difficulties should

also be weighed in the balance” as part of the laches analysis).

Hence, it was error for the ICA to find that Wife “did not

claim” prejudice from Husband’s delay.

             On the other hand, because the family court did not

address or make any findings of fact relating to the prejudice

prong, which includes economic harm to Wife resulting from

Husband’s delay in asserting his claim, the ICA’s statement that

“the [f]amily court did not find that [Wife] was prejudiced by

the delay” is not inaccurate.       There appear to be three

possibilities that could explain the absence of a specific

finding by the family court as to prejudice.          First, the family

court may not have been applying the laches doctrine.            Second,

assuming that the family court applied the laches doctrine, the

court implicitly found that the prejudice prong had been

satisfied.    Third, the family court failed to recognize that

prejudice was a required prong for the application of laches

and, consequently, did not make any finding as to prejudice.



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           In any event, the basis for the family court’s silence

on whether the prejudice prong was satisfied is uncertain.

Consequently, the family court’s conclusion that Husband is

estopped from pursuing reimbursement is not supported, under a

laches analysis, by findings of fact as to the presence or

degree of prejudice to Wife resulting from Husband’s delay.

Thus, the issue as to whether laches barred Husband from

claiming reimbursement from Wife for his overpayment of Son’s

child support must be remanded to permit the family court to

consider whether Wife was prejudiced by Husband’s unreasonable

delay and to render factual findings with respect to the

prejudice prong of laches.      See Gussin v. Gussin, 73 Haw. 470,

836 P.2d 484 (1992) (holding that the ICA erred in not remanding

the case to the family court for further fact finding where the

family court did not make any findings as to donative intent or

any other element bearing on whether a legal gift had been

made).   Alternatively, if the family court was applying another

legal doctrine, the court’s findings and conclusions should so

clarify.   See id.   As noted, the family court may have been

applying a different legal doctrine or rule in concluding that

Husband was “estopped from pursuing [his] claim.”           But because

the family court did not specify the legal theory upon which its

conclusions were based, it is unclear whether the court’s denial

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of Husband’s April 2011 Motion was based on equitable estoppel,

estoppel by laches, quasi-estoppel, HFCR Rule 60(b), or another

legal principle altogether.11

            The ICA therefore erred by concluding that “both

elements of laches are not present” and that Husband was not

estopped from pursuing reimbursement for overpayment of Son’s

child support, rather than remanding this issue to the family

court for further consideration.12

    B. Termination and Overpayment of Child Support for Daughter

            The family court denied Husband’s request to

retroactively terminate Daughter’s child support to September

2009, when Daughter commenced her college education.            In


      11
            Equitable estoppel is a defense requiring “proof that one person
wilfully caused another person to erroneously believe a certain state of
things, and that person reasonably relied on this erroneous belief to his or
her detriment.” Maria v. Freitas, 73 Haw. 266, 273, 832 P.2d 259, 264
(1992). Quasi-estoppel, on the other hand, is a species of equitable
estoppel precluding one “from asserting to another’s disadvantage, a right
inconsistent with a position previously taken by him” or her. Id. at 274,
832 P.2d at 264 (quoting Aehegma v. Aehegma, 8 Haw. App. 215, 234, 797 P.2d
74, 80 (1990)).
      12
            As an additional basis for its decision that Husband should be
reimbursed for his child support overpayments for Son, the ICA held that HRS
§ 557-52.5(d) applies in this case and that Wife had primary responsibility
for terminating the assignment of Husband’s income for child support.
However, the ICA’s reference to HRS § 571-52.2(d) does not affect its
conclusion as to Husband’s overpayment of Son’s child support and was not
dispositive of its holding. And even though the ICA discussed the
applicability of HRS § 571-52.2(d) and Wife’s responsibility under this
statute, the ICA’s ultimate holding as to Husband’s overpayment of Son’s
child support was based on its finding that the family court erred in
applying the doctrine of estoppel by laches. As such, it is unclear why the
ICA discussed the application of HRS § 571-52.2(d).



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addition, the family court declined to “halt the child support

previously ordered until such a time that [Daughter] graduates

or attains the age of 23, whichever comes first.”

            The September 2004 Amendment relating to child support

provides as follows:

            Child support for each child shall continue until he or she
            attains the age of 18 years or graduates from or
            discontinues high school, whichever occurs last. The issue
            of child support thereafter, if any, including the amount,
            duration, manner of payment, payor, and payee, shall be
            reserved for future agreement by the parties or future
            determination by the Court, if necessary.

(Emphases added).

            Where the language of the decree is clear and

unambiguous on its face, there is no room for interpretation and

its plain language must control.          Guyton, 135 Hawaiʻi at 378, 351

P.3d at 1144; see Kawamata Farms, Inc. v. United Agri Prods., 86

Hawaiʻi 214, 259, 948 P.2d 1055, 1100 (1997) (according “plain

meaning” to this court’s remand order in construing its scope).

            The language of the child support provision is clear

and unambiguous.     The conjunction “until” means “up to the time

that” or “up to such time as.”13        Because “[c]hild support for


      13
            Merriam-Webster, http://www.merriam-webster.com/dictionary/until
(last visited May 18, 2016). A court may consult well-accepted dictionaries
in determining the meaning of words. In re Taxes, Hawaiian Pineapple Co.,
Ltd., 45 Haw. 167, 188, 363 P.2d 990, 1001 (1961); Leslie v. Bd. of Appeals
of Cty. of Haw., 109 Hawaiʻi 384, 393, 126 P.3d 1071, 1080 (2006) (using the
Webster’s Dictionary to find the meaning of “shall”).



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each child shall continue until he or she attains the age of 18

years or graduates from or discontinues high school, whichever

occurs last,” Husband’s child support obligation continues “up

to the time that” or “up to such time as” the child turns 18,

graduates from high school, or discontinues high school,

whichever occurs last.

          The plain meaning of the first sentence of the

September 2004 Amendment expressly obligates Husband to pay

child support for a particular child until that child reaches

the age of 18 years or graduates from or discontinues high

school, whichever occurs last.       Thus, when Daughter turned 18 on

June 16, 2009, after graduating from high school, Husband’s

child support obligation under the first sentence of the

September 2004 Agreement for Daughter expired.          Wife’s contrary

argument--that “[t]here is nothing in the language of the Decree

that provides that the support was to terminate on the later of

the child’s 18th birthday or graduation from high school”--

essentially disavows the plain meaning of the first sentence.

          However, we note that under HRS § 580-47(a),14 the

family court, at the time of granting a divorce or later, if


     14
          In relevant part, HRS § 580-47(a) provides as follows:

          Upon granting a divorce, or thereafter if . . .
          jurisdiction of those matters is reserved under the decree

                                                             (continued. . .)
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jurisdiction is reserved, has the authority to compel parties to

provide child support “of an adult or minor child . . . whether

or not the petition is made before or after the child has

attained the age of majority.”         HRS § 580-47(a).     In this case,

the family court reserved jurisdiction over the matter of child

support in both the 1998 Divorce Decree and the September 2004

Amendment.     As such, the family court had the authority,

pursuant to HRS § 580-47(a), to order Husband to continue paying

child support for Daughter after Daughter attained the age of 18

years.   See Richardson v. Richardson, 8 Haw. App. 446, 449, 808

P.2d 1279, 1282 (1991) (noting that HRS § 580-47(a) “takes

(. . .continued)

             by agreement of both parties or by order of court after
             finding that good cause exists, the court may make any
             further orders as shall appear just and equitable (1)
             compelling the parties or either of them to provide for the
             support, maintenance, and education of the children of the
             parties . . . . In making these further orders, the court
             shall take into consideration: the respective merits of the
             parties, the relative abilities of the parties, the
             condition in which each party will be left by the divorce,
             the burdens imposed upon either party for the benefit of
             the children of the parties, the concealment of or failure
             to disclose income or an asset, or violation of a
             restraining order issued under section 580-10(a) or (b), if
             any, by either party, and all other circumstances of the
             case. In establishing the amounts of child support, the
             court shall use the guidelines established under section
             576D-7. Provision may be made for the support,
             maintenance, and education of an adult or minor child and
             for the support, maintenance, and education of an
             incompetent adult child whether or not the petition is made
             before or after the child has attained the age of majority.

HRS § 580-47(a).



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precedence over [the provision] terminati[ng] . . . Father’s

child support obligation when the children reach the age of

18”).        Wife expressly argued this point in the family court and

the ICA, but neither court addressed Wife’s contention.                 Thus,

on remand the family court should address whether, pursuant to

its authority under HRS § 580-47(a), it was appropriate to order

child support payments for Daughter after the obligation for

child support expired under the first sentence of the September

2004 Amendment.15

                Additionally, under HRS § 580-47(b) (2007), the family

court “at all times . . . ha[s] the power to grant any and all

orders that may be necessary to protect and provide for the

support and maintenance of the parties and any children of the

parties to secure justice.”           HRS § 580-47(b).      Accordingly, the

family court on remand also retains the discretionary authority

provided by HRS § 580-47(b) to craft appropriate relief

regarding child support.16


      15
            We note that HRS § 580-47(a) requires awards of child support to
be consistent with the child support guidelines. HRS § 580-47(a). The
family court did not reference the child support guidelines in its Decision
and Order.
        16
                Relatedly, under HRS § 580-47(c),

                [n]o order entered under the authority of subsection (a) or
                entered thereafter revising so much of such an order as
                provides for the support, maintenance, and education of the
                children of the parties shall impair the power of the court

                                                                  (continued. . .)
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            The family court’s decision not to allow Husband to

recoup child support overpayments for Daughter was also based,

at least in part, on the fact that it would be inequitable if

Husband were allowed to do so.        This is similar to the family

court’s reasoning that Husband was estopped from recouping

overpayments made for Son’s child support.          Based on this

perceived inequity, the family court concluded that Husband was

not entitled to have his child support obligation to Daughter

terminated.

            The ICA did not address this finding.         Similar to the

estoppel conclusion of the family court with respect to child

support overpayments for Son, it is not clear from the family

court’s Decision and Order what legal theory was utilized in

order to reach the conclusion of inequity.          Hence, upon remand,

the family court must clearly state the basis for its conclusion

of inequity and render sufficient findings of fact in support of

that conclusion.


(. . .continued)

            from time to time to revise its orders providing for the
            support, maintenance, and education of the children of the
            parties upon a showing of a change in the circumstances of
            either party or any child of the parties since the entry of
            any prior order relating to the support, maintenance, and
            education.

HRS § 580-47(c) (2007).



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                        VII.      Conclusion

          Accordingly, the ICA erred in determining that the

circuit court abused its discretion in concluding that Husband

was precluded from seeking reimbursement for his overpayment of

child support for Son.     Instead, for the reasons stated, the ICA

should have remanded the case to the family court for a

determination of whether Husband was estopped, under laches or

other applicable legal principles, from seeking reimbursement

for overpaid child support for Son.         Additionally, the ICA erred

by failing to address (1) the family court’s finding of inequity

as to Husband’s reimbursement claim for overpaid child support

for Daughter and (2) Wife’s argument that the family court was

authorized under HRS § 580-47(a) to order Husband to continue

paying Daughter’s child support.         The ICA should have remanded

the case in order for the family court (1) to consider in the

first instance whether it was appropriate to order child support

payments for Daughter after the obligation expired under the

2004 Amendment and (2) as necessary, to clarify the basis for

its conclusion of inequity as to reimbursement of Daughter’s

child support and to render adequate findings of fact to support

this conclusion.    For the foregoing reasons, we vacate in part

the ICA Judgment on Appeal and affirm to the extent that it

vacated the Decision and Order of the family court.           This case

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is remanded to the family court for further proceedings

consistent with this opinion.

Francis T. O’Brien                       /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Charles T. Kleintop and
Dyan M. Medeiros                         /s/ Sabrina S. McKenna
for respondent
                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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