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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0000780
                                                              17-JUN-2016
                                                              07:54 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


    ANASTASIA Y. WALDECKER, Petitioner/Petitioner-Appellant,

                                    vs.

         JOHN O’SCANLON, Respondent/Respondent-Appellee.


                            SCWC-14-0000780

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-14-0000780; UCCJEA No. 14-1-0002)

                              JUNE 17, 2016

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

             OPINION OF THE COURT BY RECKTENWALD, C.J.

          This case arises from the 2010 divorce of Anastasia

Waldecker and John O’Scanlon in Nevada.         When they divorced,

Waldecker and O’Scanlon had one minor child together (Daughter).

In anticipation of the divorce, Waldecker and O’Scanlon entered

into a Property Settlement Agreement that was incorporated into
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the Divorce Decree entered by a Nevada court.          The Settlement

Agreement provided that Waldecker and O’Scanlon would have joint

physical custody of Daughter, but if either parent moved more

than two hundred miles away from either O#ahu or San Francisco,

then sole custody would automatically revert to the remaining

parent.

          Following the divorce, Waldecker and O’Scanlon both

moved to O#ahu.   In early 2014, Waldecker filed a petition in the

Family Court of the First Circuit to change the custody

arrangement because she had remarried and was anticipating a move

to Florida with her new husband.         According to Waldecker, her

anticipated relocation constituted a material change in

circumstances that required the family court to examine whether

the change in custody would be in Daughter’s best interests.

Waldecker also argued that O’Scanlon had become a bad parent, and

that this also constituted a material change in circumstances.

          O’Scanlon argued that because the parties had agreed to

the Settlement Agreement, which had been approved by the Nevada

court and which provided for Daughter’s custody in the event of a

relocation, there was no material change in circumstances.             He

contended that the family court should therefore enforce the

change of custody provision in the Divorce Decree without

performing a “best interests of the child” analysis.


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            The family court agreed with O’Scanlon and concluded

that because the parties had contemplated a future relocation in

the change of custody provision in the Divorce Decree, there was

no material change in circumstances.          The family court thus

enforced the Divorce Decree and awarded sole physical custody of

Daughter to O’Scanlon without explicitly finding that the change

of custody was in Daughter’s best interests.            Waldecker appealed,

and the Intermediate Court of Appeals (ICA) affirmed the family

court’s decision.

            We hold that the family court erred in failing to

consider the best interests of the child.           Accordingly, we vacate

the ICA’s judgment on appeal and the family court’s order, and

remand this case to the family court for further proceedings

consistent with this opinion.

                               I.   Background

A.    The Divorce Decree

            Waldecker and O’Scanlon were divorced in Reno, Nevada,

pursuant to the Nevada district court’s May 13, 2010 Findings of

Fact, Conclusions of Law, and Decree of Divorce (Divorce Decree),

which incorporated the parties’ Settlement Agreement.              Waldecker

subsequently filed the Divorce Decree in the State of Hawai‘i on

January 22, 2014.

            According to the Divorce Decree, Waldecker and


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O’Scanlon were married on or about October 4, 2003, and

physically separated on October 7, 2009.         The parties have one

minor child, Daughter, who was born on August 17, 2005.            At the

time of the divorce, O’Scanlon, Waldecker, and Daughter were

residents of Nevada.

          The Settlement Agreement explicitly awarded joint legal

and joint physical custody of Daughter to both parties.            Relevant

to the instant proceedings, the Settlement Agreement contained

the following provisions:
                4.    Husband and Wife shall have the joint
          legal and physical care, custody and control of
          [Daughter]. Shared custody and visitation shall be on
          a week-on/week-off basis, commencing May 15, 2010. No
          provision is made for visitation during holidays or
          school breaks such that the week-on/week-off cycle
          will continue except to the extent that the parties
          agree otherwise.

                5.    Nevada shall retain exclusive continuing
          jurisdiction over issues of child custody, visitation,
          support and related matters. It is contemplated that
          both Husband, Wife and the minor child will initially
          be residing on the island of Oahu, Hawaii. If in the
          future either party relocates to a residence beyond a
          200-mile radius of Oahu or San Francisco, modification
          of custody shall automatically occur then changing to
          the other party remaining having primary physical
          custody of said minor child, at the option of the
          remaining party.

                6.    Husband shall pay child support to Wife in
          the amount of $500.00 per month, commencing upon the
          entry of a Decree of Divorce. This provision for
          child support satisfies the statutory formula. Health
          care expenses which are not reimbursed by insurance
          will be equally divided. Husband shall be entitled to
          the exemption annually for income tax purposes. Any
          applicable Social Security benefits based upon the age
          of Husband and/or said minor child will revert to
          Husband upon the entry of a Decree of Divorce.
          Husband shall pay for the school said minor child will
          attend, and will be entitled to choose the school and
          its location. In the event that Husband dies or


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            becomes mentally or physically incompetent, the
            responsibility regarding choice of school shall be
            assigned to Husband’s adult children.

(Emphasis added).

            The Nevada Divorce Decree specifically found that

“Plaintiff and Defendant executed a Property Settlement Agreement

on May 13, 2010, which is fair and equitable, and should be

ratified, approved and incorporated into the Decree of

Divorce[,]” but did not include any findings regarding Daughter’s

best interests.

            In 2010, Waldecker relocated to O#ahu with Daughter,

and O’Scanlon followed shortly thereafter.           They resided on O‘ahu

from the initial move through the 2014 change of custody hearing

in the present action.

B.    2014 Motions Regarding Custody

            Waldecker filed a Motion to Change Custody, Visitation,

and Child Support in the family court on February 4, 2014, and

attached a declaration she made on January 2, 2014.

            In her declaration, Waldecker alleged several grounds

by which the family court could find that there had been a

material change in circumstances since the Divorce Decree:               (1)

Waldecker remarried, (2) Waldecker was pregnant with another

child from her new husband and was expecting to give birth at the

end of March, (3) Waldecker’s husband is active-duty military and



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was scheduled to change duty stations to the mainland, and (4)

O’Scanlon had become an unfit parent for a number of reasons.

          On March 10, 2014, O’Scanlon filed a motion to enforce

the custody and education provisions of the original decree and

attached an affidavit in opposition to Waldecker’s motion.

          In his affidavit, O’Scanlon addressed several of the

facts alleged in Waldecker’s declaration.         O’Scanlon acknowledged

Waldecker’s marriage to an active-duty military husband, as well

as her anticipated relocation to the mainland.          O’Scanlon also

claimed to be “an experienced father of three sons” who can

provide Daughter “with a stable and wholesome life.”

          In addition, O’Scanlon alleged that in 2009, after he

filed for divorce in Nevada, Waldecker took Daughter and moved in

with a mutual friend and “avoided making arrangements for

[O’Scanlon] to have timesharing with [Daughter].”           O’Scanlon

stated that after approximately two months, Waldecker left to

live in Reno without notifying him, during which time O’Scanlon

had no contact with Daughter for a few weeks.          Waldecker

subsequently informed O’Scanlon she had moved to Hawai#i with

Daughter and her then-boyfriend.         According to O’Scanlon, at some

point thereafter, Waldecker’s then-boyfriend allegedly became

abusive, and O’Scanlon offered Waldecker money and a vehicle if

she promised to never take Daughter away from O’Scanlon again.


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According to O’Scanlon, Waldecker agreed to abide by the

relocation and school provisions in the Divorce Decree in

exchange for O’Scanlon’s financial help.

C.    Family Court Hearing

            The Family Court of the First Circuit held a hearing on

both motions on March 19, 2014.1           Waldecker agreed with the

family court that to change custody, the court must make a

finding that there had been a material change in circumstances

since the Divorce Decree issued.2

            At the hearing, Waldecker’s counsel mixed legal

arguments with assertions regarding what Waldecker would testify

to, and asserted that she would testify regarding the same four

grounds for finding a material change that she alleged in her

declaration.     Waldecker did respond to some questions from her




      1
            The Honorable Kevin Souza presided.
      2
            THE COURT: [I]sn’t it correct that if I’m going to
            change the custody orders that are currently contained
            in a divorce decree that the court has to make a
            finding that there’s been a material change in
            circumstances?

            [WALDECKER’S COUNSEL]: Yes, that–-and that–-and that
            it’s in the child’s best interest–-

            THE COURT:   Right.

            [WALDECKER’S COUNSEL]:   –-to address that change by a
            change of custody.

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counsel and from the court, although not under oath.3

            When the court asked Waldecker specifically about the

relocation-custody provision in the Divorce Decree, her counsel

replied that she “would argue that she never agreed to that.                 She

was forced--.”     The court then inquired how the provision got

into the Divorce Decree.       Her counsel replied that “[i]t was put

in there by Mr. O’Scanlon’s counsel.         And Mrs. Waldecker, it

seems that she had no choice but to sign it in exchange for

assistance and--financial assistance.”          Her counsel continued,

“[s]he felt like she was being bribed and had to.”

            Waldecker also argued that the main reason she was

seeking a change of custody was “O’Scanlon’s bad parenting skills

and mistreatment of their daughter.”         In support, Waldecker

offered a letter she allegedly wrote to O’Scanlon about his bad

parenting.    However, after O’Scanlon’s counsel objected to the

letter on hearsay grounds, and Waldecker acknowledged that she

had never sent the letter to O’Scanlon, Waldecker’s counsel

agreed that Waldecker would not attempt to enter the letter into

evidence.

            With regard to O’Scanlon’s motion to enforce the



      3
            The court explained to the parties that because it was hearing the
motions during the “Wednesday OSC calendar,” both parties would have an
opportunity to proceed by offer of proof and argument, with Waldecker going
first since it was her motion. The court interjected questions throughout the
hearing.

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Divorce Decree and thereby change custody, Waldecker argued that

Hawai#i Revised Statutes (HRS) § 571-46 (2014) requires that any

change in custody requires a finding by the family court that it

is in the best interests of the child.         When challenged by the

court, Waldecker argued:
          [WALDECKER’S COUNSEL]: [N]o matter what the decree
          says as far as if she relocates, custody must go to
          father, that that’s not how things are done in Hawaii,
          that the [sic] 571-46 makes it clear that post-divorce
          change of custody are based on best interest of the
          child alone, not-–

          THE COURT:   No, that’s not--that’s not what 571-46
          says.

          [WALDECKER’S COUNSEL]: 46 says--says that. It says
          based solely on the best interest, 571-46.

          THE COURT:   That a post-decree change in custody is–-

          [WALDECKER’S COUNSEL]:   Yes.

          THE COURT:   --based solely on the best--

          [WALDECKER’S COUNSEL]:   Yes.

          THE COURT: It’s not--so you’re saying that the court
          would not need to find a material change in
          circumstances?

          [WALDECKER’S COUNSEL]: Right. After that. But what
          I’m trying to say here is a divorce decree is much
          like a pre-marital agreement. You can’t say this will
          automatically change custody because before that has
          to happen the judge has to find that that change has
          to be in the best interest of the child. So even if
          the divorce says she gets custody, it won’t happen
          unless you find that that’s best. So that’s what
          controls, not the divorce.

          O’Scanlon argued that the holding from Nadeau v.

Nadeau, 10 Haw. App. 111, 861 P.2d 754 (1993), should control

because the Divorce Decree specifically provided for the event of

a relocation similar to Nadeau.       O’Scanlon stressed that

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Waldecker knowingly and with the advice of counsel entered into

the Settlement Agreement:
          [The custody provision] was bargained [sic]. She did
          not have to accept financial help. She could have
          gotten financial help from someone else. She signed
          the divorce decree, the property settlement agreement.
          Not only did she sign it. She had the assistance of
          legal counsel at the time that she entered into that
          agreement. Both parties had the assistance of legal
          counsel when they entered into that agreement. So it
          was bargained for.

          O’Scanlon also alleged that Waldecker’s behavior with

regard to allowing O’Scanlon to see Daughter prior to the divorce

was a large factor in including the relocation-custody provision

in the Settlement Agreement.4

          In response to Waldecker’s claims about O’Scanlon’s

fitness as a parent, O’Scanlon made an offer of proof regarding

many of the same issues that he asserted in his affidavit.             He

argued that he was:     “an experienced father,” who has “raised

three sons already”; he provides Daughter with a “stable and

wholesome life”; he has “flexible hours” to provide care for

Daughter; and he has the help of two adult sons who live with him


     4
          [O’SCANLON’S COUNSEL]: . . . Part of the impetus for
          their arriving at that provision is during the time of
          separation Ms. Waldecker was the primary custodian
          because she kept the child away from him and refused
          to tell him where she was. And she actually moved
          from state to state. So--

          THE COURT:   This is prior to the divorce or this is--

          [O’SCANLON’S COUNSEL]: This is prior to the divorce.
          That was the impetus for putting in these special
          provisions about relocation. It was to prevent that
          from happening again.

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and help him take care of Daughter.

            After hearing the parties’ arguments, the family court

concluded:
            [B]ased on the relevant and applicable Hawai#i case
            law that the parties did have a provision that
            addressed relocation in the decree and therefore the
            court is going to find that there is no material
            change in circumstance here based on mother’s proposed
            relocation. So I am going to respectfully . . . find
            that there is no material change in circumstance. I
            am going to deny mother’s motion.

            On May 19, 2014, the family court entered its Findings

of Fact (FOFs) and Conclusions of Law (COLs) and ordered that, in

the event Waldecker relocated beyond 200 miles of O#ahu as she

planned, O’Scanlon be awarded sole custody of Daughter, subject

to a visitation schedule, which included allowing Daughter to

visit Waldecker for up to two months in the summer, during spring

break and winter break on even numbered years, and during fall

break on odd numbered years.        The family court’s order also

provided that upon Waldecker’s relocation, O’Scanlon’s monthly

child support obligation would be terminated, and Waldecker would

be obligated to pay O’Scanlon $70.00 per month in child support.

D.    ICA Appeal

            On appeal, Waldecker argued that the family court erred

by failing to make any finding whatsoever that its anticipated

change of custody and visitation was in the best interests of the

child, and by failing to consider or even mention any of Mother’s

alleged changes of circumstances in its findings of fact or

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conclusions of law.

          Waldecker acknowledged that to amend the custody

arrangement in a prior judicial order, the party seeking to

change the arrangement must show both a “material change in

circumstances” since the entry of the order and that the proposed

change in custody would be in the best interests of the child.

However, Waldecker argued that her relocation from Hawai#i to

Florida would be a material change in circumstances “sufficient

to warrant the Family Court’s reexamination of existing custody

and visitation orders.”

          Waldecker finally argued that paragraph 5 of the

Settlement Agreement, which provides for automatic change of

custody in the event one of the parents relocates to a place

beyond 200 miles of O#ahu or San Francisco, contravenes the

requirement of HRS § 571-46(6) “that any modification or change

of child custody must be required or justified by the best

interests of the child.”

          O’Scanlon argued that under Nadeau, 10 Haw. App. at

111, 861 P.2d at 754, and Turoff v. Turoff, 56 Haw. 51, 527 P.2d

1275 (1974), a party proposing a change in custody from a prior

custody order must first show a material change in circumstances

since the prior custody order, and must further show that the

proposed change in custody would be in the best interests of the


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child.

          O’Scanlon, relying on Nadeau, argued that “[r]elocation

is not a material change in circumstance if the Divorce Decree

contains provisions which govern future relocations.”            O’Scanlon

further relied upon an ICA decision, Child Support Enforcement

Agency v. MS-M, No. CAAP-11-0000387 (Haw. App. Sept. 20, 2013)

(SDO), in which the ICA stated that a parent’s out-of-state

relocation would be a material change of circumstances “absent a

divorce decree or custody order provision addressing the issue.”

Id. at *3.   According to O’Scanlon,       because the Divorce Decree

specifically addresses relocation of a parent, there is no

material change of circumstances to warrant changing the divorce

decree.

          In reply, Waldecker reiterated that the family court

made no findings regarding Daughter’s best interests.            According

to Waldecker, pursuant to HRS § 571-46(a)(1) and (6), it was

error for the court to change the custody of Daughter without a

finding regarding her best interests.        Waldecker argued that

parents cannot “pre-decide” or “pre-determine” child custody

arrangements by contract because any future change in custody can

only be made after a court has determined the child’s best

interests.

          The ICA agreed with the family court’s conclusion that


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although, in general, a relocation is a material change in

circumstances, that is not the case where a provision in the

divorce decree specifically addresses the relocation of one

parent.   The ICA affirmed the family court’s order awarding

custody to O’Scanlon and entered its judgment on appeal on

February 27, 2015.

           Waldecker timely filed her Application for Writ of

Certiorari, in which she raises the following questions:
           1.    Is Hawai#i Family Court Rule 54.2(a)[5] violated
           by a Post-Decree Order that changes physical custody
           of a minor child but fails to make any finding that
           the change of custody is in the best interests of the
           minor child.

           2.    Can a Divorce Decree that automatically changes
           custody of a minor child upon a child’s future
           relocation, without any requirement that the change
           made be in the best interests of the minor, be
           enforced if one parent does not believe the custody
           change would be in the minor’s best interests?

           3.    Did the lower courts violate HRS § 571-46.1(c)[6]
           by refusing to consider Mother’s arguments to


     5
           Hawai#i Family Court Rule 54.2(a) provides:

           (a) Custody and Visitation. A proposed stipulation
           seeking to establish or amend provisions in a judgment
           or any order relating to custody or visitation of
           minor children will not be approved unless there is a
           showing that the proposal is in the best interests of
           the children. Unless waived by the court, such
           stipulation shall be signed by both parties.
     6
           HRS § 571-46.1(c) provides:

           (c) Any order for joint custody may be modified or
           terminated upon the petition of one or both parents or
           on the court’s own motion if it is shown that the best
           interests of the child require modification or
           termination of the order.




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          terminate   joint custody by showing that the best
          interests   of the child require termination of the
          order and   by instead finding that Mother’s relocation
          was not a   material change of circumstances.


                         II.    Standard of Review

                The family court’s FOFs are reviewed on appeal
          under the “clearly erroneous” standard. A FOF 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. “Substantial evidence” is credible evidence
          which is of sufficient quality and probative value to
          enable a person of reasonable caution to support a
          conclusion.

                On the other hand, the family court’s COLs are
          reviewed on appeal de novo, under the right/wrong
          standard. COLs, consequently, are not binding upon an
          appellate court and are freely reviewable for their
          correctness.

          . . . .

                Moreover, the family court is given much leeway
          in its examination of the reports concerning a child’s
          care, custody, and welfare, and its conclusions in
          this regard, if supported by the record and not
          clearly erroneous, must stand on appeal.

In re Doe, 95 Hawai#i 183, 190, 20 P.3d 616, 623 (2001) (internal

quotation marks, citations, brackets, and ellipsis omitted)

(emphasis in original).

                               III.   Discussion

          Waldecker argues that the family court erred under both

HRS § 571-46 and Hawai‘i Family Court Rules (“HFCR”) Rule 54.2 by

enforcing the Divorce Decree’s automatic change of custody

provision and awarding O’Scanlon sole physical custody of

Daughter without specifically considering or finding that the

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change was in Daughter’s best interests.7

            Waldecker further argues that her relocation from O‘ahu

to Florida is a material change in circumstances sufficient to

warrant the family court to reexamine whether modification of

custody pursuant to the provisions in the Divorce Decree would be

in the best interests of the child.

            We agree that the family court erred by not considering

the best interests of the child as required by HRS § 571-46.

A.    Hawai#i Family Court Rule 54.2(a)

            Waldecker raises in her application but does not

present a cogent argument that the family court’s order violates

HFCR Rule 54.2(a) (2000).        Waldecker has waived this argument by

raising it for the first time in this court.            Ass’n of Apt.

Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai#i 97, 107,

58 P.3d 608, 618 (2002) (“Legal issues not raised in the trial

court are ordinarily deemed waived on appeal.”); see HRS § 641-2

(2014 Supp.) (“The appellate court may correct any error

appearing on the record, but need not consider a point that was

not presented in the trial court in the appropriate manner.”).

      7
            Neither party has questioned the jurisdiction of Hawai#i courts to
rule on the issue of child custody, despite the Divorce Decree’s provision
that: “Nevada shall retain exclusive continuing jurisdiction over issues of
child custody, visitation, support and related matters.” Because we address
issues of subject matter jurisdiction sua sponte, we consider this issue and
conclude that under HRS §§ 583A-203(2) and 583A-201(a)(1), Hawai#i courts have
jurisdiction to modify the custody determination of the Nevada court based
upon the family court’s finding in May 2014 that O’Scanlon, Waldecker, and
Daughter have lived in Hawai#i since 2010.

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            Waldecker has also waived this argument by not

addressing its merits.      See Tauese v. State, Dep’t. of Labor &

Indus. Relations, 113 Hawai#i 1, 26, 147 P.3d 785, 810 (2006)

(“This court may disregard [a] particular contention if an

appellant makes no discernable argument in support of that

position.”) (quotation marks and citation omitted) (alterations

in original).

            Moreover, even if we were to address this question, it

is inapplicable to the facts presented.          HFCR Rule 54.2(a)

provides:
            (a) Custody and Visitation. A proposed stipulation
            seeking to establish or amend provisions in a judgment
            or any order relating to custody or visitation of
            minor children will not be approved unless there is a
            showing that the proposal is in the best interests of
            the children. Unless waived by the court, such
            stipulation shall be signed by both parties.

(Emphasis added).

            HFCR Rule 54.2(a) only applies where the parties are

seeking to establish or amend provisions in a judgment or any

order, and even then, only applies when the parties have

stipulated to the amendment.        Here, neither is true.      The family

court did not amend or establish any provision in a judgment or

order.   To the contrary, the family court enforced the custody

provision in the Divorce Decree exactly as written.

            Thus, Waldecker’s argument that the family court

violated HFCR Rule 54.2(a) is waived and without merit.


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B.    The Family Court Erred in Enforcing the Automatic Change in
      Custody Provision in the Divorce Decree Without Considering
      the Best Interests of the Child

            The next issue requires us to examine the development

of the “material change in circumstances” requirement in Hawaii’s

case law and whether it remains applicable for the purposes of

modifying a child custody order.           In addition, we consider

whether the family court must conduct a “best interests of the

child” analysis and enter specific findings thereon.8


      8
            In determining what constitutes the best interest of the child
under HRS § 571-46, the court shall consider, but not be limited to, the
following:
            (1) Any history of sexual or physical abuse of a child
            by a parent;
            (2) Any history of neglect or emotional abuse of a
            child by a parent;
            (3) The overall quality of the parent-child relationship;
            (4) The history of caregiving or parenting by each
            parent prior and subsequent to a marital or other type
            of separation;
            (5) Each parent’s cooperation in developing and
            implementing a plan to meet the child’s ongoing needs,
            interests, and schedule; . . . .
            (6) The physical health needs of the child;
            (7) The emotional needs of the child;
            (8) The safety needs of the child;
            (9) The educational needs of the child;
            (10) The child’s need for relationships with siblings;
            (11) Each parent’s actions demonstrating that they
            allow the child to maintain family connections through
            family events and activities; . . . .
            (12) Each parent’s actions demonstrating that they
            separate the child’s needs from the parent’s needs;
            (13) Any evidence of past or current drug or alcohol
            abuse by a parent;
            (14) The mental health of each parent;
            (15) The areas and levels of conflict present within
            the family; and
            (16) A parent’s prior wilful misuse of the protection
            from abuse process under chapter 586 to gain a
            tactical advantage in any proceeding involving the
            custody determination of a minor[.]

HRS § 571-46(b) (Supp. 2013).

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            It is undisputed that the Divorce Decree in this case

provides for an automatic change of primary physical custody to

the remaining parent in the event that one parent relocates more

than two hundred miles from O#ahu or San Francisco.9           It is also

undisputed that in February 2014, Waldecker anticipated

relocating to Florida, which is more than two hundred miles from

either O#ahu or San Francisco.10       Thus, Waldecker’s arguments

focus on why, despite the automatic change of custody provision

in the Divorce Decree, there was a material change in

circumstances that required the family court to make a

determination of whether enforcement of the provision was in

Daughter’s best interests.

            In COL 7, the family court concluded that, “to prevail

on a motion to modify a custody or visitation order, as a

threshold matter, the moving party must demonstrate that there

has been a material change in circumstances since that prior

order.”    In COLs 8-9, the family court concluded that generally,

relocation of a parent is a material change in circumstances, but

where the divorce decree specifically outlines a custody

arrangement in the event of a relocation, relocation of a parent



      9
            The family court made this conclusion in COL 12, which Waldecker
has not challenged on appeal.
      10
            The family court made these findings in FOFs 16-17, which
Waldecker has not challenged on appeal.

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does not constitute a material change in circumstances.            Further,

in COLs 10-11, the family court concluded that the Divorce Decree

provided for the custody arrangement for Daughter in the event of

a relocation, and thus there was no material change of

circumstances.      It appears that because Waldecker had not shown

this threshold change in circumstances, the family court did not

explicitly analyze whether enforcing the change of custody

provision was in Daughter’s best interests.

          We begin our analysis by examining the origin of the

“material change in circumstances” test.         HRS § 571-46, which

sets forth the criteria for awarding child custody, provides in

relevant part:
          (a) In actions for divorce, separation, annulment,
          separate maintenance, or any other proceeding where
          there is at issue a dispute as to the custody of a
          minor child, the court, during the pendency of the
          action, at the final hearing, or any time during the
          minority of the child, may make an order for the
          custody of the minor child as may seem necessary or
          proper. In awarding the custody, the court shall be
          guided by the following standards, considerations, and
          procedures:

          (1) Custody should be awarded to either parent or to
          both parents according to the best interests of the
          child, and the court may also consider frequent,
          continuing, and meaningful contact of each parent with
          the child unless the court finds that a parent is
          unable to act in the best interest of the child;

          . . . .

          (6) Any custody award shall be subject to modification
          or change whenever the best interests of the child
          require or justify the modification or change and,
          wherever practicable, the same person who made the
          original order shall hear the motion or petition for
          modification of the prior award[.]



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(Emphasis added).

            There is nothing in the statute that expressly requires

that a party seeking to change a custody order must demonstrate a

material change in circumstances before the order can be

modified.    Notably, HRS § 571-46(a)(6), which specifically

addresses modification of custody, does not require a material

change in circumstance--stating instead that “[a]ny custody award

shall be subject to modification or change whenever the best

interests of the child require or justify the modification or

change.”    (Emphasis added).     However, over time, the requirement

of a material change of circumstances has developed in our case

law.

            In Dela Cruz v. Dela Cruz, 35 Haw. Terr. 95 (1939),

mother brought a motion to modify a previous award of custody to

father. Although she “did not answer or make any appearance” at

the original custody proceeding, the circuit judge found that

mother had “rehabilitated herself; is now remarried and is able

to give these children a fit and proper home,” and that “the

remarriage of the mother and her rehabilitation constitutes

sufficient change of circumstances since the entry of the

Decree.”    Id. at 96-97.     This court explained:
            In approaching the question of whether or not a decree
            of custody of a child of divorced parents should be
            modified so as to give the custody to the parent
            denied its custody upon the granting of the divorce,
            the court is confronted with the task of determining


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          whether or not there has been such a change of
          circumstances that the modification will be for the
          good of the child. Just what change will be
          sufficient to work that good varies in each particular
          case.

Id. at 98.

          We held that the circuit judge did not err in holding

that there was a “sufficient change of circumstances since the

entry of the decree to warrant a consideration of whether or not

it would be for the best welfare of the children to be placed in

the custody of their mother[.]”       Id. at 103.     Our ruling

emphasized that “the welfare of the child is in all such cases

the paramount consideration.”       Id. at 98.

          In Dacoscos v. Dacoscos, 38 Haw. Terr. 265 (1948),

father appealed from an order awarding custody of three minor

children to mother.     This court explained that it was required

“to ascertain whether there occurred such a change of

circumstances that the replacement of custody in the father would

be for the best interests of the children.”          Id. at 266.    The

evidence revealed that father had remarried and lived “happily,”

whereas mother had remarried, had two more children, divorced,

and had another child with a “paramour” while working late nights

as a “taxi dancer.”     Id. at 266-67.     After finding that “the

changed circumstances of the father are advantageous to his

prospective custody,” we awarded him custody consistent with “the

general rule that the welfare of the child has paramount

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consideration.”    Id. at 267.

          In Turoff, the family court granted a father custody of

a child after ten hearings held over a period of six months.                56

Haw. at 52, 527 P.2d at 1276.       The next year, the mother sought a

change of custody, arguing that “the change of circumstances,

namely the father’s transfer away from Hawai#i, necessitates a

complete re-evaluation of custody, and that the only

consideration is what is in the child’s best interest at the

present time.”    Id. at 53, 527 P.2d at 1277.        The family court

agreed that the proper consideration was what is in the child’s

best interest, but it also noted that the testimony from the

prior proceeding was essential to the present determination.                Id.

As such, the family court stated that, “when the first decision

was made in January of 1972, the court was aware that the father

would be transferred in approximately a year, and that factor was

weighed in the original determination of custody.           In that sense

the present situation is not a change of circumstances.”            Id.

The family court then held that the child was receiving good care

in the custody of her father, and that her best interests would

not be facilitated by the transfer of her custody.           Id.

          On the mother’s appeal, we stated that the question was

“whether substantial change ha[d] occurred since the initial

decision and order requiring modification or change in the award


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of custody of the minor child.”       Id. at 55, 527 P.2d at 1278.          We

then held that the family court, in reviewing the evidence, “made

the proper factual determinations and reached the correct legal

conclusions.”   Id.

          Importantly, although the family court found no change

in circumstances in Turoff, it still considered what was in the

best interests of the child at the present time.           Id.   Moreover,

this court did not adopt a material change in circumstances

requirement.

          In Nadeau, the ICA considered a situation where a

relocation provision provided for a change of visitation.

Similar to the facts of this case, the divorce decree in Nadeau

contained an automatic change of visitation provision in the

event of one parent’s relocation.        10 Haw. App. at 112-13, 861

P.2d at 755-56.    Specifically, the decree provided for a change

in visitation arrangements if the parties, who were both in the

United States Navy, relocated outside the same geographical area.

Id. at 113, 861 P.2d at 756.      When the father relocated to the

continental United States, the mother sought and received a

modification of the father’s visitation schedule.           Id. at 114,

861 P.2d at 756.    The family court reduced the father’s

visitation, and father appealed, arguing that his relocation was

not a material change of circumstances that permitted the family


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court to change the visitation schedule.          Id. at 119, 861 P.2d at

758.

            The ICA held that the father’s relocation was not a

material change in circumstances and revised visitation

consistent with the divorce decree because when the divorce

decree was entered, “the family court knew that both Father and

Mother would each be ordered to different duty stations within

the following three years” and provided for that occurrence in

the order.    Id.   The ICA agreed with the family court “that a

person seeking a change of custody must show a material change of

circumstances since the previous custody order, and must show

that such a change of custody is in the best interest of the

child.”   Id. at 121, 861 P.2d at 759.

            In Hollaway v. Hollaway, the ICA considered an appeal

from the modification of a joint custody arrangement which gave

“Mother sole custody regarding educational decisions made on

behalf of [Son].”     133 Hawai#i 415, 416, 329 P.3d 320, 321

(2014).   After discussing HRS §§ 571-46 and 571-46.1(c),11 the

ICA said that “[w]hile the statutory language . . . grants family

      11
            The text of HRS § 571-46 is set forth supra. HRS § 571-46.1(c),
which the ICA described as “its sister statute,” 133 Hawai#i at 421, 329 P.3d
at 326, provides as follows:

            (c) Any order for joint custody may be modified or
            terminated upon the petition of one or both parents or
            on the court’s own motion if it is shown that the best
            interests of the child require modification or
            termination of the order.

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courts the jurisdiction to modify a joint custody order, our case

law requires that the party seeking modification must first make

a threshold showing of material change in circumstances.”                Id. at

421, 329 P.3d at 326 (emphasis added).            The ICA further noted

that requiring a material change in circumstances:
             reflects the importance of the family courts’ focus on
             the best interests of the child in evaluating proposed
             custodial modifications[.] The prior custody order,
             founded as it must be on the child’s best interests,
             and including, among others, the implicit component
             factors of stability and security, should not be
             overturned lightly.[12]

Id. at 421 n.5, 329 P.3d at 326 n.5 (emphasis added).

             As the ICA acknowledged in Hollaway, the requirement of

a material change in circumstances is set forth in Nadeau and

other ICA cases.       Id. at 421, 329 P.3d at 326.        It has not been

adopted by this court.        We conclude that the requirement of a

material change in circumstances is inconsistent with HRS § 571-

46.    Accordingly, we overrule Nadeau and Hollaway to the extent

they suggest that a material change in circumstances is required

before the court can consider the best interests of the child in

modifying a custody order.         Rather than that two-step analysis,


       12
            We note that in both Turoff and Nadeau, the custody orders were
entered pursuant to contested family court proceedings, whereas in this case,
the agreement was stipulated. Furthermore, in those cases, the relocations
were certain to occur within the next few years as a result of the parents’
military status. That is not the case here. Waldecker and O’Scanlon could
not have predicted the nature of this relocation to such a degree of
certainty. In fact, at the time of their divorce, there were no plans for
relocation. As such, the Nevada court did not and could not have evaluated
whether some future, unknown relocation was in the best interests of the child
when it approved the parties’ stipulated settlement agreement.

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there is a single inquiry which focuses on the best interests of

the child.    As this court held in Dela Cruz, the question is

“whether or not there has been such a change of circumstances

that the modification will be for the [best interest] of the

child.”   35 Haw. Terr. at 98.

           We acknowledge that there are legitimate interests in

preventing continued relitigation of issues and reducing

repetitive motions.     However, the family courts have various

tools at their disposal to address such situations, including the

power to impose sanctions, as appropriate.

           In short, jurisprudential concerns regarding repetitive

motions cannot be addressed in a manner that conflicts with the

requirements of HRS 571-46 that “custody should be awarded . . .

according to the best interests of the child” and “any custody

award shall be subject to modification or change whenever the

best interests of the child require or justify the modification

or change.”    HRS § 571-46(a)(1) and (6) (emphasis added).           Such a

conflict occurred in the instant case.         Daughter is experiencing

significant change in her life, as her mother has remarried and

is moving to the mainland.      The fact that the parties--in 2010--

attempted to account for a relocation of one of Daughter’s

parents does not mean that the best interests of the child had

not changed.    Indeed, the parties and the Nevada court did not


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know in 2010 when this relocation would occur or what Daughter’s

circumstances would be at the time of the relocation.

Waldecker’s decision to relocate with her new husband required

the court to consider whether, because of the “change in

circumstances,” modification of the custody order would be “in

the best interests” of Daughter.

          A custody determination should not be so inflexible as

to foreclose inquiry into the best interests of the child solely

based on an existing custody arrangement related to relocation

that was made when neither the parties nor the court had any idea

of what the circumstances of that relocation would be.            The

family court here did not scrutinize whether, at the time of the

expected relocation, the automatic change of custody was in the

best interests of the child. It should have done so, since the

best interests of the child should be the “paramount

consideration.”    Dela Cruz, 35 Haw. at 98.

          Here, Waldecker and O’Scanlon’s divorce decree included

an automatic change of custody provision.         Enforcement of the

relocation provision resulted in a change from joint physical

custody, to O’Scanlon receiving sole physical custody.            Yet HRS

§ 571-46 provides that child custody shall be modified only if

the best interests of the child justify a modification.

Furthermore, HRS § 571-46.1(c), which governs joint custody


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arrangements like the one in this case, provides that “[a]ny

order for joint custody may be modified or terminated upon the

petition of one or both parents or on the court’s own motion if

it is shown that the best interests of the child require

modification or termination of the order.”          (Emphasis added).

Thus, the family court was required to ascertain whether

Waldecker’s planned relocation constituted “such a change in

circumstances” that modification of the custody order “would be

for the best interests of” Daughter.         Dacoscos, 38 Haw. Terr. at

266.   Therefore, the family court erred when it awarded sole

custody to O’Scanlon without considering the child’s best

interests.13

                             IV.   Conclusion

            We hold that the family court erred when it enforced

the Divorce Decree and awarded sole physical custody of Daughter

to O’Scanlon without explicitly finding that the change in

custody was in Daughter’s best interests.          Thus, we vacate the




      13
            Waldecker also argues that paragraph 6 of the Settlement Agreement
is an “invalid, un-enforceable order and in can not [sic] be given full force
and effect.” Waldecker failed to raise this argument before the family court,
so the issue is waived. Even if the issue had been properly raised, it would
likely have been premature and dismissed on ripeness grounds. The provision
provides for “the event that [O’Scanlon] dies or becomes mentally or
physically incompetent.” However, Waldecker has not alleged that O’Scanlon
has died, become mentally ill or incompetent, and the record does not suggest
otherwise.

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ICA’s February 27, 2015 judgment, and the family court’s May 19,

2014 order, and remand to the family court for further

proceedings.

Michael A. Glenn                         /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
A. Debbie Jew
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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