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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-15-0000048
                                                              06-APR-2017
                                                              08:16 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                                P.O.,
                   Respondent/Petitioner-Appellee,

                                    vs.

                                J.S.,
                  Petitioner/Respondent-Appellant.


                            SCWC-15-0000048

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-15-0000048; FC-P NO. 08-1-0162)

                              APRIL 6, 2017

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

                OPINION OF THE COURT BY POLLACK, J.

          This case addresses the manner in which the family

court determined monthly child support for the Child of

Petitioner JS (Father) and Respondent PO (Mother).           Following a

series of written and oral agreements between Mother and Father

regarding child support, Father sought court review and

modification of his monthly support obligation.          The family
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court, citing in part Father’s failure to show a material change

in circumstances, denied the request and set Father’s monthly

payment at the same amount provided in the parties’ prior oral

agreement.    Father appealed the child support ruling, which the

ICA affirmed.    On certiorari to this court, Father contends that

he is entitled to review of his child support obligation

irrespective of changed circumstances and that the family court

erred in determining his monthly payment without utilizing the

Hawaiʻi Child Support Guidelines.

             We hold that, pursuant to Hawaii Revised Statutes §

576D-7(e) (2006), a responsible or custodial parent for which

support has previously been ordered is entitled to a review of a

child support order not more than once every three years without

having to show a change in circumstances.         We also hold that the

family court is required by multiple provisions of the Hawaii

Revised Statutes to use the Hawaiʻi Child Support Guidelines when

it reviews the merits of a request for adjustment of a monthly

support obligation.     Thus, we vacate in part the rulings of the

family court and the ICA and remand the case so that the family

court may calculate Father’s support payment in accordance with

these statutory requirements.




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                              I.    BACKGROUND

             Child was born to Mother and Father in October 2007.

At the time Child was born, Father was employed as a

professional football player.

             On February 14, 2008, Mother filed a petition for

paternity with the Family Court of the First Circuit (family

court).     The petition included a Hawaiʻi Child Support Guidelines

Worksheet (Guidelines Worksheet) that included Father’s income,

Mother’s income, monthly child care expenses, and health and

dental care expenses for Child.        The Guidelines Worksheet was

prepared by Mother’s attorney, signed by both Mother and Father,

and stated that Father’s payable child support obligation was

calculated at $4,870 per month.

             Following submission of the petition, Father and

Mother, with the assistance of Mother’s attorney, entered into a

stipulated agreement regarding custody, visitation, and child

support.1    On March 19, 2008, Father and Mother memorialized

their agreement by filing a stipulation with the family court

(2008 Stipulation).      In the 2008 Stipulation, the parties agreed

that Father would pay Mother $4,870 per month in child support




      1
            Issues relating to custody and visitation are not raised on
certiorari and will not be addressed further.




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starting March 1, 2008.     The 2008 Stipulation did not include a

Guidelines Worksheet.

          On January 20, 2010, Mother filed with the family

court a Motion and Declaration to Modify Child Support.            The

motion included a Guidelines Worksheet that reflected the

incomes of both Mother and Father.        The Guidelines Worksheet was

signed by Mother and calculated Father’s monthly child support

obligation at $16,050.     Father’s signature does not appear on

the Guidelines Worksheet.

          On July 21, 2010, Father and Mother amended their

child support agreement by filing a stipulation to modify the

2008 Stipulation (2010 Stipulation).        In the 2010 Stipulation,

Father agreed to pay Mother $8,500 per month in child support

and deposit $2,500 per month into a savings account for Child,

effective June 2010.     A Guidelines Worksheet was also not

included with the 2010 Stipulation.

          In October 2010, Father was released from employment

as a professional football player.        By oral agreement in

February 2011 (2011 Agreement), Mother and Father reduced

Father’s monthly child support obligation to $3,500 in light of

Father’s loss of employment.      No written agreement was filed

with the family court memorializing the reduction in Father’s

child support payment.



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            In November 2012, Father married his current spouse.

Father related that he depleted the savings accrued from his

employment as a professional football player by the end of 2012.

In explaining his depleted savings at trial, Father referred to

an expenditure of $200,000 for his wedding and payment of

various other debts and expenses.

            According to Father, as his funds started to dwindle,

he realized that he could not continue to pay the previously

agreed-upon $3,500 per month.       Father testified that as a

result, he initiated contact with Mother to reduce child support

and the parties orally agreed to lower support towards the end

of 2012.   Father could not recall whether this agreement lowered

support to $2,000 or $1,500 per month.         Mother testified that

she did not agree to further reduce child support in 2012 and

that Father unilaterally decided to decrease support to $1,500

per month without saying anything to her.         In late 2012, Father

began making monthly child support payments between $1,500 and

$2,000.    Towards the end of 2013, Father stopped paying child

support.

            Father testified that his spouse pays for all family

living expenses because of his reduced savings.          Father, who is

a college graduate, indicated that he remains unemployed, citing

a sports-related injury and a pending disability claim.



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                      II.   FAMILY COURT PROCEEDINGS

             On August 19, 2013, Father filed a Motion for Relief

after Judgment or Order and Declaration (Motion for Relief)

requesting that the family court recalculate his child support

obligation based on the parties’ current incomes.             On September

18, 2013, Mother filed a motion to award her sole legal custody

of Child, enforce the 2010 Stipulation, and for attorneys’ fees.2

             On October 7, 2013, pursuant to an agreement between

the parties, the family court ordered that (1) all issues raised

by Mother and Father would be tried together, (2) the parties

were to engage in mediation, and (3) beginning in October 2013

and going forward, Father would pay child support in the amount

of $3,500 per month pending resolution of the motions at

mediation or trial (Pretrial Order).3

             The family court held a six-day trial pertaining to

the parties’ motions that began on June 16, 2014, and concluded

on September 16, 2014.       The court heard testimony on the matter

of child support as stated above.4         On December 30, 2014, the

family court entered an Order Re: Trial (Trial Order)

      2
             The Honorable Jennifer L. Ching presided in the proceedings in
this case.
      3
            There is no indication in the Pretrial Order that the Guidelines
were used to calculate the $3,500 monthly support obligation.
      4
            The family court also received testimony relating to other issues
not before this court.




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determining Father’s child support as $3,500 per month,

effective February 1, 2011.

          In its Findings of Fact and Conclusions of Law, the

court found that on or about February 2011, the parties orally

agreed to set child support at $3,500 per month.           The court

found that Father’s testimony regarding an alleged agreement in

2012 to lower the amount to $2,000 or $1,500 per month lacked

credibility.

          The family court also found that Father was a college

graduate and had not sought work following his 2010 employment

termination.   However, the court made no findings regarding

Father’s potential earning capacity, Father’s assets, or any

joint assets held with Father’s spouse.

          With regard to Father’s request for modification of

his monthly child support obligation, the family court found

that Father “failed to meet his burden of proof” to show that

the $3,500 support obligation that the parties agreed to should

be modified.   The court also found that there had been no

“material change of circumstances” from the 2011 Agreement,

which set child support at $3,500 per month.5          Based on these

     5
          The relevant findings of fact (FOFs) state as follows:

                52. Father failed to meet his burden of proof to show
          that the $3,500 monthly child support agreed to should be
          modified, or the amount of any warranted modification.


                                                             (continued. . .)

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findings, the court determined that Father owed Mother $64,490

in past due child support through January 2015.

            In its conclusions of law, the family court quoted the

requirement of Hawaii Revised Statutes (HRS) § 584-15(e) (2006)

that the Hawaiʻi Child Support Guidelines (Guidelines) were to be

utilized in determining the amount to be paid by a parent for

support of a child.      However, there is no indication in its

findings of fact or conclusions of law that the family court

applied the Guidelines in considering Father’s support

obligation.    Rather, the court concluded that Father had not

proved that the $3,500 per month amount agreed to by the parties

in the 2011 Agreement and in the Pretrial Order should be

modified and that it was “appropriate and fair” that support be

set at that amount.6




(. . .continued)

                  53. There has not been any material change of
            circumstances from the time when Father agreed to child
            support in the amount of $3,500 per month.
      6
            The relevant conclusions of law (COLs) state the following:

                  7. Father has not proven that the $3,500 per month
            child support that was agreed to by the parents (in
            approximately December of 2010); and agreed to and ordered
            in the [Pretrial Order], should be modified.

                  8. It is appropriate and fair that Father's monthly
            child support commencing February 1, 2011, and his current
            monthly child support, be $3,500.




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            The family court entered an Order Re: Child Support

Arrears on January 21, 2015 (Arrears Order), providing for

$64,490 in past due child support.

                           III. ICA PROCEEDINGS

            Father appealed the Trial Order and Arrears Order to

the Intermediate Court of Appeals (ICA),7 arguing that the family

court erred when it denied his request for child support

modification, set monthly child support in the amount of $3,500

effective February 1, 2011, and concluded that Father owed

Mother $64,490 in child support arrears.          Specifically, Father

submitted that the family court had failed to calculate his

monthly child support obligation using the Guidelines as

required by the Hawaii Revised Statutes.          Father also contended

that he had made a sufficient showing to receive a reduction of

his monthly child support payment.8

            In its June 15, 2016 published opinion (Opinion), the

ICA determined that the family court had not erred in rejecting
      7
            At oral argument before this court, it was disclosed that Father
stopped paying monthly child support pending appeal of this case. Oral
Argument at 42:15-41, PO v. JS, SCWC-15-0000048 (2017),
http://oaoa.hawaii.gov/jud/oa/17/SCOA_020217_SCWC_15_48.mp3. Testimony at
trial suggests that Father’s last support payment was made in late 2013. We
observe that there was no stay entered by the family court authorizing
cessation of child support payments.
      8
            Additionally, Father argued that Mother should be barred from
requesting past due child support under the principles of laches and/or
equitable estoppel. The ICA rejected this argument, PO v. JS, 138 Hawai#i
109, 123, 377 P.3d 50, 64 (App. 2016), and because Father has not raised it
on certiorari, it is not further addressed.




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Father’s request for child support modification.              PO v. JS, 138

Hawai#i 109, 122, 377 P.3d 50, 63 (App. 2016).           The ICA quoted

Davis v. Davis, 3 Haw. App. 501, 506, 653 P.2d 1167, 1170

(1982), for the proposition that a party seeking to modify an

existing child support obligation must show that there has been

a “substantial and material change in the relevant circumstances

so as to permit consideration of the modification request.”                 PO

v. JS, 138 Hawai#i at 122, 377 P.3d at 63.          The ICA considered

the most recently enforceable child support agreement by which

to measure changed circumstances to be the 2011 Agreement to

reduce Father’s payment to $3,500 per month.9           Id.    The ICA

agreed with the family court’s determination that Father’s

wedding expenses and debt payments in 2012 did not constitute a

material change in circumstances sufficient to warrant a

modification of the child support amount set by the 2011

Agreement.    Id.

             The ICA then addressed Father’s contention that the

family court should have utilized the Guidelines in setting his

monthly child support obligation.         Id. at 122-23, 377 P.3d at

63-64.    The ICA cited HRS § 571-52.5 (2006), which requires the

      9
            The ICA noted Father’s testimony that the parties had agreed to
further reduce child support in 2012, but stated that it would not reverse
the family court’s finding that Father’s testimony on this issue was not
credible because it was supported by substantial evidence in the record and
not clearly erroneous. PO v. JS, 138 Hawai#i at 121, 377 P.3d at 62.




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court to use the Guidelines when establishing or modifying a

child support order “except when exceptional circumstances

warrant departure.”      Id.   The ICA concluded that the family

court could have declined to use the Guidelines because it found

that the existence of the 2011 Agreement to reduce child support

was an “exceptional circumstance.”         Id. at 123, 377 P.3d at 64.

Thus, the ICA could not “conclude that enforcing the February

2011 Agreement without reliance on the Guidelines was a manifest

abuse of discretion.”      Id.   The ICA also held that the family

court did not abuse its discretion in setting Father’s past due

child support at $64,490.        Id. at 123-24, 377 P.3d at 64-65.

           Based on separate errors not raised on certiorari to

this court,10 the ICA vacated in part the family court’s Trial

Order and Arrears Order and remanded the case for proceedings

consistent with its Opinion.       Id. at 124, 377 P.3d at 65.

                        IV.    STANDARDS OF REVIEW

           The family court’s [findings of fact (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

     10
            The ICA held that the family court erred when it (1) waived the
psychologist-client privilege held by Child without determining whether
waiving the privilege and allowing the psychologist to testify at trial was
in the best interests of Child, and (2) concluded that Father had not
demonstrated a material change in circumstances warranting a change of the
parties’ visitation schedule. PO v. JS, 138 Hawai#i at 118, 120, 377 P.3d at
59, 61.




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           evidence which is of sufficient quality and probative value
           to enable a person of reasonable caution to support a
           conclusion.

Kakinami v. Kakinami, 127 Hawaiʻi 126, 136, 276 P.3d 695, 705

(2012) (quoting Fisher v. Fisher, 111 Hawaiʻi 41, 46, 137 P.3d

355, 360 (2006)).     A family court’s conclusions of law are

reviewed de novo.     Id.

                             V.    DISCUSSION

           On certiorari, Father argues that he has the right

under Hawaiʻi law to a review of his child support obligation

once every three years irrespective of changed circumstances and

that the family court erred in applying a different standard.

Father also contends that in considering his request for

modification, the family court was required to calculate his

support payment by utilizing the Guidelines.           Because the family

court did not use the Guidelines, Father submits that the court

erred in setting child support at $3,500 per month as of

February 1, 2011.     Mother responds that the family court acted

reasonably in declining to reduce Father’s monthly child support

payment.

A.    Request for Review and Modification of Child Support Order

           Father first contends that Hawaiʻi law entitles him to

a review of his monthly child support obligation once every

three years without having to show a change in circumstances.




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            Chapter 576D of the Hawaii Revised Statutes, entitled

“Child Support Enforcement,” establishes the Child Support

Enforcement Agency (CSEA), the Guidelines, and other matters

specific to child support orders.         HRS § 576D-7(e) provides the

right to petition the family court for a review and modification

of a child support order:

            The responsible or custodial parent for which child support
            has previously been ordered shall have a right to petition
            the family court or the child support enforcement agency
            not more than once every three years for review and
            adjustment of the child support order without having to
            show a change in circumstances. The responsible or
            custodial parent shall not be precluded from petitioning
            the family court or the child support enforcement agency
            for review and adjustment of the child support order more
            than once in any three-year period if the second or
            subsequent request is supported by proof of a substantial
            or material change of circumstances.

HRS § 576D-7(e) (2006) (emphases added).          Thus, the responsible

or custodial party is entitled to a review and reassessment of a

child support order once every three years “without having to

show a change in circumstances.”          Id.; see also HRS § 576E-14(d)

(2006) (same in administrative child support proceedings); HRS §

580-47(e) (2006) (same following divorce proceedings).             An

individual who seeks review of a child support order more than

once “in any three-year period” may do so provided the request

is supported by proof of a substantial or material change in

circumstances.11    HRS § 576D-7(e).


      11
            Unlike in Waldecker v. O’Scanlon, where this court held that a
petitioner need not demonstrate a material change in circumstances to obtain

                                                              (continued. . .)

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            The right to review of a child support order not more

than once every three years was included in Hawaii’s child

support enforcement framework by legislative enactment in 1997.

See 1997 Haw. Sess. Laws Act 293, § 28 at 664-65.            This right

was codified at HRS § 576D-7(e) with respect to judicial child

support enforcement, HRS § 576E-14(d) regarding administrative

child support enforcement, and HRS § 580-47(e) as it relates to

child support orders and divorce proceedings.           See supra.    Thus,

as a result of these 1997 amendments, an individual is entitled

to receive review of an existing child support order without

showing changed circumstances “not more than once every three

years.”   HRS § 576D-7(e); HRS § 576E-14(d); HRS § 580-47(e).

            In this case, the family court found that there had

been no “material change of circumstances” from the parties’

oral 2011 Agreement to set support at $3,500 per month to the

August 19, 2013 filing of Father’s Motion for Relief, and, as a

result, it concluded that modification was not appropriate.

Likewise, the ICA in its Opinion in this case relied on Davis v.

(. . .continued)

modification of a child custody order, the child support modification
statutes require a showing of a substantial or material change in
circumstances when review is sought more than once in any three-year period
and explicitly reject such a requirement when review is sought not more than
once every three years. 137 Hawaiʻi 460, 467-70, 375 P.3d 239, 246-49 (2016)
(explaining that child custody statute did not expressly require party
seeking review and modification of custody order to demonstrate material
change in circumstances and that requirement to do so as developed by caselaw
was inconsistent with statute).



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Davis, 3 Haw. App. 501, 506, 653 P.2d 1167, 1170 (1982), and

determined that Father was required to show a substantial change

in circumstances from the 2011 Agreement to receive review of

his request for reduction in child support.           PO v. JS, 138

Hawai#i 109, 122, 377 P.3d 50, 63 (App. 2016).           Neither the

family court nor the ICA cited or otherwise acknowledged the

impact of HRS § 576D-7(e) on Father’s right to review of his

monthly support payment.

            There are two possible rationales for the rulings of

the family court and the ICA.        First, the family court, like the

ICA, may have relied on the ICA’s 1982 decision in Davis, which

held that a request for modification of a child support order

must be based on “a substantial and material change in the

relevant circumstances which were before the court when it made

the original order.”12      3 Haw. App. at 505-06, 653 P.2d at 1170

(citing HRS § 580-47(c) (1976, as amended)).           However, any

reliance on Davis in this case would be misplaced.            Davis was

decided by the ICA 15 years before the 1997 legislative

enactment that amended the standard for child support

modification requests, see supra, and there is no indication


      12
            The family court did not affirmatively cite to Davis, but it
concluded in its findings of fact that there had “not been any material
change of circumstances from the time when Father agreed to child support in
the amount of $3,500 per month.”




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from the ICA’s Opinion that the impact of these amendments was

recognized.13    To the extent that the family court and the ICA

may have relied exclusively on Davis to reject Father’s request

for child support modification and failed to consider the effect

of the enactment of HRS § 576D-7(e) on this case, each held

Father to an incorrect standard with respect to review of

requests for child support modification.

            Alternatively, the family court and the ICA may have

considered that the oral 2011 Agreement to reduce monthly

support to $3,500 constituted the parties’ most recent “child

support order” and determined that Father’s August 19, 2013

Motion for Relief required him to show “a substantial or

material change of circumstances” because the motion was a


      13
            It is noted that in Jaylo v. Jaylo, the ICA acknowledged the
right of a custodial or responsible parent to seek review of a child support
order once every three years without having to show a change in
circumstances. 124 Hawaiʻi 488, 498–99, 248 P.3d 1219, 1229–30 (App. 2011),
vacated on other grounds, 125 Hawaiʻi 369, 262 P.3d 245. However, in several
other decisions following the 1997 enactment of HRS §§ 576D-7(e), 576E-14(d),
and 580-47(e), the ICA has cited to Davis for the proposition that “[a]
petition to modify an order for child support cannot be based on the same set
of facts that were before the court when the original order was made” and
that “[t]here must have been substantial and material change in relevant
circumstances which were before the court when it made the original order.”
Rao v. Rao, 121 Hawaiʻi 541, 221 P.3d 519 (App. 2009) (mem.); see also Hoernig
v. Hoernig, 129 Hawaiʻi 427, 301 P.3d 1268 (App. 2013) (SDO); Jackson v.
Jackson, 137 Hawaiʻi 206, 366 P.3d 1085 (App. 2016) (SDO). It is noted that
in none of these cases does the record indicate that a request to modify
child support had been made within the three years preceding the request at
issue on review, which would have otherwise affected an analysis under HRS §
576D-7(e). To the extent that these cases imply that a party cannot rely on
HRS §§ 576D-7(e), 576E-14(d), and 580-47(e) to request review of a support
order not more than once every three years absent a showing of changed
circumstances, they are incorrect.




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“subsequent request” for adjustment of support within “any

three-year period.”      HRS § 576D-7(e).14     However, as noted, no

reference was made to HRS § 576D-7(e) or its substantive

principles in the family court’s rulings or in the ICA’s

Opinion.

            In any event, Father and Mother’s oral 2011 Agreement

to modify Father’s child support obligation is not relevant to

an analysis of the right to review of a “child support order”

under HRS § 576D-7(e).      The 2011 Agreement was not memorialized

in writing and filed with the family court.           As such, it does

not constitute a “child support order” within the meaning of HRS

§ 576D-7(e).    See HRS § 576D-1 (2006) (defining “order of

support” as “a judgment, decree, or order, whether temporary,

final, or subject to modification, issued by a court or an

administrative agency of competent jurisdiction, for the support

and maintenance of a child”); HRS § 576E-1 (2006) (defining

“support order” for purposes of administrative child support

proceedings as “an obligation determined by a court or duly

authorized administrative agency, for the maintenance of a

dependent child”); HRS § 576B-102 (2006) (defining “child
      14
            Because the July 21, 2010 Stipulation filed with the family
court, rather than the oral 2011 Agreement, is the relevant “child support
order” for purposes of HRS § 576D-7(e), we do not address whether a party who
files an initial request for review and adjustment of a “child support order”
within the three-year period immediately following entry of that order must
show a “substantial or material change of circumstances” pursuant to the
statute. See HRS § 576D-7(e).



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support order” for purposes of Uniform Interstate Family Support

Act as a “support order” for a child, and, in turn, defining

“support order” as a “judgment, decree, order, decision, or

directive, whether temporary, final, or subject to modification,

issued in a state or foreign country for the benefit of a

child”).    Accordingly, the 2010 Stipulation filed with and

approved by the family court constituted the relevant “child

support order” for purposes of HRS § 576D-7(e), and the family

court and the ICA erred to the extent that they may have

determined otherwise.

            As recounted, Father and Mother’s 2010 Stipulation

modifying their respective support, visitation, and custody

rights and obligations was filed with the family court on July

21, 2010.   The record does not indicate that Father ever

submitted to the family court a request for review of his child

support obligation before he filed his August 19, 2013 Motion

for Relief.   Thus, pursuant to HRS § 576D-7(e), because the

August 19, 2013 Motion for Relief sought review and adjustment

of a “child support order,” which in this case was entered on

July 21, 2010, Father was entitled to a review and reassessment

of his monthly support payment without having to show a change

in circumstances.    As a result, the family court erred to the

extent that it conditioned review of Father’s support obligation

on his ability to show a material change in circumstances, and

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the ICA erred when it affirmed this ruling of the family court.

PO v. JS, 138 Hawai#i at 122, 124, 377 P.3d at 63, 65.

               B.     Use of Child Support Guidelines

          Father also contends the family court erred when it

failed to use the Guidelines in determining his monthly child

support obligation.

          The Hawai#i Child Support Guidelines are promulgated by

the Family Courts of Hawai#i and are used by the family courts to

determine monthly child support.         See HRS § 576D-7(a) (2006).

The Guidelines contain substantive rules and principles relating

to calculation of support and include various appendices;

Appendix A includes the “Child Support Guidelines Worksheet”

(Guidelines Worksheet), which is used to determine the initial

calculation of a parent’s monthly support obligation.            Haw.

State Judiciary, 2010 Hawai#i Child Support Guidelines app. A,

http://www.courts.state.hi.us/docs/form/maui/2CE248.pdf (last

visited Mar. 16, 2017).

          There are several sources of authority that set forth

a family court’s obligation to calculate monthly child support

using the Guidelines.     HRS chapter 571, entitled “Family

Courts,” governs the family courts in general.          HRS § 571-52.5

provides in relevant part as follows:

          When the court establishes or modifies the amount of child
          support required to be paid by a parent, the court shall


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             use the guidelines established under section 576D-7, except
             when exceptional circumstances warrant departure.

HRS § 571-52.5 (2006) (emphasis added).           Therefore, the family

courts are required to use the Guidelines when establishing or

modifying child support unless exceptional circumstances warrant

departure.     Id.

             Relatedly, HRS chapter 576D provides that “[t]he

family court . . . shall establish guidelines to establish the

amount of child support when an order for support is sought or

being modified.”      HRS § 576D-7(a).      Additionally, HRS § 576D-

7(b)(5) provides that “[t]he guidelines shall be . . .

considered by the [family court] judges in the establishment of

each child support order.”15        HRS § 576D-7(b)(5) (emphases

added).

             Use of the Guidelines is also required by HRS chapter

584, the “Uniform Parentage Act.”          Chapter 584 “is concerned

specifically and exclusively with actions to establish the

paternity of a child and to obtain child support, reimbursement


      15
            HRS chapter 576D was enacted in 1986 to bring the State of Hawaiʻi
into compliance with recently enacted federal law that required the states to
(1) establish child support guidelines, and (2) make the guidelines available
to all judges who have the power to determine child support, though the
guidelines “need not be binding upon such judges.” See Child Support
Enforcement Amendments of 1984, Pub. L. No. 98-378, 98 Stat. 1305 (1984)
(codified as amended at 42 U.S.C. § 667). However, in enacting chapter 576D,
the Hawaiʻi legislature departed from its federal counterpart and made the use
of the Guidelines by family court judges mandatory rather than discretionary.
See 1986 Haw. Sess. Laws Act 332, § 2 at 698 (“The guidelines shall be . . .
[a]pplied statewide.”).




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and other relief.”     Child Support Enf’t Agency v. Doe, 98 Hawaiʻi

58, 63, 41 P.3d 720, 725 (App. 2001) (comparing HRS chapters 571

and 584).    HRS § 584-15(e) provides in relevant part:

            In determining the amount to be paid by a parent for
            support of the child and the period during which the duty
            of support is owed, a court enforcing the obligation of
            support shall use the guidelines established under section
            576D-7.

HRS § 584-15(e) (2006) (emphases added).

            Thus, the statutory framework relating to child

support mandates that the family courts utilize the Guidelines

in setting and modifying child support orders.           Indeed, in its

COL 6, the family court acknowledged that HRS § 584-15(e)

required it to administer the Guidelines whenever it

“determin[es] the amount to be paid by a parent for support of

[a] child.”    However, there is no indication that the family

court utilized the Guidelines in determining Father’s monthly

support obligation in the Trial Order.         The family court also

made no mention of the Guidelines in its Findings of Fact and

Conclusions of Law, except to reference testimony that the

Guidelines were not used in setting the support amount in the

2010 Stipulation.     The Pretrial Order setting Father’s support

obligation at $3,500 per month pending resolution of the case at

trial also makes no reference to the Guidelines.           Further, the

family court made no findings with respect to key factors

utilized by the Guidelines to calculate child support.             For


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example, the court did not make findings regarding Mother’s

income, Father’s earning capacity,16 or the needs of Child.             In

fact, rather than using the Guidelines or its underlying

factors, the family court in COL 7 appears to have justified its

child support determination of $3,500 per month based on the

parties’ 2011 Agreement and Father’s agreement to pay that sum

pending resolution at mediation or trial.17

            Father’s Motion for Relief in this case specifically

requested that the family court conduct a recalculation of child

support based on the parties’ current incomes.           The family court

did not apply the Guidelines, and its failure to do so deprived

Father of a calculation of his monthly support obligation using

the “wisdom of . . . the Guidelines.”         Mack v. Mack, 7 Haw. App.

171, 172, 749 P.2d 478, 479 (1988) (determining that family

court’s decision not to administer Guidelines in setting support

amount because the children were partially self-sufficient


      16
            We note that in determining gross income for calculation of child
support, the Guidelines permit the family court to use “imputed income” when
“a parent is not employed full-time or is employed below full earning
capacity.” Haw. State Judiciary, 2010 Hawai#i Child Support Guidelines 23.
When the parent is unemployed or underemployed for reasons other than caring
for the child, the parent’s income may be determined and imputed by the
family court according to the parent’s “income capacity in the local job
market” and “considering both the reasonable needs of the child(ren) and the
reasonable work aspirations of the parent.” Id.
      17
            In COL 7, the family court determined that “Father has not proven
that the $3,500 per month child support that was agreed to by the parents (in
approximately December of 2010); and agreed to and ordered in the [Pretrial
Order], should be modified.”




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adults was wrong).      Additionally, the failure of the family

court to apply the Guidelines rendered the child support award

in essence unreviewable, as there is no meaningful way to

evaluate how the amount was determined or whether it was

correctly calculated.     See Gordon v. Gordon, 135 Hawaiʻi 340,

350-51, 350 P.3d 1008, 1018-19 (2015) (family court’s failure to

make adequate findings on the record did not permit meaningful

appellate review of family court’s division of marital estate).

Thus, the family court erred when it determined Father’s monthly

support obligation without using the Guidelines as required by

statute.

                   C.     Exceptional Circumstances

           As stated, the family court must utilize the

Guidelines in establishing or modifying child support “except

when exceptional circumstances warrant departure.”           HRS § 571-

52.5; see also Haw. State Judiciary, 2010 Hawai#i Child Support

Guidelines 11, http://www.courts.state.hi.us/docs/form/

maui/2CE248.pdf (last visited Mar. 16, 2017) (detailing that the

family court may deviate from the support amount calculated

using the Guidelines Worksheet upon a showing of “exceptional

circumstances”).    Courts of this jurisdiction have found

“exceptional circumstances” to encompass a broad variety of




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factual scenarios.18     The Guidelines also give examples of when

“exceptional circumstances” may or may not exist and grant broad

discretion to the family court to find the existence of “other

exceptional circumstances” beyond those enumerated.            Haw. State

Judiciary, 2010 Hawai#i Child Support Guidelines 11-13 (for

example, identifying as enumerated “exceptional circumstances”

the extraordinary needs of the child or other parent, other

payments made on behalf of the child or other parent, and a

parent’s inability to earn income).

            Pursuant to HRS § 571-52.5 and the Guidelines, the

existence of exceptional circumstances may allow for deviation

from the support amount calculated using the Guidelines

Worksheet.19    However, exceptional circumstances do not excuse a


      18
             See, e.g., Child Support Enf’t Agency v. Doe, 104 Hawai#i 449,
457-58, 91 P.3d 1092, 1100-01 (App. 2004) (support of additional legal
children may constitute an exceptional circumstance); Child Support Enf’t
Agency v. Doe, 98 Hawai#i 58, 65, 41 P.3d 720, 727 (App. 2001) (monthly income
that would result in a “computation higher than the reasonable needs of the
children based on the relevant standard of living” may constitute an
exceptional circumstance (quoting Nabarrete v. Nabarrete, 86 Hawai#i 368, 371,
949 P.2d 208, 211 (App. 1997))); Nabarrete, 86 Hawai#i at 371, 949 P.2d at 211
(adult child’s own income may reduce his or her “reasonable needs” and may
therefore constitute an exceptional circumstance); Child Support Enf’t Agency
v. Mazzone, 88 Hawaiʻi 456, 462, 967 P.2d 653, 659 (App. 1998) (“leav[ing]
open” the question of whether a difference in cost of living between Hawai#i
and child’s present state of residence constituted an exceptional
circumstance); Jaylo v. Jaylo, 124 Hawaiʻi 488, 498–99, 248 P.3d 1219, 1229–30
(App. 2011) (physical disability may constitute an exceptional circumstance),
vacated on other grounds, 125 Hawaiʻi 369, 262 P.3d 245; Doe v. Roe, 85
Hawai#i 151, 162, 938 P.2d 1170, 1181 (App. 1997) (private education expenses
may, in certain circumstances, constitute exceptional circumstances).
      19
            In its Opinion, the ICA noted a possible inconsistency in the
child support statutory framework because HRS § 571-52.5 grants explicit

                                                              (continued. . .)

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failure to use the Guidelines Worksheet.          The language of HRS §

571-52.5 states that exceptional circumstances may “warrant

departure,” which presumes that the Guidelines Worksheet was

utilized in the first place.       HRS § 571-52.5; see also Matsunaga

v. Matsunaga, 99 Hawaiʻi 157, 167, 53 P.3d 296, 306 (App. 2002)

(noting that “[p]resumptively, the amount of child support

necessary . . . is the total amount computed according to [the

Guidelines]” and considering whether exceptional circumstances

warranted deviation); Child Support Enf’t Agency v. Mazzone, 88

Hawaiʻi 456, 462, 967 P.2d 653, 659 (App. 1998) (in cases of

alleged “exceptional circumstances,” “[t]he amount calculated

pursuant to [the Guidelines] is presumptively the amount that

should be ordered and the party seeking a deviation from it has


(. . .continued)

permission to deviate from the Guidelines based on “exceptional
circumstances,” while HRS §§ 584-15(e) and 576D-7(b)(5) do not. PO v. JS,
138 Hawai#i at 122-23, 377 P.3d at 63-64. Although departure from the
Guidelines based on “exceptional circumstances” is not expressly provided for
by HRS §§ 584-15(e) and 576D-7, the Guidelines in effect at the time this
case was decided contain an optional “Exceptional Circumstances Form,” which
allows parties to request a deviation from the support amount tabulated on
the Guidelines Worksheet. See Haw. State Judiciary, 2010 Hawai#i Child
Support Guidelines app. C. An optional “exceptional circumstances” section
appears to have been included within the Guidelines since at least 1989.
See, e.g., Richardson v. Richardson, 8 Haw. App. 446, 447, 808 P.2d 1279,
1280 (1991) (describing 1988 and 1989 Guidelines). Thus, the only
“inconsistency” between these statutes pertains to the source of the
authority for deviating from the support amount calculated using the
Guidelines Worksheet upon a showing of “exceptional circumstances.” Under
HRS § 571-52.5, the ability to deviate from this amount is authorized by the
statute itself; under HRS §§ 584-15(e) and 576D-7, in contrast, the authority
for such deviation comes from the Guidelines whose promulgation and usage the
child support statutes require.




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the burden of proof”).     The Guidelines likewise permit

“deviation” based on exceptional circumstances, and the

Guidelines’ requirement that the family court make factual

findings on the “amount of support that would have been required

as calculated using [the Guidelines Worksheet]” further

demonstrates that even in cases of exceptional circumstances,

the court must first calculate a support amount utilizing the

Guidelines Worksheet.     Haw. State Judiciary, 2010 Hawai#i Child

Support Guidelines 11 (also noting that in cases of exceptional

circumstances, the parent seeking deviation has the burden of

proving that the circumstances “warrant a departure from the

child support as calculated by the [Guidelines Worksheet]”).

Therefore, even when “exceptional circumstances” exist within

the meaning of HRS § 571-52.5 and the Guidelines, the family

court is initially required to use the Guidelines Worksheet to

determine the amount of the child support obligation.

          In its Opinion, the ICA theorized that the existence

of “exceptional circumstances,” such as the parties’ 2011

Agreement, excused the family court from administering the

Guidelines pursuant to HRS § 571-52.5.         PO v. JS, 138 Hawai#i at

123, 377 P.3d at 64.     However, as stated, the family court was

first required to utilize the Guidelines Worksheet and compute a

support amount.    Only after determining the support amount using

the Guidelines Worksheet may the court consider whether
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exceptional circumstances permit deviation from that amount.               If

the court concludes that such circumstances exist, it must then

make findings of fact with respect to both the support amount

determined by the Guidelines Worksheet and the exceptional

circumstance(s) that would justify deviation from this amount.

See Haw. State Judiciary, 2010 Hawai#i Child Support Guidelines

11 (required findings of fact in cases of exceptional

circumstances must include “the amount of support that would

have been required as calculated using [the Guidelines

Worksheet]” and “findings . . . regarding the exceptional

circumstances”).    In this case, the family court did not utilize

the Guidelines Worksheet to calculate a support amount, nor did

it include oral or written findings identifying any exceptional

circumstances.    Therefore, the ICA erred in concluding that the

existence of “exceptional circumstances” permitted the family

court to forgo use of the Guidelines.        PO v. JS, 138 Hawai#i at

123, 377 P.3d at 64.

                         D. Child Support Arrears

          In addition to contending that the family court erred

because it failed to use the Guidelines, Father argues that the

ICA also erred when it upheld the family court’s ruling setting

support at $3,500 per month as of February 1, 2011.

          Mother and Father each testified at trial that they

agreed to a reduction in child support in February 2011, and
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Father has not contested the validity of the 2011 Agreement on

appeal.    The family court found in its Findings of Fact and

Conclusions of Law that the parties agreed to reduce child

support to $3,500 in February 2011, and this finding is

supported by substantial evidence and not clearly erroneous.

Further, appellate courts are required to “give full play to the

right of the fact finder to determine credibility,” State v.

Valdivia, 95 Hawaiʻi 465, 471, 24 P.3d 661, 667 (2001) (quoting

State v. Jenkins, 93 Hawaiʻi 87, 99, 997 P.2d 13, 25 (2000)), and

the family court’s finding that Father’s testimony regarding a

reduction of support in late 2012 was not credible is supported

by substantial evidence and not clearly erroneous.           Father also

agreed in the Pretrial Order to pay $3,500 per month in child

support pending resolution of the parties’ motions at mediation

or trial.   We therefore affirm the family court’s Arrears Order

calculating Father’s past due child support as $64,490 through

and including January 2015.

                           VI.    CONCLUSION

            For the reasons discussed, the family court erred in

failing to use the Guidelines to calculate Father’s child

support obligation and by requiring Father to show a material

change in circumstances to obtain modification of his monthly

payment.    Likewise, the ICA erred in affirming these rulings.



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            On remand, the family court is required to utilize the

Guidelines in evaluating Father’s request to modify his monthly

support obligation.      See HRS § 576D-7(b)(5); HRS § 584-15(e);

HRS § 571-52.5.     After calculating the amount of monthly support

using the Guidelines Worksheet, the family court may deviate

from this amount if it finds the existence of exceptional

circumstances within the meaning of the Guidelines and

applicable law.     In accordance with the Guidelines, such a

deviation would require the family court to make written or oral

findings of fact regarding the support amount from the

Guidelines Worksheet and the applicable exceptional

circumstances.     See HRS § 571-52.5; see also Haw. State

Judiciary, 2010 Hawai#i Child Support Guidelines 11.20

            Therefore, the family court’s Trial Order, which was

vacated in part by the ICA on other grounds, is also vacated

with respect to its determination of Father’s monthly child

support obligation.      The family court’s Arrears Order, which was


      20
            The Guidelines further permit the family court to require a
parent to “convert [to cash] all or some portion of” the parent’s assets for
payment of support when the parent has inadequate income to meet a child
support obligation. Haw. State Judiciary, 2010 Hawai#i Child Support
Guidelines 21; see also Child Support Enf’t Agency v. Roe, 96 Hawai#i 1, 6, 25
P.3d 60, 65 (2001) (noting that “the value of Father’s properties may have
been relevant” in calculating support based on provision of 1994 Hawai#i Child
Support Guidelines stating that when “a parent has inadequate income to meet
his/her support obligation but owns assets, he/she may be required to convert
all or some portion of said assets to cash for payment of support” (internal
quotations omitted)). We note that on remand this provision may be relevant.




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vacated in part by the ICA on other grounds, is affirmed as to

its determination that Father owes Mother $64,490 in past due

child support through and including January 2015.           The ICA’s

July 13, 2016 Judgment on Appeal is (1) vacated as to its

affirmance of the family court’s child support determination in

the Trial Order and (2) affirmed as to the family court’s

Arrears Order.    Accordingly, this case is remanded to the family

court for further proceedings consistent with this opinion.

Steven L. Hartley,                    /s/ Mark E. Recktenwald
Elsa F. M. McGehee, and
                                      /s/ Paula A. Nakayama
Elena L. Bryant
for petitioner                        /s/ Sabrina S. McKenna
                                      /s/ Richard W. Pollack
Steven J. Kim,
Courtney N. Naso, and                 /s/ Michael D. Wilson
Candra S. Rivers
for respondent




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