DISSENTING OPINION OF LIM, J.

It is important to remember at all times what this appeal is all about.

Mother is appealing the family court's denial of her Motion and Affidavit for Relief After Order or Decree, which the family court denied because Mother failed to show up for the hearing on her own Motion.

Mother, pro se, personally filed the Motion. It contained an Order to Show Cause For Relief After Order or Decree, directed to Father, informing him of the date and time of the hearing on the Motion.

Mother served her Motion and Order to Show Cause upon Father. Mother later signed a Stipulation continuing the hearing on her Motion to November 5, 1998, at 8:30 a.m.

Indubitably, then, Mother knew when her Motion was to be heard by the family court.

Mother, who resided in Arizona at the time set for hearing, knew that the family court would not entertain telephone testimony at the hearing.

Indubitably, then, Mother knew that she must be present at the hearing on her Motion to seek her relief.

Mother was also advised by the family court that it might consider any affidavits or other documents she might wish



to file in support of her Motion, subject to objection from the other parties.

Mother did not show up for the hearing on her own Motion. Nor does the record contain any indication she submitted further affidavit or testimony in support of her Motion.

What, pray tell, is a family court to do?

In the Motion, the family court was faced with issues regarding visitation, visitation expenses, child support and a restraining order prohibiting Mother from removing her child from Honolulu.

All of these issues centered around a child in the throes of puberty, in the context of a decade-long series of contentious litigations, which at various times involved her parents in allegations and recriminations of deceit, financial chicanery, physical and mental illness, drug abuse and attempted suicide.

These are extremely difficult and perilous issues for any court, even with all concerned parties, witnesses and experts present to be heard.

Natural inclination and common sense dictate that when the family court is confronted with such a delicate situation and Mother does not even bother to show up to prosecute her own Motion, thus depriving the court of the desiderata of her presence, demeanor, testimony and arguments, Mother should be defaulted and her Motion denied.

This is what the family court did. And it was well within the court's discretion to do. Bettencourt v. Bettencourt, 80 Hawaii 225, 232, 909 P.2d 553, 560 (1995).

And it was the right thing to do.

It would have been imprudent for the family court to consider changing the terms of the child's rights to support and visitation with both her natural parents without Mother present to explain exactly what the problem was, what the surrounding circumstances were and what the appropriate disposition should have been.

To do so would have been to blindly consider. I venture to say that in doing so the family court would have been remiss in its obligations to the best interests of the child.

The default and denial prejudiced no one.

No issues were decided with prejudice by the denial, for in the best interests of the child no issues pertinent to the best interests of the child can be permanently decided.

If still desirous of relief, Mother can easily file again, utilizing the same preprinted family court form she utilized for the instant Motion, filled out, filed and served in the same willy-nilly fashion which succeeded in getting her Motion scheduled for hearing in the first place.

And by her recent move to Hawaii and her own admission, Mother has the wherewithal to attend the hearing on a renewed motion, if she so deigns.

Despite issues so enmeshed in the totality of human circumstances and so dependent for resolution upon the demeanor and credibility of the parties, the majority opinion blithely concludes that the paper record was sufficient for the family court to have ruled upon Mother's Motion.

On this insouciant conclusion let me eschew the easy target of the visitation issues.

Instead, to hand, the issue of child support.

If, as believed by the majority, the paper record was sufficient for decision, then the child support issue should have been completely resolved in the majority opinion, at least on a presumptive basis, down to the dollars and cents and the months owing or not owing, because the problem is merely one of applying the majority opinion's principles to the financial information in the paper record, and a simple one if that paper record is indeed sufficient for a ruling.

That the majority opinion must struggle with evidentiary lacunae and grouse about mathematical errors and ultimately fail on a sum-certain basis belies its conclusion that the family court should have ruled. For the paper record before us on appeal is the whole record that was before the family court at the hearing on the Motion.

In the easiest case of the child support issue, the proof is in the pudding, and the majority opinion cannot serve.



If we, in the fullness of time for review, research and contemplation cannot, then surely the family court could not. And we should not expect the family court to rule on such a deficient paper record, for even child support has human aspects beyond pure mathematical calculation.

I would affirm the family court's denial of the Motion.

By the same token, I would reverse the further restrictions placed by the family court upon Mother's visitation arrangements in its November 13, 1998 Order Denying Motion and Affidavit for Relief After Order or Decree, which appear to be restrictions imposed on an ex parte basis, there being nothing in the record concerning such restrictions in the way of a motion or service thereof upon Mother.

Instead, the majority opinion carves out a new rule regarding social security disability payments and child support, and remands the case to the family court for disposition in light of its holding.

The new rule, about which I express no opinion, appears to be a new breed of holding. Holdings have traditionally derived their substance from the affirmation or reversal of a specifiable lower court decision. As if by spontaneous generation, this holding has emerged out of the substantive void of a default denial by the family court.



In essence, the majority opinion arrogates to itself the task of trying the case on the appellate record, remanding to the family court only when it can go no further in applying facts available in the record to its new rule of law.

I would prefer the family court try the case if Mother again presses the issues, as it is its job to do. Then we can review if a party asserts an appeal.

This is, perhaps, a less efficient process than the proactive course taken by the majority opinion, but as far as I can tell it is the accepted and established one.

It may very well be the better one.

Our review would than have the benefit of a complete record, including the testimony, documentary evidence and arguments of all parties concerned, as well as the family court's assessment of their demeanor and credibility, and its detailed findings of fact and conclusions of law thereon, all of which we sorely missed in this appeal.

Furthermore, if we had adhered to the traditional approach, we might have avoided the curious situation now faced by the family court.

We have remanded to the family court with instructions. It has a new rule to apply in a case we have resurrected before it. But it still lacks what it lacked before, Mother's live presence, and must somehow bring Mother, not to mention Father, before it for a hearing as yet unscheduled.

The family court could ask Mother to schedule and notice the remand hearing, but if history is indeed an oracle the punctilios might suffer.

Perhaps the family court could itself schedule and notice the remand hearing. I am all for our emphasis upon customer service, but while not unprecedented, the spectacle of the family court on its own initiative serving Mother with notice of the date and time of remand hearing of her own Motion strikes me as a bit unnerving.

Perhaps the family court could prevail upon Father to schedule and notice Mother on the remand hearing, but that might be too much salt in too many old wounds.

Most unnerving is the possibility that, after an enormous expenditure of resources in the family court, on appeal and then on remand, a remand hearing is finally, somehow scheduled and all parties noticed, and Mother again fails to show. She did not attend her own party. What makes us think she will attend ours?

I suppose it would be too Swift to suggest that the family court could then order Mother to attend, and upon further default find her in contempt and then jail her.

What, pray tell, is a family court to do?

I respectfully dissent.





JOHN S. W. LIM

Associate Judge