IN THE INTERMEDIATE COURT OF APPEALS
OF THE STAE OF HAWAI`I
JACQUELINE LUANNE KAWAHAKUI, )
FC-D NO. 93-4486
)
Plaintiff,
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APPEAL FROM THE
vs.
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FAMILY COURT OF THE
)
FIRST CIRCUIT COURT
THOMAS KAMAKI KAWAHAKUI,
)
)
Defendant-Appellee.
)
____________________________________)
)
CHILD SUPPORT ENFORCEMENT
)
AGENCY,
)
)
Party-in-Interest/
)
Appellant.
)
____________________________________)
MEMORANDUM OPINION
Party-in-Interest/Appellant Child Support Enforcement Agency of the State of Hawai`i (CSEA) appeals the family court's (1) July 7, 1999 Order Re: Child Support Enforcement Agency's Motion for Reconsideration and/or Further Hearing on Award of Attorney's Fees Filed 6/1/99 (July 7, 1999 Order Denying Motion for Reconsideration), (2) July 8, 1999 Order Granting in Part Defendant Thomas Kamaki Kawahakui's Motion for Order Restraining Collection Activity on the Part of the CSEA and for an Accounting and Fees (July 8, 1999 Order), and (3) September 15, 1999 Findings of Fact and Conclusions of Law (FsOF and CsOL).
We vacate (a) the July 7, 1999 Order Denying Motion for Reconsideration, (b) the July 8, 1999 Order, and (c) FsOF nos. 9, 15, and 22A, C, G, H, I, J, L, O, P, and Q, and CsOL nos. 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, and 16. We remand for further proceedings consistent with this opinion.
BACKGROUND
Plaintiff Jacqueline Luanne Kawahakui (Mother) and Defendant-Appellee Thomas Kamaki Kawahakui (Father) are the parents of a daughter (Daughter) born on November 11, 1989, and a son (Son) born on March 11, 1986. Mother and Father were divorced by Divorce Decree entered on March 6, 1996. Mother was awarded physical and legal custody of Daughter. Father was awarded physical and legal custody of Son. Father was ordered to pay $300 per month net child support to Mother.
Paragraph 5(a) of the Divorce Decree contains the following language: "All payments shall be payable to and made through the [CSEA], . . . . The [CSEA] is hereby made a party for the limited issue of child support."
On April 7, 1999, Father filed Defendant Thomas Kamaki Kawahakui's Motion for Order Restraining Collection Activity [on] the Part of the CSEA and for an Accounting and Fees (April 7, 1999 Motion). This motion sought
an order restraining Respondent CSEA from engaging in collection activity with regard to an alleged arrearage owed by [Father] until and unless Respondent CSEA has provided [Father] and the Court with an accounting that indicates that there is an actual arrearage on the part of [Father]. [Father] further requests his fees and costs incurred herein.The July 8, 1999 Order states that Father's April 7, 1999 Motion is
granted in part, the remaining parts being considered moot, and . . . CSEA shall provide [Father] with a comprehensible accounting with regard to his child support account, Case ID: CO34080584-01, (1) to explain the justification for the offset of $264.95 that was applied to that account by the [CSEA] in October of 1995, and(Footnote added.). . . [CSEA] shall reimburse [Father] in the sum of $1500 (10 hrs @ $150/hour) with regard to his costs and fees incurred herein.
The CSEA challenges only FsOF nos. 9, 15, and 22, and CsOL nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 16.
With the challenged FsOF and CsOL emphasized in bold, the September 15, 1999 FsOF and CsOL state in relevant part as follows:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
[Father's] Motion . . . came on for hearing . . . on April 28, 1999, and May 19, 1999. (2) On June 28, 1999, the Court heard argument on CSEA's Motion for Reconsideration and/or Further Hearing on Award of Attorney's Fees filed June 1, 1999. The Court having considered the motion and memoranda filed and the arguments presented at the hearings, makes the following Findings of Fact and Conclusions of Law:
. . .5. [Father] was employed by . . . the City and County of Honolulu, and payments were thereafter deducted from his pay pursuant to the Decree and the Order for Income Assignment . . . .
6. On or about September 21, 1998, [Father] received a letter from the [CSEA] indicating that an "over disbursement" had been made to [Mother] in the sum of $7,263.76. Said letter recited that the recovery of the overpayment was a matter to be handled between the parties and said that the State would not be involved in the matter. Said letter further stated that if there were any questions, they were to be directed in writing to the [CSEA] at 680 Iwilei Road, Suite 490, Honolulu, Hawaii 96817.
7. On or about October 12, 1998, [Father] received another letter from the [CSEA] indicating that he was delinquent in payments to [Mother] in the sum of $8,558.76 as of September 21, 1998. Said letter recited that one or more of a number of enforcement actions might be initiated against him as a result of this delinquency. Included in the enforcement actions listed in the letter were "Credit Bureau Reporting", "Garnishment", "Tax Intercept (Federal)", "Tax Intercept (State)", and "License Suspension". The letter stated that if there were any questions, correspondence should be directed to the [CSEA] . . . .
8. Subsequent to receiving the letter dated October 12, 1998, [Father] retained attorney John T. Komeji, . . . . On November 12, 1998, Mr. Komeji wrote a letter to the [CSEA] . . . . In this letter, Mr. Komeji requested that the [CSEA] provide . . . information regarding the amounts that allegedly were owed. The [CSEA] never answered this letter.
9. [Father] also visited the [CSEA] to try to obtain information about the status of his account and the [CSEA] did not provide him with any information in response to this request and did not indicate that there was any error with regard to the amount owed. The [CSEA] also did not provide him with any information about how to challenge the alleged delinquency if he thought it was in error. (3)
10. The [CSEA] never provided [Father] with any information about how he was supposed to proceed to challenge the correctness of the amount that they had claimed he owed . . . .
11. On April 7, 1999, [Father] filed a Motion in the Family Court . . . . In that Motion, [Father] requested that the [CSEA] be restrained from engaging in collection activity with regard to the alleged arrearage until and unless the [CSEA] had provided [Father] and the Court with an accounting that indicated that there was an actual arrearage on the part of [Father]. [Father] further asked the Court to award him his fees and costs incurred with regard to the preparation and filing of the Motion. [Father's] Motion was scheduled to be heard on April 28, 1999.
12. On or about April 23, 1999, [a deputy attorney general] called [Father's] counsel and said that she had an accounting that showed that [Father] was delinquent in the approximate account of $500. . . . [The deputy attorney general] then sent the documents to [Father's] counsel on April 26, 1999.
13. On or about April 27, 1999, [Father's] counsel spoke with [the deputy attorney general] and advised her that . . . [Father] had raised questions about a "refund" of $1250 that was shown to have been made to him in October of 1995. [Father's] counsel indicated . . . that [Father] wanted documentation to support the allegation . . . . In that conversation [Father's] counsel indicated to [the deputy attorney general] that another issue that needed to be resolved was the request for attorney's fees. [The deputy attorney general] indicated to [Father's] counsel that the [CSEA] would oppose any request for attorney's fees on the part of [Father].
14. [Father] and [Father's] counsel attended the hearing on April 28, 1999. Immediately prior to the hearing, [the deputy attorney general] provided [Father] with a faxed copy of the front of a check in the amount of $985.05, dated October 19, 1995, and made payable to [Father]. [The deputy attorney general] also indicated that the balance of the alleged $1250 refund had been offset against an alleged delinquency owed by [Father] on another account that was maintained through the [CSEA]. [Father] stated that he did not remember receiving the check and requested that he be provided with a copy of the reverse side of the check and also requested an explanation of the offset of the alleged arrearage on the other account. . . .
15. At the hearing before the Court on April 28, 1999, [the deputy attorney general] represented that [Father's] account would be corrected to show the $500 balance that the [CSEA] now said was the correct amount. Likewise, [the deputy attorney general] agreed that the [CSEA] would not engage in any collection activity while the remaining issues were being investigated. At the time of the hearing, the parties advised the Court that there was a dispute over the issue of attorney's fees. A further hearing was set for May 19, 1999. (4)
16. Subsequent to the hearing on April 28, 1999, [the deputy attorney general] provided [Father's] counsel with documents that supposedly clarified the reason for the offset against the alleged arrearage on the other account in which [Father] was an obligor. At the hearing on May 19, 1999, [Father] complained that the documents were not meaningful or understandable because the documents provided did not have beginning balances and provided no explanation for the various codes that were listed on the document.
17. At the hearing on May 19, 1999, the Court ordered that the [CSEA] provide [Father] with a comprehensible accounting of this other account. In light of the previous disclosures and representations of the [CSEA], the Court found that the remainder of [Father's] Motion at that point was moot. The Court further indicated that it would award [Father] attorney's fees and directed [Father's] counsel to submit an affidavit detailing his claim for attorney's fees.
18. On May 21, 1999, [Father's] counsel filed his affidavit indicating that he had spent 16 hours on the preparation and presentation of the Motion. [Father's] counsel asserted a claim for the sum of $2,400.00 plus GET of $96.00 based upon an hourly rate of $150.00[.]
19. On June 1, 1999, the [CSEA] filed a Motion for Reconsideration and/or Further Hearing on Award of Attorney's Fees, and on June 4, 1999, the [CSEA] filed its Objections to Affidavit of Francis T. O'Brien filed May 21, 1999. . . .
. . . .
22. The Motion for Reconsideration was filed as a Non-Hearing Motion, but the Court set it for hearing on June 28, 1999. Based upon that hearing and the other hearings in the case and the matters submitted by each party, the court finds: (5)
A. The letters sent to [Father] by the [CSEA] on September 21, 1998 and October 12, 1998 were in error.
B. The errors in those letters were the entire fault and responsibility of the [CSEA] and were in no way the fault or responsibility of [Father].
C. The only instruction provided in the erroneous letters sent to [Father] was that if he had questions, he should send them to the address provided by the letters.
. . . .
E. [Father] hired counsel who complied with the instructions in the letters and wrote to the address indicated requesting information.
F. The [CSEA] never responded to the letter sent to them by [Father's] counsel.
G. [Father] also contacted the [CSEA] in person and was not able to have this matter resolved.
H. At no time when he contacted the [CSEA] in person did anyone from the [CSEA] provide him with any information about how he could obtain a resolution of the error in his accounts.
I. At the time that he filed his Motion, [Father] had received notification from the [CSEA] that they would proceed to collection on the amounts that they claimed were due.
J. At no time prior to the filing of his Motion [sic] had [CSEA] provided [Father] with an accounting of his account, and no person from [CSEA] had taken any action in response to the letter sent by his lawyer of [sic] the personal visit made to [CSEA] by [Father].
K. [Father's] counsel disclosed to [the deputy attorney general] throughout this proceeding that [Father] was going to request costs and fees as a result of having to file this Motion.
L. [Father's] counsel's hourly rate of $150 per hour is fair and reasonable in light of his experience and the complexity of this matter. (6)
M. [Father's] counsel did not misrepresent the time that he had spent on this matter, either in Court or in the Affidavit that he filed in the case.
N. As of the date of the hearing on May 19, 1999, all matters relating to [Father's] Motion had been rendered moot except the question of costs and attorney's fees and the question of the accounting regarding the offset claimed by the [CSEA] with regard to a portion of the $1,250 refund to which [Father] was entitled in October of 1995.
O. As of the date of the hearing on May 19, 1999, the [CSEA] had not provided [Father] with a comprehensible accounting with regard to amounts that they claimed to be due on this account.
P. [Father] is entitled to an accounting with regard to the sums that the [CSEA] claims were due on this account.Q. If [Father] had not filed his Motion with the Family Court, he would not have received an accurate accounting of his account from the [CSEA].
Based upon the foregoing, the Court makes the following conclusions of law. To the extent that any of the Findings of Fact above include conclusions of law, they shall also be considered to be conclusions of law. To the extent that any of these Conclusions of Law include findings of fact, they shall also be considered to be findings of fact. (7)1. This Court has jurisdiction to hear this matter.
2. Pursuant to HRS §576D-3(b), the [CSEA] is authorized to appear in any action in its own behalf before any court in actions relating to the enforcement of orders for child support.
3. The [CSEA] is a party to this proceeding for all purposes related to the collection and disbursement of child support payments and the enforcement of orders relating to child support.
4. Under the provisions of HRS §580-47, this Court has the authority to award attorney's fees and costs against a party based upon a consideration of the respective merits of the parties, the relative abilities of the parties, the economic condition of the parties at the time of the hearing, and all other circumstances of the case.
5. Under the provisions of HRS §571-8.5, this Court has the authority to make and issue all orders and writs necessary or appropriate in aid of their original jurisdiction and to make and award such judgments, decrees, orders, and mandates as may be necessary to carry into full effect the powers which are or shall be given to them by law or for the promotion of justice in matters pending before them.
6. [Father] had no other reasonable remedy available to him to resolve the erroneous claim being asserted against him by the [CSEA] apart from filing the Motion that instituted this proceeding. (8)
7. [Father] had good cause to file the instant Motion.
8. [Father] had exhausted all administrative remedies made available to him by the [CSEA]. (9)
9. [Father] was in no way at fault or responsible for the erroneous letters that were sent to him by the [CSEA].
10. Under provisions stated in Fought & Company, Inc. v. Steel Engineering and Erection, Inc., 87 Haw. 37, 54-55, 951 P.2d 487 (1998) and In the Interest of R.M.H., R.R., & M.G.M., Minor Children, 843 S.W.2d 740, 742 (Tex. Ct. App. 1992) (Cited therein), this Court finds that when the State, or any of its agencies, enters court as a party litigant, it places itself on the same basis as any other litigant. In the absence of a statute exempting a governmental unit from the payment of court costs and fees, it is as liable as any other litigant.
11. When the [CSEA] was made a party to the Decree between [Mother] and [Father], it became a party for all purposes related to the limited issue of support and it subjected itself to the jurisdiction of this Court for those purposes.(Footnotes added; emphasis added.)12. The Motion filed by [Father] was an action related to the enforcement of child support orders by the [CSEA].
13. This Court has jurisdiction to award attorney's fees and costs against the [CSEA] in this proceeding.
14. Based upon the respective merits of the parties, the relative abilities of the parties, the economic conditions of the parties at the time of the hearing and the circumstances of this case, this Court finds that [Father] is entitled to an award of attorney's fees incurred in the preparation and presentation of this motion.
15. The Court finds that the hourly rate charged by [Father's] counsel in this case is fair and reasonable under the circumstances of this case.
16. The Court finds that [Father] is the prevailing party in this matter and further finds that [Father] is entitled to recover the sum of $1,500.00 as reasonable attorney's fees in this case.
DISCUSSION
A.
Although there were no evidentiary hearings and/or stipulation(s) on the record as to the relevant facts, the family court entered its FsOF and CsOL. There being no evidence to support the challenged FsOF, those challenged FsOF and all CsOL that rely on them must be vacated. On the other hand, the unchallenged FsOF are operative facts.
B.
The CSEA was created by and is described in Hawai`i Revised Statutes (HRS) § 576D-2 (Supp. 1999) as follows:
Designation of child support enforcement agency; duties. There is created the child support enforcement agency for the State as required under Title IV-D. The agency shall be within the department of the attorney general. The child support enforcement agency shall:(Footnote added.)(1) Be responsible for formulating the state child support enforcement plan as required under Title IV-D; andHRS § 576D-3 (Supp. 1999) states in relevant part as follows:(2)Administer this chapter consistent with Title IV-D and applicable state laws.
Obtaining or enforcing child support. (a) The [CSEA] shall undertake any legal or administrative action to secure support for a child by enforcing an existing court order or obtaining a court order of support.
(b) In order to carry out its responsibilities imposed under this chapter, the [CSEA], through the offices of the corporation counsel, the county attorneys, or the attorney general, may commence or appear in any proceeding before any court of administrative agency . . . for the purpose of obtaining, enforcing, or modifying an order of support on behalf of any dependent or any other person form whom the agency has a duty to obtain or enforce an order for support under this chapter. The agency may commence or appear in any action on its own behalf, on behalf of any dependent child or custodial parent, or on behalf of any other person for whom the [CSEA] has a duty to obtain or enforce an order of support under this chapter. The agency shall obtain or enforce a child support order for the following children: (10)
(1) A child on whose behalf public assistance payments have been or are being made;
(2) A child on whose behalf foster care payments have been or are being made under Title IV-E; or
(3) A child on whose behalf a custodial parent, guardian, or other person having custody applies to the agency for assistance in obtaining or enforcing a child support order, regardless of whether public assistance payments have been made on the child's behalf.
The CSEA contends that "no legal authority exists nor was any cited by the court to name CSEA as a party to a divorce. In [Father's and Mother's] case, although the parties' divorce decree named CSEA as a party for the 'limited purpose of child support[,]' it was done without any notice to CSEA, without its knowledge or consent and without any statutory authority." (Footnote omitted.)
We disagree that the CSEA was named "as a party to a divorce." The CSEA was named as a party in a divorce case because the Divorce Decree, pursuant to HRS § 576D-3, ordered the child support payments to be made "through" the CSEA. In light of HRS §§ 576D-3 and 571-52.7, we conclude that the family court is authorized to make the CSEA a party in divorce cases as it did in this case.
The CSEA contends that "[Father's] request to stop all collection efforts was unnecessary as CSEA was not in the process of making any affirmative efforts at collection other than the mere notification of the debt." Considering unchallenged FOF no. 7 and the facts that CSEA implicitly threatened to, and was authorized to, move instantaneously down various collection avenues without any prior notification to Father, we conclude that the CSEA's characterization of the notification letter as "mere notification" is wrong.
The CSEA contends that no legal authority exists for the award of attorney fees against the CSEA in these proceedings. We agree. To the extent that CsOL nos. 3, 4, 5, 10, 11, 13, 14, and 16 state or indicate otherwise, they are wrong.
Father contends that the award of attorney fees against the CSEA are authorized by the combination of HRS Chapter 576D and the following two statutes.
HRS § 580-47 (Supp. 1999) states in relevant part as follows:
Support orders; division of property. (a) Upon granting a divorce, or thereafter if, in addition to the powers granted in subsections (c) and (d), jurisdiction of those matters is reserved under the decree by agreement of both parties or by order of court after finding that good cause exists, the court may make any further orders as shall appear just and equitable (1) compelling the parties or either of them to provide for the support, maintenance, and education of the children of the parties; . . . ; and (4) allocating, as between the parties, . . . the attorney's fees, costs and expenses incurred by each party by reason of the divorce. . . .The question is whether, when HRS § 576D-3 put the CSEA into the child support receipt, collection, and enforcement business, HRS § 661-1 waived the CSEA's sovereign immunity and consented to the imposition of attorney fees and costs against the CSEA pursuant to HRS §§ 580-47 and 571-52.7 in appropriate cases. The answer is no.. . . .
(f) Attorney's fees and costs. The court hearing any motion for orders either revising an order for the custody, support, maintenance, and education of the children of the parties, . . . , or a motion for an order to enforce any such order or any order made under subsection (a) of this section, may make such orders requiring either party to pay or contribute to the payment of the attorney's fees, costs, and expenses of the other party relating to such motion and hearing as shall appear just and equitable after consideration of the respective merits of the parties, the relative abilities of the parties, the economic condition of each party at the time of the hearing, the burdens imposed upon either party for the benefit of the children of the parties, and all other circumstances of the case.
HRS § 571-52.7 (Supp. 1994) states as follows:
Award of costs and reasonable attorneys' fees. Whenever a party files a motion seeking to enforce a child support order, the court may award the prevailing party the party's costs and reasonable attorneys' fees incurred, except as this chapter otherwise provides. The award shall be made only when the prevailing party was represented by an attorney.
"[T]he doctrine of sovereign immunity precludes a suit against the state without the state's express consent." Waugh v. University of Hawaii, 63 Haw. 117, 125, 621 P.2d 957, 965 (1980) (citing Big Island Small Ranchers Ass'n v. State, 60 Haw. 228, 336, 588 P.2d 430, 436 (1978), and Helela v. State, 49 Haw. 365, 369, 418 P.2d 482, 485 (1966)). "The judicial branch cannot abolish or waive the State's sovereign immunity." Figueroa v. State, 61 Haw. 369, 382, 604 P.2d 1198, 1205 (1979).
Father supports his position by citing what he argues is parallel precedent. HRS § 661-1 (1993) authorizes the circuit courts to adjudicate "[a]ll claims against the State founded upon any statute of the State; . . . or upon any contract, express or implied, with the State" and "[a]ll counterclaims . . . against any person making claim against the State under this chapter[.]" As noted in the following quote, the Hawaii Supreme Court has concluded that this authorization was silently accompanied by HRS § 607-14's authorization of the award of attorney fees in all actions in the nature of assumpsit and on a promissory note or other contract in writing.
The unrestricted application of HRS § 607-14 is noteworthy, inasmuch as the liability of state agencies for certain other litigation-related expenses is expressly restricted elsewhere. . . . This court has consistently applied the rule of expressio unius est exclusio alterius - the express inclusion of a provision in a statute implies the exclusion of another in interpreting statutes . . . . Applied here, the rule leads to the conclusion that, where the state's liability has not been expressly restricted, normal contract remedies are available against state agencies.
The view that a waiver of sovereign immunity in contract and other cases renders the state liable to the same extent as other litigants has been adopted by many other jurisdictions that have addressed the issue. . . .. . . . In [A.C. ]Chock[ v. Kaneshiro, 51 Haw. 87, 451 P.2d 809 (1969),] the state sold a parcel of real property subject to a condition that the purchaser construct a dwelling on the property within a specified period of time. 51 Haw. at 88, 451 P.2d at 811. When the purchaser failed to pay the builder for the required construction, the builder attempted to enforce a mechanic's lien against the property. Id. The builder conceded that, under existing law, a proceeding against property in which the state had an interest was prohibited. Id. He argued, however, that the state had waived its immunity when it entered into the contract for the sale of the property and had thereby become subject to the same liability as any other vendor. Id. at 90-91, 451 P.2d at 812. This court rejected his argument and affirmed the circuit court's dismissal of the action, reasoning that the general language of the statute authorizing the sale of public lands could not be construed as a waiver of sovereign immunity. Id. at 91, 451 P.2d at 812.
Thus, in Chock, there was no clear waiver of the state's sovereign immunity from suit. Were the same true here, the imposition of costs and attorneys' fees against the DOT [State of Department of Transportation] would obviously be prohibited. However, in contrast to the statute at issue in Chock, HRS § 661-1(1) expressly waives the state's immunity from suit "upon any contract, expressed or implied[.]" When the state has consented to be sued, its liability is to be judged under the same principles as those governing the liability of private parties. See Figueroa v. State, 61 Haw. 369, 376-77, 604 P.2d 1198, 1202 (1980). . . . HRS § 607-14 does not create a novel claim for relief, but merely establishes the circumstances under which the prevailing party in any action "in the nature of assumpsit" or on some "other contract" may recover the expenses of litigation as an additional element of the prevailing party's damages. Accordingly, a further waiver of sovereign immunity is not necessary in order for HRS § 607-14 to apply to the state and its respective agencies in matters in which, by virtue of the express waiver of sovereign immunity set forth in HRS § 661-1, the state (or any of its agencies) has become a party.Fought & Company, Inc. v. Steel Engineering, 87 Hawai`i 37, 55-56, 951 P.2d. 487, 505-06 (1998) (citations omitted).
Noting that in HRS § 661-1 "the State has waived its immunity with regard to all claims against the State founded upon any statute of the State[,]" Father "submits that the relief that he requested in this matter was founded upon State statutes that authorized the CSEA to be a party in proceedings such as this and the State statutes that mandated the CSEA to undertake collection activity against [Father] as a delinquent obligor."
Obviously, Father reads the "founded upon any statute" language of HRS § 661-1(1) as saying that statutory authorization of the activity by the State is a waiver of the State's immunity with respect to claims pertaining to that activity. We disagree. That is not the "express consent" required for waiver of the State's sovereign immunity. Although HRS § 576D-3(a) mandates the CSEA to "undertake any legal or administrative action to secure support of a child by enforcing an existing order or obtaining a court order of support[,]" no statute expressly waives the CSEA's immunity from claims against the CSEA pertaining to its actions or non-actions pursuant to HRS § 576D-3.
CONCLUSION
Accordingly, the unchallenged findings of fact are operative facts but, because there were no evidentiary hearings and/or stipulation(s) on the record, the challenged findings of fact and all conclusions of law that rely on them are vacated. Specifically, we vacate findings of fact nos. 9, 15, and 22A, C, G, H, I, J, L, O, P, and Q, and conclusions of law nos. 4, 5, 6, 7, 8, and 9.
We conclude that there is no legal authority for the award of attorney fees against the CSEA in this case and we vacate conclusions of law nos. 10, 11, 13, 14, and 16.
We vacate (1) the July 7, 1999 Order Re: Child Support Enforcement Agency's Motion for Reconsideration and/or Further Hearing on Award of Attorney's Fees Filed 6/1/99; and (2) the July 8, 1999 Order Granting in Part Defendant Thomas Kamaki Kawahakui's Motion for Order Restraining Collection Activity on the Part of the CSEA and for an Accounting and Fees and remand.
In light of finding of fact no. 22N, we do not know if further proceedings are necessary. If necessary, further proceedings shall be consistent with this opinion. If an evidentiary hearing and adjudication is necessary, it shall be by a different family court judge.
DATED: Honolulu, Hawai`i, June 16, 2000.
On the briefs:
Francis T. O'Brien
for Defendant-Appellee.
Heidi M. Rian, Bryan C. Yee,
and Linda S. Martell,
Deputy Attorneys General,
for Party-In-Interest/Appellant.
1. The account of Defendant-Appellee Thomas Kamaki Kawahakui (Father) in the instant case on appeal was numbered "1547216[.]"
2. Neither of these hearings was an evidentiary hearing and there is no record of any stipulations.
3. There having been no evidentiary hearings or stipulations, Party-in-Interest/Appellant Child Support Enforcement Agency of the State of Hawai`i (CSEA) contends that this finding is unsupported by any evidence in the record.
4. There having been no evidentiary hearings or stipulations, the CSEA contends that this finding is unsupported by any evidence in the record.
5. There having been no evidentiary hearings or stipulations, the CSEA contends that most of these findings are unsupported by any evidence in the record.
6. The CSEA contends that "[t]his was a simple matter[.]"
7. This provision expressly states what is always true even when not stated. The label does not change a finding into a conclusion or a conclusion into a finding. However, this fact does not excuse labeling an obvious finding as a conclusion or an obvious conclusion as a finding.
8. The CSEA contends that "[t]hese conclusions of law are also factually incorrect because [Father] had other remedies available to him, including but not limited to contacting the state ombudsman or contacting the department of the attorney general, which oversees CSEA."
9. The CSEA contends that "[t]his was not an administrative proceeding, therefore, this statement is not applicable to this case, and, therefore, is clearly erroneous."
10. It appears
that the CSEA does not dispute that the child for whom Father is paying
child support in this case is one of these children.