NO. 23094
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAII
MARGARET MCLAUGHLIN, formerly known as Margaret Maddigan, Plaintiff-Appellant, v. ARTHUR MADDIGAN, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-D NO. 94-0045)
MEMORANDUM OPINION
(By: Burns, C.J., Watanabe and Lim, JJ.)
On August 11, 1999, Defendant-Appellee Arthur Maddigan (Father or Defendant) filed a motion for post-judgment relief (1) (August 11, 1999 Motion) seeking a reduction of his child support obligation. After a hearing on September 13, 1999, the family court, on October 1, 1999, entered its "Order Granting Defendant's Motion for Post-Decree Relief Filed on August 11, 1999" (October 1, 1999 Order). The October 1, 1999 Order granted Father's August 11, 1999 Motion and reduced Father's child support obligation from $2,900 per month to $1,600 per month.
On September 27, 1999, Plaintiff-Appellant Margaret McLaughlin, formerly known as Margaret Maddigan (Mother or Plaintiff), filed a "Motion and Affidavit for Post-Decree Relief"
(September 27, 1999 Motion) seeking child support of at least $4,500 per month.
On October 4, 1999, Mother filed "Plaintiff's Motion for Reconsideration As Authorized By Hawaii Family Court Rule 60(b)(1)" of the October 1, 1999 Order (October 4, 1999 M/R).
After a hearing on October 18, 1999, the family court, on December 29, 1999, entered its "Order Denying Plaintiff's Motion and Affidavit for Post-Decree Relief (Filed 9/27/99) and Motion for Reconsideration Under HFCR 6, Rule 60(B)(1) (Filed 10/4/99)" (December 29, 1999 Order) denying Mother's September 27, 1999 Motion and Mother's October 4, 1999 M/R. Mother appeals this December 29, 1999 Order. We affirm.
BACKGROUND
Father was born in 1932, and Mother was born in 1955. They were married on February 14, 1986. Their oldest daughter was born in 1988, and their youngest daughter was born in 1991. Mother filed a Complaint for Divorce on January 24, 1994. The family court's November 30, 1995 Decree of Absolute Divorce (Divorce Decree) incorporates Father's and Mother's November 14, 1995 Agreement in Contemplation of Divorce.
In relevant part, the Divorce Decree:
1. Awarded Mother her Dean Witter IRA, the Toyota van, her bank accounts, and ordered Father to pay Mother $200,000.
2. Ordered Father to pay Mother spousal support of $1,000 per month for thirty months (or forty-eight months if Mother is a full-time student at an accredited educational institution).
3. Stated, in relevant part, as follows:
21. [PLAINTIFF'S] EDUCATIONAL EXPENSES. As long as [Plaintiff] is a full-time student at an accredited educational institution, [Defendant] shall pay [Plaintiff's] tuition and fees until August 31, 2000. After said time should [Plaintiff]
continue as a full-time student at any accredited educational institution, [Defendant] shall pay [Plaintiff's] tuition only
until June 30, 2001.
4. Awarded Mother the temporary legal and physical custody of the children.
5. Ordered Father to pay child support of $2,900 per month pursuant to the computations on the Child Support Guidelines Worksheet showing that Father's monthly gross income was $14,833 and Mother's was $1,000.
In 1999, the family court approved and ordered three stipulations by the parties. In chronological order, these stipulations state, in relevant part, as follows: (2)
January 4, 1999
STIPULATION CONCERNING CERTAIN RELOCATION ISSUES
. . . .
1. Relocation and Enrollment. Plaintiff may relocate
with the parties [sic] minor children, . . . to the Ashland,
Oregon vicinity . . . .
2. 50/50 Time Allocation. The parties will develop a
plan so that each of the parties will share 50% of the time with their children, on an annual basis.
One of the primary purposes of this 50/50 time allocation is to have the children (a) perceive that the proceedings before the mediator and the court result [sic] in a "win/win" situation for both parents; (b) understand that they will not lose access to either parent and that they will have equal access to each parent; and (c) understand that each parent has committed to and will
spend equal time with them.
January 7, 1999
SECOND STIPULATION CONCERNING CERTAIN RELOCATION AND OTHER ISSUES
. . . .
1. Transition Timing/Residential Arrangements.
. . . .
Plaintiff will relocate to the Ashland, Oregon vicinity on
or about January 31, 1998. . . . From January 31, to February 6, 1999, the children will reside on Maui with Defendant.
On February 6, 1999, Defendant will travel with the girls
from Maui to the mainland where they shall reside with Defendant until no later than 12:00 p.m. on February 7, 1999, at which time Defendant shall bring the girls to Plaintiff in Oregon. . . .
The children will then reside with Plaintiff from noon on February
7, 1999 until she takes the children to school on February 11,
1999. The girls will then reside with Defendant from after school on February 11, 1999 through February 12, 1999. . . .
From February 13, 1999 through February 21, 1999, the girls shall reside with Defendant on the mainland during teacher's conference week. Defendant shall bring the children to Plaintiff
no later than noon on February 21, 1998. From and after noon on February 21, 1999, the children will reside with Plaintiff . . . except when they shall reside with Defendant as set forth herein.
The girls will leave Oregon on March 19, 1999 and reside
with Defendant on Maui during their spring break, returning to Oregon on April 3, 1999.
During the period from April 3, 1999 through May 31, 1999,
the girls will reside with Defendant for two 4-day weekends in Oregon or on the mainland. It is the intent of the parties that Defendant shall return the girls to Plaintiff no later than 5:00 p.m. on the Sunday afternoon of any such weekend.
During the summer vacation beginning June 10, 1999, the
girls will reside with Defendant on Maui (or other places vacationing), except for the first and last weeks of summer
vacation when the girls will reside with Plaintiff in Oregon, the specifics of which will be agreed upon by the parties.
The parties agree that if Plaintiff is on Maui during any period which the children are residing with Defendant on Maui,
that the children will be with Plaintiff for two consecutive days each week.1 Furthermore, the parties agree that if Defendant is
in Oregon during any period which the children are residing with Plaintiff in Oregon, that the parties will agree upon an
appropriate time for the children to visit with Defendant
consistent with the parties' intention to have an approximate
50/50 annual allocation of time agreed upon herein.
. . . .
Plaintiff and Defendant agree to develop a schedule for the children's residential arrangements beginning September 19992 with the parties' intention that the children will reside with each parent approximately 50% of the time (approximately 183 days
each).
. . . .
3. Plaintiff's Tuition
. . . .
(b) Future Tuition. Professor Timothy Dolan,
Program Director of the Southern Oregon University Master's Degree Program in Management, has determined (and will confirm by letter) that the minimum number of units required to obtain Plaintiff's graduate master's degree at Southern Oregon University is 54
units. Defendant shall pay tuition for that number of units and
no more, but in no event is Defendant obligated to pay for any tuition after June 30, 2001. . . .
4. Child Support. The parties agree that child support shall be payable in accordance with the applicable Child Support Guidelines.
. . . .
7. Continued Jurisdiction of the Court. Many of the provisions of this agreement require the parties to agree in the future regarding certain matters. The parties agree that if they cannot reach agreement on such provisions requiring their joint agreement, that the Family Court of the Second Circuit Court,
State of Hawaii, shall retain jurisdiction to resolve any such disagreements.
8. . . . The Family Court shall have continuing jurisdiction over the parties and their property to enforce and implement the provisions of this Stipulation.
_______________
1 Plaintiff will be entitled to a maximum of eight days with the children during summer vacation pursuant to this provision. In addition, any visitation pursuant to this provision shall be consistent with the parties' intention to have the approximate 50/50 annual time allocation agreed upon herein.
2 The 1999-00 residential schedule and all schedules thereafter will accommodate the alternating of major holidays between Plaintiff and Defendant as agreed by the parties.
January 13, 1999
THIRD STIPULATION CONCERNING CERTAIN RELOCATION AND OTHER ISSUES AND DISMISSAL WITH PREJUDICE OF MOTIONS FOR POST-DECREE RELIEF
. . . .
1. Cash Payment for Spousal Support Obligation. . . . Defendant shall pay to Plaintiff the sum of $46,000.00 by check as full satisfaction of all of Plaintiff's claims against Defendant
for past and future spousal support and other claims relating to financial obligations of Defendant to Plaintiff currently before
the Court and under that certain Decree of Absolute Divorce filed November 30, 1995 (the "Decree"), it being expressly understood
and agreed that upon payment of the $46,000.00 as set forth
herein, all obligations of Defendant with respect to the payment
of spousal support and other financial obligations to Plaintiff shall cease.
2. Release of Claims. Upon payment of said $46,000.00, Plaintiff, for herself and her heirs and assigns, hereby releases, acquits, and forever discharges Defendant and his heirs and
assigns, from and against any and all claims for past and future spousal support and other claims relating to financial obligations of Defendant to Plaintiff under the Decree, and Plaintiff
absolutely and forever waives the right to bring and is restrained from bringing any claims against Defendant on account thereof; provided, however, that nothing contained herein shall effect
[sic] the financial obligations of Defendant with respect to child support or other obligations directly related to the children (as opposed to Plaintiff) which obligations shall be determined
pursuant to the applicable Child Support Guidelines, and any
claims directly relating thereto are hereby expressly reserved by the parties.
Father's August 11, 1999 Motion states that "[c]ustody was previously modified to 'joint custody'; however, the child support was not amended at that time" and is accompanied by a completed family court form, Child Support Guidelines Worksheet for Joint Custody/Extensive Visitation, showing that Father's monthly gross income was $17,034.92 and Mother's was $1,126.67 and concluded that Father owed Mother child support of $1,600 per month. Service was made on Mother's counsel by mail. Mother was not personally served.
On September 13, 1999, the family court held a hearing (3) on Father's August 11, 1999 Motion. The parties agreed that Mother's counsel specially appeared for Mother at this hearing. Mother's counsel stated that he argued that he did not file appropriate responding documents because (1) he thought service on him pursuant to HFCR Rule 87(a) rather than on Mother was not authorized and (2) when he asked Father's co-counsel (an associate of Father's counsel) for a continuance, Father's co-counsel represented to him that "nothing would happen here, anyway, today, it would just be for scheduling purposes and this
would be put off for later when the plaintiff herself could be here in person." (4)
Mother's counsel states that he asked for a continuance
until, essentially, after the end of [Plaintiff's] semester when by that time plaintiff could have had a chance to file a motion of her own for post-decree relief to increase the child support so she can file interrogatories, requests for production of documents and requests for admissions, to bring before the Court all the information that's needed so that defendant's deposition could be
taken and so that a motion for attorney's fees paid in advance can be filed and heard so that she can pay for her representation in this matter and so that she will not be under extreme pressure to deal with her classes.
It appears that the family court was appropriately displeased by Mother's lack of affidavits, exhibits, and documentation supporting her allegations that her child support needs had increased and that Father's ability to pay for them was more than as represented by Father in his documentation submitted to the court. Mother appeared to seek child support to support not only her daughters, but also herself, notwithstanding her acceptance of a lump sum payment in full satisfaction of her claims for past, present, and future spousal support.
Lacking any documentation to the contrary, the family court accepted the Child Support Guidelines Worksheet for Joint Custody/Extensive Visitation that had been filled in and submitted by Father and reduced child support from $2,900 to $1,600 per month commencing September 1, 1999. Mother stated, and Father does not disagree, that the court further order that Mother is "free to file a motion to establish child support based upon any change in circumstances other than appear by the record in his case; in other words, the income that either attributed to the parties [a]s reflected in the current child support guideline filed in conjunction with this motion."
Mother's September 27, 1999 Motion was filed and sought child support of "at least $4,500 a month" based on the facts that (a) Father misrepresented his income and assets, (b) Mother's need for child support is not lessened by the change in physical custody/visitation, and (c) Father's true annual income is "at least $900,000 a year." Mother did not explain the relevancy of Father's assets.
Mother's Income and Expense Statement accompanying her September 27, 1999 Motion states that she is a full-time student and a part-time "Personal Trainer." It also contradictorily states that her gross income is $200 weekly and $200 monthly.
The financial documents filed with Mother's motion state her monthly expenses as follows:
Housing 1,150
Transportation 490
Debt service (5) 600
Personal (Mother) 700
Personal (Children) 1,000
TOTAL $3,940
The family court entered its October 1, 1999 Order. This order reduced Father's obligation to pay child support to $1,600 per month.
The October 4, 1999 M/R states, in relevant part, as follows: "There are indeed disputed issues of fact. These include Defendant's failure to include . . . annual income of approximately $860,000 for the year of 1998. Also the values of the house, the artwork in the house, and the Defendant's business have all been understated or not reported at all."
In an accompanying memorandum, Mother's counsel stated, in relevant part, as follows: "Plaintiff's attorney admits to mistake, inadvertence and neglect and Plaintiff's attorney prays that the Court will find that such errors have not prejudiced Defendant's case and that Plaintiff's attorney's errors are found to be excusable in this matter."
In an accompanying affidavit, Mother's counsel states as follows:
As attorney of record in Family Court Matter FC-D 94-0045, I made
a professional decision, in good faith, that Defendant's Service
of Process upon Plaintiff's attorney was null and void.
Through my mistake, inexcusable and excusable neglect, the Court reduced the Child Support from $2,900 per month to $1,600, notwithstanding that Plaintiff's expenses were not reduced and
that Defendant could pay many times that amount without affecting his lifestyle. Based on prior documents made available by Defendant, Plaintiff's counsel believes that Defendant's annual income [h]as been approximately $900,000. (6)
I misinterpreted the law on this issue. My actions were not designed to create delay in the administration of the duties of
the Court.
The filing of this Motion for Reconsideration is not for the purpose of delay but is made in good faith, for the good cause of attempting to rectify my mistake, inadvertence and excusable
neglect committed during the representation of my client on behalf of her children.
(Footnote added.)
Mother's counsel did not identify the documents referred to in his statement that "[b]ased on prior documents
made available by Defendant, Plaintiff's counsel believes that Defendant's annual income [h]as been approximately $900,000."
On October 13, 1999, Father filed his memorandum in opposition. In an accompanying Income and Expense Statement, Father states that his monthly gross income is $17,034.92 ($13,333.34 plus $3,701.58). In an accompanying affidavit, Father states, in relevant part, as follows: "In Plaintiff's Motion, Plaintiff claims that 'defendant has lied and misrepresented his income and assets.' Id. Plaintiff has not offered any evidence to support this allegation and I strongly deny that I have lied or misrepresented any financial information to the Court."
On October 15, 1999, Mother filed "Plaintiff's Reply to Defendant's Memorandum in Opposition Etc. Dated October 13, 1999," stating, in relevant part, as follows:
At present, Plaintiff's family has essentially no income
other than child support.
. . . .
The Court's judgment announced orally on September 13, 1999 (Order After Hearing signed October 1, 1999), was essentially a "default judgment" against Plaintiff mother. Family matters including child support should not and can not be decided by
Default or Default type proceedings.
In an affidavit filed with her motion, Mother stated, in relevant part, as follows:
8. The $2,900 child support and the $1,000 alimony (which ended by stipulation January 1999), never covered all of my and
the children's reasonable and necessary expenses. . . .
. . . .
10. The cost of these necessities has now increased as the children have grown and matured, to the point that $4,500
per month is a minimum reasonable amount for support at this time.
11. These funds are virtually the sole source of money to pay
the bills for my family, since I am now in graduate school
on a full time basis in Oregon. . . .
. . . .
13. . . . No evidence from me of the need for a decrease from
the $2,900 per month was ever sought by Defendant, produced
or introduced at any Hearing on this matter. Likewise, no evidence has yet been heard by the Court that I need an increase from the $2,900 to $4,500 per month support, other than my moving papers on the instant Motions.
. . . .
16. . . . It is not possible for me and the children to exist on $1,600 per month or even $2,900 per month. In fact, I was planning to request a significant increase in support for my children based on my new situation in Oregon.
17. Plaintiff seeks Discovery, including a the [sic] Production
of Documents (per the enclosed Motion) and possibly his Deposition to remove the cloud of fraud that hovers above Defendant's reported income and reported net worth, and to achieve an accurate picture of the true value of his
disclosed and undisclosed assets.
(Emphases in original.)
In an accompanying Child Support Guideline Worksheet, Mother states that Father's monthly gross income is $65,000 and that Mother's monthly gross income is $200. No basis is stated or shown for the income amount attributed to Father.
The hearing on Mother's October 4, 1999 M/R occurred on October 18, 1999. (7) The family court's December 29, 1999 Order was entered.
On January 18, 2000, Mother filed a notice of appeal.
DISCUSSION
A.
Mother contends that the family court failed in its duty to enter findings and conclusions when it entered its October 1, 1999 Order. It appears that Mother is unaware that prior to the amendment of HFCR Rule 52 effective January 1, 2000, (8) the last sentence of HFCR Rule 52(a) stated that "[f]indings of fact and conclusions of law are unnecessary on decisions of motions[.]"
B.
Effective January 1, 2000, HFCR Rule 87(a) was amended (bracketed part deleted; underlined part added) as follows:
(a) [Service on attorneys. ]Withdrawal of Counsel Unnecessary. [Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service may be made upon the attorney, pursuant to Rule 5(b) of these rules, so long as he is attorney of record, unless service upon the party is ordered by the court or required by law or the issue of contempt is alleged in the action. ]After entry of a [decree or order] judgment finally determining all issues in the[ decree or order] judgment and after the expiration of the time for taking of an appeal which lies from such [decree or order]
judgment, the attorney shall no longer be considered attorney of record for this purpose. No withdrawal as counsel of record need
be filed for this purpose. If any issue is specifically reserved
in any [decree or order] judgment for further hearing or future determination (as distinguished from reviews of a decree or "decision and order" where no issue is reserved for future determination and from issues over which the court has continuing jurisdiction to act by law), the attorneys of record for the
parties shall continue to be attorneys of record for the service
of pleadings relating to those reserved issues, but for no other purpose, until such time as the reserved issues are resolved and until after the expiration of the time for taking an appeal which lies from the[ decree or order] judgment resulting from the resolution of such reserved issues, unless the withdrawal is expressly approved and allowed by the court. [No withdrawal as counsel need be filed for this purpose, unless the withdrawal is expressly approved and allowed by the court.]
Divorce cases have four discrete parts. Eaton v. Eaton, 7 Haw. App. 111, 748 P.2d 801 (1987). If the discrete part of this divorce case pertaining to child custody, visitation, and support had been finally decided when Mother's counsel was served with Father's August 11, 1999 Motion, we may have concluded, pursuant to HFCR Rule 87 pertaining to service on attorneys, that because the enforcement and/or modification of the child support awarded in the divorce decree was an issue over which the family court had continuing jurisdiction to act by law, service of Father's August 11, 1999 Motion on the attorney who was Mother's attorney-of-record in the original divorce proceedings and with respect to the January 1999 stipulated
orders/judgments was improper and ineffective service of Father's August 11, 1999 Motion on Mother.
As noted above, however, the Divorce Decree awarded Mother the "temporary legal and physical custody of the parties' children" and, although that temporary award was subsequently amended, no award has ever been made permanent. Therefore, with respect to the discrete part of this divorce case involving child custody, visitation, and support, Mother's attorney at the time the Divorce Decree was entered continues to be the attorney-of-record and service on him was valid.
C.
The Divorce Decree ordered Father to pay child support of $2,900 per month. In January 1999, the parties agreed, and the court ordered, that: (1) the children would be with Father on Maui for the same amount of time they are with Mother in Oregon; (2) child support "shall be payable in accordance with the applicable Child Support Guidelines"; and (3) "[t]he Family Court [of the Second Circuit Court, State of Hawaii] shall have continuing jurisdiction over the parties and their property to enforce and implement the provisions of this Stipulation."
Order (2) did not add anything not already said in Hawaii Revised Statutes § 576D-7 (Supp. 1999) (9).
In this appeal, Mother presents a myriad of objections, none of which have any merit.
First, Mother complains that she
did not gather or present any opposing evidence to the Family
Court contesting the factual allegations contained in
[Defendant's] motion, because [he] had relied upon [Defendant's]
co-counsel's statements that the Family Court would not rule on
the merits of [Defendant's] motion at the hearing. The court ignored [Plaintiff's] request for a continuance to properly
present [Plaintiff's] case.
Mother further complains that the family court "failed to exercise its equitable discretion by not granting [Plaintiff] a brief continuance to gather and present opposing evidence[.]" We conclude that Mother failed in her burden to present evidence (1) of the merit of her request for a continuance or (2) contrary to Father's evidence and justifying a contested hearing. Mother had an opportunity at the October 18, 1999 hearing to satisfy burden (1) or burden (2). She had a similar opportunity prior to the entry of the December 29, 1999 Order.
Her failure to take advantage of those opportunities is not the fault of the family court or opposing counsel.
Second, Mother contends that "[g]iven the large sums in question, and the complexity of [Defendant's] business ventures, justice demands further discovery into [Defendant's] finances before a fair and impartial evidentiary hearing can possibly be held on the issues of child support and custody." However, nothing in the record suggests that Mother was deprived of any right to any relevant discovery or demonstrates that further discovery would have been anything more than a fishing expedition.
Third, Mother states that "[c]ertainly, [Plaintiff's] counsel's failure to gather or present opposing evidence at the hearing would qualify as excusable neglect, surprise, inadvertence or mistake pursuant to HFCR [Rule] 60(b)(1) when such failure of proof is due to misrepresentations, trickery and the predatory tactics of opposing counsel." As noted above, nothing in the record suggests that Mother was deprived of any right to any relevant discovery or that her failure "to gather and present opposing evidence" and her "failure of proof" was due to the inappropriate tactics of opposing counsel.
Fourth, Mother contends that "[b]y adopting [Defendant's] unopposed motion affidavit alleging joint custody for purposes of modifying child support, the Family Court effectively made a custody determination without a [sic] holding a proper evidentiary hearing on the matter." This contention misrepresents the facts. The family court properly acted in recognition of the three January 1999 stipulated orders.
Fifth, Mother contends that the fact that she is a full-time student with almost no income whatsoever is a ground for increasing Father's obligation to pay child support. It appears it is Mother's view that in situations involving (a) an ex-husband/father-rich-in-income-and-assets who is obligated to pay child support but has finally paid all the alimony he owed, and (b) an ex-wife/mother-poor-in-income-and-assets and who is a student but who has received all the alimony due her, the court should order the ex-husband/father to pay 100% of the ex-wife/mother's expenses for the ex-wife/mother and for the children and to pay for the expenses of the children without regard to the relevant child support guidelines. We conclude that Mother is wrong.
CONCLUSION
Accordingly, we affirm the family court's October 1, 1999 Order Granting Defendant's Motion for Post-Decree Relief Filed on August 11, 1999, and December 29, 1999 "Order Denying Plaintiff's Motion and Affidavit for Post-Decree Relief (Filed
9/27/99) and Motion for Reconsideration Under HFCR 6, Rule 60(B)(1) (Filed 10/4/99)."
DATED: Honolulu, Hawaii, February 7, 2001.
On the briefs:
Joel Edelman
for Plaintiff-Appellant.
Paul R. Mancini
(Mancini, Rowland & Welch,
of counsel)
for Defendant-Appellee.
As amended effective January 1, 2000, the term "decree" is no
longer used in the Hawaii Family Court Rules (HFCR). See HFCR Rules 54
through 62, 69, and 70. Physical custody/visitation of the children "should be awarded to either parent or to both parents according to the best interests of the
child[.]" Hawaii Revised Statutes (HRS) § 571-46 (Supp. 1999). The
agreement of the parties is not determinative. In the instant case, there is
no evidence or finding that the split (50/50) physical custody/visitation
arrangement stated in the second stipulation was "in the best interests of the
child[ren.]"
3. Alleged copies of the transcript of this September 13, 1999 hearing are attached to documents filed in the family court by Plaintiff-Appellant Margaret McLaughlin, formerly known as Margaret Maddigan (Mother or
Plaintiff), and to Mother's opening brief. It is not, however, an official
transcript obtained and filed in accordance with Hawaii Rules of Appellate
Procedure (HRAP) Rule 10 (1999). It is Mother's unsworn statement of what
happened. However, Defendant-Appellee Arthur Maddigan (Father or Defendant) does not disagree with Mother's unsworn statement of what happened.
4. Mother contends that [i]t was an abuse of discretion for the Family Court to hold a hearing on the
merits of [Defendant's] Motion for Post-Decree Relief after [Defendant's] co-counsel misrepresented the true purpose of the
September 13, 1999 hearing, and [Plaintiff's] counsel relied upon those misrepresentations to his detriment. . . . . . . . [Plaintiff's] counsel did not gather or present any opposing evidence to
the Family Court contesting the factual allegations contained in [Defendant's]
motion, because he had relied upon [Defendant's] co-counsel's statements that the Family Court would
not rule on the merits of [Defendant's] motion at the hearing. In his answering brief, Father responds, in relevant part, as follows: Any attorney practicing in the Family Court, Second Circuit knows that it is the
expectation and requirement of the Court that the provisions of Rule 7(b)(5) and
the Scheduling Order be complied with whether the matter is scheduled for an evidentiary hearing or
whether the hearing date is merely a return date on the motion. Moreover, "an
attorney has a duty to be familiar with the applicable rules of court. Bank of
Hawaii v. Shaw, 83 Haw. 50, 54, 924 P.2d 544, 548 (1996). Therefore, [Plaintiff's] contention that
[Defendant's counsel] tricked him into noncompliance with court requirements has no merit. It is [Plaintiff] who has disregarded the
rules and principles of law or practice, and the Scheduling Order of the Court. (Footnote omitted.) It does not appear that Father's counsel has ever denied the making of the misrepresentation alleged by Mother's counsel. It appears that the family court did not decide the question whether the alleged
misrepresentation was actually made. If the misrepresentation was made, we agree with Mother that the courts should not allow Father to take advantage of
it. On the other hand, if Mother was misled, the record does not justify her
inaction or establish her right to a continuance after she became aware of that fact.
5. Mother's asset and debt statement shows that she owed $12,000 to VISA and
$1,200 to American Express.
Mother has not presented any evidence in support of this belief.
7. A transcript of this hearing is not a part of the record on appeal in
accordance with HRAP Rule 10. It appears that Mother failed to comply with HRAP
Rule 10(b)(2) (effective January 1, 2000), which states as follows: "If the appellant deems it unnecessary to have transcripts prepared, the appellant
shall, within 10 days after filing the notice of appeal, file a certificate to
that effect with the clerk of the court appealed from and serve a copy of the
certificate on each appellee."
8. Effective January 1, 2000, HFCR Rule 52(a) states, in relevant part, as follows: In all actions tried in the family court, the court may find the facts and state
its conclusions of law thereon or may announce or write and file its decision
and direct the entry of the appropriate judgment; except upon notice of appeal
filed with the court, the court shall enter its findings of fact and conclusions of law where none have been entered, unless the written decision of the court contains findings of fact and conclusions of law.
HRS § 576D-7 (Supp. 1999) states, in relevant part, as follows: Guidelines in establishing amount of child support. (a) The family court, in
consultation with the [child support enforcement] agency, shall establish
guidelines to establish the amount of child support when an order for support is sought or being modified under this chapter. . . . . . . . (d) . . . The most current guidelines shall be used to calculate the amount of
the child support obligation.