Hollaway v. Hollaway

133 Hawai'i 415

329 P.3d 320

Samena Aliya HOLLAWAY, nka Samena Aliya Nordkvist, Plaintiff–Appellee,

v.Joshua David HOLLAWAY, Defendant–Appellant.

No. CAAP–12–0000816.

Intermediate Court of Appeals of Hawai‘i.

April 30, 2014.

As Corrected May 1, 2014.

Steven J. Kim, Honolulu, on the brief, for Defendant–Appellant.

FUJISE, Presiding Judge, LEONARD and REIFURTH, JJ.

Opinion of the Court by REIFURTH, J.

Defendant–Appellant Joshua David Hollaway ("Father") appeals from the Order Re: Plaintiff's Motion for Post–Decree Relief Filed June 6, 2011, ("Custody Modification Order") entered on September 12, 2012, in the Family Court of the First Circuit ("Family Court"),¹ which modified the original joint custody arrangement between Father and Samena Aliya Hollaway, nka Samena Aliya Nordkvist ("Mother") by giving Mother sole custody regarding educational decisions made on behalf of their son ("Son"). Specifically, Father challenges certain findings of fact ("FOF") and conclusions of law ("COL") in the Family Court's Findings of Fact and Conclusions of Law filed on November 15, 2012 ("FOF/COL").² We vacate the Custody Modification Order and associated FOF and COL for lack of substantial evidence in support of the Family Court's key findings.

I. BACKGROUND

Father and Mother (collectively, "Parents") were divorced on December 16, 2004, pursuant to a Divorce Decree. The Divorce Decree established that Parents would share joint legal and physical custody of Son. It did not specify how future decisions would be made on behalf of Son, or how Parents should proceed if they were unable to jointly make such decisions.

Parents originally enrolled Son in Palisades Elementary School ("Palisades") which he attended from kindergarten through sixth grade. If not enrolled in a private school, Son would normally next attend Highlands Intermediate School ("Highlands").

Mother, however, preferred to enroll Son in a private school, eventually focusing on Kamehameha Schools ("Kamehameha"). Father, an atheist, objected to Son's enrollment in any non-secular school, and to Kamehameha in particular, contending that it is a Christian school. The school's purported religious aspect does not form a basis for Mother's preference. Father also objected to Kamehameha on grounds that it maintains a "racially selective admissions policy," preferring those of Hawaiian ancestry.

Parents found themselves at an impasse. Mother filed her Motion and Affidavit for Post–Decree Relief, in which she sought an order directing Father to cooperate with her efforts to enroll Son at Kamehameha.

On September 20, 2011, at the hearing on Mother's motion, the parties presented the following testimony relevant to the merits of each school option.³

DIRECT EXAMINATION [of Mother]

Q [by Mother's counsel] What's your experience with [Kamehameha]?

A [M]y brother attended [Kamehameha]. And he would always talk about the resources they had, the field trips that he went on, the college prep that he received.

....

A Kamehameha I think is one of the best schools on this island. There is a cultural relationship to our family. [Son] is Hawaiian. He's also a very intelligent child who I think would benefit from the resources at Kamehameha.

....

Q Okay. What about the academics? I mean, going to right now, is [Son] being challenged at Palisades right now or how is he handling the work?

A I don't feel that he is being challenged. He has skipped a grade.... [H]e often complains to me that he has to do work that's harder than the other kids, it's not fair.

They have a reading program at school where he has to read either a bigger book or a harder book than the other kids because he is so advanced.

I don't really feel that he's being challenged. He just flies through his homework and I would ... like for it to be a little bit challenging for him.

Q Okay. And you feel that Kamehameha would be some possible advan—

A Yes.

Q —advantage to him in that department?

A Yes. I feel that the curriculum there is at a higher standard.

....

CROSS EXAMINATION [of Mother]

....

Q [by Father's counsel] ... I think you had indicated that in your view [Kamehameha's] curriculum would be superior to the curriculum of the school he's attending now?

A That's correct.

Q What do you base that on? What is [Kamehameha's] curriculum?

A I base it on friends and family that has went there and a comparison to the math level that my brother was in while he was there and he's younger than me. It was much higher and accelerated than the level of math that I was in. And I'm ... not a poor student. I was considered above average in my class in GPA.

....

A ... They also have an extensive band. [Son's] very interested in music. And he likes computers. To put together like little movies and slide show. They have a program over there for that. I just thought that would be interesting for him.

Q Have you ever heard of the Pearl City High School marching band?

A I was in that.

Q Have you heard of the Mililani High School marching band?

A Yes.

Q Those schools also have large bands[,] correct?

A Yes.

Q All right. I wanna ask you though, if you can be a little more specific about—is your opinion about the relative curriculums of [Kamehameha] and some public school based solely on the fact that your brother, you perceived him to have harder math than you? Is that the data base that you're relying on?

A No, not the only—not the only thing.

....

Q Tell me any facts that you're aware of on which you base your opinion that [Kamehameha] has a superior curriculum?

A Okay. I base the fact that every year they have colleges that go in, big—you know, reputable colleges like MIT. They go in there and prep the kids to either apply for these or recruit them to apply for their colleges. They ... win a lot of awards. Their band is great. Their—they have math, um—a math achievement—I mean, those are the things that I base it on.

Q Okay. Would you agree with me that your son would excel at any school? That he has the—

A Yes, I believe he's—

Q —intellectual horse power?

A Yeah, I believe he's very smart, yes.

....

DIRECT EXAMINATION [of Father]

Q [by Father's counsel] ... What is your perception as to why [Son] would like to be at Highlands Intermediate?

A ... [Highlands has] a strong robotics program ... that has made the national finals the last two years.

Q Okay. Has your son participated in robotics and been successful in robotics competitions at Palisades?

A Yeah, they're a championship team. They're one of the top teams.

....

Q What kinds of things does your son learn in robotics that might help him or give him new interest as he goes through high school and into life?

A They ... learn a lot of mathematics. They also learn how to solve problems logically. They learn planning and team work.

And every one of the competitions also has a—beside the actual robotics course that they have to run, they have a research and presentation, like sort of a problem solving thing where they take the issue of the day, a timely issue, and they put together a—a solution for it, they write an essay, they make a display, and they present it to judges without any adult supervision.

That's the ... actual component that his team is the strongest at.

....

Q ....

What is your opinion as to the curriculum or the amount of challenge and education that your son can get in the public school system?

A Um—I work in a public school and I think that ... when you're teaching, which is what I do, ... you know, I'm still learning and I think everybody's always still learning when you're teaching.

But there's no magic system and ... Kamehameha's staff and faculty, they don't know a better system of teaching. They don't have a better series of books, they don't have a better method.

They teach the same way that the rest of us do and they learned it in the same way the rest of us do....

....

... [Y]ou know, there may be some perceived benefits at Kamehameha, but ... I personally don't see any evidence that the actual academic instruction is better....

....

EXAMINATION [of Father]

BY THE COURT:

Q ....

... In your mind what constitutes a need for private school?

A [Articulating religion and undesirable influences at another school as reasons.]

And a lot send their kids to private school because they think they might need a certain classroom sizes [sic] or special instruction or certain activities that they don't have access to at public school.

So far we haven't identified any of those things. My son's happy with his programs he has....

....

I think that's sort of the implication in this whole mess is that somehow by not going to a private school he's going to be disserviced in some way, and I think that's a ridiculous implication.

....

Q By extrapolation then, would I be correct in concluding that in [Son's] case you don't perceive a need for private school?

A I don't perceive a need for private school, no.

And I ... don't say that there aren't perceived benefits to someone else, and we might debate about the quality of those benefits.

She might think that they have a better curriculum. I might say otherwise. I don't necessarily think that there is a measurable difference there.

But what I do see and there are very strong negative aspects to me about—things that oppose my core values. And—and without something that at least pretends to somehow provide some benefit to balance out that offense to my core values as a parent, well then, ... is this vague and non-specific benefit of [Kamehameha] that powerful that it should dismiss my' ... actual beliefs?

It—maybe to say there's no need for private school, I—I wouldn't want that to sound like I'm saying there's no benefit of it, or that there's no difference. I don't think that that's true, that there's no difference. But I don't perceive that there are benefits that outweigh my objections.

Both parents submitted exhibits that were stipulated into evidence. Mother's exhibits included information pertaining to Kamehameha's admissions policies, excerpts from Kamehameha's 2011–2012 Student & Parent Handbook, and an...