JZ v. JZ

JZ, Plaintiff-Appellee, v. JZ, Defendant-Appellant

NO. CAAP-19-0000496

INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I

May 21, 2020

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(FC-D NO. 17-1-0213)

MEMORANDUM OPINION

(By: Leonard, Presiding Judge, Chan and Hiraoka, JJ.)

Hawai'i divorce cases involve a maximum of four discrete parts: (1) dissolution of the marriage; (2) child custody, visitation, and support; (3) spousal support; and (4) division and distribution of property and debts. Eaton v. Eaton, 7 Haw. App. 111, 118, 748 P.2d 801, 805 (1987). The only part not at issue in this appeal is the dissolution of the parties' marriage.

BACKGROUND

Defendant-Appellant JZ (Mother) and Plaintiff-Appellee JZ (Father) were married and have three minor children (collectively, the Children). Father filed for divorce. After a trial, the Family Court of the First Circuit¹ entered a "Decree Granting Absolute Divorce and Awarding Child Custody" (Decree) and a Judgment. Mother appealed. Mother raises four points of error, contending that the family court:

1. abused its discretion in awarding sole physical custody of the Children to Father;

2. erred in calculating Mother's and Father's income, and in calculating Mother's child support obligation;3. erred in dividing and distributing Mother's and Father's property; and

4. erred by reducing Mother's child support obligation in lieu of awarding her spousal support.

In response, Father (through counsel) filed a notice that he "will not be filing an answering Brief [sic] in this matter, and relies on the Trial Court's Order, Findings of Facts, and Conclusions of Law."

For the reasons explained below, we affirm the Judgment, vacate the Decree in part, vacate the family court's findings of fact and conclusions of law that are inconsistent with this opinion, and remand this case to the family court for further proceedings.

PROCEDURAL HISTORY

Mother and Father were married on March 16, 2008. The Children were born in 2011 and 2012. Father filed for divorce on February 23, 2017. Extensive litigation followed, including multiple motions for pre-decree relief, numerous discovery disputes, three restraining orders, and a disputed post-nuptial agreement. The family court appointed Nicole K. Cummings (Best-Interest Fact Finder) to be the children's best-interest fact finder pursuant to Hawaii Revised Statutes (HRS) §§ 571-46 ("Criteria and procedure in awarding custody and visitation; best interest of the child") and 571-46.4 ("Child custody evaluators"). The Best-Interest Fact Finder was directed to submit a report to the family court on certain issues, with recommendations. Her 144-page report was filed (under seal)² on June 4, 2018.

The trial took place over 12 days in late 2018 and early 2019. The family court heard testimony from Mother, Father, the Best-Interest Fact Finder, and seven other witnesses. On May 14, 2019, the family court entered its "Decision and Order re: Trial" (D&O). The Decree and the Judgment were entered on June 14, 2019. Mother appealed. The family court's findings of fact and conclusions of law (Findings & Conclusions)were entered on September 9, 2019.³

STANDARDS OF REVIEW

[T]he family court possesses wide discretion in making its decisions and those decision[s] will not be set aside unless there is a manifest abuse of discretion. Thus, we will not disturb the family court's decisions on appeal unless the family court disregarded rules or principles of law or practice to the substantial detriment of a party litigant and its decision clearly exceeded the bounds of reason.

Fisher v. Fisher, 111 Hawai'i 41, 46, 137 P.3d 355, 360 (2006) (citation omitted).

Mother challenges 114 of the family court's findings of fact. Findings of fact are reviewed under the "clearly erroneous" standard. Fisher, 111 Hawai'i at 46, 137 P.3d at 360. A finding of fact is clearly erroneous when the record lacks substantial evidence to support the finding, or despite substantial evidence in support of the finding, we are nonetheless left with a definite and firm conviction that a mistake has been made. Id. "Substantial evidence" is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion. Id.

The family court made several specific findings regarding witness credibility:

38. The [Best-Interest] Fact Finder's report and [her] testimony was comprehensive and persuasive to the Court.. . . .

66. The Court finds the testimony of [Mother's former housemate] to be credible.

67. The Court did not find [Mother]'s testimony regarding her limited consumption of prescription drugs and alcohol, and the fact that she did not mix the two substances to be credible.

. . . .

202. The Court finds [Mother's business valuation expert]'s report to not be credible as he was only provided a limited amount of information by [Mother]'s counsel, limiting his ability to perform a complete analysis.

"It is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of evidence; this is the province of the trier of fact." Fisher, 111 Hawai'i at 46, 137 P.3d at 360 (citation omitted).

Mother also challenges 19 of the family court's conclusions of law. Conclusions of law are ordinarily reviewed de novo, under the right/wrong standard, "and are freely reviewable for their correctness." Fisher, 111 Hawai'i at 46, 137 P.3d at 360. However, if a conclusion of law presents mixed questions of fact and law, we review it under the "clearly erroneous" standard because the conclusion is dependent on the facts and circumstances of the case. Estate of Klink ex rel. Klink v. State, 113 Hawai'i 332, 351, 152 P.3d 504, 523 (2007).

DISCUSSION

We discuss each of Mother's points of error in the order raised in her opening brief.

I. Child Custody and Visitation

The family courts are uniquely positioned as triers of fact in complicated and emotional child custody cases; appellate courts afford them great deference in making custody decisions and in determining what is in the best interests of the child. DJ v. CJ, No. SCWC-17-0000027, 2020 WL 1879625 (Haw. Apr. 13, 2020) (Nakayama, J., concurring and dissenting) (citing AA v. BB, 139 Hawai'i 102, 106, 384 P.3d 878, 882 (2016)). "The criteria and procedures for the family court to award custody and determine the best interests of the child are set forth inHRS § 571-46." WN v. SM, 143 Hawai'i 128, 135, 424 P.3d 483, 490 (2018) (citation omitted). The statute provides, in relevant part:

(a) In actions for divorce . . . where there is at issue a dispute as to the custody of a minor child, the court . . . may make an order for the custody of the minor child as may seem necessary or proper. In awarding the custody, the court shall be guided by the following standards, considerations, and procedures:

(1) Custody should be awarded to either parent or to both parents according to the best interests of the child, and the court also may consider frequent, continuing, and meaningful contact of each parent with the child unless the court finds that a parent is unable to act in the best interest of the child;

. . . .

(4) Whenever good cause appears therefor, the court may require an investigation and report concerning the care, welfare, and custody of any minor child of the parties. When so directed by the court, investigators or professional personnel attached to or assisting the court, hereinafter referred to as child custody evaluators, shall make investigations and reports that shall be made available to all interested parties and counsel before hearing, and the reports may be received in evidence[;]

(5) The court may hear the testimony of any person or expert, produced by any party or upon the court's own motion, whose skill, insight, knowledge, or experience is such that the person's or expert's testimony is relevant to a just and reasonable determination of what is for the best physical, mental, moral, and spiritual well-being of the child whose custody is at issue[.]

. . . .

(b) In determining what constitutes the best interest of the child under this section, the court shall consider, but not be limited to, the following:

. . . .

(2) Any history of neglect or emotional abuse of a child by a parent;

(3) The overall quality of the parent-child relationship;

(4) The history of caregiving or parenting by each parent prior and subsequent to a marital or other type of separation;

(5) Each parent's cooperation in developing and implementing a plan to meet the child's ongoing needs, interests, and schedule; provided that this factor shall not be considered in any casewhere the court has determined that family violence has been committed by a parent;

(6) The physical health needs of the child;

(7) The emotional needs of the child;

(8) The safety needs of the child;

(9) The educational needs of the child;

(10) The child's need for relationships with siblings;

(11) Each parent's actions demonstrating that they allow the child to maintain family connections through family events and activities; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent;

(12) Each parent's actions demonstrating that they separate the child's needs from the parent's needs;

(13) Any evidence of past or current drug or alcohol abuse by a parent;

(14) The mental health of each parent;

(15) The areas and levels of conflict present within the family; and

(16) A parent's prior wilful misuse of the protection from abuse process under chapter 586 to gain a tactical advantage in any proceeding involving the custody determination of a minor. Such willful misuse may be considered only if it is established by clear and convincing evidence, and if it is further found by clear and convincing evidence that in the particular family circumstances the wilful misuse tends to show that, in

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