L.R.O. v. N.D.O.

475 P.3d 1167

L.R.O., Respondent/Plaintiff-Appellee,

v.N.D.O., Petitioner/Defendant-Appellant.

SCWC-19-0000446

Supreme Court of Hawai‘i.

NOVEMBER 5, 2020

Michael A. Glenn for petitioner

Scot Stuart Brower for respondent

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE CHANG, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

Our state's version of the Uniform Premarital Agreement Act (UPAA) provides that a premarital agreement (PMA) is enforceable unless one of the parties proves they did not execute it voluntarily. Hawai‘i Revised Statutes (HRS) § 572D-6(1) (2018). Petitioner N.D.O. (Wife) argued throughout the parties’ divorce proceeding that she involuntarily executed a PMA prior to her marriage to L.R.O. (Husband). We conclude that the family court did not err in rejecting that argument and by enforcing the PMA. However, to provide further guidance to the family courts, we adopt the California Supreme Court's test for voluntariness in PMAs under the UPAA. We further hold that Wife's other asserted points of error are meritless, and we affirm the judgment of the Intermediate Court of Appeals (ICA) and the Family Court of the First Circuit (family court).

II. BACKGROUND

This appeal arises from a Divorce Decree between parties Wife and Husband. In Wife's application for writ of certiorari, she argues that the family court erred by: (1) awarding full physical custody of the parties’ minor child to Husband based on the custody evaluator's allegedly biased opinion; (2) enforcing a PMA between the parties that Wife alleged was unconscionable and entered into involuntarily; and (3) failing to find that Husband abused the temporary restraining order (TRO) process to gain advantage in the custody dispute.

A. Family Court Proceedings

The facts of this case are complex, and Wife and Husband presented two drastically different versions of events. The following background facts are undisputed.

In 2013, Wife's aunt, J.D., who lived in Hawai‘i, approached Husband, who used to live in J.D.’s building, because she wanted to introduce Husband to her niece (Wife) who lived in Vietnam. After Husband and Wife electronically communicated for several months, J.D. and Husband traveled to Vietnam in December 2013; J.D. paid for Husband's flight. Husband met Wife in person for the first time on this trip, at which point Husband was 45 years old and Wife was 22 years old. Four months later, Husband returned to Vietnam and proposed to Wife, who accepted. Wife came to the United States in June 2014 on a K-1 fiancée visa, allowing her 90 days to marry Husband.

On August 13, 2014, the parties entered into the PMA,¹ which contained terms releasing the parties from "any alimony or support obligations." The PMA also provided that each spouse's property upon entry into the marriage would be treated as separate. Further, the PMA stated, "It is the intention of the husband in the event that he sells his current residence ... that any equity shall be used to finance another shared property with the wife and said equity will be considered shared and joint property." Husband and Wife were married the same day they signed the PMA by an officiant Husband hired using Craigslist.

Husband and Wife's only child together was born in Honolulu in May 2015. Both spouses acknowledged that there was discord in the home before and after the child's birth, and the police came to the couple's home several times. Each spouse alleged physical abuse at the hands of the other. Wife also alleged that Husband abused her emotionally and financially. During the marriage, Wife and the minor child spent approximately six months in Texas over the course of three separate trips, residing with Wife's aunt, D.D. Husband filed for divorce on August 25, 2016, while Wife was in Texas. On September 22, 2016, Husband petitioned for a TRO on behalf of himself, their child, and M.F.O., Husband's teenage son from a prior marriage; the TRO was granted.² Wife returned to Hawai‘i from Texas on September 29, 2016, and was served with the TRO at the airport, where Husband took custody of the child. On November 2, 2016, Husband stipulated to visitation between Wife and the minor child, removing the child from the TRO.

The family court³ appointed Dr. Reneau Kennedy as a custody evaluator tasked with investigating the family's situation and making a custody recommendation. Dr. Kennedy submitted a 112-page report.

1. Trial Testimony

a. Dr. Reneau Kennedy

Dr. Kennedy is a licensed psychologist in Hawai‘i. Dr. Kennedy's custody evaluation report was entered into evidence. She concluded that Husband "has a better sense of what the child needs and is focused on the child's best interest." Further, Dr. Kennedy stated, "[T]here is a question in my mind ... whether mother does have capacities that really focus on the best interest from a legal perspective[.]" Dr. Kennedy stated that she relied on interviews with the parents, the parents’ contacts, collateral data from subjects, and documents provided to her. Her ultimate recommendation was an 80/20 custody split in Husband's favor.

Dr. Kennedy testified that her report included information from neighbors and others indicating that Wife had, at times, left the minor child in the house alone for up to two hours at a time while she allegedly met with other men. Dr. Kennedy opined that, possibly as a result of being left alone, the child was "not on course" developmentally. Placement in a special program brought the child up to speed, but Dr. Kennedy indicated Wife was resistant to the program.

Dr. Kennedy also testified that, according to the child's preschool teacher, the child's demeanor differed based on which parent dropped him off: with Wife, the child was "clingy," "preverbal," and "often in diapers"; with Husband, the child "act[ed] age appropriate[ly]." Additionally, Wife sometimes kept the child home from school on the days she had custody, which Dr. Kennedy viewed as a failure to prioritize the child's education.

Regarding Wife's immigration status, Dr. Kennedy stated that Wife's "green card is pending based on her [Violence Against Women Act] claim." Dr. Kennedy's report states that in June 2018, Wife received a notice from United States Citizenship and Immigration Services (USCIS) that she was granted "deferred" action, giving her case "lower priority for removal" until September 14, 2019.⁴

Dr. Kennedy testified that she visited the residence of Wife and her boyfriend, S.A., to observe them with the child. Dr. Kennedy also separately interviewed S.A. in her home office.

On cross-examination, Dr. Kennedy testified that, although she interviewed J.D. on July 10, 2018, the notes from that interview were mistakenly omitted from her report. Dr. Kennedy indicated that J.D. acknowledged that Wife had several extramarital affairs. In addition, Dr. Kennedy stated that J.D. said negative things about Husband.

The following exchange occurred between Wife's counsel and Dr. Kennedy:

Q So, Dr. Kennedy, when you talked to mom about her concerns about father, what was one of the biggest concerns she said?

A I'll have to look.

Q You don't know off the top of your head what mother's biggest concern about father is?

A No.

Q Why not?

A Because there are multiple concerns --

Q Okay. Give me the top two –-

A And they are documented in my report.

Q Top 3?

A Well –-

Q You don't know any of them, do you?

A -- if I can refresh my memory?

....

Q It's very clear that you said "The following concerns about custody and parenting issues," the very first one you listed is that "He's an alcoholic with a temper"; isn't that right?

A That's what the report says.

....

Q Okay. Now in your interview with father –- all right. Now I'm gonna give you time on this one –- you show me one point, one point where you confronted him or asked him about his consumption of alcohol. And I'll wait ‘cause I am going to assert you never brought up the alcoholism with father ‘cause it's not –

....

A I haven't written that in my report -–

Q Thank you.

....

A I had a discussion with father about his drinking.

Q Okay. How come that's not in your report when you talk about what you talked about with father then?

A Simply because of all of the other information, all the other collaterals told me about the absence of father's alcohol abuse --

Q But --

A -- and his denial that he is an alcoholic.

Q Did he deny it in your report? Show us where.

A I have not put that in my report.

Q So why are you saying he has denied he's an alcoholic when it's not in this report?

A I don't put every word of my interviews with people in my reports.

Q Right. But this is a concern that mother had that's one -- the first one listed. Don't you think that's worth addressing later on?

A And I did with multiple people --

Q Right.

A -- who said that father is not an alcoholic.

....

Q Isn't it true, ma'am, that she specifically told you he would drink when he got home and he wouldn't stop ‘til he passed out at night and this happened almost every night? Isn't that what she told you?

A Never.

Q She never told you that?

A That is not her -- her information that she provided to me.

Dr. Kennedy went on to testify on cross-examination that she did not speak with any of Wife's other aunts because Wife did not list any others for Dr. Kennedy to interview.

Wife's counsel also cross-examined Dr. Kennedy with respect to an email that Husband sent to Wife on September 28, 2018 – after the court had granted him the TRO, but before Wife came back to Hawai‘i from Texas – promising to help Wife transition to living on her own.⁵ Dr. Kennedy testified that she believed Husband meant to follow through on the promises in his email, notwithstanding that the TRO he had already obtained would preclude him from doing so.

With respect to the status quo of the custody arrangements, on cross-examination, Dr. Kennedy and Husband's counsel had the following exchange:

Q What does mother describe the current time-share schedule as?

A I don't know. I have

...