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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

---o0o--- 

P.O., 

Respondent/Petitioner-Appellee, 

vs. 

J.S., 

Petitioner/Respondent-Appellant. 

SCWC-15-0000048 

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 

(CAAP-15-0000048; FC-P NO. 08-1-0162) 

APRIL 6, 2017 

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ. 

OPINION OF THE COURT BY POLLACK, J.

 This case addresses the manner in which the family 

court determined monthly child support for the Child of 

Petitioner JS (Father) and Respondent PO (Mother). Following a 

series of written and oral agreements between Mother and Father 

regarding child support, Father sought court review and 

modification of his monthly support obligation. The family 

Electronically Filed

Supreme Court

SCWC-15-0000048

06-APR-2017

08:16 AM
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court, citing in part Father’s failure to show a material change 

in circumstances, denied the request and set Father’s monthly 

payment at the same amount provided in the parties’ prior oral 

agreement. Father appealed the child support ruling, which the 

ICA affirmed. On certiorari to this court, Father contends that 

he is entitled to review of his child support obligation 

irrespective of changed circumstances and that the family court 

erred in determining his monthly payment without utilizing the 

Hawaiʻi Child Support Guidelines. 

 We hold that, pursuant to Hawaii Revised Statutes § 

576D-7(e) (2006), a responsible or custodial parent for which 

support has previously been ordered is entitled to a review of a 

child support order not more than once every three years without 

having to show a change in circumstances. We also hold that the 

family court is required by multiple provisions of the Hawaii 

Revised Statutes to use the Hawaiʻi Child Support Guidelines when 

it reviews the merits of a request for adjustment of a monthly 

support obligation. Thus, we vacate in part the rulings of the 

family court and the ICA and remand the case so that the family 

court may calculate Father’s support payment in accordance with 

these statutory requirements. 
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I. BACKGROUND 

Child was born to Mother and Father in October 2007. 

At the time Child was born, Father was employed as a 

professional football player. 

 On February 14, 2008, Mother filed a petition for 

paternity with the Family Court of the First Circuit (family 

court). The petition included a Hawaiʻi Child Support Guidelines 

Worksheet (Guidelines Worksheet) that included Father’s income, 

Mother’s income, monthly child care expenses, and health and 

dental care expenses for Child. The Guidelines Worksheet was 

prepared by Mother’s attorney, signed by both Mother and Father, 

and stated that Father’s payable child support obligation was 

calculated at $4,870 per month. 

 Following submission of the petition, Father and 

Mother, with the assistance of Mother’s attorney, entered into a 

stipulated agreement regarding custody, visitation, and child 

support.1

 On March 19, 2008, Father and Mother memorialized 

their agreement by filing a stipulation with the family court 

(2008 Stipulation). In the 2008 Stipulation, the parties agreed 

that Father would pay Mother $4,870 per month in child support 

 1

 Issues relating to custody and visitation are not raised on 

certiorari and will not be addressed further. 
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starting March 1, 2008. The 2008 Stipulation did not include a 

Guidelines Worksheet. 

 On January 20, 2010, Mother filed with the family 

court a Motion and Declaration to Modify Child Support. The 

motion included a Guidelines Worksheet that reflected the 

incomes of both Mother and Father. The Guidelines Worksheet was 

signed by Mother and calculated Father’s monthly child support 

obligation at $16,050. Father’s signature does not appear on 

the Guidelines Worksheet. 

On July 21, 2010, Father and Mother amended their 

child support agreement by filing a stipulation to modify the 

2008 Stipulation (2010 Stipulation). In the 2010 Stipulation, 

Father agreed to pay Mother $8,500 per month in child support 

and deposit $2,500 per month into a savings account for Child, 

effective June 2010. A Guidelines Worksheet was also not 

included with the 2010 Stipulation. 

In October 2010, Father was released from employment 

as a professional football player. By oral agreement in 

February 2011 (2011 Agreement), Mother and Father reduced 

Father’s monthly child support obligation to $3,500 in light of 

Father’s loss of employment. No written agreement was filed 

with the family court memorializing the reduction in Father’s 

child support payment. 
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In November 2012, Father married his current spouse. 

Father related that he depleted the savings accrued from his 

employment as a professional football player by the end of 2012. 

In explaining his depleted savings at trial, Father referred to 

an expenditure of $200,000 for his wedding and payment of 

various other debts and expenses. 

According to Father, as his funds started to dwindle, 

he realized that he could not continue to pay the previously 

agreed-upon $3,500 per month. Father testified that as a 

result, he initiated contact with Mother to reduce child support 

and the parties orally agreed to lower support towards the end 

of 2012. Father could not recall whether this agreement lowered 

support to $2,000 or $1,500 per month. Mother testified that 

she did not agree to further reduce child support in 2012 and 

that Father unilaterally decided to decrease support to $1,500 

per month without saying anything to her. In late 2012, Father 

began making monthly child support payments between $1,500 and 

$2,000. Towards the end of 2013, Father stopped paying child 

support. 

 Father testified that his spouse pays for all family 

living expenses because of his reduced savings. Father, who is 

a college graduate, indicated that he remains unemployed, citing 

a sports-related injury and a pending disability claim. 
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II. FAMILY COURT PROCEEDINGS 

On August 19, 2013, Father filed a Motion for Relief 

after Judgment or Order and Declaration (Motion for Relief) 

requesting that the family court recalculate his child support 

obligation based on the parties’ current incomes. On September 

18, 2013, Mother filed a motion to award her sole legal custody 

of Child, enforce the 2010 Stipulation, and for attorneys’ fees.2

On October 7, 2013, pursuant to an agreement between 

the parties, the family court ordered that (1) all issues raised 

by Mother and Father would be tried together, (2) the parties 

were to engage in mediation, and (3) beginning in October 2013 

and going forward, Father would pay child support in the amount 

of $3,500 per month pending resolution of the motions at 

mediation or trial (Pretrial Order).3

The family court held a six-day trial pertaining to 

the parties’ motions that began on June 16, 2014, and concluded 

on September 16, 2014. The court heard testimony on the matter 

of child support as stated above.4

 On December 30, 2014, the 

family court entered an Order Re: Trial (Trial Order) 

 2

 The Honorable Jennifer L. Ching presided in the proceedings in 

this case. 

3

 There is no indication in the Pretrial Order that the Guidelines 

were used to calculate the $3,500 monthly support obligation. 

4

 The family court also received testimony relating to other issues 

not before this court. 
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determining Father’s child support as $3,500 per month, 

effective February 1, 2011. 

 In its Findings of Fact and Conclusions of Law, the 

court found that on or about February 2011, the parties orally 

agreed to set child support at $3,500 per month. The court 

found that Father’s testimony regarding an alleged agreement in 

2012 to lower the amount to $2,000 or $1,500 per month lacked 

credibility. 

 The family court also found that Father was a college 

graduate and had not sought work following his 2010 employment 

termination. However, the court made no findings regarding 

Father’s potential earning capacity, Father’s assets, or any 

joint assets held with Father’s spouse. 

 With regard to Father’s request for modification of 

his monthly child support obligation, the family court found 

that Father “failed to meet his burden of proof” to show that 

the $3,500 support obligation that the parties agreed to should 

be modified. The court also found that there had been no 

“material change of circumstances” from the 2011 Agreement, 

which set child support at $3,500 per month.5 Based on these 

 5

 The relevant findings of fact (FOFs) state as follows: 

 52. Father failed to meet his burden of proof to show 

that the $3,500 monthly child support agreed to should be 

modified, or the amount of any warranted modification. 

(continued. . .) 
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findings, the court determined that Father owed Mother $64,490 

in past due child support through January 2015. 

 In its conclusions of law, the family court quoted the 

requirement of Hawaii Revised Statutes (HRS) § 584-15(e) (2006) 

that the Hawaiʻi Child Support Guidelines (Guidelines) were to be 

utilized in determining the amount to be paid by a parent for 

support of a child. However, there is no indication in its 

findings of fact or conclusions of law that the family court 

applied the Guidelines in considering Father’s support 

obligation. Rather, the court concluded that Father had not 

proved that the $3,500 per month amount agreed to by the parties 

in the 2011 Agreement and in the Pretrial Order should be 

modified and that it was “appropriate and fair” that support be 

set at that amount.6

 

(. . .continued) 

 53. There has not been any material change of 

circumstances from the time when Father agreed to child 

support in the amount of $3,500 per month. 

6

 The relevant conclusions of law (COLs) state the following: 

 7. Father has not proven that the $3,500 per month 

child support that was agreed to by the parents (in 

approximately December of 2010); and agreed to and ordered 

in the [Pretrial Order], should be modified. 

 8. It is appropriate and fair that Father's monthly 

child support commencing February 1, 2011, and his current 

monthly child support, be $3,500. 
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The family court entered an Order Re: Child Support 

Arrears on January 21, 2015 (Arrears Order), providing for 

$64,490 in past due child support. 

III. ICA PROCEEDINGS 

 Father appealed the Trial Order and Arrears Order to 

the Intermediate Court of Appeals (ICA),7

 arguing that the family 

court erred when it denied his request for child support 

modification, set monthly child support in the amount of $3,500 

effective February 1, 2011, and concluded that Father owed 

Mother $64,490 in child support arrears. Specifically, Father 

submitted that the family court had failed to calculate his 

monthly child support obligation using the Guidelines as 

required by the Hawaii Revised Statutes. Father also contended 

that he had made a sufficient showing to receive a reduction of 

his monthly child support payment.8

In its June 15, 2016 published opinion (Opinion), the 

ICA determined that the family court had not erred in rejecting 

 7

 At oral argument before this court, it was disclosed that Father 

stopped paying monthly child support pending appeal of this case. Oral 

Argument at 42:15-41, PO v. JS, SCWC-15-0000048 (2017), 

http://oaoa.hawaii.gov/jud/oa/17/SCOA_020217_SCWC_15_48.mp3. Testimony at 

trial suggests that Father’s last support payment was made in late 2013. We 

observe that there was no stay entered by the family court authorizing 

cessation of child support payments. 

8

 Additionally, Father argued that Mother should be barred from 

requesting past due child support under the principles of laches and/or 

equitable estoppel. The ICA rejected this argument, PO v. JS, 138 Hawai#i 

109, 123, 377 P.3d 50, 64 (App. 2016), and because Father has not raised it 

on certiorari, it is not further addressed. 
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Father’s request for child support modification. PO v. JS, 138 

Hawai#i 109, 122, 377 P.3d 50, 63 (App. 2016). The ICA quoted 

Davis v. Davis, 3 Haw. App. 501, 506, 653 P.2d 1167, 1170 

(1982), for the proposition that a party seeking to modify an 

existing child support obligation must show that there has been 

a “substantial and material change in the relevant circumstances 

so as to permit consideration of the modification request.” PO 

v. JS, 138 Hawai#i at 122, 377 P.3d at 63. The ICA considered 

the most recently enforceable child support agreement by which 

to measure changed circumstances to be the 2011 Agreement to 

reduce Father’s payment to $3,500 per month.9

 Id. The ICA 

agreed with the family court’s determination that Father’s 

wedding expenses and debt payments in 2012 did not constitute a 

material change in circumstances sufficient to warrant a 

modification of the child support amount set by the 2011 

Agreement. Id. 

 The ICA then addressed Father’s contention that the 

family court should have utilized the Guidelines in setting his 

monthly child support obligation. Id. at 122-23, 377 P.3d at 

63-64. The ICA cited HRS § 571-52.5 (2006), which requires the 

 9

 The ICA noted Father’s testimony that the parties had agreed to 

further reduce child support in 2012, but stated that it would not reverse 

the family court’s finding that Father’s testimony on this issue was not 

credible because it was supported by substantial evidence in the record and 

not clearly erroneous. PO v. JS, 138 Hawai#i at 121, 377 P.3d at 62. 
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court to use the Guidelines when establishing or modifying a 

child support order “except when exceptional circumstances 

warrant departure.” Id. The ICA concluded that the family 

court could have declined to use the Guidelines because it found 

that the existence of the 2011 Agreement to reduce child support 

was an “exceptional circumstance.” Id. at 123, 377 P.3d at 64. 

Thus, the ICA could not “conclude that enforcing the February 

2011 Agreement without reliance on the Guidelines was a manifest 

abuse of discretion.” Id. The ICA also held that the family 

court did not abuse its discretion in setting Father’s past due 

child support at $64,490. Id. at 123-24, 377 P.3d at 64-65. 

 Based on separate errors not raised on certiorari to 

this court,10 the ICA vacated in part the family court’s Trial 

Order and Arrears Order and remanded the case for proceedings 

consistent with its Opinion. Id. at 124, 377 P.3d at 65. 

IV. STANDARDS OF REVIEW 

The family court’s [findings of fact (FOFs)] are reviewed 

on appeal under the “clearly erroneous” standard. A FOF is 

clearly erroneous when (1) the record lacks substantial 

evidence to support the finding, or (2) despite substantial 

evidence in support of the finding, the appellate court is 

nonetheless left with a definite and firm conviction that a 

mistake has been made. “Substantial evidence” is credible 

 10 The ICA held that the family court erred when it (1) waived the 

psychologist-client privilege held by Child without determining whether 

waiving the privilege and allowing the psychologist to testify at trial was 

in the best interests of Child, and (2) concluded that Father had not 

demonstrated a material change in circumstances warranting a change of the 

parties’ visitation schedule. PO v. JS, 138 Hawai#i at 118, 120, 377 P.3d at 

59, 61. 
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evidence which is of sufficient quality and probative value 

to enable a person of reasonable caution to support a 

conclusion. 

Kakinami v. Kakinami, 127 Hawaiʻi 126, 136, 276 P.3d 695, 705 

(2012) (quoting Fisher v. Fisher, 111 Hawaiʻi 41, 46, 137 P.3d 

355, 360 (2006)). A family court’s conclusions of law are 

reviewed de novo. Id. 

V. DISCUSSION 

 On certiorari, Father argues that he has the right 

under Hawaiʻi law to a review of his child support obligation 

once every three years irrespective of changed circumstances and 

that the family court erred in applying a different standard. 

Father also contends that in considering his request for 

modification, the family court was required to calculate his 

support payment by utilizing the Guidelines. Because the family 

court did not use the Guidelines, Father submits that the court 

erred in setting child support at $3,500 per month as of 

February 1, 2011. Mother responds that the family court acted 

reasonably in declining to reduce Father’s monthly child support 

payment. 

A. Request for Review and Modification of Child Support Order 

 Father first contends that Hawaiʻi law entitles him to 

a review of his monthly child support obligation once every 

three years without having to show a change in circumstances. 
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Chapter 576D of the Hawaii Revised Statutes, entitled 

“Child Support Enforcement,” establishes the Child Support 

Enforcement Agency (CSEA), the Guidelines, and other matters 

specific to child support orders. HRS § 576D-7(e) provides the 

right to petition the family court for a review and modification 

of a child support order: 

The responsible or custodial parent for which child support 

has previously been ordered shall have a right to petition 

the family court or the child support enforcement agency 

not more than once every three years for review and 

adjustment of the child support order without having to 

show a change in circumstances. The responsible or 

custodial parent shall not be precluded from petitioning 

the family court or the child support enforcement agency 

for review and adjustment of the child support order more 

than once in any three-year period if the second or 

subsequent request is supported by proof of a substantial 

or material change of circumstances. 

HRS § 576D-7(e) (2006) (emphases added). Thus, the responsible 

or custodial party is entitled to a review and reassessment of a 

child support order once every three years “without having to 

show a change in circumstances.” Id.; see also HRS § 576E-14(d) 

(2006) (same in administrative child support proceedings); HRS § 

580-47(e) (2006) (same following divorce proceedings). An 

individual who seeks review of a child support order more than 

once “in any three-year period” may do so provided the request 

is supported by proof of a substantial or material change in 

circumstances.11 HRS § 576D-7(e). 

 11 Unlike in Waldecker v. O’Scanlon, where this court held that a 

petitioner need not demonstrate a material change in circumstances to obtain 

(continued. . .) 
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 The right to review of a child support order not more 

than once every three years was included in Hawaii’s child 

support enforcement framework by legislative enactment in 1997. 

See 1997 Haw. Sess. Laws Act 293, § 28 at 664-65. This right 

was codified at HRS § 576D-7(e) with respect to judicial child 

support enforcement, HRS § 576E-14(d) regarding administrative 

child support enforcement, and HRS § 580-47(e) as it relates to 

child support orders and divorce proceedings. See supra. Thus, 

as a result of these 1997 amendments, an individual is entitled 

to receive review of an existing child support order without 

showing changed circumstances “not more than once every three 

years.” HRS § 576D-7(e); HRS § 576E-14(d); HRS § 580-47(e). 

 In this case, the family court found that there had 

been no “material change of circumstances” from the parties’ 

oral 2011 Agreement to set support at $3,500 per month to the 

August 19, 2013 filing of Father’s Motion for Relief, and, as a 

result, it concluded that modification was not appropriate. 

Likewise, the ICA in its Opinion in this case relied on Davis v. 

 

(. . .continued) 

modification of a child custody order, the child support modification 

statutes require a showing of a substantial or material change in 

circumstances when review is sought more than once in any three-year period 

and explicitly reject such a requirement when review is sought not more than 

once every three years. 137 Hawaiʻi 460, 467-70, 375 P.3d 239, 246-49 (2016) 

(explaining that child custody statute did not expressly require party 

seeking review and modification of custody order to demonstrate material 

change in circumstances and that requirement to do so as developed by caselaw 

was inconsistent with statute). 
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Davis, 3 Haw. App. 501, 506, 653 P.2d 1167, 1170 (1982), and 

determined that Father was required to show a substantial change 

in circumstances from the 2011 Agreement to receive review of 

his request for reduction in child support. PO v. JS, 138 

Hawai#i 109, 122, 377 P.3d 50, 63 (App. 2016). Neither the 

family court nor the ICA cited or otherwise acknowledged the 

impact of HRS § 576D-7(e) on Father’s right to review of his 

monthly support payment. 

 There are two possible rationales for the rulings of 

the family court and the ICA. First, the family court, like the 

ICA, may have relied on the ICA’s 1982 decision in Davis, which 

held that a request for modification of a child support order 

must be based on “a substantial and material change in the 

relevant circumstances which were before the court when it made 

the original order.”12 3 Haw. App. at 505-06, 653 P.2d at 1170 

(citing HRS § 580-47(c) (1976, as amended)). However, any 

reliance on Davis in this case would be misplaced. Davis was 

decided by the ICA 15 years before the 1997 legislative 

enactment that amended the standard for child support 

modification requests, see supra, and there is no indication 

 12 The family court did not affirmatively cite to Davis, but it 

concluded in its findings of fact that there had “not been any material 

change of circumstances from the time when Father agreed to child support in 

the amount of $3,500 per month.” 
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from the ICA’s Opinion that the impact of these amendments was 

recognized.13 To the extent that the family court and the ICA 

may have relied exclusively on Davis to reject Father’s request 

for child support modification and failed to consider the effect 

of the enactment of HRS § 576D-7(e) on this case, each held 

Father to an incorrect standard with respect to review of 

requests for child support modification. 

 Alternatively, the family court and the ICA may have 

considered that the oral 2011 Agreement to reduce monthly 

support to $3,500 constituted the parties’ most recent “child 

support order” and determined that Father’s August 19, 2013 

Motion for Relief required him to show “a substantial or 

material change of circumstances” because the motion was a 

 13 It is noted that in Jaylo v. Jaylo, the ICA acknowledged the 

right of a custodial or responsible parent to seek review of a child support 

order once every three years without having to show a change in 

circumstances. 124 Hawaiʻi 488, 498–99, 248 P.3d 1219, 1229–30 (App. 2011), 

vacated on other grounds, 125 Hawaiʻi 369, 262 P.3d 245. However, in several 

other decisions following the 1997 enactment of HRS §§ 576D-7(e), 576E-14(d), 

and 580-47(e), the ICA has cited to Davis for the proposition that “[a] 

petition to modify an order for child support cannot be based on the same set 

of facts that were before the court when the original order was made” and 

that “[t]here must have been substantial and material change in relevant 

circumstances which were before the court when it made the original order.” 

Rao v. Rao, 121 Hawaiʻi 541, 221 P.3d 519 (App. 2009) (mem.); see also Hoernig 

v. Hoernig, 129 Hawaiʻi 427, 301 P.3d 1268 (App. 2013) (SDO); Jackson v. 

Jackson, 137 Hawaiʻi 206, 366 P.3d 1085 (App. 2016) (SDO). It is noted that 

in none of these cases does the record indicate that a request to modify 

child support had been made within the three years preceding the request at 

issue on review, which would have otherwise affected an analysis under HRS § 

576D-7(e). To the extent that these cases imply that a party cannot rely on 

HRS §§ 576D-7(e), 576E-14(d), and 580-47(e) to request review of a support 

order not more than once every three years absent a showing of changed 

circumstances, they are incorrect. 
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“subsequent request” for adjustment of support within “any 

three-year period.” HRS § 576D-7(e).14 However, as noted, no 

reference was made to HRS § 576D-7(e) or its substantive 

principles in the family court’s rulings or in the ICA’s 

Opinion. 

 In any event, Father and Mother’s oral 2011 Agreement 

to modify Father’s child support obligation is not relevant to 

an analysis of the right to review of a “child support order” 

under HRS § 576D-7(e). The 2011 Agreement was not memorialized 

in writing and filed with the family court. As such, it does 

not constitute a “child support order” within the meaning of HRS 

§ 576D-7(e). See HRS § 576D-1 (2006) (defining “order of 

support” as “a judgment, decree, or order, whether temporary, 

final, or subject to modification, issued by a court or an 

administrative agency of competent jurisdiction, for the support 

and maintenance of a child”); HRS § 576E-1 (2006) (defining 

“support order” for purposes of administrative child support 

proceedings as “an obligation determined by a court or duly 

authorized administrative agency, for the maintenance of a 

dependent child”); HRS § 576B-102 (2006) (defining “child 

 14 Because the July 21, 2010 Stipulation filed with the family 

court, rather than the oral 2011 Agreement, is the relevant “child support 

order” for purposes of HRS § 576D-7(e), we do not address whether a party who 

files an initial request for review and adjustment of a “child support order” 

within the three-year period immediately following entry of that order must 

show a “substantial or material change of circumstances” pursuant to the 

statute. See HRS § 576D-7(e). 
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support order” for purposes of Uniform Interstate Family Support 

Act as a “support order” for a child, and, in turn, defining 

“support order” as a “judgment, decree, order, decision, or 

directive, whether temporary, final, or subject to modification, 

issued in a state or foreign country for the benefit of a 

child”). Accordingly, the 2010 Stipulation filed with and 

approved by the family court constituted the relevant “child 

support order” for purposes of HRS § 576D-7(e), and the family 

court and the ICA erred to the extent that they may have 

determined otherwise. 

 As recounted, Father and Mother’s 2010 Stipulation 

modifying their respective support, visitation, and custody 

rights and obligations was filed with the family court on July 

21, 2010. The record does not indicate that Father ever 

submitted to the family court a request for review of his child 

support obligation before he filed his August 19, 2013 Motion 

for Relief. Thus, pursuant to HRS § 576D-7(e), because the 

August 19, 2013 Motion for Relief sought review and adjustment 

of a “child support order,” which in this case was entered on 

July 21, 2010, Father was entitled to a review and reassessment 

of his monthly support payment without having to show a change 

in circumstances. As a result, the family court erred to the 

extent that it conditioned review of Father’s support obligation 

on his ability to show a material change in circumstances, and 
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the ICA erred when it affirmed this ruling of the family court. 

PO v. JS, 138 Hawai#i at 122, 124, 377 P.3d at 63, 65. 

B. Use of Child Support Guidelines 

 Father also contends the family court erred when it 

failed to use the Guidelines in determining his monthly child 

support obligation. 

 The Hawai#i Child Support Guidelines are promulgated by 

the Family Courts of Hawai#i and are used by the family courts to 

determine monthly child support. See HRS § 576D-7(a) (2006). 

The Guidelines contain substantive rules and principles relating 

to calculation of support and include various appendices; 

Appendix A includes the “Child Support Guidelines Worksheet” 

(Guidelines Worksheet), which is used to determine the initial 

calculation of a parent’s monthly support obligation. Haw. 

State Judiciary, 2010 Hawai#i Child Support Guidelines app. A, 

http://www.courts.state.hi.us/docs/form/maui/2CE248.pdf (last 

visited Mar. 16, 2017). 

 There are several sources of authority that set forth 

a family court’s obligation to calculate monthly child support 

using the Guidelines. HRS chapter 571, entitled “Family 

Courts,” governs the family courts in general. HRS § 571-52.5 

provides in relevant part as follows: 

When the court establishes or modifies the amount of child 

support required to be paid by a parent, the court shall 
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use the guidelines established under section 576D-7, except 

when exceptional circumstances warrant departure. 

HRS § 571-52.5 (2006) (emphasis added). Therefore, the family 

courts are required to use the Guidelines when establishing or 

modifying child support unless exceptional circumstances warrant 

departure. Id. 

 Relatedly, HRS chapter 576D provides that “[t]he 

family court . . . shall establish guidelines to establish the 

amount of child support when an order for support is sought or 

being modified.” HRS § 576D-7(a). Additionally, HRS § 576D7(b)(5) provides that “[t]he guidelines shall be . . . 

considered by the [family court] judges in the establishment of 

each child support order.”15 HRS § 576D-7(b)(5) (emphases 

added). 

 Use of the Guidelines is also required by HRS chapter 

584, the “Uniform Parentage Act.” Chapter 584 “is concerned 

specifically and exclusively with actions to establish the 

paternity of a child and to obtain child support, reimbursement 

 15 HRS chapter 576D was enacted in 1986 to bring the State of Hawaiʻi 

into compliance with recently enacted federal law that required the states to 

(1) establish child support guidelines, and (2) make the guidelines available 

to all judges who have the power to determine child support, though the 

guidelines “need not be binding upon such judges.” See Child Support 

Enforcement Amendments of 1984, Pub. L. No. 98-378, 98 Stat. 1305 (1984) 

(codified as amended at 42 U.S.C. § 667). However, in enacting chapter 576D, 

the Hawaiʻi legislature departed from its federal counterpart and made the use 

of the Guidelines by family court judges mandatory rather than discretionary. 

See 1986 Haw. Sess. Laws Act 332, § 2 at 698 (“The guidelines shall be . . . 

[a]pplied statewide.”). 
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and other relief.” Child Support Enf’t Agency v. Doe, 98 Hawaiʻi 

58, 63, 41 P.3d 720, 725 (App. 2001) (comparing HRS chapters 571 

and 584). HRS § 584-15(e) provides in relevant part: 

In determining the amount to be paid by a parent for 

support of the child and the period during which the duty 

of support is owed, a court enforcing the obligation of 

support shall use the guidelines established under section 

576D-7. 

HRS § 584-15(e) (2006) (emphases added). 

 Thus, the statutory framework relating to child 

support mandates that the family courts utilize the Guidelines 

in setting and modifying child support orders. Indeed, in its 

COL 6, the family court acknowledged that HRS § 584-15(e) 

required it to administer the Guidelines whenever it 

“determin[es] the amount to be paid by a parent for support of 

[a] child.” However, there is no indication that the family 

court utilized the Guidelines in determining Father’s monthly 

support obligation in the Trial Order. The family court also 

made no mention of the Guidelines in its Findings of Fact and 

Conclusions of Law, except to reference testimony that the 

Guidelines were not used in setting the support amount in the 

2010 Stipulation. The Pretrial Order setting Father’s support 

obligation at $3,500 per month pending resolution of the case at 

trial also makes no reference to the Guidelines. Further, the 

family court made no findings with respect to key factors 

utilized by the Guidelines to calculate child support. For 
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example, the court did not make findings regarding Mother’s 

income, Father’s earning capacity,16 or the needs of Child. In 

fact, rather than using the Guidelines or its underlying 

factors, the family court in COL 7 appears to have justified its 

child support determination of $3,500 per month based on the 

parties’ 2011 Agreement and Father’s agreement to pay that sum 

pending resolution at mediation or trial.17

 Father’s Motion for Relief in this case specifically 

requested that the family court conduct a recalculation of child 

support based on the parties’ current incomes. The family court 

did not apply the Guidelines, and its failure to do so deprived 

Father of a calculation of his monthly support obligation using 

the “wisdom of . . . the Guidelines.” Mack v. Mack, 7 Haw. App. 

171, 172, 749 P.2d 478, 479 (1988) (determining that family 

court’s decision not to administer Guidelines in setting support 

amount because the children were partially self-sufficient 

 16 We note that in determining gross income for calculation of child 

support, the Guidelines permit the family court to use “imputed income” when 

“a parent is not employed full-time or is employed below full earning 

capacity.” Haw. State Judiciary, 2010 Hawai#i Child Support Guidelines 23. 

When the parent is unemployed or underemployed for reasons other than caring 

for the child, the parent’s income may be determined and imputed by the 

family court according to the parent’s “income capacity in the local job 

market” and “considering both the reasonable needs of the child(ren) and the 

reasonable work aspirations of the parent.” Id. 

17 In COL 7, the family court determined that “Father has not proven 

that the $3,500 per month child support that was agreed to by the parents (in 

approximately December of 2010); and agreed to and ordered in the [Pretrial 

Order], should be modified.” 
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adults was wrong). Additionally, the failure of the family 

court to apply the Guidelines rendered the child support award 

in essence unreviewable, as there is no meaningful way to 

evaluate how the amount was determined or whether it was 

correctly calculated. See Gordon v. Gordon, 135 Hawaiʻi 340, 

350-51, 350 P.3d 1008, 1018-19 (2015) (family court’s failure to 

make adequate findings on the record did not permit meaningful 

appellate review of family court’s division of marital estate). 

Thus, the family court erred when it determined Father’s monthly 

support obligation without using the Guidelines as required by 

statute. 

C. Exceptional Circumstances 

 As stated, the family court must utilize the 

Guidelines in establishing or modifying child support “except 

when exceptional circumstances warrant departure.” HRS § 571-

52.5; see also Haw. State Judiciary, 2010 Hawai#i Child Support 

Guidelines 11, http://www.courts.state.hi.us/docs/form/

maui/2CE248.pdf (last visited Mar. 16, 2017) (detailing that the 

family court may deviate from the support amount calculated 

using the Guidelines Worksheet upon a showing of “exceptional 

circumstances”). Courts of this jurisdiction have found 

“exceptional circumstances” to encompass a broad variety of 
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factual scenarios.18 The Guidelines also give examples of when 

“exceptional circumstances” may or may not exist and grant broad 

discretion to the family court to find the existence of “other 

exceptional circumstances” beyond those enumerated. Haw. State 

Judiciary, 2010 Hawai#i Child Support Guidelines 11-13 (for 

example, identifying as enumerated “exceptional circumstances” 

the extraordinary needs of the child or other parent, other 

payments made on behalf of the child or other parent, and a 

parent’s inability to earn income). 

 Pursuant to HRS § 571-52.5 and the Guidelines, the 

existence of exceptional circumstances may allow for deviation 

from the support amount calculated using the Guidelines 

Worksheet.19 However, exceptional circumstances do not excuse a 

 18 See, e.g., Child Support Enf’t Agency v. Doe, 104 Hawai#i 449, 

457-58, 91 P.3d 1092, 1100-01 (App. 2004) (support of additional legal 

children may constitute an exceptional circumstance); Child Support Enf’t 

Agency v. Doe, 98 Hawai#i 58, 65, 41 P.3d 720, 727 (App. 2001) (monthly income 

that would result in a “computation higher than the reasonable needs of the 

children based on the relevant standard of living” may constitute an 

exceptional circumstance (quoting Nabarrete v. Nabarrete, 86 Hawai#i 368, 371, 

949 P.2d 208, 211 (App. 1997))); Nabarrete, 86 Hawai#i at 371, 949 P.2d at 211 

(adult child’s own income may reduce his or her “reasonable needs” and may 

therefore constitute an exceptional circumstance); Child Support Enf’t Agency 

v. Mazzone, 88 Hawaiʻi 456, 462, 967 P.2d 653, 659 (App. 1998) (“leav[ing] 

open” the question of whether a difference in cost of living between Hawai#i 

and child’s present state of residence constituted an exceptional 

circumstance); Jaylo v. Jaylo, 124 Hawaiʻi 488, 498–99, 248 P.3d 1219, 1229–30 

(App. 2011) (physical disability may constitute an exceptional circumstance), 

vacated on other grounds, 125 Hawaiʻi 369, 262 P.3d 245; Doe v. Roe, 85 

Hawai#i 151, 162, 938 P.2d 1170, 1181 (App. 1997) (private education expenses 

may, in certain circumstances, constitute exceptional circumstances). 

19 In its Opinion, the ICA noted a possible inconsistency in the 

child support statutory framework because HRS § 571-52.5 grants explicit 

(continued. . .) 
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failure to use the Guidelines Worksheet. The language of HRS § 

571-52.5 states that exceptional circumstances may “warrant 

departure,” which presumes that the Guidelines Worksheet was 

utilized in the first place. HRS § 571-52.5; see also Matsunaga 

v. Matsunaga, 99 Hawaiʻi 157, 167, 53 P.3d 296, 306 (App. 2002) 

(noting that “[p]resumptively, the amount of child support 

necessary . . . is the total amount computed according to [the 

Guidelines]” and considering whether exceptional circumstances 

warranted deviation); Child Support Enf’t Agency v. Mazzone, 88 

Hawaiʻi 456, 462, 967 P.2d 653, 659 (App. 1998) (in cases of 

alleged “exceptional circumstances,” “[t]he amount calculated 

pursuant to [the Guidelines] is presumptively the amount that 

should be ordered and the party seeking a deviation from it has 

 

(. . .continued) 

permission to deviate from the Guidelines based on “exceptional 

circumstances,” while HRS §§ 584-15(e) and 576D-7(b)(5) do not. PO v. JS, 

138 Hawai#i at 122-23, 377 P.3d at 63-64. Although departure from the 

Guidelines based on “exceptional circumstances” is not expressly provided for 

by HRS §§ 584-15(e) and 576D-7, the Guidelines in effect at the time this 

case was decided contain an optional “Exceptional Circumstances Form,” which 

allows parties to request a deviation from the support amount tabulated on 

the Guidelines Worksheet. See Haw. State Judiciary, 2010 Hawai#i Child 

Support Guidelines app. C. An optional “exceptional circumstances” section 

appears to have been included within the Guidelines since at least 1989. 

See, e.g., Richardson v. Richardson, 8 Haw. App. 446, 447, 808 P.2d 1279, 

1280 (1991) (describing 1988 and 1989 Guidelines). Thus, the only 

“inconsistency” between these statutes pertains to the source of the 

authority for deviating from the support amount calculated using the 

Guidelines Worksheet upon a showing of “exceptional circumstances.” Under 

HRS § 571-52.5, the ability to deviate from this amount is authorized by the 

statute itself; under HRS §§ 584-15(e) and 576D-7, in contrast, the authority 

for such deviation comes from the Guidelines whose promulgation and usage the 

child support statutes require. 
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26 

the burden of proof”). The Guidelines likewise permit 

“deviation” based on exceptional circumstances, and the 

Guidelines’ requirement that the family court make factual 

findings on the “amount of support that would have been required 

as calculated using [the Guidelines Worksheet]” further 

demonstrates that even in cases of exceptional circumstances, 

the court must first calculate a support amount utilizing the 

Guidelines Worksheet. Haw. State Judiciary, 2010 Hawai#i Child 

Support Guidelines 11 (also noting that in cases of exceptional 

circumstances, the parent seeking deviation has the burden of 

proving that the circumstances “warrant a departure from the 

child support as calculated by the [Guidelines Worksheet]”). 

Therefore, even when “exceptional circumstances” exist within 

the meaning of HRS § 571-52.5 and the Guidelines, the family 

court is initially required to use the Guidelines Worksheet to 

determine the amount of the child support obligation. 

 In its Opinion, the ICA theorized that the existence 

of “exceptional circumstances,” such as the parties’ 2011 

Agreement, excused the family court from administering the 

Guidelines pursuant to HRS § 571-52.5. PO v. JS, 138 Hawai#i at 

123, 377 P.3d at 64. However, as stated, the family court was 

first required to utilize the Guidelines Worksheet and compute a 

support amount. Only after determining the support amount using 

the Guidelines Worksheet may the court consider whether 
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27 

exceptional circumstances permit deviation from that amount. If 

the court concludes that such circumstances exist, it must then 

make findings of fact with respect to both the support amount 

determined by the Guidelines Worksheet and the exceptional 

circumstance(s) that would justify deviation from this amount. 

See Haw. State Judiciary, 2010 Hawai#i Child Support Guidelines 

11 (required findings of fact in cases of exceptional 

circumstances must include “the amount of support that would 

have been required as calculated using [the Guidelines 

Worksheet]” and “findings . . . regarding the exceptional 

circumstances”). In this case, the family court did not utilize 

the Guidelines Worksheet to calculate a support amount, nor did 

it include oral or written findings identifying any exceptional 

circumstances. Therefore, the ICA erred in concluding that the 

existence of “exceptional circumstances” permitted the family 

court to forgo use of the Guidelines. PO v. JS, 138 Hawai#i at 

123, 377 P.3d at 64. 

D. Child Support Arrears 

 In addition to contending that the family court erred 

because it failed to use the Guidelines, Father argues that the 

ICA also erred when it upheld the family court’s ruling setting 

support at $3,500 per month as of February 1, 2011. 

 Mother and Father each testified at trial that they 

agreed to a reduction in child support in February 2011, and 
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28 

Father has not contested the validity of the 2011 Agreement on 

appeal. The family court found in its Findings of Fact and 

Conclusions of Law that the parties agreed to reduce child 

support to $3,500 in February 2011, and this finding is 

supported by substantial evidence and not clearly erroneous. 

Further, appellate courts are required to “give full play to the 

right of the fact finder to determine credibility,” State v. 

Valdivia, 95 Hawaiʻi 465, 471, 24 P.3d 661, 667 (2001) (quoting 

State v. Jenkins, 93 Hawaiʻi 87, 99, 997 P.2d 13, 25 (2000)), and 

the family court’s finding that Father’s testimony regarding a 

reduction of support in late 2012 was not credible is supported 

by substantial evidence and not clearly erroneous. Father also 

agreed in the Pretrial Order to pay $3,500 per month in child 

support pending resolution of the parties’ motions at mediation 

or trial. We therefore affirm the family court’s Arrears Order 

calculating Father’s past due child support as $64,490 through 

and including January 2015. 

VI. CONCLUSION 

 For the reasons discussed, the family court erred in 

failing to use the Guidelines to calculate Father’s child 

support obligation and by requiring Father to show a material 

change in circumstances to obtain modification of his monthly 

payment. Likewise, the ICA erred in affirming these rulings. 
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29 

 On remand, the family court is required to utilize the 

Guidelines in evaluating Father’s request to modify his monthly 

support obligation. See HRS § 576D-7(b)(5); HRS § 584-15(e); 

HRS § 571-52.5. After calculating the amount of monthly support 

using the Guidelines Worksheet, the family court may deviate 

from this amount if it finds the existence of exceptional 

circumstances within the meaning of the Guidelines and 

applicable law. In accordance with the Guidelines, such a 

deviation would require the family court to make written or oral 

findings of fact regarding the support amount from the 

Guidelines Worksheet and the applicable exceptional 

circumstances. See HRS § 571-52.5; see also Haw. State 

Judiciary, 2010 Hawai#i Child Support Guidelines 11.20

 Therefore, the family court’s Trial Order, which was 

vacated in part by the ICA on other grounds, is also vacated 

with respect to its determination of Father’s monthly child 

support obligation. The family court’s Arrears Order, which was 

 20 The Guidelines further permit the family court to require a 

parent to “convert [to cash] all or some portion of” the parent’s assets for 

payment of support when the parent has inadequate income to meet a child 

support obligation. Haw. State Judiciary, 2010 Hawai#i Child Support 

Guidelines 21; see also Child Support Enf’t Agency v. Roe, 96 Hawai#i 1, 6, 25 

P.3d 60, 65 (2001) (noting that “the value of Father’s properties may have 

been relevant” in calculating support based on provision of 1994 Hawai#i Child 

Support Guidelines stating that when “a parent has inadequate income to meet 

his/her support obligation but owns assets, he/she may be required to convert 

all or some portion of said assets to cash for payment of support” (internal 

quotations omitted)). We note that on remand this provision may be relevant.
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vacated in part by the ICA on other grounds, is affirmed as to 

its determination that Father owes Mother $64,490 in past due 

child support through and including January 2015. The ICA’s 

July 13, 2016 Judgment on Appeal is (1) vacated as to its 

affirmance of the family court’s child support determination in 

the Trial Order and (2) affirmed as to the family court’s 

Arrears Order. Accordingly, this case is remanded to the family 

court for further proceedings consistent with this opinion. 

Steven L. Hartley, 

Elsa F. M. McGehee, and 

Elena L. Bryant 

for petitioner 

Steven J. Kim, 

Courtney N. Naso, and 

Candra S. Rivers 

for respondent 

/s/ Mark E. Recktenwald 

/s/ Paula A. Nakayama 

/s/ Sabrina S. McKenna 

/s/ Richard W. Pollack 

/s/ Michael D. Wilson