NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000003

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MD, Plaintiff-Appellant, v.

JR, Defendant-Appellee

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT

(FC-D NO. 02-1-0199)

MEMORANDUM OPINION

(By: Hiraoka, Presiding Judge, and Wadsworth and Nakasone, JJ.)

This appeal arises out of post-divorce proceedings

between self-represented Plaintiff-Appellant MD (Mother) and

Defendant-Appellee JR (Father) regarding child support for their

adult child, DR (Child). Mother appeals from the December 5,

2018 "Judgment Granting [Father's] Motion to Cease Support

Payments through [Hawai#i Child Support Enforcement Agency

(CSEA)] to Adult Child[;] Order Defaulting [Mother]" (Default

Judgment), entered in the Family Court of the Second Circuit

(Family Court).1/

After Mother missed a November 16, 2018 hearing on

Father's May 22, 2018 motion for post-decree relief (Motion for

Post-Decree Relief), the Family Court orally granted entry of

default against Mother for failing to appear and later entered

the Default Judgment. The court ordered, among other things,

that Father's payments for adult child support cease and that he

be credited $700 per month from September 1, 2017, toward overdue

child support payments. 

1/ The Honorable Adrianne N. Heely presided. 

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000003

29-JUL-2022

08:03 AM

Dkt. 72 MO
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On appeal, Mother raises several points of error

related to the Default Judgment, the denial of her November 19,

2018 motion for reconsideration,2/ and the denial of her

subsequent motions seeking relief from judgment pursuant to

Hawai#i Family Court Rules (HFCR) Rule 60. We construe Mother's

contentions as asserting in part that the Family Court erred in

entering the Default Judgment by granting relief beyond that

sought in Father's Motion for Post-Decree Relief. Mother also

contends that the Family Court erred in entering default against

her and proceeding with a proof hearing pursuant to HFCR Rule

55(b). 

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by Mother,3/ we resolve her

contentions as follows, and vacate and remand.

I. Background

On September 2, 2005, the Family Court entered a

divorce decree that, among other things, awarded Mother sole

legal and physical custody of Child and ordered Father to make

monthly child support payments to Mother. Thereafter, the

parties filed multiple post-judgment motions over the course of

many years.

As relevant to this appeal, on May 22, 2018, Father

filed the Motion for Post-Decree Relief. The motion referenced a

May 22, 2017 order by the family court4/ reducing Father's child

support obligation to $204 (from $904) per month effective

July 1, 2017 "[o]n the condition that the adult child's tuition,

books, housing and board are paid and Father covers adult child

through his employer's health insurance plan and the source of

funding is from a source that is a gift with no repayment

obligation[.]" Father asserted in the Motion for Post-Decree

2/ Mother's December 21, 2018 notice of appeal is deemed to appeal

the disposition of her timely filed motion for reconsideration. See Hawai #i

Rules of Appellate Procedure (HRAP) Rule 4(a)(3).

3/ Father did not file an answering brief.

4/ The Honorable Lloyd A. Poelman presided.

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Relief that "Child has access to funds that will pay in full,

tuition, books, housing and boarding and the source of the

funding is a gift with no repayment obligation." Based on this

assertion, Father sought to reduce his child support payments by

$700 per month and also requested a credit of $700 per month

"backdated to September 1, 2017[,]" with the credit applied

toward "child support arrears." 

On September 5, 2018, Mother filed a response to the

Motion for Post-Decree Relief. Mother asked the court to deny

the motion and to keep Father's $904 per month child support

obligation in place or to "increase the monthly obligation

according to the Child Support Guidelines worksheet[.]" Mother

argued that Father's child support obligation should not be

reduced because the conditions set forth in the May 22, 2017

order had not been met. Mother also asserted, among other

things, that Father "should immediately pay his missed child

support obligation from May, June, July and August of 2018

. . . ."

On September 10, 2018, the Family Court held a hearing

on Father's Motion for Post-Decree Relief. Mother and Father

both attended. The court set a contested hearing on the matter

for November 16, 2018, at 1:30 p.m. and notified the parties that

if they did not appear, "default may be sent [sic] entered." The

court also informed Father, "[i]f we do go to hearing, it may

work against you," based on the income and expense report

attached to Mother's opposition, which purportedly showed that

Father would owe $1200, rather than $900, per month in child

support. 

On November 9, 2018, Mother filed a position statement

further opposing the Motion for Post-Decree Relief, an income and

expense statement, and related exhibits. On the same date,

Mother filed a motion to continue the November 16, 2018 hearing,

which the Family Court denied. It appears, however, that the

court allowed Mother to appear by telephone at the scheduled

hearing date and time to "explain[] why she wanted to continue or

give her an opportunity to respond." 

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On November 16, 2018, at 1:10 p.m. – twenty minutes

before the scheduled hearing – Father filed "[Father's] Objection

to Allow [Mother] to Appear by Telephone at November 16, 2018

Evidentiary Hearing on [Father's] Motion for Post Decree Relief

Filed 5/22/2018[,] Motion for Default" (Motion for Default). 

Father sought termination of his child support obligation on the

basis that "[Mother] has failed to follow court orders, filed

required documents or provide evidence adult child is enrolled in

college full time based on CSEA requirements on passing 12

credits per semester or even appear in person to testify."

(Formatting altered.) The Motion for Default was unsigned and

did not include a certificate of service. 

On November 16, 2018, Mother failed to appear at the

hearing by telephone or in person. The Family Court granted

entry of default against Mother, conducted a "proof hearing"

pursuant to HFCR Rule 55(b) (quoted infra), ordered that Father's

child support obligation be "set aside," and granted Father

credit of $700 per month from September 1, 2017, to be applied

toward his "child support arrearages."

On November 19, 2018, Mother filed a motion for

reconsideration (Motion for Reconsideration). She explained that

she had called in to the November 16, 2018 hearing fifty minutes

late because she had not accounted for "the fact that Hawaii does

not adjust for daylight savings."5/ Mother acknowledged her

mistake and stated, "she is respectfully asking for

reconsideration as she does not believe that the child's well

being should be jeopardized as a result of the honest mistake she

made." Mother also filed a proposed order granting her Motion

for Reconsideration, which the court denied on November 30, 2018.

On December 5, 2018, the Family Court entered the

Default Judgment. It stated in relevant part: 

The Court grants the motion for default against

[Mother] with prejudice as this is the second default for

non-appearance in this matter and [Mother] was severely

warned against future non-appearances prior to this motion

date.

5/ At the time, Mother was living in Switzerland. 

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The court grants [Father's] motion for post-decree

relief to set aside withholding payments through CSEA for

adult child support payments for [Child]. CSEA will cease

garnishment of [Father's] bi-weekly income withholding.

The court will credit [Father] $700 per month towards

child support arrearages backdating to September 1, 2017 for

a total 15 months or a grand total of $10,500 which shall be

submitted to CSEA and reflect on the arrearages outstanding

balance effective immediately.

(Formatting altered.) 

On December 21, 2018, Mother filed the following

documents in the Family Court: (1) "[Mother's] Motion to Set

Aside the Entry of Default Judgement [sic] Entered on

November 16, 2018 Regarding [Father's] Post Decree Motion Filed

May 22, 2018" (First Rule 60(b) Motion); (2) "[Mother's] Appeal

and Request for a Hearing Regarding the Order Granting [Father's]

Proposed Judgment on December 5, 2018" (Notice of Appeal); (3)

"[Mother's] Motion for Relief From Default Judgement [sic]

Entered on November 16, 2018 Regarding [Father's] Post Decree

Motion Filed May 22, 2018" (Second Rule 60(b) Motion); and (4)

"Motion and Affidavit for Post-Decree Relief" (Mother's

Additional Post-Decree Motion). 

On February 4, 2019, the Family Court issued the

"Findings of Fact, Conclusions of Law and Orders[] . . ."

(FOFs/COLs/Orders). The FOFs/COLs/Orders: (1) denied the Motion

for Reconsideration; (2) denied the Notice of Appeal, as it also

had been filed in this court; (3) "serve[d] another courtesy

notice" that the First Rule 60(b) Motion, the Second Rule 60(b)

Motion (collectively, First and Second Rule 60(b) Motions), and

Mother's Additional Post-Decree Motion had been set for hearing

on February 25, 2019; and (4) issued an order to show cause why

Mother should not be declared a vexatious litigant under Hawaii

Revised Statutes (HRS) § 634J-1, also set for hearing on

February 25, 2019. 

At the February 25, 2019 hearing,6/ the Family Court

orally denied the First and Second Rule 60(b) Motions, set a

July 10, 2019 hearing on Mother's Additional Post-Decree Motion,

and reserved the vexatious litigant issue. The record does not

6/ Both parties appeared by telephone. 

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contain written orders denying the First and Second Rule 60(b)

Motions or a notice of appeal from any such orders.7/ We thus

lack jurisdiction over the Family Court's disposition of the

First and Second Rule 60(b) Motions. We consider Mother's appeal

from the Default Judgment below.

II. Discussion

The sanction of a default or default judgment "is a

harsh one." Rearden Family Trust v. Wisenbaker, 101 Hawai#i 237,

254, 65 P.3d 1029, 1046 (2003). "Generally, [defaults and]

default judgments are not favored because they do not afford

parties an opportunity to litigate claims or defenses on the

merits." In re Genesys Data Techs., Inc., 95 Hawai#i 33, 40, 18

P.3d 895, 902 (2001). "[A]ny doubt should be resolved in favor

of the party seeking relief [from a default or default judgment],

so that, in the interests of justice, there can be a full trial

on the merits." Rearden Family Trust, 101 Hawai#i at 254, 65

P.3d at 1046) (quoting Lambert v. Lua, 92 Hawai#i 228, 235, 990

P.2d 126, 133 (App. 1999)). 

Here, Mother challenges the Default Judgment on the

ground, among others, that it granted new or additional relief to

Father that was not sought in the Motion for Post-Decree Relief,

and was granted without notice to Mother. Mother does not

dispute that she was given notice of the November 16, 2018

hearing, but argues that she did not receive notice of Father's

Motion for Default, which sought to terminate rather than reduce

his child support obligation.

7/ On March 12, 2019, Mother filed a document in this appeal entitled

"Appellant Amended Appeal." The document contains argument regarding Mother's

appeal from the Default Judgment. Although Mother refers to the First and

Second Rule 60(b) Motions and the February 25, 2019 hearing, she does not

designate or attach any written orders denying the motions (see HRAP Rule

3(c)(2)) and she does not purport to appeal from any such written orders. See

KNG Corp. v. Kim, 107 Hawai#i 73, 77, 110 P.3d 397, 401 (2005) (an "oral

decision is not an appealable order"); see also Enos v. Pac. Transfer &

Warehouse, Inc., 80 Hawai#i 345, 355-56, 910 P.2d 116, 126-27 (1996) ("an

amended notice of appeal relates back to the notice of appeal it purports to

amend[;] it does not appeal an order, judgment or decree entered subsequent to

the notice of appeal it purports to amend" (quoting Chan v. Chan, 7 Haw. App.

122, 129, 748 P.2d 807, 811 (1987)).

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HFCR Rule 54(c) provides:

A judgment by default shall not be different in kind from or

exceed in amount that which was prayed for in the demand for

judgment. Except as to a party against whom a judgment is

entered by default, every final judgment shall grant the

relief to which the party in whose favor it is rendered is

entitled, even if the party has not demanded such relief in

the party's pleadings.

(Emphasis added.)

The supreme court has construed the nearly identical

language of Hawai#i Rules of Civil Procedure (HRCP) Rule 54(c) as

restricting "the scope of relief that may be granted by default

judgment to that specifically prayed for." Matsushima v. Rego,

67 Haw. 556, 559, 696 P.2d 843, 846 (1985).

A default judgment cannot give to the claimant greater

relief than the pleaded claim entitles him to and Rule 54(c)

provides that such a judgment "shall not be different in

kind from or exceed in amount that prayed for in the demand

for judgment." Since the prayer limits the relief granted

in a judgment by default, both as to the kind of relief and

the amount, the prayer must be sufficiently specific that

the court can follow the mandate of the Rule.

Id. (quoting 6 Moore's Federal Practice § 54.61). "The purpose

of the rule is to provide a defending party with adequate notice

upon which to make an informed judgment on whether to default or

actively defend the action." Id. (citing 10 C. Wright, A. Miller

& Kane, Federal Practice and Procedure § 2663 (1983)). "Equity

requires that the defendant be able to decide based on the relief

requested whether to incur the considerable expense and trouble

of litigation." Id. (citing 10 C. Wright et al., Federal Practice

and Procedure § 2663; see also Bank of Hawaii v. Horwoth, 71 Haw.

204, 215, 787 P.2d 674, 680 (1990) ("[I]t would be fundamentally

unfair to give greater or different relief from that prayed for

since a defaulting defendant may have relied on the relief

requested in the complaint in deciding not to appear and defend

the action." (quoting 10 C. Wright et al., Federal Practice and

Procedure, § 2662, at 131)).

The supreme court has also observed that "the award of

a default judgment in violation of HRCP Rule 54(c) implicates the

defendant's right to due process." Genesys, 95 Hawai#i at 38, 18

P.3d at 900. However, "a default judgment is not void for

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violating HRCP Rule 54(c) unless the violation deprived the

defaulting party of due process by failing to provide notice of

the scope of the claim and a meaningful opportunity to defend

against it." Id. at 40, 18 P.3d at 902.

Here, Father's Motion for Post-Decree Relief sought to

reduce his monthly child support payment; it did not seek to

terminate his child support obligation. In contrast, Father's

Motion for Default sought to permanently end his child support

obligation. There is no indication in the record that Mother was

served with a copy of the Motion for Default prior to the

November 16, 2018 hearing at which the Family Court found Mother

in default and ordered that Father's child support obligation be

set aside. Indeed, there is no indication in the record that

Mother was served with a copy of the Motion for Default prior to

entry of the Default Judgment. In granting Father's request to

terminate his child support obligation, the Family Court granted

relief by default that was different in kind from (and greater

than) the relief sought in the Motion for Post-Decree Relief, in

violation of HFCR Rule 54(c). Mother was not provided with

notice of the scope of Father's new claim (i.e., to terminate his

child support obligation) and a meaningful opportunity to defend

against it prior to the entry of the Default Judgment. We thus

conclude that the Default Judgment is void as to the setting

aside of Father's adult child support payments. See Matsushima,

67 Haw. at 559, 696 P.2d at 846 (ruling that a default judgment

was void as to the quieting of title, where the pleadings did not

pray for such relief).

Mother also contends that the Family Court erred in

relying on HFCR Rule 55(b) to enter default against her and to

proceed with a proof hearing. As reflected in FOFs 20 and 21,

when Mother failed to appear at the November 16, 2018 hearing,

the Family Court granted entry of default against Mother,

conducted a proof hearing, and subsequently entered the Default

Judgment pursuant to HFCR Rule 55(b).

HFCR Rule 55(b) provides:

In a contested or uncontested action, where it appears from

the record and by testimony (or by affidavit or declaration

in an uncontested matrimonial action) that the adverse party

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has been duly served with the complaint or dispositive

motion, and the adverse party has failed to appear or

otherwise defend as provided by these rules, the court may

grant an entry of default and proceed with a proof hearing,

when a hearing is required, and enter a default judgment. 

No judgment by default shall be entered against a minor or

incompetent person unless represented in the action by a

guardian, or other such representative who has appeared

therein, and upon whom service may be made under Rule 17(c)

of these rules.

(Emphases added.)

Mother was duly served with a copy of the Motion for

Post-Decree Relief, by which Father sought credit of $700 per

month from September 1, 2017, toward overdue child support

payments. In order to determine whether the Family Court

properly entered default and the Default Judgment against Mother

as to this requested relief, we must determine whether Mother

"failed to appear or otherwise defend as provided by [the HFCR]." 

HFCR Rule 55(b). The rule authorizes a default only if a party

has failed to appear or otherwise defend. Therefore, if Mother

appeared or otherwise defended as to the Motion for Post-Decree

Relief, her subsequent failure to appear at the November 16, 2018

hearing would not warrant the entry of default under HFCR Rule

55(b). Cf. First Hawaiian Bank v. Powers, 93 Hawai#i 174, 185,

998 P.2d 55, 66 (App. 2000) (construing the phrase "otherwise

defend" in District Court Rules of Civil Procedure (DCRCP) Rule

55(a) in light of the interpretation of Federal Rules of Civil

Procedure Rule 55(a) (quoting 10 Moore's Federal Practice §

55.10[2][b] at 55-12.1 (3d ed. 1998))); Gonsalves v. Nissan Motor

Corp. in Hawaii, 100 Hawai#i 149, 159, 58 P.3d 1196, 1206 (2002)

(construing "otherwise defend" in HRCP Rule 55(a)).

The record reflects that while Mother failed to appear

at the November 16, 2018 hearing, she took several actions prior

to that hearing to defend against the Motion for Post-Decree

Relief. These actions included filing her September 5, 2018

response, returning to Hawai#i to attend the September 10, 2018

hearing, and filing her November 9, 2018 position statement and

related documents. Mother therefore did not "fail to appear or

otherwise defend" against the Motion for Post-Decree Relief so as

to authorize entry of default and the Default Judgment as to the

requested $700-per-month credit. HFCR Rule 55(b); cf. Powers, 93

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Hawai#i at 184, 998 P.2d at 65 (applying the "fail to plead or

otherwise defend" language of DCRCP Rule 55(a)). The Family

Court abused its discretion in granting Father such relief in

these circumstances. See Gonsalves, 100 Hawai#i at 158, 58 P.3d

at 1205 (2002) ("[a]pplication of HRCP Rule 55, which governs

entry of default judgment, is reviewed for abuse of

discretion."); cf. Long v. Long, 101 Hawai#i 400, 407, 69 P.3d

528, 535 (App. 2003) (concluding that under HFCR Rule 37, the

family court abused its discretion in entering a default decree

against husband).

Given our decision to vacate the Default Judgment, we

do not reach Mother's remaining contentions.

III. Conclusion

For the reasons discussed above, we vacate the

December 5, 2018 "Judgment Granting [Father's] Motion to Cease

Support Payments through [CSEA] to Adult Child[;] Order

Defaulting [Mother]," entered in the Family Court of the Second

Circuit. The case is remanded to the Family Court for further

proceedings consistent with this Memorandum Opinion. 

DATED: Honolulu, Hawai#i, July 29, 2022.

On the briefs:

MD,

Self-represented PlaintiffAppellant

/s/ Keith K. Hiraoka

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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