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NO. CAAP-19-0000826

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JL, Petitioner-Appellee,

v.

MV, Respondent-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(FC-P NO. 13-1-6287)

MEMORANDUM OPINION

(By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

This case involves a dispute between PetitionerAppellee JL (Mother) and Respondent-Appellant MV (Father) over

which school their minor child (Child) should attend. Father

appeals from the "Order for Relief After Judgment or Order"

entered by the Family Court of the First Circuit on November 18,

2019 (November 2019 Order).1 For the reasons explained below, we

affirm the November 2019 Order.

BACKGROUND

Mother and Father were never married. On August 1,

2013, Mother filed a "Petition for Paternity or for Custody,

Visitation and Support Orders After Voluntary Establishment of

Paternity" (Petition). On October 3, 2013, the family court

1 The Honorable Natasha R. Shaw signed the November 2019 Order.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000826

09-SEP-2020

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entered a stipulated order2 that awarded joint legal custody of

Child to Mother and Father and sole physical custody to Mother. 

The order also set a temporary visitation schedule for Father

pending trial, and ordered Father to pay temporary child support. 

A trial was held on February 20, 2014. On April 4,

2014, the family court entered a "Decision & Order" that

addressed Father's visitation rights and payment of child

support, medical insurance, and uninsured medical costs.3

On September 21, 2018, Mother filed a motion seeking

modification of Father's visitation rights and child support

obligations. On November 9, 2018, Father filed his own motion

seeking joint physical custody of Child and modification of child

support. A trial on both motions was held on April 29, 2019. On

May 31, 2019, the family court entered its "Decision and Order

Following Trial" (May 2019 Order).4 That order addressed, among

other things, joint legal and physical custody of Child, subject

to a time-sharing schedule. Of relevance to this appeal, the May

2019 Order provided:

1. Legal Custody. The parties shall maintain joint

legal custody of the child. The parties shall confer on all

major legal decisions regarding the child, including

decisions regarding those affecting education . . . .

Major legal decisions shall include . . . major

decisions regarding the child's education, such as choice of

school [and] change in school . . . .

Each party shall notify the other in writing of

any major decision that needs to be made for a child as soon

as possible after learning of the issue that needs to be

decided. Parties are to respond to the other parent's

request for a decision or any other request within 24-hours. 

The parties shall communicate with each other in an effort

to reach an agreement regarding the decision. If the

2 The Honorable Linda S. Martell signed the stipulated order.

3 The Honorable Linda S. Martell presided over the trial and signed

the April 4, 2014 Decision & Order.

4 The Honorable Kristine Y. Yoo presided over the trial and signed

the May 2019 Order.

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parties are unable to agree on the issue, they shall discuss

it with their parenting counselor before either party files

a motion with the Court.

. . . .

3. Timesharing. The Court finds the following

timesharing schedule to be in the child's best interest.

a. Regular Timesharing Schedule. The

parties' regular timesharing schedule

shall be as follows: FATHER shall have the

child every Friday from afterschool [sic]

until Sunday evening at 6:00 p.m. on the

first (1st), second (2nd), and fourth

(4th) weekends of each month. Regular

Pick-up/Drop-off Arrangement: FATHER shall

pick up the child immediately afterschool

[sic] on Fridays. MOTHER shall pick up

the child at 6:00 p.m. from FATHER's

residence on Sundays.

. . . .

19. Mediation. The parties are hereby ordered to

participate in mediation with the Mediation Center of the

Pacific, or with some other professional mediator, prior to

filing any additional motions before this Court, and/or if

the parties have any dispute regarding a legal custody issue

in the future. Failure to participate in mediation prior to

filing a motion, absent exigent circumstances, may result in

sanctions being imposed by this Court, which could include

dismissal of any motion, an order to pay reasonable

attorneys' fees and costs, or any other appropriate sanction

the Court deems just and equitable under the circumstances.

On August 15, 2019, Father filed the motion that gave

rise to this appeal. He claimed that the May 2019 Order required

Father and Mother to agree before changing Child's school, but

Mother changed Child's school on August 5, 2019, without Father's

agreement. He also claimed that Mother did not list him as the

first emergency contact for Child's new school. Father's motion

was heard on September 4, 2019.5 The November 2019 Order granted

Father's request to be named as the first emergency contact for

Child, and also ordered Mother to list Father as an authorized

person to pick Child up from Child's after-school programs. Of

relevance to this appeal, the November 2019 Order provided:

5 The Honorable Natasha R. Shaw presided.

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1. [Father]'s request for an order directing reenrollment of the subject child in [Child's former school]

is denied. Considering the best interests of the child,

[Mother]'s residence and place of employment, and the time

schedule in effect, it is not in [Child's] best interests to

return to [Child's former school] and [Child] shall remain

enrolled in [Child's new school].

The family court entered findings of fact and conclusions of law

on January 8, 2020, after Father filed his notice of appeal,

pursuant to Rule 52(a) of the Hawai#i Family Court Rules.

DISCUSSION

Father's opening brief contains five separately

numbered points of error, but argues only two: (1) the family

court's November 2019 Order violated the doctrines of res

judicata (claim preclusion) and collateral estoppel (issue

preclusion); and (2) the November 2019 Order violated the law of

the case established by the May 2019 Order. The applicability of

preclusive doctrines such as res judicata, collateral estoppel,

or law of the case present questions of law that we review de

novo. In re Thomas H. Gentry Revocable Tr., 138 Hawai#i 158,

168, 378 P.3d 874, 884 (2016).

Res Judicata/Claim Preclusion and

Collateral Estoppel/Issue Preclusion

Father argues that the May 2019 Order had preclusive

effect over the November 2019 Order because: (a) the May 2019

Order required the parties to mediate disputed issues and to see

a family counselor before filing a post-decree motion; and

(b) the issue of whether Child should change schools was raised

during the April 29, 2019 evidentiary hearing, but the family

court did not authorize a change. We disagree.

Res judicata (claim preclusion) and collateral estoppel

(issue preclusion) are legal doctrines that limit a party to one

opportunity to litigate a case to prevent inconsistent results

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among multiple suits, and to promote finality and judicial

economy. Bremer v. Weeks, 104 Hawai#i 43, 53, 85 P.3d 150, 160

(2004). They are, however, separate doctrines that involve

distinct questions of law. Id.

Claim preclusion "prohibits a party from relitigating a

previously adjudicated cause of action." Bremer, 104 Hawai#i at

53, 85 P.3d at 160 (citation omitted). The party asserting claim

preclusion has the burden of establishing that (1) there was a

final judgment on the merits, (2) both parties are the same or in

privity with the parties in the original suit, and (3) the claim

decided in the original suit is identical with the one presented

in the action in question. Id. at 54, 85 P.3d at 161.

Issue preclusion "applies to a subsequent suit between

the parties or their privies on a different cause of action and

prevents the parties or their privies from relitigating any issue

that was actually litigated and finally decided in the earlier

action." Bremer, 104 Hawai#i at 54, 85 P.3d at 161 (citation

omitted). The party asserting issue preclusion must establish

that (1) the issue decided in the prior suit is identical to the

one presented in the action in question, (2) there is a final

judgment on the merits, (3) the issue decided in the prior suit

was essential to the final judgment, and (4) the party against

whom issue preclusion is asserted was a party, or is in privity

with a party, to the prior suit. Id. It is not necessary that

the party asserting issue preclusion in the second suit was a

party in the first suit. Id.

Neither doctrine applies in this case, which involves a

child custody dispute to which Hawaii Revised Statute (HRS)

§ 571-46 (2018) applies. The statute, titled "Criteria and

procedure in awarding custody and visitation; best interest of

the child[,]" provides, in relevant part: 

(a) In . . . any . . . proceeding where there is at issue

a dispute as to the custody of a minor child, the [family]

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court, during the pendency of the action . . . or any time

during the minority of the child, 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: 

. . . .

(6) Any custody award shall be subject to

modification or change whenever the best

interests of the child require or justify the

modification or change[.]

(Underscoring added).

Waldecker v. O'Scanlon, 137 Hawai#i 460, 375 P.3d 239

(2016) is instructive. In that case, mother and father were

married and had a child. In anticipation of their divorce, they

entered into a settlement agreement that was incorporated into a

divorce decree. The agreement provided, and the decree stated,

that mother and father would have joint physical custody of their

child, but if either moved more than 200 miles away from O#ahu,

sole physical custody would automatically revert to the remaining

parent. Four years later, mother anticipated moving to Florida

with her new husband. She petitioned the family court to change

the child custody arrangement, contending that there had been a

material change in circumstances that required the family court

to examine whether a change in custody would be in the child's

best interests. Father argued that the divorce decree

specifically provided for the child's custody if a parent

relocated, and that the family court should enforce the divorce

decree without performing a "best interests of the child"

analysis.

The family court agreed with father and awarded sole

physical custody of child to father, as provided for by the

divorce decree. Mother appealed. Even though the divorce decree

specifically provided that father would gain sole physical

custody if mother relocated more than 200 miles away from O#ahu,

the supreme court held that "the family court erred by not

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considering the best interests of the child as required by HRS

§ 571–46." Waldecker, 137 Hawai#i at 466, 375 P.3d at 245. 

After discussing the existing case law on the issue, the supreme

court concluded:

that the requirement of a material change in circumstances

is inconsistent with HRS § 571–46. Accordingly, we overrule

Nadeau[6] and Hollaway[7] to the extent they suggest that a

material change in circumstances is required before the

court can consider the best interests of the child in

modifying a custody order. Rather than that two-step

analysis, there is a single inquiry which focuses on the

best interests of the child. As this court held in Dela

Cruz,[8] the question is "whether or not there has been such

a change of circumstances that the modification will be for

the [best interest] of the child." 35 Haw. Terr. at 98.

We acknowledge that there are legitimate interests in

preventing continued relitigation of issues and reducing

repetitive motions. However, the family courts have various

tools at their disposal to address such situations,

including the power to impose sanctions, as appropriate.

In short, jurisprudential concerns regarding

repetitive motions cannot be addressed in a manner that

conflicts with the requirements of HRS [§] 571–46 that

"custody should be awarded . . . according to the best

interests of the child" and "any custody award shall be

subject to modification or change whenever the best

interests of the child require or justify the modification

or change." HRS § 571–46(a)(1) and (6) (emphasis added).

Id. at 470, 375 P.3d at 249 (footnotes and first emphasis added).

In this case the May 2019 Order required that if the

parties did not agree about a change in Child's school, "they

shall discuss it with their parenting counselor before either

party files a motion with the Court." Father testified, during

the September 4, 2019 evidentiary hearing, that Mother raised the

change of schools issue during a mediation in July 2019, but no

agreement was reached. Father also testified that he met with a

counselor recommended by his attorney, and with a counselor

6 Nadeau v. Nadeau, 10 Haw. App. 111, 861 P.2d 754 (1993).

7 Hollaway v. Hollaway, 133 Hawai#i 415, 329 P.3d 320 (App. 2014).

8 Dela Cruz v. Dela Cruz, 35 Haw. Terr. 95 (1939).

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selected by Mother, on the choice-of-school issue before filing

his August 15, 2019 motion.

Although Mother did not file a motion before changing

Child's school, Father's August 15, 2019 motion brought the issue

before the family court after the parties could not resolve it

through mediation or counseling. The record indicates that

Mother had custody of Child during the week. Mother's place of

residence changed, resulting in a change in Child's public school

district. Child's old school was located across the island from

Child's new school. The family court found that if Child was

returned to the old school, the lengthy commute would not have

been in Child's best interest. Although Father's opening brief

cites the family court's finding of Child's best interest as

error, Father presents no argument about why the family court

abused its discretion in making the finding. The point is

waived. See Hawai#i Rules of Appellate Procedure Rule 28(b)(7)

("Points not argued may be deemed waived.").

Law of the Case Doctrine

The law of the case doctrine has been applied under two

circumstances. First, if an appeal is taken, "a determination of

a question of law made by an appellate court in the course of an

action becomes the law of the case and may not be disputed by a

reopening of the question at a later stage of the litigation."

Fought & Co. v. Steel Eng'g & Erection, Inc., 87 Hawai#i 37, 48-

49, 951 P.2d 487, 498-99 (1998) (citation omitted). The family

court's November 2019 Order at issue in this case was not entered

after a remand. The appellate law of the case doctrine has no

application in this case.

Second, in cases upon which more than one judge has

presided, "the usual practice of courts to refuse to disturb all

prior rulings in a particular case" is referred to as the "law of

the case" doctrine. Chun v. Bd. of Trs. of Emps.' Ret. Sys. of

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State of Hawai#i, 92 Hawai#i 432, 441, 992 P.2d 127, 136 (2000)

(citation omitted). "Unless cogent reasons support the second

court's action, any modification of a prior ruling of another

court of equal and concurrent jurisdiction will be deemed an

abuse of discretion." Wong v. City & Cty. of Honolulu, 66 Haw.

389, 396, 665 P.2d 157, 162 (1983) (emphasis and citations

omitted).

The law of the case doctrine was not violated here

because the November 2019 Order did not modify the terms of the

May 2019 Order. The May 2019 Order did not contain any provision

about which school Child would attend. The May 2019 Order

actually anticipated potential future disagreements on "major

decisions regarding the child's education, such as choice of

school [and] change in school," and incorporated alternative

dispute resolution provisions for mediation and counseling before

any party could file a motion for relief. We hold that the

family court's decision to allow Child to remain enrolled in

Child's new school did not violate the law of the case doctrine.

CONCLUSION

Based upon the foregoing, the order entered by the

Family Court of the First Circuit on November 18, 2019, is

affirmed.

Dated: Honolulu, Hawai#i, September 9, 2020.

On the briefs:

/s/ Lisa M. Ginoza

Thomas D. Farrell, Chief Judge

for Petitioner-Appellee.

/s/ Derrick H.M. Chan

Samuel P. King, Jr., Associate Judge

for Respondent-Appellant.

/s/ Keith K. Hiraoka

Associate Judge

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