FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

—o0o—

CAAP-19-0000871

KS, Plaintiff-Appellant, 

v.

RS, Defendant/Appellee

AND

CAAP-20-0000489

KS, Plaintiff-Appellant, 

v.

RS, Defendant/Appellee

CAAP NOS. 19-0000871 and 20-0000489

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(CASE NO. FC-D 18-1-0119)

MAY 27, 2022

GINOZA, CHIEF JUDGE, WADSWORTH AND NAKASONE, JJ.

OPINION OF THE COURT BY NAKASONE, J.

This appeal considers whether, under Hawai#i law, a

family court may grant tie-breaking authority to one parent in a

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000871

27-MAY-2022

07:46 AM

Dkt. 118 OP
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

joint legal custody award, if the court determines that it is in

the child's best interests. We hold that a family court is not

precluded from ordering joint legal custody with tie-breaking

authority to one parent based on the court's broad discretion, if

it determines that doing so is in the child's best interest.

In this consolidated appeal,1 Plaintiff-Appellant "KS"

(Mother) appeals from orders and a decree arising out of a trial

regarding her divorce from Defendant-Appellee "RS" (Father),

entered by the Family Court of the First Circuit (Family Court).2

In CAAP-19-0000871, Mother appeals from the November 25, 2019

Decision and Order Re: Trial, Child Support Guidelines Worksheet,

and Property Division Chart (Trial Order); and the December 16,

2019 Decree Granting Absolute Divorce and Awarding Child Custody

(Divorce Decree).3 In CAAP-20-0000489, Mother appeals from the

June 29, 2020 Order Re: Plaintiff's Motion to Amend or Alter

Decision and Order and Granting Defendant's Motion to Enforce

Decree (Order Re: Post-Judgment Motions).4

In CAAP-19-0000871, Mother raises twelve (12) points of

error (POEs), contending that the Family Court erred:

(1) in FOF 47 by determining that the Court could not

order joint legal custody with tie-breaking authority;

(2) in FOF 47 by finding that it would not be in

Child's best interest if either party has sole legal custody;

1 We consolidated CAAP-19-0000871 and CAAP-20-0000489 by an Order of

Consolidation filed on June 15, 2021, and the appeals were consolidated under

CAAP-19-0000871.

2 The Honorable Jessi L.K. Hall presided.

3 In CAAP-19-0000871, after Mother filed her December 23, 2019

Notice of Appeal, the Family Court entered its March 9, 2020 Supplemental

Record on Appeal: Findings of Fact and Conclusions of Law (March 9, 2020

FOFs/COLs).

4 In CAAP-20-0000489, after Mother filed her July 29, 2020 Notice of

Appeal from the Order Re: Post-Judgment Motions, the Family Court entered its

September 21, 2020 Supplemental Record on Appeal: FOFs/COLs (September 21,

2020 FOFs/COLs), regarding the post-judgment motions.

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(3) by failing to apply the statutory factors for

determining the "best interest of the child;"

(4) in COL 14 by concluding that "some" of Mother's

behavior was "detrimental" to Child;

(5) in FOFs 59, 62-64 by making certain findings

regarding a video of a time-sharing exchange of Child between

Mother and Father;

(6) in COL 15 by determining that it is in the best

interest of Child that the parties shall have joint legal and

joint physical custody;

(7) in FOF 20 by finding that the parties could have

joint custody if there was a neutral body to assist with making

decisions;

(8) by "imposing a mandatory two-part dispute

resolution process on the parents, who were ordered to share

equally in the costs of this process, instead of awarding final

decision-making authority to [Mother];"

(9) in refusing to allow Mother to introduce

stipulated exhibits, pursuant to a "personal policy" of the

judge;

(10) in FOF 108 by finding that each side chose to

withdraw several exhibits at the end of trial;

(11) in FOF 101 and COL 31, in which the Family Court

imposed an "erroneous and inequitable equalization payment on

[Mother] based on [Father's] undisclosed and unsubstantiated

debt" for attorney's fees and a student loan "which was not

supported by competent evidence;" and

(12) in COLs 22 and 32 where the Court "denied spousal

support to [Mother] as an offset" for the "erroneous and

inequitable equalization payment set forth in COL 31, without

first calculating the amount of spousal support to which [Mother]

was entitled to under [Hawaii Revised Statutes (HRS)] § 580-

47(a), utilizing the factors and principles set forth in Wong v.

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Wong," 87 Hawai#i 475, 485, 960 P.2d 145, 155 (App. 1998), "which

would have outweighed the equalization payment that the Court

arrived at."

In CAAP-20-0000489, Mother raises seventeen POEs of

which twelve are identical to the POEs in CAAP-19-0000877. The

following five additional POEs5 pertain to the disposition of

"Plaintiff's Motion to Alter or Amend Decision and Order After

Trial filed November 25, 2019, and to Stay Execution of Order and

for Hearing Pursuant to Rules 59(e) and 62(b), Hawai#i Family

Court Rules" (Motion to Alter), in which Mother contends the

Family Court erred:

(13) in refusing to grant Mother's Motion to Alter;

(14) in concluding as a matter of law that it could not

grant Mother's Motion to Alter because an appeal was pending;

(15) in COLs 5-7 in the September 21, 2020 FOFs/COLs

setting forth the reasoning why the Family Court took no further

action on the Motion to Alter;

(16) in FOF 5 in the September 21, 2020 FOFs/COLs by

making a finding of an erroneous filing date; and 

(17) in not granting Mother's Motion to Alter to make

Father responsible for health care coverage for Child, and erred

in COL 21 in the March 9, 2020 FOFs/COLs where Mother was made

responsible for Child's health coverage.

As to CAAP-19-0000871, we vacate in part with respect

to the dispute resolution provisions of the award of joint

custody, and the determinations regarding spousal support. As to

CAAP-20-0000489, we vacate the Order Re: Post-Judgment Motions to

the extent it did not address Mother's Motion to Alter.

I. BACKGROUND

Mother and Father were married in 2006 and separated in

2017. Mother and Father are the parents of Child, who was born

in 2014 during the marriage. The Complaint for Divorce was filed

on January 30, 2018, and trial was held on October 28 and 29,

2019. Following trial, the Family Court filed: 1) the November

5 We have renumbered the new POEs 13 to 17.

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25, 2019 Decision and Order; 2) the December 16, 2019 Divorce

Decree; and 3) the March 9, 2020 FOFs/COLs.6

In the Divorce Decree, the Family Court: 1) granted

the divorce; 2) ordered joint legal and joint physical custody to

Father and Mother; 3) set forth the joint physical custody

schedule, with exchange times and locations, and set alternating

holiday schedules; 4) directed Father and Mother to mutually

agree to division of school breaks, and if no agreement could be

reached, discussion with a Parenting Coordinator; 5) ordered

Father to pay child support to Mother; 6) addressed other issues

such as child-related expenses, education and educational

expenses, and extracurricular expenses; 7) ordered Father to

provide for Child's medical and dental insurance coverage; 8)

declined to award alimony to either parent; 9) discussed award of

Father and Mother's assets, insurance, and individual debts; 10)

waived the equalization payment Mother would have had to pay

Father, in lieu of an award of alimony;7 11) ordered the parties

to file separate taxes for 2019, and going forward; and 12)

ordered that each party be responsible for their own attorney's

fees and costs.

Mother timely appealed from the Trial Order and Divorce

Decree in CAAP-19-0000871 on December 23, 2019, as a selfrepresented litigant. Mother submitted the Motion to Alter on

December 5, 2019, but it was not heard until March 11, 2020,

along with Father's motion to enforce the Divorce Decree. At the

March 11, 2020 hearing, per Mother's request, the hearing on her

Motion to Alter was continued to May 20, 2020. No transcript was

requested for the May 20, 2020 hearing. The Order Re: PostJudgment Motions filed on June 29, 2020 contains the disposition

of the motions from the May 20, 2020 hearing, and reflects that

the Family Court took "no further action" and did not render a

decision as to Mother's Motion to Alter, citing the pending

6 The Divorce Decree is substantially similar to the Decision and

Order. The March 9, 2020 FOFs/COLs set forth the Family Court's reasoning.

7 As to the equalization payment, the Divorce Decree stated: "15. 

Equalization Payment. In lieu of alimony, [Mother] shall not be required to

pay the equalization payment set out in the Property Division Chart attached

hereto."

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appeal in CAAP-19-0000871. Instead, the Family Court granted

Father's motion to enforce the Divorce Decree. On July 29, 2020,

under CAAP-20-0000489, Mother filed a Notice of Appeal from the

June 29, 2020 Order Re: Post-Judgment Motions.

II. STANDARDS OF REVIEW

A. Family Court Decisions

"Generally, the family court possesses wide discretion

in making its decisions and those decisions will not be set aside

unless there is a manifest abuse of discretion." Hamilton v.

Hamilton, 138 Hawai#i 185, 197, 378 P.3d 901, 913 (2016) (citing

Kakinami v. Kakinami, 127 Hawai#i 126, 136, 276 P.3d 695, 705

(2012) (quoting Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d

355, 360 (2006))).

It is well established that a family court abuses its

discretion where "(1) the family court disregarded rules or

principles of law or practice to the substantial detriment

of a party litigant; (2) the family court failed to exercise

its equitable discretion; or (3) the family court's decision

clearly exceeds the bounds of reason."

Kakinami, 127 Hawai#i at 155-56, 276 P.3d at 724-25 (citations

omitted). "[T]he family court is given much leeway in its

examination of the reports concerning a child's care, custody,

and welfare, and its conclusions in this regard, if supported by

the record and not clearly erroneous, must stand on appeal." 

Fisher, 111 Hawai#i at 46, 137 P.3d at 360 (citation omitted).

B. Family Court's Findings of Fact and 

Conclusions of Law

"The family court's findings of fact are reviewed under

the clearly erroneous standard, while the court's conclusions of

law are reviewed de novo under the right/wrong standard." Gordon

v. Gordon, 135 Hawai#i 340, 348, 350 P.3d 1008, 1016 (2015)

(citing Kakinami, 127 Hawai#i at 136, 276 P.3d at 705)).

A [finding of fact] 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 evidence which is of sufficient

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quality and probative value to enable a person of reasonable

caution to support a conclusion.

Kakinami, 127 Hawai#i at 136, 276 P.3d at 705.

"[W]hen a conclusion of law presents mixed questions of

fact and law, we review it under the 'clearly erroneous' standard

because the court's conclusions are dependent on the facts and

circumstances of each individual case." JW v. RJ, 146 Hawai#i

581, 585, 463 P.3d 1238, 1242 (App. 2020) (citing Estate of Klink

ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523

(2007)). "A conclusion of law that is supported by the trial

court's findings of fact and reflects an application of the

correct rule of law will not be overturned." Id.

C. Statutory interpretation

"Statutory interpretation is a question of law

reviewable de novo." JD v. PD, 149 Hawai#i 92, 96, 482 P.3d 555,

559 (App. 2021) (citation omitted). In construing statutes, we

observe the following principles:

First, the fundamental starting point for statutory

interpretation is the language of the statute itself. 

Second, where the statutory language is plain and

unambiguous, our sole duty is to give effect to its plain

and obvious meaning. Third, implicit in the task of

statutory construction is our foremost obligation to

ascertain and give effect to the intention of the

legislature, which is to be obtained primarily from the

language contained in the statute itself. Fourth, when

there is doubt, doubleness of meaning, or indistinctiveness

or uncertainty of an expression used in a statute, an

ambiguity exists.

Id. (citation omitted).

D. Family Court Post-Judgment Motions

We review a family court's ruling on a Hawai#i Family

Court Rules (HFCR) Rule 59(e) motion under the abuse of

discretion standard. See Tagupa v. Tagupa, 108 Hawai#i 459, 465,

121 P.3d 924, 930 (App. 2005) (citation omitted). "An abuse of

discretion occurs if the trial court has clearly exceeded the

bounds of reason or disregarded rules or principles of law or

practice to the substantial detriment of a party litigant." Id. 

(internal quotation marks and citation omitted).

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III. DISCUSSION8

A. Custody Award, POEs 1-8

1. The Family Court's award of joint legal 

and physical custody was not erroneous.

We first address Mother's contentions in POEs 2-6 that

the Family Court's award of joint legal custody was erroneous. 

In POE 2, Mother challenges FOF 47's finding that: "it would not

be in the minor child's best interest if either party has sole

legal custody, as the other party would be prohibited from

providing input;" and in POE 6, COL 15's conclusion that "it is

in the best interest of the Child that the parties shall have

joint legal and joint physical custody." In POE 3, Mother claims

the Family Court failed to apply the "best interest" factors in

HRS § 571-46(b).9 In POEs 4 and 5, Mother challenges FOFs 59,

8 We have reorganized, consolidated, and restated Mother's points of

error for clarity. 

9 HRS § 571-46 (2018), entitled "Criteria and procedure in awarding

custody and visitation; best interest of the child," provides in subsection

(b) that:

(b) In determining what constitutes the best interest of

the child under this section, the court shall consider, but 

not be limited to, the following:

(1) Any history of sexual or physical abuse of a

child by a parent;

(2) Any history of neglect or emotional abuse of a

child by a parent;

(3) The overall quality of the parent-child

relationship;

(4) The history of caregiving or parenting by each

parent prior and subsequent to a marital or other

type of separation;

(5) Each parent's cooperation in developing and

implementing a plan to meet the child's ongoing 

needs, interests, and schedule; provided that this

factor shall not be considered in any case where 

the court has determined that family violence has 

been committed by a parent;

(6) The physical health needs of the child;

(7) The emotional needs of the child;

(8) The safety needs of the child;

(9) The educational needs of the child;

(continued...)

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62-64, and COL 14,10 which contain the Family Court's findings

9(...continued)

(10) The child's need for relationships with

siblings;

(11) Each parent's actions demonstrating that they

allow the child to maintain family connections 

through family events and activities; provided 

that this factor shall not be considered in any 

case where the court has determined that family

violence has been committed by a parent;

(12) Each parent's actions demonstrating that they

separate the child's needs from the parent's 

needs;

(13) Any evidence of past or current drug or alcohol

abuse by a parent;

(14) The mental health of each parent;

(15) The areas and levels of conflict present within

the family; and

(16) A parent's prior wilful misuse of the protection

from abuse process under chapter 586 to gain a 

tactical advantage in any proceeding involving 

the custody determination of a minor. Such 

wilful misuse may be considered only if it is

established by clear and convincing evidence,

and if it is further found by clear and 

convincing evidence that in the particular 

family circumstance the wilful misuse tends to 

show that, in the future, the parent who engaged 

in the wilful misuse will not be able to cooperate 

successfully with the other parent in their shared

responsibilities for the child. The court shall

articulate findings of fact whenever relying upon 

this factor as part of its determination of the 

best interests of the child. For the purposes of

this section, when taken alone, the voluntary

dismissal of a petition for protection from abuse

shall not be treated as prima facie evidence that

a wilful misuse of the protection from abuse 

process has occurred.

10 FOFs 59, 62-64, and COL 14 state as follows:

[(Findings of Fact)]

59. The video shows that the minor child did not wish to

transition to [Mother].

. . . .

62. [Mother] then requested a uniformed police officer to

walk up to the minor child to bring the minor child to her.

63. There was nothing that prohibited [Mother] from walking

to the minor child, who was no longer near [Father].

64. The Court finds that said action was not in the best

interest of the minor child.

(continued...)

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regarding a video showing a time-sharing exchange of Child

between the parents at the main police station, and the Court's

conclusions regarding the video evidence. POE 4 also challenges

the conclusion that "some of [Mother's] behavior" was

"detrimental" to Child in COL 14.

Mother argues that the Family Court erred in COLs 14

and 15, and FOFs 47, 59, and 62-64, because, "[i]nstead of and

without applying all of the sixteen statutory factors in HRS §

571-46(b), the family court at COL 14 made vague references to

'[Mother]'s behavior' being 'detrimental' to [Child]." Mother

claims the "lack of explanation" shows that there was "some

unwritten factor or bias [that] formed a substantial basis" of

the Court's custody decision. Mother asserts that instead of

looking at the totality of all of the best interest factors, the

Family Court abused its discretion by its "myopic focus on one

time-sharing exchange" which occurred pursuant to court order

with restrictions imposed by the police station.

The findings in FOFs 59, 62, and 63, and the mixed

conclusion of law and fact in FOF 64 regarding the video of the

time-sharing exchange, are supported by substantial evidence and

not clearly erroneous.11 See Gordon, 135 Hawai#i at 348, 350 P.3d

at 1016; JW, 146 Hawai#i at 585, 463 P.3d at 1242. "It is wellsettled that an appellate court will not pass upon issues

dependent upon the credibility of witnesses and the weight of

10(...continued)

. . . .

[(Conclusions of Law)]

14. The Court finds that some of [Mother's] behavior has

been detrimental to the minor child, but the Court further finds

that the minor child's need to be with both parents outweighs the

effects of [Mother's] actions.

11 The video recorded by Mother is 9 minutes, 45 seconds long, and

appears to show the parties exchanging Child at the Honolulu Police Department

main station. Child is seen crying and reluctant to walk through the metal

detector, from Father outside the security barrier, to Mother seated inside

the area past the metal detector, recording the video. Father comforts Child. 

Mother is heard repeatedly asking Father to help Child through the metal

detector. Father does not respond, except to hold his hand up in response to

Mother who says: "This is part of the problem - can you help [Child]

through?" Mother tells an officer sitting nearby that she may need assistance

to escort Child through the metal detector, but the officer declines. Father

says goodbye and leaves. The remaining video shows Mother talking to Child.

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evidence; this is the province of the trier of fact." Fisher,

111 Hawai#i at 46, 137 P.3d at 360 (quoting In re Doe, 95 Hawai#i

183, 190, 20 P.3d 616, 623 (2001)). The Family Court viewed and

weighed the video evidence as factfinder, and we do not disturb

its findings on appeal.

The record does not show that the Family Court abused

its broad discretion in weighing the best interest factors in

determining the award of custody. In determining custody, "the

family court is granted broad discretion to weigh the various

factors involved, with no single factor being given presumptive

paramount weight, in determining whether the standard has been

met." Inoue v. Inoue, 118 Hawai#i 86, 105, 185 P.3d 834, 853

(App. 2008) (quoting Fisher, 111 Hawai#i at 50, 137 P.3d at 364). 

Numerous findings appear pertinent to the factors the Family

Court had to consider in its custody determination, including any

history of abuse by a parent, the quality of the parent-child

relationship, each parent's ability to separate their own needs

from the child's needs, each parent's mental health, areas and

levels of conflict present in the family, and parental

cooperation to implement plans to meet Child's needs. See HRS §

571-46(b)(1), (b)(2), (b)(3), (b)(5), (b)(12), (b)(14), (b)(15). 

The Court made findings regarding Father's lack of mental health

diagnosis or any other issue affecting his ability to parent. 

FOFs 15, 16, and 17. Abuse was not a concern in this case. FOF

19. The Family Court found the parents had poor communication,

difficulty co-parenting in a peaceful manner, with Mother driving

much of the conflict. FOFs 22, 46, and 48. Mother quit and

refused using the Parenting Coordinator, and failed to respond to

Father's requests to discuss the issue. FOFs 49 and 50. The

Court noted there were incidents where Mother would not share

information with Father and said it was because Father did not

ask. FOF 51. Mother told Child that she feared Father. FOF 52. 

Mother's actions in the time-sharing video were "not in the best

interest" of Child. FOFs 59-64. COL 14, containing the Court's

finding and conclusion that some of Mother's behavior was

"detrimental" but nevertheless outweighed by Child's need to be

with both parents, is actually a mixed FOF and COL subject to the

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clearly erroneous standard of review. See JW, 146 Hawai#i at

585, 463 P.3d at 1242. The Court's finding in COL 14 that

Mother's behavior was "detrimental" to Child is supported by the

unchallenged findings above12 and the challenged video findings

in FOFs 59, and 62-64, all of which were within the Court's

province as the factfinder. The record shows the Court weighed

the facts that it found and applied the best interest factors in

arriving at its conclusion that Child's "need to be with both

parents outweigh[ed]" the effects of Mother's "detrimental"

actions. COL 14. Thus, COL 14 was not wrong.

The family court "is given much leeway in its

examination of the reports concerning a child's care, custody,

and welfare, and its conclusions in this regard, if supported by

the record and not clearly erroneous, must stand on appeal." 

Fisher, 111 Hawai#i at 46, 137 P.3d at 360. On this record, the

Court's conclusion in FOF 47, that it would not be in Child's

best interest if either parent had sole legal custody because the

other parent would not have an opportunity for input, and

ultimate conclusion in COL 15 that joint legal and physical

custody of Child was in Child's best interest, were not

erroneous. See Gordon, 135 Hawai#i at 348, 350 P.3d at 1016.

2. A joint custody award with a tie-breaking

provision is not precluded by statute.

We next address Mother's contentions in POEs 1, 7, and

8, related to the joint custody award. In these POEs, Mother

challenges FOF 20, and the second sentence of FOF 47, which

state:

20. Although Dr. Acklin's report recommended what was

equivalent to sole legal custody to [Mother] or

alternatively joint legal custody with tie breaking

authority to [Mother], he testified that he would agree that

the parties could have joint legal custody so long as there

was a neutral body that could assist them with any disputes.

. . . .

47. It would not be in the minor child's best

interest if either party has sole legal custody, as the

other party would be prohibited from providing input. The

12 Unchallenged findings of fact are binding upon appeal. In re Doe,

99 Hawai#i 522, 538, 57 P.3d 447, 463 (2002).

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Court cannot order joint legal custody with tie breaking

authority.

(Emphasis added).

FOF 20 is a recitation of Dr. Marvin Acklin's (Dr.

Acklin) report and testimony as custody evaluator, which Mother

disagrees with, but does not specifically challenge. As FOF 20

appears to accurately set forth Dr. Acklin's recommendation and

testimony, it is not clearly erroneous. Gordon, 135 Hawai#i at

348, 350 P.3d at 1016. 

In POEs 1 and 2, Mother contends that the Family Court

erred in FOF 47 by ruling that the court "could not order joint

legal custody with tie-breaking authority." In POEs 7 and 8,

Mother challenges FOF 20 that the parties could have joint legal

custody so long as there was a neutral body to assist them in

disputes; and Mother opposes the imposition of a costly and

burdensome dispute resolution process that Mother says she could

not afford.13

Mother argues that the Family Court made an erroneous

"conclusion of law about tie-breaking authority that is

reviewable de novo," when it stated in FOF 47 that it could not

order joint legal custody with tie-breaking authority. Mother

asserts that the Family Court was not barred, under the

13 As to custody and timesharing of Child, the Divorce Decree

provided:

6. Custody and Timesharing. The parties shall have

joint legal and joint physical custody.

For joint legal custody, the parties shall be required

to discuss any legal issues via Our Family Wizard. A party

shall have forty-eight (48) hours to respond regarding a

legal custody issue. If there is no response within fortyeight (48) hours, then the non-responsive party will be

considered to be in agreement with the legal custody

decision proffered.

In the event of an impasse regarding child-related

issues, [Mother] and [Father] shall attempt to resolve the

issue through Mediation Center of the Pacific or other

mutually agreed upon mediator. If the parties are unable to

resolve the issue through mediation, then they shall retain

the services of a Parenting Coordinator if they are unable

to agree on any child-related issues. 

[Mother] and [Father] shall share equally the cost of

mediation and the Parenting Coordinator.

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"governing statutory scheme" of HRS § 571-4614 or HRS § 571-

46.1,15 from awarding tie-breaking authority to one parent in a

joint custody award; and that the Family Court could do so as a

"court of equity" under HRS § 571-3.16 Mother urges that the

14 HRS § 571-46(a)(1) specifies the legal criteria for a custody

award, and subsection (a)(4) provides for an investigation and report by a

child custody evaluator to aid the court:

(a) . . . . In awarding the custody, the court shall be

guided by the following standards, considerations, and

procedures:

(1) Custody should be awarded to either parent or to

both parents according to the best interests of the 

child, and the court also may consider frequent,

continuing, and meaningful contact of each parent with

the child unless the court finds that a parent is

unable to act in the best interest of the child;

. . . .

(4) Whenever good cause appears therefor, the court

may require an investigation and report concerning the

care, welfare, and custody of any minor child of the

parties. When so directed by the court, investigators

or professional personnel attached to or assisting the

court, hereinafter referred to as child custody

evaluators, shall make investigations and reports that

shall be made available to all interested parties and

counsel before hearing . . . .

(Emphases added). 

15 HRS § 571-46.1 (2018), entitled "Joint custody," provides:

(a) Upon the application of either parent, joint custody

may be awarded in the discretion of the court. For the

purpose of assisting the court in making a determination

whether an award of joint custody is appropriate, the court

shall, upon the request of either party, direct that an

investigation be conducted pursuant to the provisions of

section 571-46(a)(4).

(b) For the purposes of this section, "joint custody" means

an order awarding legal custody of the minor child or

children to both parents and providing that physical custody

shall be shared by the parents, pursuant to a parenting plan

developed pursuant to section 571-46.5 . . . .

(Emphasis added). The child custody evaluator's report is also used by a

court to determine the appropriateness of a joint custody award. See HRS §

571-46(a)(4).

16 HRS § 571-3 (2018), entitled "Family courts, divisions of circuit

courts," provides:

The family courts shall be divisions of the circuit courts

of the State and shall not be deemed to be other courts as

that term is used in the State Constitution. . . . In any

case in which it has jurisdiction the court shall exercise

(continued...)

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Family Court has "broad powers," "inherent authority[,] and

discretion to include tie-breaking provisions in a joint legal

custody award under appropriate circumstances involving parents

who cannot communicate effectively, where not otherwise

constrained by statute."

To support her argument, Mother primarily relies on a

Maryland case, Santo v. Santo, 141 A.3d 74, 89 (Md. 2016), in

which the Maryland Court of Appeals held:

[A] court of equity ruling on a custody dispute may, under

appropriate circumstances and with careful consideration

articulated on the record, grant joint legal custody to

parents who cannot effectively communicate together

regarding matters pertaining to their children. In doing

so, the court has the legal authority to include tiebreaking provisions in the joint legal custody award.

(Emphasis added). In Santo, the father challenged the trial

court's award of joint custody with tie-breaking provisions as

illegal, because it violated the custody statute as it was

"neither single nor joint, but a hybrid of the two—an option not

set forth in the statute." Id. at 83. The Santo Court explained

that the lower court's authority to award custody did not derive

solely from statute, but also from common law, and the "broad and

inherent authority of a court exercising its equitable powers to

determine child custody." Id. at 84 (quoting Taylor v. Taylor,

508 A.2d 964, 968 (Md. 1986)).17 The Court considered the

propriety of "tie-breaking provisions" in joint custody awards

that "grant one parent the authority to make a decision about a

matter affecting the child when the parents cannot agree." Id.

at 76. The Santo Court explained:

In a joint legal custody arrangement with tie-breaking

provisions, the parents are ordered to try to decide

together matters affecting their children. When, and only

16(...continued)

general equity powers as authorized by law.

(Emphasis added).

17 In Taylor, decided thirty years prior, the Maryland Court of

Appeals held that "an award of joint custody was a permissible exercise of a

trial court's general equity powers" and the "most important factor for a

court to consider before awarding joint custody is the capacity of the parents

to communicate and to reach shared decisions affecting a child's welfare." 

Santo, 141 A.3d at 76 (citing Taylor, 508 A.2d at 964).

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when the parties are at an impasse after deliberating in

good faith does the tie-breaking provision permit one parent

to make the final call. Because this arrangement requires a

genuine effort by both parties to communicate, it ensures

each has a voice in the decision-making process.

Id. at 81. Because the Maryland custody statute authorized joint

custody without any limitations, and because the Santo Court

considered joint custody with tie-breaking provisions to be a

form of joint custody, it held that such a custody award was not

precluded by statute. Id. at 84.

The Santo Court considered authority from other

jurisdictions that have affirmed such provisions granting one

parent "tie-breaking authority," or "final decision-making

authority," in light of a family court's broad discretionary

powers. See id. at 81-83 (citing Ronny M. v. Nanette H., 303

P.3d 392, 405 (Alaska 2013) ("The court's approach [awarding

joint legal custody with final decision-making authority to

mother] is reasonably intended to encourage both parents to

communicate and attempt to make decisions about their children .

. . ."); State on behalf of Maddox S. v. Matthew E., 873 N.W.2d

208, 219 (Neb. Ct. App. 2016) ("We also point out that the court

maintained the goal of 'mutual agreement' between the parties . .

. .; only now, the final say as to certain major issues rests

with the designated parent if they cannot otherwise agree.");

Shea v. Metcalf, 712 A.2d 887, 891 (Vt. 1998) ("By avoiding an

'all or nothing approach,' the order keeps both parents in the

role of active parenting, takes full advantage of their

individual strengths, and avoids awarding either parent

responsibility for which he or she is not suited.")).

Other jurisdictions have affirmed provisions granting

tie-breaking or final decision-making authority to one parent in

shared or joint legal custody situations, as within the family

court's broad discretionary powers. See, e.g. Nicaise v.

Sundaram, 432 P.3d 925, 928 (Ariz. 2019) (providing that vesting

final decision-making authority in one parent may be appropriate

in instances where "the parents cannot reach a joint agreement in

good faith," and such award of joint legal decision-making with

one parent having final authority does not "necessarily give[]

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that parent sole legal decision-making authority"); Cassady v.

Signorelli, 56 Cal. Rptr. 2d 545, 549 (Cal. Ct. App. 1996)

(affirming the trial court's ruling that father should have the

"final say" as to child's health care decisions in the event of

disagreement between the parties due to trial court's "very

extensive discretion" as to best interests of the child); Lopes

v. Ferrari, 204 A.3d 1254, 1260-61 (Conn. App. Ct. 2019)

(affirming the trial court's grant to mother of primary physical

custody and "final decision-making authority" on major issues);

Macklin v. Johnson, 268 A.3d 1273, 1281 (D.C. 2022) (holding the

trial court did not abuse its discretion by granting mother

"final decision-making authority" based on practical issue of

parents' inability to reach joint decisions about the children's

welfare); Rembert v. Rembert, 674 S.E.2d 892, 894 (Ga. 2009)

(concluding it was unlikely the parents would agree on the

children's education and it was necessary to designate a "final

decision-maker" and no abuse of discretion where trial court

selected primary custodial parent as that decision-maker); Klein

v. Klein, 208 A.3d 802, 805 n.2 (Me. 2019) (citations omitted)

("[A] court is authorized to award a combination of shared and

allocated parental rights by granting one parent explicitly final

decision-making authority when necessary for the best interest of

a child."); D.B. v. J.B., 144 N.E.3d 911, 922 (Mass. App. Ct.

2020) (affirming grant of "final decision-making authority" to

mother for children's medical needs based on judge's discretion);

S.K.B.-G. by and through J.P.G. v. A.M.G., 532 S.W.3d 231, 240-41

(Mo. Ct. App. 2017) (affirming trial court's order awarding joint

legal custody of the child and vesting "final decision-making

authority" with father in event the parties could not agree);

Prohaszka v. Prohaszka, 958 N.Y.S.2d 508, 509 (N.Y. App. Div.

2013) (amending order as to mother's primary physical custody of

the children to give mother "final decision-making authority"

after consulting with father); Ward v. Halprin, 853 S.E.2d 7, 9

(N.C. Ct. App. 2020) (upholding trial court's "substantial

latitude" in fashioning a joint legal custody arrangement such as

"final decision-making authority" on major issues involving the

children that was given to mother based on the trial court's

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findings); Glidewell v. Glidewell, 869 N.W.2d 796, 808 (Wis. Ct.

App. 2015) (holding that circuit court did not erroneously

exercise its discretion in ordering joint custody with final

decisions as to medical matters to mother, and "final decisionmaking authority" as to education to father, "after the parties

have conferred").

Here, the Family Court concluded that tie-breaking was

not an option available to it, and did not consider it.18 The

Family Court's statement in FOF 47 that: "[t]he Court cannot

order joint legal custody with tie breaking [sic] authority" is a

conclusion of law reviewable de novo. See Doe, 95 Hawai#i at

190, 20 P.3d at 623. We conclude that the applicable statutes in

Hawai#i -- HRS § 571-3, HRS § 571-46, and HRS § 571-46.1 –- do

not preclude a family court from granting tie-breaking authority

to one parent in a joint legal custody award if such a provision

18 The transcript also reflects that the Family Court believed it

could not order tie-breaking authority:

Q [FATHER'S COUNSEL]: Do you think that you should be

the only one making the decision in the event of a

disagreement?

A [MOTHER]: No. I don't think I'm the only one. I

think that there should be discussion, and that's ultimately

what I had proposed numerous times.

THE COURT: I want to make sure everybody is aware. I

cannot order tiebreaking authority. So I don't know why we

even discuss it. It's either joint or sole. So you

mentioned it too.

[MOTHER'S COUNSEL]: I know.

THE COURT: It's in your position even. So let's –-

[MOTHER'S COUNSEL]: Well, we were hoping at some

point there might be a stip still.

THE COURT: As long as everybody's clear, I can't

order it.

[FATHER'S COUNSEL]: The reason I'm discussing it now,

Your Honor, is just to essentially demonstrate what was

taking place during the pendency of this litigation.

THE COURT: No. I understand that. But when you're

talking about what the decree is going to look like, I can't

do tiebreaking.

[FATHER'S COUNSEL]: Understood.

(Emphases added).

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is in the best interests of the child. HRS § 571-46(a), setting

forth the best interests of the child criteria for custody

determinations, does not have language that would preclude an

award of joint custody with tie-breaking authority to one parent. 

The joint custody statute, HRS § 571-46.1(a), provides for joint

custody awards "in the discretion of the court." HRS § 571-

46.1(b) provides:

For the purposes of this section, "joint custody" means an

order awarding legal custody of the minor child or children

to both parents and providing that physical custody shall be

shared by the parents, pursuant to a parenting plan

developed pursuant to section 571-46.5, in such a way as to

assure the child or children of frequent, continuing, and

meaningful contact with both parents; provided, however,

that such an order may award joint legal custody without

awarding joint physical custody.

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A "parenting plan" under HRS § 571-46.519 may include provisions

related to "[p]arental decision-making" and methods "for

resolving disputes." HRS § 571-46.5(c)(3) and (c)(10); see

Hollaway v. Hollaway, 133 Hawai#i 415, 422 n.6, 329 P.3d 320, 327

n.6 (App. 2014), overruled on other grounds by Waldecker v.

O'Scanlon, 137 Hawai#i 460, 375 P.3d 239 (2016) (noting that in

19 HRS § 571-46.5 (2018) provides:

(a) For every action that includes a contested custody of

children, both parties or both parents shall develop

either a mutually agreed-upon general parenting plan

or separate individually-desired parenting plan, and

file the plan at the outset of the action.

. . . .

(c) A detailed parenting plan may include, but is not

limited to, provisions relating to:

(1) Residential schedule;

(2) Holiday, birthday, and vacation planning;

(3) Parental decision-making and responsibility;

(4) Breastfeeding, if applicable;

(5) Information sharing and access;

(6) Relocation of parents;

(7) Telephone access and other means of

communication;

(8) Right of first refusal procedures;

(9) Transportation; and

(10) Methods for changing or enforcing the parenting

plan and for resolving disputes.

(d) If the parties cannot agree on a parenting plan, the

court may:

(1) Order the parties to participate in alternative

dispute resolution and in counseling with a

person with professional experience in child

custody or parenting issues, or with other

appropriate education, unless there is a finding

of family violence; and

(2) Develop and file a detailed parenting plan when

requested by either of the parties or parents.

The March 9, 2020 FOFs/COLs do not reflect whether a parenting

plan under HRS § 571-46.5 was used in determining joint custody. The record

does not indicate that a "mutually agreed-upon" parenting plan or "separate

individually-desired" parenting plans were filed "at the outset of the action"

under HRS § 571-46.5(a).

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cases where joint custodial parents reach an impasse in decisionmaking regarding their child, preliminary alternatives such as a

parenting plan could lead to a better-informed resolution of

immediate issues, as well as serving as a means for the parents

to develop co-parenting skills that would best serve the child). 

It is well-recognized that the family courts possess "wide

discretion" in making decisions. Fisher, 111 Hawai#i at 46, 137

P.3d 355 at 360.

Here, Dr. Acklin recommended that "the parties share

physical custody," and that the Court order "shared legal custody

with [Mother] having tie breaking [sic] authority . . . ." FOF

12. The Family Court found that Mother and Father did not

communicate effectively and blamed each other for their inability

to communicate. See FOFs 21 and 46. Several e-mails in evidence

reflected the parties' difficulties with communicating in a

"peaceful and co-parenting manner." FOF 48. Although Dr.

Acklin's report recommended "what was equivalent to sole legal

custody to [Mother] or alternatively joint legal custody with tie

breaking [sic] authority to [Mother]," Dr. Acklin testified that

the parties "could have joint legal custody" as long as "there

was a neutral body that could assist them with any disputes." 

FOF 20. Even though Dr. Acklin had recommended joint legal

custody with tie-breaking authority to Mother, the Family Court

determined that it "cannot order joint legal custody with tie

breaking [sic] authority" and imposed joint legal custody with a

mandatory dispute resolution process. FOFs 12 and 47. Thus, the

record reflects that the Family Court rejected tie-breaking

authority as a matter of law, and ordered a dispute resolution

process modeled after Dr. Acklin's testimony that the parties

"could have joint legal custody so long as there was a neutral

body that could assist them with any disputes." FOF 20.

Under the circumstances of this case, we conclude that

the Family Court was not precluded from ordering joint legal

custody with tie-breaking authority to one parent, based on its

broad discretion, if the Court determined that this was in

Child's best interests. See Fisher, 111 Hawai#i at 46, 137 P.3d

at 360; Santo, 141 A.3d at 84. FOF 47 reflects that the Court

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wanted to avoid a situation where one parent was prohibited from

providing input. An approach awarding parents joint custody with

one parent having tie-breaking authority can be structured to

encourage both parties to communicate and to require both parents

to attempt to make decisions together. See Santo, 141 A.3d at

81. Joint custody with tie-breaking authority is an alternative

that addresses the Court's expressed concern of avoiding a

situation where one parent is excluded from having input. In

light of the above, we vacate the Family Court's orders to the

extent it held it could not order joint legal custody with tiebreaking authority and regarding the dispute resolution process

and costs set forth in the Divorce Decree, which were raised in

POEs 1, 7, and 8. We remand for further proceedings on these

issues consistent with this opinion.

B. Equalization payment, POE 11

Mother challenges FOF 101, and COL 31,20 where the

Family Court imposed the "inequitable equalization payment" based

on Father's "late-disclosed" and "unsubstantiated" debts, which

consisted of (1) a personal loan for attorneys' fees and costs

claimed by Father in an asset and debt statement dated one week

before trial; and (2) a student loan that was not supported by

corroborating evidence. Mother did not object to the testimony

or exhibits regarding these debts at trial,21 and her contention

20 FOF 101 states: "[Father]'s Asset and Debt Statement dated

September 19, 2019 was used to create the PDC with regards to [Father]'s

assets and debts. (See [Father]'s Exhibit "F".)" COL 31 states: "31. The

Court finds that per the PDC [Mother] would owe [Father] an equalization

payment of $20,871.48."

21 The trial transcript reflects the following:

Q [FATHER'S COUNSEL]: Okay. You also have a –- a

personal loan listed; correct?

A [FATHER]: Yes.

Q: In the amount of $75,000; correct?

A: Yes.

Q: Is that a –- who is that loan from?

A: That loan is from my sister and her husband.

(continued...)

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is waived. See Kawamata Farms, Inc. v. United Agr Products, 86

Hawai#i 214, 248, 948 P.2d 1055, 1089 (1997) ("The general rule

is that an issue which was not raised in the lower court will not

be considered on appeal.") (citations and internal quotation

marks omitted)).

21(...continued)

Q: Okay. When did the loan –- when was the loan

initiated?

A: It was initiated in January of –- January,

February of 2018.

Q: Okay. And was that at the commencement of the –-

this litigation?

A: Yes.

Q: Okay. And has that loan been extended for

purposes of litigation fees?

A: Yes, it has.

Q: Okay. And has it also helped you meet your

monthly deficiency –- meet your expenses?

A: It has and –-

Q: Okay. Also you have here listed a student loan;

correct?

A: Yes.

Q: And this has not been included on your prior

income and expense statements; correct?

A: Correct.

Q: And was that an unintentional omission?

A: It was, yeah. And it's on auto pay so it's not

something I really think about.

Q: Okay.

A: It's a –-

Q: Comes out of your account? Okay. But that is an

accurate reflection of your outstanding balance?

A: Yes, it is.

Q: Correct? 

 Your Honor, I'd like to move Exhibit F [Father's 

Asset & Debt Statement] into evidence.

THE COURT: Exhibit F is received.

(Emphases added). 

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C. Spousal Support, POE 12

In POE 12, Mother contends that the Family Court erred

in making COLs 22 and 32,22 where the Court "denied spousal

support" to Mother as an "offset" for the $20,871.48 equalization

payment in COL 31, without first calculating the amount of

spousal support to which Mother was entitled. Mother's

contention has merit.

"We review the family court's final division and

distribution of the estate of the parties under the abuse of

discretion standard, in view of the factors set forth in HRS §

580-47 and partnership principles." Gordon, 135 Hawai#i at 348,

350 P.3d at 1016 (citations omitted).

When deciding the issue of spousal support:

The first relevant circumstance is the payee's need. What

amount of money does he or she need to maintain the standard

of living established during the marriage? The second

relevant circumstance is the payee's ability to meet his or

her need without spousal support. Taking into account the

payee's income, or what it should be, including the net

income producing capability of his or her property, what is

his or her reasonable ability to meet his or her need

without spousal support? The third relevant circumstance is

the payor's need. What amount of money does he or she need

to maintain the standard of living established during the

marriage? The fourth relevant circumstance is the payor's

ability to pay spousal support. Taking into account the

payor's income, or what it should be, including the income

producing capability of his or her property, what is his or

her reasonable ability to meet his or her need and to pay

spousal support?

Wong, 87 Hawai#i at 485, 960 P.2d at 155 (citations and brackets

omitted).

HRS § 580-47(a) (2018) requires the family court to

consider the following criteria in deciding spousal support: 

"the respective merits of the parties, the relative abilities of

the parties, the condition in which each party will be left by

the divorce, the burdens imposed upon either party for the

benefit of the children of the parties, . . . and all other

circumstances of the case." HRS § 580-47(a) further requires the

court to consider a list of thirteen additional factors. Id. 

22 COL 22 states: "Neither party shall be required to provide

support or maintenance for the other party." COL 32 states: "In lieu of

alimony, [Mother] shall not be required to pay the equalization payment set

out in the PDC." 

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While the record reflects some findings pertinent to the

statutory considerations such as the parties' financial resources

(see FOFs 76, 79, and 83 relating to each party's income),

ability of Mother to meet her needs independently (see FOF 89

regarding Mother's work history and desire for further education,

and FOFs 95 and 96 regarding changes in Mother's earning

capacity), the findings and conclusions do not reflect an

assessment of the statutory factors and a determination of the

factual inquiries set forth in Wong, which the Family Court

itself quoted in COLs 6 and 7. See I.S. v. P.S., Nos. 30179,

CAAP-10-0000082, 2013 WL 4458889, at *8 (App. Aug. 21, 2013)

(mem.) (holding that the family court "abused its discretion in

awarding Wife $2,000 a month in alimony without some indication

that it had considered the factors pursuant to HRS § 580-47(a) or

made the relevant factual determinations."). In light of this

record, the Family Court's conclusions in COLs 22 and 32, where

the Court found neither party should provide support or

maintenance for the other party and the Court waived Mother's

equalization payment in lieu of alimony, are erroneous and thus

vacated because the record does not indicate that the Family

Court considered the HRS § 580-47(a) factors or made the relevant

factual determinations set out in Wong. See id.; Fisher, 111

Hawai#i at 46, 137 P.3d at 360. On remand, the Family Court must

conduct the statutory analysis under HRS § 580-47(a) and the Wong

inquiries to determine whether or not Mother should receive

spousal support, and if so, determine the appropriate amount.

D. Exhibits, POEs 9-10

Mother contends in POE 9 that the Family Court erred by

refusing to allow Mother to introduce stipulated exhibits due to

the Court's "personal policy." In POE 10, Mother challenges FOF

108, which states: "Each side chose to withdraw several exhibits

at the end of trial." Mother argues that the Family Court abused

its discretion in "deeming as withdrawn" the majority of Mother's

trial exhibits which were not objected to by Father, pursuant to

the Family Court's "personal policy." The Family Court stated in

unchallenged FOF 38, however, that the Court "does not have a

policy, nor is there a rule that the Court will automatically

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accept stipulations made by the parties." Mother did not object

or request that any particular exhibit be admitted, and her

contentions are waived.23 See Kawamata Farms, 86 Hawai#i at 248,

948 P.2d at 1089.

E. CAAP-20-0000489, Motion to Alter

1. Jurisdiction in CAAP-20-0000489

Father contends that the appeal in CAAP-20-0000489 of

the June 29, 2020 Order Re: Post-Judgment Motions should be

dismissed for lack of jurisdiction, due to Mother's untimely

filing of her Notice of Appeal on July 29, 2020. Father argues

that because there was no disposition of Mother's December 5,

23 The October 29, 2019 transcript provides:

THE COURT: You want me to read what was received? 

Because you guys are done presenting at this point.

[FATHER'S COUNSEL]: Yeah. That's fine. I can run

through it. I just want to make sure that I have mine all

–-

THE COURT: And with that being said, the remainder of the

exhibits that have not been received, are they being withdrawn?

[FATHER'S COUNSEL]: Your Honor, could we offer MM and NN as

evidence as [Father] testified to those?

THE COURT: MM and NN are received.

([Father's] Exhibits MM & NN were received in evidence.)

[FATHER'S COUNSEL]: Thank you, Judge. Other than that,

withdrawn.

[MOTHER'S COUNSEL]: Your Honor, I would –- I would

respectfully inquire when the Court's policy changed on counsel

being able to stipulate. I mean, especially when we have a short

time for trial and we get jammed –-

THE COURT: It's my personal policy.

[MOTHER'S COUNSEL]: I understand. Thank you.

THE COURT: Okay. All right. So any exhibits that were not

received will be withdrawn. If I could have an expedited order,

you can just leave it at the bailiff's desk just stating the

deadline of the written closing please.

[FATHER'S COUNSEL]: I'm happy to do that, Your Honor.

THE COURT: All right. Thank you.

(End of proceedings.)

(Emphases added). 

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2019 Motion to Alter within 90 days of its filing under Hawai#i

Rules of Appellate Procedure (HRAP) Rule 4(a)(3),24 Mother was

required to file her Notice of Appeal "within 30 days of the

expiration of the 90-day period" in HRAP Rule 4(a)(3). Father

asserts that Mother's December 5, 2019 Motion to Alter was

accordingly "deemed denied" after 90 days, and Mother's July 29,

2020 Notice of Appeal in CAAP-20-0000489 was "extremely

untimely." We conclude that Mother's appeal is timely and that

we have appellate jurisdiction to review the June 29, 2020 Order

Re: Post-Judgment Motions.

a. Mother's Motion to Alter filed on 

December 5, 2019 was a timely filed 

motion under HFCR Rule 59(e).

HRAP Rule 4(a)(3) applies to "timely" filed postjudgment motions. The Motion to Alter was filed on December 5,

2019, within ten days of the November 25, 2019 Trial Order,

24 HRAP Rule 4(a)(3), entitled "Time to appeal affected by postjudgment motions," provides in pertinent part:

If any party files a timely motion . . . to reconsider,

alter or amend the judgment or order, . . . and court or

agency rules specify the time by which the motion shall be

filed, then the time for filing the notice of appeal is

extended for all parties until 30 days after entry of an

order disposing of the motion. The presiding court or

agency in which the motion was filed shall dispose of any

such post-judgment motion by entering an order upon the

record within 90 days after the date the motion was filed. 

If the court or agency fails to enter an order on the

record, then, within 5 days after the 90th day, the clerk of

the relevant court or agency shall notify the parties that,

by operation of this Rule, the post-judgment motion is

denied and that any orders entered thereafter shall be a

nullity. The time of appeal shall run from the date of

entry of the court or agency's order disposing of the postjudgment motion, if the order is entered within the 90 days,

or from the filing date of the clerk's notice to the parties

that the post-judgment motion is denied pursuant to the

operation of the Rule.

The notice of appeal shall be deemed to appeal the

disposition of all post-judgment motions that are timely

filed after entry of the judgment or order.

The 90-day period shall be computed as provided in

Rule 26 of these Rules.

(Emphasis added).

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pursuant to the ten-day deadline in HFCR Rule 59(e),25 and thus

was timely filed. Both Mother and Father agree that the Motion

to Alter was filed on December 5, 2019, and not January 9, 2020

as indicated in FOF 5 in the September 21, 2020 FOFs/COLs.26 In

DL v. CL, 146 Hawai#i 415, 421, 463 P.3d 1072, 1078 (2020), the

Hawai#i Supreme Court held that "the family court clerk's

acceptance and date stamping of a HFCR Rule 59 motion as

'received' was 'a filing that satisfied the jurisdictional

requirements of HFCR Rule 59(a) and (e).'" Here, the Motion to

Alter had a "received" stamp of December 5, 2019 by the family

court clerk but was not file-stamped until January 9, 2020. 

Under DL, the "received" stamp date of December 5, 2019

constituted filing of the motion on that date, and not January 9,

2020. Id. We agree with Mother's contention in POE 16 that the

Family Court clearly erred when it found the motion was filed on

the latter date in FOF 5. See Gordon, 135 Hawai#i at 348, 350

P.3d at 1016.

b. This court has jurisdiction to 

review the Order Re: Post-Judgment 

Motions.

HRAP Rule 4(a)(3) required the Family Court to dispose

of Mother's December 5, 2019 Motion to Alter "within 90 days

after the date the motion was filed." The Order Re: PostJudgment Motions that took no action on the Motion to Alter was

not issued until June 29, 2020, which is beyond the 90-day period

specified by HRAP Rule 4(a)(3). HRAP Rule 4(a)(3) requires that,

if the court fails to enter an order disposing of the motion

within 90 days, then "within 5 days after the 90th day," the

25 HFCR Rule 59(e), entitled "Motion to reconsider, alter or amend a

judgment or order," provides in relevant part: "[A] motion to reconsider,

alter or amend a judgment or order is not required but may be filed no later

than 10 days after entry of the judgment or order and shall be a non-hearing

motion, except that the court in its discretion may set any matter for

hearing." (Emphases added).

26 FOF 5 states: "5. [Mother], via counsel, filed her Motion to

Alter or Amend Decision and Order After Trial Filed November 25, 2019 and Stay

Execution of Order and Hearing Pursuant to Rules 59(e) and 62(b), Hawaii

Family Court Rules, on January 9, 2020." (Emphases added).

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court clerk "shall notify the parties that, by operation of this

Rule, the post-judgment motion is denied and that any orders

entered thereafter shall be a nullity."

Here, the Family Court did not dispose of Mother's

Motion to Alter within 90 days of the filing of the motion, and

the clerk of the court also failed to issue a notice by the 95th

day, informing the parties that the motion was denied pursuant to

HRAP Rule 4(a)(3) and that any order entered thereafter was a

nullity. The rule "does not contemplate this dual failure of

both the court and the court's clerk to execute the requirements

of the rule." Sanchez v. Sanchez, NO. CAAP-17-0000407, 2021 WL

4777103, at *8 (App. Oct. 13, 2021) (SDO). Under the

circumstances of this case, we conclude that the Order Re: PostJudgment Motions was not a nullity for purposes of determining

whether the appeal was timely because the required clerk's notice

under the rule was never provided. If we interpreted the rule as

Father urges us to, that after 90 days there was a "deemed

denial" of Mother's Motion to Alter for purposes of whether an

appeal was timely, it "renders superfluous the requirement that

the clerk provide notice to the parties of the deemed denial." 

Id. For purposes of the deadline to appeal, the Motion to Alter

was not "deemed" denied under HRAP Rule 4(a)(3) where no clerk's

notice was issued. Rather, we conclude that the Order Re: PostJudgment Motions constituted the disposition of Mother's postjudgment Motion to Alter. See HRAP Rule 4(a)(3) ("The notice of

appeal shall be deemed to appeal the disposition of all postjudgment motions that are timely filed after entry of the

judgment or order."). Thus, Mother's appeal is timely because

her earlier, timely-filed Notice of Appeal from the Divorce

Decree in CAAP-19-0000871 is deemed to appeal the disposition of

her timely filed Motion to Alter. See id.; Sanchez, 2021 WL

4777103, at *8.

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2. Motion to Alter, POEs 14 and 15

Mother's contentions in POEs 14 and 15, that the Family

Court erred in COLs 5-7 in ruling that it could not consider the

Motion to Alter because a Notice of Appeal had been filed, have

merit. COLs 5-7 in the September 21, 2020 FOFs/COLs, state:

5. It is well settled that "once a party files a

notice of appeal, the lower court is generally divested of

jurisdiction to proceed further on the matter." Kakinami v.

Kakinami, 127 Hawai#i 126, 143, 276 P.3d 695, 712 (2012)

(citing Lowther v. Lowther, 99 Hawai#i 569, 578, 57 P.3d

494, 503 (App. 2002)). While a case is up on appeal, the

Court may enforce a prior order, but may not modify the

prior order. Id.

6. The Family Court was divested of jurisdiction to

hear [Mother's] Motion to Alter or Amend Decision and Order

After Trial Filed November 25, 2019 and Stay Execution of

Order and Hearing Pursuant to Rules 59(e) and 62(b), Hawaii

Family Court Rules, filed on January 9, 2020.

7. It was proper for the Family Court to take no

further action on [Mother's] January 9, 2020 Motion.

Mother argues that, although courts are generally divested of

jurisdiction upon the filing of a notice of appeal, pursuant to

HRAP Rule 4(a)(3), the Family Court "retained jurisdiction to

alter or amend the decree for another 90 days . . . ."

The Hawai#i Supreme Court has explained that:

The general rule is that courts are divested of jurisdiction

upon the filing of a notice of appeal. Kakinami, 127

Hawai#i at 143, 276 P.3d at 712. However, in Buscher v.

Boning, 114 Hawai#i 202, 221, 159 P.3d 814, 833 (2007), this

court held that the 1999 version of HRAP Rule 4(a)(3)

"supersedes the line of cases standing for the proposition

that the circuit court lacks jurisdiction to award costs

after a notice of appeal is filed" and "provides that the

court has 90 days to dispose of a post-judgment motion to

reconsider, vacate, or alter the judgment, or seeks

attorney's fees or costs, regardless of when the notice of

appeal was filed." Although HRAP Rule 4(a)(3) has since

been amended, the language providing that a court has 90

days to dispose of a timely post-judgment motion has not

changed substantively.

DL, 146 Hawai#i at 421-22, 463 P.3d at 1078-79 (brackets,

internal quotation marks, and footnotes omitted). Here, as noted

supra, the Motion to Alter filed December 5, 2019 was a timely

filed post-judgment motion. The Family Court retained

jurisdiction to consider it, even though a Notice of Appeal had

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been filed on December 23, 2019. The Family Court erred in

concluding in COLs 5-7 that it lacked jurisdiction over the

motion because an appeal had been filed. See id.; HRAP Rule

4(a)(3).

Accordingly, we vacate the Order Re: Post-Judgment

Motions to the extent the Family Court took no further action on

the Motion to Alter, and remand for the Family Court to consider

the motion on its merits. In view of this resolution, it is

unnecessary to address Mother's remaining contentions in POEs 13

and 17 regarding the merits of the Motion to Alter.

IV. CONCLUSION

For the foregoing reasons, as to CAAP-19-0000871, we

vacate in part (1) the Family Court of the First Circuit's

November 25, 2019 Decision and Order Re: Trial, Child Support

Guidelines Worksheet, and Property Division Chart; and (2) the

December 16, 2019 Decree Granting Absolute Divorce and Awarding

Child Custody, and remand for further proceedings consistent with

this Opinion, as follows:

(1) The award of joint custody is affirmed, but the 

orders regarding the dispute resolution process and

costs are vacated;

(2) The award of joint custody is remanded to

determine whether a grant of tie-breaking authority 

is appropriate as part of the joint custody award; and

(3) The issue of spousal support is remanded to

determine whether spousal support should be awarded, 

and if so, a determination of the amount. 

We otherwise affirm in part as to the remainder.

As to CAAP-20-0000489, we vacate in part the June 29,

2020 Order Re: Plaintiff's Motion to Amend or Alter Decision and

Order and Granting Defendant's Motion to Enforce Decree to the 

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extent it did not address the Plaintiff's Motion, and remand for

consideration of that motion on the merits, consistent with this

Opinion.

On the briefs:

Sharla A. Manley

for Plaintiff-Appellant

Rosa Flores

(Law Office of Rosa Flores)

for Defendant-Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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