Child Support Enforcement Agency v. MSH

• Decision Date: 30 April 2013
• Docket Number: NO. CAAP-11-0001037,CAAP-11-0001037
• Parties: CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI'I, Plaintiff-Appellee, v. MSH, Defendant-Appellee, and GVG, Defendant-Appellant
• Court: Hawaii Court of Appeals

CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI'I, Plaintiff-Appellee,

v.MSH, Defendant-Appellee, and GVG, Defendant-Appellant

NO. CAAP-11-0001037

INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I

DATED: April 30, 2013

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(FC-PATERNITY NO. 09-1-0707)

MEMORANDUM OPINION

(By: Foley, Presiding J., Fujise and Reifurth, JJ.)

Defendant-Appellant GVG (Father) appeals from the "Order Granting Defendant [MSH's (Mother)] Motion For Relief After Order Or Decree Filed September 27, 2010" entered in the Family Court of the First Circuit¹ (family court) on November 10, 2011. The family court adjudicated the issue of child support arrearage due by Father to Mother from January 2005 to September 2009 and ordered Father to pay $47,650.00.

I. Points On Appeal

On appeal Father contends the family court erred when it (1) ordered Father to pay arrearage in the amount of$47,650.00 to Mother; and (2) clearly erred in Findings of Fact (FOFs) 33, 49-55 & 63-69.

Father challenges the following FOFs:

33. The Court found credible Mother's testimony that Mother and [Father] had sexual relations and conceived the subject minor child in Manila, Philippines.

. . . .

49. Father's gross income for purposes of calculating child support was based on the Child Support Guidelines for the period from 2005 through 2009 which is sum of income from all sources that were regular and consistent, including but not limited to employment salaries and wages, military base and special pay and allowances, such as basic allowance for housing (BAH), basic allowance for subsistence (BAS), hazardous duty pay, cost-of-living allowance (COLA), selective reenlistment bonus (SRB), retired/retainer pay, and reserve pay was higher than the amount reported as total income on each of his tax returns for that period.

50. Evidence was introduced at trial that for the year 2005, Father's monthly gross income was $6,579 or the sum of his gross monthly: 1) base pay ($39,302.70 divided by 12 = $3,275.23) plus 2) Second job ($20,000 divided by 12 = $1,666.67 plus 3) BAH at $1376 and 4) BAS at $260.82.

51. [Father] testified at trial that he had no reason to believe that [Mother's] evidence of his BAS and BAH was incorrect

52. Evidence was introduced at trial that for the year 2006, Father's monthly gross income was $11,675.59 or the sum of his gross monthly 1) base pay & 2nd job ($120,184 divided by 12 = $10,015) plus 2) BAH at $1,388 and 3) BAS $272.26.

53. Evidence was introduced at trial that for the year 2007, Father's monthly gross income was $4884.63 or the sum of his gross monthly: 1) base pay ($37,845 divided by 12 = $3,153.75) plus 2) BAH at $1451 and 3) BAS at $279.88.

54. Evidence was introduced at trial that for the year 2008, Fathers monthly gross income is $5849.11 or the sum of his gross monthly 1) base pay ($39,224.19 divided by 12 = $3,268.68[)] plus 2) BAH at $2286 and 3) BAS at $294.43.

55. Evidence was introduced at trial that for the year 2009, Fathers monthly gross income is $6866.87 or the sum of his gross monthly 1) base pay ($40,438 divided by 12 = $3,369[)] plus 2) BAH at $2,274 plus 3) BAS $323.87 and 4) COLA at 900.00.

. . . .

63. Based on the totality of the witnesses' testimony and credible evidence the Court finds that pursuant to the child support guidelines for the period from January 15, 2005 to December 31, 2005 or for eleven (11) months the amount ofchild support payable by Father to Mother per month is $770 for a total of $8,470.00 for eleven months. The calculations are based on Father's monthly gross income of $6,579.00, Mother's imputed gross income of $1256.00, less no costs for childcare expenses and health insurance, which was waived by Mother.

64. Based on the totality of the witnesses' testimony and credible evidence the Court finds that pursuant to the child support guidelines for the period from January 1, 2006 to December 31, 2006 or for twelve (12) months the amount of child support payable by Father to Mother per month is $1,290 for a total of $15,480. The calculations are based on Father's monthly gross income of $11,675.00, Mother's imputed gross income of $1,256.00, less no costs for childcare expenses and health insurance, which was waived by Mother.

65. Based on the totality of the witnesses['] testimony and credible evidence the Court finds that pursuant to the child support guidelines for the period from January 1, 2007 to December 31, 2007 or for twelve (12) months the amount of child support payable by Father to Mother is $600 for a total of $7,200. The calculations are based on Father's monthly gross income of $4,885.00, Mother's imputed gross income of $1256.00, less no costs for childcare expenses and health insurance, which was waived by Mother.

66. Based on the totality of the witnesses['] testimony and credible evidence the Court finds that pursuant to the child support guidelines for the period from January 1, 2008 to December 31, 2008 or for twelve (12) months the amount of child support payable by Father to Mother per month is $700 per month for a total of $8,400. The calculations are based on Father's monthly gross income of $5,849.00, Mother's imputed gross income of $1256.00, less no costs for childcare expenses and health insurance, which was waived by Mother.

67. Based on the totality of the witnesses['] testimony and credible evidence the Court finds that for the period from January 1, 2009 to November 1, 2009 or for ten (10) months the amount of child support payable by Father to Mother per month is $810.00 per month for a total of $8,100.00. The calculations are based on Father's monthly gross income of $6,867.00, Mother's imputed gross income of $1256.00, less no costs for childcare expenses and health insurance, which was waived by Mother.

68. Based on the totality of the witnesses['] testimony and credible evidence the Court finds that the total amount of past due support for the period from January 15, 2005, the date of the minor child's birth, through November 2009 is $47,650.

69. The total amount of $47,650 was payable by Father by making one payment of $2500.00 to Mother within to [sic] weeks, and thereafter at a rate of $400.00 per month until the arrearage was paid in full.

II. STANDARDS OF REVIEW

A. Findings of Fact in Family Court

The family court's FOFs are reviewed on appeal under the "clearly erroneous" standard. A FOF is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made. "Substantial evidence" is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.

Fisher v. Fisher, 111 Hawai'i 41, 46, 137 P.3d 355, 360 (2006) (quoting In re Doe, 95 Hawai'i 183, 190, 20 P.3d 616, 623 (2001)).

B. 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. Thus, [an appellate court] will not disturb the family court's decisions on appeal unless the family court disregarded rules or principles of law or practice to the substantial detriment of a party litigant and its decision clearly exceeded the bounds of reason.

Fisher v. Fisher, 111 Hawai'i 41, 46, 137 P.3d 355, 360 (2006) (quoting In re Doe, 95 Hawai'i 183, 189-90, 20 P.3d 616, 622-23 (2001)). "Furthermore, the burden of establishing abuse of discretion is on appellant, and a strong showing is required to establish it." Ek v. Boggs, 102 Hawai'i 289, 294-95, 75 P.3d 1180, 1185-86 (2003) (internal quotation marks, citation, and brackets omitted).

C. Evidence - Foundation for Introduction

"When a question arises regarding the necessary foundation for the introduction of evidence, the determination of whether proper foundation has been established lies within the discretion of the trial court, and its determination will not be overturned absent a showing of clear abuse." State v. Assaye, 121 Hawai'i 204, 210, 216 P.3d 1227, 1233 (2009) (internal quotation marks and brackets omitted).

III. DISCUSSION

A. Findings of Fact

1. FOF 33

The family court clearly erred in FOF 33 which finds the child was conceived in the Philippines. Both Mother and Father testified that Mother conceived the child in Seoul, South Korea. Since this FOF does not have any bearing on the dispute concerning arrearage, the error was harmless.

2. FOFs 50-55 and 63-69

Father contends FOFs 50 through 55 and 63 through 69 are clearly erroneous where the family court based the findings on inadmissible evidence. FOFs 50 through 55 and 63 through 69 pertain to the family court determination of Father's income for the years 2005 through 2009. Father presented evidence of his taxable income for the years at issue and Mother sought to show Father received additional income not listed on his tax returns in the form of non-taxable military allowances. Though Father did not deny receiving the additional income, Father testified he was unsure of the amounts received for the years in question.

At the July 21, 2011 hearing, during direct examination of Father, Mother offered into evidence exhibits U through FF, which consisted of printed web pages from the internet. Mother offered nothing other than these web pages as evidence of authentication, stating the exhibits were "public record information off of the Internet." Father objected on grounds that the exhibits were not properly authenticated as required by the Hawaii Rules of Evidence (HRE). Despite Father's objections to the admissibility of Mother's exhibits U through FF, the family court admitted the exhibits into evidence as public records because they were from a "government website containing public information."

Evidence must be...