Child Support Enforcement Agency v. Doe, 22084.

• Decision Date: 30 November 1999
• Docket Number: No. 22084.,22084.
• Parties: CHILD SUPPORT ENFORCEMENT AGENCY, State of Hawai`i, Petitioner, and Jane Doe, Mother, Petitioner-Appellant, v. John DOE, Father, Respondent-Appellee
• Court: Hawaii Court of Appeals

990 P.2d 1158

92 Haw. 276

CHILD SUPPORT ENFORCEMENT AGENCY, State of Hawai`i, Petitioner, and Jane Doe, Mother, Petitioner-Appellant, v. John DOE, Father, Respondent-Appellee¹

No. 22084.

Intermediate Court of Appeals of Hawai`i.

November 30, 1999.

As Amended December 1, 1999.

Jane Doe, on the briefs, for petitioner-appellant, pro se.

Donald M. Card, Honolulu, on the briefs, for defendant-appellee.

BURNS, C.J., ACOBA, and LIM, JJ.

Opinion of the court by ACOBA, J.

We hold first, that a social study must be ordered by the family court of the first circuit (the court) to determine whether the visitation rights of Petitioner-Appellant Jane Doe (Mother) concerning the female child (Child) must be modified. Second, we hold that a rebuttable presumption favoring a credit against child support applies with respect to social security disability payments paid on behalf of the obligor parent. Because the court rejected the request by Mother for such a credit, we remand this case for consideration of the presumption. On remand, if the court imposes the presumption, we also instruct it to (1) apply the presumption to Mother's obligation to pay any unreimbursed medical expenses of Child, (2) credit child support payments already paid by Mother to future child support payments, (3) determine what credit if any should be given Mother for a lump sum social security disability payment received by Respondent-Appellee John Doe (Father), and (4) determine whether changes in circumstances require a modification in the existing child support order.

I.

On May 1, 1987, a paternity proceeding was initiated by Mother against Father. Mother and Father never married. At a hearing on July 10, 1987, the court awarded Mother temporary custody of Child pending an investigation and report by the Adult Services Branch of the court, and Father was given visitation rights. A social study was conducted and on October 9, 1987, a report was filed.

At a hearing on November 15, 1987, Father acknowledged paternity of Child. A stipulated custody order filed February 10, 1988, awarded Mother sole physical and legal custody of Child, and ordered Father to pay $266.84 per month as child support.

On January 12, 1989, Mother filed a motion to modify Father's visitation arrangements in anticipation of Mother and Child's relocation to the mainland United States. Both were scheduled to leave Hawai`i on May 31, 1989. After a hearing held on March 17, 1989, the court found the move constituted a material change in circumstances and modified the visitation schedule.

Mother and Child lived together in Arizona until December 1997. On December 17, 1997, Child was scheduled to leave for Hawai`i to visit Father. However, Mother advanced Child's trip to December 11, 1997 because she was "[a]fraid for the minor child's well being[.]" Mother then requested that Father "keep the minor child until the end of the 1997-1998 school year[.]"

On January 24, 1998, Father sent Mother a letter requesting "some sort of legal document to make decisions on [Child's] behalf." In the letter, Father also asked if Mother would consent to giving him custody of Child. During a telephone conversation on January 28, 1998, Mother told Father's wife she desired that Child return to Arizona immediately. Father did not send Child back to Arizona. Instead, on January 30, 1998, Father filed a motion to obtain custody of Child and to require Mother to pay child support and a portion of Child's medical costs.

On March 19, 1998, Mother and Father signed a child support guidelines worksheet (March 19 worksheet) which calculated Mother's child support obligation at $240 per month. The record does not indicate who completed the March 19 worksheet.

A hearing on Father's motion was held on March 19, 1998. The court minutes obliquely refer to the March 19 worksheet, indicating that child support was $240. The court minutes further show that child support was to be reduced to $100, and states, "[D]ue to mother's medical bills court found exceptional circumstances."

The minutes regarding child support were memorialized in an order filed April 1, 1998 (the child support order). According to the child support order, Mother was required to pay support in the amount of $100 per month, and the exceptional circumstance warranting deviation from the family court support guidelines was noted as "Mother['s] substantial medical expenses as a result of her medical condition." The court also ordered Father's child support obligation terminated as of January 30, 1998.

The court's orders regarding other terms of custody stemming from the March 19, 1998 hearing were set forth in an April 15, 1998 "Order for Post-Judgment Relief" (the April 15 Order). In it, the court granted Father sole physical and legal custody of Child, ordered Father to provide medical insurance for Child, and further directed that any unreimbursed medical expenses be shared equally between the parents. The April 15 Order included a restraining order prohibiting Mother from removing Child from Honolulu. Mother was also limited to supervised visitation and to biweekly telephone calls on Wednesdays and Sundays at 6:00 p.m. Hawai`i time. The court then issued an "Order for Income Withholding," requiring Mother's employer to withhold $100 a month from Mother's salary and to send it to the Child Support Enforcement Agency in Honolulu.

On September 8, 1998, Mother, appearing pro se, filed a motion to set aside the restraining order and to adjust her visitation rights. Mother requested the court to allow unsupervised visitations, to permit visitations outside of Honolulu, or if visitations were limited to Honolulu, to require Father to pay Mother's expenses for the visits, and to remove the telephone restrictions. Additionally, Mother requested that she be given credit against her support obligation in the amount of social security disability payments paid directly to Father for Child on account of Mother's disability. The disability payments totalled $579 per month.

Mother's motion was set for hearing on November 5, 1998. However, Mother did not appear at the hearing and on November 13, 1998, the court denied her motion because of her nonappearance.

On November 13, 1998, the court issued an order directing that its orders on visitation, child support, and unreimbursed medical expenses continue unchanged. Further, the order added a prohibition against Mother meeting or leaving Child at Father's home at the beginning and end of Mother's visitations.

On November 19, 1998, Mother, appearing pro se, filed an appeal from the November 13, 1998 order. In her opening brief, Mother was not precise in pointing out the specific issues that are to be addressed, but we discern that Mother desires (1) the telephone restrictions on her contacts with Child be removed, (2) unsupervised visitations and visitations outside of Honolulu be permitted, (3) a social worker be assigned to the case, (4) credit be given against her child support obligation in the amount of social security disability payments received by Father on behalf of Child, (5) child support be recalculated because her income has changed substantially, and (6) Father be required to pay all of Child's medical and dental bills. We believe the record was sufficient for the court to have ruled on Mother's motion.

At the time of this appeal, Child lived in Hawai`i with Father and his wife and son, and Mother lived in Arizona.²

II.

The issues Mother raises concerning telephone restrictions, visitation rights, and assignment of a social worker are common to child custody orders.

The only social study conducted was in September 1987, more than twelve years ago. No updated social study has been done despite the substantial change in circumstances occurring since 1987. Child now resides with Father and his family in Hawai`i and extensive restrictions have been placed on Mother's visitation rights.³ In light of the foregoing facts, we instruct, on remand, that the court order an updated social study to consider Mother's requests and to determine, in the present situation, what provisions as to visitation would be in the best interest of the Child.

III.

In connection with the remaining issues, we first conclude that a disabled parent, subject to a child support obligation, should be given credit against that obligation for social security disability benefits paid on account of the parent to the child or a representative payee.

IV.

A.

Hawai`i law invests the family court with authority to establish child support guidelines:

The family court, in consultation with the [child support enforcement] agency, shall establish guidelines to establish the amount of child support when an order for support is sought or being modified under [Hawai`i Revised Statutes (HRS) chapter 576D]. The guidelines shall be based on specific descriptive and numeric criteria and result in a computation of the support obligation.

HRS § 576D-7(a) (1993) (emphasis added). This statute was part of a bill promulgated with the intent "to achieve full compliance with Title IV-D" of the federal Social Security Act, which imposed requirements on state child support enforcement programs. Sen. Stand. Comm. Rep. No. 426-86, in 1986 Senate Journal, at 964. A legislative committee report acknowledged that the family court was to establish the child support guidelines, and noted that "a committee on the Family Law Section of the Hawaii State Bar Association work[ed] in conjunction with the family court to revise existing guidelines[.]" Sen. Conf. Comm. Rep. No 180-86, in 1986 Senate Journal, at 843.

The trial courts are mandated by law to adhere to the guidelines. HRS § 571-52.5 (1993) provides that "[w]hen the court establishes or modifies the amount of child support required to be paid by a parent, the court shall use the guidelines established under section 576D-7, except when exceptional circumstances warrant departure."

B.

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