Fisher v. Fisher

• Citation: 137 P.3d 355
• Decision Date: 30 June 2006
• Docket Number: No. 26935.,26935.
• Parties: Marie Stella Martin FISHER, Petitioner-Plaintiff-Appellant, v. David Thomas FISHER, Respondent-Defendant-Appellee.
• Court: Supreme Court of Hawai'i

Page 355

137 P.3d 355

Marie Stella Martin FISHER, Petitioner-Plaintiff-Appellant, v. David Thomas FISHER, Respondent-Defendant-Appellee.

No. 26935.

Supreme Court of Hawai`i.

June 30, 2006.

Paul A. Tomar, Honolulu, and Jill M. Hasegawa (of Ashford & Wriston), on the writ, for petitioner-plaintiff-appellant.

R. Steven Geshell, Honolulu, on the response, for respondent-defendant-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.

Opinion of the Court by MOON, C.J.

On May 19, 2006, petitioner/plaintiff-appellant Marie Stella Martin Fisher (Mother) timely petitioned this court for a writ of certiorari to review the Intermediate Court of Appeals' (ICA) summary disposition order, filed on April 19, 2006. Therein, the ICA affirmed in part and vacated in part the Family Court of the First Circuit's¹ decree (divorce decree) entered on October 13, 2004, granting Mother a divorce from defendant-appellee David Thomas Fisher (Father) and determining custody arrangements for their three minor children. In her application for writ of certiorari, Mother, the primary parent, argues that the trial court erroneously permitted Father, the non-primary parent, to relocate with their minor children to Virginia, over her objection, which decision Mother apparently believes is contrary to Hawai`i precedent. Mother contends that Hawaii's standards for relocation cases are "too amorphous to provide meaningful guidance and predictability to prospective custody/relocation litigants and counsel" and urges this court to provide "much needed judicial guidelines, policies, and/or presumptions in the adjudication of relocation cases." We granted certiorari on May 30, 2006 to address Mother's contentions.

I. BACKGROUND

A. Factual Background

The following facts are taken from the Findings of Fact (FOFs) and Conclusions of Law (COLs) issued by the family court on March 8, 2005 and are generally uncontested, except where noted. The parties married on October 13, 1990 in Latah, Idaho and had three daughters during the marriage: (1) Sarah Elaine Fisher, born on June 18, 1992; (2) Lauren Dolores Fisher, born on November 12, 1995; and (3) Grace Kathryn Fisher, born on June 2, 1999. Father began military service in 1982 and served in the United States Navy throughout the marriage. As of the date the divorce proceedings were initiated, Father had completed 19.5 years of military service and had risen to the rank of Commander. Mother had completed two years of college prior to the marriage and did not work throughout the marriage. During the marriage and after the children were born, the family resided in four locations prior to moving to Hawai`i in June 2001. Because of his duties, Father was away from the family for several months at a time either on ship or at sea duty.

The family resided in Kailua, Oahu during their residence in Hawai`i, and the children attended St. Mark school in Kaneohe. After commencing divorce proceedings in September 2003, Mother applied for and was accepted into the Nursing Program at Hawai`i Pacific University (HPU) and began attending classes in June 2004 to complete some prerequisite courses.

In September 2004, Father was transferred to Washington, D.C., for a position with the Joint Chiefs of Staff at the Pentagon. Father wished to pursue his career in the military, as he is eligible for promotion to Captain in June 2006. Father bought a home in Virginia with the help of his parents, who sold their home in North Carolina in order to live with Father in Virginia. As of the date of trial (August 2004), Father's gross salary, including allowances, was $9,765.93 per month, while his expenses were $4,300. During the marriage, the parties accumulated substantial assets including life insurance policies, savings, and investments. Additionally, upon the completion of twenty-six years of military service, Father will receive military benefits which he expects to consist of seventy-five percent of his base pay.

B. Proceedings

On September 30, 2003, Mother filed a complaint for divorce against Father. Mother subsequently filed a Motion for Pre-Decree Relief, seeking, inter alia, an order: (1) maintaining the custodial status quo, with continued joint occupancy of the marital residence; (2) requiring Father to pay monthly family support; and (3) requiring Father to maintain various household payments and living expenses. On December 12, 2003, the parties entered into a Stipulated Order re Pre-Decree Relief [hereinafter, the Stipulation], which provided temporary custody as follows:

The parties shall continue as joint legal custodians of the children. [Mother] shall be primarily responsible for the care of the children during each weekday day, and each Tuesday & Friday evenings, until bed time. [Father] shall be primarily responsible for the care for the children during Monday, Wednesday, & Thursday evenings. The parties shall each have a weekend day and evening each weekend, subject to their agreement. The foregoing is subject to change and reasonable flexibility, by agreement[.]

Pursuant to the Stipulation, the family court entered an order on December 12, 2003, appointing Marianita Lopez, Esq. as a Custody Evaluator. On March 1, 2004, Lopez filed her Custody Evaluator's Report to the family court. Therein, Lopez made several findings regarding the children, some of which were later adopted by the family court in its FOFs. Lopez determined that the three children were well-adjusted and performing excellently at St. Mark, with very high grades and excellent behavior reports. Lopez also found that Mother had been the primary caretaker of the children, but that Father had remained very involved with them and that the children were bonded to both parents. Lopez reported that both parents were competent, loving parents and that both were willing to live in or move to the location the court determined as being in the best interest of the children. Ultimately, Lopez found that (1) the children's futures could best be secured by Father's continuing to earn a living in the military; (2) Mother would be able to pursue her educational career goals in Virginia; and (3) living in Virginia would allow the children greater access to extended family.² Based on her findings, Lopez recommended that (1) the children be permitted to relocate to Virginia incident to Father's military reassignment to Washington, D.C. and (2) the parties be awarded joint legal and physical custody of the children.

1. Trial Proceedings

On August 9 and 10, 2004, trial was held before the Honorable Gregg Young. At the conclusion of trial, the family court judge rendered an oral decision on all disputed issues, including, inter alia,³ custody and relocation. With regard to custody, the family court: (1) adopted the recommendations set forth in Lopez's report; (2) permitted Father to relocate to Virginia with the children; and (3) awarded joint legal and physical custody to the parties if Mother moved to Virginia as well, such that (a) Mother was to have the children on the first and third weekends of each month, from Wednesday after school until Monday morning (b) each parent was permitted to have a right of first refusal, under which one parent could watch the children during periods when the other parent was unable to watch the children.

On August 18, 2004, Mother moved for reconsideration of, inter alia, the family court's order regarding physical custody of the children. On September 3, 2004, at the conclusion of a hearing on the motion, the family court judge orally ruled that the time-sharing schedule would be revised such that the parties would have the children for equal periods of time and that the right of first refusal would be amended. The family court also requested that Father draft the divorce decree to include the family court's oral rulings and modifications of the Stipulation. On October 1, 2004, Mother objected to several portions of the proposed divorce decree tendered by Father, pursuant to Hawai`i Family Court Rules (HFCR) Rule 58 (2004).⁴ The family court denied all of Mother's objections and approved Father's proposed divorce decree in its entirety on October 13, 2004. Mother filed a timely notice of appeal on November 5, 2004. At Mother's request, the family court issued written FOFs and COLs pursuant to HFCR Rule 52(a) (2004)⁵ on March 8, 2005. Therein, the family court made the following relevant findings:

53[.] Among witnesses called upon by the parties to testify at trial, penultimate testimonial evidence presented by Mother's sister Dr. Sarah Lawrence, M.D. ("Lawrence") and Pastor Mark Alan Bowditch ("Bowditch") formed decisive impressions on the Court buttressing Father's custodianship of the children.

54[.] Lawrence, a practicing physician in Moscow, Idaho, testified that she and Mother were roommates in college when Mother first met and dated Father.

55[.] While growing up together as sisters, Lawrence testified that she and Mother had a very close relationship until approximately two years ago when the relationship became "strained."

56[.] Lawrence observed Mother's level of anger more often became inappropriate at seemingly meaningless irritations.

57[.] In the last two years Mother appeared defensive and hostile to her parents and in-laws.

58[.] Mother seemed to focus her lifestyle primarily upon personal fitness and triathlon training.

59[.] Mother's priorities changed; according to Lawrence, Mother's attitude towards children during the last two years is best expressed, "let someone else take care of them, I've done my part."

60[.] Trial witness Bowditch, was a 6th grade teacher at St. Mark's [sic] school where the parties's [sic] two eldest daughters, Sarah and Lauren, attended school at the time of trial and was a reserve chaplin in the U.S. Air Force, having attended four years of divinity school.

61[.] Sarah and Bowditch's daughter were best friends and had many sleep overs at each other's...