Child Support Enforcement Agency v. Carlin

31 P.3d 230, 96 Haw. 373, 2001 Haw. App. LEXIS 179
Hawaii Intermediate Court of Appeals·Decided September 5, 2001·No. No. 22779·Published·Cited by 4 cases

Opinion

Opinion of the Court by

LIM, J.

Defendant-Appellant Craig Ng (Ng) appeals the family court of the third circuit’s August 12, 1999 Findings of Fact, Conclusions of Law, and Order Re: Child Support and Back Non AFDC Child Support (the Order) that granted current child support and retrospective child support in favor of Plaintiffs-Appellees, Child Support Enforcement Agency, State of Hawai’i (CSEA), and [376]*376Melinda Perez Pardella (Pardella), the mother of the child.1

On appeal, Ng contests the family court’s award of child support to Pardella for the period from the date of her son’s birth up to the filing date of the petition (pre-petition support).2 Ng contends (1) that the family court erred in awarding pre-petition support because the Interstate Family Support Act (IFSA), Hawai'i Revised Statutes (HRS) chapter 576B (Supp.2000), allows an award of child support only from the date of filing of the petition; and (2) that the family court erred in applying Hawai'i Family Court Rules (HFCR) Rule 15(b) (1999) to amend Pardella’s petition to add a specific claim for pre-petition support. We disagree and affirm the Order.

I. Background.

On December 2, 1998, CSEA filed in the family court of the third circuit an IFSA petition it had received from Pardella, a resident of Puerto Rico. The petition was a pre-printed form, provenance apparently Puerto Rico, that contained, for purposes of allegation, information and prayer, numerous labeled boxes to be checked off and entitled blanks to be filled in. Pardella had executed the petition on October 19,1998, in San Juan, Puerto Rico. Pardella neglected, however, to cheek off a verification box above the signature block that read, “Under penalties of perjury, all information and facts stated in this petition are true to the best of my knowledge and belief.”

The IFSA authorizes the state responding to an interstate support petition, in this case Hawaii, to commence a support proceeding at the request of the transmitting petitioner in the other state. HRS §§ 576B-305(a) & 576B-307. The definition of “State” found in the IFSA includes Puerto Rico. HRS § 576B-101 (Supp.2000).

In her petition, Pardella alleged that Ng, a resident of Hawaii, is the noncustodial father of her son, born on December 1, 1989, and requested an award of child support from him. Pardella and Ng were never married. The petition contained labeled, check-off boxes enabling the petitioner to request nine different types of relief. Pardella checked off the boxes labeled, “Establishment of Order for: ... Child Support[.]” She did not mark the box labeled, “Support for a prior period; From: _To_[,]” nor did she otherwise specifically request collection of child support arrears or retrospective child support.3

Ng was personally served with the petition on January 7, 1999. On January 27, 1999, he appeared pro se at the initial court hearing. During the hearing, CSEA twice informed Ng and the family court that Pardella was seeking “current and back child support[.]” Also, the court confirmed Ng’s understanding that trial was to be set “on the issue of child support and arrearages.” The pretrial order that issued out of the hearing set trial for February 26, 1999,. and identified the issues for trial as “current child support and back non-AFDC child support.”

In his February 9, 1999 answer to Pardel-la’s petition, Ng, still pro se, generally denied all allegations in the petition. He specifically denied that he was the child’s “presumed father.”

On February 26, 1999, Ng appeared in court with counsel. Ng’s attorney informed the court that the parties wanted to proceed with genetic paternity testing, and upon set[377]*377tlement of the paternity issue, the contingent issues remaining for trial would be “support and, um, the amount of any arrearage.” Ng’s attorney reiterated the same two contingent issues later in the hearing. At the same hearing, CSEA twice confirmed that the two issues for trial contingent upon settlement of the paternity issue would be “number one, child support; number two, back child support.” The order issuing out of the February 26, 1999 hearing specified that the continued “trial in this matter [will be] on the issues of current and permanent child support pursuant to the current Child Support Guidelines and back non-AFDC child support[.]” Ng had filed various objections to the order proposed to the court by CSEA but none of those objections addressed inclusion of the issue of retroactive child support for trial.

Based upon the genetic test results, Ng admitted paternity. On June 14, 1999, Par-della submitted an affidavit with attached documents, containing information about her income and expenditures for the benefit of her son from 1989, the year of his birth, to date.

On June 16, 1999, the petition came on for trial. At the outset of the hearing, Ng objected to the introduction of any evidence because Pardella had allegedly failed to verify her petition. After much discussion, the parties resolved the verification dispute by agreeing that Pardella could cure any verification problem that might exist by filing an ex post facto verification of her petition. After that was settled, there was little time for any other business to be concluded, except for a stipulation that some financial documents could be admitted into evidence as exhibits. The exhibits included financial records of both Ng and Pardella, dating back to years well before the date of the petition (1992 for Ng and 1990 for Pardella). The order issuing out of the June 16, 1999 hearing continued the trial to July 16, 1999, “on the issues of current child support and back non-AFDC child support.” Ng filed no objections to the substance of this order. On July 12, 1999, Pardella filed an affidavit “reaffirming]” her verification of the petition.

On July 15, 1999, essentially mid-trial, Ng submitted an untimely trial memorandum. In his trial memorandum, Ng again conceded paternity, and also conceded Pardella’s entitlement to “current child support pursuant to the support guidelines.” However, Ng objected, for the first time, to the award of child support for any period prior to the filing date of the petition. He argued that HRS chapter 576B “only provides for establishment of support. . Establishment of support does not permit retroactive application to the birth of the child[.]” Ng did not base his objection upon Pardella’s failure to specifically pray for retrospective child support in her petition.

Trial on the petition was concluded on July 16, 1999. At the beginning of the final trial day, the parties stipulated into evidence another CSEA exhibit, a summary of financial information for both parties for the years 1989 to 1999, gleaned from the CSEA exhibits admitted into evidence during the June 16, 1999 trial day. In the course of discussing the stipulation, Ng’s counsel revealed that his trial strategy was, for the most part, to concede the facts and argue the law:

Your Honor, he—[CSEA’s counsel] indicated this would be a summary to assist the Court.

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Child Support Enforcement Agency v. Carlin, 31 P.3d 230, 96 Haw. 373, 2001 Haw. App. LEXIS 179 (hawapp 2001).

31 P.3d 230 (Child Support Enforcement Agency v. Carlin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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