Stomber v. Stomber (Order Dismissing Appeal)

Defendant-Appellant Stephen John Stomber (Stephen or Defendant) appeals from Judge Bode A. Uale's (1) March 29, 2005 order granting and denying in part motion and affidavit for post-decree relief filed January 28, 2005 (March 29, 2005 Order), (2) April 20, 2005 Order Granting Plaintiff's Motion for Attorney's Fees and Costs (April 20, 2005 Order), and (3) April 27, 2005 Order Denying Defendant's Motion for New Trial, Further Hearing, and/or Reconsideration Filed on April 7, 2005 (April 27, 2005 Order). We dismiss this appeal for lack of appellate jurisdiction.

Stephen and Plaintiff-Appellee Alice Ann Stomber (Alice or Plaintiff) were married on September 2, 1977. They have three children (Children): Holly Elisabeth Stomber (Holly), born on August 18, 1986; Jena Michelle Stomber (Jena), born on August 8, 1989; and Max Alexander Stomber (Max), born on July 30, 1991. On January 17, 2001, Alice filed a complaint for divorce.

On February 21, 2001, Judge Uale appointed Mitchell J. Werth, Esq., as the guardian ad litem (GAL) to represent the interests of the Children "until the trial on the outstanding custody issue."

On April 29, 2002, Judge Darryl Y. C. Choy entered a Decree Granting Absolute Divorce and Awarding Child Custody (Divorce Decree) that states in part:

(3) CUSTODY. [Alice] shall be awarded the sole legal and physical care, custody and control of the children, subject to [Stephen's] rights of reasonable visitation.

During periods when the parties reside in different locales, [Stephen] shall have visitation as follows:

(b) [Stephen] shall have visitation with the children for all but the last two days of every other Christmas vacation.

(d) [Stephen] shall have visitation with the cchildren for one month each summer. . . .

(4) CHILD SUPPORT. [Alice's] income is imputed at $1,000.00/month. [Stephen's] income is $7,848.00/month. Beginning with a first payment on March 1, 2002, [Stephen] shall pay to [Alice] the sum of $960.00 per month/per child, for the total sum of $2,880.00 per month . . . .

Payments of child support shall continue for each child until the child attains age eighteen years, or graduates from high school, or discontinues high school, whichever occurs last. Child support for each child shall further continue uninterrupted so long as the child continues his/her education post high school on a full-time basis at an accredited college or university, or in a vocational or trade school, or until the child attains the age of twenty-three years, whichever occurs first. . . .

(5) EDUCATIONAL EXPENSES. [Alice] shall pay 50% and [Stephen] shall pay 50% of the educational expenses incurred by each of the children, while the child is a full-time student and under the age of twenty-three.

(6) CHILD HEALTH CARE. For so long as one or both of the parties shall be obligated to support a child, (a) [Stephen] shall maintain medical, vision, drug, and dental insurance for the benefit of the child; (b) any additional medical, vision, prescription, and dental expenses not covered by insurance shall be paid one-half by [Alice] and one-half by [Stephen].

E. Dependency Exemptions. [Alice] agrees to waive her entitlement to claim the dependency exemption for the three children for federal and state income tax purposes so long as [Stephen] is current in his obligation to provide child support under the terms of this Decree.

On August 15, 2002, Stephen "moved to the State of Florida to start working at another job earning similar income. On October 3, 2002, [Stephen] stopped working in Florida."

On March 19, 2003, Judge Gregg Young entered an Order For Post-Decree Relief that states in part:

2. Child Support. Effective March 1, 2003, [Stephen] shall pay [Alice] child support . . . in the amount of $50.00 per child per month for a total of $150.00 per month . . . .

On April 30, 2003, Judge Young ordered that Stephen's "child support obligation will continue at $150 per month for June 2003 through September 2003 regardless of whether [Stephen] becomes employed before that time."

On August 27, 2003, Judge Uale re-appointed Mitchell Werth as GAL to investigate "a viable way to restore the father/child relationship so children will not 'fear' [Stephen][.]" The court ordered the GAL's fees and costs to be paid half by Alice and half by Stephen. The court did not order any payment in advance. The court ordered that "[t]he GAL shall submit a report by a reasonable time which shall address the custody and visitation arrangements for the child(ren)[.]" There is no evidence in the record that GAL Werth submitted a report or why GAL Werth did not submit a report.⁽¹⁾

On January 30, 2004, the State of Hawai`i Child Support Enforcement Agency ordered that "[c]urrent child support shall be modified to of [sic] $720 monthly per child, for a total of $2,160 . . . per month, beginning March 2004" for "as long as said child(ren) is/are in high school or enrolled as full-time in an accredited educational or vocational institution."

After a hearing on March 17, 2004, Judge Uale entered the March 23, 2004 "First Amendment to Decree Granting Absolute Divorce and Awarding Child Custody" that states:

1. Under the Decree, Subparagraph E., Dependency Exemptions, under (11) Tax Matters, is hereby deleted in its entirety.

On January 28, 2005, Stephen filed a motion and affidavit reporting that he resides in Arlington, Virginia, and was seeking: a reduction of his child support obligation based on his lower salary; an award to him of the dependency tax deduction; an order requiring Alice to comply with the court's orders regarding Stephen's rights to visit with the Children; recognition that Holly is no longer a minor; and an order prohibiting Alice from contacting and harassing Stephen's employer and harassing Stephen. This motion was accompanied by Stephen's request to appear by telephone wherein Stephen stated in part:

(2) [Stephen] has been unemployed without regular income since 10/2002. [Stephen], without any fault, lost employment due to [Alice] and her agent's actions. At the time, [Stephen's] child support was current and the next payment not due for 10 days. [Stephen] in his new employment, was starting to serve a probationary period of "at will" employment on the Mainland. [Alice] and her agents, for no just cause sent a garnishment letter to [Stephen's] new employer and hence, 24 hours later [Stephen] was unemployed. [Stephen] has used due diligence and good faith seeking new employment.

In these documents, Alice requested that the Court: "order current monthly child support ([Stephen's] current salary plus his reserve duty income) and order the monthly payment of [Stephen's] child support arrearages"; order Alice to provide the family health and dental insurance plan and credit Alice with the payment of $190.14 on line 16 of the child support guidelines; bar Stephen from filing future motions requesting the benefit of the dependency exemption until he is current in his child support payments; and "enforce its March 19, 2004 Minute Order that based on [Stephen's] behavior on the phone for that hearing, he shall not be allowed to appear by phone again, and that he must appear in person."

In these documents, Alice denied that she harassed Stephen or Stephen's employer.

I'll note for the record that [Stephen] requested to appear by phone. Mistakenly, I allowed that and then I reversed myself because then I recalled, based on [Alice's] motion in op, [Stephen's] behavior at the last hearing wherein I told him that he no longer will be able to appear by phone. And, therefore, he's trying to call in this morning, but I told my bailiff that I will not allow him to appear by phone based on his behavior at the last hearing.

And . . . could you put just a note on the file that [Stephen] is no longer allowed to appear by phone for any of these hearings.

The Court then announced that it was granting Stephen's request to modify child support, and that he was to provide two copies of his pay stubs to Alice's counsel, so that child support could be recalculated pursuant to the ACSG [Amended Child Support Guidelines]. . . . The Court ruled that the visitation issue was moot because of Stephen's failure to cooperate with the GAL appointed in 2003, and because Holly was an adult. The Court expressed doubt as to whether there had been a problem with Alice or her agents contacting or harassing Stephen's employer, and declined to enter an order in that regard. Tr., 3/18-4/24.

The Court then asked Alice's counsel if there was anything else, and counsel raised several other issues which the Court then also addressed. Counsel asked for attorney's fees in connection with the Post-Decree Motion, and the Court indicated it would award fifty percent (50%) of the fees, subject to counsel documenting them by affidavit. Tr., 4/25-5/20. In so ruling the Court noted that, Stephen's "only worthy issue of adjudication today is the modification of child support." Id. Alice's counsel then asked for a determination that there were child support arrearages of $24,632.16 as of February 28, 2005, and the Court complied, and added "sua sponte" that Stephen must pay $200 a month toward those arrearages in addition to current child support. Tr., 5/21-6/10. Alice's counsel asked if the $190 per month "credit" for Alice's payment of healthcare insurance for the children should be included in the ACSG calculation, and the Court answered affirmatively. Tr., 6/11-6/22.

It appears that Judge Uale proceeded with the hearing and decided the issues without offering Stephen any reasonable opportunity to appear in person.

1. Modification of child support is granted based on [Stephen's] current income, provided that [Stephen] provide two copies of his current pay stubs to [Alice's] attorney. Child support modification is effective March 1, 2005.

3. [Stephen's] request for the enforcement of visitation of the parties' three children is moot.

5. [Stephen] shall continue to pay child support for the parties' oldest daughter until she is age 23. The Court will not enforce visitation on her. It is up to the child if she wishes to visit with her father.

6. [Alice's] request for an award of attorney's fees and costs is granted. [Stephen] shall pay 50% of [Alice's] attorney's fees and costs for today's hearing. [Alice's] counsel shall submit an affidavit of attorney's fees and costs to the Court.

7. The Court, sua sponte, orders [Stephen] shall reduce the child support arrearage amount ($24,632.16 at 2-28-05) by $200/month in addition to child support payments.

We note that Judge Uale failed to state any basis for paragraph "3" or the last two sentences of paragraph "5" of this order.

Judge Uale's April 20, 2005 Order required Stephen to pay to Alice's attorney $1,172.50 for attorney fees and costs. Judge Uale's April 27, 2005 Order denied Stephen's April 7, 2005 motion filed pursuant to Hawai`i Family Court Rules Rules 59 and 60 seeking relief from the March 29, 2005 Order.

Stephen filed a notice of appeal on May 24, 2005. Judge Uale entered Findings of Fact and Conclusions of Law (FsOF and CsOL) on June 27, 2005.

5. The parties' oldest daughter, [Holly], is age 18, and still dependent on the parties for her support, care, maintenance and education.

7. [Stephen's] health insurance program with his present employer provides for [Alice] to pay all health providers up front, then make a claim for reimbursement through [Stephen's] employer's carrier, which will in turn reimburse [Stephen] as the employee.

2. [Stephen's] child support payments shall be are [sic] modified based on his current income, effective March 1, 2005.

4. The parties' children are old enough to decide whether or not they want to visit [Stephen].

6. Since the parties' oldest child, [Holly] is still dependent on the parties for her support, care, maintenance and education, [Stephen] shall continue to pay child support for her until she is age 23. The Court will not enforce visitation on her, and it is up to her if she wishes to visit with [Stephen].

8. [Alice] is entitled to provide health care insurance for the parties' three children through her employer. Credit for the children's part of the cost shall be credited to [Alice] in the child support guidelines.

We note that CsOL nos. 2, 7, 8, and 9 are orders rather than CsOL. We further note that the court failed to cite any basis for paragraph "3" of the March 29, 2005 Order, COL no. 4, or the last sentence of COL no. 6. With respect to Jena and Max, Hawaii Revised Statutes (HRS) §§ 580-47 and 571-46 (Supp. 2006) are applicable. With respect to Holly, HRS § 580-47 is applicable, and it does not require the family court to order a parent to pay for the support, maintenance, and education of an adult child if that child unreasonably refuses to visit with that paying parent.

Although he fails to identify them as such, Stephen asserts the following additional points on appeal:

(a) "The hearing on March 9, 2005, was not an evidentiary hearing. Although Alice was sworn upon oath, she did not testify. Stephen did not participate. The entire proceeding, which was brief, consisted of discussion between Alice's counsel, Judge Uale, and the Bailiff." "Stephen was denied any meaningful opportunity to appear and to be heard at the March 9, 2006, hearing on his Post-Decree Motion."

(b) "[T]he Family Court violated Stephen's procedural due process rights when it ruled on issues at the March 9, 2005, hearing which were not raised in Stephen's Post-Decree Motion and which, at best, were only discussed in Alice's Opposition Memorandum & Affidavit." "[A]lthough the Family Court made a child support arrearage determination, and ordered monthly payments on account of that arrearage, those matters were not properly before the Court, and that determination and order should not have been entered."

(c) "The Family Court ruled that the child support modification which was ordered should take effect on March 1, 2005, notwithstanding that Stephen's Post-Decree Motion was filed on January 28, 2005."

(d) "The criteria require that an adult child under the age of 23 to be enrolled full-time at an accredited college, university, vocational or trade school. Stephen did not allege anything in regard to Holly's educational status. Alice alleged that Holly was attending KCC, but not that she was enrolled full-time." "[T]he Family Court's Post-Decree order stated that Holly was entitled to child support until age 23. Whether by intention or not, that Order modified the Divorce Decree, which also continued child support for the children until age 23, but made eligibility after age 18 contingent on continued enrollment as a full-time student at an accredited college, university, vocational or trade school." In her answering brief, Alice agrees that this language "should be amended to include the language in conformity with paragraph (4)(c) of the Divorce Decree[.]" "[T]he Post-Decree Order did not amend the Divorce Decree to impose an obligation on Alice to provide healthcare insurance coverage for the children, nor did it relieve Stephen of that obligation. The Divorce Decree was not modified in that regard."

(e) "There was no dispute that Stephen was providing healthcare coverage for the children as required by the terms of the parties' Divorce Decree. Alice's objections to Stephen's plan were entirely speculative. She did not claim that she had ever incurred healthcare costs for the children which were not either paid by Stephen's healthcare plan, or reimbursed by him."

(f) "[T]he younger two children were both still minors. The Family Court, in its Post-Decree Order inexplicably ruled that the issue of access to and visitation with them was 'moot.'"

(g) "The finding that Stephen's Post-Decree Motion was the sixth motion for post-decree relief he filed, is factually incorrect. The Record on Appeal reflects that it was the fourth such motion he filed. . . . If the inference was that the prior post-decree motions were frivolous or without good cause, the appropriate remedy would have been an award of attorney's fees and/or costs in connection with those motions. An award of fees and costs in connection with the subsequent Post-Decree Motion was not appropriate if it was intended as a sanction for Stephen's filing of prior motions."

This appeal pertains solely to the child custody, visitation, and support part of this divorce case. Sua sponte, we conclude that we do not have appellate jurisdiction pertaining to the child custody, visitation, and support part of this divorce case. As noted above, the March 29, 2005 Order states that "[m]odification of child support is granted based on [Stephen's] current income[.]" It does not determine the amount of Stephen's current income or the modified amount of child support payable by Stephen. Therefore, it is not final and appealable. Ferreira v. Ferreira, 112 Hawai`i 225, 229, 145 P.3d 768, (2006).

1. At the hearing on March 9, 2005, the court stated that "[a]s far as enforcement with visitation on the parties' three children, [Stephen] failed and continues to fail to cooperate with the court-appointed guardian ad litem; and, therefore, I think that issue is also moot, as far as the Court is concerned." The record does not reveal the basis for the finding of fact part of this oral statement.