Opinion
Nos. 24327 AND 24442
December 19, 2002.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-D NO. 90-4214)
On the briefs:
Glenn Kiyohiko Mizukami, Defendant-Appellant, pro se. Thomas D. Collins, III, for Plaintiff-Appellee.
BURNS, C.J., WATANABE AND LIM, JJ.
MEMORANDUM OPINION
We affirm the family court's May 16, 2001 order requiring that Defendant-Appellant Glenn Kiyohiko Mizukami (Glenn) "shall pay $2007.00 for half of orthodontic expenses and shall be re-imbursed if this is more than 1/2 of final bill or be increased if it is less than 1/2 of final bill."
BACKGROUND
The son (Son) of the parties was born on June 30, 1986. The "Decree Granting Divorce and Awarding Child Custody," entered by Judge Victoria S. Marks on August 2, 1991 (Divorce Decree), awarded legal and physical custody of Son to Plaintiff-Appellee Donna Edwards Mizukami, now known as Donna Edwards (Donna), and ordered Glenn to pay child support of $350 per month commencing August 5, 1991. Judge Marks noted that Glenn was $1,350 in arrears in the payment of child support at that time, entered judgment for that amount, and ordered Glenn to pay $50 per month on that judgment. Judge Marks also ordered, in relevant part, as follows: "[Glenn] shall provide medical and dental insurance for the benefit of the child. Ordinary medical and dental expenses not covered by insurance shall be paid by [Donna]. Any extraordinary medical and dental expenses not covered by insurance shall be paid 50% — 50% by the parties."
On February 10, 2000, after a contested hearing, the Office of Child Support Hearings entered its "Administrative Findings and Order" deciding that Glenn owed child support of $19,800 as of January 1, 2000, and ordered him to pay it at the rate of $50 per month commencing February 1, 2000.
On August 9, 2000, Donna moved for enforcement of the previous orders and for orders requiring Glenn to pay one-half of Son's orthodontic expenses, to reimburse Donna for all legal expenses she incurred, to pay statutory interest, and requiring the auction sale of Glenn's "entire sword collection for security for future support."
On September 18, 2000, Glenn filed his response to Donna's August 9, 2000 motion. Glenn alleged that he paid the $50 per month on the arrearage, questioned the necessity and cost of Son's orthodontic treatment, and questioned the necessity of Donna's August 9, 2000 motion.
On September 20, 2000, Judge Paul T. Murakami entered an order requiring Glenn to pay child support of $250 per month commencing October 1, 2000, awarding judgment against Glenn in favor of Donna for $2,450 child support from February 1, 2000, to August 30, 2000, awarding statutory interest, ordering Donna to submit an affidavit of reasonable attorney fees, ordering Glenn to pay "50% of orthodontic estimate," denying, without prejudice, Glenn's request for change of custody, and reserving the foreclosure issue.
On May 14, 2001, Judge Murakami entered an "ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S OBJECTIONS AND REQUEST FOR RECONSIDERATION OF PLAINTIFF'S PROPOSED JUDGMENT AND ORDER REGARDING ATTORNEY FEES" deleting the court's prior award of 10% interest and the second paragraph of the proposed judgment, but otherwise affirming.
On May 15, 2001, Judge Murakami entered an order requiring Glenn to pay Donna for her attorney fees in the sum of $3,497.25.
On May 16, 2001, Judge Allene R. Suemori entered an order requiring that Glenn "shall pay $2007.00 for half of orthodontic expenses and shall be re-imbursed if this is more than 1/2 of final bill or be increased if it is less than 1/2 of final bill." On May 29, 2001, Glenn moved for reconsideration of this order.
On June 1, 2001, Glenn moved for a change of legal and physical custody of Son to him, for review and amendment of child support arrearages for the period from January 1, 1994, through December 31, 2000, and for credit for cash allegedly spent by Glenn for Son at Donna's request. Glenn alleged that Donna "had terminated visitation and all contact by [Son] with [Glenn], adult sister, and paternal family from March 29, 1997 to present."
On June 1, 2001, Glenn filed a notice of appeal of the May 14, 2001 order (appeal No. 24327).
On June 19, 2001, Judge Suemori entered an order summarily denying Glenn's motion for reconsideration of the May 16, 2001 order pertaining to Son's orthodontic expenses. The order cited Hawai`i Family Court Rules (HFCR) Rule 59(j), notwithstanding the deletion of HFCR Rule 59(j) effective January 1, 2000.
On July 16, 2001, Glenn filed a notice of appeal of the June 19, 2001 order (appeal No. 24442).
On October 5, 2001, appeals Nos. 24327 and 24442 were consolidated under No. 24327, and Glenn's opening brief filed on September 6, 2001, was stricken.
In his replacement opening brief filed on October 24, 2001, Glenn challenges (1) the validity of Donna's August 9, 2000 motion and (2) the May 16, 2001 order requiring him to "pay $2007.00 for half of [Son's] orthodontic expenses[.]"
DISCUSSION A.
Glenn contends that Donna's August 9, 2000 motion "was improper, frivolous and should have been dismissed by the Court[.]" This point has no merit. Donna's motion validly raised valid issues.
Glenn contends that Donna's August 9, 2000 motion violated Hawai`i Revised Statutes §§ 576D-7(e), 576E-14(d), and 580-47(e) because those statutes allow Donna to petition the family court or the Child Support Enforcement Agency not more than once every three years. These statutes state that "[t]he responsible parent or the custodial parent shall have a right to petition the family court or the child support enforcement agency not more than once every three years for review and adjustment of the child support order without having to show a change in circumstances." It appears that Glenn does not understand the difference between "review and adjustment" and enforcement. Donna's August 9, 2000 motion sought enforcement of prior orders. Glenn offers various and sundry reasons why this court should reverse the family court's May 16, 2001 order and issue a "writ of mandamus directing the Family Court to maintain a single Senior Judge, other than Honorable Allene R. Suemori, to preside in the case below to conclusion." None of these reasons have any merit.
B.
Pointing to the relevant provision in the Divorce Decree, Glenn challenges whether the alleged "orthodontic expense" is encompassed within the phrase "dental expense," is "not covered by insurance," is "extraordinary," and is reasonably necessary. The family court implicitly answered all these questions in the affirmative. We affirm those implicit findings.
Glenn asks why only he was ordered to pay, to whom he was to pay, when was payment to be made, and toward which of the estimates filed. Obviously, only Glenn was ordered to pay because only he challenged the obligation to pay, payment was to be made to the orthodontist expressly for Glenn's one-half of Son's orthodontic expense, and payment was to be made promptly.
The family court's erroneous citation of HFCR Rule 59(j) in its June 19, 2001 order was harmless. HFCR Rule 59(e) (Supp. 2002) pertaining to motions to reconsider authorized a summary disposition of Glenn's motion for reconsideration.
CONCLUSION
Accordingly, we affirm the family court's May 16, 2001 order requiring that Glenn "shall pay $2007.00 for half of orthodontic expenses and shall be re-imbursed if this is more than 1/2 of final bill or be increased if it is less than 1/2 of final bill."