§580-47  Support orders; division of
property.  (a)  Upon granting a divorce, or thereafter if, in addition to
the powers granted in subsections (c) and (d), jurisdiction of those matters is
reserved under the decree by agreement of both parties or by order of court
after finding that good cause exists, the court may make any further orders as
shall appear just and equitable (1) compelling the parties or either of them to
provide for the support, maintenance, and education of the children of the
parties; (2) compelling either party to provide for the support and maintenance
of the other party; (3) finally dividing and distributing the estate of the
parties, real, personal, or mixed, whether community, joint, or separate; and
(4) allocating, as between the parties, the responsibility for the payment of
the debts of the parties whether community, joint, or separate, and the
attorney's fees, costs, and expenses incurred by each party by reason of the
divorce.  In making these further orders, the court shall take into
consideration:  the respective merits of the parties, the relative abilities of
the parties, the condition in which each party will be left by the divorce, the
burdens imposed upon either party for the benefit of the children of the
parties, and all other circumstances of the case.  In establishing the amounts
of child support, the court shall use the guidelines established under section
576D-7.  Provision may be made for the support, maintenance, and education of
an adult or minor child and for the support, maintenance, and education of an
incompetent adult child whether or not the petition is made before or after the
child has attained the age of majority.  In those cases where child support
payments are to continue due to the adult child's pursuance of education, the
agency, three months prior to the adult child's nineteenth birthday, shall send
notice by regular mail to the adult child and the custodial parent that
prospective child support will be suspended unless proof is provided by the
custodial parent or adult child to the child support enforcement agency, prior
to the child's nineteenth birthday, that the child is presently enrolled as a
full-time student in school or has been accepted into and plans to attend as a
full-time student for the next semester a post-high school university, college,
or vocational school.  If the custodial parent or adult child fails to do so,
prospective child support payments may be automatically suspended by the child
support enforcement agency, hearings officer, or court upon the child reaching
the age of nineteen years.  In addition, if applicable, the agency, hearings
officer, or court may issue an order terminating existing assignments against
the responsible parent's income and income assignment orders.



In addition to any other relevant factors
considered, the court, in ordering spousal support and maintenance, shall
consider the following factors:



(1)  Financial resources of the parties;



(2)  Ability of the party seeking support and
maintenance to meet his or her needs independently;



(3)  Duration of the marriage;



(4)  Standard of living established during the
marriage;



(5)  Age of the parties;



(6)  Physical and emotional condition of the parties;



(7)  Usual occupation of the parties during the
marriage;



(8)  Vocational skills and employability of the party
seeking support and maintenance;



(9)  Needs of the parties;



(10)  Custodial and child support responsibilities;



(11)  Ability of the party from whom support and
maintenance is sought to meet his or her own needs while meeting the needs of
the party seeking support and maintenance;



(12)  Other factors which measure the financial
condition in which the parties will be left as the result of the action under
which the determination of maintenance is made; and



(13)  Probable duration of the need of the party
seeking support and maintenance.



The court may order support and maintenance to
a party for an indefinite period or until further order of the court; provided
that in the event the court determines that support and maintenance shall be
ordered for a specific duration wholly or partly based on competent evidence as
to the amount of time which will be required for the party seeking support and
maintenance to secure adequate training, education, skills, or other qualifications
necessary to qualify for appropriate employment, whether intended to qualify
the party for a new occupation, update or expand existing qualification, or
otherwise enable or enhance the employability of the party, the court shall
order support and maintenance for a period sufficient to allow completion of
the training, education, skills, or other activity, and shall allow, in
addition, sufficient time for the party to secure appropriate employment.



(b)  An order as to the custody, management, and
division of property and as to the payment of debts and the attorney's fees,
costs and expenses incurred in the divorce shall be final and conclusive as to
both parties subject only to appeal as in civil cases.  The court shall at all
times, including during the pendency of any appeal, have the power to grant any
and all orders that may be necessary to protect and provide for the support and
maintenance of the parties and any children of the parties to secure justice,
to compel either party to advance reasonable amounts for the expenses of the
appeal including attorney's fees to be incurred by the other party, and to
amend and revise such orders from time to time.



(c)  No order entered under the authority of
subsection (a) or entered thereafter revising so much of such an order as
provides for the support, maintenance, and education of the children of the
parties shall impair the power of the court from time to time to revise its
orders providing for the support, maintenance, and education of the children of
the parties upon a showing of a change in the circumstances of either party or
any child of the parties since the entry of any prior order relating to the
support, maintenance, and education.  The establishment of the guidelines or
the adoption of any modifications made to the guidelines set forth in section
576D-7 may constitute a change in circumstances sufficient to permit review of
the support order.  A material change of circumstances will be presumed if
support as calculated pursuant to the guidelines is either ten per cent greater
or less than the support amount in the outstanding support order.  The need to
provide for the child's health care needs through health insurance or other
means shall be a basis for petitioning for a modification of the support
order.  The most current guidelines shall be used to calculate the amount of
the child support obligation.



(d)  Upon the motion of either party supported
by an affidavit setting forth in particular a material change in the physical
or financial circumstances of either party, or upon a showing of other good
cause, the moving party, in the discretion of the court, and upon adequate
notice to the other party, may be granted a hearing.  The fact that the moving
party is in default or arrears in the performance of any act or payment of any
sums theretofore ordered to be done or paid by the party shall not necessarily
constitute a bar to the granting of the hearing.  The court, upon such hearing,
for good cause shown may amend or revise any order and shall consider all
proper circumstances in determining the amount of the allowance, if any, which
shall thereafter be ordered.



(e)  The 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.  The responsible or custodial parent shall not be precluded from
petitioning the family court or the child support enforcement agency for review
and adjustment more than once in any three-year period if the second or
subsequent request is supported by proof of a substantial or material change of
circumstances.



(f)  Attorney's fees and costs.  The court
hearing any motion for orders either revising an order for the custody,
support, maintenance, and education of the children of the parties, or an order
for the support and maintenance of one party by the other, or a motion for an
order to enforce any such order or any order made under subsection (a) of this
section, may make such orders requiring either party to pay or contribute to
the payment of the attorney's fees, costs, and expenses of the other party
relating to such motion and hearing as shall appear just and equitable after
consideration of the respective merits of the parties, the relative abilities
of the parties, the economic condition of each party at the time of the
hearing, the burdens imposed upon either party for the benefit of the children
of the parties, and all other circumstances of the case. [CC 1859, §1328; am L
1903, c 22, §2; RL 1925, §2979; RL 1935, §4475; am L Sp 1941, c 68, §1; RL
1945, §12226; am L 1955, c 77, §1; RL 1955, §324-37; am L 1967, c 76, §5; HRS
§580-47; am L 1969, c 221, §§1, 2; am L 1977, c 37, §1; am L 1978, c 77, §2; am
L 1983, c 19, §1; am L 1986, c 332, §18; am L 1991, c 216, §4; am L 1992, c
115, §3 and c 212, §3; am L 1995, c 107, §2; am L 1997, c 293, §40 and c 294,
§5]



 



Cross References



 



  Dower, none in case of divorce, see §533-9.



 



Law Journals and Reviews



 



  An Essay in Family Law:  Property Division, Alimony, Child
Support, and Child Custody.  6 UH L. Rev. 381.



  Administering Justice or Just Administration:  The Hawaii Supreme Court and the Intermediate Court of Appeals.  14 UH L. Rev. 271.



  Gussin v. Gussin:  Appellate Courts Powerless to Mandate
Uniform Starting Points in Divorce Proceedings.  15 UH L. Rev. 423.



  Slow-Baked, Flash-Fried, Not to be Devoured:  Development of
the Partnership Model of Property Division in Hawai‘i and Beyond.  20 UH L.
Rev. 1.



 



Case Notes



 



  Death of former husband does not preclude appeal by divorced
wife where property rights are involved.  10 H. 117, 121.



  Amount of alimony rests in sound discretion of trial court
and is subject to modification for cogent reasons only.  10 H. 183; 35 H. 382;
41 H. 345.  Granting of alimony is ancillary to granting of divorce.  14 H.
152. In estimating amount not necessary to consult tables of mortality and
annuities.  14 H. 152.  Provisions of statute are broader than
"alimony" as known to common law.  13 H. 654.  Allowance in gross may
be made for wife on decree for adultery of husband.  13 H. 654; 33 H. 690.  To
wife of leper.  33 H. 268.  Alimony in gross:  when warranted, computation.  40
H. 644.



  No alimony on divorce for desertion by wife.  21 H. 264. 
Failure to provide is an offense amounting to adultery.  19 H. 326. 
Jurisdiction, specific property.  31 H. 603.  Foreign judgment.  40 H. 397,
416.  Habeas corpus, children, divorce pending.  32 H. 731.  Contempt.  30 H.
80; 32 H. 567, 604.  Allowance to wife of attorney's fees upon appeal.  38 H.
233.  Attorney fees.  40 H. 179; 40 H. 315, 324.



  Support may be awarded at a date later than the decree.  23
H. 281.



  Judge may modify decree respecting alimony upon proper
showing.  23 H. 639, 643; 34 H. 237; 39 H. 245.  See also on modifying decree. 
29 H. 866; 30 H. 652; 31 H. 574.  As to where amount held to be clearly
excessive and time too short to pay.  14 H. 152.  Settlement agreements, power
of divorce judge to modify.  41 H. 89.  Child support orders, modification
thereof, court's inherent power over welfare of child.  52 H. 480, 478 P.2d
852.



  Under L 1955, c 77, court has the power on granting divorce
to make property settlements between the parties of all property, real,
personal or mixed, howsoever held.  42 H. 279.  Division of property: 
"Respective merits of parties" construed:  meritorious claim not
established.  44 H. 491, 355 P.2d 188.  Decree affirmed when within reasonable
discretion of trial court.  49 H. 258, 262, 414 P.2d 82; 49 H. 576, 424 P.2d
671.



  Upon granting divorce, court may order party to maintain his
former wife and children as beneficiaries under the state retirement system. 
52 H. 357, 477 P.2d 620.



  In making property settlement, court may order conveyance of
real property.  54 H. 60, 502 P.2d 380.



  Complex arrangements imposed by court indicate that financial
situation was considered.  56 H. 295, 535 P.2d 1109.



  Divorce court in one state does not have power to directly
affect, by decree, title to real property in another state.  56 H. 295, 535
P.2d 1109.



  The express reservation of custody and support questions does
not impair the finality of divorce decree.  57 H. 519, 559 P.2d 744.



  Division of interests in corporate stock.  58 H. 98, 564 P.2d
1274.



  Division of property is discretionary with the trial court
and will not be disturbed unless abuse of discretion is clearly shown.  58 H.
227, 566 P.2d 1104.



  Division of property, standards for determining.  58 H. 227,
566 P.2d 1104.



  Whether interest in pension and retirement benefits is a
property interest for purposes of property division depends upon the terms of
the obligation securing payment.  58 H. 541, 574 P.2d 125.



  Cited as authority for family court to distribute the
separate property of the parties.  59 H. 32, 575 P.2d 468.



  There is no conflict between this section and §573-1.  59 H.
32, 575 P.2d 468.



  Agreement between parties concerning child support, validity
of.  59 H. 619, 585 P.2d 1270.



  Court's jurisdiction over child support, nature of.  59 H.
619, 585 P.2d 1270.



  Court did not abuse its discretion in allowing each party to
keep his separate estate where such award is fair under all circumstances.  60
H. 354, 590 P.2d 80.



  Alimony for educational purposes.  61 H. 338, 603 P.2d 564.



  Distribution of increase in value of separately owned
interest in property; within discretion of family court to adjust for inflation
in determining value of separate property.  68 H. 383, 716 P.2d 1133.



  Effect of premarital agreements in relation to spousal
support and property division.  69 H. 497, 748 P.2d 1362.



  No presumption that nonowning spouse is not entitled to any
part of appreciation of property legally owned by other spouse after declaration
by either spouse that marriage has ended.  70 H. 143, 764 P.2d 1237.



  Where one of the divorced parties died before division of
property, the family court was instructed to divide the property in accord with
the premarital agreement, if valid, and enforceable, or effect a property
division that is just and equitable.  70 H. 605, 780 P.2d 80.



  Uniform starting points, as mandated by intermediate court of
appeals, violate section by restricting family courts' discretion in the
equitable division and distribution of parties' estates; transmutation of
property discussed.  73 H. 470, 836 P.2d 484.



  Allowing decree-judgment creditor to enforce collection in
circuit court of installment property settlement payments did not usurp family
court's exclusive jurisdiction over matters subject to modification by
post-divorce decree.  73 H. 566, 836 P.2d 1081.



  Family court did not disregard any applicable rules or
principles of law and did not improperly rely on uniform starting points in
marital estate distribution; court's deviation from equal division of joint
property was justified in light of wife's significant separate property
holdings.  76 H. 19, 868 P.2d 437.



  Intellectual property is capable of division for purposes of
equitable distribution.  99 H. 101, 53 P.3d 240.



  Trade secrets may be subject to equitable division pursuant
to this section, depending upon when the right to the trade secret vested.  99
H. 101, 53 P.3d 240.



  Provision entitling receipt of rental payments in lieu of
payments for spousal support is not a division of property.  1 H. App. 57, 613
P.2d 363.



  Where payer is (1) unemployed or (2) working but earning less
than he or she is capable of earning in other fields, court may consider what
payer is capable of earning if payer attempts in good faith to secure proper
employment.  Court may also consider size of payer's estate and net worth.  1
H. App. 187, 616 P.2d 1014.



  "Estate of the parties" construed; phrase includes
nonvested military retirement benefits.  1 H. App. 272, 618 P.2d 748.



  Single lump sum payment, representing plaintiff's interest in
defendant's federal civil service retirement, may be awarded rather than a
percentage of each monthly payment payable as and when received.  1 H. App.
288, 618 P.2d 754.



  Power of family court to set aside its judgments (before
court rules).  1 H. App. 315, 619 P.2d 511.



  Financial assistance for adult children.  1 H. App. 324, 619
P.2d 112.



  The source of an asset such as inheritance or gift, is one of
the "circumstances of the case".  1 H. App. 324, 619 P.2d 112.



  Where one party unilaterally transfers cash to the children
during pendency of the divorce, it is not error for family court to credit the
amount of the cash transferred to the party in the division of assets.  1 H.
App. 324, 619 P.2d 112.



  Foreign judgment; full faith and credit.  1 H. App. 496, 621
P.2d 387.



  In reviewing the property settlement entered, the standard of
review is whether the court below clearly abused its discretion.  1 H. App.
533, 621 P.2d 984.



  Appropriateness of taking into account husband's current
economic status, including his remarriage, in determining his obligation to his
first family.  1 H. App. 581, 623 P.2d 97.



  It was not error to receive evidence that wife was living
with an adult male friend who was paying part of the living costs and that they
planned to be married.  1 H. App. 595, 623 P.2d 95.



  It was within the lower court's allowable discretion to
divide the wife's inheritance from the husband's father.  1 H. App. 595, 623
P.2d 95.



  Family court's division in the disposition of property will
not be set aside unless there has been a manifest abuse of discretion.  1 H.
App. 599, 623 P.2d 890.



  Award of costs and attorney's fees.  1 H. App. 617, 623 P.2d
1265.



  Factors that may be considered in dividing property.  1 H.
App. 617, 623 P.2d 1265.



  Not error to consider presence of wife's mother and resulting
financial impact.  1 H. App. 617, 623 P.2d 1265.



  Valuation of partnership.  2 H. App. 485, 634 P.2d 1039.



  Division of property is res judicata, and any unfairness in
that aspect of case is not relevant to spousal support issue; in support
modification hearing, burden is on moving party to provide entitlement to
modification; hearing is not a rehearing, but a new hearing based on changed
circumstances; party receiving spousal support has duty to attain
self-sufficiency and party paying spousal support has duty to maintain ability
to pay support, neither may benefit from violation of that duty.  3 H. App. 20,
641 P.2d 1342.



  Discretion in dividing property.  3 H. App. 602, 658 P.2d
329; 4 H. App. 68, 660 P.2d 529; 4 H. App. 333, 666 P.2d 617.



  Equitable to award each party date of marriage net value of
premarital property and date of acquisition net value of gifts and inheritances
received during marriage.  3 H. App. 602, 658 P.2d 329.



  Distribution of increase in value of separately owned
interest in property.  4 H. App. 68, 660 P.2d 529.



  Equitable to award each party one-half of net value of
property jointly owned at time of divorce.  4 H. App. 68, 660 P.2d 529.



  Antenuptial agreement not binding on court.  4 H. App. 333,
666 P.2d 617.



  Manifest abuse of discretion in property division.  4 H. App.
652, 672 P.2d 1044.



  Division of retirement benefits was equitable.  5 H. App. 55,
677 P.2d 966.



  No error in disregarding conveyance of real property by
husband to husband and wife as tenants by entirety.  5 H. App. 348, 691 P.2d
771.



  If occupancy of residence by mother and children are a
combination of spousal and child support, termination of occupancy must be
justified as to both spouse and children.  5 H. App. 385, 695 P.2d 1194.



  Spousal support payable for indefinite period is subject to
further court order.  6 H. App. 66, 708 P.2d 143.



  Equitable to award each party one-half of real increase,
during marriage, of net value of separately owned property; division of
retirement benefits; factors to determine whether spousal support must be paid
and the length and amount of payments.  6 H. App. 207, 716 P.2d 1145.



  Categories of net market values for purposes of property
division modified.  7 H. App. 11, 740 P.2d 36.



  Antenuptial agreement binding if equitable; inequitable
antenuptial agreement only one of factors considered regarding property
division or spousal support; Hawaii's public policy as reflected in this
section, takes precedence over parties' right to enforce their antenuptial
agreement; no abuse of discretion in court's refusal to enforce antenuptial
agreement.  7 H. App. 155, 747 P.2d 698.



  Inequitable antenuptial agreement only one of factors to be
considered regarding property division; property division terms of antenuptial
agreement held inequitable when viewed at time of divorce.  7 H. App. 163, 747
P.2d 703.



  The family court always has the discretion to award attorney's
fees and costs to a party.  7 H. App. 266, 752 P.2d 1079.



  "Estate of the parties" means anything of present
or prospective value.  7 H. App. 377, 768 P.2d 243.



  Three step process in dividing and distributing marital
property discussed.  7 H. App. 430, 776 P.2d 418.



  Husband's right to receive veterans' and military disability
pay cannot be used as the basis to award wife equal cash value in division of
property.  7 H. App. 496, 780 P.2d 581.



  Cannot be used against a person who has refused to become
legally married.  8 H. App. 215, 797 P.2d 74.



  Uniform starting point and other uniform categories are only
processes for the family courts to consider, courts must still exercise a wide
range of choices and equitable discretion when deciding divorce cases.  8 H.
App. 415, 807 P.2d 597.



  Where record contained insufficient relevant circumstances
prior to entry of initial child support order, proof of sufficient relevant
circumstances existing at time of modification hearing was conclusive proof of
a material change in circumstances.  8 H. App. 437, 809 P.2d 449.



  Family court overemphasized marriage and underemphasized
relative abilities of parties and condition in which each party would be left
by divorce in division and distribution of net market value of marital
property; discussion of deviation from applicable uniform starting point, when
authorized.  9 H. App. 1, 818 P.2d 277.



  Section gave family court discretion to enter conclusion of
law regarding payment of attorney's fees and costs.  9 H. App. 184, 828 P.2d
1291.



  If all relevant and valid considerations equal, deviation
from partnership model not justified.  80 H. 79 (App.), 905 P.2d 54.



  Court properly excluded testimony of wife's alleged pecuniary
purpose for marrying husband and her TRO against lover where no evidence that
alleged premarital intentions or extramarital relationship negatively affected
accumulation or preservation of husband's separate property.  80 H. 274 (App.),
909 P.2d 602.



  If decree or order finally obtained by offeree after hearing
is patently not more favorable as a whole than settlement offer, Hawaii family
court rule 68 requires offeree to pay costs, including reasonable attorney fees
incurred after making of offer, unless court determines such would be inequitable
under this section.  82 H. 539 (App.), 923 P.2d 956.



  Adoption of 1988 child support guidelines constituted a
change in circumstances sufficient to permit review under subsection (c) of
1983 support order.  87 H. 209 (App.), 953 P.2d 968.



  Where child support proceeding commenced when mother filed
complaint for divorce, child support enforcement agency's motion for
modification of child support payments filed twelve years later was
"continuation of proceeding", and, under §580-3.5 and this section,
court had continuing jurisdiction over non-Hawaii domiciliary father.  87 H.
209 (App.), 953 P.2d 968.



  Where father offered no evidence to support an exceptional
circumstance deviation, father failed to overcome presumption that support
obligation calculated by using amended child support guidelines was the amount
that should be ordered.  87 H. 209 (App.), 953 P.2d 968.



  It is within family court's discretion to order custodial
parent to pay all or part of interstate transportation expenses incurred by
children when visiting noncustodial parent if order can be complied with
without decreasing funds reasonably necessary to support children and custodial
parent at relevant standard of living.  87 H. 369 (App.), 956 P.2d 1301.



  Once it is determined that a divorce decree award obtained by
an offeree is patently not more favorable as a whole than a HFCR rule 68
settlement offer, the trial court must determine whether it would be
inequitable to award attorney's fees and costs under rule 68 to the offeror, applying
the standards of subsection (f).  89 H. 17 (App.), 968 P.2d 184.



  Relevant statutes, rules, and precedent did not permit wife
to directly attack in circuit court the validity of the property and
distribution part of the divorce decree; circuit court did not have subject
matter jurisdiction under §603-21.5 to do what wife must have had done to
obtain the relief wife sought; pursuant to §580-1 and this section, only the
family court could have granted that relief.  101 H. 370 (App.), 68 P.3d 644.



  The family court may and should consider regular and
consistent monetary gifts received by a spouse as part of the spouse's actual
financial resources, condition and ability when determining spousal support;
pursuant to subsection (d), if and when husband's parents materially reduce
their regular and consistent monetary gifts to husband, husband may allege a
material change in circumstance and ask the family court for a review of its
orders.  112 H. 437 (App.), 146 P.3d 597.



  Where the family court determined that there were valid and
relevant considerations authorizing a deviation from the partnership model
division, and the family court's extensive findings of fact clearly showed that
in dividing and distributing husband and wife's assets and debts, the court
took into consideration the conditions each would be left in after their
divorce, court did not violate this section.  120 H. 283 (App.), 205 P.3d 548.



  Cited:  14 H. 554, 564; 26 H. 128, 130; 29 H. 464, 470; 44 H.
442, 451, 355 P.2d 33.



  Mentioned:  85 H. 108 (App.), 937 P.2d 949.



 



Hawaii Legal Reporter Citations



 



  Antenuptial agreement reviewable by court.  79 HLR 79-0865.



  Property settlement between unmarried couple.  82-1 HLR
820253.



  Pre-nuptial agreements.  82-1 HLR 820387.