HOUSE OF REPRESENTATIVES

H.B. NO.

78

TWENTY-NINTH LEGISLATURE, 2017

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO ATTORNEY'S FEES AND COSTS IN HAWAII FAMILY COURT.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The supreme court held in Cox v. Cox, SCWC-12-0000762, (Haw. Aug. 16, 2016) (2016 W.L. 4367248) that Hawaii Family Court Rules (HFCR) rule 68 is invalid because it is not consistent with section 580-47, Hawaii Revised Statutes (HRS).  HFCR rule 68 authorizes the family court to award attorney's fees and costs in certain types of cases to a party that extends a settlement offer if the offer is not accepted and the final judgment in its entirety is patently not more favorable to the offeree than the settlement offer.  The supreme court invalidated HFCR rule 68 in Cox v. Cox without a motion or briefing by the parties and, therefore, the parties, the general public, and the Hawaii State Bar Association had no opportunity to be heard.

     The legislature finds that HFCR rule 68 should not have been invalidated and that section 580-47, HRS, should be clarified to incorporate the offer of settlement provisions of HFCR rule 68.

     SECTION 2.  Section 580-47, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:

     "(f)  Attorney's fees and costs[.] shall be allowed as follows:

     (1)  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, the concealment of or failure to disclose income or an asset, or violation of a restraining order issued under section 580-10(a) or (b), if any, by either party, and all other circumstances of the case[.]; and

     (2)  At least twenty days before any contested hearing is scheduled to begin pursuant to section 571-11, 571-12, 571-13, or 571-14, excluding law violations, criminal matters, and child protection matters, any party may serve upon the adverse party an offer to allow a judgment to be entered to the effect specified in the offer.  The offer may be made as to all or some of the issues, including custody and visitation.  The offer shall be filed with the court only if it is accepted.  If within ten days after service of the offer the adverse party serves written notice that the offer is accepted, any party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the court shall treat those issues as uncontested.  An offer not accepted shall be deemed withdrawn and evidence thereof shall not be admissible, except in a proceeding to determine costs and attorney's fees.  If the judgment, in its entirety, finally obtained by the offeree is patently not more favorable than the offer, the offeree shall pay the costs, including reasonable attorney's fees incurred after making the offer, unless the court shall specifically determine that the award would be inequitable."

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect on July 1, 2050.


 


 

Report Title:

Family Court Rules; Settlement Offer; Award of Attorney's Fees and Costs

 

Description:

Establishes a procedure to tender settlement offers in certain family court cases so that the party extending the offer may be entitled to its attorney's fees and costs if the offer is not accepted and the offeree does not obtain a judgment that, in its entirety, is patently more favorable than the offer.  (HB78 HD1)

 

 

 

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