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NO. 23792 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I KELLY D. HO, Plaintiff-Appellee, v. RUSSELL C. HO, Defendant-Appellant APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-D NO. 99-2257) MEMORANDUM OPINION Burns, C.J., Watanabe and Lim, JJ.)

(By:

Defendant-Appellant Russell C. Ho (Russell) appeals from the September 14, 2000 Order Denying Motion and Affidavit for Post-Decree Relief filed August 24, 2000, entered by District Family Judge Gale Ching. We affirm.

Russell and Plaintiff-Appellee Kelly D. Ho (Kelly) were married on November 25, 1989. 1991. Their son was born on May 28,

Their daughter was born on December 23, 1995. Russell had worked for the State of Hawai#i as a

paralegal since about 1990.

During the first five or six years

of that employment, he was with the Child Support Enforcement Agency. Subsequently, he worked as a paralegal for the Attorney

General's office preparing Child Protective Services petitions, pretrial statements, and adoption petitions. On July 20, 1999, Kelly filed a Complaint for Divorce. On August 17, 1999, Russell filed an Income and Expense Statement noting that he was being paid $2,667 per month by the State of

Hawai#i.

On February 18, 2000, Russell's employment at the The reason was his

Attorney General's office was terminated. inadequate performance on the job.

At the May 18, 2000 hearing on the motion to set, Kelly's attorney read onto the record a stipulated proposed decree and stipulated proposed amendments thereto. Russell's

attorney informed the court that "my client . . . he's unemployed[.]" The court ordered Kelly's attorney to submit the

proposed decree within twenty days and noted that the decree would be effective upon signing and filing. At the end of May, 2000, Russell was hired by the Hawaiki Nui Entertainment Company (HNEC) to operate its office. HNEC puts on shows at graduations or office functions. income was a base salary of $800 per month. Russell's

Although there was

potential for him to receive a percentage of three to four percent of the gross income received by HNEC for certain shows, Russell had not yet earned more than the base salary. On August 24, 2000, Russell filed a motion seeking a reduction of child support and stating, in relevant part, as follows:
Previous child support was determined at a time when [Russell] was unemployed based on the assumption that [Russell] would earn the same amount as he did in his previous employment with the State. Unfortunately, [Russell's] employment pays substantially less and the child support has to be modified in order for [Russell] to live.

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On September 5, 2000, District Family Judge Linda K. C. Luke entered the family court's Decree Granting Divorce and Awarding Child Custody. It awarded joint legal custody and sole

physical custody of the two children to Kelly, subject to Russell's detailed rights of visitation. It ordered Russell to

pay to Kelly child support of $250 per month per child commencing June 1, 2000. The hearing on Russell's August 24, 2000 motion was held on September 13, 2000, by Judge Ching. in relevant part, as follows:
Q. And so, when you agreed to pay the five hundred dollars a month, you were aware at that time that you were unemployed, but you were thinking about taking this position at the Hawaii Nui Entertainment Company, correct? A. Well actually, I just agreed to that amount so we could move the hearing

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