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MR DEC honolulu personal injury

VIEWS: 13 PAGES: 64

									                                                                                                                          :J;%, ‘/ 4 -1 ti



FRANCIS T. O’BRIEN                       #1337-O
1001 Bishop Street                                                                     ;sT ClRCbjT “$?j
1560 Pacific Tower                                                                      ST!,T$ C$tfi:I
Honolulu, Hawaii 968 13
Telephone: (808) 528-5991
                                                                                    1999 MR I ‘c I A 11: 08
CHRISTOPHER D. FERRARA              #1574-O                                                  T. WON3
Attorney at Law, A Law Corporation                                                         -CLERK
735 Bishop Street
Dillingham Transportation Building, Suite 422
Honolulu, Hawaii 968 13
Telephone: (808) 522-1660                                                                   &’ ?“% .             .;- :g $F 32 ;
                                                                                           5. :.i. i. i <,‘., “” :.
                                                                                                                            I-:’
TIMOTHY D. COHELAN                       (CASBN 60827)
ISAM c. KHOURY                           (CASBN 58759)                                            DEC i %- 1999
COHELAN & KHOURY                                                                           “.i?I.          ,.              -,
                                                                                                                        - r-r
701 C Street                                                                               Q ?\I p 3 ‘k’!-f gy-f-y [.:J, $’
San Diego, California 92101
Telephone: (619) 595-3001

Attorneys for Plaintiffs

                     IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

                                         STATE OF HAWAII

ANN C. KEMP, Individually And As Next              )   CIVIL NO. 98-3815-08
Friend for LINDSAY AGNES KEMP, On                  )   (Class Action)
Behalf of Herself and Others Similarly             >
Situated,                                          >   PLAINTIFF’S MOTION FOR ORDER
                                                   >   DETERMINING CLASS ISSUES;
                           Plaintiff,              >   MEMORANDUM IN SUPPORT OF
                                                   >   MOTION; DECLARATION OF ANN
         vs.                                       >   C. KEMP; EXHIBITS “A” - “E”;
                                                   1   DECLARATION OF FRANCIS T.
STATE OF HAWAII CHILD SUPPORT                      >   O’BRIEN; EXHIBIT “F”; DECLARATION
ENFORCEMENT AGENCY; STATE OF                       )   OF TIMOTHY D. COHELAN;
HAWAII; JOHN AND JANE DOES l-10;                   )   DECLARATION OF CHRISTOPHER D.
DOE GOVERNMENTAL ENTITIES                          >   FERRARA; NOTICE OF HEARING
l-10; DOE ENTITIES l-10,                           >   MOTION; CERTIFICATE OF SERVICE
                                                   >
                           Defendants.             1   Hearing Information:
                                                   1   Date: A?2 2 !I 1999
                                                   >   Time:         \c : cc cu
                                                       Judge: ‘.P,;., ‘i/ I_ (--, pi,’ ‘i .:I ..-. ‘,:
                                                                   f                   . - .* 1
Complex Litigation Assigned to Judge
                              PLAINTIFF’S MOTION FOR ORDER
                                DETERMINING CLASS ISSUES

               Comes now Plaintiff ANN C. KEMP, Individually And As Next Friend for

LINDSAY AGNES KEMP, On Behalf of Herself and Others Similarly Situated, through

counsel, and moves this Honorable Court for an Order Determining Class Issues and ruling, inter

alia, that this action shall appropriately proceed as a class action, defining the class, determining

that the class representatives will fairly and adequately protect the interests of the class, that

Plaintiffs counsel shall proceed as class counsel, and determining the issues of fact and law that

are common to all class members.

               This Motion is brought pursuant to Rule 7(b) and Rule 23, Hawaii Rules of Civil

Procedure, and is based on the Memorandum in Support of Motion, Declaration of Ann C.

Kemp; Exhibits “A” - “E”; Declaration of Francis T. O’Brien; Exhibit “F”; Declaration of

Timothy D. Cohelan; Declaration of Christopher D. Ferrara, attached hereto and incorporated

herein by reference, the files and pleadings of the case, and such other and further evidence as

may be introduced at the hearing on the instant motion.

               Dated: Honolulu, Hawaii,        MfwCH          I5    ,       wit
                                                                        I


                                   (/---.&;g;~~.

                                              CHRISTOPHER D. FERRARA
                                              TIMOTHY D. COHELAN
                                              ISAM c. KHOURY
                                              Attorneys for Plaintiff




                                                 2
                                                                     TABLE OF CONTENTS

                                                                                                                                                                                    PaJg

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         i

TABLE OF AUTHORITIES .................................................................                                                                                              ii-v

              I.            STATUTORY BACKGROUND ..........................................                                                                                         1-4

              II.           FACTUAL BACKGROUND ..............................................                                                                                       4-6

              III.          STANDARD OF REVIEW AND CLASS CERTIFICATION
                            CRITERIA. ....................................................................                                                                          7-16

                            A.             Legal Principles Of Class Certification ...........................                                                                      7-8

                            B.             The Representative Plaintiff Has Met Her
                                           Burden Under Rule 23 ..............................................                                                                      8-15

                                           1.            Rule 23(a)( 1): The Proposed Class Is So
                                                         Numerous And Geographically Dispersed
                                                         That Joinder is Impracticable and Judicial
                                                         Economy Is Served By Class Certification.. . . . . . . . . . . .                                                           8-10

                                           2.            Rule 23(b)( 1): Common Questions Of Law
                                                         And Fact Predominate Over Questions
                                                         Affecting Only Individual Members Of The
                                                         Class. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   11-12

                                           3.            Rule 23(a)(3): The Claims Of The
                                                         Representative Plaintiffs Are Typical Of Those
                                                         Of The Class.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 12-13

                                          4.             Rule 23(a)(4): The Representative Plaintiffs
                                                         Will Fairly And Adequately Protect The
                                                         Interests Of The Class.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                             13-15

                                          5.             Rule 23(b)(3): A Class Action Is Appropriate
                                                         When Seeking Injunctive And Declaratory
                                                         Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    15-16

                            C.            Certification Is Appropriate At This Time .......................                                                                         16

             IV.            CONCLUSION ...............................................................                                                                              16-17




                                                                                                 i
,   ,



                                           TABLE OF AUTHORITIES




    Akau v. Olohana Corn., 65 Haw. 383, 652 P.2d 1130 (1982). ..........................              7

    Anderson v. Citv of Albuquerque, 690 F.2d 796 (1 Oth Cir. 1982). ......................           13

    Blackie v. Barrack, 524 F.2d 891 (gth Cir. 1975),
            cert. denied, 429 U.S. 816 (1975). .................................................      7, 8

    Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545,
            61 L.Ed.2d 176 (1979). ...............................................................    10

    Daar v. Yellow Cab, 67 Cal.2d 695 (1967)                                                          11

    Dainle v. Shell Oil Co., 133 F.R.D. 600 (D. Colo. 1990). ................................         7-8

    Dirks v. Clavton Brokerage Co., 105 F.R.D. 125 (D. Minn. 1985) .....................              10

    Eisen v. Carlisle and Jacaueline, 417 U.S. 156 (1974). ...................................        8

    Hanon v. Dataproducts Corn., 976 F.2d 497 (gth Cir. 1992). ............................           13

    Harris v. Palm Snring;s Alpine Estates, Inc., 329 F.2d 909 (gth Cir. 1964). ...........           8

    Hum v. Dericks, 162 F.R.D. 626 (D. Haw. 1995). .......................................            9

    In re Computer Memories Sec. Litin., 111 F.R.D. 675 (N.D. Cal. 1986). .............               13

    In re Northern Dist. Of California, Dalkon Shield IUD Products Liabilitv
           Litipation, 693 F.2d 847 (9* Cir. 1982), cert. denied, 459 U.S. 1171 (1983)                14

    In Re United Energy Corn . . Etc., Securities Litin., 122 F.R.D. 25 1
           (S.D. Cal. 1988). ......................................................................   13

    In re Victor Technologies Sec. Litip., 102 F.R.D. 53 (N.D. Cal. 1984). ...............            8

    Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507 (gth Cir. 1978) ................          14

    Life of the Land v. Burns, 59 Haw. 244, 580 P.2d 405 (1978). ........................             7

    Life of the Land v. Land Use Commission, 63 Haw. 166,
             623 P. 2d 431 (1981). ...............................................................    799




                                                            ii
McMahon Books, Inc. v. Willow Grovel Assoc., 108 F.R.D. 32
     (E.D. Pa. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        10

North American Acceptance Corp. v. Arnall. Golden & Gregory
       593 F.2d 642 (5’h Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .‘. . . . . . . . . . . . . . . . . . . . . .                    15

Northern Acceptance Trust 1065 v. AMFAC. Inc., 5 1 F.R.D. 487
       (D. Haw. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   11

Ridnewav v. IBEW, Local No. 134, 74 F.R.D. 597 (N.D. Ill. 1977) . . . . . . . . . . . . . . . . . . .                                                                   8

Riordan v. Smith Barney, 113 F.R.D. 60 (N.D. 111. 1986). ...............................                                                                                9

Sandlin v. Shapiro & Fishman, 168 F.R.D. 662 (M.D. Fla. 1996). .....................                                                                                    10

Sieg;al v. Chicken Delight, Inc., 271 F.Supp. 722 (N.D. Cal. 1987). ....................                                                                                11

Wehner v. Svntex Corp., 117 F.R.D. 641 (N.D. Cal. 1987). .............................                                                                                  8

                                                                                      STATUTES

UNITED STATES CODE

                             Title IV-A .....................................................................                                                           2

                             Title IV-D .....................................................................                                                           1,233

                             42 U.S.C. 9601, et seq .......................................................                                                             2

                             42 U.S.C. $602(a)(2). ........................................................                                                             2

                             42 U.S.C. $651, et seq .......................................................                                                             192

                             42 U.S. C. $651.. .............................................................                                                            2

                             42 U.S.C. $654(3). ...........................................................                                                             2

                             42 U.S.C. §654(4). ...........................................................                                                             2

                             42 U.S.C. §654(7). ...........................................................                                                             2

                             42 U.S.C. §654(20). ..........................................................                                                             3



                                                                                                ...
                                                                                                111
                                                                                              PaRe

          42 U.S.C. $666 ................................................................     3

HAWAII REVISED STATUTES

          Chapter 576D .................................................................      3

          I-IRS §576D-2 ................................................................      3

          I-IRS §576D-10(a) ...........................................................       3

          HRS $57 1-52.2(e) . . . . ................................................
                                      . . . . . .                                             3,4, 12
                                                                                              15,17

CODE OF FEDERAL REGULATIONS

          45 C.F.R. $302.10.. .........................................................

          45 C.F.R. $302.12 ...........................................................

          45 C.F.R. $302.12(a)(2) ....................................................

          45 C.F.R. $302.12(a)(3) ....................................................

HAWAII RULES OF CIVIL PROCEDURE

          Rule 23 ........................................................................    8

          Rule 23(a) .....................................................................    7

          Rule 23(a)( 1) ..................................................................   8, 10

          Rule 23(a)(3) ..................................................................    12,13

          Rule 23(a)(4) ..................................................................    13,14

          Rule 23(b) .....................................................................    7

          Rule 23(b)( 1) ..................................................................   15

          Rule 23(b)(2). .................................................................    15

          Rule 23(b)(3). .................................................................    7,113
                                                                                              15,16



                                                  iv
         Rule 23(c)( 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   16

MISCELLANEOUS

         Conference Committee Report 9 1, House Journal,
         p. 1073 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         4

         Standing Committee Report 41 l-90, House Journal,
                p.998 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                4

         Standing Committed Report 685-90, House Journal,
                p. 1097 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    4

         Wright, Miller and Kane, Federal Practice and Procedure,
                Civil 2d $1175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    15




                                                                               V
                       IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

                                         STATE OF HAWAII

ANN C. KEMP, Individually And As Next              ) CIVIL NO. 98-3815-08
Friend for LINDSAY AGNES KEMP, On                  ) (Class Action)
Behalf of Herself and Others Similarly             >
Situated,                                          ) MEMORANDUM IN SUPPORT
                                                  ) OF MOTION
                           Plaintiff,             )
                                                  >
          vs.                                     )
                                                  >
STATE OF HAWAII CHILD SUPPORT                     >
ENFORCEMENT AGENCY; STATE OF                      >
HAWAII; JOHN AND JANE DOES l-10;                  >
DOE GOVERNMENTAL ENTITIES                         1
l-10; DOE ENTITIES l-10,                          >
                                                  >
                           Defendants.            1
                                                  >


                          MEMORANDUM IN SUPPORT OF MOTION

                Comes now ANN C. KEMP, Individually And As Next Friend for LINDSAY

AGNES KEMP, On Behalf of Herself and Others Similarly Situated, through counsel, and

submits her Memorandum in Support of Motion.

                                I. STATUTORY BACKGROUND

                In enacting Title IV-D of the Social Security Act (42 U.S.C. $651, et seq.), the

Congress explicitly intended to impose a mandatory obligation upon State Officials to establish,

modify, and enforce child support orders on behalf of and for the benefit of individual custodial

parents and children. The stated purpose of the Child Support Enforcement Program is:

                [Elnforcing the support obligations owed by noncustodial parents
                to their children and the spouse (or former spouse) with whom the
                children are living, locating noncustodial parents, establishing
                paternity, obtaining child and spousal support and assuring that
                assistance in obtaining support will be available under this part [42
                U.S.C. $65 1, et seq.] to all children (whether or not eligible for aid
                under Part A of this subchapter [42 U.S.C. $601, et seq.]) for
                whom such assistance is requested.. . .

42 U.S.C. $65 1.

                Part A of the Social Security Act establishes the assistance program called Aid to

Families With Dependent Children (“AFDC”). No state may participate in the AFDC program

under Title IV-A unless it also provides child support services under Title N-D of the Act. 42

U.S.C. $602(a)(2). Hawaii has elected to participate in the AFDC program, and it therefore is

mandated to provide CSEA services under Title IV-D.

                Each participating state must create or designate a single state agency to

administer the child support enforcement program. 42 U.S.C. $654(3); 45 C.F.R. $302.12. The

single state agency is responsible and accountable for the statewide operation of the program and

must see to it that the program is carried out properly, efficiently, and effectively. 45 C.F.R.

$302.10 and $302.12. The single state agency may delegate program functions to other state

agencies or local agencies. 42 U.S.C. §654(7); 45 C.F.R. 5$302.12(a)(2) and (3). The single

agency remains responsible for securing compliance with all program requirements. 45 C.F.R.

$9302.12(a)(2) and (3).

               The State Plan for child support mandated by 42 U.S.C. §654(4) must “provide

that the State will (A) provide services relating to the establishment of paternity or the

establishment, modification, or enforcement of child support obligations, as appropriate, under

the plan, to (i) each child” for whom AFDC assistance is provided under Title IV-A and “any

other child, if an individual applies for such services with regard to the child and (B) enforce any

support obligation established with respect to (i) a child with respect to whom the State provides

services under the plan; or (ii) the custodial parent.” 42 U.S.C. $654(4).




                                                  2
               Title IV-D, in 42 U.S.C. §654(20), requires that: “[Tlhe State shall have in effect

all of the laws to improve child support enforcement effectiveness which are referred to in [42

U.S.C. $666]...) and (B) shall implement the procedures prescribed in or pursuant to such laws.”

42 U.S.C. $654(20). The required State statutes define the substantive and procedural law that

the Title IV-D agency must use.

               The legislature of the State of Hawaii has created the Child Support Enforcement

Agency (“CSEA”) pursuant to HRS §576D-2 in order to comply with the requirements of Title

IV-D. Under the enabling act, the CSEA is responsible for administering the state child support

enforcement plan required by Title IV-D and for administering Chapter 576D “consistent with

Title IV-D and applicable state laws.” The CSEA is responsible for securing full compliance

with federal law in the administration of the child support enforcement program. The CSEA is

responsible for the operation of child support services throughout the State of Hawaii.

               Pursuant to HRS $576D-10(a), the CSEA is required to collect and disburse child

support payments when an order requires it to perform that function. Pursuant to that statute, the

money collected by the CSEA is not deposited into the State treasury, but rather into a special,

interest-bearing account maintained by the CSEA. The statute provides that interest realized

from the account is to be used for the related costs of the maintenance and operation of the

account and states that any balance is to be deposited into the State General Fund.

               HRS $571-52.2(e), provides that an employer receiving an order for income

assignment shall send the money to be withheld from the obligor’s paycheck to the CSEA within

five working days after the obligor is paid. This section also provides that the employer shall

begin withholding money from the obligor’s paycheck no later than seven business days

following the date when a copy of the order is mailed to the employer. This section of the statute




                                                 3
was amended, effective June 2 1, 1997, to reduce the deadline for commencement of withholding

by the employer from fourteen days to seven business days.

               HRS $571-52.2(e), presently requires that CSEA to disburse child support

payments that it has collected “within two working days” from their receipt from the obligor.

Before 1997, the predecessor to that statute required the payment to be made “within five

working days.” That provision had been in effect since 1990. It is obvious that the intent of this

legislation is that the money that is due for child support should be transmitted to the obligee as

quickly as possible. Thus, the Committee Reports referring to the statute providing the five-day

requirement state that the purpose of the requirement was to “expedite” the disbursements of

child support payments. Stand. Corn. Rep. 41 l-90, House Journal, p. 998 (1990); Stand. Comm.

Rep. 685-90, House Journal, p. 1097 (1990). If the money is not handled in the timely and

expeditious manner contemplated by the statute, the lack of the child support payment can cause

extreme hardship for an obligee and his/her children who may be dependent upon the receipt of

this payment in order to meet their regular expenses. When the law was amended in to reduce the

turn-around period to two days in 1997, the legislature noted that children may be forced into the

welfare system if support payments are not paid in a timely fashion. Conf. Corm-n. Rep. 91,

House Journal, p. 1073 (1997).

                                 II. FACTUAL BACKGROUND

              The proposed class representatives in this case are ANN C. KEMP and her

daughter, LINDSAY AGNES KEMP. Lindsay’s father, Barry J. Kemp, is employed by the

Department of the Prosecuting Attorney of the State of Hawaii.

              On May 19, 1998, Plaintiff ANN C. KEMP was divorced from Barry J. Kemp in

FC-D No. 98-1524, filed in the Family Court of the First Circuit, State of Hawaii. Pursuant to




                                                4
that Decree, Plaintiff ANN C. KEMP was granted the legal and physical custody of LINDSAY

AGNES KEMP, subject to Mr. Kemp’s rights of reasonable visitation. The Decree obligated Mr.

Kemp to pay the sum of $760.00 per month as and for child support. The sum was to be paid in

two separate installments of $380.00 each, payable on the 5’h and 20th days of each month.

Paragraph (B) of the Decree provides as follows:

               In compliance with Act 200 of 1988, all payments for child support
               shall be payable to and made through the Child Support
               Enforcement Agency, P.O. Box 1860, Honolulu, Hawaii 96805
               1860, and shall be made pursuant to the Order for Income
               Assignment which shall be filed concurrently herewith.

(See Declaration of Ann C. Kemp, attached hereto and Exhibit “A” to said Declaration).

               On May 19, 1998, the Court entered an Order for Income Assignment as

contemplated by the Decree.(See Exhibit “B” to the Kemp Declaration). The Order directed that

$380.00 should be withheld from each of Mr. Kemp’s two monthly paychecks. On May 20,

1998, Plaintiffs attorney sent one certified copy of the Order to the Department of Finance and

to the CSEA, by certified mail. (See Kemp Declaration and Exhibit “C”, attached thereto). The

Order was delivered to the Department of Finance and to the CSEA on May 21, 1998. (See

Kemp Declaration and Exhibit “D”, attached thereto).

              The Department of Finance began deducting child support payments from Mr.

Kemp’s paycheck pursuant to the terms of the Order, commencing with the paycheck of May 29,

1998. Payments continued to be deducted thereafter from each paycheck as required by the

Order. Plaintiff ANN C. KEMP did not receive her first check from the CSEA until July 22,

1998. The check, in the amount of $760.00, was dated July 20, 1998. (See Kemp Declaration and

Exhibit “E”) On July 23, 1998, the Plaintiff received a second check from the CSEA, again in the

amount of $760.00. That check was dated July 21, 1998. (See Kemp Declaration and Exhibit




                                               5
“E”). The payments made to Plaintiff do not contain any payment for the interest that was earned

by the State of Hawaii for the period that it was delinquent in transmitting the payment to

Plaintiff. (See Kemp Declaration).

               Attached hereto as Exhibit “F” is the most recent summary of the actions of the

State of Hawaii CSEA, as maintained by the Child Support Enforcement Administration. This

summary indicates that the total caseload maintained by the CSEA during 1996 was 58,510. It

further indicates that the total collections distributed by the CSEA during that year were

$52,181,666. No figures are provided to indicate what portion of the payments made were made

within the statutorily mandated periods.

               Class treatment is appropriate given the nature of the case, the claims for relief

contained herein and the efficiency to be gained. Plaintiff, on behalf of herself and the proposed

Class, brings this Motion, pursuant to Rule 23(a), Hawaii Rules of Civil Procedure, for an Order

determining the following Class Issues:

           l   Whether this action should receive class action treatment;

           l   The composition (definition) of the Class;

           l   Which issues of fact and law in this case are common to all Class Members;

           l   The Class Representative’s membership in the class and her ability to fairly and

               adequately protect the interests of the Class;

           l   The identity of Class Counsel;

           l   Whether all Claims for Relief, and each of them, shall be certified as to the Class;

               and

          l    Any other issues or claims for relief the Court at this time deems appropriate for

               class treatment.



                                                 6
            III. STANDARD OF REVIEW AND CLASS CERTIFICATION CRITERIA

                            A.     Legal Principles of Class Certification

                 Rule 23(a), Hawaii Rules of Civil Procedure, requires that the putative Class meet

four requirements to be certified as a class. It provides:

                  One or more members of a class may sue...as representative
                 parties on behalf of all only if (1) the class is so numerous that
                 joinder of all members is impracticable, (2) there are questions of
                 law or fact common to the class, (3) the claims or defenses of the
                 representative parties are typical of the claims or defenses of the
                 class, and (4) the representative parties will fairly and adequately
                 protect the interests of the class.

Rule 23(a), Hawaii Rules of Civil Procedure.

                 Further, the action must fit within a category of Rule 23(b) of the Hawaii Rules of

Civil Procedure, which states in relevant part:

                 (3) the court finds that the questions of law or fact common to the
                 members of the class predominate over any questions affecting
                 only individual members, and that a class action is superior to
                 other available methods for the fair and efficient adjudication of
                 the controversy.

Rule 23(b), Hawaii Rules of Civil Procedure.

                 It is the burden of the Representative Plaintiff to show that the requirements of

Rule 23 have been satisfied. Life of the Land v. Burns, 59 Haw. 244, 580 P.2d 405 (1978). The

Court is invested with broad discretion in permitting a class action and in certifying a class. Akau

V.   Olohana Corn., 65 Haw. 383, 391, 652 P.2d 1130, 1136 (1982) (citing, e.g., Life of the Land

v. Land Use Commission, 63 Haw. 166, 180, 623 P.2d 43 1, 443 (198 1)). In order to meet this

burden, the Representative Plaintiff must present enough information for the Court to make a

reasonable determination on the issue of class certification. Blackie v. Barrack, 524 F.2d 891,

901 n. 17 (gth Cir. 1975), cert. denied, 429 U.S. 816 (1975). It is generally held that “a court




                                                  7
r   ,




        should err in favor of, and not against, allowing maintenance of a class action.” Dainle v. Shell

        Oil Co., 133 F.R.D. 600,602 (D. Colo. 1990).

                       For the purposes of determining whether the Representative Plaintiff has met the

        burden imposed by Rule 23 in a motion for class certification, “[t]he court is bound to take the

        substantive allegations of the complaint as true.. ..” Blackie v. Barrack, supra, at 901 n. 17;

        Ridgewav v. IBEW. Local No. 134, 74 F.R.D. 597, 601 (N.D. Ill. 1977). The Court should not

        inquire into the merits of the case. Eisen v. Carlisle and Jacqueline, 417 U.S. 156 (1974).

        Moreover, the initial decision of the Court to allow the Class to be certified may be conditionally

        granted and later amended or altered before a decision on the merits is made. Rule 23 (c)(l),

        Hawaii Rules of Civil Procedure.

                      B. The Representative Plaintiff Has Met Her Burden Under Rule 23

                       1. Rule 23(a)(l):     The Proposed Class Is So Numerous and
                       Geographically Dispersed That Joinder Is Impracticable and
                       Judicial Economv Is Served bv Class Certification.

                      Rule 23(a)(l) requires that the Class be “so numerous that joinder of all members

        is impracticable.” Rule 23(a)(l), Hawaii Rules of Civil Procedure. To be impracticable, joinder

        must be “difficult or manifestly inconvenient,” but it need not be shown to be impossible. Harris

        v. Palm Springs Alpine Estates. Inc., 329 F.2d 909, 914 (gth Cir. 1964); Wehner v. Svntex Corn.,

        117 F.R.D. 641, 643 (N.D. Cal. 1987). To satisfy the numerosity requirement, Plaintiff need not

        establish the exact number of Class Members, but must merely demonstrate only that the Class is

        sufficiently numerous. In re Victor Technologies Sec. Litiq., 102 F.R.D. 53, 56 (N.D. Cal. 1984)

    affd, 792 F.2d 862 (gth Cir. 1986).

                      The proposed Class with regard to the claims for relief is defined as:

                              All persons who, since 1990, are, or will be entitled to
                              receive child support payments through the Child Support



                                                        8
                       Enforcement Agency of the State of Hawaii and did not, or
                       will not, receive their child support payments within the
                       time limits set forth in the Hawaii Revised Statutes.

        In determining whether the prospective class satisfies the numerosity requirement, the

Court views a number of factors, including whether the class members and their representatives

come from the same geographic area, and whether those parties are easily identifiable. Hum v.

Dericks, 162 F.R.D. 626, 634 (D. Haw. 1995). In Riordan v. Smith Barney, 113 F.R.D. 60, 62

(N.D. Ill. 1986), the existence of approximately 29 class members, although “not a large

number” met the numerosity requirement of the rule when the class members came from 9

different states. In this case, the putative class members are located all around the country. (See

Declaration of Francis T. O’Brien, attached hereto). Thousands of people receive child support

payments that are routed through the CSEA. (See O’Brien Declaration). These people are

dispersed throughout Hawaii and the United States. Joinder of these people, given the size and

geographic diversity of the Class, is clearly “impracticable.” Life of the Land v. Land Use

Commission, supra, 63 Haw. at 181, 623 P.2d at 444. Documents obtained from the CSEA’s

report to the Child Support Enforcement Administration demonstrate that they have handled tens

of thousands of these cases per year. (See Exhibit “F” to the O’Brien Declaration). Plaintiff does

not know how many of these people received their checks late. However, that information is

available from the Defendants, which makes the class ascertainable. Moreover, the very same

problems being alleged by the Plaintiff have been the subject of newspaper articles. (See O’Brien

Declaration). The fact that the problems the CSEA has had with making late payments has been

reported on by the press raises a clear inference that the number of persons affected by this

problem is not & minimus.




                                                9
                In addition, while “mere allegations” of numerosity do not meet the Rule 23(a)( 1)

 standard, Plaintiffs “need not show the precise number of members in the class.” Evans v. Pipe

 & Foundry Co., 696 F.2d 925, 930 (1 l* Cir. 1983). “Estimates.. .are sufficient for a class action

to proceed,” and as such, the Plaintiffs need only “show some evidence of or reasonably estimate

the number of class members.” Sandlin v. Shapiro & Fishman, 168 F.R.D. 662, 666 (M.D. Fla.

 1996). Plaintiffs estimate that there are at least 10,000 members in the class as it is proposed.

This is based upon a conservative estimate of the numbers of cases presently being handled by

the CSEA and assuming that at least 10% of those people have received their checks late. This

figure does not take into consideration the number of people there may be in the class for each

year that there has been a statutory obligation to make the payments within either five days or

two days. The figure cited above is based upon the number of parents that the CSEA presently

claims are in the system.

               Judicial economy and efficiency are other factors courts consider when

determining whether the requirements of Rule 23(a)(l) have been met. The Supreme Court

stressed that “the class action device saves the resources of both the courts and the parties by

permitting an issue potentially effecting every [class member] to be litigated in an economical

fashion under Rule 23.” Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d

176 (1979). Judicial economy would not be served if class certification were denied in this case

because of the difficulties of having thousands of obligees, from all around the country, all with

their respective attorneys, attempting to intervene into and participate in the suit. See McMahon

Books, Inc. v. Willow Grovel Assoc., 108 F.R.D. 32, 35, (E.D. Pa. 1985); Dirks v. Clavton

Brokerage Co., 105 F.R.D. 125 (D. Minn 1985).




                                                10
                2.     Rule 23(b)(3): Common Ouestions Of Law And Fact
                Predominate Over Ouestions Affecting Only Individual Members
                Of The Class.

                Rule 23(b)(3) requires that questions of law or fact common to the Class

 predominate over any questions affecting only individual Members. Rule 23(b)(3), Hawaii Rules

 of Civil Procedure.

                Common questions exist when there “is present . . .a common nucleus of operative

facts even though they may be lacking in complete identity.” Siegal v. Chicken Delight. Inc., 271

F. Supp. 722, 726 (N.D. Cal. 1987). The cases seem to support the position that common

questions of law and fact exist where a course of conduct common to all class members

constitutes the gravamen of the complaint.” Northern Accentance Trust 1065 v. AMFAC, Inc.,

51 F.R.D. 487, 491 (D. Haw. 1971). The Plaintiffs’ claims all arise out of the Defendant CSEA

making late payments of child support while retaining the interest that was earned on this money

after the statutory time limit for payment had expired. It is submitted that this factor satisfies the

course of conduct requirement set forth above. In Daar v. Yellow Cab, 67 Cal.2d 695 (1967), the

Class Members had taken Yellow Cabs on numerous trips over a four-year period and were at

the time of certification unidentified, yet it did not preclude a complete determination of the

issues affecting the Class. An accounting concerning the total overcharges and the judgment was

binding on all the users of the taxi cabs within the prior four years.

               In the case at bar, there is more ascertainability than there was in Daar
                                                                                    -.
Defendants’ records will permit Plaintiffs’ counsel to determine the identities of persons who

received late payments and to determine the amount that was realized by the Defendant while it

                                                                      Daar
was holding the money at interest during the delinquent period. Like, -7 the exact amounts




                                                  11
 that the Defendant realized from the, interest earned on the account can be ascertained from their

 records, as can the identities of the persons who received late payments of child support.

                  The questions of law and fact cormnon to the Class in this case are as follows:

             l    Whether Defendants violated the provisions of HRS $571-52.2(e) by failing to

                  pay child support payments received by the CSEA to the obligee within the time

                  limits set by the statute

             l   Whether Plaintiffs have a property interest in the interest earned from the interest-

                 bearing account established by the CSEA.

            l    Whether the retention of interest earned on child support money after expiration

                 of the statutory time limit for payment constitutes a taking of property without

                 due process of law.

            l    Whether the obligees are entitled to receive the interest earned on the child

                 support payments after the expiration of the statutory time for payment.

            l    Whether the Plaintiffs are entitled to an injunction requiring the CSEA to adhere

                 to the statutory time limits.

                  In this case, the questions pertaining to the entitlement to the interest earned on

child support payments retained beyond the date mandated by statute are common to all

members of the Class. Further, these questions clearly predominate over individual questions.

The individual questions, to the extent that they exist, are questions of accounting to determine

the amount that would be due to each of the obhgees if the Court determines that Plaintiffs are

correct in their positions.

                 3.   Rule 23(a)(3): The Claims Of The Representative Plaintiffs
                 Are Twical Of Those Of The Class.
                Rule 23(a)(3) requires the claims asserted by the Representative Plaintiffs to be

 “typical” of the claims of the Class. The test of typicality refers to the nature of the claim of the

 Class Representative and not to the specific facts from which it arose or the relief sought. Hanon

 v. Dataproducts Corn., 976 F.2d 497, 508 (gth Cir. 1992). “Typicality” does not mean that the

 claims asserted by the Class must be identical to those of the named Plaintiffs. Anderson v. Citv

of Albuouercme, 690 F.2d 796, 800 (lOth Cir. 1982). The claims ofthe class representatives must

not differ significantly from the claims or defenses of the class as a whole. In re Computer

Memories Sec. Litig., 111 F.R.D. 675 (N.D. Cal. 1986). Typically, the requirement is satisfied

where the claims of the Representative Plaintiffs are aligned with the claims of the other class

members, arise from the same event or course of conduct that gives rise to the claims of the other

class members, and are based on the same legal theory. In Re United Energy Corn., Etc.,

Securities Lit., 122 F.R.D. 251,256 (S.D. Cal. 1988).

               In the instant action, the Representative Plaintiff and the members of the Class all

are or were entitled to receive child support payments through the CSEA for the period in

question. The proof the Plaintiffs will have to present and the legal theories that will be advanced

are essentially identical to the proofs and theories that will necessarily be presented by all other

Members of the Class. Further, the damages incurred by the Representative Plaintiffs and the

Members of the Class all resulted from the same wrongful conduct committed by the

Defendants. Plaintiffs assert that they are entitled to have child support paid within the period

specified by the statute and that they are entitled to receive the interest earned on late payments

while the money was in the hands of the State of Hawaii.

               4. Rule 23(a)(4): The Representative Plaintiffs Will Fairlv And
               Adequately Protect The Interests Of The Class.




                                                 13
                Rule 23(a)(4), calling for fair and adequate representation, requires that (1) the

 interests of the Representative Plaintiffs coincide with those of the Class, (2) the Representative

Plaintiffs vigorously prosecute the claims on behalf of the Class, and (3) counsel for the

Representative Plaintiffs be qualified, experienced, and generally able to conduct the litigation.

Eisen. sunra, 417 U.S. at 159. This requirement has been interpreted to mean that there can be no

direct conflict between the Representative Plaintiffs and the Class on the underlying issues of the

litigation, and the Representative Plaintiffs “interests are not antagonistic to those of the Class.”

Lerwill v. Inflinht Motion Pictures. Inc., 582 F.2d 507, 512 (gth Cir. 1978); see also, In re

Northern Dist. Of California. Dalkon Shield IUD Products Liabilitv Litkation, 693 F.2d 847,

855 (gth Cir. 1982), cert. denied, 459 U.S. 1171 (1983). The Representative Plaintiff in this case

has no conflicts with the Class, nor interests that are antagonistic to the interests of the Class.

(See Kemp Declaration, Paragraph 10). The Representative Plaintiff is a person entitled to

receive child support payments for her child through the CSEA. She has been damaged by the

fact that she did not receive her payments in a timely fashion and further has been damaged by

the fact that she has not received the interest that was earned by the CSEA during the period

when it was delinquent in making the payment to her. She will suffer damages in the future if the

CSEA does not make future payments in a timely fashion. Plaintiff has suffered property

damages and will vigorously prosecute the action. (See Kemp Declaration). As such, she is an

adequate Class Representative.

               Plaintiffs’   counsel also ensure adequate representation in that they are

experienced in class action litigation and have successfully prosecuted other class action cases on

behalf of plaintiffs. (See Declarations of Timothy D. Cohelan, Francis T. O’Brien and

Christopher D. Ferrara, attached hereto). The qualifications, skills, experience, and resources of




                                                 14
Plaintiffs’ counsel are demonstrated by the numerous cases of a similar nature that have been

prosecuted by Plaintiffs’ counsel in both federal and state courts. North American Acceptance

Corn. v. Amall. Golden & Gregory, 593 F.2d 642 (51h Cir. 1979). Class counsel have the

necessary qualifications, skills, experience and resources to adequately prosecute this case on

behalf of the class.

                5. Rule 23(b)(3): A Class Action Is Appropriate When Seeking
                Iniunctive And Declaratory Relief.

                A class action is proper, under Rule 23(b)(2) when injunctive and declaratory

relief is sought. Wright, Miller and Kane, Federal Practice and Procedure, Civil 2d $1175. The

Complaint sets forth several claims for relief, but the principal ones are declaratory and

injunctive, setting forth the right to timely disbursement of the child support payments and

compelling Defendants to implement a system by which the payments will be timely made.

Indeed the claims for breach of implied contract, breach of fiduciary duty, and for an accounting

would not be reached unless the Court first finds that: (1) The collected child support payments

(and accrued interest) are indeed the property of the obligees; (2) Defendants hold the deposited

child support payments in trust, for the benefit of the obligees; and (3) The Defendants have both

a fiduciary and an implied contractual duty to disburse the child support payment on time as

specified in I-IRS $571-52.2(e), as well as to pay the interest which has accrued on delayed

payments.

               Certifying this action under Rule 23(b)(l) or Rule 23(b)(2) will require no notice.

Nor does it require that individual members of the class be afforded the option to exclude

themselves from the action. Akau v. Olohana Corn, supra, 65 Haw. at 391, 652 P.2d at 1136. As

such, “the standards of specificity” in identifying the class “are lower for Rule 23(b)(2) actions”




                                                15
than for a class action that does require individual notice and a chance to “opt out,” i.e. a Rule

23(b)(3) action. a.

                            C. Certification Is Appropriate At This Time

                Rule 23(c)(l), Hawaii Rules of Civil Procedure, indicates that a motion to certify

a class shall be brought “as soon as practicable after the commencement of an action.”

Certification of the proposed class will confer substantial benefits on both the litigants and the

Court. With the certification of these issues, the Class Members have the opportunity to have

important rights litigated. The Class Members are dependent upon the timely receipt of these

payments for their economic survival. If the payments are not made in a timely and predictable

way, then the obligees are unable to plan and budget because they do not have any way of

knowing when the payments will arrive.

               The interests of judicial economy are served by allowing the Court to deal with a

simplified trial since much of the proof will depend upon statistical information and evidence in

one common proceeding.

                                        IV. CONCLUSION

               For the reasons stated above, the Plaintiffs, on behalf of themselves and all absent

class members, respectfully request that this Court grant the instant Motion and issue an order

certifying the following class without prejudice to the Court’s right to, on notice or on its own

motion, include additional issues to be so certified:

           1. Kemp v. State of Hawaii Child Support Enforcement Apency. et al., Circuit Court

               of the First Circuit, State of Hawaii, Civil No. 98-3815-08, shall appropriately

               proceed as a class action;

           2. The Class is defined as stated in Section III (B) (l), herein;




                                                 16
3. The named class representatives will fairly and adequately protect the interests of

   the Class;

4. Plaintiffs’ counsel shall proceed as class counsel; and

5. The following issues of fact and law are common to all Class Members:

   a.      Whether Defendants violated the provisions of I-IRS $571-52.2(e) by

           failing to pay child support payments received by the CSEA to the

           obligees within the time limits set by the statute

   b.      Whether Plaintiffs have a property interest in the interest earned from the

           interest-bearing account established by the CSEA.

   C.      Whether the retention of interest earned on child support money after the

           expiration of the statutory time limit for payment constitutes a taking of

          property without due process of law.

   d.     Whether the obligees are entitled to receive the interest earned on the child

           support payments after the expiration of the statutory time for payment.

   e.     Whether the Plaintiffs are entitled to an injunction requiring the CSEA to

          adhere to the statutory time limits.

   Dated: Honolulu, Hawaii, r\(“\Mcti                \%C1



                        /-~- -;&g.;;.si;@~-

                                  CHRISTOPI;ER D. FERRARA
                                  TIMOTHY D. COHELAN
                                  ISAM c. KHOURY
                                  Attorneys for Plaintiff




                                    17
                       IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

                                         STATE OF HAWAII

 ANN C. KEMP, Individually And As Next             ) CIVIL NO. 98-38 15-08
 Friend for LINDSAY AGNES KEMP, On                 ) (Class Action)
 Behalf of Herself and Others Similarly            >
 Situated,                                         ) DECLARATION OF ANN C. KEMP;
                                                   ) EXHIBITS “A” - “E”
                           Plaintiff,              >



STATE OF HAWAII CHILD SUPPORT                     )
ENFORCEMENT AGENCY; STATE OF                      )
HAWAII; JOHN AND JANE DOES l-l 0;                 )
DOE GOVERNMENTAL ENTITIES                         >
l-10; DOE ENTITIES l-10,                          >
                                                  >
                           Defendants.            1
                                                  )



                               DECLARATION OF ANN C. KEMP


               I, ANN C. KEMP, declare as follows:

                1.     I am the Plaintiff in the above-captioned matter and I make this

declaration in support of Plaintiffs Motion for Order Determining Class Issues. I am familiar

with the allegations in the Complaint and have personal knowledge of the following facts. If

called to testify, I could and would do so as follows:

               2.      I have retained counsel in this action whom I believe to be experienced

and capable in class action litigation. I am committed to prosecuting this case to the fullest extent

possible for the benefit of myself and the other members of the Plaintiff Class.

               3.      I am a resident of Honolulu, Hawaii. On May 19, 1998, I was divorced

form Barry J. Kemp in FC-D No. 98-1524, Family Court of the First Circuit, State of Hawaii. As
*   I




        part of my divorce, the Family Court granted me legal and physical custody of our daughter

        LINDSAY AGNES KEMP, subject to Mr. Kemp’s rights of reasonable visitation. The Decree

        obligated Mr. Kemp to pay the sum of $760.00 per month as and for child support. The sum was

        to be paid in two installments of $380.00 each, payable on the 5’h and 20th days of each month.

        Paragraph (B) of the Decree provides as follows:

                        In compliance with Act 200 of 1988, all payments for child support
                        shall be payable to and made through the Child Support
                        Enforcement Agency, P.O. Box 1860, Honolulu, Hawaii 96805-
                        1860, and shall be made pursuant to the Order for Income
                        Assignment which shall be filed concurrently herewith.

        Attached hereto as Exhibit “A” is a true and accurate copy of the Divorce Decree filed in the

        Family Court on May 19, 1998.

                        4.      On May 19, 1998, the Family Court entered an Order for Income

        Assignment as contemplated by the Decree. The Order directed that $380.00 should be withheld

        from each of Mr. Kemp’s two monthly paychecks. Attached hereto as Exhibit “B” is a true and

        accurate copy of the Order for Income Assignment filed in the Family Court on May 19, 1998.

                        5.      On May 20, 1998, my attorney sent one certified copy of the Order to the

        Department of Finance and to the CSEA, by certified mail. Attached hereto collectively as

        Exhibit “C” are true and accurate copies of the letters written by my attorney transmitting the

        certified copies of the Order to the Director of Finance and to the CSEA together with the postal

        receipt for certified mail for each letter.

                        6.      The Order was delivered to the Director of Finance and to the CSEA on

        May 21, 1998. Attached hereto collectively as Exhibit “D” are the return receipts that were

        signed by representatives of the Department of Finance and the CSEA showing that the Order

    was received on that date.




                                                        2
                7.      The Department of Finance began deducting child support payments from

Mr. Kemp’s paycheck pursuant to the terms of the Order, commencing with the paycheck of

May 29, 1998. Payments continued to be deducted thereafter from each paycheck as required by

the Order. I did not receive my first check from the CSEA until July 22, 1998. The check I

received in the amount of $760.00 was dated July 20, 1998. On July 23, 1998, I received a

second check from the CSEA, again in the amount of $760.00. That check was dated July 21,

1998. Attached hereto collectively as Exhibit “E” are true and accurate copies of the envelope

and statement that was mailed by the CSEA on July 21, 1998, and received by me on July 22,

1998 and the envelope and statement that was mailed by the CSEA on July 22, 1998, and

received by me on July 23, 1998.

                8.     The payments I received from the CSEA do not contain any payment for

the interest that was earned by the State of Hawaii for the period that it was delinquent in

transmitting the payment to me.

               9.      I have been damaged by the receipt of these late payments. Should I

continue to receive these payments in an untimely manner, I will be damaged in the future as

well.

               10.     I am unaware of any conflict that I might have with other class members. I

have been informed and understand the requirement of class representative and I am committed

to doing whatever necessary to see this case to its conclusion and will vigorously prosecute my

claims and those of the class.
                11.    I have never been named a representative of a class in any judicial or

arbitration proceeding prior to joining in this action.

               I, ANN C. KEMP, do declare under penalty of law that the foregoing is true and

correct.

               Dated: Honolulu, Hawaii,            lq AYC1\   9,         mq6i‘             .
                                                               /




                                                  4
,                                                                                                                 ,-
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                                                                                 I !, , J:’ , II .
                                                                           .I’.T I’b 7::L j-m- ,,tgc\ ,, ,yil
    Of Counsel:                                                                    Fll - rn
                                                                                         .- . _
    OLIVER, LAU, LAWHN, OGAWA & NAKAMURA
    Attorneys-at-Law                                                  23 tf:.Y I 9 hH I I: 06
    A Law Corporation
                                                                            --$1. -T/‘iKAIL1A$lII_
                                                                                    - - .__ _.
    JASON F. OLIVER                           1100-O                            C I.. E I? K
    A. DEBBIE JEW                             3213-O
    600 Ocean View Center
    707 Richards Street
    Honolulu, Hawaii 96813
    Telephone: 533-3999
    Attorneys for Plaintiff
                           IN THE FAMILY COURT OF THE FIRST CIRCUIT
                                          STATE OF HAWAII

     ANN c. KEMP,                                      1   FC-D NO. 98-1524
                                 Plaintiff,
                                                           DIVORCE DECREE
              VS.

     BARRY J. KEMP,                                    ;   Judge: R. MARK BROWNING
                                                           Hearing: WV , ,.
                                 Defendant.            i                11'1
                                                           Grounds: Marriage is
                                                       i   irretrievably broken.

    ack/wozdperf./lgl./decraal



                                          DIVORCE DECREE

                      A hearing was held before the Presiding Judge indicated
    above.
                      Following the hearing and after full consideration of the
    evidence and the Affidavit of Plaintiff,                       the Court found the
    material allegations of the Complaint for divorce to be true,
    Plaintiff to be entitled to a divorce from the bonds of matrimony
    on the grounds stated above and this Court to have jurisdiction to
    enter this decree.



                                                                   I do hereby certify that this is a fun, true, and
                                                                   corrr:ct copy of the orlgml on file in this office.
                                                                                      ,q dauan~~
                                                                                     h&k CIWIIII I: mtrt Fmt Clrrrlrt
,
                                                                       :


               IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:


    I.    DIVORCE

               A.     A decree of divorce is granted to Plaintiff.    The
    bonds of matrimony between Plaintiff and Defendant are hereby
    dissolved and the parties are restored to the status of single
    persons, and either party is permitted to marry from and after the
    effective date of this decree.
               B.     This decree is effective after it is signed and
    filed.

    II.   WAIVER OF ALIMONY

               No party having requested alimony, no order for alimony
    shall now or ever be made.

    III. CHILD RELATED ISSUES

          A.   CHILD CUSTODY
               There was one child born to the parties:
               Name                                Date of Birth
               LINDSAY AGNES KEMP                  February 9, 1994
               Plaintiff is awarded the care, custody, and control of
    the minor child of the parties, subject to Defendant's rights of
    reasonable visitation.
               Each party shall keep the other party informed of his or
    her residence address and telephone number so long as the child is
    a minor.




                                     -2-
r




         B.       CHILD SUPPORT
                  Defendant shall pay to Plaintiff, as and for the support
    of the minor child, the sum of $760.00 per month.       Said sum shall
    be payable in two equal installments of $380.00 on the 5th and 20th
    days of each month, commencing with the first child support payment
    due after the entry of this Decree.
                  Payments for child support shall continue until the child
    attains the age of 18 years or graduates from high school or
    discontinues high school, whichever occurs last. Child support for
    said child shall further continue uninterrupted so long as said
    child continues 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 said child attains the age of 23 years, whichever
    occurs first.
                 In compliance with Act 200 of 1988, all payments for
    child support shall be payable to and made through the Child
    Support Enforcement Agency, P. 0.        Box 1860, Honolulu, Hawaii
    96805-1860,     and shall be made pursuant to the Order for Income
    Assignment which shall be filed concurrently herewith.
                 All of the foregoing shall be subject to further order of
    the Court.
                 The Child Support Enforcement Agency is hereby made a
    party for the limited issue of child support
         C.      CHILD HEALTH CARE
                 Plaintiff shall continue to maintain medical, vision and
    dental insurance for the benefit of the child for so long as there
    is a continuing obligation to pay child support.


                                       -3-
              Plaintiff and Defendant shall share equally any health
related expense which is not covered by insurance.
             The Family Court shall have continuing jurisdiction over
the matter of child health care.
      D.     EDUCATIONAL EXPENSES
             Plaintiff and Defendant each shall pay one-half the
expenses     associated with       enrolling   the   child in   a private
elementary        and high school.       Should the child continue her
education post-highschool, P.laintiff and Defendant each shall pay
one-half the child's reasonable college education expenses.

IV.   PROPERTY DIVISION
      A.     ACCOUNTS.     Each party is awarded his or her cash on hand
and his or her solely-held accounts, subject to any debts thereon.
      B.     LIFE INSURANCE.      Each party is awarded the life insurance
policies in his or her name as his or her sole and separate
property.
      C.     PERSONAL EFFECTS.        Each party is awarded his or her
jewelry and clothing, his or her memorabilia and heirlooms, and his
or her other personal effects.
      D.     HOUSEHOLD EFFECTS.      Each party is awarded the household
furniture,        furnishings,   and effects which are    in his   or her
possession.
      E.     VEHICLES.
             1.      Plaintiff is awarded the 1992 Honda Accord Station
Wagon, License Number EXE008.
             2.      Defendant is awarded the 1991 Nissan 3OOZX, License
Number EXX991 subject to the debt thereon.

                                      -4-
     F.      REAL PROPERTY.
             1.   Plaintiff is awarded the real property located at
66-848 Keakula Street, Waialua, Hawaii subject to the debt thereon.
             2.   Defendant is awarded the leasehold property located
at 2888 Ala Ilima Street, Apartment 2609, Honolulu, Hawaii subject
to the debt thereon.
     G.      RETIREMENT PLANS, PENSION, IRA, PROFIT-SHARING, KEOGH,
             401(K) AND/OR OTHER DEFERRED COMPENSATION BENEFITS.
             Each party is awarded the retirement plans, pension, IRA,
401(K) plans, and/or deferred compensation plans in his or her own
name as his or her sole and separate property.
     H.      OTHER PROPERTY
             All of the rest of the parties' property not otherwise
specifically divided by the provisions of this Decree is awarded to
the party who is the existing legal owner.            Plaintiff shall
continue to be trustee of the accounts that have been established
for the minor child.

v.   DEBTS
     A.      PLAINTIFF
             Except as otherwise provided in this Decree, Plaintiff
shall pay the following described indebtedness:
             1.   All outstanding indebtedness standing in Plaintiff's
name alone, except as elsewhere provided herein.
             2.   All of Plaintiff's    attorney's   fees   and   costs
incurred in connection with the parties' divorce.
             3.   All indebtedness otherwise allocated to Plaintiff
under the provisions of this Decree.


                                  -5-
      B.   DEFENDANT
           Except as otherwise provided in this Decree, Defendant
shall pay the following described indebtedness:
           1.     Alloutstandingindebtedness standing inDefendant's
name alone, except as elsewhere provided herein.
           2.     All of Defendant's    attorney's   fees and costs
incurred in connection with the parties' divorce.
           3.     All indebtedness otherwise allocated to Defendant
under the provisions of this Decree.
      C.   INDEMNIFICATION
           The party responsible for a debt shall indemnify and hold
the other party harmless from any and all liability arising from
non-payment     of the debt,   shall reimburse the other party for
attorneys' fees and costs incurred as a result of non-payment, and
shall compensate the other party for all costs incurred and damages
suffered by the other party as a result of non-payment.
      D.   NOVATION
           When both parties remain liable to a creditor of a debt
assumed by one party,     the assuming party shall take whatever
reasonable steps are necessary to obtain a novation of that debt
such that he or she alone is responsible for that debt.

VI.   TAX MATTERS
      A.   TAX RETURNS
           The parties expect and intend that their divorce will be
effective in 1998.
           The parties have filed joint state and federal individual
income tax returns for all of the years of the marriage through

                                  -6-
 1997.        Any further refund on previously filed joint tax returns
 shall be awarded one-half to Plaintiff and one-half to Defendant.
Any further tax, deficiencies, assessments, interest and penalties
on previously filed joint tax returns shall be paid one-half by
Plaintiff and one-half by Defendant.           In the event of an audit of
previously           filed joint   tax returns,   both parties    shall be
responsible for the audit defense and both parties shall equally
share in the cost thereof.
         B.     COMMUNICATIONS FROM TAX AUTHORITIES
                Each party shall immediately inform the other party of
any communication from any taxing authority that may involve them.
A party failing to so inform shall be liable to the other party for
all damages caused thereby.
         C.     SEPARATE TAX RETURNS
         In those separate individual income tax returns as are
subsequently filed by the parties, income and deductions shall be
reported as follows:
                1.     Each party shall report income which he or she
receives,        and each party      shall be entitled to    claim those
deductions which he or she actually pays or incurs.
               2.      Authority to File as Head of Household.    Plaintiff
shall be entitled to file tax returns as Head of Household.
               3.      Tax Consequences   of Required Payments.      It is
assumed and intended that the tax consequences of payment required
by this Decree shall be as follows:




                                       -7-
                     a.      Payments by Defendant to Plaintiff as and for
child support shall not be deductible to Defendant and shall not be
taxable to Plaintiff.
                 b.          A party's payment of indebtedness as required
by this Decree shall not constitute income to the other party.
                 C.          Dependency Exemotions.   Plaintiff is entitled
to claim the tax dependency exemption for the child for federal and
state income tax.
                 d.          Tax Consequences of Property Division.            The
parties assume and intend that the division of property incident to
their divorce shall not itself result in any tax consequences, that
each party will take each property interest awarded him or her at
its pre-divorce basis, and that any tax which must be paid upon the
subsequent sale or exchange of any such interest shall be paid by
the party who received and subsequently sold or exchanged such
interest.

VII. PLAINTIFF'S SURNAME

     Plaintiff wishes to continue using her married name
                                                         MAY 1 9 19%
                                                                         J------Y
            DATED:        Honolulu, Hawaii
                                             ;;\

                                                 R. EJ j+tjK ~iXl’!fFdII’~IG ( %v. )
                                                                              ‘\
                                       JUDGE OF THE ABOVE-ENTITLED COURT




-__----^------------------        ---------------------------------------
Kemp v. Kemp, FC-D No. 98-1524, DIVORCE DECREE.


                                       -8-
APPROVED AS TO FORM AND CONTENT:




ANN C. KEMP
                                      lJ+il
                                     BARRY J. KEMP
                                     Defendant
Plaintiff
SS# 576-88-5515                      SS# 566-78-6353
Address:                             Address:
66-848 Keakula Street                2888 Ala Ilima Street, #2609
Waialua, Hawaii 96791                Honolulu, Hawaii 96818


Dated:      e/as/%                   Dated:


EMPLOYER:                            EMPLOYER:
Oliver, Lau, Lawhn, Ogawa            Department of the Prosecuting
  & Nakamura                           Attorney
600 Ocean View Center                Alii Place
707 Richards Street                  1060 Richards Street
Honolulu, Hawaii 96813               Honolulu, Hawaii 96813

APPROVED AS TO FORM:




____________________----------------------- ---_--_-______________

Kemp v. Kemp, FC-D No. 98-1524, DIVORCE DECREE.




                               -9-
     L..

r             r

                                                                                               -ST CIRCUIT COURT
                                                                                                ::'y,TE $C /!A'+/$!
                                                                                                     j-g ._q)
           OLIVER, LAU, LAWHN, OGAWA & NAKAMURA
           JASON F. OLIVER 1100-O                                                          \?%I f4AY I9 At! II: 06
           707 Richards Street, Suite 600                                                        J.TAKAHASItl
           Honolulu, Hawaii 96813                                                                --C.LERK
           Telenhone:           533-3999
     Attorney for:          Plaintiff


                                     In the Family Court of the First Circuit
                                                          State of Hawaii
            ANN C. KEMP,                                              )   FC-   D        NO. 9 8 - 1 5 2 4

                                                   Plaintiff,         ;   ORDER FOR INCOME ASSIGNMENT

                      vs.                                             ;
                                                                      ) HEARING:             MAY 1 4 1998
            BARRY J. KEMP,
                                                                      ;   JUDGE:        fi. MARK BROWNING
                                                   Defendant..        1


                                               ORDER FOR INCOME ASSIGNMENT

       1.         Name and address of Employer ( or Successor Employer):
                  DEPARTMENT OF FINANCE
                  Accounting Division, Attn: Payroll
                  530 South King Street, Room 208
                  Honolulu, Hawaii 96813
      2.          Name and address of Assignor (i.e.Child Support Obligor):
                  BARRY J. KEMP
                  2888 Ala Ilima, #2609
                  Honolulu, Hawaii 96818
      3.          Date current child support order was filed:        MAY I9 1998
      4.          Payperiod( 5th and 20th days of each month

      5.          Amount to be withheld each pay period: $ 38 0 . 0 0           ,($ 3 8 0 . 0 0        ,currentchild
                  support; $                        child support arrears; $      - -           alimony) not to exceed
                  $       760.00       -- per monih, provided employer may adjust the monthly amounts withheld so as to
                  realize an equivalent annualized sum.

      6.          Withheld amounts to be made payable and sent to:
                                         CHILD SUPPORT ENFORCEMENT AGENCY
                  Mailing address:       P. 0. Box 1860
                                         Honolulu, Hawaii 96805-l 860
                                                                                    1 & h&y cwflfy that this is a full, true. 8nd
                  Office Address:        680 Iwilei Road                            wn~ copy 01 the oflglnal on file m tha offlce.
                                         Honolulu, Hawaii 968 17

                            (PLEASE NOTE CASE NUMBER AND
    FORM NO. 073948 RliSl                                                                       ORDER FOR INCOME ASSIGNMENT     IF-P-096
-.



       An order was entered in this case requiring Assignor to pay current child support of $ 7 6 0 . 0 0 Per
month; % ------------------taw~~~~~~~-~~$------------------~~p~
------------------~rtnd$------------ mtiirnony in e&two installments on or before the
   th     da
25 0 t h and y ( s ) o f e a c h m o n t h .

     Now, therefore, pursuant to Hawaii Revised Statutes sections 57 l-52.2 and 57 l-52.3, THE COURT
HEREBY ORDERS, ADJUDGES AND DECREES that employer/successor employer shall:

        (a) Withhold from any salary, wages or other income otherwise owed to Assignor the sum of $ 7 6 0 - 0 0
per month($ 7 6 0 . 0 0 , current child support; $       - -      , child support arrears; $   - -    , alimony).
Said assignment may not be in excess of the maximum amounts permitted under section 303(b) of the Consumer
Credit protection Act (15 U.S.C. 1673(b));

        (II) Begin withholding such amount no later than the first pay period occurring within fourteen (14) days
following the date a certified copy of the Order for Income Assignment is mailed or delivered to Employer/Successor
Employer. Withholding by the employer shall continue throughout the employment of Assignor or until the further
order of the Court;

         (c) Transmit the withheld amounts to the official designated above in part6 within five (5) working days after
Assignor is paid. If Employer/Successor Employer is required to withhold amounts from the earnings or income of
more than one employee, then Employer/Successor Employer may remit a sum total of the amounts in one check, with
a listing of the amounts applicable to each employee;

        (d) Inform the Child Support EnforcementAgency immediately of any change which would affect Employer/
Successor Employer’s ability to comply with this Order for Income Assignment, including Assignor’s last known
address and the name and address of Assignor’s new Employer (if Assignor ceases to be employed by Employer),

          Compliance by Employer with this Order for Income Assignment shall operate as a discharge of Employer’s
liability to Assignor for that portion ofAssignor’s earnings withheld and transmitted to the Child Support Enforcement
Agency whether or not employer has withheld the correct amount.

           Hawaii Revised Statutes Section 571-52.2 (f) provides in part:

                   For each payment made pursuant to an assignment order, the person making such payment may
           deduct and retain as an administrative fee the additional amount of $2 from the income owed to the obligor
           Any assignment made pursuant to an assignment order shall have priority as against any garnishment,
           attachment, execution or other assignment order, or any other order unless otherwise ordered by the court
           and the same shall not be subject to any of the exemptions or restrictions contained in Part III of chapter
           65 1, and chapters 652 and 653.

           Hawaii Revised Statutes Section 571-52.2(g) provides:

                     Any employer who fails to comply with an order of assignment of future income, as provided for under
           this section, shall be liable to the obligee or the obligee’s assignee for whom support was required to be paid,
           for the full amount of all sums ordered to be withheld and transmitted and not otherwise done so.

         It shall be unlawful for any employer to refuse to hire a prospective employee, to discharge an employee,
or to take any other disciplinary action against an employee, based in whole or in part upon an authorized income
assignment. Any employer violating this statute shall be guilty of a misdemeanor under Hawaii Revised Statutes
Section 710-1077(l) (g). Pursuant to Hawaii Revised Statutes Sections 706640 and 706-663, conviction of a
misdemeanor may result in the employer being sentenced to pay a fine or being sentenced to imprisonment.

           DATED:        Honolulu, Hawaii,



                                                                                                         /
                                             JUDGE OF THE ABOVE-ENTTTLED CO&_/
FOFIM NO. 07348 RlrOl                                                     lxoER FORINeouE AsWaHy0o                  lF+Qy
                     OLIVER, LAU, LAWHN, OGAWA & NAKAMURA
                                  A-ITORNEYS AT LAW. A IAW CORPORAllON



JASON F. OLIVER                       600 OCEAN VIEW CENTER               LINDA R. KOBUKE
JEFFREY DANIEL LAU                     707 RICHARDS STREET                  RICHARD A. INQ
                                                                               ANN C. KEMP
JAMES H. IAWHN
ROY 1. DGAWA
                                      HONOLULU, HAWAII 96813              GW C. ZUKERAN
REID A. NAKAMURA                                                            KURT K. LEDNG
A. DEBBIE JEW                             TELEPHONE (SOS) 5X3-3999
KEmi Y. YAMAM                              FACSIMILE (SOS) SjsoIU




                                        May 20, 1998


Via Certified Mail
Return RecetiDt Reaueeted                .

Child Support Enforcement Agency
P.O. Box 1860
Honolulu, Hawaii 96805-1860
          Re:        Kemo v. Kemp; FC-D No. 98-1524
Dear Sir/Madam:
     Enclosed for your records are certified copies of the
following:
          1.         Order for Income Assignment, filed May 19, 1998; and
         2.          Divorce Decree, filed May 19, 1998
     Pursuant to the enclosed Order for Income Assignment, Barry
Kemp is obligated to pay child support in the amount of $760.00 per
month in two installments of $380.00 on the 5th and 20th days of
each month, with the first payment commencing after the entry of
the Divorce Decree. Mr. Kemp's employer has been provided with a
certified copy of the Order for Income Assignment.
     Please call me if you have any questions or require further
information regarding the above.
                                              Very truly yours,
                                              OLIVER, LAU, LAWHN, OGAWA & NAKAMURA
                                                           Law, A Law Corporation




JFO:emr
Enclosures
cc: Ann C. Kemp


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        Pasbnah or Data
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             3655-l-
                             . .



                     OLIVER, LAU, LAWHN, OGAWA & NAKAMURA
                                   ATTORNEYS AT LAW ’ A LAW CORPORATlON



JASON F. OLMR                          600 OCEAN VIEW CENTER                LINDA R. KOBUKE
JEFFREY DANIEL IAU
                                        707 RICHARDS STREET                   RICHARD A. ING
                                                                                ANN C. KEMP
                                       HONOLULU, HAWAII 96813
JAMES Ii. IAWHN
ROY T. OGAWA                                                                GUY C. ZUKERAN
REID A. NAKAMURA                                                              KURT K. LEONG
A. DEBBIE JEW                              TELEPHONE (808) 53X3999
KEITH Y. YAMADA                             FACSIMILE (&X3) 533-01U




                                         May 20, 1998


Via Certified Mail
Return Recebt Remuested

Department of Finance
Accounting Division
Attention: Payroll
530 South King Street, Rm. 208
Honolulu, Hawaii 96813
         Re:         Kemr, v. Kemn: FC-D No. 98-1524
Dear Sir/Madam:
     Enclosed for your records is a certified copy of the Order for
Income Assignment, filed on May 19, 1998, in the above entitled
divorce case.
      Pursuant to the Order for Income Assignment, Barry Kemp is
obligated to pay child support in the amount of $760.00 per month
in two installments of $380.00 on the 5th and 20th days of each
month, with the first payment commencing after May 19, 1998.
Please withhold said amounts and mail payments to the Child Support
Enforcement Agency at P. 0. Box 1860, Honolulu, Hawaii 96805-1860.
     Please call me if you have any questions or require further
information regarding the above.
                                                Very truly yours,
                                                OLIVER, LAU, LAWHN, OGAWA & NAKAMURA
                                                             Law, A Law Corporation




JFO:emr
Enclosure
cc: Ann C. Kemp
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        z 044 378 525
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E      05/20/98
g      3655-l/-
                                           ,‘,    .._   ,:-   ;   ‘,   .‘,.‘-I
                                                 1’                        ,,:,
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         s SENDER:                                                                      I also wleh to receive the
         s compteteltemei erKuor2tor-wnllcw.
         0 n replete ileme 3,4a. end 4b.            .      i                            fdlowlng servlcae (for an
            ~PrlntywrMmewdclddnumthersvwwofWIkm,m~mcwrrtunWo                            e)&af@q:
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         p”   3. Artlde Addressed to:                                      4a. ArWe Number
                                                                                                                       d
         %  Child Support Enforcement                                             Z 044 398 526
               Agency                                                      4b. Servka Typa                         ii
         ii P.O. Box 1860                                                  0 Ragbrad                     xxcemfled “,
             Honolulu, HI 96805-1860-.Y-
                                                                                                              Cl COD
                                                                           7. Date of DalhreQ 1           1
                3655-l/Kemp
              5. Recehfed By (P&t Name)                                    8. Addressee’8 Address (Only It mquestf9d   y”
                                                                              andh9lSpdd)




                                          EXHIBIT I’. 3 ‘*
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      Attention:
      530 S. King St., F&II. 208
      Honolulu, Hawaii                                                             COD




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                                                                                                                                                            0027654
STATE OF HAWAII
CHILD SUPPORT ENFORCEMENT AGENCY                                                          100272g2           07/20/l gg8           $?*****kk760 ,oo
P.O. BOX 1860
HONOLULU, HI 968051806

        CASE ID               PAYOR NAME                                   AMOUNT
        oojoo4og8             KEMP, BARRY                                  $$$$$$760.00
                                         TOTAL:                            $*******ft760.00

 CURRENT M O N T H C U R R E N T M O N T H P R I O R M O N T H S           PRIOR MONTHS                      TOTAL
 REIMBURSEMENT PAID TO YOU                  REIMBURSEMENT                  PAID TO YOU                       CHECK AMOUNT
 PAID TO STATE                              PAID TO STATE
 $**t***o.oo       $***760.00               $**4**0.00                     $*****o.oo                        $*******760.00



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ALOHA AND WELCOME TO KEIKI - H A W A I I ' S N E W A U T O M A T E D C H I L D S U P P O R T S Y S T E M .
*
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WITH ACCESS TO YOUR CASE INFORMATION THROUGH CONTACT WITH OUR VOICE,RESPONSE
SYSTEM.
f
T O U S E T H I S S E R V I C E , Y O U W I L L N E E D A N E W FOUR ( 4 ) D I G I T P E R S O N A L
IDENTIFICATION NUMBER (PIN). ONCE YOU HAVE THE PIN CALL OUR TOLL FREE NUMBER
THIS NEW PIN CALL OUR TOLL FREE NUMBER l-888-317-9081 AND USING A TOUCH-TONE
TELEPHONE FOLLOW THE INSTRUCTIONS TO RECEIVE INFORMATION ON YOUR CASE.


                                                    DETACH ALONG PERFORATION
     :                  I

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CHILDSUPPORTENFORCEMENTAGENCY                                                                           10028185              07/21/1gg8        $hckikfc7~0,00                                                       :‘:
P.O.BOX1860                                                                                    ,
HONOLULU,Hl96805-1806

        CASE ID                 PAYOR NAME                                               AMOUNT
        oojoo4og8               KEMP, BARRY                                              $$$$$$760.00
                                           TOTAL :                                       $********760.00

 CURRENT MONTH CURRENT MONTH                   PRIOR MONTHS  PRIOR MONTHS                                                     T O T A L
 REIMBURSEMENT PAID TO YOU                     REIMBURSEMENT PAID TO YOU                                                      CHECK AMOUNT
 PAID TO STATE                                 PAID TO STATE
 $*****o.oo    $*****o.oo                      $*****o.oo    $***760.00                                                       $****M760.00



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ALOHA AND WELCOME TO KEIKI - H A W A I I ’ S N E W A U T O M A T E D C H I L D S U P P O R T S Y S T E M .
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THIS NEW PIN CALL OUR TOLL FREE NUMBER l-888-317-9081 AND UStNG A TOUCH-TONE
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                        IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

                                         STATE OF HAWAII

    ANN C. KEMP, Individually And As Next          ) CIVIL NO. 98-3815-08
    Friend for LINDSAY AGNES KEMP, On             ) (Class Action)
    Behalf of Herself and Others Similarly        >
    Situated,                                     ) DECLARATION OF FRANCIS T.
                                                  ) O’BRIEN; EXHIBIT “E”
                           Plaintiff,             )
                                                  >
            vs.                                   >
                                                  >
    STATE OF HAWAII CHILD SUPPORT                 )
    ENFORCEMENT AGENCY; STATE CiF                 )
    HAWAII; JOHN AND JANE DOES l-10;              )
    DOE GOVERNMENTAL ENTITIES                     )
    l-10; DOE ENTITIES l-10,                      >
                                                  >
                           Defendants.            >
                                                  1
                                                  1

                           DECLARATION OF FRANCIS T. O’BRIEN

                  I, FRANCIS T. O’BRIEN, declare as follows:

                  1.    I am one of the attorneys for Plaintiffs above-named. I make this

declaration in support of Plaintiffs’ Motion For Order Determining Class Issues. I have personal

knowledge of all matters stated herein except where it is stated that the matters are submitted

upon information and belief.

                  2.    I have been admitted to practice in the State of Hawaii since 1973. Prior to

that, I was admitted to practice in the State of Massachusetts in 1969. I am also admitted to

practice in the U.S. District Courts for the Districts of Hawaii and Massachusetts. I am admitted

to practice before the Ninth Circuit Court of Appeals.

                  3.    Since I left the United States Army Judge Advocate General’s Corps in

1974, my practice has concentrated in the area of litigation. I have handled a number of large
personal injury suits and was co-counsel in a civil trial that extended for six months in the Circuit

 Court of the First Circuit, State of Hawaii. I have conducted numerous depositions and I am

experienced in motion practice and the other aspects of discovery, trial preparation, and trial.

                4.     I am familiar with the file in this action and I have either drafted or

participated in the drafting of all the pleadings in the action to date. I have no interest that is

antagonistic to any member of the class in this case.

                5.     Since we filed this action, I have been contacted by a large number of men

and women who have recounted problems that they have experienced obtaining timely payments

from the CSEA. These calls have come from all islands in the State of Hawaii. In addition to the

calls from within the State, I have been contacted by a number of persons on the mainland who

have indicated that they also have experienced problems obtaining timely payments of their child

support from the CSEA. Based upon the foregoing, I am informed and believe that there are

members of the putative class on all islands of the State of Hawaii, as well as members of the

putative class that reside in different States in the mainland United States. I am informed and

believe based on the statements of the various members of the putative class that the failure to

receive their child support payments in a timely and predictable manner has created a significant

hardship for these persons. I am also informed and believe from speaking with these persons that

complaints to the CSEA have done little or nothing to improve the timeliness of payments or to

provide them with a means of predicting when payments would be made. I am informed and

believe that the failure to receive payments on time has created hardships for children entitled to

receive child support in the State of Hawaii, and I am informed and believe that the failure of the

CSEA to deliver these payments within the time limits specified by the statute has created and




                                                 2
fostered hard feelings between many of the persons who are either making payments or receiving

payments in the system.

                6.    Attached hereto as Exhibit “F” is a true and accurate copy of a report that

was obtained from the website of the Child Support Enforcement Administration in Washington,

D.C. listing figures for the CSEA in Hawaii for the year 1996.

                7.    At or about the time that this action was filed, Michael Meany, the head of

the CSEA indicated in statements to the press that there were approximately 100,000 people who

presently receive child support payments’through the CSEA.

               I, FRANCIS T. O’BRIEN, do declare under penalty of law that the foregoing is

true and correct.

               Dated: Honolulu, Hawaii,      it] \~t 2 c ti   Is-   rw.9




                                                3
APPENILL B: STATE BOX SCORES

   0 States: AL AK AZ AR CA CO
              -I---I-l---l-I-
   l States:      DE DC FL GA GU
              CT I-1---1~I~I-
              HI ID IL IN IA KS
   0 States: -l---I---l---l~I~
                   - - MD MA MI
   0 States: jCJ ILA IME I - I - I -
              MN - - - - -
   O States: _ IMS IMO IMT INE INV
              _ NJ NM NY NC ND
   O States: NH I---f-l-----I-
   l States:  OH OK OR PA PR RI
              -I---I-l---l-I-
              SC - - TN TX UT VT
   O States: _ ISD - 1 - 1 - I - I -
                  VA WA W-U WI WY
   O States: Y-J I-l-l---I--l-
   o Regions: L,II,III,Iv,V
   l Regions:  ~,~,VIII,~,&
   l Nationwide


                    Abbreviations Used in Annual Report’s Box Scores by States


AFDC/FC = Aid to Families with Dependent Children/Foster Care

NAFDC = Non AFDC

C/E = Cost Effectiveness

Paternities Est. = Paternities Established

Support Orders Est. = Support Orders Established

APs Located = Absent Parents Located

FTE = Full Time Employees




                                                                                 1 l/12/98
                      BOX SCORES

Hawaii                                                      % Change
                                                          from FY 95
Collections Distributed
* Total                                     $52,181,666          7.0
* AFDC/FC                                   $12,240,646          7.7
* NAFDC                                     $39,941,020          6.8
Total Expenditures                          $23,906,881         15.6

C/E Total
* AFDC/FC

* NAFDC
Paternities Est.

Support Orders Est.
A/Ps Located
FTEs

Total Caseload
* AFDC/AFDC Arrears

* NAFDC                                          37,09615.0

                       Last Updated on 7/31/98
                          By ACF-OCSE _
                    IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

                                       STATE OF HAWAII

ANN C. KEMP, Individually And As Next            )         CIVIL NO. 98-3815-08
Friend for LINDSAY AGNES KEMP, On                )         (Class Action)
Behalf of Herself and Others Similarly Situated, )
                                                 >
               Plaintiff,                        >         DECLARATION OF TIMOTHY D.
                                                 >         COHELAN
         vs.                                     >
                                                 >
STATE OF HAWAII CHILD SUPPORT                    >
ENFORCEMENT AGENCY; STATE OF                     >
HAWAII; JOHN AND JANE DOES I- 10; DOE )
GOVERNMENTAL ENTITIES                            >
1 - 10; and DOE ENTITIES 1 - 10,                 >
                                                 >
               Defendants.                       >
                                                 >
                                                 >



                         DECLARATION OF TIMOTHY D. COHELAN

               I, TIMOTHY D. COHELAN, declare as follows:

               1.      I am a partner in the law firm of Cohelan & Khoury, which has been

certified as class counsel in numerous state and federal court class actions. Cohelan & Khoury

has been in continuous existence since 198 1 and specializes in civil litigation generally. Since

1987, our firm has specialized in class action cases. Cases in which we have been certified as

counsel or co-counsel are listed below

               a       Goldman, et al. v. Pioneer Mortgage, et al., USDC for the Southern
                       District of California, Case No. 91-005 King (BTM). Co-counsel for
                       certified plaintiff class in federal case filed on behalf of investors in failed
                       mortgage-backed securities issuer;


                                                   1
 b.   Marcus v. Cal Fed, Inc., USDC for the Southern District of California,
      Case No. 92 1198 H(M);

 C.   Evans v. Cal Fed. Inc., Los Angeles County Superior Court Case No. BC
      0529392;

 d.   Soriano v. Cal Fed, Inc., USDC for the Central District of California, Case
      No. 92-0953 AWT(TX). Co-counsel in class action filed on behalf of
      purchasers of units in master limited partnership controlled by Cal Fed
      Bank;

 e.   Dudlev. et al. v. Jones, American Thrift, San Diego Superior Court Case
      No. 625336;

 f.   Bailey. et al. v. EmDire Blue Cross/Blue Shield et al., USDC for the
      Southern District of New York, MDL Docket No. 902, 93 Civ. 6179 (MP).
      Co-counsel for nation-wide certified class action filed on behalf of 8,000
      victims of phony health insurance scam against RICO Defendants who
      engineered scam and approximately 800 insurance brokers who sold the
      faulty insurance. Judgments of approximately $150 million per company
      were entered against 84 offshore insurance companies on October 3. 1996.

g-    Yia Xiong v. Farmers Insurance Companv, Fresno County Superior Court.
      Co-counsel for approximately 6,600 Hmong residents who were allegedI>
      discriminated against by defendants in the purchase of automobile
      insurance.

h.    Wesley Marauart v. Chartwell Financial, Orange County Superior Court.
      Counsel for approximately 400 investors who invested in promissoq
      notes sold in violation of the securities code.

i.    Juarez. et al. v. Lewis Homes of California, Imperial County Superior
      Court Case No. 83 153. Certified class, for settlement purposes, of 1.391
      homeowners who purchased allegedly defective homes built by Lewis
      Homes in Imperial County California. This matter recently settled for $22
      million on behalf of the class (approved December 9, 1996).

J.    Janice D. Lovd. as Trustee and Liquidator of First Assurance and CasualtA
      Co.. Ltd. v. PaineWebber. Inc.. et al., USDC for the Southern District of
      California, Case No. 95 1194T(BTM). Co-counsel - conditional settlement
      purposes - failed offshore insurance company with class of policyholders
      brought together with the bankruptcy trustee for the estate of the company.


                               2
,



                k.      Hoffmaster, et al. v. Citv of San Diego, San Diego County Superior Court
                        Case No. 682920. Pro bono class action brought on behalf of homeless
                        persons against City based on failure to provide winter shelter and failure
                        to comply with state and federal law concerning Housing Element.
                        (Certification not filed because mandamus issued to benefit class.)

                1.     Arthur. et al. v. Citv of San Diego, San Diego County Superior Court Case
                       No. 639789. This lawsuit was filed on behalf of retired police officers and
                       firemen for unpaid health benefits.

                m.     Alberts v. Service Technicians, Inc., USDC for the Southern District of
                       California, Case No. 92-526H (P).

                n.     Aguilar v. Atlantic Richfield Companv, San Diego Superior Court, Case
                       No. 7008 10. An antitrust consumers lawsuit on behalf of over 2 1 million
                       California drivers against the nine major oil companies for price fixing,
                       etc.

                0.     Priestly v. Dayton Hudson Corn.. Mervvn’s California, Orange County
                       Superior Court, Case No. 777626. This lawsuit involves approximately
                       alleges Labor Code violations for unpaid overtime.

               2.      I make this declaration in support of Plaintiffs Motion for an Order

Determining Class Issues. I have personal knowledge of the following facts and information

And if called upon to testify I would and could do so as follows:

               3.      I am familiar with the file in this action and have reviewed all the

pleadings.

               4.      Our firm and the undersigned are rated as AV by Martindale Hubbell. I

have been in active practice in California since 1974. I am admitted to practice in the District of

Columbia and in the Central and Southern Districts of the federal court system of California.

Further, I have tried cases in the Southern District of New York and have made court

appearances in numerous federal courts around the country, including the Multidistrict Litigation

Panels.
                   5.   I am familiar with the principles applicable to class action or group relief

causes of action utilizing Federal Rule 23. Additionally, I am familiar with the different types of

state class action rules and general principles applicable to the utilization of group relief in

connection with civil lawsuits.

                   6.   Additionally, I have researched and written Cohelan on California Class

Actions which is a treatise on practicing class action cases in the California court system.

Distinguishing between California procedural rules and federal rules has also required me to

diligently study and understand the concepts and principles of Federal Rule 23 and state class

action practice.

               I, TIMOTHY D. COHELAN, do declare under penalty law that the foregoing is

true and correct.

               Dated: March 8, 1999




                                           i”    IMOTHY D. COHELAN




                                                  4
                      IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

                                       STATE OF HAWAII


ANN. C. KEMP, Individually And                 >      CIVIL NO. 98-38 15-08
As Next Friend for LINDSAY                     >      (class action)
AGNES KEMP, On Behalf Of                       >
Herself And Others Similarly                   )      DECLARATION OF CHRISTOPHER D.
Situated,                                      1      FERRARA
                                               )
                       Plaintiffs,             >
                                               >
        vs.                                    >
                            >
STATE OF HAWAII CHILD SUPPORT                  )
ENFORCEMENT AGENCY; STATE OF                   )
HAWAII; JOHN AND JANE DOES                     1
l-l 0; DOE GOVERNMENTAL                       1
ENTITIES 1 - 10; and DOE                       >
ENTITIES 1 - 10,                              >
                                               >
                       Defendants.            >
                                              >
                                              )


                      DECLARATION OF CHRISTOPHER D. FERRARA

        I, CHRISTOPHER D. FERRARA, declare as follows:

        1.     I am one of the attorneys for Plaintiffs above-named. I make this declaration in

support of Plaintiffs’ Motion for Order Determining Class Issues. I have personal knowledge of

all matters stated herein except where it is stated that the matters are submitted upon information

and belief.

       2.      I have been admitted to practice in the State of Hawaii since 1975. Prior to that, I

was admitted to practice in the State of California in 1974. I am also admitted to practice in the

U.S. District Courts for the Districts of Hawaii and California (Southern). I am admitted to
practice before the Ninth Circuit Court of Appeals and U.S. Court of Appeals for the Federal

Circuit.

           3.   Since I left the Office of the Public Defender, State of Hawaii, in 1978, my

practice has concentrated in the area of litigation. I have eight years experience in litigation

before the Family Court of the First Circuit. My primary concentration is in personal injury

litigation, although I have participated in complex litigation in commercial matters. My

litigation experience includes complex cases against major international and national

corporations, including medical malpractice and medical product litigation. In addition, I have

litigated against the State of Hawaii and the City and County of Honolulu. I have conducted

numerous depositions and I am experienced in motion practice and the other aspects of

discovery, trial preparation, and trial.

        4.      I am familiar with the file in this action and I have either drafted or participated in

the drafting of all the pleadings in the action to date. I have no interest that is antagonistic to any

member of the class in this case.

        5.      Since we filed this action, I, like Francis O’Brien, have been contacted by a large

number of men and women who have recounted problems that they have experienced obtaining

timely payments from the CSEA. These calls have come from all islands in the State of Hawaii.

In addition to the calls from within the State, I have been contacted by a number of persons on

the mainland who have indicated that they also have experienced problems obtaining timely

payments of their child support from the CSEA. Based upon the foregoing, I am informed and

believe that there are members of the putative class on all islands of the State of Hawaii, as well

as members of the putative class that reside in different States in the mainland United States. I

am informed and believe based on the statements of the various members of the putative class




                                                   2
I




    that the failure to receive their child support payments in a timely and predictable manner has

    created a significant hardship for these persons. I am also informed and believe from speaking

    with these persons that complaints to the CSEA have done little or nothing to improve the

    timeliness of payments or to provide them with a means of predicting when payments would be

    made. I am informed and believe that the failure to receive payments on time has created

    hardships for children entitled to receive child support in the State of Hawaii, and I am informed

    and believe that the failure of the CSEA to deliver these payments within the time limits

    specified by the statute has created and fostered hard feelings between many of the persons who

    are either making payments or receiving payments in the system.

           I, CHRISTOPHER D. FERRARA, do declare under penalty of law that the foregoing is

    true and correct.

           DATED: Honolulu, Hawaii,          )wdc H \ $           wici




                                                 CHRISTOPHER D. FERlURA




                                                    3
                     IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

                                          STATE OF HAWAII

ANN C. KEMP, Individually And As Next                      ) CIVIL NO. 98-3815-08
Friend for LINDSAY AGNES KEMP, On                          ) (Class Action)
Behalf of Herself and Others Similarly                     >
Situated,                                                  ) NOTICE OF HEARING MOTION AND
                                                           ) CERTIFICATE OF SERVICE
                          Plaintiff,                       >
                                                           1
         vs.                                              >
                                                          1
STATE OF HAWAII CHILD SUPPORT                             )
ENFORCEMENT AGENCY; STATE dF                              )
HAWAII; JOHN AND JANE DOES l-10;                          )
DOE GOVERNMENTAL ENTITIES                                 >
l-10; DOE ENTITIES l-10,                                  >
                                                          >
                         Defendants.                      >
                                                          >
                                                          >

                               NOTICE OF HEARING MOTION


TO:            LAWRENCE K. LAU, ESQ.
               Deputy Attorney General
               465 South King Street, Suite B-2
               Honolulu, Hawaii 968 13

               Attorney for Defendant
               STATE OF HAWAII

               NOTICE IS HEREBY GIVEN that the foregoing motion shall come on for

hearing before the Honorable      cr’.:‘. q?:. :,1,‘..:< :,.TI,:. :   , Judge of the above entitled Court, in

his/her courtroom in Kaahumanu Hale, 777 Punchbowl Street, Fourth Floor, Honolulu, Hawaii,
at _ [I’, 00
   !           o’clock I!I_ .m. on , @@‘L da       1999, or as soon thereafter as counsel may

be heard.

               DATED: Honolulu, Hawaii,     ~*pcl-k- 1-T. ryq1




                                          Attorney for Plaintiff




                                               2
                          IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

                                            STATE OF HAWAII

    ANN C. KEMP, Individually And As Next            ) CIVIL NO. 98-3815-08
    Friend for LINDSAY AGNES KEMP, On                ) (Class Action)
    Behalf of Herself and Others Similarly           )
    Situated,                                        ) CERTIFICATE OF SERVICE
                                                     1
                              Plaintiff,             1
                                                    >
             vs.                                    >
                                                    1
    STATE OF HAWAII CHILD SUPPORT                   )
    ENFORCEMENT AGENCY; STATE dF                    )
    HAWAII; JOHN AND JANE DOES l-10;                )
    DOE GOVERNMENTAL ENTITIES                       >
    l-10; DOE ENTITIES l-10,                        >
                                                    >
                              Defendants.           >
                                                    1

!
                                      CERTIFICATE OF SERVICE

                   The undersigned hereby certifies that a true and correct copy of Plaintiffs Motion

    For Order Determining Class Issues was duly served on the parties identified below at their

    respective addresses by means of hand delivery on      ~\\&,R II>                 ) 1999.

                   HEIDI M. RIAN, ESQ
                   LAURENCE K. LAU, ESQ.
                   Department of the Attorney General
                   465 South King Street, Room 200
                   Honolulu, Hawaii

                   Attorneys for Defendants
                   STATE OF HAWAII and
                   CHILD SUPPORT ENFORCEMENT AGENCY

                                     _I
                   Dated: Honolulu, Hay;gfzN&,

								
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