AC v. AC. ( 2014 )

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Electronically Filed
Supreme Court
SCWC-12-0000808
28-NOV-2014
08:07 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
AC, Respondent/Plaintiff-Appellee,
vs.
AC, Petitioner/Defendant-Appellant,
and
CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI#I,
Respondent/Defendant.
SCWC-12-0000808
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000808; FC-P NO. 11-1-6307)
NOVEMBER 28, 2014
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ., AND
CIRCUIT JUDGE TRADER, IN PLACE OF ACOBA, J., RECUSED,
WITH POLLACK, J., CONCURRING SEPARATELY
OPINION OF THE COURT BY RECKTENWALD, C.J.
This case requires us to consider the circumstances
under which a family court can limit the time for trial on a
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petition to determine custody over minor children. Father and
Mother, who were never married, are the biological parents of two
minor children, Son and Daughter. Mother and Father eventually
separated, and Father sought custody of Son and Daughter. The
instant appeal arises out of Father’s Petition for Custody,
Visitation and Support Orders After Voluntary Establishment of
Paternity, which sought sole physical and legal custody of the
children, and sought to exclude Mother from visitation.
Prior to and during the pendency of the proceedings on
Father’s petition, Father and Mother filed several competing
petitions for orders of protection against each other. The
family court granted Father’s petition for an order of protection
against Mother. Thereafter, Father relocated with Son and
Daughter to Texas without obtaining prior authorization of the
family court.
The family court considered Mother’s and Father’s
competing custody petitions during a trial that lasted
approximately three hours on June 25, 2012. It appears from the
record that the family court had set a three-hour limit
beforehand. Although Father was able to present his evidence,
the family court cut short Mother’s evidence despite her motion
for additional time, and awarded sole legal and physical custody
to Father. A divided panel of the Intermediate Court of Appeals
(ICA) affirmed that decision.
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Mother asserts that the family court erred by strictly
enforcing a preset time limit that was too short given the
complexity of the case, and excluded critical testimony bearing
upon the best interests of Son and Daughter. We agree with
Mother. While trial courts are given considerable discretion in
managing their calendars, the family court’s strict enforcement
of the time limit here unduly curtailed Mother’s ability to
present evidence relevant to the proper determination of the
children’s best interests. Accordingly, we vacate the ICA
majority’s decision and remand to the family court for further
proceedings.
I. Background
The following factual background is taken from the
record on appeal.
Mother and Father apparently began dating in 2005 and
had two children together: Son, who was born in 2005, and
Daughter, who was born in 2008. Mother and Father separated in
2009, and Mother thereafter lived with Son, Daughter, and
Mother’s child from a previous relationship (“Older Son”).
Father subsequently married another woman and lived with his wife
and Stepdaughter in Texas. In the summer of 2011, Father, his
wife, and Stepdaughter relocated to Hawai#i.
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A. Family court proceedings
Upon relocating to Hawai#i, Father filed a petition for
an order of protection against Mother on behalf of himself, Son,
Daughter, and Stepdaughter. The family court issued a temporary
restraining order. Approximately one month later, Father filed a
Petition for Paternity or for Custody, Visitation and Support
Order After Voluntary Establishment of Paternity, which is the
subject of the instant appeal. Father’s custody petition sought
full physical and legal custody of Son and Daughter, and sought
to preclude visitation by Mother due to allegations of
“[r]eckless child endangerment and neglect and failure to provide
a safe and enriching environment for the children.”
Mother filed a competing custody petition, also seeking
full physical and legal custody of Son and Daughter. Mother also
filed a petition for an order of protection against Father on
behalf of herself, Son, Daughter, and Older Son. The family
court issued a temporary restraining order on behalf of Mother
and Older Son.
At the conclusion of a trial on Mother’s and Father’s
petitions for an order of protection, the family court denied
Mother’s petition on the grounds that Mother was not credible and
did not establish her need for an order of protection. The
family court granted Father an order of protection against
Mother, but removed Son and Daughter from the order. The family
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court found there was past domestic abuse and a threat of harm to
Father from Mother, but that there were no safety concerns for
Son and Daughter. Since Son and Daughter were already in the
custody of Father, no custody orders were entered at the time.
Thereafter, Mother filed a motion to modify visitation,
which sought to change the third party responsible for
supervising her visitation with Son and Daughter. Mother
complained that her visits were supervised by the pastor of
Father’s church and held at the pastor’s apartment, where the
children “were required to do church related activities for the
first hour” of the two-hour visit. Mother also declared that she
was prohibited from giving the children food or taking pictures
with them. During a subsequent visit, the pastor presented
Mother with a document entitled “Visitation Rules” that purported
to set forth rules imposed by the family court judge, including
that Mother had to speak English at all times, that conversations
between Mother and the children must be audible to supervising
personnel, and that Mother’s two-hour visits were to include one
hour of “class work” for the children.
According to Mother, two days after the visit involving
the “Visitation Rules,” police officers arrested her after Father
notified them she had violated the family court’s temporary
restraining order. The day after Mother was released from
custody, she had another visit with Son and Daughter, during
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which police officers again arrived, this time informing Mother
that Father had reported her for violating the temporary
restraining order and had provided the time and place of her
visit with the children.
On the same day Mother’s motion to modify visitation
was filed, the family court held a return hearing regarding the
State Custody Investigation Unit’s (CIU) report on the custody of
the children. Father was not present at the hearing, and his
counsel informed the court that he had relocated with Son and
Daughter to Texas. Father did not have the court’s permission to
remove Son and Daughter from Hawai#i, and the family court’s
minutes reflect that removal of the children was in violation of
the court’s order.1 Father was ordered to return the children to
Hawai#i within 30 days unless an order allowing relocation
pending trial was granted before then.
The family court scheduled Mother’s and Father’s
custody petitions for a “half-day trial.” The record does not
reflect the basis for this limitation, or whether either party
voiced any concern about it.
The CIU report noted Mother’s and Father’s “concerns”
regarding the other’s parenting. For example, Father was
1
The family court minutes state that, “Court noted Mother has not
filed a motion for sanctions against Father for removing the children from the
state of HI but the Court does find Father did violate the Court’s order by
doing so.” The family court’s order prohibiting the removal of the children
from Hawai#i is not included in the record on appeal.
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concerned that Mother did not emphasize education, was physically
and emotionally abusive (particularly when “menstruating or
pregnant”), abused drugs and alcohol, lied, was unstable, and
exposed the children to a “sexual lifestyle.” Father also
expressed concern that Older Son was a danger to Son and
Daughter, but the CIU noted that a case involving allegations of
sexual assault by Older Son against Son and Daughter had been
closed by HPD and that the prosecutor’s office had declined to
accept the case. Father reported four incidents of domestic
violence by Mother against Father.
Mother expressed her concern that Father had extreme
anger issues, was abusive, did not provide a good example to the
children, did not provide the children with educational
activities despite his claim that he homeschooled them, had
unstable relationships with women, and was never the children’s
primary caretaker. Mother reported over 50 incidents of domestic
violence by Father against Mother. Mother also alleged that
Father was abusive to Older Son.
The CIU report indicated that interviews with the
children could not be conducted because Father and the children
had relocated to Texas. According to the report, the CIU also
could not conduct a home visit with Father due to his relocation.
Additionally, no home visit with Mother could be conducted
because she had relocated to Washington, and later to Sweden.
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Nevertheless, the CIU report recommended that Father have sole
legal and physical custody of the children, and be permitted to
relocate with the children to Texas, with Mother allowed
unsupervised visitation.
Father subsequently filed a motion to allow the
children to remain in Texas, which the family court granted.
Father was awarded temporary sole legal and physical custody
pending trial, with Mother allowed telephone and internet visits.
The CIU was ordered to interview the children and to prepare a
supplementary report prior to trial. The children were never
interviewed.
Prior to trial, Mother submitted a witness list that
included nine lay witnesses and two expert witnesses. Father
submitted a witness list that included three lay witnesses.
The family court held a bench trial on the competing
custody petitions. At the start of trial, the court did not
address the length of trial or state on the record the amount of
time available for trial. The court stated that it was most
interested in testimony regarding the respective abilities of
Mother and Father to care for Son and Daughter, so that it could
determine “whether or not you’re the right choice as a dad or
you’re the right choice as a mom to have the custody.”
Father testified that he lived with his mother, wife of
three years, Stepdaughter, and Son and Daughter in Texas, where
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he cared for Son and Daughter during the day and worked at night
providing security and other services at a restaurant. Father
stated that he could financially provide for the children in
Texas because of his “massive support system in Texas.”
Father testified that Son and Daughter told him they
had been sexually abused while in Mother’s custody, and that the
children are currently receiving psychological counseling for the
alleged abuse. Father stated his fear that Son and Daughter
would be exposed to “things of a sexual nature” if Mother were to
have unsupervised visitation with Son and Daughter. According to
Father, Mother came to the United States as a “mail order bride”
from Russia, and had worked as a stripper, escort, and masseuse.
Father asked that Mother only be allowed supervised visitation of
children if he was awarded custody because he was very concerned
that Mother would take the children to Estonia or Sweden.
Father called no additional witnesses. The court noted
that by this point Father had used 50 minutes of the time
allocated, and Mother had used 25 minutes in cross-examining
Father, which was the court’s first indication on the record
regarding how much time was available for the proceedings.
Mother’s first witness was a male friend who had known
Mother for fourteen years and considered her a very good parent.
He testified that he visited Mother in Hawai#i several times and
that it appeared the children were properly fed, clothed, and
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washed. He recounted several times when Mother stayed with him
after complaining of abuse by Father. On one occasion, he
noticed bruises on her arms that he attributed to Father’s
physical abuse of her.
The court custody investigator who prepared the CIU
report testified next. The investigator recalled Mother’s
allegations that Father abused her, including incidents in which
Father almost killed her by strangulation or suffocation, but the
investigator was not sure whether she believed Mother. The
investigator also recalled Mother’s 15-year-old Older Son telling
her that Father physically abused Mother three times per week.
The abuse purportedly involved Father slapping, punching, and
throwing things at Mother. Older Son told the investigator that
he saw Mother with bruises and black eyes, and that Father had
once chased him with a handgun. Next, the investigator related
her interview with Older Son’s father, who allegedly had observed
Mother with black eyes and bruises.
The investigator also testified about her interview
with Father’s former wife, who told the investigator that Father
had shoved, hit, and kicked her, and had pointed a gun at her
during their relationship. Father’s former wife also told the
investigator that, after their relationship had ended, Father
falsely accused her of physically abusing their children.
Father’s former wife feared Father would retaliate against her
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for telling the investigator about these issues. The
investigator also acknowledged that she had not personally
visited Father’s home in Texas to investigate or verify the
children’s living conditions there.
Before Mother’s counsel called her next witness, the
court warned him that time for witness testimony would be
limited, stating: “We’re going to finish this case at 4:30
today, so, Counsel, use your time wisely. Because if we don’t
get to an opportunity to hear from your client, that will be
based upon your choice.”
The next witness, a former neighbor of Mother’s,
testified that her children often played with Mother’s children,
and that the children appeared to be well cared for. The
neighbor opined that Mother was a very good mother, and that she
observed no behavioral or emotional problems with Son or
Daughter. At the conclusion of the neighbor’s testimony, the
court again warned of time constraints, and the following
exchange occurred:
THE COURT: Okay. By my count you guys are
about equal on time. So, um, who’s your next witness?
[MOTHER’S COUNSEL]: Okay. Next would be
[another friend of Mother’s].
THE COURT: Because we will end and make a
decision by 4:30, so you have 32 minutes. That
includes cross-examination.
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Another friend of Mother’s testified that he had known
Mother for approximately nine years, and that he had also
observed bruises on Mother’s body.
Mother then testified on direct examination that she
wanted sole physical and legal custody of Son and Daughter and
had provided for the children in the best way she could. Mother
feared she would have no relationship with Son and Daughter if
Father gained sole custody of them. Mother testified that she
had lived with Father in Texas but left with the children for
Hawai#i in 2009 because he was physically and emotionally
abusive. As Mother explained the children’s schooling in
Hawai#i, their daily routines, and weekend activities, the court
interrupted and the following exchange between the court and
Mother’s counsel occurred:
THE COURT: Counsel, you have two minutes left.
[MOTHER’S COUNSEL]: Your Honor, I’m going to
move for an extension of time. Um, the reason is -- -
THE COURT: Throughout -- okay. Tell me why
because I know that each and every step of this trial
I told you it was going to be equal amount of time.
We started at 4:04, and breaking down the remainder of
time into 4:30, which the court said we would be done
[sic], that split equally.
Now if he finishes his cross-examination early,
then you have the balance of that time. But each and
every of the other witnesses I said we’re running on a
time crunch. Um, you know, I gave you that
opportunity. You still decided to call the other
witnesses. So --
[MOTHER’S COUNSEL]: I understand.
THE COURT: -- we’re gonna --
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[MOTHER’S COUNSEL]: I understand, Your Honor.
But each witness was important, and that witness had
something to say about domestic violence.
THE COURT: I understand. But you still -- we
still have the time constraints that we do have. You
knew about them. So, as counsel, you were permitted
to use time as you felt, uh, you needed to use them
best. So I allowed you to do that. So continue. Use
the rest of your time wisely.
[MOTHER’S COUNSEL]: Um, so what is -- is the
motion -- you’re not ruling at this time?
THE COURT: Well, I cannot go beyond 4:30.
(Emphasis added).
Mother testified that she did not intend to flee the
country with her children. As Mother was testifying about how
infrequently she had been able to speak to the children, the
court again interrupted and ordered Mother’s counsel to stop
direct examination:
THE COURT: Okay, Counsel, you’re over your time.
You have one more question.
[MOTHER’S COUNSEL]: Um, is it sufficient being
able to see your kids only on phone and on Skype? Is
that enough for you?
THE WITNESS: Of course not.
[MOTHER’S COUNSEL]: Thank you.
THE COURT: That was your last question.
THE WITNESS: (Inaudible) never was part --
THE COURT: Okay. Hold on, ma’am.
Now -- I mean we went -- you had to 4:17 and
were given three minutes to 4:20.
Counsel, cross-examination.
As Father’s counsel was cross-examining Mother, the
court interjected and told the parties that the testimony was
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over:
THE COURT: One last question.
[FATHER’S COUNSEL]: Thank you.
Um, [Mother], you’ve heard your ex tell this
court all of the things he’s done in Texas, all of the
improvements the children have made, their living
situation, the support network, the socialization
network, the activities network. Please tell this
judge what you heard that would require him to remove
the children from [Father] and give them to you.
THE WITNESS: The difference is that (inaudible)
the paper and which is I --
[FATHER’S COUNSEL]: I’m asking --
THE COURT: Okay. That’s it.
[FATHER’S COUNSEL]: -- what’s happened in Texas
--
THE COURT: Wait. Hold on. Testimony is over.
[FATHER’S COUNSEL]: Thank you, Judge.
THE COURT: It’s 4:30. Please have a seat,
ma’am.
[MOTHER’S COUNSEL]: Your Honor --
THE COURT: Yes.
[MOTHER’S COUNSEL]: -- again I would renew my
motion for an extension of time. Three hours is not
enough for this trial. This trial involves complex
issues.
THE COURT: Why -- why didn’t -- why wasn’t that
motion done prior to trial today? We brought somebody
back from Texas. I’ve ordered the two children back
here. This isn’t like we have local people here where
we can continue it, you know, in a week or two. It
would be at his expense.
[FATHER’S COUNSEL]: Your Honor, it was enough
for us.
THE COURT: So we -- I mean this is something
that if we were going to go and expand this for more
than the time allotted today, that’s why I kept on
trying to tell you get -- you know, to the -- I wanted
to hear about the two parents. I wanted to hear from
dad. I wanted to hear from mom. I wanted to hear
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from the custody evaluator. Unfortunately the other
three witnesses took up time that otherwise could have
been allocated to mom.
But if there was some other situation, I may be
inclined. But we have dad flying back here from
Texas. I ordered the two children. They flew back
from Texas. To have them come back another time
because the allocation of time wasn’t properly used
would be unfair to especially the children. So with
that -- that being said, um, the request for an
extension of trial time is -- is denied.
During Mother’s closing argument, Mother revisited the
issue of Father’s alleged domestic violence, and the following
exchange occurred:
[MOTHER’S COUNSEL]: Further there is evidence
in this case that father is abusive, that father was
abusive to [Mother], to [Older Son], and he exposed
the children to his anger and violence.
This is a concern that needs to be taken
seriously. Mother is --
THE COURT: How was -- how was that proven?
[MOTHER’S COUNSEL]: That was proven through the
testimony of witnesses and through the interview.
THE COURT: What witnesses? ‘Cause I don’t have
-- my notes don’t indicate any witness said that they
either got a statement from father or actually saw him
physically abuse mother.
[MOTHER’S COUNSEL]: We had several witnesses
who stated that they observed mother with bruises.
THE COURT: But they never said how she got
them.
[MOTHER’S COUNSEL]: They were immediately after
separating from father. The circumstantial evidence
shows that those injuries were from father. She left
father in an emotional state and then they saw her
with the bruises right afterward.
[Older Son] is the best witness as to the abuse.
He was there and his report is in the investigations
reported.
THE COURT: Where is [Older Son] today to
testify? He’s old enough to testify.
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[MOTHER’S COUNSEL]: [Older Son] is in Sweden.
And that was not done.
Mother moved for a guardian ad litem to be appointed
for the children, and there was further discussion about Father’s
alleged abuse and the amount of time allowed for trial:
[MOTHER’S COUNSEL]: Now if the court is not
inclined to award custody to mother, I would suggest
due to the complexity of this case that a GAL be
appointed for these children. When the children are
returned to Hawai#i, a GAL can meet with them.
They can sort through the issues. Because
really we haven’t heard from the kids. We haven’t.
Through this whole case we haven’t heard from the
kids. We haven’t through this whole case we haven’t
heard from the kids. And that’s an important issue.
Mother’s willing to pay for half. Father makes
three thousand dollars per month. If he could pay for
half of this, I think it would be the best solution
for determining the final outcome in this case.
THE COURT: Okay. And, Counsel, then with
respect to that issue, father filed his petition
August 10, 2011. Mother filed her petition August 26,
2011. We’re close to the end of June 2011 [sic],
about ten months later. Why hasn’t the request for a
GAL with respect to the children ever been made for
the last ten months?
[MOTHER’S COUNSEL]: Due to the circumstances of
this case, we did not know that father was going to
take the children to Texas.
THE COURT: Okay. You guys knew as soon as
December 2011. In fact it’s almost June 25th. It’s
six months to the day you’ve known that father had
children in Texas. We came here for a motion I
believe in March. Uh, mom’s motion was denied.
Father’s motion for temporary relocation pending trial
was granted given the kids[’] current therapy
treatment.
But at that time there was no request for an
extension of the trial date or to move it. There was
no request to expand the amount of time to see if we
could get multiple dates to have a trial. There was
no request for a guardian ad litem to be appointed for
the kids. All of those things I could have addressed
and would have addressed had all of these issues been
brought up instead of the day of trial. So --
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[MOTHER’S COUNSEL]: But it is not too late, you
know.
THE COURT: The trial is over.
[MOTHER’S COUNSEL]: But the request is being
made now as part of my closing that a GAL be
appointed.
THE COURT: An oral -- an oral motion without a
written motion is being made now?
[MOTHER’S COUNSEL]: That is correct. And it’s
based on the circumstances of what happened in this
case. The request before --
THE COURT: What circumstances are you basing
that on now that you didn’t know three or six months
ago?
[MOTHER’S COUNSEL]: Since the May 21st, two
thousand -- well, since the report came back that this
custody investigation would not be conducted, an
interview on the phone. So the report May 21, 2012.
THE COURT: Okay. So that’s more than a month
from now. Why didn’t you put in a request for an ex-
parte motion to shorten time? That’s more than four
weeks. And then that way I wouldn’t have had [Father]
and the kids flown back here if we were going to push
this trial off so that we can get all of this done.
But I specifically ordered him at his own expense to
fly the kids back.
The court awarded Father sole physical and legal
custody of Son and Daughter, explaining that this is “a very
complex case on which I have to make a decision based upon the
best interests of the children. And right now the only evidence
that I have before me is I have -- although we have allegations,
we have no convictions for any domestic abuse against father.”
In the family court’s November 30, 2012 Findings of
Fact and Conclusions of Law, the family court found that Father
and the court custody investigator were credible witnesses, but
Mother was not. The family court further found that it was in
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Son’s and Daughter’s best interests to award to Father their sole
physical and legal custody, with Mother having reasonable
visitation. The family court also determined that Mother’s oral
motions during closing argument to extend the trial and to
appoint a guardian ad litem were untimely and were therefore
denied. The family court’s decision was set forth in an
August 23, 2012 Order Re: Custody, Visitation, and Support Orders
After Voluntary Establishment of Paternity, awarding sole legal
and physical custody of Son and Daughter to Father.
C. ICA appeal
In her opening brief, Mother argued the family court
erred in restricting the trial time of each party. Citing Doe v.
Doe, 98 Hawai#i 144, 155, 156, 44 P.3d 1085, 1096, 1097 (2002),
in which this court cautioned “that adherence to a time schedule
must be tempered by the circumstances of the proceeding as it
unfolds, since circumstances cannot always be accurately
predicted ahead of time,” Mother argued that “she could have
described [Father’s] ‘extreme anger issues’ and how he was
‘excessively abusive to her, her older son and [Son],” if
permitted to complete her testimony. Mother maintained that she
had intended to call the Honolulu Police Department detective who
investigated Father’s sexual abuse allegations against Mother’s
Older Son to testify regarding the lack of evidence to support
Father’s allegations.
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Father filed, through counsel, a notice that he opposed
all relief sought by Mother but would not be submitting an
Answering Brief.
In a Summary Disposition Order, a majority of the ICA
affirmed the family court’s August 23, 2012 Order. Specifically,
the ICA held that the family court did not err in limiting the
time at trial and denying Mother’s oral motion to extend trial.
According to the ICA, Doe was distinguishable from the instant
case on the following grounds:
In the case before us, Father testified but did
not present any other witnesses, whereas in Doe v.
Doe, the majority of the time was used in direct and
cross-examination of the father’s witnesses.
Also, in this case, when the family court warned
Mother’s counsel that time was running out, counsel
did not question Mother regarding any alleged
violence, but instead, asked about Son and Daughter’s
passports, whether Mother intended to remain in the
country, and other questions unrelated to the issue of
family violence.
The ICA then noted that Mother made no offer of proof
and gave no specifics as to the type of testimony expected of
Mother or remaining witnesses other than that they “had something
to say about domestic violence.” The majority contrasted this
with the situation in Doe, where the mother asserted that
remaining witnesses had direct personal knowledge of the father’s
abusive personality and submitted affidavits describing personal
accounts of witnessing assaultive behavior. Finally, the ICA
concluded that Mother’s case was not harmed by her inability to
call the detective to testify about the lack of evidence
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supporting Father’s allegations that Older Son sexually abused
Son and Daughter, as this testimony would be duplicative of
information already in the custody investigation report.
In a dissenting opinion, Chief Judge Nakamura concluded
that the question of custody was too important and the proper
determination of the children’s best interests too complex for
the family court to inflexibly limit the time for trial. Noting
that Father and Mother presented diametrically opposing claims
and evidence regarding each other’s fitness as a parent, Chief
Judge Nakamura pointed out that the family court could only
determine the best interests of Son and Daughter by resolving
those conflicting claims and evidence, which turned on the family
court’s assessment of whether Father or Mother was more credible.
Chief Judge Nakamura concluded that the family court could not
properly determine the best interests of the children while
cutting short Mother’s case and precluding her from introducing
additional evidence on her and Father’s fitness as parents, and
their history of family violence.
II. Standard of Review
A trial court has discretion to set reasonable time
limits for trial. Doe v. Doe, 98 Hawai#i 144, 155, 44 P.3d 1085,
1096 (2002); Hawai#i Rules of Evidence (HRE) Rule 611 (1993).
Accordingly, limitations on the time set for trial are reviewed
for abuse of discretion. A court abuses its discretion if it
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“clearly exceed[s] the bounds of reason or disregard[s] rules or
principles of law or practice to the substantial detriment of a
party litigant.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74
Hawai#i 85, 114, 839 P.2d 10, 26 (1992).
III. Discussion
Mother argues that the family court erred in limiting
the time for testimony and thereby excluding testimony bearing on
the best interests of Son and Daughter. Mother acknowledges that
the family court had authority and discretion to set a reasonable
time limit for trial, but argues that such authority must be
tempered with due regard for the rights of litigants and the best
interests of children. For the reasons set forth below, we
conclude the family court abused its discretion in limiting the
time for trial to three hours.
Our decision in Doe v. Doe is highly instructive. In
Doe, the family court set a half-day evidentiary hearing on a
mother’s and father’s competing custody motions. 98 Hawai#i at
146, 44 P.3d at 1087. Proceeding first, the father and all of
his witnesses were able to testify. Id. at 147, 44 P.3d at 1088.
Though the mother was able to testify regarding alleged abusive
behavior by the father, when she tried to call her next witness,
the family court interrupted her and stated, “I think your time
is up,” then concluded the proceedings. Id. Mother did not
object. Id. at 147, 154, 44 P.3d at 1088, 1095. The family
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court later granted the father’s custody motion while denying the
mother’s motion, thereby confirming sole legal and physical
custody of the child to the father, with visitation rights to the
mother. Id. at 148, 44 P.3d at 1089. The mother thereafter
filed a motion for new trial, reconsideration, and/or relief from
judgment, seeking an opportunity to present her witnesses’
testimonies to the court, which the family court denied. Id.
On appeal, this court acknowledged that “the court had
the authority to set a reasonable time limit for trials and
hearings.” Id. at 154, 44 P.3d at 1096. However, this court
also noted that the family court’s denial of the motion for new
trial “resulted in the exclusion of testimony of witnesses
bearing upon the issue of family violence and, inferentially, the
best interest of [the c]hild.” Id. More specifically, this
court noted that the mother had submitted affidavits indicating
that her witnesses would have testified about the father’s
alleged abuse of the mother and its effect on the child. Id. at
156, 44 P.3d at 1097. Concluding that “[e]vidence supporting
such allegations was pertinent to whether Father should have sole
legal and physical custody of [the c]hild[,]” this court vacated
in part the family court’s ruling, and remanded for further
proceedings on the mother’s alternative custody motion. Id. at
158, 44 P.3d at 1099. Notably, this court cautioned the family
court that “adherence to a time schedule must be tempered by the
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circumstances of the proceeding as it unfolds, since such
circumstances cannot always be accurately predicted ahead of
time.” Id. at 156, 44 P.3d at 1097.
Here, as in Doe, the half-day limitation on the time
for trial was set well in advance. The excluded testimony
related to alleged abuse and had a direct bearing on the best
interest of the child. See id. at 154-55, 44 P.3d at 1096-97.
Nevertheless, the ICA concluded that Doe is “unlike the instant
case” for four reasons: (1) in Doe, the majority of trial time
was used in direct and cross-examination of the father’s
witnesses, whereas here, Father did not present any other
witnesses; (2) here, Mother’s counsel was advised that time was
running out, but did not question Mother regarding any alleged
violence; (3) Mother bore the burden to overcome the rebuttable
presumption that Son and Daughter should not be placed in her
custody; and (4) Mother’s counsel provided no offer of proof
regarding the further testimony that would be provided by Mother
or her remaining witnesses.
None of these factual distinctions override the
critical similarity between Doe and the instant case: that “the
family court’s ruling resulted in the exclusion of testimony of
witnesses bearing upon the issue of family violence and,
inferentially, the best interests of [the children].” Doe, 98
Hawai#i at 154, 44 P.3d at 1096. As this court has long held, in
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child custody cases, “a guiding principle for family courts in
awarding custody under Hawai#i law is the best interest of the
child.” HRS § 571-46 (Supp. 2011); Doe, 98 Hawai#i at 155, 44 P.
3d at 1096. “Thus, in custody proceedings, ‘the paramount
consideration . . . is the best interests of the child.’” Doe,
98 Hawai#i at 156, 44 P.3d at 1097 (emphasis added) (quoting In
re Doe, 52 Haw. 448, 453, 478 P.2d 844, 847 (1970)); see also
Fujikane v. Fujikane, 61 Haw. 352, 354, 604 P.2d 43, 45 (1979)
(“The critical question to be resolved in any custody proceeding
is what action will be in the best interests of the child.”
(citation omitted)); Yee v. Yee, 48 Haw. 439, 441, 404 P.2d 370,
372 (1965) (“In any custody proceeding, the welfare of the minor
children is of paramount consideration.” (citation omitted));
Dacoscos v. Dacoscos, 38 Hawai#i 265 (Haw. Terr. 1948) (stating
that, in custody cases, the “general rule [is] that the welfare
of the child has paramount consideration”). Here, as in Doe, the
main issue is whether the excluded testimony was pertinent to the
bests interests of the children.
The similarity between the instant case and Doe with
respect to this critical issue supersedes differences between the
two cases regarding other important issues, such as whether one
party called more witnesses than the other or had more time to
present its case. Moreover, Mother’s decision to question
witnesses about matters other than Father’s alleged domestic
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violence does not render Doe inapplicable to the instant case.
As discussed infra, Mother was able to elicit testimony that
addressed the best interests of the child. The ICA also sought
to distinguish this case from Doe on the basis that Mother,
unlike the mother in Doe, had to overcome the rebuttable
presumption that the children should not be placed in her
custody. This distinction also does not render Doe inapplicable.
Doe’s holding does not depend on the existence or allocation of a
rebuttable presumption against custody, nor do we find any
principled reason to so hold. Finally, the ICA sought to
distinguish this case from Doe by pointing out that the mother in
Doe asserted that her remaining witnesses had direct personal
knowledge of the father’s abusive behavior, while no specific
offer of proof had been made regarding remaining witnesses in the
instant case. But here, Mother herself was one of the remaining
witnesses. She would have had personal knowledge of the domestic
violence allegedly committed against her by Father, and had said
so in statements included in the CIU report and briefly on the
witness stand before the court prematurely stopped her
testimony.2 No offer of proof was thus necessary in the instant
2
Additionally, to the extent the ICA suggested that further
testimony on domestic violence would be duplicative of the CIU report, it
should be noted that the family court’s assessment of the domestic violence
issue depended on the credibility of Mother and Father, which would be
difficult to determine absent Mother’s testimony on this issue. Also, as the
family court acknowledged in court, no direct evidence of family violence by
(continued...)
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case to indicate to the family court that Mother had personal
knowledge of Father’s alleged assaultive behavior. In short, Doe
is applicable here despite the factual distinctions noted by the
ICA.
Similar to this court in Doe, other state courts have
held that judges must be cautious in imposing time limits in
family law cases involving the custody of children:
The public and private interests in cases involving
the custody and care of children are enormous. There
are few other matters which exceed the interests of a
spouse pursuing a claim for custody or primary care
of a child. Furthermore, the public has an abiding
interest in the future of its children, and the
State, by implication, is a quasi-party to each
dissolution action. . . .
. . . Justice cannot always be achieved within the
orderly environment of an assembly line. The
importance of evidence is often not understood until
all the evidence is heard. Thus, judges must not
sacrifice their primary goal of justice by rigidly
adhering to time limits in the name of efficiency.
In re Marriage of Ihle, 577 N.W.2d 64, 67-68 (Iowa App.
1998)(citations omitted); see also In re Marriage of Finer, 893
P.2d 1381 (Colo. App. 1995) (holding that litigants are entitled
to have sufficient time to make an orderly presentation of their
case, regardless of overcrowded dockets and a trial court’s
obligation to move matters before it as rapidly as possible).
Federal courts have similarly held that time limits on
witness testimony must be informed and justified, and
2
(...continued)
Father was introduced by testimony from other witnesses, and Mother presumably
could have provided such testimony.
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sufficiently flexible to ensure a fair trial. The Court of
Appeals for the Ninth Circuit has noted that, “Although district
courts have discretion to impose rules to expedite completion of
trials, we caution that they must not adhere so rigidly to time
limits as to sacrifice justice in the name of efficiency.” Gen.
Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1509 (9th
Cir. 1995). The Court of Appeals for the Third Circuit has held
that “a district court should impose time limits only when
necessary, after making an informed analysis based on a review of
the parties’ proposed witness lists and proffered testimony, as
well as their estimates of trial time.” Duquesne Light Co. v.
Westinghouse Elec. Corp., 66 F.3d 604, 610 (3d Cir. 1995).
Here, the family court’s rigid time limits do not
appear to reflect an informed analysis of the time necessary to
afford each party a full and fair opportunity to present their
case. The family court decided on February 13, 2012 that time
for trial would be half a day, starting at 1:30 p.m. Thus, the
court limited the time for trial more than four months before
Mother and Father submitted their respective witness lists on
June 15 and June 18, 2012. The record reflects that the family
court set the time limit after a conference with the parties’
counsel regarding the return of the CIU report, but contains no
clear indication that the court made an informed decision on
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trial time after consulting with the parties, or that the parties
agreed to the time limit.
In addition, pursuant to Doe, the family court was
required to consider the “circumstances of the proceeding as it
unfold[ed],” id. at 156, 44 P.3d at 1097, in determining whether
Mother had sufficient time to present her case. Instead, the
family court adhered to the time schedule imposed long before
trial began or the number of expected witnesses was established,
and did so even after it became apparent that Mother would be
unable to fully present her case. While Mother did not object to
the three-hour time limit prior to trial, or move for more time
prior to the court’s warnings that her limited time was running
out, neither did the mother in Doe. See 98 Hawai#i at 147, 44
P.3d at 1089. Furthermore, the family court here should have
reasonably foreseen that three hours might not be enough time to
conclude a trial that the court readily conceded was “a very
complex case on which I have to make a decision based upon the
best interests of the children.” Doe states that “if counsel
believe that relevant evidence must be heard after the time set
for the hearing has expired, they must move for an extension of
time.” Doe, at 154, 44 P.3d at 1095. In the instant case,
Mother orally moved for an extension of time but the court denied
the motion.
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Indeed, the family court’s reasons for prematurely
ending the testimony were not justified under the circumstances
of this case. First, the family court explained its decision to
halt testimony and deny Mother’s motion to extend time by saying
that Mother had been warned of time constraints and chose to call
other witnesses. However, to the extent the family court made
this determination based on its belief that Mother wasted time on
unnecessary witnesses, we disagree. Each witness provided
relevant testimony on two critical issues: (1) Mother’s ability
to care for Son and Daughter, and (2) Father’s alleged physical
abuse of Mother. Indeed, the family court had noted that it
wanted to hear testimony on how Mother cared for Son and
Daughter.
The testimony on Mother’s ability to provide
appropriate care and Father’s alleged history of domestic
violence and false allegations bears directly on the paramount
consideration in the custody proceedings, i.e., the best
interests of Son and Daughter. For example, pursuant to HRS
§ 571-46(a)(9), the protective order awarded to Father against
Mother on December 9, 2011, after a finding that there was past
domestic abuse and a threat of harm to Father from Mother created
“a rebuttable presumption that it is detrimental to the child and
not in the best interest of the child to be placed in sole
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custody, joint legal custody, or joint physical custody with
[Mother].” Moreover, Father testified that he sought treatment
for Son and Daughter after they told him that Older Son and one
or more of Older Son’s friends had physically and sexually abused
them, and that Father referred the matter to the police for
investigation. Father had also alleged that Mother physically
abused Father, and had obtained a protective order against
Mother.
Given the presumption created by HRS § 571-46(a)(9),
that custody should not go to Mother, Mother had to demonstrate
she posed no threat to Son and Daughter, and that placing them in
her care and custody would not be detrimental to their best
interests. In this regard, Mother’s questioning of the court
custody investigator was necessary because it elicited testimony
to discredit Father’s allegations of abuse. As the investigator
testified, Father’s former wife related that Father had similarly
accused her of abuse after their relationship ended.
Mother’s witnesses also provided corroboration of her
own allegations that Father had physically abused her, which
likewise bore directly on the issue of the children’s best
interests. After all, Father’s protective order did not negate
the domestic violence allegations by Mother and Older Son against
Father, or the reasonable inferences that could be drawn from the
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testimony of Mother’s witnesses who described her bruises
following disputes with Father. Further, Mother’s questioning of
the court custody investigator elicited testimony on how Father
had physically abused his former wife, who was afraid that Father
would retaliate against her for her participation in the instant
case.
Additionally, Mother used her trial time to establish
that the CIU report was flawed, and its recommendations suspect,
because the investigator had not observed Father’s interactions
with Son and Daughter or verified their living conditions in
Texas before recommending that Father have sole physical and
legal custody of Son and Daughter. As the investigator admitted,
a home visit is one of the most important steps in a custody
investigation, but one was never done here. The investigator
also acknowledged that she had not interviewed the children and
thus had “no idea how the children are doing in Texas[.]” In
short, Mother’s witnesses offered relevant testimony on issues
essential for the trial court to consider before making its
custody determination.
Second, the family court justified its decision to not
schedule further proceedings out of concern that requiring
Father, Son, and Daughter to return to Hawai#i from Texas would
pose a hardship to them. Nevertheless, that hardship must be
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balanced with Mother’s right to have a fair and reasonable
opportunity to present her case, especially when the custody and
future of two of her children were at stake. After Mother moved
for an extension of time and briefly explained why previous
witnesses had been necessary, the court responded, “Well, I
cannot go beyond 4:30.” Mother later renewed the motion to
extend time, stating that “[t]hree hours is not enough for this
trial. This trial involves complex issues.” The court stated
that Mother had chosen to call witnesses who took up time that
could have been allocated to Mother, and that Father and the
children had come from Texas for the trial. The court denied the
motion for more time and stated that, “To have them come back
another time because the allocation of time wasn’t properly used
would be unfair to especially the children.” The family court
further indicated that “if there was some other situation, I may
be inclined [to grant an extension of time],” but that it was not
willing to do so in the instant case because the court had
ordered Father, Son, and Daughter to fly to Hawai#i from Texas
for the proceedings. There is no indication that the family
court considered any other options, such as requiring Mother to
pay a portion of Father’s travel expenses, rather than rigidly
enforcing its time limit, despite its clear recognition that this
case was complex. Nor is there any indication on the record that
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Father objected to the prospect of returning for additional
proceedings.
Important constitutional interests provide additional
reason for providing parents a full and fair opportunity to
present their case in custody decisions. Indeed, a parent’s
right to the “care, custody and control” of his or her child is a
fundamental liberty interest protected by the United States
Constitution. Troxel v. Granville, 530 U.S. 57, 65 (2000)
(“[T]he interest of parents in the care, custody, and control of
their children is perhaps the oldest of the fundamental liberty
interests recognized by this Court.”). This court has also
recognized that independent of the United States Constitution
“parents have a substantive liberty interest in the care,
custody, and control of their children protected by the due
process clause of article 1, section 5 of the Hawai#i
Constitution.[3] Parental rights guaranteed under the Hawai#i
Constitution would mean little if parents were deprived of the
custody of their children without a fair hearing.”4 In re Doe,
3
Article 1, section 5 of the Hawai#i Constitution provides that
“[n]o person shall be deprived of life, liberty or property without due
process of law, nor be denied the equal protection of the laws, nor be denied
the enjoyment of the person’s civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or ancestry.”
4
The Concurring Opinion proposes a bright-line rule under which any
time limits in child custody cases involving allegations of domestic violence
would be unconstitutional. Concurring Opinion (Concur. Op. at 40-42]
(continued...)
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99 Hawai#i 522, 533, 57 P.3d 447, 458 (2002).
Given the important constitutional interests and the
factual circumstances of this case, the court’s enforcement of
its time limit was not reasonable. As Mother notes in her
application, additional time for testimony would have allowed her
to describe Father’s “extreme anger issues” and abuse of her and
Older Son, including more than 50 alleged incidents of domestic
violence, some of which included choking, suffocation, punching,
4
(...continued)
Respectfully, it does not appear that any other court has adopted, or even
considered, the bright-line rule proposed by the Concurring Opinion. In fact,
an overwhelming number of jurisdictions have recognized that trial courts have
the discretion to set reasonable time limits in child custody cases, but that
discretion must be balanced against a party’s due process rights to a fair and
reasonable opportunity to be heard. See, e.g., In re Marriage of Ihle, 577
N.W.2d at 67 (holding that it is within the discretion of the trial court to
apply limits to the length of trial, provided the decision comports with due
process considerations); In re ARF, 307 P.3d 852 (Wyo. 2013) (trial court’s
decision to limit paternity action, in which father sought child custody and
support, to a one-day trial in which parties would be afforded 160 minutes to
present their case did not violate father’s due process right to a meaningful
hearing); Goodwin v. Goodwin, 618 So. 2d 579 (La. Ct. App. 1993) (“The due
process clauses of the Louisiana Constitution and the Fourteenth Amendment to
the United States Constitution guarantee[] litigants a right to a fair
hearing. However, ‘due process’ does not mean litigants are entitled to an
unlimited amount of the court’s time.”); Young v. Pitts, 335 S.W.3d 47, 60
(Mo. Ct. App. 2011) (in case involving allegations of sexual abuse, court held
that “time limitations placed on presentation of evidence are matters within
the motion court’s discretion and will only be reversed for an abuse of that
discretion”); Moore v. Moore, 757 So. 2d 1043, 1046 (Miss. Ct. App. 2000) (in
case involving allegations of domestic violence, court held father’s due
process rights were not violated by trial court’s time limitations); Wolgin v.
Wolgin, 719 S.E.2d 196, 199 (N.C. Ct. App. 2011); Varnum v. Varnum, 586 A.2d
1107, 1115 (Vt. 1990)(in case involving allegations of domestic violence,
court held father’s due process rights were not violated by trial court’s time
limitations); cf. Hicks v. Commonwealth, 805 S.W.2d 144, 151 (Ky. Ct. App.
1990) (“A trial court clearly has the power to impose reasonable time limits
on the trial of both civil and criminal cases in the exercise of its
reasonable discretion. As long as these trial time limits are not arbitrary
or unreasonable we will not disturb the court’s decision on review.” (citation
omitted)).
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slapping, “body slamming,” and rape. Additional time would also
have allowed Mother to rebut Father’s accusations that she abused
Son and Daughter, and that Older Son sexually abused Son and
Daughter. Mother further asserts that additional time would have
allowed the police detective to testify regarding the lack of
evidence to support Father’s allegations that Older Son abused
Son and Daughter.
Finally, we note that Mother and Father presented
diametrically opposing evidence with regard to each other’s
fitness as a parent. Both Father and Mother raised claims of
abuse by the other, but none of the custody evaluators or medical
practitioners involved in this case were able to resolve these
claims. Father testified at some length regarding the children’s
schooling, extracurricular activities, and the therapy they
received for having been abused. However, because Father moved
the children to Texas, the state custody evaluators were never
able to speak with children or evaluate their living situation or
behavior with Father. Father also did not provide any
corroborating evidence with regard to the children’s welfare in
his care. While such corroboration is not necessary for a court
to determine the best interests of a child, the absence of any
corroboration in this case highlights the fact that the family
court’s determination hinged on the credibility of Mother and
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Father.
In order for the court to determine the best interests
of the children, it needed to properly consider the competing
evidence on each party’s fitness as a parent. Excluding further
witness testimony on behalf of Mother prevented the family court
from considering relevant evidence. In other words, by cutting
short Mother’s testimony, the family court curtailed its own
opportunity to fairly judge Mother’s credibility and properly
decide how the best interests of Son and Daughter could be
served. Under these circumstances, the three-hour time limit
unreasonably deprived Mother of a fair opportunity to present her
case and prevented the family court from being able to determine
the best interests of the children in this case.
Although the family court can set reasonable time
limits to a trial in a child custody case involving allegations
of domestic violence, the time limits must be based upon an
informed analysis of the time necessary to afford the parties a
full and fair opportunity to present their case. And when a
party moves for an extension of time in such cases, the family
court must consider whether the proposed testimony is pertinent
to the best interests of the child when deciding whether or not
to grant the motion. By adhering to a rigid time limit, cutting
short Mother’s testimony and denying Mother’s motion to extend
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trial time for testimony regarding issues of family violence and
their bearing on the best interests of Son and Daughter, the
family court abused its discretion and “‘disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant[,]. . . and its decision . . . clearly exceeded
the bounds of reason.”5 Doe, at 156, 44 P.3d at 1097.
5
The Concurring Opinion also concludes the Hawai#i Rules of
Evidence (HRE) and the Hawai#i Family Court Rules (HFCR) do not permit the
family court to impose reasonable time limits.
The Concurring Opinion states that the use of time limits is not
provided for by the Hawai#i Rules of Evidence (HRE), citing in particular to
HRE Rule 611 and Weinstein’s Federal Evidence to maintain that HRE and the
Federal Rules of Evidence (FRE) Rule 611 “do[] not empower the court to use
those restrictions to limit non-cumulative, probative evidence.” Concur. Op.
at 11 (citing 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 611.02[2][b][ii] (2d ed. 2014)). Weinstein explains in regard to
Rule 611 that “Time limits on the presentation of evidence may be imposed to
avoid wasting time and to ensure that a case is speedily and efficiently
heard,” so long as the trial court does not abuse its discretion by
“exclud[ing] non-cumulative, probative evidence because its introduction would
take longer than the court had set aside for trial.” 4 Jack B. Weinstein &
Margaret A. Berger, Weinstein’s Federal Evidence § 611.02[2][b][ii] (2d ed.
2014). In fact, the Vermont Supreme Court has read Vermont’s equivalent of
Rule 611 as granting trial courts the ability to set reasonable time limits on
the presentation of evidence at trial. See Varnum v. Varnum, 586 A.2d 1107,
1115 (Vt. 1990) (“We think that the power granted by Rule 611(a) includes the
authority to set reasonable limits on the consumption of time in examining
witnesses. We agree with the observation of the Maine Supreme Judicial Court
that counsel left to their own devices may ‘proceed at a pedestrian pace
unsuited to times when court calendars are crowded and the costs of litigation
to the parties and to the taxpayer are unreasonably high.’” (citations
omitted)).
The Concurring Opinion also concludes that the Hawai#i Family
Court Rules (HFCR) implicitly disallow the use of time limits, when those
rules are compared to the Hawai#i Rules of Civil Procedure (HRCP), and in
particular, HRCP Rule 16, which authorizes the court to establish time limits.
Concur. Op. at 17-20. Although HFCR Rule 16 does not include an express
provision regarding time limits, the absence of a specific provision should
not be read to preclude the family court from setting reasonable time limits
under certain circumstances. HFCR Rule 16 in fact omits other paragraphs in
HRCP Rule 16 that refer to powers that clearly are not denied by implication
based on their exclusion from HFCR Rule 16 (e.g., HRCP Rule 16(c)(11) allows
the court to take appropriate action with respect to “the disposition of
pending motions.”). Moreover, HFCR Rule 16 has a catch-all provision that
(continued...)
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IV. Conclusion
We hold that the family court abused its discretion in
denying Mother’s motion for additional trial time. Thus, we
vacate the ICA’s August 27, 2013 judgment and the family court’s
August 23, 2012 order, and remand to the family court for further
proceedings.
Micky Yamatani /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Michael A. Glenn
for respondent /s/ Sabrina S. McKenna
/s/ Rom A. Trader
5
(...continued)
authorizes the family court to take appropriate action with respect to “(7)
Such other matters as may aid in the disposition of the action.” The catch-
all provision grants the family court the necessary flexibility to do what is
appropriate in each case, which may include setting reasonable time limits in
certain situations.
Indeed, the Rules Committee, when it proposed the amendments to
HFCR Rule 16, and this Court, when it adopted the rule, were likely aware of
the fact that family court judges could impose reasonable time limits on child
custody proceedings. If the Committee or this Court intended to disallow the
use of reasonable time limits, HFCR Rule 16 could have clearly said so. In
the absence of express language precluding the family court’s use of
reasonable time limits, we decline to read such a prohibition into HFCR Rule
16.
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