JR v. IR ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-JUN-2021
07:52 AM
Dkt. 181 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JR, Plaintiff-Appellee, v.
IR, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 14-1-7523)
MEMORANDUM OPINION
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
This appeal arises out of post-judgment proceedings
following the entry of a divorce decree. Defendant-Appellant IR
(Mother) appeals from the following three orders entered by the
Family Court of the First Circuit (family court)1/ in favor of
Plaintiff-Appellee JR (Father): (1) the December 17, 2018 "Order
Re: Extended Hearing on Motion and Declaration for Post-Decree
Relief, Filed April 19, 2018" (Order Re Extended Hearing); (2)
the January 16, 2019 "Supplemental Order Re: Extended Hearing on
Motion and Declaration for Post-Decree Relief, Filed April 19,
2018, Filed December 17, 2018" (Supplemental Order Re Extended
Hearing); and (3) the January 16, 2019 "Order Re: [Mother]'s
Motion for Reconsideration of the Order Filed December 17, 2018
Re: Extended Hearing on Motion and Declaration for Post-Decree
Relief, Filed April 19, 2018, [Filed] December 27, 2018" (Order
Denying Motion for Reconsideration).
1/
The Honorable Gale L.F. Ching presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Mother contends that the family court erred in: (1)
granting Father's ex parte motion to prohibit Mother from having
contact with the parties' minor child (Child) and Child's medical
providers until further order of the court; (2) granting Father
sole legal custody of Child and limiting Mother to supervised
visitation with Child; (3) denying Mother access to the Queens
Medical Center (QMC) records of Child; (4) adopting Findings of
Fact (FOFs) 11, 12, 15, 16, 24, 31, 35, 38, 48, 50, 89, and 90,
and Conclusions of Law (COLs) 9, 11, 19, 21, and 24, in the
court's May 17, 2019 Findings of Fact and Conclusions of law
(FOFs/COLs); and (5) granting Father's request for relocation
with Child to Massachusetts.
For the reasons discussed below, we affirm the Order Re
Extended Hearing, the Supplemental Order Re Extended Hearing, and
the Order Denying Motion for Reconsideration.
I. Background
On April 7, 2017, the family court entered a Divorce
Decree, which, among other things, awarded Mother and Father
joint legal custody of Child, and granted Father "tie-breaking
authority" as to any disagreement between the parties regarding a
legal custody decision. Father was also awarded sole physical
custody of Child, subject to Mother's right of reasonable
visitation.2/
On April 19, 2018, Father filed a Motion and
Declaration for Post-Decree Relief (Motion for Post-Decree
Relief), by which Father sought sole legal custody of Child and
to limit Mother to supervised visitation "until she receive[d]
needed mental health treatment." Father also sought the court's
permission to relocate to the Boston area with Child "should
2/
Mother appealed from the Divorce Decree and related orders,
contending in part that the family court erred in finding that Mother had
engaged in parental alienation and in awarding Father sole physical custody of
Child. JR v. IR, CAAP-XX-XXXXXXX, 2019 WL 363471, at *4-5 (Haw. App. Jan. 25,
2019 (SDO). We rejected Mother's arguments and affirmed the Divorce Decree
and related orders. Id. at *9. We concluded that substantial evidence
supported the family court's findings regarding parental alienation, and that
the family court did not err in exercising its discretion in reaching its
custody decision. Id. at *4-6.
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
[Mother] not make current her financial obligations to [Father]."
The Motion for Post-Decree Relief was supported by Father's
April 9, 2018 declaration describing, among other things, alleged
"continued parental alienation behaviors" by Mother. A hearing
on the Motion for Post-Decree Relief was scheduled for May 23,
2018.
On May 12, 2018, Mother was personally served with a
copy of the Motion for Post-Decree Relief. The same day, Mother
brought Child to the QMC emergency room, claiming he was
suicidal. Child was admitted to Queen's Family Treatment Center
(QFTC) for inpatient psychiatric treatment.
On May 14, 2018, Father filed "Plaintiff's Ex Parte
Motion to Prohibit Defendant from Having Contact with the
Parties' Minor Child and His Medical Professionals Until Further
Order of the Court" (Ex Parte Motion). The Ex Parte Motion
asserted that Mother was mentally ill, had "choreographed a
scenario that portrays [Father] as being abusive and a danger to
[Child,]" and had put Child at risk of harm, and that it was in
Child's best interest that he have no contact with Mother until a
family court hearing on the matter. The Ex Parte Motion was
supported by Father's May 14, 2018 declaration, which described
the events leading to Child's admission to QFTC, and which
attached Father's April 9, 2018 declaration as an exhibit. The
same day, i.e., May 14, 2018, the family court issued an order
granting the Ex Parte Motion (Order Granting Ex Parte Motion), in
which the court ordered that Mother have no contact with Child or
his medical providers until further order of the court, and that
the parties be present for a hearing on the matter on May 16,
2018, at 8:30 a.m.
On May 16, 2018, Mother filed her response to the Ex
Parte Motion. Mother asserted, among other things, that "CHILD'S
physical, medical, and mental health needs have been neglected by
[Father,]" and that "CHILD is being subjected to verbal, mental,
and emotional abuse, and is currently at risk of self-harm."
On May 16, 2018, the family court held a hearing on the
Ex Parte Motion with all parties and counsel present. At that
time, the family court entered an order setting an extended
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
hearing for May 29, 2018 to address the following issues: "a)
sole legal custody, b) sole physical custody, c) visitation time-
sharing, d) child support, e) child support arrearages, f)
payments due per prior court order, g) [Father's] request for
[Mother] to advance appellate fees, h) relocation." The family
court also entered an order regarding the Ex Parte Motion (Order
re Ex Parte Motion), which reflected the appointment of Trina
Yamada as Child's guardian ad litem (GAL or GAL Yamada), and
which modified the Order Granting Ex Parte Motion by, among other
things, permitting Mother to "have contact and/or visitation with
[Child] . . . [and] contact with [Child's] medical professionals
only upon the recommendation of [GAL] Yamada." On May 17, 2018,
the family court entered the Order Appointing Custody Guardian Ad
Litem (Order Appointing GAL), which appointed GAL Yamada,
directed her to prepare and file a final report on or before
May 23, 2018, and set a conference/return hearing on the report
for May 23, 2018 with both parties and their attorneys to appear.
On May 23, 2018, pursuant to the parties' stipulation,
the family court continued the return hearing on the GAL's report
to June 21, 2018. At the request of the attorneys, the court
also set aside the previously scheduled May 29, 2018 extended
hearing date and reset the extended hearing for July 18, 2018.
On June 1, 2018, Mother filed "Defendant's Ex Parte
Motion for Immediate Change of Legal and Physical Custody, to
Prohibit Plaintiff from Having Contact with the Parties' Minor
Child and His Medical Professionals and to Set Aside Order Filed
May 14, 2018" (Mother's Ex Parte Motion). Mother's Ex Parte
Motion was supported by her May 30, 2018 declaration, which
asserted, among other things:
The Child is being physically neglected and psychologically
abused by [Father]. The Child is at risk of self-harm and
has failed to thrive under [Father's] care. [Father] has
neglected the Child's basic care, medical, and mental health
needs. . . .
Mother's Ex Parte Motion was denied, and the family court "set
[the] matter for hearing on July 18, 2018[,] . . . along w[ith
the] other motions already scheduled for extended hearing."
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On June 19, 2018, the GAL filed the Report of the
Guardian Ad Litem (GAL's Report), which, among other things,
described the procedural history of the case, listed twenty-two
documents reviewed and twelve contacts made, and set out
recommendations to the family court, including that a therapist
for Child be selected forthwith. The GAL's Report also
recommended that Child should begin contact with Mother, the
contact should start with Skype sessions, and the sessions should
be monitored by a neutral third person. The GAL's Report further
stated that after Child was engaged in therapy and Child was
ready, then face-to-face visitation should start.
On June 21, 2018, the family court held the return
hearing on the GAL's Report, with all parties present. With the
parties' agreement, the court ordered the appointment of Rob
Welch, Ph.D. (Dr. Welch) as Child's therapist, and approved
several conditions of the appointment governing the
confidentiality of communications between Child and Dr. Welch.
At the hearing, Mother made an oral motion for unsupervised
visitation with Child. Consistent with the GAL's recommendation,
the family court ordered that Skype visitation between Mother and
Child begin that night, supervised by the GAL.
On July 18 and 24, 2018, the family court held a two-
day extended hearing on the above-identified matters. The court
heard testimony from Father, Mother, Child's physician, the GAL,
Child's school counselor, and Father's direct supervisor at work.
On December 17, 2018, the family court issued the Order
Re Extended Hearing, which stated in part:
The evidence further displays a continued pattern of
alienation and questionable conduct exhibited by [Mother] at
the expense of [Child's] well-being. Given the evidence of
[Mother's] conduct since the [Divorce] Decree, it appears
that there has not been peace for [Child] to heal from the
Parties['] contentious divorce proceedings, [and] the Court
finds that it is in the best interest of [Child] that
[Father's] request for sole legal custody is GRANTED.
The Order Re Extended Hearing also awarded Father sole physical
custody of child subject to Mother's right of reasonable
visitation, and granted Father's request to relocate with Child
to Massachusetts subject to the timely submission of a relocation
report.
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On December 27, 2018, Mother filed a motion for
reconsideration of the Order re Extended Hearing (Motion for
Reconsideration). On January 7, 2019, Father filed his
memorandum in opposition to the Motion for Reconsideration, and
on January 11, 2019, Mother filed her reply memorandum. On
January 9, 2019, Father filed a relocation report, pursuant to
the Order Re Extended Hearing.
On January 16, 2019, the family court issued the
Supplemental Order Re Extended Hearing and the Order Denying
Motion for Reconsideration. In the Supplemental Order Re
Extended Hearing, the family court ordered that Mother's monthly
child support obligation remain in effect until otherwise
ordered.
On May 17, 2019, the family court issued the FOFs/COLs.
II. Standards of Review
[T]he family court possesses wide discretion in making its
decisions and those decision[s] will not be set aside unless
there is a manifest abuse of discretion. Thus, we will not
disturb the family court's decisions on appeal unless the
family court 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.
Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)
(quoting In re Doe, 95 Hawai#i 183, 189-90, 20 P.3d 616, 622-23
(2001)).
The family court's findings of fact are reviewed under
the "clearly erroneous" standard. Id. A finding of fact is
clearly erroneous when the record lacks substantial evidence to
support the finding or, despite substantial evidence in support
of the finding, we are nonetheless left with a definite and firm
conviction that a mistake has been made. Id. "Substantial
evidence" is credible evidence of sufficient quality and
probative value to enable a person of reasonable caution to
support a conclusion. Id. "It is well-settled that an appellate
court will not pass upon issues dependent upon the credibility of
witnesses and the weight of evidence; this is the province of the
trier of fact." Id. (quoting Doe, 95 Hawai#i at 190, 20 P.3d at
623).
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The family court's conclusions of law are ordinarily
reviewed de novo, under the right/wrong standard, "and are freely
reviewable for their correctness." Id. (quoting Doe, 95 Hawai#i
at 190, 20 P.3d at 623). However, when a conclusion of law
presents mixed questions of fact and law, we review it under the
"clearly erroneous" standard because the court's conclusions are
dependent on the facts and circumstances of each case. Estate of
Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504,
523 (2007) (quoting Thompson v. Kyo–Ya Co., Ltd., 112 Hawai#i
472, 474, 146 P.3d 1049, 1051 (2006)). A conclusion of law that
is supported by the trial court's findings of fact and reflects
an application of the correct rule of law will not be overturned.
Id. (quoting Thompson, 112 Hawai#i at 474, 146 P.3d at 1051).
III. Discussion
A. Ex Parte Motion
Mother contends that in granting the Ex Parte Motion
and prohibiting Mother's contact with Child, the family court
violated Mother's substantive liberty interest protected by
article I, section 5 of the Hawai#i Constitution. Mother argues
that the measures adopted by the family court are usually those
reserved for parents who have been found to have committed
violence or abuse against their children, and there was no such
evidence here. Mother also appears to argue that she was
deprived of visitation with Child without notice and an
opportunity to be heard.
The Hawai#i Supreme Court has recently reiterated:
Important constitutional interests provide . . . 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, 120 S.
Ct. 2054, 147 L. Ed. 2d 49 (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.[ ] Parental rights guaranteed under the
Hawai#i Constitution would mean little if parents were
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
deprived of the custody of their children without a fair
hearing." In re Doe, 99 Hawai#i 522, 533, 57 P.3d 447, 458
(2002).
DJ v. CJ, 147 Hawai#i 2, 17, 464 P.3d 790, 805 (2020) (quoting AC
v. AC, 134 Hawai#i 221, 233, 339 P.3d 719, 731 (2014)). The
supreme court continued:
[I]t is axiomatic that a parent's right to the care,
custody, and control of the parent's child is a fundamental
liberty interest protected by the United States and Hawai #i
constitutions and entitled to due process protection. In a
child custody context, we have specifically stated that the
State may not deprive a parent of the fundamental liberty
interest in the care, custody, and control of a child
without providing a fair procedure for the
deprivation. Furthermore, the Supreme Court has said
that parental rights cannot be denied without an
opportunity for them to be heard at a meaningful time
and in a meaningful manner.
In Re Doe, 108 Hawai#i 144, 157, 118 P.3d 54, 67 (2005) (emphasis
in original).
DJ, 147 Hawai#i at 17, 464 P.3d at 805.
We first note that under the Divorce Decree, Father had
sole physical custody of Child and tie-breaking authority
regarding legal custody decisions when the May 14, 2018 Order
Granting Ex Parte Motion was entered. The Order Granting Ex
Parte Motion did not effect a change in the primary physical or
legal custody of Child. Rather, Mother's right of reasonable
visitation was temporarily suspended based on the circumstances
set forth in Father's May 14, 2018 declaration, i.e., that
Mother's continued parental alienating behavior had led to a
situation in which, on the day she was served with the Motion for
Post-Decree Relief, she brought Child to the emergency room,
claiming he was suicidal, and Child was admitted to QFTC for
inpatient psychiatric treatment.3/ In these exigent
circumstances, the family court ordered that Mother have no
contact with Child or his medical providers until further order
of the court, and that the parties be present for a hearing on
the matter on May 16, 2018, at 8:30 a.m.
3/
These circumstances are further described in FOFs 39 through 52.
Although Mother challenges FOFs 48 and 50, we conclude in Section D, infra,
that these challenged FOFs are not clearly erroneous.
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
"[D]ue process is not a fixed concept requiring a
specific procedural course in every situation." In re
Guardianship of Carlsmith, 113 Hawai#i 236, 241, 151 P.3d 717,
722 (2007) (quoting State v. Guidry, 105 Hawai#i 222, 234, 96
P.3d 242, 254 (2004)). Rather, due process requires "notice and
an opportunity to be heard at a meaningful time and in a
meaningful manner before governmental deprivation of a
significant liberty interest." Id. (quoting State v. Bani, 97
Hawai#i 285, 293, 36 P.3d at 1255, 1263 (2001)); see Doe, 108
Hawai#i at 157, 118 P.3d at 67 (parental rights cannot be denied
without an opportunity to be heard at a meaningful time and in a
meaningful manner).
Here, the family court set a hearing on the subject
matter of the Ex Parte Motion to occur within 48 hours of the
issuance of the Order Granting Ex Parte Motion. Mother was
promptly served with a copy of the Ex Parte Motion and filed a
16-page response on the morning of May 16, 2018, the day of the
scheduled hearing. At that hearing, the family court heard the
parties' arguments through the parties' respective counsel.
Following argument, the family court, among other things,
modified the Order Granting Ex Parte Motion by permitting Mother
to have contact with Child and Child's medical professionals upon
the recommendation of GAL Yamada.
We conclude that under these circumstances, Mother was
afforded an opportunity to be heard at a meaningful time and in a
meaningful manner with respect to the temporary limitation placed
on her right of visitation with Child, and that the family court
did not abuse its discretion in granting the Ex Parte Motion.
B. Change in Legal Custody and Visitation
Mother contends that the family court erred in granting
Father sole legal custody of Child and limiting Mother to
supervised visitation with Child. However, Mother presents no
argument regarding the alleged error by the court in granting
Father sole legal custody of Child. That alleged error is
therefore deemed waived. See Hawai#i Rules of Appellate
Procedure (HRAP) Rule 28(b)(7); Bettencourt v. Bettencourt, 80
9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Hawai#i 225, 228-29, 909 P.2d 553, 556-57 (1995). Even if the
issue was not waived, the FOFs/COLs, discussed in Section D
below, support the court's decision to award Father sole legal
custody of Child, and we find no abuse of discretion in that
decision.
Regarding visitation, Mother contends that at the
May 16, 2018 hearing, the family court wrongfully delegated its
decision-making power to the GAL. At the hearing, after the
parties made their respective arguments, the family court stated:
The Court has reviewed this matter. Obviously there's no
perfect answer to this issue that's before the Court.
However, the Court will make the following orders.
. . . [W]hile the minor is at Queen's, the Court
understands that there is always going to be some
supervision in some form when any parent is with the child,
and the Court's going to require that. . . .
The focus at this time is that Ms. Yamada needs to
complete her investigation. So the Court will order as
follows. The mother will be allowed to have contact with
the minor so long as Ms. Yamada has either finished her
investigation or has indicated that she is able to do so.
In Ms. Yamada's investigation, if she does require
observations of Mother and/or Father with the minor, then
that will be authorized because she will be there. So the
Court does not see any problems with that.
At any time where Mother or Father are with the minor,
they are specifically prohibited from attempting to talk
about the case with the minor in any fashion.
So the Court understands that the parties will be --
the attorneys will be contacting Ms. Yamada immediately,
providing her with whatever materials. Counsels can inform
Ms. Yamada that if in her decision or opinion she finds that
it is permissible to have Mother have contact with the minor
at this time, so long as she's finished her investigation,
then she should state that in the report so that the parties
can see it in black and white.
Further, the family court's written Order re Ex Parte
Motion, entered on May 16, 2018, specified that Mother "may have
contact and/or visitation with [Child] only upon the
recommendation of [GAL] Yamada[.]" See Kono v. Abercrombie, No.
CAAP-XX-XXXXXXX, 2013 WL 1758960, at *4 (Haw. App. April 24,
2013) (Mem. Op.) (ruling that the circuit court's written order
controlled over the court's oral statements; citing numerous
cases).
Mother relies on this court's decision in Bencomo v.
Bencomo, 112 Hawai#i 511, 147 P.3d 67 (App. 2006), for the
10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
proposition that "the family court is not authorized by statute
or otherwise to delegate its decision-making authority to a
guardian ad litem" and "when the family court orders that one
parent 'shall have only supervised visitation with' a child, it
must be as specific as is reasonably possible regarding the
details . . . ." Id. at 516, 147 P.3d at 72. In Becomo,
however, the family court issued various custodial orders in a
divorce case and delegated complete authority to a GAL to
determine telephone visits between father and child. Id. at 512-
13, 147 P.3d at 68-69.
Here, in contrast, the Divorce Decree awarded Father
sole physical custody of Child, subject to Mother's right of
reasonable visitation, the details of which were specifically
set out in the Divorce Decree. The May 16, 2018 Order re Ex
Parte Motion and the May 17, 2018 Order Appointing GAL did not
authorize GAL Yamada to change the terms of visitation set out in
the Divorce Decree. Rather, the Order re Ex Parte Motion was
akin to a temporary protective order, which made Mother's
continued visitation with Child temporarily dependent upon the
GAL's recommendation (i.e., pending the completion of the GAL's
report and the return hearing on the report), subject to further
order of the court. The Order Appointing GAL directed the GAL to
prepare and file a final report, with recommendations, on or
before May 23, 2018. On that date, the parties stipulated, among
other things, to continue the return hearing on the GAL's report
to June 21, 2018. We conclude that in these circumstances, the
Order re Ex Parte Motion and the Order Appointing GAL did not
improperly delegate the family court's decision-making authority
and did not constitute an abuse of discretion.
Mother also contends that when her visitation with
Child was allowed to resume, "[r]equiring . . . supervised
visitations was an error." Mother notes that the GAL's Report
recommended that Child should begin contact with Mother, the
contact should start via Skype, and until Child was actively
engaged in therapy, all visitations would need to be supervised.
Mother argues that "[t]he GAL's decision was in error and the GAL
should not have been authorized to establish Mother's visitation
11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
schedule or choose to limit that visitation as supervised."
However, the GAL did not establish Mother's visitation
schedule or assume the family court's decision-making authority
to limit visitation. Rather, the GAL recommended to the family
court, pursuant to the Order re Ex Parte Motion and the Order
Appointing GAL, how Mother's visitation with Child should resume,
following the court's temporary suspension of visitation. On
June 21, 2018, the family court held the return hearing on the
GAL's Report and consistent with the GAL's recommendation,
ordered that Skype visitation between Mother and Child begin that
night, supervised by the GAL. On this record, we cannot conclude
that the family court "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." Fisher, 111
Hawai#i at 46, 137 P.3d at 360 (quoting Doe, 95 Hawai#i at 189-90,
20 P.3d at 622-23). Accordingly, we conclude that the family
court did not abuse its discretion in ordering supervised
visitation in these circumstances.
C. Denial of Access to Child's QMC Records
Mother asserts that the family court erred "when it
failed to allow Mother to conduct proper discovery to prepare for
the hearing to decide the issues raised by Father's Motion . . .
for Post-Decree Relief[.]" More specifically, Mother contends
that the family court improperly denied her access to Child's QMC
records "that would assist in showing that the treatment [Child]
received at [QMC] was reasonable, necessary, and in his best
interest."
Mother presents no argument on this asserted point of
error. The issue is thus deemed waived. See HRAP Rule 28(b)(7);
Bettencourt, 80 Hawai#i at 228-29, 909 P.2d at 556-57.
To the extent that Mother discusses this issue in her
"Statement of the Case," she does not show that the family court
erred in denying in part her July 6, 2018 motion to compel
discovery (Motion to Compel). "We review a trial court's ruling
limiting the scope of discovery under the abuse of discretion
standard." Fisher v. Grove Farm Co., 123 Hawai#i 82, 94, 230
12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
P.3d 382, 394 (App. 2009) (citing State v. Fukusaku, 85 Hawai#i
462, 477-78, 946 P.2d 32, 47-48 (1997)) (reviewing a motion to
compel discovery). "An abuse of discretion occurs if the trial
court has 'clearly exceeded the bounds of reason or disregarded
rules or principles of law or practice to the substantial
detriment of a party litigant.'" Minton v. Quintal, 137 Hawai#i
270, 274, 369 P.3d 853, 857 (App. 2016) (quoting Amfac, Inc. v.
Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26
(1992)).
Here, the family court decided to redact the QMC
records at issue, in Child's best interest, and to provide both
Mother and Father with copies of the same redacted records. In
addition, Mother's counsel was allowed to speak to any of the QMC
medical providers identified in the QMC records. In these
circumstances, Mother did not show that the family court clearly
exceeded the bounds of reason or disregarded rules or principles
of law or practice to Mother's substantial detriment. We thus
conclude that the family court did not abuse its discretion in
denying the Motion to Compel.
D. Father's Relocation
Mother contends that the family court erred in granting
Father's request for relocation with Child to Massachusetts. In
particular, Mother argues there was insufficient evidence to show
that relocation was in Child's best interest, and the family
court improperly relied on "unfounded evidence of parental
alienation" in allowing relocation.
"It is well settled that in child custody cases the
paramount concern is the best interests of the child." W.N. v.
S.M., 143 Hawai#i 128, 135, 424 P.3d 483, 490 (2018) (citing Doe
v. Doe, 98 Hawai#i 144, 155, 44 P.3d 1085, 1096 (2002)).
Likewise, in cases where one parent wishes to relocate with a
child over the objection of the other parent, courts have
consistently applied the best-interests-of-the-child standard.
DJ, 147 Hawai#i at 23, 464 P.3d at 811 ("When one parent requests
permission to relocate out-of-state with a child, . . . under
Hawai#i law, the governing consideration is not a parent's
13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
interests, but whether allowing relocation is in the 'best
interests of the child.'" (quoting HRS § 571-46(a)(1))); see
Fisher, 111 Hawai#i at 50, 137 P.3d at 364; Waldecker v.
O'Scanlon, 137 Hawai#i 460, 471, 375 P.3d 239, 250 (2016). HRS
§ 571-46(b) (Supp. 2017) provides a non-exhaustive list of
factors for the family court to consider in determining the best
interest of the child.4/ "The trial court possesses broad
4/
HRS § 571-46(b) states:
(b) In determining what constitutes the best
interest of the child under this section, the court shall
consider, but not be limited to, the following:
(1) Any history of sexual or physical abuse of a
child by a parent;
(2) Any history of neglect or emotional abuse of a
child by a parent;
(3) The overall quality of the parent-child
relationship;
(4) The history of caregiving or parenting by each
parent prior and subsequent to a marital or
other type of separation;
(5) Each parent's cooperation in developing and
implementing a plan to meet the child's ongoing
needs, interests, and schedule; provided that
this factor shall not be considered in any case
where the court has determined that family
violence has been committed by a parent;
(6) The physical health needs of the child;
(7) The emotional needs of the child;
(8) The safety needs of the child;
(9) The educational needs of the child;
(10) The child's need for relationships with
siblings;
(11) Each parent's actions demonstrating that they
allow the child to maintain family connections
through family events and activities; provided
that this factor shall not be considered in any
case where the court has determined that family
violence has been committed by a parent;
(12) Each parent's actions demonstrating that they
separate the child's needs from the parent's
needs;
(13) Any evidence of past or current drug or alcohol
abuse by a parent;
(continued...)
14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
discretion in making custody decisions and in its determination
of what is in the best interests of the child." A.A. v. B.B.,
139 Hawai#i 102, 106, 384 P.3d 878, 882 (2016) (citing Fujikane
v. Fujikane, 61 Haw. 352, 354, 604 P.2d 43, 45 (1979)).
Here, based on the evidence adduced during the two-day
extended hearing, the family court concluded that it was in
Child's best interests for Father to be awarded sole legal
custody of Child, for Father to have continued sole physical
custody of Child, and for Father to be allowed to relocate to
Massachusetts (subject to his timely submission of a relocation
report). The family court also concluded that it was in Child's
best interests to have visitation with Mother, the details of
which were specifically set out in the Order Re Extended Hearing.
The family court's conclusions are based in part on the following
FOFs:
10. Father has historically made legal custodial
decisions in the Minor Child's continued best interest.
11. Between the time the parties divorced and the
July 18 and 24, 2018 Trial in this matter, Defendant Mother
engaged in a continued patter[n] of alienation and
questionable conduct regarding the Minor Child that was not
in the Minor Child's best interest.
12. Following the July 24, 2018 Trial date, it is in
[Child's] best interests for Father to be awarded sole legal
custody of [Child].
. . . .
15. It is in [Child's] best interest for Father to
have continued sole physical custody of [Child].
16. It is in [Child's] best interests for Father to
be allowed to relocate out of the state of Hawaii with
[Child] to Massachusetts upon submitting Ordered relocation
information to the Court.
. . . .
4/
(...continued)
(14) The mental health of each parent;
(15) The areas and levels of conflict present within
the family; and
(16) A parent's prior wilful misuse of the protection
from abuse process under chapter 586 to gain a
tactical advantage in any proceeding involving
the custody determination of a minor. . . .
15
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
23. [Child] thrived in Father's care. [Child] raised
his Grade Point Average for the academic year to 3.417. He
did so well in math that he was recommended for an
accelerated math program.
24. Mother used her visitation time with [Child] to
try and manipulate circumstances to attempt to develop
evidence to support Mother's false allegations that Father
was physically abusive to [Child].
. . . .
48. As explained in Report of the Guardian Ad Litem,
Mother used false reports of [Child] being a witness to
domestic violence as a way to influence medical
professionals assessing his mental health. The Report of
the Guardian Ad Litem was admitted into Trial evidence.
Mother made these false reports to the Queen's Family
Treatment Center. She told Queen's that she was a victim of
domestic violence by Father and that [Child] reported he was
experiencing very similar behavior to what she experienced
with Father.
49. Mother's decision to make [Child's] medical care
about litigating her false allegations of abuse against
Father was part of the decision making for the staff at
Queen's which led to [Child's] admission.
50. Mother's fraudulent claim and manipulation of
[Child] and the Queen's staff was not in the Child's best
interest.
. . . .
55. Ms. YAMADA was also able to observe [Child] with
Father during his stay at Queen's. [Child's] behavior and
affect with Father was loving, friendly, and affectionate.
[Child's] behavior at this time was not consistent with the
allegations of Father's abuse.
. . . .
80. As explained in Plaintiff Exhibit 29, at the time
of trial, Father was over $250,000.00 in debt, in large part
as result of the litigation in this case and Mother's
failure to pay her outstanding obligations.
81. Father's testimony that he needed to drastically
reduce his cost of living, and stop the escalating
litigation costs in this case, so that he would not go
bankrupt and be unable to support [Child] is credible.
82. Mother had no incentive to limit the litigation
because of cost. She admitted at trial that she was not
paying for her representation in her prior appeal and cannot
even remember how much she paid for her representation at
the recent trial.
83. Father decided that the only way he can
reasonably support [Child], pay off his debt and maintain
some minimal level of financial security was to move to
. . . Massachusetts and live with his parents.
84. Father's parents have a four (4) bedroom home in
a beautiful area with plenty of room for Father and [Child].
The home is in an excellent public school district. The
16
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
public schools there are better than the public schools
available to [Child] in Hawaii. Father would have the
financial security of a nice place to live, excellent
schools for [Child], and the support of his family while he
tries to rebuild a financial future for himself and for
[Child].
85. Father's financial stress, while residing in
Hawaii, is caused primarily from being forced to litigate
against Mother's false allegations. Mother has been ordered
to reimburse Father for prior legal fees and has not made
payment nor indicated that payment was ever forthcoming.
86. Father's Boss . . . testified that Father was
well positioned to smoothly transfer from Hawaii to the
mainland. Father's primary job in Hawaii was doing market
analysis . . . for the mainland parent company of his Hawaii
employer.
87. Father's job was best done from the mainland,
close to the markets he was analyzing. If the parent
company decided that Father's job needed to be done from the
mainland, and Father wasn't allowed to relocate, Father
would be unemployed and wouldn't be able to support [Child].
88. After relocation, Father needed to transfer
[Child's] medical and mental health care to Massachusetts.
There are far more medical and mental health professionals
available in Massachusetts than on the Island of Oahu.
Massachusetts has some of the finest medical care, hospitals
and medical schools in the world.
89. [Child's] relocation away from Oahu is in his best
interest. Any detriment to reduction of his in-person
contact with Mother is outweighed by the benefit of avoiding
further manipulation by Mother.
90. [Child's] continued residence on Oahu puts him in
danger of continued manipulation by Mother and places upon
Father the burden of being forced to promote the Child's
best interest against the perpetual resistance of Mother.
The family court also expressly considered the factors listed in
HRS § 571-46(b) in determining Child's best interests, as
reflected in COLs 8 through 22, 24, and 25 (which are actually
mixed findings of fact and conclusions of law).5/
5/
In COLs 8 through 22, 24, and 25, the family court concluded:
8. Neither Father nor Mother had ever physically or
sexually abused [Child] under the terms of §571-46(b)(l),
Hawaii Revised Statutes.
9. Mother had engaged in conduct which had the effect
of alienating [Child] from Father and was a form of
emotional abuse of [Child] under the terms of §571-46(b)(2),
Hawaii Revised Statutes.
10. [Child] had a strong, healthy and loving
relationship with Father under the terms of §571-46(b)(3),
Hawaii Revised Statutes.
(continued...)
17
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
5/
(...continued)
11. [Child] had an unhealthy, overly enmeshed,
relationship with Mother that was putting him at risk for
emotional and psychological problems under the terms of
§571-46(b)(3), Hawaii Revised Statutes.
12. Father had been [Child]'s primary caretaker since
the parties' divorce under the terms of §571-46(b)(4),
Hawaii Revised Statutes.
13. Father was more involved in developing and
implementing a plan to have [Child] succeed academically,
socially and physically under the terms of §571-46(b)(5),
Hawaii Revised Statutes. [Child]'s school performance and
his motor skills improved when Father had physical custody
of [Child].
14. Father made better decisions regarding [Child]'s
physical health under the terms of §571-46(b)(6), Hawaii
Revised Statutes. He did not use medical professionals to
alienate [Child] from Mother. He better implemented
recommendations of competent medical professionals.
15. Father made better decisions regarding [Child]'s
emotional well-being under the terms of §571-46(b)(7),
Hawaii Revised Statutes. Father did not use [Child]'s
emotions as a weapon against Mother. Mother tried to
control [Child]'s emotions to bring him closer to her and
keep him from having a strong and stable relationship with
Father.
16. Father was able to keep [Child] safe without
preventing him from participating in normal and healthy
daily activities under the terms of §571-46(b)(8), Hawaii
Revised Statutes. Mother's obsession with [Child]'s
physical safety caused her to try and deny him the
opportunity to participate in normal, healthy activity.
17. Father was able to support [Child]'s educational
success under the terms of §571-46(b)(9), Hawaii Revised
Statutes. [Child] did well in school when Father was granted
sole physical custody.
18. Mother did not support [Child]'s connection with
his paternal family under the terms of §571-46(b)(11),
Hawaii Revised Statutes.
19. Mother repeatedly demonstrated that she could not
distinguish between her needs and [Child]'s needs under the
terms of §571-46 (b)(12), Hawaii Revised Statutes.
20. There was no evidence of drug or alcohol abuse
problems for either Mother or Father under the terms of
571-46(b)(13), Hawaii Revised Statutes.
21. Mother's pattern of alienating [Child] from
Father and her refusal to accept the reality that Father was
not abusing [Child] raised concerns that she had a mental
health disorder under the terms of §571-46(b)(14), Hawaii
Revised Statutes. There were no mental health concerns
regarding Father.
(continued...)
18
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Mother challenges FOFs 11, 12, 15, 16, 24, 31, 35, 38,
48, 50, 89, and 90, and COLs 9, 11, 19, 21, and 24, but she does
not provide any argument or basis as to why any challenged FOF or
mixed FOF/COL was clearly erroneous. See HRAP Rule 28(b)(7).
Instead, she contends generally that FOFs 11, 24, 31, 35, 38, 48,
and 50, and COLs 9, 11, 21, and 24 "relate to Father's narrative
that Mother was the cause of [Child's] alienating behaviors to
Father." She also argues broadly, based on Dr. Reneau Kennedy's
September 7, 2016 report and December 1, 2016 trial testimony,
i.e., evidence offered at the parties' pre-decree divorce trial,
that "a variety of sources contribut[ed] to Child's behavioral
response relative to alienation with Father." (Emphasis
omitted.)
However, this evidence does not establish that the
challenged FOFs and mixed FOFs/COLs were clearly erroneous. See
Fisher, 111 Hawai#i at 46, 137 P.3d at 360. First, this court
affirmed the Divorce Decree and related orders in Mother's prior
appeal (see supra note 2), ruling in part that "[t]he Family
court's inference from the evidence, i.e., that the Child's
behaviors exhibiting parental alienation from [Father] [were]
caused in large part by [Mother], is a reasonable inference from
the evidence." JR, 2017 WL 363471, at *5. Mother cannot now
relitigate this conclusion. Second, the proferred testimony of
Dr. Kennedy does not concern Mother's behaviors during the post-
decree time period that was primarily at issue during the
extended hearing, which was addressed in the challenged FOFs.
Third, substantial evidence supports the challenged FOFs and
mixed FOFs/COLs, including Father's testimony and the GAL's
5/
(...continued)
22. Father is adequately addressing the Child's
safety needs under the terms of HRS §571-46(b)(8).
. . . .
24. Mother's pattern of alienating [Child] from
Father led to intense family conflict and an inability of
the parents to communicate under the terms of §571-46
(b)(15), Hawaii Revised Statutes.
25. Neither party had ever sought protection from
abuse pursuant to Chapter 586, Hawaii Revised Statutes under
the terms of §571-46 (b)(16), Hawaii Revised Statutes.
19
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
testimony during the extended hearing, as well as the GAL's
Report. The family court also heard Mother's testimony, and
found that many of her allegations were not credible. Evaluating
the credibility of witnesses and weighing conflicting evidence
"is the province of the trier of fact." Fisher, 111 Hawai#i at
46, 137 P.3d at 360 (quoting Doe, 95 Hawai#i at 190, 20 P.3d at
623). We conclude that the challenged FOFs and mixed FOFs/COLs
are not clearly erroneous; they are supported by substantial
evidence in the record, and we are not left with a definite or
firm conviction that a mistake was made. See id.Mother does not challenge other FOFs relevant to the
family court's decision to allow Father's relocation, including
FOFs 80 through 88. These FOFs are therefore binding on appeal
and support the family court's decision allowing relocation. See
Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450,
458–59, 40 P.3d 73, 81–82 (2002).
Mother also contends that Father did not comply with
HRS § 571-46(a) when he failed to submit a parenting plan to the
family court with the Motion for Post-Decree Relief. However,
Mother does not point to where in the record the alleged error
was brought to the attention of the family court. See HRAP Rule
28(b)(4). In addition, Mother presents no argument or authority
supporting her contention that this alleged omission warrants
vacating the family court's conclusion that it was in Child's
best interest to allow Father to relocate to Massachusetts. See
HRAP Rule 28(b)(7). We thus deem the issue waived.6/
Accordingly, we conclude that the family court did not
abuse its discretion and appropriately considered the best
interests of Child in granting Father's request to relocate to
Massachusetts with Child.
IV. Conclusion
For the reasons discussed above, we affirm the
following orders entered by the Family Court of the First
6/
We also note that Father complied with the family court's
condition that he submit a relocation report to the court within 30 days from
the date of the Order re Extended Hearing.
20
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Circuit: (1) the December 17, 2018 "Order Re: Extended Hearing
on Motion and Declaration for Post-Decree Relief, Filed April 19,
2018"; (2) the January 16, 2019 "Supplemental Order Re: Extended
Hearing on Motion and Declaration for Post-Decree Relief, Filed
April 19, 2018, Filed December 17, 2018"; and (3) the January 16,
2019 "Order Re: [Mother]'s Motion for Reconsideration of the
Order Filed December 17, 2018 Re: Extended Hearing on Motion and
Declaration for Post-Decree Relief, Filed April 19, 2018, [Filed]
December 27, 2018."
DATED: Honolulu, Hawai#i, June 8, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Earle A. Partington and Chief Judge
Clarence S.K. Kekina
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Semmes H. Bobo Associate Judge
(Christopher D. Thomas, AAL,
ALC)
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
21