LK v. JB ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-MAY-2022
07:52 AM
Dkt. 63 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
LK, Petitioner-Appellee,
v.
JB, Respondent-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-DA NO. 19-1-2156)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and McCullen, JJ.)
In this case involving a Petition for an Order for
Protection (Petition) filed by Petitioner-Appellee LK (LK),1
self-represented Respondent-Appellant JB (JB) appeals from an
"Order Denying Motion for Relief from Judgment or Order Pursuant
to Rule 60b(3) Fraud, 60b(4) the Judgment is Void and Motion to
Stay Execution of Judgments and Order (FC-DA 19-1-2156) Pending
1
LK was represented in the proceedings below but is self-represented
on appeal and did not file an answering brief. Notwithstanding LK's failure
to file an answering brief, the Hawai#i Supreme Court has expressed:
[o]n appeal, appellants are required to convince the
appellate tribunal that a reversible error occurred in prior
proceedings. If appellees offer no contradictory arguments,
an appellant does not automatically prevail on a given point
of error asserted. Rather, when an appellee fails to
respond, an appellant is required only to make a prima facie
showing of error in order to obtain the relief sought.
Omerod v. Heirs of Kaheananui, 116 Hawai#i 239, 269, 172 P.3d 983, 1013
(2007)(citations omitted).
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Hearing Pursuant to [Hawai#i Family Court Rules (HFCR)] 62(b)"
(Order Denying Rule 60(b) Motion) entered on December 21, 2020,
by the Family Court of the First Circuit (Family Court).2
On appeal, JB apparently contends: (1) the Family Court
erred by failing to set aside a default against him although he
appeared for a hearing two minutes after the default had been
entered; and (2) LK failed to meet constitutional standing
requirements because LK's description in the Petition of an
incident is not concrete and particular.3
We resolve JB's points of error as follows and affirm.
JB's opening brief4 does not comply with Hawai#i Rules
of Appellate Procedure (HRAP) Rule 28, including that it does not
contain any record references as required by HRAP Rule 28(b)(3),
and fails to set forth where in the record he objected to the
Family Court's alleged errors or brought the errors to the
court's attention as required by HRAP Rule 28(b)(4). However,
the Hawai#i Supreme Court instructs that pleadings prepared by
self-represented litigants should be interpreted liberally, and
self-represented litigants should not be automatically foreclosed
from appellate review because they fail to comply with court
rules. Erum v. Llego, 147 Hawai#i 368, 380-81, 465 P.3d 815,
827-28 (2020). Therefore, we address JB's points and arguments
to the extent they can be discerned and we are able to address
them.
2
The Honorable Rebecca A. Copeland presided.
3
In a section titled "questions on appeal" in his opening brief, JB
states that "[t]he facts will prove an order of default was entered by a court
. . . lacking personal jurisdiction and violated due process and thereby
cannot yield an order of default." However, JB's argument in his brief is
that LK's Petition failed to meet constitutional standing requirements because
it lacked a concrete and particular description of an alleged incident.
4
On December 2, 2021, the appellate clerk entered a default notice
informing JB that the time for filing the statement of jurisdiction and
opening brief had expired. However, rather than dismiss his appeal and given
JB's self-represented status, the court subsequently entered an Order on
December 23, 2021, construing JB's June 28, 2021 "Amended Brief Joinder of New
Parties" as his opening brief.
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Point of error (1): JB argues the Family Court erred
in failing to withdraw a default against him although JB appeared
for a hearing two minutes after the oral default was entered and
he participated in the proceedings. Although JB fails to provide
a date for the hearing, his argument appears to be in reference
to a December 17, 2019 hearing on the Petition, for which the
Family Court minutes note that "calls for Respondent are
preserved[,] Respondent is defaulted" and "Respondent appeared
later."5 On the same date, December 17, 2019, the Family Court
issued an Order For Protection.
JB did not appeal from the Order For Protection and
thus we lack appellate jurisdiction to directly review that
order. This appeal is limited to review of the Order Denying
Rule 60(b) Motion, which was filed a year later, on December 21,
2020. We thus address JB's arguments on appeal in this context.
In his December 9, 2020 "Motion for Relief From
Judgment or Order Pursuant to Rule 60b(3) Fraud, 60b(4) the
Judgment is Void & Motion to Stay Execution of Judgments and
Orders (FC-DA NO 19-1-2156) Pending Hearing Pursuant to HFCR
62(b)" (Motion for Relief), JB argued he was previously unaware
of the default at the December 17, 2019 hearing and that the
Family Court erred in defaulting him.
On appeal, JB fails to provide transcripts for the
December 17, 2019 hearing and thus our review is limited in that
we cannot directly determine what occurred during that hearing.
See Bettencourt v. Bettencourt, 80 Hawai#i 225, 230, 909 P.2d
553, 558 (1995) ("The burden is upon appellant in an appeal to
show error by reference to matters in the record, and he or she
has the responsibility of providing an adequate transcript."
(Citation and brackets omitted)). Moreover, JB fails to assert
why he is entitled to relief under HFCR Rule 60(b). Thus, he
does not establish error by the Family Court. Moreover, we note
that based on the record before us, the Family Court did not
5
The Honorable Natasha R. Shaw presided.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
enter a written default against JB and the Order For Protection
filed on December 17, 2019, states that JB was present in court
for the hearing that same day. In short, it does not appear the
Family Court entered the Order For Protection based on JB having
defaulted.
Accordingly, given the record before us, we conclude
JB's first point of error is without merit.
Point of error (2): JB contends that LK failed to meet
constitutional standing requirements because LK's description of
an incident in the Petition is not concrete and particular. See
Corboy v. Louie, 128 Hawai#i 89, 104, 283 P.3d 695, 710 (2011)
(explaining the requirements of constitutional standing).
As noted above, however, our appellate jurisdiction is
limited in this appeal to reviewing the Order Denying Rule 60(b)
Motion. JB did not raise LK's purported lack of standing in his
Motion for Relief, and thus, for purposes of this appeal that
issue is waived. To the extent JB seeks to have us directly
review the Order For Protection, we lack appellate jurisdiction.
For the foregoing reasons, the December 21, 2020 Order
Denying Rule 60(b) Motion entered by the Family Court is
affirmed.
DATED: Honolulu, Hawai#i, May 27, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
JB,
Self-represented /s/ Keith K. Hiraoka
Respondent-Appellant Associate Judge
/s/ Sonja M.P. McCullen
Associate Judge
4