LO v. NO ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-APR-2022
07:49 AM
Dkt. 48 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
LO, Plaintiff-Appellant,
v.
NO, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. FC-D NO. 16-1-1111)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
This appeal involves a dispute between former spouses
over child visitation during summer vacation. Plaintiff-
Appellant LO (Father) appeals from the "Amended Order Denying
[Father]'s Motion and Declaration for Post-Decree Relief, Filed
February 8, 2021" entered by the Family Court of the First
Circuit on July 20, 2021.1 For the reasons explained below, we
vacate the Amended Order and remand to the family court for
further proceedings.
Father and Defendant-Appellee NO (Mother) were married
in 2014. Their child (Child) was born in 2015. Father filed for
divorce in 2016. After a four-day trial, a Divorce Decree was
1
The Honorable Brian A. Costa presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
entered on May 20, 2019.2 Father was granted sole physical
custody of Child subject to Mother's right to visitation. The
Divorce Decree contained a "Basic Timesharing Schedule" that
provided:
i. Mother shall have the child on the weekends (except
the third weekend of a month) from a pick-up after school on
Friday to drop-off before school on Monday morning.
ii. On the third weekend of the month, Father shall have
the child. The third weekend of a month is designated by
the third Friday that falls under said month.
iii. If the child does not have school on the Friday of
Mother's weekend, Mother shall pick-up the child at school
at school [sic] on Thursday and shall drop-off the child at
school Monday morning.
iv. If the child does not have school on the Monday
following Mother's weekends, Mother shall have visitation
until Tuesday morning where [sic] she will drop-of [sic] the
child at school.
v. Mother shall ensure that the child arrives on time for
school.
(emphasis added). The Basic Timesharing Schedule was subject to
a "Holiday/Special Day Schedule" for Easter Sunday, Mother's Day,
Father's Day, Fourth of July, Thanksgiving Day, Christmas Day,
and New Year's Day. The Holiday/Special Day Schedule did not
mention summer vacation.
Mother appealed from the Divorce Decree.3 While
Mother's appeal was pending, Mother filed a motion for post-
decree relief with the family court. Mother's motion stated
(among other things):
Currently the [Divorce] Decree does not provide for any
Summer [sic] vacation visitation. This is not in [Child]'s
best interests.
2
The Honorable Kevin T. Morikone presided over the trial and
entered the Divorce Decree.
3
We affirmed. LO v. NO, No. CAAP-XX-XXXXXXX, 2020 WL 589201 (Haw.
App. Feb. 6, 2020) (mem.). Mother petitioned for certiorari. The supreme
court affirmed. L.R.O. v. N.D.O., 148 Hawai#i 336, 475 P.3d 1167 (2020).
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Mother later "withdrew her request to include Summer [sic]
visitation" due to her pending appeal from the Divorce Decree.
The order on Mother's motion for post-decree relief4 did not
mention summer vacation visitation.5
Father filed his own motion for post-decree relief.
His motion stated (among other things):
The minor child is home schooled with [Father]. [Mother]
must be ordered to bring the minor child back to [Father] on
Sunday not Tuesday. Pick up and drop off at Father's
residence.
By order entered on December 29, 2020, the family court6 modified
the Basic Timesharing Schedule in the Divorce Decree:
The drop off for the minor child by [Mother] from her
visitation shall be at the Navy Credit Union on Radford
Drive Pearl Harbor as long as the minor child is being home
schooled. Drop off on Monday mornings shall be at 9:00 A.M.
If the official Hawaii school calendar schedules a Monday
holiday subsequent to [Mother]'s weekend visitation, the
child shall be dropped off on Tuesday at 9:00 A.M. at the
same location pursuant to the parties' divorce decree.
All prior orders not inconsistent with this order will
remain in effect.
(emphasis added). Thus, the December 29, 2020 Order modified the
drop-off location because Child had become home-schooled. The
December 29, 2020 Order also referenced the "official Hawaii
school calendar" to determine whether a given Monday was a school
holiday for Mother's drop-off purposes. The December 29, 2020
Order did not specify how to determine whether a given Friday
would be considered a holiday for purposes of Mother's pick-up of
Child, or where that pick-up location would be. The December 29,
2020 Order also did not mention summer vacation — in other words,
the December 29, 2020 Order did not add any provision for
4
The Honorable Jessi L.K. Hall presided.
5
Father appealed. We affirmed. LO v. NO, No. CAAP-XX-XXXXXXX,
2020 WL 4700894 (Haw. App. Aug. 13, 2020) (SDO). Father did not petition for
certiorari.
6
The Honorable Brian A. Costa presided.
3
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Mother's visitation over summer vacation. Neither party appealed
from the December 29, 2020 Order.
On February 8, 2021, Father filed the motion for post-
decree relief that gave rise to this appeal. The motion sought
to address the Friday school holiday issue not addressed by the
December 29, 2020 Order:
Clarify Visitation [sic] with Mother to pick up child on
Fridays 300PM , [sic] and return child on Sunday at 5 pm[.]
Pick up Thursday and drop off Tuesday only to happen on
holidays while school in session.
. . . .
. . . Mother should not have the child Thursday and Monday
on school breaks.
Father's motion was heard on April 14, 2021. The
following exchange took place:
THE COURT: . . . So what I want to know, [Father's
counsel], is if you are seeking a modification of the order.
[FATHER'S COUNSEL]: No. We're not seeking a
modification. We're seeking the enforcement of the order.
THE COURT: Okay. And you understand if we proceed on
that basis, I'm going to hold you to that?
[FATHER'S COUNSEL]: Yes.
The family court entered an order denying Father's
motion on June 8, 2021.7 Father filed a timely notice of appeal
on June 23, 2021. On July 20, 2021, the family court entered the
Amended Order denying Father's motion pursuant to Rule 60(a) of
the Hawai#i Family Court Rules (HFCR).8 The Amended Order
stated, in relevant part:
7
The Honorable Brian A. Costa presided.
8
The family court had jurisdiction to enter the July 20, 2021
Amended Order, notwithstanding the filing of Father's notice of appeal on
June 23, 2021, because Father's appeal was not docketed until August 9, 2021.
See HFCR Rule 60(a) ("During the pendency of an appeal, [clerical] mistakes
[in an order] may be so corrected before the appeal is docketed[.]");
Rule 2.1(b) of the Hawai#i Rules of Appellate Procedure (HRAP) ("'[D]ocketed'
means the record from a court or agency is filed in the appellate courts.).
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[Father]'s motion filed 2/8/21 is denied. The court
determines page 4 of the divorce decree [the Basic
Timesharing Schedule] is plain in its interpretation within
the four corners of the document, and not ambiguous.
[Mother] is entitled to have visitation during her weekends
with the minor child from Thursday night until Tuesday
morning in the summer while school is not in session. All
prior orders not inconsistent with this order shall remain
in full force and effect.
(emphasis added). The family court entered findings of fact and
conclusions of law, also on July 20, 2021.
Father's opening brief states five points of error:
"1. The lower court erred when he [sic] failed to
confer with the trial judge to obtain
clarification of the trial judge's decision
and/or divorce decree";
"2. The lower court erred when it found the
divorce decree to be unambiguous and should
only be interpreted within the four corners
of the decree document";
"3. The lower court erred when it failed to apply
the best interest of the minor child standard
in deciding a custody and/or visitation issue
before the court[, ]but rather applied a rule
of mechanical construction";
"4. The lower court erred when it did not
consider the report of the Custody Evaluator
that was relied upon by the trial court, and
received in evidence[, ]in the trial court
making it's [sic] decision for [Mother] to
have three weekends of visitation per month
Friday until Monday[, ]and when school was in
session, Thursday till Tuesday, if there was
no school on Friday or Monday"; and
"5. The lower court erred when it failed as a
matter of law to determine the intent of the
trial court, and and [sic] consider other
evidence in construing the terms of the
divorce decree."
Father contends that the family court erred when it
found the Divorce Decree to be unambiguous. "The interpretation
or construction of a judgment, decree, or order presents a
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question of law and is reviewable de novo under the right/wrong
standard of review[.]" Herrmann v. Herrmann, 138 Hawai#i 144,
152, 378 P.3d 860, 868 (2016) (cleaned up). We are not bound by
the family court's interpretation of the Divorce Decree.
Jendrusch v. Jendrusch, 1 Haw. App. 605, 609, 623 P.2d 893, 897
(1981).
The family court did not err by concluding that the
Divorce Decree was unambiguous, but it did err in concluding that
under the Divorce Decree Mother "is entitled to have visitation
during her weekends with the minor child from Thursday night
until Tuesday morning in the summer while school is not in
session" (emphasis added).
The family court made the following findings of fact,
which are actually conclusions of law that we review under the
right/wrong standard, Est. of Klink ex rel. Klink v. State, 113
Hawai#i 332, 351, 152 P.3d 504, 523 (2007):
35. The Basic Timesharing Schedule provision in the
Divorce Decree and the requirement to utilize the Hawai#i
school calendar contained in the December 29, 2020 Order are
clear and unambiguous.
These conclusions were right; once Child became home-schooled,
Mother's Monday/Tuesday drop-offs were to be determined based on
the "official Hawaii school calendar[.]"
The family court also made the following finding of
fact, which was actually a conclusion of law:
36. The Basic Timesharing Schedule applies during
the summer break.
This conclusion was wrong. The Divorce Decree's Basic
Timesharing Schedule did not allow Mother visitation during
summer vacation; this was acknowledged by Mother's motion for
post-decree relief. The December 29, 2020 Order modified the
drop-off location (from Child's school to the Navy Credit Union)
because Child had become home-schooled. The December 29, 2020
Order also referenced the "official Hawaii school calendar" to
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determine whether a given Monday was a school holiday for
Mother's drop-off purposes.9 The December 29, 2020 Order also
did not mention summer vacation — in other words, the December
29, 2020 Order did not add any provision for Mother's visitation
over summer vacation.
Based upon the record, we conclude that the family
court's denial of Father's February 8, 2021 motion for post-
decree relief — which Father stipulated during oral argument
requested "clarification," not "modification," of the
December 29, 2020 Order — was based on the erroneous conclusion
that the Divorce Decree's Basic Timesharing Schedule and the
December 29, 2020 Order allowed Mother weekend visitation "from
Thursday night until Tuesday morning in the summer while school
is not in session" based on "the official Hawaii school
calendar." We need not address Father's other points of error.
Based upon the unambiguous terms in the Divorce Decree
and the December 29, 2020 Order, the family court should have
denied Father's February 8, 2021 motion (for clarification, not
modification, of the December 29, 2020 Order) because the
December 29, 2020 Order did not specify how to determine whether
a given Friday would be considered a holiday for purposes of
Mother's pick-up of Child, or where that pick-up location would
be once Child became home-schooled; in other words, there was
nothing to clarify. The family court's July 20, 2021 Amended
Order, stating that Mother "is entitled to have visitation during
her weekends with the minor child from Thursday night until
Tuesday morning in the summer while school is not in session" is
vacated. On remand, the family court should enter an order
denying Father's February 8, 2021 motion for post-decree relief
consistent with this summary disposition order.
9
The December 29, 2020 Order did not specify how to determine
whether a given Friday would be considered a holiday for purposes of Mother's
pick-up of Child, or where that pick-up location would be.
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
For the foregoing reasons, we vacate the family court's
July 20, 2021 Amended Order and remand to the family court for
further proceedings consistent with this summary disposition
order.
DATED: Honolulu, Hawai#i, April 27, 2022.
On the briefs:
/s/ Katherine G. Leonard
Scot Stuart Brower, Presiding Judge
for Plaintiff-Appellant.
/s/ Keith K. Hiraoka
Michael A. Glenn, Associate Judge
for Defendant-Appellee.
/s/ Karen T. Nakasone
Associate Judge
8