DJ v. CJ ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-NOV-2022
08:12 AM
Dkt. 58 ODSLJ
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DJ, Plaintiff-Appellant, v.
CJ, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FD-C NO. 12-1-6689 )
ORDER DISMISSING APPEAL AS MOOT
(By: Ginoza, Chief Judge, Leonard and Chan, JJ.)
Plaintiff-Appellant DJ (Father) appeals from the August
12, 2021 "Order Re: Defendant's Ex Parte Motion to Shorten Time
to Hear Defendant's Emergency Motion for the Immediate Return of
Children" (8/12/21 Order) entered by the Family Court of the
First Circuit (Family Court).1 The 8/12/21 Order required that
Father return his two minor children, RJ and CJ (Children), to
Defendant-Appellee CJ, nka, CT (Mother) and awarded Mother
reasonable expenses incurred in the matter, including attorney's
fees and any other costs.
On appeal, Father contends the Family Court erred in
granting "[Mother's] Ex Parte Motion for the Immediate Return of
the Children or, Alternatively, to Shorten Time to Hear
Defendant's Emergency Motion for the Immediate Return of
Children" (Mother's ex parte Motion) by: (1) denying him an
opportunity to be heard thereby disregarding rules of principles
1
The Honorable Bryant Zane presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
of law or practice to Father's substantial detriment and
violating Father's due process rights; and (2) failing to inquire
as to the Children's changed circumstances and failing to
consider the Children's best interests in its 8/12/21 Order. In
particular, Father asserts the Family Court issued the 8/12/21
Order before Father could file a petition for restraining order
in a separate action, which he eventually filed on August 16,
2021, where he raised issues about the safety and well-being of
the children.
We conclude this appeal must be dismissed on grounds of
mootness.
I. Background
Father does not challenge the Family Court's September
27, 2021 "Findings of Fact and Conclusions of Law" (FOFs/COLs).
The unchallenged FOFs are thus binding on appeal. In re Doe, 99
Hawai#i 522, 538, 57 P.3d 447, 463 (2002).
Related to its 8/12/21 Order, the Family Court made the
following FOFs:
. . . .
2. [Father] and [Mother] (collectively, the "parties") are
the natural parents of [the Children];
3. The parties were divorced on October 25, 2012;
4. On February 1, 2016, Mother filed a Motion for Post
Decree Relief, wherein she requested relocation of the
Children to North Carolina;
5. A trial on Mother's relocation motion was held on
September 30, 2016, and the Family Court thereafter granted
Mother's request to relocate the Children;
6. Father appealed the Family Court's order granting
relocation. That appeal culminated in a decision vacating
the order and remanding to the Family Court;
7. On remand to the Family Court, Father filed further
motions regarding custody of the Children. Those motions
were heard on July 22, 2020, before the Honorable Kevin T.
Morikone;
. . . .
12. A settlement conference with the court was scheduled for
March 16, 2021;
13. Prior to the settlement conference, the parties, through
counsel, negotiated an agreement that addressed the issues
of custody and visitation;
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
14. On March 15, 2021, Father's counsel submitted for the
court's approval an order stating, inter alia, that:
a. The parties have reached an agreement that fully
addresses the motions set for hearing on 3/16/21;
b. The hearing set for March 16, 2021 is removed from
calendar;
c. All prior consistent orders to remain in full force
and effect, and;
d. [The Settlement] Agreement is attached as Exhibit
A.
15. Attached to the March 15, 2021, submission was a
"Stipulation and Order" prepared by Father's counsel. The
Stipulation and Order was signed by both parties as well as
counsel for each party;
16. The Stipulation and Order provided that "the parties
believe it is in the best interest of the children to avoid
further litigation on the pending Motions";
17. The Stipulation and Order provided that Defendant-Mother
"is awarded physical custody of the minor children in
Greensboro, North Carolina .... ";
18. With respect to the Children's Summer Break, the
Stipulation and Order provided that the Children "shall
travel to Plaintiff's place of residence in Honolulu for
summer visitation" and that they "shall return no less than
one week (7 days) before school commences in the fall";
19. The March 16, 2021, settlement conference was taken off
calendar, and the order submitted on March 15, 2021, was
entered by the Court on March 22, 2021.
20. Thereafter, Father voiced his disagreement with the
Stipulation and Order but did not obtain a stay or
modification of the order, or otherwise obtain any other
order affecting custody of the Children;
21. The Children thereafter traveled to Hawai#i, and the
Court finds that the parties understood and intended that
the Children's travel to Hawai#i on or about June 2021 was
for the purpose of the Children visiting with Father during
the Children's Summer Break;
22. On April 23, 2021, Father's counsel filed a Motion for
Leave to Withdraw as Counsel for Plaintiff;
23. On May 5, 2021, Plaintiff-Father, without his attorney,
filed, among other motions, his Motion to Set Aside
Stipulation and Order which was denied by the Court on July
13, 2021;
24. On July 16, 2021, Father pro se filed an Objection to
the Court denying his Motion to Set Aside Stipulation and
Order;
25. On July 27, 2021, Father pro se filed, among other
motions, a second Motion to Set Aside Stipulation and Order;
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
26. Both the Objection and the second Motion to Set Aside
Stipulation and Order were heard on September 1, 2021 and
both were denied;
27. On June 24, 2021, a hearing was held in connection with
Father's counsel's Motion for Leave to Withdraw as Counsel.
At the hearing Father again voiced his disagreement with the
Stipulation and Order. The Court informed Father of the
Court's position that the Children were present in Hawai#i
only for the purpose of summer visitation, and were expected
to return to North Carolina no later than seven days before
the first day of the 2021-2022 school year;
28. On June 24, 2021, the Court ordered that "[a]bsent
further order of the court the children shall return to
Defendant in North Carolina no later than seven days before
the first day of the 2021/2022 school year.";
29. Father did not obtain any stay or modification of the
June 24, 2021 order;
30. On July 2, 2021, the Court held a conference, during
which the Court explained that Stipulation and Order signed
by the parties and attached to the March 22, 2021, order was
the controlling custody determination;
31. On July 26, 2021, the Court conducted a further
conference in which it was explained to Father that the
Stipulation and Order remained the operative and controlling
custody determination;
32. On July 27, 2021, the Court signed and filed the
Stipulation and Order as a separate document, apart from the
March 22, 2021 order to which it had previously been
attached;
33. Father did not obtain any stay or modification of the
Stipulation and Order, either in connection with the March
22, 2021 order or following the entry of the Stipulation and
Order as a standalone document;
34. Based on the foregoing, the Court finds that Father had
ample notice of both the terms and the effect of the
Stipulation and Order.
35. Separately, the Court finds that Father had sufficient
notice and understanding of the Court's prior orders and the
requirement that the Children return to North Carolina no
later than seven days prior to the start of the 2021-2022
school year;
36. The start of the Children's school year in North
Carolina was August 23, 2021, and based upon the Court's
previous orders, the Children were to arrive back in North
Carolina by no later than August 16, 2021;
37. On August 12, 2021, Defendant's Ex-Parte Motion for the
Immediate Return of the Children or, Alternatively, to
Shorten Time to Hear Defendant's Emergency Motion for the
Immediate Return of the Children ("Defendant-Mother's
Motion") was considered by this Court;
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
38. Defendant-Mother's Motion contained credible
representations that indicated Plaintiff-Father would not
abide by the previous orders of the Court to return the
Children to North Carolina one week prior to the start of
school;
39. Based upon the credible representations made in
Defendant-Mother's Motion including Mother's counsel's
declaration and also considering the Court's observation of
Father's general opposition [to] the Court's previous orders
to return the Children to North Carolina, this Court
believed Father would not voluntarily return the Children to
North Carolina by August 16, 2021;
40. On August 12, 2021, this Court granted Defendant-
Mother's requested relief for immediate return of the
Children without hearing which rendered moot the alternative
requested relief to shorten time for hearing. This Court
also awarded reasonable costs incurred;
41. Mother's action to secure timely return of the Children
to North Carolina was reasonably necessary and
appropriate[.]
(Emphases and some brackets added.)
II. Discussion
The Hawai#i Supreme Court has explained that
"[m]ootness is one aspect of this court's prudential rules of
justiciability concerned with ensuring the adjudication of live
controversies." Doe v. Doe, 116 Hawai#i 323, 326, 172 P.3d 1067,
1070 (2007). It is well-established that,
a case is moot where the question to be determined is
abstract and does not rest on existing facts or rights.
Thus, the mootness doctrine is properly invoked where
"events" have so affected the relations between the parties
that the two conditions for justiciability relevant on
appeal—adverse interest and effective remedy—have been
compromised.
Id. (brackets, ellipsis and citation omitted). Finally,
a case is moot if it has lost its character as a present,
live controversy of the kind that must exist if courts are
to avoid advisory opinions on abstract propositions of law.
The rule is one of the prudential rules of judicial
self-governance founded in concern about the proper—and
properly limited—role of the courts in a democratic society.
We have said the suit must remain alive throughout the
course of litigation to the moment of final appellate
disposition to escape the mootness bar.
Id. (brackets and citation omitted). "In sum, a case is moot if
the reviewing court can no longer grant effective relief." Id.(quotation marks, brackets, and citation omitted).
In her answering brief, Mother contends that Father's
appeal "relates only to the Family Court's enforcement of the
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
unchallenged requirement that Father return the Children to their
home in North Carolina ahead of the upcoming school year."
Therefore, Mother argues that Father's appeal is moot because the
8/12/21 Order did not change the Family Court's prior custody
determination and there is no effective relief available to
Father because the Children returned to North Carolina. We
agree.
Father does not argue that an exception to the mootness
doctrine applies in this case. See Hamilton ex rel. Lethem v.
Lethem, 119 Hawai#i 1, 5, 10, 193 P.3d 839, 843, 848 (2008)
(explaining the Hawai#i Supreme Court has recognized the public
interest exception, the "capable of repetition, yet evading
review" exception, and adopting the collateral consequences
exception). Rather, in his reply brief, Father argues that the
"meaningful relief" available to him is custody of the Children
back in Hawai#i. In his opening brief, Father similarly requests
that we order the Family Court "to issue an order for the
immediate return of the children to [Father]," and an order to
the Family Court to "conduct a proper hearing regarding custody
of the children[.]" (Emphasis added.)
However, this is not an appeal from the March 22, 2021
Stipulation and Order which set forth the Family Court's
determination of custody. Accordingly, we do not have appellate
jurisdiction to address the Stipulation and Order of custody
previously issued by the Family Court. Instead, Father appeals
only from the 8/12/21 Order which required Father to return the
Children to Mother's representatives in Hawai#i "by no later than
12:00 noon on August 14, 2021[,]" and awarded Mother attorney's
fees and costs incurred in the matter. Father does not provide
any cogent argument that the 8/12/21 Order limited his right to
visitation or otherwise changed the Family Court's orders
regarding custody and visitation. Rather, the 8/12/21 Order was
enforcing the existing custody order in the case under the March
22, 2021 Stipulation and Order.
The unchallenged FOFs state, inter alia, "[t]he start
of the Children's school year in North Carolina was August 23,
2021, and based upon the Court's previous orders, the Children
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
were to arrive back in North Carolina by no later than August 16,
2021[.]" In support of Mother's ex parte Motion, Mother's
counsel attested that Mother "purchased airline tickets for the
children to depart Honolulu on August 15, 2021, and arriving in
North Carolina on August 16, 2021[.]" The parties do not dispute
that the Children returned to North Carolina pursuant to the
8/12/21 Order. The 8/12/21 Order did not otherwise affect the
Family Court's determination regarding custody and visitation,
and this Court cannot grant Father the relief he seeks, because
he seeks custody and the immediate return of the Children to
Hawai#i. In other words, Father seeks to challenge the March 22,
2021 Stipulation and Order, which is not the order from which he
appealed. Further, to the extent that Father references a
petition for a restraining order in another case that he filed on
August 16, 2021, after the 8/12/21 Order was issued in this case,
that matter is not before us in this appeal.
Finally, Father does not challenge the award of
attorney's fees and costs to Mother set forth in the 8/12/21
Order.
There is no effective remedy available to Father in
this appeal and therefore the appeal is moot.
III. Conclusion
For the reasons set forth above, this appeal is
dismissed as moot.
DATED: Honolulu, Hawai#i, November 16, 2022.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Derrick H.M. Chan
Associate Judge
7