WC v. TC ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-JUN-2023
07:51 AM
Dkt. 78 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
WC, Plaintiff-Appellee, v.
TC, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-D NO. 18-1-0355)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Wadsworth and Guidry, JJ.)
This case arises from the Family Court of the Second
Circuit's (Family Court)1 determination of child support and
requests for post-decree relief in a divorce proceeding between
self-represented Defendant-Appellant TC (Mother) and Plaintiff-
Appellee WC (Father). Mother appeals from orders entered by the
Family Court denying her request to modify her visitation with
the minor child (Child) of Mother and Father, awarding Father
attorney's fees, and granting child support to Father.2
1
The Honorable James R. Rouse presided.
2
In a prior appeal, WC v. TC, No. CAAP-XX-XXXXXXX, 2022 WL 342944, *1
(Haw. App. Feb. 4, 2022), we dismissed Mother's appeal from the Family Court's
June 23, 2021 order, which had denied Mother's motion seeking unsupervised
visitation and awarded Father attorney's fees. We dismissed on the basis that
child support had not yet been decided and thus the Divorce Decree was not yet
final as to child custody, visitation and support. Id. (citing Eaton v.
Eaton, 7 Haw. App. 111, 118-19, 748 P.2d 801, 805 (1987)).
On November 12, 2021, the Family Court entered an "Order Granting In-
Part Plaintiff's August 31, 2021 Motion and Affidavit for Post-Decree Relief"
(Order Granting Child Support). The Order Granting Child Support resolved
(continued...)
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On appeal, Mother appears to contend that the Family
Court erred by: (1) denying her request to modify supervised
visitation; (2) awarding Father attorney's fees related to her
request to modify visitation; (3) incorrectly calculating her
child support obligation because her monthly income is $800; (4)
violating her constitutionally protected parental rights by
ordering her to pay child support; (5) discriminating against
her; and (6) granting Father an extension of an Order for
Protection (TRO) against Mother and allowing Father to use the
TRO to alienate Mother from Child.3
For the reasons discussed below, we affirm in part and
vacate in part.
I. Brief Background
On December 5, 2019, the Family Court entered a Decree
Granting Absolute Divorce and Awarding Child Custody (Divorce
Decree), awarding Father sole legal and physical custody of
Child, with supervised visitation by Mother. The Divorce Decree
reserved the issues of child support and property division.
On May 19, 2021, Mother filed a Motion and Affidavit
for Post-Decree Relief (Mother's 5/19/21 Motion) seeking, inter
alia, unsupervised visitation with Child. On June 9, 2021,
Father filed an opposition to Mother's 5/19/21 Motion arguing,
inter alia, that in determining child custody, the Family Court
2
(...continued)
Father's request for child support. Because child support has now been
decided, we also have jurisdiction to address Mother's challenges to the June
23, 2021 order denying unsupervised visitation and awarding Father attorney's
fees.
3
Mother's opening brief does not comply with the requirements of
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 she 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
Mother's points and arguments to the extent they can be discerned and we are
able to address them.
2
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previously found Mother committed family violence,4 and Mother
failed to show a change in circumstances such that unsupervised
visitation is in the best interest of the child. Father also
requested attorney's fees incurred related to Mother's 5/19/21
Motion.
After a hearing on June 14, 2021, the Family Court
entered an "Order Denying [Mother's 5/19/21 Motion]" on June 23,
2021, denying Mother's request for unsupervised visitation. The
Family Court also determined Mother's 5/19/21 Motion was
frivolous and granted Father's request for attorney's fees and
costs. On July 12, 2021, the Family Court entered an order
awarding Father attorney's fees and costs in the amount of
$4,103.90.
On August 31, 2021, Father filed a Motion and Affidavit
for Post-Decree Relief (Father's Motion), seeking a commencement
of child support payments, enforcement of the attorney's fees
award, and an order setting trial on property division. Mother
did not file an opposition to Father's Motion.
On October 7, 2021, Mother filed documents, titled as a
"Certificate of Service," which included her Income and Expense
Statement dated September 15, 2021 (9/15/21 Income Statement),
and invoices related to her employment and supervised visitation.
On October 11, 2021, the Family Court held a hearing on
Father's Motion.5 On November 12, 2021, the Family Court entered
4
The Honorable Adrianne N. Heely presided.
5
Mother has not provided the transcript of the October 11, 2021
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." (brackets and citation omitted)). We are
thus hampered in our review related to Father's Motion. We attempt to address
Mother's contentions to the extent possible.
Although Mother attached a purported transcript for the October 11, 2021
hearing to her notice of appeal, she did not order a transcript pursuant to
HRAP Rule 10(b), and the transcript does not comport with HRAP Rule
10(b)(1)(G), which requires the court reporter to file transcripts in the
appeal. See HRAP Rule 10(b)(1)(G) ("Upon completion of each transcript and
receipt of payment, the court reporter shall file the transcript through JEFS
or JIMS[.]"). We are unable to consider the transcript submitted by Mother.
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the Order Granting Child Support ordering Mother to provide $429
per month in child support to Father commencing from the date of
Father's Motion. On December 29, 2021, the Family Court entered
Findings of Fact and Conclusions of Law (FOFs/COLs). In its
FOFs/COLs, the Family Court determined that based on Mother's
Income and Expense Statement signed on May 17, 2021, her gross
monthly income is $3,626.6
On April 6, 2023, Mother filed a "Statement of Case"
(4/6/23 Motion) in this appeal which appears to be a motion
requesting modification of the Family Court's visitation order in
the Divorce Decree. We address Mother's 4/6/23 Motion below.
II. Discussion
A. Visitation
Mother contends the Family Court erred in denying her
request to modify supervised visitation in Mother's 5/19/21
Motion. On appeal, Mother essentially argues that visitation
should have been changed because she complied with the Family
Court's orders by completing a psychological and drug evaluation.
In support of Mother's 5/19/21 Motion, Mother attested that she
also took parenting classes, was currently taking anger
management classes, and was working with a therapist.
"Generally, the family court possesses wide discretion
in making its decisions and those decisions will not be set aside
6
The Family Court's COLs state, in pertinent part,
14. The Court finds the child support guideline amount of
$429.00 per month is based on [Father's] gross monthly
income of $3,792.00 and [Mother's] gross monthly income of
$3,626.00.
15. The Court finds that [Mother's] income was determined
from her Income and Expense Statement that she signed on May
17, 2021 and attached to her May 19, 2021 Motion and
Affidavit for Post Decree Relief. Based on her income of
$2,426.00 and additional income of $1,200.00, her gross
monthly income totaled $3,626.00.
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unless there is a manifest abuse of discretion." Kakinami v.
Kakinami, 127 Hawai#i 126, 136, 276 P.3d 695, 705 (2012). The
family court's COLs are reviewed on appeal de novo, under the
right/wrong standard. Id.On August 17, 2021, the Family Court entered Findings
of Fact and Conclusions of Law (8/17/21 FOFs/COLs) in support of
the Order Denying Mother's 5/19/21 Motion. Mother does not make
any discernible argument challenging the Family Court's findings
of fact or conclusions of law.7
The Family Court found, inter alia, that in a separate
case involving the parties in FC-DA No. 18-1-0361, the Family
Court issued a two-year TRO against Mother that expired on July
27, 2020; the court in FC-DA No. 18-1-0361 found Mother's conduct
included psychological abuse which constituted family violence
under the definition of Hawaii Revised Statutes (HRS) § 571-2
(2018);8 the TRO was extended to July 27, 2021; and in the
instant case, after a trial on July 31, 2019, the Family Court
determined that awarding sole legal and physical custody to
Father was in the best interest of Child.9 Mother also does not
contest the Family Court's findings that, based on the credible
evidence at the July 31, 2019 trial, Mother had leaped off a
second-story balcony, slashed Father with a sharp object
7
Unchallenged findings of fact are binding on appeal. In re Doe, 99
Hawai#i 522, 538, 57 P.3d 447, 463 (2002).
8
HRS § 571-2 provides, in pertinent part:
"Family violence" means the occurrence of one or more
of the following acts by a family or household member, but
does not include acts of self-defense:
(1) Attempting to cause or causing physical harm to
another family or household member;
(2) Placing a family or household member in fear of
physical harm . . . .
9
The Honorable Adrianne N. Heely presided in FC-DA No. 18-1-0361 when
the TRO was issued and during the trial in this case on July 31, 2019.
The Honorable Douglas J. Sameshima presided in FC-DA No. 18-1-0361 when
the TRO was extended on June 26, 2020.
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requiring stitches and leaving Father with scars, and operated
and crashed a vehicle while Father and Child were occupants.
The Family Court ultimately determined that,
notwithstanding the exhibits and arguments in support of Mother's
5/19/21 Motion, Mother's request for unsupervised visits with
Child was not in Child's best interests.
Given the record, the Family Court did not abuse its
discretion in denying Mother's request for unsupervised
visitation.
B. Award of Attorney's Fees to Father
Mother argues the Family Court erred in granting Father
attorney's fees related to Mother's 5/19/21 Motion.
The Hawai#i Supreme Court has explained that "an award
of attorney's fees is in the sound discretion of the trial court,
limited only by the standard that it be fair and reasonable."
Hamilton v. Hamilton, 138 Hawai#i 185, 209, 378 P.3d 901, 925
(2016) (quoting Farias v. Farias, 58 Haw. 227, 233, 566 P.2d
1104, 1109 (1977)).
As explained above, the Family Court entered the
8/17/21 FOFs/COLs in support of the Order Denying Mother's
5/19/21 Motion. In the 8/17/21 FOFs/COLs, the Family Court cites
two grounds for granting Father's request for attorney's fees:
relying on HRS § 580-47(f) (2018);10 and also determining that
10
HRS § 580-47(f) provides, in pertinent part,
The court hearing any motion for orders either revising . .
. an order for the support and maintenance of one party by
the other, or a motion for an order to enforce any such
order or any order made under subsection (a) of this
section, may make such orders requiring either party to pay
or contribute to the payment of the attorney's fees, costs,
and expenses of the other party relating to such motion and
hearing as shall appear just and equitable after
consideration of the respective merits of the parties, the
relative abilities of the parties, the economic condition of
each party at the time of the hearing, the burdens imposed
upon either party for the benefit of the children of the
parties, the concealment of or failure to disclose income or
an asset, or violation of a restraining order issued under
section 580-10(a) or (b), if any, by either party, and all
other circumstances of the case.
(Emphasis added.)
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Mother's 5/19/21 Motion was frivolous under Doe v. Doe, 118
Hawai#i 268, 285, 188 P.3d 782, 799 (App. 2008). In Doe, this
court vacated an award of attorney's fees to a father, where the
family court had determined that the mother's actions had been
frivolous. We noted that HRS § 607-14.5 requires a finding "in
writing that all or a portion of the claims or defenses made by
the party are frivolous and are not reasonably supported by the
facts and the law in the civil action." Doe, 118 Hawai#i at 285,
188 P.3d at 799 (quoting HRS § 607-14.5(b) (2016)). We also
noted case law holding that a frivolous claim is a claim "so
manifestly and palpably without merit, so as to indicate bad
faith on [the pleader's] part such that argument to the court was
not required." Id. (citations and internal quotation marks
omitted). In Doe, notwithstanding the family court's
determination that the mother's actions were frivolous, we held
the record did not show that she acted in bad faith. Id.
In this case, the Family Court found, inter alia, that
Mother unilaterally stopped requesting visits with Child after
January 27, 2021; Father first attempted to resolve the issues
Mother raised in her motion, including unsupervised visitation,
without involving the Family Court; despite Father's efforts to
resolve these issues, Mother insisted on proceeding with a
hearing before reasonable efforts to settle these issues were
concluded; and Mother's 5/19/21 Motion was frivolous. The Family
Court also determined that Mother was previously warned by the
Family Court on December 20, 2019, "if there are any more motions
and it is considered a frivolous motion, the court agrees that
attorney's fees and costs shall issue at that time."
The Family Court found Mother's 5/19/21 Motion was
frivolous, but did not make specific findings that Mother's
claims were not reasonably supported by the facts and the law.
Moreover, there is no evidence in the record that Mother's
5/19/21 Motion was "so manifestly and palpably without merit, so
as to indicate bad faith on the pleader's part such that argument
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to the court was not required." Tagupa v. VIPDesk, 135 Hawai#i
468, 479-80, 353 P.3d 1010, 1021-22 (2015) (brackets and citation
omitted) (explaining that "[a] finding of frivolousness is a high
bar; it is not enough that a claim be without merit, there must
be a showing of bad faith.").
Although we have concluded that the Family Court did
not abuse its discretion in denying Mother's request for
unsupervised visits with Child, the record does not support a
finding that her motion was frivolous. In support of her motion,
Mother attested that supervised visits were becoming cost
prohibitive, she had been seeing and working with a therapist for
eight months, she had completed an online parenting course, and
also recently began anger management classes. Mother also
attached, inter alia, a letter dated May 10, 2021, from licensed
clinical psychologist, Giulietta Swenson, Psy.D. (Dr. Swenson).
Dr. Swenson stated, inter alia, that Mother initiated therapy in
October 2020 and attended eleven sessions; Mother is timely to
sessions and actively engaged in her treatment; in Dr. Swenson's
clinical opinion, Mother is stable to move in the direction of
unsupervised visits with Child; Mother has not exhibited any
suicidal ideation or safety risks during Dr. Swenson's treatment
of Mother; and Mother has been transparent in treatment and
understands the impact of her actions on Child.
To the extent the Family Court relied on HRS § 580-
47(f) to award attorney's fees and costs to Father, the court
should have addressed the economic condition of the parties.
Mother had attested that supervised visits with Child were
becoming cost-prohibitive, and that she agreed with Dr. Swenson's
recommendation of a "step-down" program leading to unsupervised
visits except Mother did not have funds for a Guardian Ad Litem
or a parent coordinator. Dr. Swenson's letter also noted that
Mother's visits with Child had stalled due to the cost. There is
no indication the Family Court considered the economic conditions
of the parties in awarding Father his requested attorney's fees
and costs in the amount of $4,103.90.
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We thus conclude the Family Court abused its discretion
in granting Father's request for attorney's fees.11
C. Child Support
Mother contends the Family Court erred in calculating
her child support obligation because her 9/15/21 Income Statement
shows she earns $800 per month. Mother argues that based on her
9/15/21 Income Statement, the "child support order amount was
over 70% of mothers [sic] [net] income and child support was not
based off the Child Support guidelines."12 We disagree.
In determining child support, the Family Court
considered the child support guideline worksheet Father submitted
in support of Father's Motion. Based on Mother's Income and
Expense Statement dated May 17, 2021, and Father's Income and
Expense Statement dated June 28, 2021, Father calculated Child's
support needs and the parties' support obligations. Mother did
not provide a child support guideline worksheet and did not
challenge Father's worksheet when she submitted her 9/15/21
Income Statement.
Although Mother argues that her 9/15/21 Income
Statement reflects she earns $800 per month, we agree with Father
that Mother's calculation of her monthly income is incorrect.
Based on her 9/15/21 Income Statement, it appears that Mother's
gross monthly income for September 2021, includes $1,115 in gross
monthly income from her part time job, $2,200 in rent relief from
Catholic Charities Hawaii, and $400 per week ($1,600 per month)
in assistance from her father, which totals $4,915.
11
We note that on February 14, 2023, the Family Court denied Father's
request for enforcement of the July 12, 2021 order and judgment awarding
attorney's fees.
12
Mother also argues that Father's income statement did not include
his rental income and improperly included expenses for his girlfriend and her
four children. As asserted by Father, Mother failed to raise this argument in
the Family Court. Thus, Mother has waived this argument by raising it for the
first time on appeal. Waldecker v. O'Scanlon, 137 Hawai#i 460, 466-67, 375
P.3d 239, 245-46 (2016) (citing Ass'n of Apt. Owners of Wailea Elua v. Wailea
Resort Co., 100 Hawai#i 97, 107, 58 P.3d 608, 618 (2002) ("Legal issues not
raised in the trial court are ordinarily deemed waived on appeal.")).
9
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Moreover, the Family Court based its child support
ruling on Mother's Income and Expense Statement dated May 17,
2021, in which Mother's gross monthly income totaled $3,626.00,
which is lower than the amount Mother reported in her 9/15/21
Income Statement. Further, Mother's argument that the child
support order was over 70% of her net income is likewise without
merit because $429 is not 70% of Mother's net income. As
asserted by Father, the Child Support Guidelines Table of Incomes
provides that given Mother's gross income of $3,626, her net
income was $1,735. Thus, Mother fails to show that the Family
Court erred in determining her income or in calculating her child
support obligation.
Mother argues for the first time on appeal that the
Family Court violated her constitutionally protected parental
rights by ordering her to pay child support. Because she did not
raise this issue below, Mother has waived this argument.
Waldecker, 137 Hawai#i at 466-67, 375 P.3d at 245-46.
With regard to Mother's contention that the Family
Court discriminated against her, Mother fails to provide any
argument. Other than disagreeing with the Family Court's
decisions, Mother fails to explain how the Family Court
discriminated against her or how the court erred. Therefore, we
need not address this contention. See HRAP Rule 28(b)(7)
("Points not argued may be deemed waived.").
D. Temporary Restraining Order
Mother contends the Family Court erred in granting
Father an extension of a TRO against her and allowing Father to
use the TRO to alienate Mother from Child. Mother fails to
adequately identify the TRO she challenges. There does not
appear to be a TRO in this case. Rather, Mother appears to
address issues she raised in FC-DA NO. 18-1-0361 and in her
appeal in that case, WC v. TC, NO. CAAP-XX-XXXXXXX, 2022 WL
2841693 (Haw. App. July 21, 2022).
Hence, Mother's arguments relating to a TRO are not
properly before us in this appeal and we do not address them.
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E. Mother's Motion to This Court for Visitation
Finally, we address the motion Mother filed in this
appeal. In her 4/6/23 Motion, Mother asserts she requested a
change to visitation and custody in the Family Court on February
8, 2023, while this appeal was pending.13 After a hearing on
March 6, 2023, the Family Court determined it lacked jurisdiction
while this appeal was pending and entered the "Order Denying
[Mother's] Motion for Post-Decree Relief" denying Mother's
request.14
Mother does not seek review of the Family Court's
order, but instead appears to request that we modify the Family
Court's Divorce Decree directly. Mother fails to cite to any
statute, court rule, or authority for this Court to directly
modify a Family Court's visitation ruling and we find none.
Further, the Family Court's ruling on Mother's February 8, 2023
Motion is not properly before us and we lack appellate
jurisdiction to address that ruling in this appeal.
III. Conclusion
Based on the foregoing, the Family Court of the Second
Circuit erred in awarding Father attorney's fees and costs.
Thus, the "Order Denying Defendant's May 19, 2021 Motion and
Affidavit for Post-Decree Relief" entered by the Family Court on
June 23, 2021, is vacated to the extent it awarded attorney's
fees to Father, and affirmed in all other respects. The "Order
and Judgment in Favor of [Father] and Against [Mother] for
Attorney's Fees and Costs" entered on July 12, 2021, is vacated.
The "Order Granting In-Part Plaintiff's August 31, 2021
Motion and Affidavit for Post-Decree Relief" entered on November
12, 2021, and the "Amended Order Re: Plaintiff's August 31, 2021
13
Mother requested her visitation be changed from supervised to
unsupervised and also requested that custody of Child change from Father to
Mother because Father's "behavior has shown his negligent malicious
interference with the mother and child relationship."
14
The Honorable Lance D. Collins presided.
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Motion and Affidavit for Post-Decree Relief" entered on February
14, 2023, are affirmed.
Finally, Mother's "Statement of Case" filed on April 6,
2023, which we construe as a motion to modify the "Decree
Granting Absolute Divorce and Awarding Child Custody" entered by
the Family Court on December 5, 2019, is dismissed for lack of
appellate jurisdiction.
DATED: Honolulu, Hawai#i, June 21, 2023.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
TC, Self-Represented
Defendant-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Alan Y. Okamoto,
Kleintop & Luria, LLP /s/ Kimberly T. Guidry
for Plaintiff-Appellee Associate Judge
12