KR v. TR

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-AUG-2020
07:47 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
KR, Plaintiff-Appellant,
v.
TR, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(Case No. FC-D No. 17-1-6978)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
Plaintiff-Appellant KR (Father) appeals from the
"Decision and Order re Extended Hearing" (Post-Decree Order)
entered by the Family Court of the First Circuit1 on August 27,
2019. For the reasons explained below, we affirm the Post-Decree
Order.
BACKGROUND
Father and Defendant-Appellee TR (Mother) were married
and had one child (Child). Father filed for divorce on June 13,
2017. The family court appointed Barbara Higa Rogers, PsyD.,
LCSW, as custody evaluator. Dr. Rogers submitted her custody
evaluation on November 16, 2017. The Divorce Decree was entered
1
The Honorable Na#unanikina#u A. Kamali#i presided.
on February 27, 2018.2 Father and Mother were awarded joint
legal and physical custody of Child.
On April 22, 2019, Mother filed a motion for post-
decree relief. Mother stated that she intended to temporarily
relocate to North Carolina, and requested that Father be the
"educational parent"3 subject to a proposed long-distance co-
parenting plan. On May 29, 2019, Father filed a motion for post-
decree relief. Father requested sole legal and physical custody
of Child, "subject to Mother's visitation on the island of
[O#ahu]."
Evidentiary hearings on both motions were conducted on
June 6, June 21, and July 5, 2019. The family court entered the
Post-Decree Order on August 27, 2019. By that time, Mother had
relocated. The Post-Decree Order provided, in relevant part:
D. The Court finds credible Mother's testimony that she moved
to North Carolina on a temporary basis to give birth to a
newly conceived child,[4] attend school and secure
employment while she furthers her education and increases
career options;
. . . .
The disputed issues raised in Mother's Motion and
Father's Motion are as follows:
1. Legal custody; [and]
2. Physical custody (The parties agree that Father will
have physical custody while Mother resides outside of
Hawaii)[.]
. . . .
NOW THEREFORE, in the best interest of the child, the Court
hereby orders that Mother's Motion and Father's Motion are granted
in part and denied in part as follows:
I. LEGAL CUSTODY and PHYSICAL CUSTODY WHILE MOTHER RESIDES IN
THE STATE OF HAWAII
2
The Honorable Kevin A. Souza signed the Divorce Decree.
3
Mother clarified that Father being the "educational parent" meant
that Father will make decisions regarding Child's education in Hawai#i while
Mother is temporarily in North Carolina.
4
Father is not the biological father of the child expected by
Mother.
2
When Mother moves back to and resides in the State of Hawaii,
legal and physical custody shall be consistent with the provisions
regarding legal custody, physical custody and visitation as provided in
the Divorce Decree filed February 27, 2018.
II. LEGAL CUSTODY and PHYSICAL CUSTODY WHILE MOTHER RESIDES IN
NORTH CAROLINA
A. Legal Custody. Mother and Father shall share joint
legal custody of [Child] while Mother is in North Carolina. The
Parties shall resolve Joint [sic] legal custody issues that arise
while Defendant/Mother resides in North Carolina in the following
manner: 1) the Parties shall first consult each other on legal
custody issues in a civil and amicable manner through Our Family
Wizard (OFW), as set forth in section A. 6. Below; 2) obtain both
parties input on the major decisions regarding the child and 3)
provide a record of their communication in OFW for counselors or
other professionals to review if they seek their assistance.
1. Decision Making. . . .
. . . .
2. Joint Communication/Co-Parenting. . . .
. . . .
3. Contact Information. . . .
4. [Child]'s Family/sitter's Contact. . . .
. . . .
5. Respectful [L]anguage. . . .
6. Our Family Wizard. . . .
. . . .
B. Physical Custody[.] The Court orders that, by
agreement of the parties, so long as Mother temporarily resides in
North Carolina, Father is awarded sole physical custody of
[Child], subject to Mother's rights of reasonable visitation.
Mother shall have unlimited telephone, SKYPE, FaceTime contact
directly with the child at reasonable hours taking into
consideration the child's scheduled activities or planned events.
If [Child] so desires, the parties shall facilitate his exercise
of unlimited telephone, SKYPE or FaceTime contact with the other
parent at reasonable hours.
(Footnote added.)
Father filed a notice of appeal from the Post-Decree
Order on September 25, 2019. The family court entered findings
of fact and conclusions of law on November 25, 2019.
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DISCUSSION
[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)
(citation omitted). Father's opening brief contains five points
of error,5 but argues only two.
1. Father contends that the family court erred by not
awarding him sole legal custody of Child, or at least giving him
"tie-breaking authority" (the functional equivalent). We
disagree.
Father argues that because he has sole physical custody
of Child while Mother is in North Carolina, he should also have
sole legal custody because he and Mother "don't agree on anything
and we would be bringing every matter to the court." The only
legal authority cited by Father for his being given sole legal
custody or tie-breaking authority is language from our opinion in
PO v. JS, 138 Hawai#i 109, 377 P.3d 50 (App. 2016), vacated in
part on other grounds, 139 Hawai#i 434, 393 P.3d 986 (2017).6
There, we acknowledged having "held that an extraordinarily high
level of conflict between parents . . . qualifies as a material
change in circumstances" warranting modification of child custody
and visitation provisions. Id. at 119, 377 P.3d at 60 (cleaned
up). To that end, Father challenges the following findings of
fact made by the family court:
19. The parties have a history of disfunction [sic] and
disagreement yet were able to communicate concerning
joint legal major decisions concerning the child.
5
Father's statement of the points of error does not comply with
Rule 28(b)(4) of the Hawai#i Rules of Appellate Procedure.
6
Father's opening brief fails to completely cite PO v. JS, and
provides an incorrect pin cite for the language quoted in the brief.
4
. . . .
27. Since Mother's decision to relocate to North Carolina,
the parties' direct communication and communication
through third parties was frustrated by Father.
(Underscoring added.) The family court also found, and Father
does not challenge, that
58. Father intentionally "blocked" Mother's number from
calling Father's phone so that she was not able to
have any contact with [Child] directly through Father.
. . . .
60. Father refuses to communicate directly with Mother.
61. Based on the credible testimony of both parties,
Father has been disparaging and demeaning in his
communication towards Mother.
. . . .
67. It is in the child's best interest that the parties
engage in respectful co-parenting.
(Underscoring added.)
The findings of fact challenged by Father 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 Fisher, 111 Hawai#i at
46, 137 P.3d at 360. And, as the Hawai#i Supreme Court has noted,
"there are legitimate interests in preventing continued
relitigation of issues and reducing repetitive motions. However,
the family courts have various tools at their disposal to address
such situations[.]" Waldecker v. O'Scanlon, 137 Hawai#i 460, 470,
375 P.3d 239, 249 (2016). Father has not shown that the family
court abused its discretion by not modifying the joint legal
custody provisions in the Divorce Decree.
Father also challenges the following conclusion of law
made by the family court:
22. Based on the Court's Findings of Fact set forth above,
the Court concludes that the sixteen factors set forth
in HRS § 57l-46(b), [sic] in determining custody and
visitation in the best interest of the child are
satisfied by this Court's Order.
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Conclusion of law no. 22 is actually a mixed determination of
fact and law. 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 individual case. Estate of Klink
ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523
(2007). 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. The family
court's findings of fact were supported by substantial evidence
in the record. See Fisher, 111 Hawai#i at 46, 137 P.3d at 360.
We hold that the family court correctly applied Hawaii Revised
Statutes (HRS) § 571-46 (2018) to those facts.
2. Father also contends that the family court erred
by "ordering father's sole physical custody be automatically
converted to joint physical custody upon a potential, years-in-
the-future relocation by mother." We disagree.
Father's brief quotes a pre-evidentiary-hearing
exchange between the family court, Mother's counsel, and Mother
to argue that a stipulated award of sole physical custody to
Father would "NOT [be] a temporary order[.]" But the Post-Decree
Order never awarded permanent physical custody to Father; it
referred to the parties' agreement that Father have sole physical
custody "so long as Mother temporarily resides in North
Carolina[.]" (Underscoring added.) The record indicates that
the family court's pre-evidentiary-hearing inclination changed
after hearing the testimony and weighing the credibility of the
witnesses. The Post-Decree Order recites the Divorce Decree
provisions awarding the parties joint physical custody of Child,
and states that Mother's temporary relocation to North Carolina
warranted modification of that provision. The Post-Decree Order
also recites that the family court found Mother's testimony that
she moved to North Carolina on a temporary basis to give birth to
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a newly conceived child, attend school and secure employment
while she furthered her education to increase her career options,
and that she intends to return to Hawai#i within approximately
three years, to be credible. "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." Fisher, 111 Hawai#i at 46, 137
P.3d at 360 (citation omitted).
Father challenges the following conclusions of law:
5. The Court notes that the child will continue to reside
in Hawai#i when Mother relocates and confirms in the
best interest of the child, the award of joint legal
custody and joint physical custody under the [Divorce]
Decree, when Mother resides in Hawai#i.
6. The Court determines that in view of Mother's
temporary relocation to North Carolina, it is in the
best interest of the child to require or justify the
modification or change in physical custody as agreed
by the parties, from a joint physical custody schedule
to sole physical with Father, subject to Mother's
rights of reasonable visitation during the temporary
three-year period of Mother's relocation.
(Italics in original, underscoring added.) We hold that the
family court correctly applied the facts that it found – which
were not clearly erroneous – to the applicable law by awarding
sole physical custody to Father while Mother temporarily resides
in North Carolina, and returning the parties to the custody
status quo under the Divorce Decree upon Mother's return to
Hawai#i.
Father argues that "any future change of custody based
on any relocation of Mother [to Hawai#i] must be rightfully and
understandably based upon Mother improving herself significantly
from her current situation and proving herself to Father . . . .
The future change of custody would require a future change in
Mother[.]" Any "future change in Mother" – for better or worse –
could form the basis for a modification of custody provisions
under HRS § 571-46.l(c) (2018) if a change would be "in the best
interests of the child." The statute provides, in relevant part:
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(c) Any order for joint custody may be modified or
terminated upon the petition of one or both parents or on
the court's own motion if it is shown that the best
interests of the child require modification or termination
of the order.
Equally, any future change in Father could also form the basis
for a modification of custody provisions under HRS § 571-46.l(c).
Based on the record, we hold that the family court did not abuse
its discretion by temporarily awarding sole physical custody of
Child to Father during Mother's temporary relocation to North
Carolina, and returning physical custody to the status quo under
the Divorce Decree upon Mother's return to Hawai#i.
CONCLUSION
For the foregoing reasons, the "Decision and Order re
Extended Hearing" entered by the Family Court of the First
Circuit on August 27, 2019, is affirmed.
Dated: Honolulu, Hawai#i, August 27, 2020.
On the briefs:
/s/ Lisa M. Ginoza
Michael A. Glenn, Chief Judge
for Plaintiff-Appellant.
/s/ Keith K. Hiraoka
David B. Leas, Associate Judge
for Defendant-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
8