NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-SEP-2020
08:07 AM
NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
(FC-DA NO. 17-1-2343)
JOHN H. PEREZ, Petitioner-Appellee, v.
MICHAEL HELIO PEREZ, Respondent-Appellant
AND
CAAP-XX-XXXXXXX
(FC-DA NO. 17-1-2344)
DENNIS J. PEREZ, Petitioner-Appellee, v.
MICHAEL HELIO PEREZ, Respondent-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
In this consolidated appeal, Respondent-Appellant
Michael Helio Perez (Michael) appeals from two Orders of
Protection entered on December 19, 2017, by the Family Court of
the First Circuit (Family Court),1 pursuant to which he was
prohibited from contacting his brothers, Petitioners-Appellees
John J. Perez (John) and Dennis J. Perez (Dennis), and prohibited
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The Hon. Catherine Remigio presided.
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from possessing firearms except under certain specified
circumstances, for a period of ten years.
Michael raises four points of error on appeal,
contending that the Family Court erred when it: (1) & (2)
entered the Orders of Protection in favor of John and Dennis; (3)
entered Conclusions of Law (COLs) 9, 13, 14, 15, and 16 in each
of the Orders of Protection; and (4) considered the contents of
the documents in a court file as evidence under the judicial
notice rule of evidence.2
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Michael's points of error as follows:
(1) Hawaii Revised Statutes (HRS) § 586–5.5 (2018)
authorizes a trial court to convert a temporary restraining order
into a longer-lasting protective order upon making certain
findings. See Styke v. Sotelo, 122 Hawai#i 485, 489 n.5, 228
P.3d 365, 369 n.5 (App. 2010). The statute states, in relevant
part:
If, after hearing all relevant evidence, the court finds
that the respondent has failed to show cause why the order
should not be continued and that a protective order is
necessary to prevent domestic abuse or a recurrence of
abuse, the court may order that a protective order be issued
for a further fixed reasonable period as the court deems
appropriate.
Domestic abuse is defined as "[p]hysical harm, bodily
injury, assault, or the threat of imminent physical harm, bodily
2
In each of the two Orders of Protection, COL 9 concerned the
taking of judicial notice, COLs 13-15 addressed the issuance of the respective
Order of Protection, and COL 16 addressed the period of the Order of
Protection. This Summary Disposition Order addresses these points by topic,
rather than as enumerated.
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injury, or assault, extreme psychological abuse or malicious
property damage between family or household members." HRS § 586-
1 (2018).
Under HRS § 586–5.5(a), the burden remains on the
petitioner to prove the underlying allegations by a preponderance
of the evidence. Kie v. McMahel, 91 Hawai#i 438, 442, 984 P.2d
1264, 1268 (App. 1999) (citation omitted).
Here, the Family Court concluded that "[a] protective
order is necessary to prevent domestic abuse or a recurrence of
abuse by [Michael]." Both Dennis and John testified, inter alia,
that Michael threatened to kill them, that they believed that
Michael is angry with them and harbors a grudge over the care of
their late mother, and the handling of her affairs, and that they
feared that he might use a gun against them. Both Dennis and
John, as well as Dr. Amy Brown, an unrelated witness who
described herself as someone who knew Michael through her work
and as a friend to Michael, testified that Michael had episodes
of auditory hallucinations in their presence and/or had described
his auditory hallucinations to them. The Family Court found and
concluded that the testimonies of John, Dennis, and Dr. Amy Brown
were credible. The Family Court found and concluded that
Michael's testimony, in which he disputed the other witnesses'
statements, was not credible.
"[I]t is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of the evidence; this is the province of the trier of
fact." DL v. CL, 146 Hawai#i 328, 336, 463 P.3d 985, 993 (2020)
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(citation omitted). "[W]here the trial court's determinations of
fact are largely dependent upon the resolution of conflicting
testimony, great weight will be accorded its findings upon
review." Kie, 91 Hawai#i at 444, 984 P.2d at 1270 (citation and
internal quotation marks omitted).
We conclude that the Family Court's findings of fact
were supported by the evidence before the court, and they were
not clearly erroneous. Thus, the Family Court did not err in
concluding that John and Dennis established by a preponderance of
evidence that the Orders of Protection were necessary to protect
them from physical harm.
(2) Michael argues that the Family Court erred when it
fixed the period of the Orders of Protection at "an incredible"
span of ten years. Nothing in HRS § 586-5.5(a) prescribes the
maximum length of a protective order, but rather it allows the
court to extend an order "for such further fixed reasonable
period as the court deems appropriate." John and Dennis's
counsel stated that John and Dennis wanted an order for "as long
as possible" and requested orders lasting fifteen years;
Michael's counsel requested three years. The Family Court
concluded that ten years was a "fixed, reasonable and appropriate
amount of time based on the facts and circumstances of this
case."
The Family Court had the discretion to determine the
length of the protective order. See Styke, 122 Hawai#i at 491,
228 P.3d at 371. "[G]iving the court 'the discretion to extend
protective orders' provides 'greater flexibility in trying to
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calm the emotionally charged nature of such situations.'" Id.
(citations omitted).
In Lite v. McClure, this court concluded that a family
court did not abuse its discretion when it issued an order of
protection for ten years. No. 29107, 2009 WL 1263099 (Haw. App.
May 8, 2009) (SDO). There, the petitioner had requested a no-
contact protective order for "[f]orever, as long as the Court
will allow." Id. at *2. The family court rejected Lite's
request for an "indefinite protective order," and instead issued
an order for "a fixed period of ten years." Id. We found "no
legal impediment to a term of ten years" and held that ten years
was not unreasonable, did not disregard the rules and principles
of law, and accordingly was not an abuse of discretion. Id.
Here, we similarly conclude that, under the facts and
circumstances of this case, especially the relationship and
history of the parties, a ten-year duration for the Orders of
Protection was not unreasonable, did not disregard the rules and
principles of law, and accordingly was not an abuse of
discretion.
(3) Michael argues that the Family Court erred by
taking judicial notice of the records and files in FC-DA No.
15-1-1530 (Rosanne Harrigan v. Michael H. Perez), FC-DA No.
17-1-3243 (John H. Perez v. Michael Helio Perez), and FC-DA No.
17-1-2344 (Dennis J. Perez v. Michael Helio Perez). The Family
Court took judicial notice in its oral ruling, as well as its
written Findings of Fact and Conclusions of Law, but Michael made
no objection. Accordingly, we examine the court's ruling for
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plain error. See State v. Kotis, 91 Hawai#i 319, 341, 984 P.2d
78, 100 (1999) (citing Hawai#i Rules of Evidence (HRE) Rule
103(a)(1) and (d) (1993)). See also Hawai#i Family Court Rules
Rule 61.
Under HRE Rule 201, the court may take judicial notice
of a fact "not subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction of the
trial court, or (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be
questioned." HRE Rule 201(b). Put more simply, a fact is a
proper subject for judicial notice if it is common knowledge or
can be easily verified. Uyeda v. Schermer, 144 Hawai#i 163, 172,
439 P.3d 115, 124 (2019). The contents of court records are
frequently the subject of judicial notice, because court records,
particularly those in the trial court's files or immediate
possession, are readily accessible and the accuracy of those
records "generally cannot be considered reasonably questionable."
Id. (quoting State v. Akana, 68 Haw. 164, 166, 706 P.2d 1300,
1302 (1985)). A trial court may take judicial notice of "an
interrelated proceeding where the parties are the same[.]" Id.
(quoting Akana, 68 Haw. at 165, 706 P.2d at 1302). However, the
court must carefully distinguish between taking judicial notice
of "the existence of documents in the Court file as opposed to
the truth of the facts asserted in those documents." Id.
(quoting Kotis, 91 Hawai#i at 342, 984 P.2d at 101) (emphasis in
original). "Factual allegations, conclusions, and findings[,]
whether authored by the court, by the parties or their attorneys,
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or by third persons, should not be noticed to prove the truth of
the matters asserted even though the material happens to be
contained in court records." Id. (quoting Addison M. Bowman,
Hawaii Rules of Evidence Manual 2-5 (2014-15 ed.)). A court "may
only take judicial notice of the truth of facts asserted in
documents such as orders, judgments, and findings of fact and
conclusions of law because of the principles of collateral
estoppel, res judicata, and the law of the case." Id. (quoting
Kotis, 91 Hawai#i at 342, 984 P.2d at 101) (emphasis in
original).
Upon review of the record on appeal, particularly the
May 30, 2018 Findings of Fact and Conclusions of Law, it does not
appear that the judicial notice taken by the Family Court
exceeded the bounds of HRE Rule 201(b). Michael asserts that he
denied the allegations in his mother's petition but stipulated to
the entry of a protective order in her favor nonetheless, so the
Family Court in this case erred in taking judicial notice of that
case because there was no opportunity to confront his mother.
However, Michael fails to point to any facts contained in FC-DA
No. 15-1-1530 that the court in this case relied upon
inappropriately. The appellant has the burden "to show error by
reference to matters in the record." Bettencourt v. Bettencourt,
80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995) (citation omitted).
"[W]e should presume, absent an indication in the record to the
contrary, that the [trial] court took judicial notice only where
appropriate." Kotis, 91 Hawai#i at 343, 984 P.2d at 102.
Accordingly, we cannot conclude that the Family Court plainly
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erred in taking judicial notice of the records and files in the
other family court matters.
For these reasons, the Family Court's December 19, 2017
Orders of Protection are affirmed.
DATED: Honolulu, Hawai#i, September 29, 2020.
On the briefs:
/s/ Lisa M. Ginoza
Scot Stuart Brower, Chief Judge
for Respondent-Appellant.
/s/ Katherine G. Leonard
David M. Hayakawa, Associate Judge
for Petitioners-Appellees
JOHN H. PEREZ and /s/ Keith K. Hiraoka
DENNIS J. PEREZ. Associate Judge
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