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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-JAN-2021
07:59 AM
Dkt. 62 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
HM, Plaintiff-Appellant,
v.
BM, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 12-1-1650)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Plaintiff-Appellant HM (Mother) appeals from the
"Findings and Order Regarding Trial" (Custody Order) entered by
the Family Court of the First Circuit1 on November 12, 2019. The
Custody Order awarded sole legal custody of Child to Defendant-
Appellee BM (Father). For the reasons explained below, we affirm
the Custody Order.
BACKGROUND
Mother and Father were married on July 12, 2009, and
are the parents of Child, who was born in 2012. Mother filed for
divorce on October 15, 2012. A divorce decree was entered on
August 28, 2013. Mother and Father were awarded joint legal and
physical custody of Child.
Both parents filed a number of post-decree motions
concerning various issues affecting Child. On November 19, 2018,
Mother and Father each filed a motion for post-decree relief.
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The Honorable John C. Bryant, Jr. presided.
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Father withdrew his motion and filed an amended motion on
December 13, 2018. The family court appointed a Custody
Evaluator. The Custody Evaluator submitted a confidential report
on April 4, 2019, recommending an award of sole legal custody to
Mother, with joint physical custody on a timesharing schedule.
The family court conducted a trial on October 21
and 22, 2019. The Custody Order was entered on November 12,
2019. The Custody Order made the following finding, which Mother
appears to be disputing in this appeal:
16. Due to the parent's [sic] post-divorce inability
to co-parent [Child] the Court finds it necessary to award
one parent sole legal custody. In this case, the Court
finds that it is in [Child's] best interests that Father be
awarded sole legal custody of [Child] under the provisions
of Section 57l-46(b), HRS.
The family court awarded joint physical custody on a timesharing
schedule. Mother filed a notice of appeal. The family court
entered findings of fact and conclusions of law on January 9,
2020 (Findings & Conclusions).
DISCUSSION
The statement of the points of error in Mother's
opening brief does not comply with Rule 28(b)(4)(C) of the
Hawai#i Rules of Appellate Procedure (HRAP).2 The statement of
2
HRAP Rule 28 provides, in relevant part:
(b) Opening brief. . . . [T]he appellant shall file an
opening brief, containing the following sections in the order here
indicated:
. . . .
(4) A concise statement of the points of error set forth
in separately numbered paragraphs. Each point shall state: (i) the
alleged error committed by the court[;] (ii) where in the record
the alleged error occurred; and (iii) where in the record the
alleged error was objected to or the manner in which the alleged
error was brought to the attention of the court[.] Where
applicable, each point shall also include the following:
(C) when the point involves a finding or conclusion of the
court[,] either a quotation of the finding or conclusion urged as
error or reference to appended findings and conclusions[.]
. . . .
(continued...)
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points mentions "Finding 16" but neither quotes the finding nor
appends it to the opening brief. From the context we deduce that
Mother is disputing finding no. 16 of the Custody Order (quoted
above), rather than finding of fact no. 16 in the Findings &
Conclusions.3 Mother does not challenge any of the findings of
fact made by the family court in the Findings & Conclusions;
accordingly, those findings are binding upon this court. In re
AS, 132 Hawai#i 368, 371, 322 P.3d 263, 266 (2014).
Mother argues that the family court abused its dis-
cretion by awarding sole legal custody to Father "based on one
single factor, and only one, of 17 [sic] enumerated factors" set
forth in Hawaii Revised Statutes (HRS) § 571-46.4 The Custody
Order cites HRS § 571-46(b)(11):
12. The Court finds that Mother's alienation of
[Child] towards [Child's] extended paternal family is not in
[Child's] best interests and is in contradiction of Section
571-46[(b)](11), HRS, which notes that one of the factors a
Court shall consider in determining the best interests of
the child is a parent's ability to allow the child to
maintain "family connections through family events and
activities...." Id. [sic]
HRS § 571-46(b)(11) (2018) provides:
(b) In determining what constitutes the best interest
of the child under this section, the court shall consider,
but not be limited to, the following:
. . . .
(11) Each parent's actions demonstrating that they
allow the child to maintain family connections
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(...continued)
Points not presented in accordance with this section will be
disregarded, except that the appellate court, at its option, may
notice a plain error not presented.
3
Finding of fact no. 16 of the family court's Findings &
Conclusions states:
16. Testimony further proved that the child is doing well
in school.
Mother does not contend that Child is not doing well in school.
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HRS § 571-46(b) (2018) actually lists 16 factors for the family
court to consider in determining what constitutes the best interest of the
child.
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through family events and activities; provided
that this factor shall not be considered in any
case where the court has determined that family
violence has been committed by a parent[.]
The unchallenged Findings & Conclusions state:
9. The Court record shows that since the Divorce was
final, the parties have between themselves filed approxi-
mately twelve (12) substantive motions regarding, but not
limited to: Legal and Physical custody; visitation; choice
of schools; choice of pediatrician; choice of dentist; right
of first refusal; college savings plans; tax dependency
exemptions[;] Chinese language lessons; piano lessons; child
care costs; protection from parental disputes; pick up and
drop off locations and times; Chinese New Year visitation;
foreign country travel; and harassing e-mails between the
parties regarding the child.
10. This Court counted Mother filing six (6) substantive
Motions and Father filing six (6).
11. The Court specifically finds that this amount of post-
decree litigation is not [in] the child's best interest.
12. The Court finds the Custody Evaluator to be correct in
stating the parties have resorted to utilizing Family Court
to make parenting decisions for the Child.
13. The parties have demonstrated an inability to co-
parent.
. . . .
20. The Court finds that it is not disputed that Mother
has, to the best of her ability, tried to restrict Father's
extended family from having a relationship with the child.
21. When Father's adult daughter, [a dentist], did a
necessary dental procedure on the child, mother objected and
reported [the dentist], the child's half-sister, to the
Regulated Industries Complaint Office. The Court finds this
was/is not in the child's best interest.
22. Mother strenuously and inappropriately objected to
[Child's half-sister]'s presence at the child's preschool
graduation. The Court finds that this was/is not in the
child's best interest.
23. The child reported that she did not want paternal
grandmother to come to her piano recital because Mother did
not want paternal grandmother there. The Court finds that
this was/is not in the child's best interest.
24. The Court finds that Mother's alienation of the child
towards the child's extended paternal family is not in the
child's best interest and is [in] direct contradiction of
HRS Section 571-46[(b)](11).
. . . .
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31. The Court finds though that it is necessary to award
one parent sole legal custody as there was ample evidence
that the parties are unable to co-parent the child and joint
legal custody is not in the child's best interest.
. . . .
35. The Court finds that it is in the child's best
interest that Father be awarded sole legal custody. He is
better suited to make legal decisions for the Child[.]
(Footnote omitted.) In addition to HRS § 571-46(b)(11), the
unchallenged findings also support an award of sole legal custody
to Father under these other HRS § 571-46(b) factors:
(10) The child's need for relationships with siblings;
. . . .
(12) Each parent's actions demonstrating that they separate
the child's needs from the parent's needs; [and]
. . . .
(15) The areas and levels of conflict present within the
family[.]
Mother has not pointed to any evidence in the record showing that
any of the HRS § 571-46(b) factors should have caused the family
court to award her sole legal custody of Child, or to not award
sole legal custody to Father.
Mother also argues the family court erred by disre-
garding the Custody Evaluator's written recommendation to award
sole legal custody to Mother. The credibility of the Custody
Evaluator's recommendation was called into question by the
written testimony of Child's therapist. "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 v. Fisher, 111 Hawai#i
41, 46, 137 P.3d 355, 360 (2006) (citation omitted); see also
L.R.O. v. N.D.O, 148 Hawai#i 336, 352, 475 P.3d 1167, 1183 (2020)
("A custody evaluator's expert opinion is treated as evidence,
and the family court as factfinder is permitted to assign weight
to that opinion based on its credibility assessment.") (citations
omitted). On the record before us, we cannot say that the family
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court abused its discretion by crediting the testimony of Child's
therapist over the recommendation of the Custody Evaluator.
Finally, Mother argues that the family court erred by
modifying Child's legal custody provisions because Father failed
to show a "material change in circumstances[,]" citing Nadeau v.
Nadeau, 10 Haw. App. 111, 121, 861 P.2d 754, 759 (1993), over-
ruled by Waldecker v. O'Scanlon, 137 Hawai#i 460, 375 P.3d. 239
(2016). In Waldecker the supreme court held that "the require-
ment of a material change in circumstances is inconsistent with
HRS § 571–46." 137 Hawai#i at 470, 375 P.3d at 249. The supreme
court overruled Nadeau and another case "to the extent they
suggest that a material change in circumstances is required
before the court can consider the best interests of the child in
modifying a custody order[,]" and instead held: "[r]ather than
that two-step analysis, there is a single inquiry which focuses
on the best interests of the child." Id. The family court did
not abuse its discretion by holding that it was in Child's best
interest that Father be awarded sole legal custody.
CONCLUSION
For the foregoing reasons, the "Findings and Order
Regarding Trial" entered by the Family Court of the First Circuit
on November 12, 2019, is affirmed.
DATED: Honolulu, Hawai#i, January 19, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Barry L. Sooalo, Chief Judge
for Plaintiff-Appellant.
/s/ Katherine G. Leonard
Alethea Kyoko Rebman, Associate Judge
Dyan K. Mitsuyama,
Donna Davis Green, /s/ Keith K. Hiraoka
for Defendant-Appellee. Associate Judge
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