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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-SEP-2021
07:48 AM
Dkt. 57 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JST, Petitioner-Appellee,
v.
TAP, Respondent-Appellant
and
CHILD SUPPORT ENFORCEMENT AGENCY,
STATE OF HAWAII, Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-P NO. 18-1-6331)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Respondent-Appellant TAP (Father) appeals from the
"Order Awarding Petitioner's Attorney's Fees and Costs" entered
by the Family Court of the First Circuit on December 9, 2019.1
For the reasons explained below, we affirm the Order Awarding
Fees and Costs.
Father and Petitioner-Appellee JST (Mother) are the
natural parents of Child. Child was born in Texas in 2016. In
July 2018 Mother and Child moved to Hawai#i, where Mother's
family lives. On August 30, 2018, Mother filed a petition for an
order for protection against Father in Hawai#i.
On September 6, 2018, Mother filed (1) a petition for
custody, visitation, and support orders; and (2) a Motion for
1
The Honorable Na#unanikina#u Kamali#i presided.
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Emergency Jurisdiction in Hawai#i family court. The issue of
jurisdiction was resolved by order entered on October 19, 2018.2
Father agreed to withdraw his pending Texas proceeding involving
Child. Mother agreed to withdraw her petition for protective
order. Child was to remain in Mother's care.
A stipulated judgment of paternity and order regarding
custody, visitation, and support was entered on January 8, 2019.
Father stipulated to paternity; Mother was awarded temporary
legal and physical custody of Child, pending a trial set for
May 13, 2019.
Mother filed a motion to compel discovery from Father
on March 18, 2019. Mother filed a motion to strike Father's
witness list and for sanctions against Father on March 22, 2019.
On March 29, 2019, the family court issued orders granting in
part Mother's motion to compel discovery and denying Mother's
motion to strike Father's witness list.3 The issue of sanctions
was reserved.
A trial was held on May 13, 2019.4 On June 5, 2019,
the family court issued the "Order re: May 13, 2019 Hearing[.]"
Among other things, the family court awarded sole legal and
physical custody of Child to Mother, with Father awarded
supervised visitation rights. The order did not address payment
of attorneys' fees or costs or Mother's prior request for
sanctions.
On June 26, 2019, Mother filed the motion for
attorneys' fees and costs at issue in this appeal. Father
opposed the motion. On October 7, 2019, the family court entered
an order granting in part Mother's request for attorneys' fees
and costs. Mother's motion was granted:
2
The Honorable Steven M. Nakashima presided.
3
Judge Nakashima signed the orders.
4
The Honorable Gale L.F. Ching presided over the trial.
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regarding [Mother's] Motion to Compel & enforcement of
discovery production, the preparation, filing & litigation
of Petitioner's Emergency Motion regarding jurisdiction and
the filing & litigation of the Motion requesting fees (fees
related to the Motion for fees are subject to the court's
evaluation of amount of reasonable costs related to granted
relief[)]. . . .
. . . .
[Mother]'s request for fees regarding issues of
custody & child support are denied.
Mother's counsel was directed to submit a declaration of fees
with redacted billing statements reflecting the amounts
requested.
Mother's counsel timely submitted a declaration and
exhibits, including 29 pages of billing statements that were
"redacted as necessary to protect attorney-client privilege
and/or remove non-chargeable events." Mother requested
attorneys' fees and costs totaling $16,422.79. Father submitted
a timely opposition. In response, Mother's counsel submitted a
supplemental declaration. The Order Awarding Fees and Costs was
entered on December 9, 2019. The family court awarded $16,422.79
(the total amount requested), and entered findings of fact and
conclusions of law on June 17, 2020. This appeal followed.
Father contends that the family court erred when it:
(1) awarded Mother attorneys' fees and costs with respect to her
Motion for Emergency Jurisdiction; (2) awarded Mother attorneys'
fees and costs to the extent that the fees and costs pertained to
litigation of the issues of child custody or child support; and
(3) awarded Mother costs in the form of reimbursement for Hawai#i
general excise tax, legal intern expenses, and paralegal
expenses.
Father's statement of the points of error does not
designate any of the family court's findings of fact as error.
Findings of fact that are not specified as error pursuant to
Rule 28(b)(4)(C) of the Hawai#i Rules of Appellate Procedure
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(HRAP)5 are binding on the appellate court. Bremer v. Weeks, 104
Hawai#i 43, 63, 85 P.3d 150, 170 (2004). "If a finding [of fact]
is not properly attacked, it is binding; and any conclusion [of
law] which follows from it and is a correct statement of law is
valid." Kawamata Farms, Inc. v. United Agri Prods., 86 Hawai#i
214, 252, 948 P.2d 1055, 1093 (1997), as amended (Jan. 13, 2004)
(citation omitted).
We review conclusions of law under the "right/wrong"
standard. Est. 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. 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. Id.
(1) Father contends that the family court erred when
it awarded Mother attorneys' fees and costs with respect to her
Motion for Emergency Jurisdiction. Mother moved for attorneys'
fees and costs under Hawaii Revised Statutes (HRS) § 584-16
5
HRAP Rule 28 provides, in relevant part:
(b) Opening brief. Within 40 days after the filing
of the record on appeal, the 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 or
agency; (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 or agency. Where applicable,
each point shall also include the following:
. . . .
(C) when the point involves a finding or conclusion
of the court or agency, either a quotation of the finding or
conclusion urged as error or reference to appended findings
and conclusions[.]
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(2018), part of the Hawai#i Uniform Parentage Act. The statute
provides, in relevant part:
§ 584-16 Costs. The court may order reasonable fees
of counsel, experts, and the child's guardian ad litem, and
other costs of the action and pre-trial proceedings,
including genetic tests, subject to the provisions of
section 584-11(f) [concerning contested genetic testing
results], to be paid by the parties in proportions and at
times determined by the court.
The purpose of the statute is to apportion the costs of suit.
Doe v. Roe, 5 Haw. App. 558, 571, 705 P.2d 535, 545 (1985). The
family court is given broad discretion to award attorney's fees
and costs under the statute; the award will not be disturbed on
appeal if the record discloses adequate showing of reasonableness
of the award. Doe VI v. Roe VI, 6 Haw. App. 629, 644, 736 P.2d
448, 458 (1987). Father, as appellant, "bears the burden of
convincing this court from the record that the lower court abused
its discretion." Doe, 5 Haw. App. at 572-73, 705 P.2d at 546
(citations omitted).
Mother's Motion for Emergency Jurisdiction was
authorized under HRS § 583A-204 (2006), part of the Hawai#i
Uniform Child-Custody Jurisdiction and Enforcement Act. The
statute provides, in relevant part:
§ 583A-204 Temporary emergency jurisdiction. (a) A
court of this State has temporary emergency jurisdiction if
the child is present in this State and the child has been
abandoned or it is necessary in an emergency to protect the
child because the child, or a sibling or parent of the
child, is subjected to or threatened with mistreatment or
abuse.
(Underscoring added.)
The family court made the following findings of fact
which, being unchallenged, are binding on us and the parties:
20. After considering the evidence at trial,
credible witness testimony and the written closing arguments
of the parties, and in the best interest of the child, the
trial Court entered its Order Re: May 13, 2019 Hearing,
filed June 5, 2019. The Court found in [Mother]'s favor and
granted all requested relief, including, but not limited to,
entering its findings and orders as follows that:
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a. Defendant had committed acts of family
violence against [Mother.]
. . . .
21. [Mother] was the prevailing party on all issues
raised at trial.
22. [Mother]'s income was $1,375.00 per month and
this income was uncontested by [Father].
23. [Father]'s income was determined by the Court to
be $9,931.00 per month.
The family court then entered the following conclusions
of law:
2. Hawaii Revised Statutes "(HRS)" §584-16,
pertains to paternity actions[.] . . .
. . . .
4. HRS § 584-16 specifically deals with paternity
cases and the potential financial burden that one party may
have to incur as a result of litigating a case even where
the party is indigent and fees and costs cost are to be paid
to the State, or such persons as the Court shall direct.
. . . .
6. In determining whether the award of attorney's
fees was reasonable, the Court considered the totality of
the circumstances, including that [Mother] prevailed on all
of her requests, the financial resources of [Mother], who
earned $1,375.00 per month and [Father], who earned
$9,931.00 per month and determined that [Mother] suffered
financially to litigate the issue of jurisdiction, enforce
Court's orders, enforce her discovery requests and seek fees
and costs regarding: (a) fees and costs related to
[Mother]'s Motion to Compel and enforcement of discovery
production, (b) fees and costs related to [Mother]'s filing
and litigation of her Emergency Motion regarding
jurisdiction and the Petition for Paternity; (c) fees and
costs related to Petitioner's filing and litigation of her
Motion requesting fees and costs.
(Emphasis added.) The family court did not abuse its discretion
because it applied the correct law to the unchallenged facts.
See Klink, 113 Hawai#i at 351, 152 P.3d at 523.
Father argued below, as he does on appeal, that
Mother's attorneys' fee award should be precluded by Cox v. Cox,
138 Hawai#i 476, 382 P.3d 288 (2016). In Cox, a majority of the
supreme court held that the attorneys' fee and cost provisions of
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Rule 68 of the Hawai#i Family Court Rules (HFCR)6 do not apply to
family court cases governed by HRS § 580–47 (Supp. 2011).7 Id.
at 478, 382 P.3d at 290. The family court concluded:
8. [Father]'s argument regarding attorneys' fees,
relying on Cox v. Cox, 138 Haw. [sic] 476, 382 P.3d 288
(2016), a divorce case, is misplaced. The instant case, a
paternity matter under HRS Chapter 584, is distinguished
from the Court's holding in Cox, in that the Court
considered an award of attorney's fees pursuant to HRS
Chapter 580, which applies to divorce cases and opined on
settlement offers made pursuant to Hawaii [sic] Family Court
Rules (HFCR), Rule 68, which contravenes HRS § 580-47 (trial
court's discretion to award of attorney's fees and costs in
divorce). Comparatively, the award of attorneys' fees and
costs in paternity matters is made pursuant to HRS § 584-16
and applicable law.
We agree with the family court that Cox has no bearing on this
case — a paternity case under HRS Chapter 584 — which deals with
neither HFCR Rule 68 nor HRS § 580–47.
(2) Father contends that the family court erred by
awarding Mother attorneys' fees and costs to the extent that the
fees and costs pertained to litigation of the issues of child
custody or child support. The family court specifically
concluded:
13. Charges for work performed on the Petition for
Paternity relating to the issues of custody and child
support were denied. In consideration of the totality of
the circumstances, it is fair, equitable and reasonable that
each party pay for [their] own attorneys' fees and costs.
(Emphasis added.)
6
HFCR Rule 68 "mandate[s] an award of costs, including reasonable
attorney's fees, to a party who offers to settle certain classes of family
court cases in the amount or upon the terms specified in the offer, if the
offer is refused by the offeree and 'the judgment in its entirety finally
obtained by the offeree is patently not more favorable than the offer, unless
the court shall specifically determine that such would be inequitable.'" Cox,
138 Hawai#i at 478, 382 P.3d at 290.
7
HRS § 580–47 deals with child and spousal support orders in
divorce cases, and "directs the family court to determine the equity and
justice of awarding attorney's fees based on a multifactor analysis in the
course of deciding whether to award such fees." Cox, 138 Hawai#i at 481, 382
P.3d at 293.
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Father argues that the attorneys' fees incurred by
Mother in connection with the Motion for Emergency Jurisdiction
are indivisible from those incurred in connection with child
custody and child support issues, which were denied by the family
court. For each billing entry at issue, we quote Father's
argument to the family court, the billing entry at issue,
Mother's response, and the family court's conclusion.8
Father's argument:
4. The August 29, 2018 billing entry pertains to general
intake and does not reference the Motion for Emergency
Jurisdiction.
Billing entry:
Aug-29-18 Review and evaluate notes from consultation
meeting with client; Draft summary instruction
email to team.
Review and evaluate client's response email and
attachments supporting allegations of abuse;
Forward to team with instructions for further
action.
Mother's response:
5. Regarding paragraph 4 of [Father]'s Opposition,
the August 29, 2018 billing entry was necessary for [Mother]
to be able to file [Mother's] Motion for Emergency
Jurisdiction ("[Mother]'s Motion for Emergency
Jurisdiction") and, as such, this expense is recoverable.
Family court's conclusion:
15. The August 29, 2018 billing entry regarding
general intake is recoverable based on the relevant facts in
the file that show the underlying facts regarding her Motion
for Emergency Jurisdiction were based on her allegations of
abuse, the initial basis for her filing her Protective Order
Petition.
Conclusion of law no. 15 is a mixed finding of fact and
conclusion of law. To the extent it found facts, it is binding.
8
Father's opening brief argues that additional time entries were
indivisible and should not have been allowed, but we decline to address them
because Father raises them for the first time on appeal. See HRS § 641-2
(2016) (stating that the "appellate court . . . need not consider a point that
was not presented in the trial court in an appropriate manner.").
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Kawamata Farms, 86 Hawai#i at 252, 948 P.2d at 1093. The family
court did not abuse its discretion by concluding that Mother, the
prevailing party in the Motion for Emergency Jurisdiction, was
entitled to an award of attorneys' fees under HRS § 584-16 for
the August 29, 2018 billing entry.
Father's argument:
5. The August 30, 2018 billing entry pertains in part to
the Petition for Paternity.
Billing entry:
Aug-30-18 Draft Petition for Paternity, draft Motion for
Emergency Declaration, draft Memorandum in
Support of Motion; draft decalration [sic] of
client to attach to Emergency Motion.
Mother's response:
6. Regarding paragraph 5 of [Father]'s Opposition,
the August 30, 2018 billing entry refers only in part to
[Mother]'s Petition for Paternity . . . and the preparation
and filing of the Paternity Petition was necessary for
[Mother] to proceed with [Mother's] Motion for Emergency
Jurisdiction. Moreover, the drafting of the Petition for
Paternity was a nominal event for that billing entry.
Family court's conclusion:
16. The August 30, 2018 billing entry is recoverable
because notwithstanding the reference in part to the
Petition for Paternity, the Petition is legally necessary in
order to have a case in which to file a Motion for Emergency
Jurisdiction and also pertains to matters other than custody
and visitation.
Conclusion of law no. 16 is also a mixed finding and
conclusion. There was no error in concluding that Mother was
entitled to an award of attorneys' fees under HRS § 584-16 for
the August 30, 2018 billing entry. Mother's counsel represented
that "the drafting of the Petition for Paternity was a nominal
event for that billing entry." In awarding attorneys' fees in a
case involving multiple claims, some for which attorneys' fees
are recoverable and some for which they are not, "a court must
base its award of fees, if practicable, on an apportionment of
the fees claimed between [recoverable] and [non-recoverable]
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claims." Blair v. Ing, 96 Hawai#i 327, 332, 31 P.3d 184, 189
(2001) (citation omitted). Conclusion of law no. 16 was not an
abuse of discretion.
Father's argument:
6. The September 5, 2018 billing entry pertains in part
to the TRO hearing and Petition for Paternity.
Billing entry:
Sep-05-18 Review and revise exhibits for TRO hearing
prepared by Caitlin Axe; Instruct on additional
potential exhibits to include in motion.
Review and finalize Petition for Paternity,
Motion for Emergency Jurisdiction, meet with
client to execute the same. Answer client's
questions regarding recent contact from opposing
party's Texas attorney. Review and finalize Ex
Parte Motion to Shorten Time on Motion for
Emergency Jurisdiction.
Telephone call with [Mother's counsel]. Met
with client regarding status of service on TRO.
Prepare check requests and prepare documents to
be submitted to go to court for filing.
Mother's response:
7. Regarding paragraph 6 of [Father]'s Opposition,
the September 5, 2018 billing entry pertains to the hearing
on [Mother]'s Petition for an Order for Protection
("[Mother]'s Protective Order Petition") and [Mother]'s
Paternity Petition. These hearings were consolidated with
[Mother]'s Motion for Emergency Jurisdiction and are
inextricably linked since the allegation in the Protective
Order Petition were the basis for the Motion for
Jurisdiction and the Paternity Petition was required for the
Motion for Emergency Jurisdiction to be heard.
Family court's conclusion:
17. The September 5, 2018 billing entry is
recoverable because the hearing on [Mother]'s Motion for
Emergency Jurisdiction was consolidated with the TRO hearing
and Petition for Paternity and is indivisible in terms of
legal work performed.
Conclusion of law no. 17, a mixed finding and
conclusion, was not erroneous because to the extent fees relating
to custody and child support may have been reflected in the
August 29 and 30 and September 5, 2018 billing entries, the fee
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award was not an abuse of discretion because the family court
found that it was not practicable to apportion the time at issue.
Blair, 96 Hawai#i at 332, 31 P.3d at 189.
(3) Father contends that the family court erred when
it awarded Mother costs in the form of (a) reimbursement for
Hawai#i general excise tax, (b) legal intern expenses, and
(c) paralegal expenses. The family court concluded:
9. G.E.T. taxes on attorney's fees and costs are
reasonable and recoverable under HRS § 607-9. See Doe v.
Roe, 5 Haw. App. 558, 705 P.2d, [sic] 525 [sic] (1985)
(stating that because HRS § 584-16 does not include specific
costs, the Court held that it would "analogize HRS § 584-16
to HRS § [sic] 607 since they are in pari materia and [the
Court] would consider cases construing the latter statute to
decide the issue of fees and costs.")[.]
10. Charges for work performed by a legal intern are
reasonable and recoverable under HRS § 607-9 as a reasonable
part of Petitioner's attorney's fees and costs. See First
Ins. Co. of Hawaii, Ltd. v. Daoan [sic], 124 Haw. [sic] 426,
437 (2010).
11. Charges for work performed by paralegals are
reasonable and recoverable under HRS § 607-9 as a reasonable
part of Petitioner's attorney's fees and costs. See Id.
[sic] at [sic] 437.
Conclusion no. 9 was not wrong. HRS § 584-16 does not
specify what costs are included in "other costs of the action and
pre-trial proceedings." In Doe, 5 Haw. App. 558, 705 P.2d 535,
we analogized HRS § 584–16 to HRS Chapter 607 because they are in
pari materia, and considered cases construing the latter statute
to decide what fees and costs were recoverable under the former.
Id. at 570 n.11, 705 P.2d at 545 n.11. Hawai#i general excise
taxes are recoverable as costs under HRS § 607-9. See Blair, 96
Hawai#i at 336, 31 P.3d at 193.
Conclusion nos. 10 and 11 were also not wrong. See
Blair, 96 Hawai#i at 336, 31 P.3d at 193 ("[A] request or award
of attorneys' fees may, in appropriate cases, include
compensation for separately billed legal services performed by a
paralegal, legal assistant, or law clerk . . . for work performed
that would otherwise have been required to be performed by a
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licensed attorney at a higher rate[.]"). The family court
cautioned Mother's counsel:
So . . . in submitting your calculation of fees, please look
at all the considerations in the court's calculation of
that: duplication; the way in which people use paralegals to
do work that really are [sic] just secretarial work; all of
that that otherwise would be included in what your fee is as
opposed to how much time you spent. Okay.
I've had to reject one case because it was just sort
of everything was thrown in and there was no time spent
gleaning over the bill as to what really are attorney's fees
and costs.
The family court properly recognized the distinction between
delegating work to a paralegal that would otherwise have to be
performed by an attorney, and delegating non-billable secretarial
work to a paralegal so that it could be billed.
Based upon the foregoing, we affirm the family court's
"Order Awarding Petitioner's Attorney's Fees and Costs" entered
on December 9, 2019.
DATED: Honolulu, Hawai#i, September 3, 2021.
On the briefs:
/s/ Lisa M. Ginoza
JST, Petitioner-Appellee Chief Judge
(no brief filed).
/s/ Katherine G. Leonard
Mitchell S. Wong, Associate Judge
for Respondent-Appellant TAP.
/s/ Keith K. Hiraoka
Brandon K. Flores, Associate Judge
for Appellee Child
Support Enforcement Agency,
State of Hawaii
(no position filed).
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