NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUN-2022
07:52 AM
Dkt. 46 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
LIAM BEALE, Petitioner-Appellee, v.
ROBERT KONRAD ROOS, Respondent-Appellant
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FD-DA NO. 20-1-0421)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)
Respondent-Appellant Robert Konrad Roos (Roos) appeals
from the September 21, 2020 Order for Protection entered in favor
of Petitioner-Appellee Liam Beale (Beale) and against Roos by the
Family Court of the Second Circuit (Family Court).1/ Pursuant to
Hawai#i Rules of Appellate Procedure Rule 4(a)(3), Roos's notice
of appeal is also deemed to appeal the Family Court's "Order
Denying Motion for Reconsideration; Memorandum in Support of
Motion for Reconsideration; Affidavit of Defendant Exhibits 1-8."
On appeal, Roos contends that the Family Court erred in
granting a temporary restraining order and the Order for
Protection and in denying Roos's motion for reconsideration
because Beale and Roos were not "household or family members" as
defined by Hawaii Revised Statutes (HRS) § 586-1, quoted infra.2/
1/
The Honorable Adrianne N. Heely presided.
2/
Roos raises several related points of error, which have been
restated and condensed for clarity. Because we find the above contention
dispositive (see infra), we do not reach Roos's contention that the Family
Court erred in denying the motion for reconsideration. For the same reason,
we do not reach Roos's contention that the Family Court erred in denying his
"request to produce relevant evidence through a witness."
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Upon careful review of the record, and the brief
submitted by Roos,3/ and having given due consideration to the
arguments advanced and the issues raised, we reverse the Order
for Protection for the reasons set forth below.
I. Background
On September 14, 2020, Beale filed an ex parte petition
for a temporary restraining order (TRO) against Roos (Petition),
pursuant to HRS Chapter 586. In the Petition, Beale described
his relationship to Roos as a "roommate." Beale described the
alleged "recent acts of domestic abuse or threats of domestic
abuse" as follows:
2 weeks ago- [Roos] had been out all day. When he came home
with his girlfriend he was intoxicated and playing loud
music at 11 pm. I told [Roos] to turned [sic] down his
music. [Roos] got mad and aggressive he yelled at me
telling me "don't tell him what to do and he can do what he
wants." I asked him nicely again to turn the music down and
he refused. He got in my face screaming to me and getting
mad. I called the police and [Roos] was acting cool. Once
the police left he continued to yell and swear outside.
For the past month [Roos] has gotten in my face, he refuses
to leave because he has not paid rent, he threaten [sic] to
punch me, he comes home drunk and when I try and speak to
him nicely he will yell at me and get in my face
aggressively. He calls me a "little bitch, asshole and
motherfucker."
On September 14, 2020, the Family Court issued a TRO
pursuant to HRS § 586-4(c) (2018),4/ which, among other things,
3/
Beale did not submit an answering brief.
4/
HRS § 586-4(c) provides:
The family court judge may issue the ex parte
temporary restraining order orally, if the person being
restrained is present in court. The order shall state that
there is probable cause to believe that a past act or acts
of abuse have occurred, or that threats of abuse make it
probable that acts of abuse may be imminent. The order
further shall state that the temporary restraining order is
necessary for the purposes of: preventing acts of abuse or
preventing a recurrence of actual domestic abuse and
ensuring a period of separation of the parties involved.
The order shall also describe in reasonable detail the act
or acts sought to be restrained. Where necessary, the order
may require either or both of the parties involved to leave
the premises during the period of the order; may also
restrain the party or parties to whom it is directed from
contacting, threatening, or physically abusing the
(continued...)
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ordered Roos to immediately leave the subject residence.5/ Police
subsequently escorted Roos off the property.
On September 21, 2020, the Family Court held a hearing
requiring Roos to show cause why an order for protection should
not continue against him (OSC hearing). Both parties were self-
represented at the OSC hearing and both testified. At the
outset, Roos noted "big discrepancies" in the Petition and denied
the allegations.
Beale testified that he and Roos lived "in the same
building together." Beale stated that his parents are the
landlords and Beale served as the "property manager or
caretaker[.]" Beale further testified that Roos had a "verbal
agreement" with the "past property manager" and had not paid rent
since the beginning of the month (though the hearing transcript
is somewhat unclear on the latter point). Beale stated: "So we
asked [Roos] on May 28, we (inaudible) him to leave. He did not
comply with this notice."6/
4/
(...continued)
applicant's family or household members; and may enjoin or
restrain both parties from taking, concealing, removing,
threatening, physically abusing, or otherwise disposing of
any animal identified to the court as belonging to a
household, until further order of the court. The order
shall not only be binding upon the parties to the action,
but also upon their officers, agents, servants, employees,
attorneys, or any other persons in active concert or
participation with them. The order shall enjoin the
respondent or person to be restrained from performing any
combination of the following acts:
(1) Contacting, threatening, or physically abusing
the protected party;
(2) Contacting, threatening, or physically abusing
any person residing at the protected party's
residence;
(3) Entering or visiting the protected party's
residence; or
(4) Taking, concealing, removing, threatening,
physically abusing, or otherwise disposing of
any animal identified to the court as belonging
to a household, until further order of the
court.
5/
The Honorable John J. Breen entered the TRO.
6/
During this time period, an eviction moratorium was in place due
to COVID-19.
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Roos testified that, among other things, he and Beale
were "not living together as [Beale] stated earlier" and "[t]here
are two different houses on the premises."
Following the parties' testimony, the Family Court
found in part: "[Y]ou folks live kinda together in the same area
and loft or the garage now, but the same area of your [i.e.,
Beale's] parents' home." The Family Court further stated: "[Y]ou
[(Beale)] don't feel safe with [Roos] around. . . . I can grant
the request for the protective order. I heard credible evidence
from [Beale]." (Formatting altered.)
Roos then raised an objection as to the allegation on
page two, paragraph G of the Petition, which stated:
[T] we are now living together.
(Does not include those who are, or were, adult
roommates or cohabitants only by virtue of an economic
or contractual affiliation[)]
The Family Court clarified that Roos was "arguing that you guys
are not family or household members" and noted his objection, but
stated:
[H]earing the testimony I will overrule it and find that you
are living together. Um, you folks are adult [sic] or
cohabitants, um, by virtue of a contractual affiliation.
I heard that you were previously living there on a
oral rental -- oral agreement. That's a contractual, but
it's -- recommended that if you have -- so it's -- it's not
an oral one. You have a written one now. So do you have it
--
So even more so this allowed. I will find that you
folks are family household members or cohabitants living in
the same area.
I find that his allegation on page two, paragraph G
[of the Petition] is true.
The Family Court also found the allegation in the
Petition regarding "recent acts of domestic abuse or threats of
domestic abuse" to be true. The Family Court "grant[ed] the
request for the protective order[,]" adopting the terms stated in
the TRO. The Order for Protection was filed following the
hearing and put in place for two years.
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II. Discussion
Roos contends that the Family Court erred in granting
the TRO and the Order for Protection because Beale and Roos were
not "household or family members" as defined by HRS § 586-1.
We apply the following standard of review to Roos's
contention:
Generally, the family court possesses wide discretion
in making its decisions and those decisions will not be set
aside unless there is a manifest abuse of discretion. Thus,
[an appellate court] 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)
(quoting In re Doe, 95 Hawai#i 183, 189-90, 20 P.3d 616, 622-23
(2001)).
The Family Court entered the Order of Protection
pursuant to HRS § 586-5.5. HRS § 586-5.5(a) (2018) provides in
relevant part:
§ 586-5.5. Protective order; additional orders. (a)
If, after hearing all relevant evidence, the court finds
that the respondent has failed to show cause why the
[temporary restraining] 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[.]
(emphasis added); see also HRS § 586-3(a) (2018) ("There shall
exist an action known as a petition for an order for protection
in cases of domestic abuse.")
In turn, HRS § 586-1 (2018) defines "domestic abuse"
as:
(1) Physical harm, bodily injury, assault, or the threat
of imminent physical harm, bodily injury, or assault,
extreme psychological abuse, coercive control, or
malicious property damage between family or household
members; or
(2) Any act which would constitute an offense under
section 709-906 [i.e., Abuse of Family or Household
Members], or under part V or VI of chapter 707
committed against a minor family or household member
by an adult family or household member.
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(Emphases added.)
"Family or household member":
(1) Means spouses or reciprocal beneficiaries, former
spouses or former reciprocal beneficiaries, persons
who have a child in common, parents, children, persons
related by consanguinity, persons jointly residing or
formerly residing in the same dwelling unit, and
persons who have or have had a dating relationship;
and
(2) Does not include those who are, or were, adult
roommates or cohabitants only by virtue of an economic
or contractual affiliation.
HRS § 586-1 (emphasis added); see HRS § 709-906(19) (Supp. 2020)
(setting forth the same definition of "family or household
member" for purposes of the criminal offense of Abuse of Family
or Household Members); see also HRS § 571-2 (defining "family
violence" as certain acts by a "family or household member").
We conclude that the Family Court abused its discretion
in granting the Order for Protection after finding that Beale and
Roos were "adult [sic] or cohabitants . . . by virtue of a
contractual affiliation." HRS § 586-5.5 authorizes the issuance
of a protective order when necessary to prevent domestic abuse or
a recurrence of such abuse, defined by HRS § 586-1 as abuse
between family or household members. As set forth above, HRS
§ 586-1 explicitly excludes "those who are, or were, adult
roommates or cohabitants only by virtue of an economic or
contractual affiliation" from the definition of family or
household member.
There is no evidence in the record to support a
reasonable inference or conclusion that the parties' relationship
was one other than a contractual or economic relationship.
Indeed, the Family Court expressly concluded that the
relationship was a "contractual affiliation." Because Beale and
Roos were not family or household members as defined by HRS
§ 586-1, the Protective Order was not warranted under HRS § 586-
5.5. Accordingly, the Family Court abused its discretion in
issuing the Order for Protection.7/
7/
We further conclude that Roos's challenge to the September 14,
2020 TRO, which has long since expired, is moot. Roos has shown no reasonable
(continued...)
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For these reasons, the Family Court's September 21,
2020 Order for Protection is reversed.
DATED: Honolulu, Hawai#i, June 28, 2022.
On the brief:
/s/ Lisa M. Ginoza
Jordan K. Chee and Chief Judge
Yukari Murakami,
(Legal Aid Society of Hawai#i)
for Respondent-Appellant. /s/ Katherine G. Leonard
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
7/
(...continued)
possibility that issuance of the short-lived TRO, which was based on the
probable cause standard set forth in HRS § 586-4(c) and superseded by the
September 21, 2020 Order for Protection, would cause him reputational harm or
any other collateral consequence sufficient to trigger an exception to the
mootness doctrine. See Hamilton ex rel. Lethem v. Lethem, 119 Hawai #i 1, 9-
10, 193 P.3d 839, 847-48 (2008). We thus lack subject matter jurisdiction to
decide this issue.
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