NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-JUL-2022
07:51 AM
Dkt. 55 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
WC, Petitioner-Appellee, v.
TC, Respondent-Appellant
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-DA NO. 18-1-0361)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)
Self-represented Respondent-Appellant TC (Mother)
appeals from the "Six[th] Amended Order for Protection" (Sixth
Amended Order), entered in favor of Petitioner-Appellee WC
(Father) on June 18, 2021, by the Family Court of the Second
Circuit (Family Court).1/ Mother also claims to appeal from the
"Findings of Fact and Conclusions of Law and Order"
(FOFs/COLs/Order), entered on August 18, 2021, by the Family
Court.
On appeal, Mother appears to contend that the Family
Court entered the Sixth Amended Order: (1) without the support
of substantial evidence and in abuse of the court's discretion;
(2) in violation of Mother's due process rights; and (3) in
1/
The Honorable James R. Rouse presided. It appears that the Sixth
Amended Order, which mistakenly bears the filing date of June 18, 2020, was
signed on June 18, 2021, and filed on the same date.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
violation of evidentiary rules.2/ Mother does not challenge any
specific FOFs or COLs made by the Family Court.
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, as
well as the relevant statutory and case law, we resolve Mother's
contentions as follows and affirm.
I. Background
On July 23, 2018, Father filed an ex parte petition for
a temporary restraining order (TRO) against Mother pursuant to
Hawaii Revised Statutes (HRS) Chapter 586. Father declared under
penalty of perjury that Mother had committed acts of domestic
abuse or threats of domestic abuse, including hitting Father in
the face and punching him in the back of the head, and
threatening to commit suicide in front of the parties' minor
daughter. On July 23, 2018, the Family Court entered a TRO,
finding in part that it was "necessary to prevent acts of abuse
or recurrence of actual domestic abuse . . . ."
As reflected in unchallenged FOF 1, and in the record,
on July 27, 2018, following a show-cause hearing, the Family
Court entered an Order for Protection (Order), ordering in part
that Mother be restrained from committing further acts of abuse.3/
2/
Mother's points of error, to the extent discernible, have been
restated and condensed for clarity. We note that Mother's opening brief fails
to comply in material respects with Hawai#i Rules of Appellate Procedure
(HRAP) Rule 28(b)(4) and (7). Mother's "failure to comply with HRAP Rule
28(b)(4) is alone sufficient to affirm the [family] court's judgment." Morgan
v. Planning Dep't, Cty. of Kauai, 104 Hawai #i 173, 180, 86 P.3d 982, 989
(2004); see also HRAP Rule 28(b)(7) ("Points not argued may be deemed
waived."). Nevertheless, we have "consistently adhered to the policy of
affording litigants the opportunity 'to have their cases heard on the merits,
where possible.'" Morgan, 104 Hawai#i at 180–81, 86 P.3d at 989–90 (quoting
O'Connor v. Diocese of Honolulu, 77 Hawai#i 383, 386, 885 P.2d 361, 364
(1994)). We thus address Mother's arguments to the extent discernible.
3/
The Family Court further found that Mother's recent conduct
included psychological abuse that constituted "family violence" under HRS
§ 571-2. We note that under HRS § 586-5.5(a) (2018), a protective order may
be issued when it is necessary to prevent "domestic abuse or a recurrence of
abuse[.]" The statutory definitions of "domestic abuse" (see HRS § 586-1
(Supp. 2020)) and "family violence" are not coextensive. Here, it appears
that the Family Court issued the Protective Order based on conduct that
constituted domestic abuse and also included family violence.
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The following FOFs are also unchallenged on appeal:
2. The Order was subsequently amended on September 21,
2018, October 18, 2018, January 14, 2019, and July 31,
2019. The Order was extended for good cause by this
Court on June 26, 2020 and is set to expire on
July 27, 2021. [Mother] was then represented by
[counsel].
3. After the Order was amended on January 14, 2019,
[Mother] was alleged to have violated the Order on
January 26, 2019. The Order was then amended again on
July 31, 2019, and [Mother] was once again alleged to
have violated the Order on February 27, 2020.
4. Per Court records and [Mother's] testimony, the
charges for the alleged violations of the Order are
still pending before Judge Bissen in 2FFC-XX-XXXXXXX
and 2FFC-XX-XXXXXXX.
5. Additionally, per the Court's records and [Mother's]
testimony, she has several felony charges, five (5)
total consisting of (3) Class C felony counts in 2CPC
XX-XXXXXXX before Judge Loo, and (1) Class B count and
(1) Class C count in 2 CPC XX-XXXXXXX before Judge
Bissen that are pending resolution.
6. Currently, [Father] has sole legal and physical
custody of the minor child as ordered in 2DV181000355
by order entered on July 31, 2019. Further, Court
records indicate that on June 14, 2021, [Mother] was
ordered to have continued supervised visits with the
child because a change in visitation would not be in
the child's best interests as there was been no
material change in the circumstances since the date of
the last order entered in the matter.
7. The Court finds that [Mother's] prior alleged non-
compliance with the Order for Protection as well as
her failure to address the charges against her for her
alleged violation of the Order is good cause for the
Order for Protection to be extended.
8. The Court finds that [Mother] has demonstrated a
capacity for [sic] to disregard the orders of this
Court. As a result, the Court also finds that the
Order for Protection is still necessary to prevent
domestic abuse or recurrence of abuse. As a result,
this Court may extend the Order for such further fixed
reasonable period as the Court deems appropriate
pursuant to [HRS] § 586-5.5(b). 4/
(Footnote added.)
4/
We note that FOFs 7 and 8 actually present mixed determinations of
fact and law.
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II. Discussion
A. Substantial Evidence
Mother contends that the Sixth Amended Order "[w]as
made without the support of substantial evidence" and "[w]as
arbitrary, capricious, or an abuse of discretion."
We review the Family Court's exercise of discretion as
follows:
[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)
(quoting In re Doe, 95 Hawai#i 183, 189-90, 20 P.3d 616, 622-23
(2001)).
We review the Family Court's findings of fact for clear
error and vacate only when "the record lacks substantial evidence
to support the finding or, . . . despite substantial evidence in
support of the finding, [we are] left with a definite and firm
conviction that a mistake has been made." Id. "'Substantial
evidence' is credible evidence which is of sufficient quality and
probative value to enable a person of reasonable caution to
support a conclusion." Id. Unchallenged findings of fact are
binding on the parties and this court. See In re Doe, 99 Hawai#i
522, 538, 57 P.3d 447, 463 (2002). We likewise review
conclusions of law that present mixed questions of fact and law
for clear error. See Estate of Klink ex rel. Klink v. State, 113
Hawai#i 332, 351, 152 P.3d 504, 523 (2007).
Mother does not present any argument on her points of
error (see HRAP Rule 28(b)(7)); however, she asserts in her
"Statement of Facts" that "[t]he Court had all the information
present to render a decision to allow some sort of respite from
the TRO" and "dismissed [Mother's] success and progress in self-
realization and rehabilitation." Father responds that the Family
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Court "properly exercised its discretion to extend the Protective
Order."
HRS § 586-5.5(b) (Supp. 2021) provides:
A protective order may be extended for a further fixed
reasonable period as the court deems appropriate, including,
in the case where a protective order restrains any party
from contacting, threatening, or physically abusing a minor,
for a fixed reasonable period extending to a date after the
minor has reached eighteen years of age. Upon application
by a person or agency capable of petitioning under section
586-3, the court shall hold a hearing to determine whether
the protective order should be extended. In making a
determination, the court shall consider evidence of abuse
and threats of abuse that occurred before the initial
restraining order and whether good cause exists to extend
the protective order.
The extended protective order may include all orders
stated in the preceding restraining order and may provide
further relief as the court deems necessary to prevent
domestic abuse or a recurrence of abuse, including orders
establishing temporary visitation and custody with regard to
minor children of the parties and orders to either or both
parties to participate in domestic violence intervention
services. The court may terminate the extended protective
order at any time with the mutual consent of the parties.
(Emphases added.)
Here, as reflected in FOFs 1 through 8, the Family
Court considered the "evidence of abuse and threats of abuse that
occurred before the initial restraining order and whether good
cause exist[ed] to extend the protective order." HRS § 586-
5.5(b). The Family Court cited, among other things, Mother's
abusive conduct that led to the initial order for protection, her
alleged non-compliance with subsequent amended orders for
protection, and her "demonstrated capacity . . . to disregard the
orders of this court." Mother has not challenged any of the
Family Court's related findings, which are thus binding on appeal
(see supra) and support the Family Court's conclusions in FOFs 7
and 8 that there was good cause to extend the protective order.5/
5/
In COLs 4 through 6, the Family Court also concluded that Father
established a material change of circumstances after issuance of the June 26,
2020 Order for Protection, pursuant to HRS § 586-9 (2018). The applicable
standard in these circumstances, however, was the "good cause" standard set
forth in HRS § 586-5.5(b), which the court properly applied in FOFs 7 and 8.
To the extent the Family Court erred in relying on HRS § 586-9, we conclude
that such error was harmless.
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In asserting that the Family Court "had all the
information . . . to allow some sort of respite from the TRO" and
disregarded Mother's "progress in self-realization and
rehabilitation[,]" Mother appears to dispute the weight of the
evidence. It is well-settled, however, 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." Fisher, 111 Hawai#i at 46, 137 P.3d at 360
(quoting Doe, 95 Hawai#i at 190, 20 P.3d at 623). Moreover,
Mother does not point to any evidence in the record supporting
her assertions or provide any argument as to why any of the FOFs
or mixed FOFs/COLs were clearly erroneous. See HRAP Rule
28(b)(7).
Accordingly, we conclude that the FOFs/COLs/Order and
the Sixth Amended Order were supported by substantial evidence,
and we are not left with a definite and firm conviction that a
mistake has been made. We further conclude that the Family Court
did not abuse its discretion in entering the Sixth Amended Order.
B. Due Process
Mother contends:
The Due Process clauses [sic] of the United States
Constitution encourages courts to decide a case that could
adversely affect a party's interest in the light deemed
fundamental or natural. To satisfy this requirement, all
evidence must be viewed in a light equal to both parties and
all permissible inferences must be reasonably calculated and
entered into the record properly.
Mother further asserts that "El v. Granville, 530 U.S. 57 (2000)
settles that the state court cannot interfere by allocating
children without a high standard of proof that one parent is
unfit."6/
However, Mother fails to specify where in the record
she brought the alleged error to the attention of the Family
6/
It appears that Mother is referring to Troxel v. Granville, 530
U.S. 57 (2000), in which the United States Supreme Court affirmed the
Washington Supreme Court's judgment that a Washington visitation statute
violated the United States Constitution. Id. at 63.
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Court, and makes no discernible argument as to how the Sixth
Amended Order violated her due process rights. Her argument is
thus deemed waived. See HRAP Rule 28(b)(4) and (7); Ito v.
Investors Equity Life Holding Co., 135 Hawai#i 49, 74, 346 P.3d
118, 143 (2015) ("Where an appellant makes general assertions of
a due process violation, without further elaboration or citation
to authority, the court cannot reach a reasoned conclusion, and
the due process argument is deemed waived." (citing Cty. of
Hawaii v. C & J Coupe Family Ltd. P'ship, 119 Hawai#i 352, 373,
198 P.3d 615, 636 (2008)); State v. Moses, 102 Hawai#i 449, 456,
77 P.3d 940, 947 (2003) ("As a general rule, if a party does not
raise an argument at trial, that argument will be deemed to have
been waived on appeal[.]").
C. Evidentiary Rules
Mother contends that "Hawaii Rules of Evidence [(HRE)]
626 were not followed . . . relating to the mindset of [Mother]
. . . ."7/ She also asserts that "[m]uch of [Father's] filings
proffered were irrelevant, . . . were entered into the record
erroneously[, and] were unfairly prejudicial, confusing, and
based on hearsay."
However, Mother fails to set forth the substance of the
evidence she claims was improperly admitted or rejected, fails to
identify the evidentiary rule or rules she claims were violated,
fails to specify where in the record, and on what grounds, she
objected, and fails to make any discernible argument regarding
her contentions. See HRAP Rule 28(b)(4) and (7). Her
contentions based on alleged evidentiary violations are therefore
deemed waived. See In re Guardianship of Carlsmith, 113 Hawai#i
236, 246, 151 P.3d 717, 727 (2007) (an appellate court "may
disregard a particular contention if the appellant makes no
discernible argument in support of that position" (quoting Norton
v. Admin. Dir. of the Court, 80 Hawai#i 197, 200, 908 P.2d 545,
548 (1995)) (internal quotation marks and brackets omitted));
7/
There is no HRE Rule 626. It appears that Mother may be referring
to HRS chapter 626, which sets forth the Hawai #i Rules of Evidence.
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Moses, 102 Hawai#i at 456, 77 P.3d at 947; HRAP Rule 28(b)(7)
("Points not argued may be deemed waived.").
III. Conclusion
For the reasons discussed above, the "Six[th] Amended
Order for Protection," entered on June 18, 2021, by the Family
Court of the Second Circuit, is affirmed.
DATED: Honolulu, Hawai#i, July 21, 2022.
On the briefs:
/s/ Lisa M. Ginoza
TC Chief Judge
Self-represented Respondent-
Appellant.
/s/ Clyde J. Wadsworth
Alan Y. Okamoto Associate Judge
(Kleintop & Luria, LLP)
for Petitioner-Appellee.
/s/ Karen T. Nakasone
Associate Judge
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