KL v. DL

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-FEB-2023
08:11 AM
Dkt. 80 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

KL, Petitioner-Appellee,
v.
DL, Respondent-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-DA No. 18-1-0235)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Chan, JJ.)

Respondent-Appellant DL (Father) appeals from the Order
for Protection entered by the Family Court of the First Circuit
on April 30, 2018.1 For the reasons explained below, we affirm.
Petitioner-Appellee KL (Mother) filed a Petition for an
Order for Protection, for herself and for IL (Child), against
Father on January 26, 2018. A temporary restraining order
against Father was entered the same day,2 without an evidentiary
hearing.3 The evidentiary hearing was set for February 5, 2018,
but was continued to March 5, 2018, March 19, 2018, and April 23,

1
The Honorable David J. Gierlach presided.
2
The Honorable Steven M. Nakashima presided.
3
"The existence of exigent circumstances justifies dispensing with
the requirement of holding a hearing before the ex parte TRO is granted."
Hamilton ex rel. Lethem v. Lethem, 126 Hawai#i 294, 303, 270 P.3d 1024, 1033
(2012).
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2018. The evidentiary hearing was conducted on April 23 and 30,
2018. The family court heard testimony from Mother, Father, and
a number of other witnesses. The Order for Protection was
entered on April 30, 2018.
This appeal followed. Father raises six points of
error and makes four arguments.4
1. Father argues that the family court erroneously
granted the Order for Protection based "on numerous allegations
of harm and threat of harm not alleged in [Mother]'s TRO
petition, especially undated, non-specific and unreliable hearsay
claims of sexual abuse."
Hawaii Revised Statutes (HRS) § 586-3 (2006) provides,
in relevant part:

Order for protection. (a) There shall exist an action known
as a petition for an order for protection in cases of
domestic abuse.

. . . .

(c) A petition for relief shall be in writing upon
forms provided by the court and . . . be accompanied by
. . . a statement made under penalty of perjury stating the
specific facts and circumstances from which relief is
sought.

Mother signed the Petition under penalty of perjury.
It stated:

[Father] abused : me : and/or has hit my daughter[.]

. . . .

[Father]:
. . . .

D. : may need supervised visitation with the
child(ren) because:

physically abusive past and inappropriate
touching with children.

(Underscored words were handwritten.)

4
Hawai#i Rules of Appellate Procedure Rule 28(b)(7) provides, in
part: "Points not argued may be deemed waived."

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The family court found and concluded:

A. The court determined it was in the best interest
of [Child] that [Father] have no contact with her unless
[Child Welfare Services] sanctioned such contact, because
[Father] engaged in inappropriate sexual touching of
[Child.]
. . . .

i. The court found that [Child] was the victim of
sexual contact or conduct including molestation and sexual
fondling when [Father] touched her and rubbed her on her
private spot.

Father argues that the family court erred by issuing
the Order for Protection based upon Father's alleged sexual abuse
of Child. At the April 23, 2018 evidentiary hearing, Mother
testified:

[Mother's Counsel] What -- what made you feel that you had
to protect your daughter?

[Mother] Um -- because when I came back from filing the
restraining order, um -- my daughter -- we were talking and she
was telling me how she felt yucky and didn't like herself[.]

. . . .
[Mother] And I asked [Child] if [Father] touched her
private area. . . . And she said yes.

Mother testified on cross-examination:

[Father's Counsel] Now, you wrote inappropriate
touching in your TRO, and you're referring, if I understand
your testimony correctly, my client rubbing her leg?
[Mother] When -- when I wrote that I'm referring to
my son and hitting my daughter.
[Father's Counsel] Hitting your daughter. But you put
no allegations in [Petition] about [Father] hitting either
your son or your daughter. You didn't specify those as
allegations. And -- sorry. Is that correct?
[Mother] It said inappropriate touching of my children
and I believe that throwing my son is very inappropriate to
do that.

Thus, Father contends that the family court issued the
Order for Protection based upon allegations of sexual abuse not
contained in Mother's Petition.

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Father received actual notice, before the evidentiary
hearing, that Child (then seven years old) told a Hawai#i
Department of Human Services (DHS) social worker that Father
touched her "private area" and "private girl part"; Child told a
forensic interviewer that Father "used his hand to touch her on
'my spot'"; and that DHS had concluded that "the sexual abuse and
threat of abuse allegations to [Child] by [Father] is confirmed."
Father reviewed a DVD of Child's interview before the evidentiary
hearing, and cross-examined the DHS social worker about Child's
allegations at the trial.
Hawai#i Family Court Rules (HFCR) Rule 15(b) states, in
relevant part:

(b) Amendments to conform to the evidence. When
issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them
to conform to the evidence and to raise these issues may be
made upon motion of any party at any time, even after
judgment; but failure so to amend does not affect the result
of the trial of these issues.

HFCR Rule 15(b) brings the pleadings in line with the
actual issues upon which the case was tried, thus promoting the
objective of deciding cases on their merits rather than on the
basis of a statement of the claim made at a preliminary point in
the action. See Cresencia v. Kim, 10 Haw. App. 461, 477, 878
P.2d 725, 734 (1994) (applying Hawai#i Rules of Civil Procedure
(HRCP) Rule 15(b)); Child Support Enf't Agency v. Carlin, 96
Hawai#i 373, 379, 31 P.3d 230, 236 (App. 2001) ("In interpreting
HFCR Rule 15(b), the cases and treatises interpreting cognate
rules of civil procedure are persuasive authority in parsing the
HFCR.").
HFCR Rule 15(b) is mandatory, not permissive; as long
as issues are tried by the express or implied consent of the
parties, the issues shall be treated as if raised in pleadings.
Consent is generally implied when the party opposing a Rule 15(b)
motion fails to object to the introduction of evidence relevant

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to an unpleaded issue, or produces evidence bearing on the new
issue. Cresencia, 10 Haw. App. at 478, 878 P.2d at 734 (citing
Hamm v. Merrick, 61 Haw. 470, 473-74, 605 P.2d 499, 501-02
(1980)). In this case, Father had actual notice of Child's
allegations of sexual abuse, did not object when Mother elicited
evidence of sexual abuse at the evidentiary hearing, testified
about having seen the DVD of Child's interview, and denied
sexually abusing Child. The issue of Father's sexual abuse of
Child was tried by implicit consent under HFCR 15(b). See
Schefke v. Reliable Collection Agency, Ltd., 96 Hawai#i 408, 434,
32 P.3d 52, 78 (2001) (concluding that termination issue was
tried by implied consent under HRCP 15(b)).
Father argues that the evidence of sexual abuse was
inadmissible hearsay. Father did not object on that basis during
the evidentiary hearing. The objection was waived. See Hawaii
Rules of Evidence Rule 103(a)(1); State v. Crisostomo, 94 Hawai#i
282, 290, 12 P.3d 873, 881 (2000) ("A hearsay objection not
raised or properly preserved in the trial court will not be
considered on appeal.") (citation omitted).
2. Father argues that "[t]he family court entered
inconsistent, insufficient, and clearly erroneous findings, and
no reasonable person, normally constituted, would consider
[Father]'s parental discipline domestic violence or inappropriate
touching."
We review findings of fact under the "clearly
erroneous" standard. Est. of Klink ex rel. Klink v. State, 113
Hawai#i 332, 351, 152 P.3d 504, 523 (2007). A finding of fact is
clearly erroneous when the record lacks substantial evidence to
support the finding or when, despite substantial evidence to
support the finding, we are left with a definite and firm
conviction that a mistake has been committed. 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. (citation omitted).

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Father specifically challenges conclusion of law (COL)
no. 10.A:

10. Hawaii Revised Statutes Section
571-46(b)((l)[sic]. In determining what constitutes the
best interest of the child the court shall consider any
sexual or physical abuse of a child by a parent.

A. The court determined it was in the best
interest of [Child] that [Father] have no contact with her
unless CWS sanctioned such contact, because [Father] engaged
in inappropriate sexual touching of [Child], and sustained
and/or witnessed domestic violence on herself of [sic] her
mother and brother[.]

(Emphasis added.)
The family court found:

17. [The DHS report of its investigation into
alleged sexual abuse of Child by Father stated]:

. . . .

D. [Child] reported:
. . . .

vi. She has witnessed her father pull
her brother['s] arm and drag him into the house. This
happened during her . . . birthday party. Her father did it
because [her brother] disrespected him so he pulled him out
of the party, "threw" him in his room, and "screamed" at
him.

Father argues that the family court erred because his
pulling of Child's brother's arm, dragging him into the house,
throwing him into his room, and screaming at him was "parental
discipline," not "domestic violence or inappropriate touching."
Father did not make that argument to the family court. Had he
done so, it would have been the family court's role to weigh the
evidence and make an appropriate finding; it is not an issue to
be resolved on appeal. See State v. Kikuta, 125 Hawai#i 78, 89,
253 P.3d 639, 650 (2011) (noting that assessment of witness
credibility and weighing of the evidence is not within the
province of an appellate court, but a function of the fact finder
at trial). Father's argument was waived. Id.

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3. Father argues that "the [family] court
impermissibly shifted the burden of proof to [Father] to disprove
and negative the allegations in [Mother]'s Petition, rather than
requiring her to prove her allegations of domestic violence and
child abuse" by a preponderance of the evidence.
The Order for Protection was issued pursuant to HRS
§ 586-5.5 (2006). The statute provides, in relevant part:

(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.) The supreme court has held that under the
statute, "the petitioner has the burden to prove the allegations
in the petition by a preponderance of the evidence. . . . [T]he
petitioner retains the burden of proof during the [show cause]
hearing[.]" Hamilton ex rel. Lethem v. Lethem, 126 Hawai#i 294,
303, 270 P.3d 1024, 1033 (2012) (citing Kie v. McMahel, 91
Hawai#i 438, 442, 984 P.2d 1264, 1268 (App. 1999) ("While at that
hearing the respondent must 'show cause why' the protective order
is not necessary, HRS § 586–5.5(a), the burden remains on the
petitioner to prove the petitioner's underlying allegations by a
preponderance of the evidence.")).
In Kie we explained:

In our view, the order to a respondent to show cause is a
direction from the court to appear at a hearing to answer
and to respond to the petition's allegations, rather than a
mandate which places the burden on the respondent of
initially going forward with evidence to prove the negative
of the allegations.

Kie, 91 Hawai#i at 442, 984 P.2d at 1268.
The family court made a conclusion of law stating:

5. Hawaii Revised Statutes Section 586-5.5. If,
after hearing relevant evidence, a respondent fails to show
cause why a restraining order should not be granted, an
order, for a fixed period of time as the court deems
appropriate, shall issue.

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This conclusion of law fails to state that the petitioner has the
burden to prove the allegations in the petition by a
preponderance of the evidence. Thus, this conclusion erroneously
places the burden of proof on Father. Hamilton ex rel. Lethem,
126 Hawai#i at 303, 270 P.3d at 1033.
Nevertheless, the family court evaluated the
credibility of the witnesses and correctly weighed the evidence
in the context of Mother's burden to prove the allegations by a
preponderance of the evidence, finding and concluding:

70. After weighing the evidence and the credibility
of the parties and the witnesses[,] [Mother]'s evidence was
credible and indicated more likely than not:

A. [Father] physically abused [Mother] on
several occasions.

B. More likely than not [Father] engaged in
inappropriate touching of the parties' minor [C]hild.

C. A 10-year order of protection should issue
against [Father] beginning April 30, 2018 to April 30, 2028.

A mixed finding of fact and conclusion of law is
reviewed under the "clearly erroneous" standard because the
determination is dependent on the facts and circumstances of each
individual case. Est. of Klink, 113 Hawai#i at 351, 152 P.3d at
523. The family court's findings were supported by substantial
evidence in the record. They were not clearly erroneous. As in
Kie, although the family court erred in stating the law in COL
no. 5, the court applied the correct burden of proof and found
that Mother proved the allegations of abuse by a preponderance of
the evidence. 91 Hawai#i at 444, 984 P.2d at 1270.
4. Father argues that he was "'convicted' of sexual
misconduct . . . based entirely on hearsay, confirmed by a [Child
Protective Services] worker without disclosing the allegations to
him or allowing [him] to respond to these hearsay claims."
Father was not "convicted" of anything because the family court
proceeding below was civil, not criminal, in nature. For the

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reasons discussed in the previous sections, Father's other
arguments lack merit.
For the foregoing reasons, the Order for Protection
entered by the family court on April 30, 2018, is affirmed.
DATED: Honolulu, Hawai#i, February 28, 2023.

On the briefs:
/s/ Katherine G. Leonard
Peter Van Name Esser, Presiding Judge
for Respondent-Appellant.
/s/ Keith K. Hiraoka
Rosa Flores, Associate Judge
for Petitioner-Appellee.
/s/ Derrick H.M. Chan
Associate Judge

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