NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-FEB-2022
08:02 AM
Dkt. 118 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DL, Plaintiff-Appellant, v.
CL, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 16-1-1014)
MEMORANDUM OPINION
(By: Wadsworth, Presiding Judge, and Nakasone and McCullen, JJ.)
This appeal arises out of a custody dispute related to
divorce proceedings between Plaintiff-Appellant DL (Father) and
self-represented Defendant-Appellee CL (Mother). Father appeals
from the "Order Re: Joint Evidentiary Hearing of August 28,
2020" (Order), entered on September 3, 2020, in the Family Court
of the First Circuit (Family Court).1/
On appeal, Father contends that: (1) the Family Court
erred in declining to exercise its exclusive, continuing
jurisdiction over this case and in relinquishing jurisdiction to
the State of Arizona; and (2) the Family Court erred in not
addressing Father's request that the court confirm that Father
had rebutted any presumption against custody before relinquishing
jurisdiction to Arizona. Father also argues that any further
matters in this case should be heard by a different judge.
For the reasons explained below, we vacate the Order.
1/
The Honorable Gale L.F. Ching presided.
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I. Background
This case has a long history. See DL v. CL, No. SCWC-
XX-XXXXXXX, 2022 WL 263219, at *1-4 (Haw. Jan. 28, 2022) (mem.
op.) (DL IV), aff'g in part and vacating in part No. CAAP-18-
0000704, 2021 WL 1614343 (Haw. App. April 26, 2021) (mem. op.).
We last summarized the factual and procedural background prior to
mid-2018 as follows:
Father and [Mother] . . . married in 2008. They have two
minor children (Children). In 2015, Father, Mother, and
Children moved from California to Hawai#i. They lived in a
cottage on Father's parents' property. DL v. CL, 146
Hawai#i 415, 417, 463 P.3d 1072, 1074 (2020) (DL III).
On July 10, 2016, Mother took Children with her to Arizona
due to family abuse by Father. DL III at 417, 463 P.3d at
1074. Mother filed for divorce in Arizona. On August 3,
2016, Father filed for divorce in Hawai#i. Mother's Arizona
petition was eventually dismissed.
. . . .
The divorce trial began on July 31, 2017, and ended on
January 9, 2018. Mother returned to Arizona shortly after
the divorce trial ended to start a new job. DL III at 417,
463 P.3d at 1074. Children remained in Hawai #i with Father
because the family court had not yet ruled on post-decree
child custody or relocation.
On March 26, 2018 (before entry of the divorce decree),
Father filed a notice of appeal from pre-decree orders
awarding Mother sole physical custody of Children and
permitting Children's relocation to Arizona. We affirmed.
DL v. CL, No. CAAP-XX-XXXXXXX, 2019 WL 968052 (Haw. App.
Feb. 28, 2019) (SDO). Father petitioned for certiorari.
The supreme court affirmed. DL v. CL, 146 Hawai #i 328, 463
P.3d 985 (2020) (DL I).
Meanwhile, the family court entered the Divorce Decree on
April 26, 2018. The decree: (1) dissolved the marriage;
(2) awarded legal custody of the Children jointly to Father
and Mother, physical custody solely to Mother (authorizing
Children to relocate to Arizona after July 1, 2018), 2/ and
future child support to Mother; and (3) divided and
distributed Father's and Mother's property and debts. . . .
Father then filed a second notice of appeal, from the
Divorce Decree and other orders. We affirmed the family
court's child custody and support decisions . . . . DL v.
CL, No. CAAP-XX-XXXXXXX, 2019 WL 4934660 (Haw. App. Oct. 7,
2019) (SDO) (DL II). Father's petition for writ of
certiorari was dismissed. DL v. CL, No. SCWC-XX-XXXXXXX,
2020 WL 2070350, at *1 (Haw. Apr. 29, 2020).
2021 WL 1614343, at *1-2 (footnote added).
2/
The family court also gave Mother "tie breaking authority" over
legal custody issues concerning the Children.
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As relevant to the present appeal, on July 2, 2020,
Father filed a motion to adjust legal and physical custody of the
Children (Motion to Adjust Custody), along with an ex parte
motion to shorten time to hear the motion (Motion to Shorten
Time). At that time, the Children were visiting Father in
Hawai#i. Father's motion sought a Family Court order "permitting
the Children to remain with Father in Hawaii, rather than
returning to Phoenix, Arizona," based on Father's argument that
Phoenix "has become a global epicenter of the coronavirus
pandemic and is worsening by the day."
On July 7 and 8, 2020, respectively, Mother filed an
opposition and a supplemental opposition to Father's Motion to
Shorten Time. Mother argued that the Family Court lacked
jurisdiction to hear Father's Motion to Shorten Time and the
underlying Motion to Adjust Custody. Mother requested that the
Family Court "deny Father's . . . Motion to Shorten Time and the
Underlying Motion based on the fact that Arizona is now the
Children's home state." Alternatively, Mother requested "that
the Hawaii Judge confer with the Arizona judge in order for the
judges to decide which state will exercise jurisdiction."
The Family Court heard Father's Motion to Adjust
Custody on July 13, 2020. During the hearing, Mother asserted
that "the Hawaii court even lacks jurisdiction to hear this
motion[.]" Mother further asserted that she had registered the
Divorce Decree in Arizona, the children had lived in Arizona for
two years, the Arizona court had accepted jurisdiction over
financial issues, and she had "asked them to accept jurisdiction
over custody issues through a motion to modify legal decision
making, legal custody, that was filed in October 2019." Mother
requested that the Family Court "send the children home, and
dismiss this motion for lack, you know, with leave to refile once
jurisdiction is sorted out, whether it's Arizona or Hawaii, but
the children have lived in Arizona for over two years."
Father argued that pursuant to the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA), see infra,
Hawai#i has continuing exclusive jurisdiction. Father maintained
that Mother "has not done anything she needs to do . . . to have
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jurisdiction being changed from Hawaii to Arizona. The process
isn't just to file in Arizona and then -- and then mention it to
you when [Father] files a motion here."
The Family Court expressed concerns about inconsistent
decisions and stated, "[W]e now have two Courts involved in this
matter, the Hawaii Court and the Arizona Court." The Family
Court further stated that it would contact the Arizona court so
that "the Court can have a discussion . . . concerning whether or
not an evidentiary hearing should be held on jurisdiction. . . ."
The Family Court then took the Motion to Adjust Custody under
advisement and ordered that "the children will remain in Hawaii
until further order of the Court."
On July 29, 2020, the Family Court issued a "Notice
Setting Joint Evidentiary Hearing." The notice stated that "a
Joint Evidentiary Hearing is scheduled with the Honorable Joseph
Kiefer of Maricopa [County], Arizona. . . concerning the issue of
Jurisdiction." The notice set deadlines for the parties to file
briefs.
On August 3, 2020, Father filed "Plaintiff's Brief Re:
'Issue of Jurisdiction,'" contending that Hawai#i has exclusive
continuing jurisdiction over custody issues pursuant to the
UCCJEA and listing the parties' various motions pending in
Hawai#i and Arizona courts. Father also set out the children's
connections with Hawai#i and the fact that Father still resides
in Hawai#i. After asserting that neither prong of the statutory
test for Hawai#i "to lose jurisdiction" could be met (see infra),
Father argued, "[n]or would it be appropriate for this Court to
decline to exercise its jurisdiction over Father's Motion."
Father further argued: "No motion has been [made] for this Court
to decline to exercise its jurisdiction and to allow Arizona to
modify any determination made by this Court. And, even if such a
motion had been made, it would be overwhelmingly inappropriate
under the circumstances." Mother did not file a brief or motion
in advance of the joint evidentiary hearing.
On August 22, 2020, the Family Court rescheduled the
joint evidentiary hearing for August 28, 2020. On August 26,
2020, Father filed a motion for the immediate termination of
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Mother's tie-breaking authority and to allow the Children to be
enrolled in Hawai#i school (Motion to Terminate Tie-Breaking
Authority).3/
On August 28, 2020, the Family Court held a joint
evidentiary hearing with the parties and the Arizona court. At
the outset, Father stated, "[I]t's unclear why we are here today
and why we are discussing jurisdiction. [Mother] has not filed
anything with this Court regarding today's joint evidentiary
hearing." Father further stated:
[I]n response to [Father's] July 13 [sic] motion, which is
all about the kids remaining here in Hawaii, [Mother] asked
you to not make a decision. But she did not give any valid
UCCJEA based reason why you shouldn't make a decision.
So we are here today and being asked to provide
evidence in a matter that we have neither read a motion nor
have we seen any brief. We don't understand what the issue
is that we are arguing today.
Mother replied in part: "In response to Father's motion to
change physical and legal custody, I filed two oppositions, and I
noted that I --(inaudible) -- as I believe that Arizona now has
jurisdiction. And I asked Hawaii to not exercise jurisdiction on
that basis."
As to notice, the Family Court concluded:
The Court's recollection of the last hearing that we had
with the parties was that there was a question concerning
jurisdiction now that the Court was then informed of Arizona
being involved. So the Court did inform everyone that we
would be holding an evidentiary hearing with the Arizona
court on the question of jurisdiction. So the Court finds
that there was adequate notice to everyone.
The evidentiary portion of the hearing proceeded with
both Mother and Father testifying. Following testimony, the
Family Court and the Arizona court temporarily exited the
conference to confer.
After a recess, the Family Court stated:
The Court has had an opportunity to confer with the Arizona
court. The court will make the following orders based on
the evidence and the arguments that were presented.
3/
It appears Mother had contacted Noelani and Punahou schools to
inform them that she did "not consent to the children being registered to
attend" and that pursuant to the Divorce Decree, she had "tie-breaking
authority for legal decision making so [Father] cannot register them without
my consent."
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The Court does not find significant connections with
Hawaii at the present time. Based on the evidence, the
Court is not going to continue exclusive and continuing
jurisdiction in Hawaii. The Court will relinquish
jurisdiction and allow Arizona to proceed with this matter
with the exception of the one matter dealing with the remand
issue on the issue of child support.
The Family Court then denied Father's Motion to Adjust Custody
and Motion to Terminate Tie-Breaking Authority, without prejudice
to Father refiling the motions in Arizona. The Family Court
ordered "that the children be returned immediately to Mother."
Father requested that the Family Court "make a finding
in conjunction with your decision today that [Father] does not
now pose a danger nor a safety risk to the minor children." The
Family Court responded, "the record will -- as it stands will
speak for itself." The Family Court then added:
[I]n addition to the earlier basis and ruling, the Court
also does cite [Hawaii Revised Statutes (HRS) §] 583A-207,
inconvenient forum. The Court also finds that even if the
Court were to exercise jurisdiction, that it would be an
inconvenient forum under the circumstances and that another
court, specifically Arizona, would be a more appropriate
forum. So that's incorporated into the Court's ruling.
On September 3, 2020, the Family Court entered the
Order. The Order stated, in relevant part:
Findings of Fact [(FOFs)]
1. [Father] and [Mother] are the parents of minors
. . . (collectively hereinafter "Minor
Children").
2. A "Decree Of Divorce" was entered and filed on
or about April 26, 2018.
3. The Decree Of Divorce awarded [Father] and
[Mother] with joint legal custody with [Mother]
having "tie-breaking authority" and [Mother]
with sole physical custody of the Minor
Children.
4. Since approximately 2018, [Mother] and the Minor
Children have been living in Arizona.
5. In approximately, January 2019 [Mother]
registered the Hawaii Divorce Decree in the
State of Arizona.
6. The Hawaii Appellate Court had affirmed the
earlier Family Court's order allowing [Mother]
and the Minor Children to relocate to
Arizona. . . .
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7. [Mother] has a support system in the Arizona
area where she resides with the Minor Children
as she has relatives that lives [sic] in the
same general area.
8. Since approximately 2018, the Minor Children
have been enrolled in and have attended schools
located in the Arizona area where [Mother]
resides.
9. The Minor Children have been seen by their
Physicians in the Arizona area.
10. The Minor Children have participated in extra
curricular activities in Arizona.
11. [Mother] is employed as an attorney in Arizona
and earns substantial income . . . .
12. [Father] is a self employed attorney whose
income is substantially less than that of
[Mother].
13. The State Of Arizona is determined to be a more
convenient venue to now address issues
concerning the Parties and the Minor Children.
Based on the Findings Of Fact, the Court makes the
following Conclusions Of Law:
Conclusions Of Law [(COLs)]
1. At present, the State Of Hawaii has jurisdiction
over this matter, but the State Of Arizona is
determined to be a more appropriate forum to
address pending and future issues involving the
Parties and the Minor Children.
2. The State Of Hawaii declines and relinquishes
jurisdiction over this matter to the State Of
Arizona with the exception of the State Of
Hawaii having to address certain issues for
final disposition as had been directed by the
Hawaii Appellate Courts.
3. Hawaii is determined to be an inconvenient forum
under the circumstances and that the State Of
Arizona is found to be a more appropriate forum
to address the Parties' present and future
issues. See Section 583A-207 of the Hawaii
Revised Statutes.
Based on the above Findings Of Facts and Conclusions
Of Law, the Court makes the following Orders:
1. The State Of Hawaii declines to exercise
jurisdiction over this matter and relinquishes
jurisdiction over to the State Of Arizona, and
2. The State Of Arizona shall assume jurisdiction
over this matter with the exception of the State
Of Hawaii Courts having to address certain
issues for final disposition as earlier directed
by the Hawaii Appellate Courts.
(Footnotes omitted.) This appeal followed.
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II. Discussion
Father contends that the Family Court erred in
declining to exercise its jurisdiction over this case and in
relinquishing jurisdiction to the State of Arizona. Father
argues in part that Hawai#i has exclusive continuing jurisdiction
over its child custody orders, pursuant to HRS § 583A-202(a), and
the Family Court failed to consider all relevant factors and to
make sufficient findings, pursuant to HRS § 583A-207, to support
the court's decision to decline jurisdiction.
The UCCJEA "governs jurisdictional issues that arise in
interstate child custody proceedings and is codified in Hawai#i
in HRS chapter 583A." MJ v. CR, 150 Hawai#i 23, 30, 496 P.3d
501, 508 (App. 2021) (quoting NB v. GA, 133 Hawai#i 436, 440, 329
P.3d 341, 345 (App. 2014)). As relevant here, HRS § 583A–202
(2018) provides, in relevant part:
(a) Except as otherwise provided in section 583A–204,
a court of this State which has made a child-custody
determination consistent with section 583A–201 or 583A–203
has exclusive, continuing jurisdiction over the
determination until:
(1) A court of this State determines that the child,
the child's parents, and any person acting as a
parent do not have a significant connection with
this State and that substantial evidence is no
longer available in this State concerning the
child's care, protection, training, and personal
relationships; or
(2 A court of this State or a court of another
state determines that the child, the child's
parents, and any person acting as a parent do
not presently reside in this State.
The parties do not dispute that the Family Court made
child-custody determinations in the underlying divorce proceeding
consistent with HRS § 583A–201. The Family Court thus had
exclusive, continuing jurisdiction over those determinations when
Father filed motions seeking to modify them during the summer of
2020. Indeed, the Family Court correctly acknowledged its
jurisdiction in COL 1. This jurisdiction would continue "until
the Family Court explicitly declined jurisdiction or none of the
parties remained in Hawai#i." NB, 133 Hawai#i at 442, 329 P.3d at
347 (citing Beam v. Beam, 126 Hawai#i 58, 60–61, 266 P.3d 466,
468–69 (App. 2011) ("When a Hawai#i court properly asserts
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jurisdiction and makes an initial child custody determination,
that court retains 'exclusive, continuing jurisdiction over the
determination.'" (quoting HRS § 583A–202))).
The Order makes clear that the Family Court declined
jurisdiction "over this matter" based on the court's
determination, pursuant to HRS § 583A–207, that Hawai#i is an
"inconvenient forum."4/ The court expressly referenced section
583A–207 in COL 3. In contrast, the court made no reference to
HRS § 583A–202 in the Order, and did not include necessary
findings to support a determination that the court no longer had
jurisdiction under parts (1) or (2) of that section.
HRS § 583A-207 (2018) states, in relevant part:
(a) A court of this State which has jurisdiction under
this chapter to make a child-custody determination may
decline to exercise its jurisdiction at any time if it
determines that it is an inconvenient forum under the
circumstances and that a court of another state is a more
appropriate forum. The issue of inconvenient forum may be
raised upon the motion of a party, the court's own motion,
or request of another court.
(b) Before determining whether it is an inconvenient
forum, a court of this State shall consider whether it is
appropriate for a court of another state to exercise
jurisdiction. For this purpose, the court shall allow the
parties to submit information and shall consider all
relevant factors, including:
(1) Whether domestic violence has occurred and is
likely to continue in the future and which state
could best protect the parties and the child;
(2) The length of time the child has resided outside
this State;
(3) The distance between the court in this State and
the court in the state that would assume
jurisdiction;
(4) The relative financial circumstances of the
parties;
(5) Any agreement of the parties as to which state
should assume jurisdiction;
(6) The nature and location of the evidence required
to resolve the pending litigation, including
testimony of the child;
(7) The ability of the court of each state to decide
the issue expeditiously and the procedures
necessary to present the evidence;
4/
"[A] trial court's written order controls over its oral
statements." State v. Milne, 149 Hawai#i 329, 335, 489 P.3d 433, 439 (2021).
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(8) The familiarity of the court of each state with
the facts and issues in the pending litigation;
and
(9) The physical and psychological health of the
parties.
"A family court's decision to decline jurisdiction
[under HRS § 583A-207] is reviewed for abuse of discretion." NB,
133 Hawai#i at 444, 329 P.3d at 349 (citing Fisher v. Fisher, 111
Hawai#i 41, 46, 137 P.3d 355, 360 (2006)). In NB, we concluded
that we could not properly determine whether the family court
abused its discretion in declining jurisdiction, where the court
had not made findings regarding any of the factors listed in HRS
§ 583A-207(b). Id. We explained in NB:
The language of Section 207 states that a court "shall
consider all relevant factors" and "allow the parties to
submit information". [HRS] § 583A–207(b). Numerous other
jurisdictions have held that where a court declines
jurisdiction without considering all of the statutory
factors in its equivalent of subsection (b) of Section 207,
or allowing the parties to present facts or arguments, it
constitutes an abuse of discretion.
Id. (citing several cases); see also In re McAndrews, 193 A.3d
834, 841 (N.H. 2018) ("The trial court's failure to provide a
meaningful analysis of the factors that it relied upon in
reaching its conclusion and its failure to address each specific
factor required by the UCCJEA are untenable and unreasonable to
the prejudice of the petitioner's case, and, therefore, its
decision that Indiana is the more convenient forum constitutes an
unsustainable exercise of its discretion."); Hubert v. Carmony,
494 P.3d 592, 595, 596 (Ariz. Ct. App. 2021) (stating that
Arizona's equivalent of HRS § 583A-207, "should be interpreted to
require that a court make express findings about all relevant
factors on the record" and holding that failure to address each
factor constitutes an abuse of discretion); Goode v. Sandoval, 98
N.Y.S.3d 332, 334 (N.Y. App. Div. 2019) (stating that "[a]
court's failure to consider the statutory factors is an
improvident exercise of discretion" and remanding where the
"Family Court failed to delineate the factors it considered in
determining that New York was an inconvenient forum.").
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Here, as in NB, the Family Court made no findings
regarding any of the factors listed in HRS § 583A-207(b). At the
conclusion of the August 28, 2020 joint evidentiary hearing, the
Family Court simply stated: "[I]n addition to the Court's
earlier ruling, the Court incorporates [HRS] 583A-207, finding
that this Hawaii court would not be a convenient forum under the
circumstances and that another court, specifically Arizona, would
be a more appropriate forum." The court's subsequent Order
includes FOFs that may bear on some of the statutory factors, but
the Order does not address "all relevant factors" and fails to
identify the factors that the court relied on in declining
jurisdiction under HRS § 583A-207. On this record, we cannot
properly determine whether the Family Court abused its discretion
in declining to exercise jurisdiction over its child custody
determinations and in relinquishing jurisdiction to the State of
Arizona. See NB, 133 Hawai#i at 444, 329 P.3d at 349; see also
In re Elaine Emma Short Revocable Living Tr. Agreement, 147
Hawai#i 456, 465, 465 P.3d 903, 912 (2020) ("[W]hen the lower
court has failed to issue the requisite findings of fact to
enable meaningful appellate review, it is not the function of the
appellate court to conduct its own evidentiary analysis." (citing
Goo v. Arakawa, 132 Hawai#i 304, 317, 321 P.3d 655, 668 (2014))).
Morever, it is not clear what the Family Court intended
in declining to exercise jurisdiction, and in relinquishing
jurisdiction to Arizona, "over this matter," with the exception
of "certain issues for final disposition as had been directed by
the Hawaii Appellate Courts." (Footnote omitted.) The UCCJEA
governs jurisdictional issues that arise in interstate child-
custody proceedings, and HRS § 583A-207 authorizes a court with
jurisdiction to make a "child-custody determination"5/ to decline
to exercise its jurisdiction if it determines that it is an
inconvenient forum under the circumstances and that a court of
another state is a more appropriate forum. To the extent that
5/
"Child-custody determination" is defined as "a judgment, decree,
or other order of a court providing for legal custody, physical custody, or
visitation with respect to a child. The term includes a permanent, temporary,
initial, and modification order. The term does not include an order relating
to child support or other monetary obligation of an individual." HRS
§ 583A–102 (2018).
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the Family Court declined to exercise jurisdiction over issues in
the underlying divorce proceeding that do not involve the court's
child-custody determinations, the court did not identify the
authority supporting its decision. For this additional reason,
we cannot properly determine whether the Family Court abused its
discretion in declining to exercise jurisdiction "over this
matter."
Accordingly, we vacate the Order in its entirety and
remand the case for proceedings consistent with this Memorandum
Opinion.6/ Given our conclusion, we do not reach the remaining
issues raised by Father in his first and second points of error.
Father's request that this case be remanded to a different judge
is denied.
For the reasons discussed above, we vacate the "Order
Re: Joint Evidentiary Hearing of August 28, 2020," entered on
September 3, 2020, in the Family Court of the First Circuit, and
remand the case to the Family Court for further proceedings
consistent with this Memorandum Opinion.
DATED: Honolulu, Hawai#i, February 28, 2022.
/s/ Clyde J. Wadsworth
On the briefs: Presiding Judge
Philip J. Leas
(Cades Schutte LLP) /s/ Karen T. Nakasone
for Plaintiff-Appellant. Associate Judge
Crystal Waitkus,
Self-represented Defendant- /s/ Sonja M.P. McCullen
Appellee. Associate Judge
6/
It is not apparent from the record precisely what matters remain
to be decided by the Family Court. Father's Motion to Adjust Custody and
Motion to Terminate Tie-Breaking Authority were denied without prejudice to
his refiling them in the Arizona court. On appeal, Father does not appear to
challenge the denial of these motions; indeed, he asserts that the motions are
"effectively moot." Nevertheless, to the extent matters concerning the Family
Court's custody determinations are still pending before the Family Court, or
will arise in the future, our decision to vacate the Order is without
prejudice to the issue of inconvenient forum being raised upon the motion of a
party, the court's own motion, or request of another court, as provided in HRS
§ 583A–207.
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