NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-MAR-2024 07:53 AM Dkt. 67 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
J.D., Plaintiff-Appellee, v. D.D., Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (KONA DIVISION) (CASE NO. 3DV19100038K)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, McCullen and Guidry, JJ.)
Defendant-Appellant DD nka DG (Mother) appeals from a
November 1, 2021 post-decree order entitled Order Re: (1)
Defendant's Motion for Change of Custody to Joint, Physical &
Legal Custody Filed March 21, 2021; (2) Defendant's Motion to
Change Therapist Filed July 9, 2021; and (3) Defendant's Motion
to Set Aside "Order Granting Plaintiff's Emergency Motion to
Restrict Defendant's Visitation" Filed October 15, 2020 and
"Order Regarding November 9, 2020 Hearing" Filed December 18,
2020 Pursuant to [Hawai#i Family Court Rules (HFCR) Rule 60(b)] NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Filed July 9, 2021 (Post-Decree Order), entered by the Family
Court of the Third Circuit, Kona Division (Family Court).1
The Family Court granted a decree of divorce to
Plaintiff-Appellee JD (Father) in the September 24, 2019 Findings
and Order After Partial Trial on September 19, 2019; Exhibits A &
B (Divorce Order).2 In the Divorce Order, the Family Court
continued the issues of custody and visitation. On April 7,
2020, the Family Court entered its Divorce Decree (With Children)
(Divorce Decree),3 awarding Father legal and physical custody of
the Children, with supervised visitation to Mother, as specified
in the Divorce Decree. Mother did not file an appeal from the
Divorce Decree.
Mother raises seven points of error on appeal,
contending that the Family Court: (1) erred and abused its
discretion when denying her HFCR Rule 60(b) motion to set aside
previous orders; (2) erred and violated Mother's constitutional
rights when the court denied her the opportunity to appointed
counsel or to retain counsel, or both; (3) erred and abused its
discretion when in the Post-Decree Order, it continued supervised
visits; (4) erred when it determined that there was a finding
Mother committed family violence; (5) erred and abused its
discretion when it allowed Guardian ad Litem (GAL) Joanna Sokolow
(Sokolow) to testify as to custody and visitation
recommendations; (6) abused its discretion when it denied
1 The Honorable Jill M. Hasegawa presiding. 2 The Honorable Wendy M. DeWeese presided. 3 The Honorable Wendy M. DeWeese presided.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Mother's motion for joint legal custody and/or access to the
Children's school and school records; and (7) erred and abused
its discretion when it ordered the Children to continue their
individual therapy with Nancy Sallee (Sallee) until Children were
clinically discharged and denied Mother's motion to change the
Children's therapist.
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, as well as the relevant legal authorities, we address Mother's points of error
as follows:
As noted above, Mother did not file an appeal from the
Divorce Decree which awarded Father custody and granted Mother
limited visitation. However, several post-decree motions were
filed, followed by Mother's Rule 60(b) Motion and the Post-Decree
Order that is the subject of this appeal.4
(1) Mother contends that the Family Court abused its
discretion and erred when it declined to set aside two prior
post-decree orders temporarily limiting Mother's visitation with
the Children. The Family Court entered these orders temporarily
limiting Mother's visitation with the Children after receiving,
inter alia, recommendations from the Children's therapist and
alarming reports regarding Mother's behavior and the Children's
well-being. After the reappointment of the GAL who had
4 We note that on September 20, 2022, the Family Court entered a Stipulated Order Regarding Custody, providing that the parties will share joint physical and legal custody of the Children, effectively granting Mother the substantive relief regarding custody that she sought in various post-decree motions leading to the Post-Decree Order.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
previously served in this case, visitation was incrementally
reinstated, and ultimately restored to twice weekly supervised
visitation, in addition to certain Facetime visitation. The
interim orders were entered after notice and hearings at which
Mother participated. Under the circumstances of this case,
Mother's contentions that the interim orders violated her due
process and parental rights is wholly without merit.
(2) Mother contends that the Family Court violated her
constitutional rights when it proceeded with the September 14, 2020 hearing without allowing her to first retain or be appointed
counsel. Upon review of the hearing transcript, Mother
repeatedly objected to being unrepresented, but did not seek a
continuance to retain counsel, instead arguing that she could not
afford to hire an attorney. On appeal, Mother contends that the
right to counsel in child welfare cases for indigent parents
should be extended to indigent parents, inter alia, in all
custody cases. There is no basis for this court to grant
Mother's request.
(3) Mother contends that the Family Court erred in the
Post-Decree Order when it continued supervised visits without
findings of fact or an adequate basis in the record that Mother
was unable to act in the best interest of the Children.
As noted above, in the Divorce Decree, the Family Court
granted legal and physical custody of the Children to Father,
with supervised visitation to Mother. Mother's request for
discontinuation of supervision of her visitation was a request
for a modification of the custody award. Hawaii Revised Statutes
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(HRS) § 571-46(a)(6) (2018) provides that "[a]ny custody award
shall be subject to modification or change whenever the best
interests of the child require or justify the modification or
change[.]" See generally Waldecker v. O'Scanlon, 137 Hawai#i
460, 375 P.3d 239 (2016).
Mother argues variously that the Family Court erred and
abused its discretion in continuing supervised visitation, but
makes no cogent argument that it was in the best interest of the
Children to modify the custody award set forth in the Divorce Decree. We conclude that Mother's third point of error is
without merit.
(4) Mother argues that the Family Court erred at the
September 15, 2021 hearing on Mother's motion for post-decree
relief because the Family Court stated that there was a finding
of family violence, which raises a rebuttable presumption against
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-MAR-2024 07:53 AM Dkt. 67 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
J.D., Plaintiff-Appellee, v. D.D., Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (KONA DIVISION) (CASE NO. 3DV19100038K)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, McCullen and Guidry, JJ.)
Defendant-Appellant DD nka DG (Mother) appeals from a
November 1, 2021 post-decree order entitled Order Re: (1)
Defendant's Motion for Change of Custody to Joint, Physical &
Legal Custody Filed March 21, 2021; (2) Defendant's Motion to
Change Therapist Filed July 9, 2021; and (3) Defendant's Motion
to Set Aside "Order Granting Plaintiff's Emergency Motion to
Restrict Defendant's Visitation" Filed October 15, 2020 and
"Order Regarding November 9, 2020 Hearing" Filed December 18,
2020 Pursuant to [Hawai#i Family Court Rules (HFCR) Rule 60(b)] NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Filed July 9, 2021 (Post-Decree Order), entered by the Family
Court of the Third Circuit, Kona Division (Family Court).1
The Family Court granted a decree of divorce to
Plaintiff-Appellee JD (Father) in the September 24, 2019 Findings
and Order After Partial Trial on September 19, 2019; Exhibits A &
B (Divorce Order).2 In the Divorce Order, the Family Court
continued the issues of custody and visitation. On April 7,
2020, the Family Court entered its Divorce Decree (With Children)
(Divorce Decree),3 awarding Father legal and physical custody of
the Children, with supervised visitation to Mother, as specified
in the Divorce Decree. Mother did not file an appeal from the
Divorce Decree.
Mother raises seven points of error on appeal,
contending that the Family Court: (1) erred and abused its
discretion when denying her HFCR Rule 60(b) motion to set aside
previous orders; (2) erred and violated Mother's constitutional
rights when the court denied her the opportunity to appointed
counsel or to retain counsel, or both; (3) erred and abused its
discretion when in the Post-Decree Order, it continued supervised
visits; (4) erred when it determined that there was a finding
Mother committed family violence; (5) erred and abused its
discretion when it allowed Guardian ad Litem (GAL) Joanna Sokolow
(Sokolow) to testify as to custody and visitation
recommendations; (6) abused its discretion when it denied
1 The Honorable Jill M. Hasegawa presiding. 2 The Honorable Wendy M. DeWeese presided. 3 The Honorable Wendy M. DeWeese presided.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Mother's motion for joint legal custody and/or access to the
Children's school and school records; and (7) erred and abused
its discretion when it ordered the Children to continue their
individual therapy with Nancy Sallee (Sallee) until Children were
clinically discharged and denied Mother's motion to change the
Children's therapist.
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, as well as the relevant legal authorities, we address Mother's points of error
as follows:
As noted above, Mother did not file an appeal from the
Divorce Decree which awarded Father custody and granted Mother
limited visitation. However, several post-decree motions were
filed, followed by Mother's Rule 60(b) Motion and the Post-Decree
Order that is the subject of this appeal.4
(1) Mother contends that the Family Court abused its
discretion and erred when it declined to set aside two prior
post-decree orders temporarily limiting Mother's visitation with
the Children. The Family Court entered these orders temporarily
limiting Mother's visitation with the Children after receiving,
inter alia, recommendations from the Children's therapist and
alarming reports regarding Mother's behavior and the Children's
well-being. After the reappointment of the GAL who had
4 We note that on September 20, 2022, the Family Court entered a Stipulated Order Regarding Custody, providing that the parties will share joint physical and legal custody of the Children, effectively granting Mother the substantive relief regarding custody that she sought in various post-decree motions leading to the Post-Decree Order.
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
previously served in this case, visitation was incrementally
reinstated, and ultimately restored to twice weekly supervised
visitation, in addition to certain Facetime visitation. The
interim orders were entered after notice and hearings at which
Mother participated. Under the circumstances of this case,
Mother's contentions that the interim orders violated her due
process and parental rights is wholly without merit.
(2) Mother contends that the Family Court violated her
constitutional rights when it proceeded with the September 14, 2020 hearing without allowing her to first retain or be appointed
counsel. Upon review of the hearing transcript, Mother
repeatedly objected to being unrepresented, but did not seek a
continuance to retain counsel, instead arguing that she could not
afford to hire an attorney. On appeal, Mother contends that the
right to counsel in child welfare cases for indigent parents
should be extended to indigent parents, inter alia, in all
custody cases. There is no basis for this court to grant
Mother's request.
(3) Mother contends that the Family Court erred in the
Post-Decree Order when it continued supervised visits without
findings of fact or an adequate basis in the record that Mother
was unable to act in the best interest of the Children.
As noted above, in the Divorce Decree, the Family Court
granted legal and physical custody of the Children to Father,
with supervised visitation to Mother. Mother's request for
discontinuation of supervision of her visitation was a request
for a modification of the custody award. Hawaii Revised Statutes
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(HRS) § 571-46(a)(6) (2018) provides that "[a]ny custody award
shall be subject to modification or change whenever the best
interests of the child require or justify the modification or
change[.]" See generally Waldecker v. O'Scanlon, 137 Hawai#i
460, 375 P.3d 239 (2016).
Mother argues variously that the Family Court erred and
abused its discretion in continuing supervised visitation, but
makes no cogent argument that it was in the best interest of the
Children to modify the custody award set forth in the Divorce Decree. We conclude that Mother's third point of error is
without merit.
(4) Mother argues that the Family Court erred at the
September 15, 2021 hearing on Mother's motion for post-decree
relief because the Family Court stated that there was a finding
of family violence, which raises a rebuttable presumption against
placing the Children in joint custody with the perpetrator of
violence, which was previously established by the court. Mother
contends that there was no opportunity to bring this error to the
Family Court's attention prior to the court's order. It appears,
however, that there was ample back and forth between Mother's
attorney and the Family Court after the court made this part of
its oral explanation for its denial of Mother's request for
significant modification of the custody and visitation order. No
objection was made, and this issue was not brought to the Family
Court's attention. Therefore, pursuant to Hawai#i Rules of
Appellate Procedure Rule 28(b)(4)(iii), this point of error will
be disregarded.
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(5) Mother argues that the Family Court erred and
abused its discretion by allowing Sokolow to testify beyond the
scope of her report and to testify as to custody and visitation
recommendations at the September 15, 2021 evidentiary hearing.
While a GAL may be appointed to represent the best interest of a
child pursuant to HRS § 571-46(a)(8), a GAL may only offer
recommendations of child custody if they meet the requirements of
a child custody evaluator under HRS § 571-46.4 (2018).5 The
statute requires the child custody evaluator to meet certain credentialing requirements. Id.
Here, however, Sokolow did not testify or render any
opinion as to custody, and the Family Court did not allow Sokolow
to testify as to custody or visitation recommendations. Sokolow
5 HRS § 571-46.4 provides, in pertinent part: § 571-46.4 Child custody evaluators; qualification; registry; complaints. (a) A person may be appointed as a child custody evaluator for purposes of section 571-46 if the person is actively licensed as a: (1) Physician under chapter 453 and is a board certified psychiatrist or has completed a residency in psychiatry; (2) Psychologist under chapter 465; (3) Marriage and family therapist under chapter 451J; or (4) Clinical social worker under section 467E-7(3). (b) A person may be appointed as a child custody evaluator in the absence of a license under subsection (a) if: (1) The individual has obtained education and training that meet nationally recognized competencies and standards of practice in child custody evaluation; provided that there are no child custody evaluators enumerated under subsection (a) who are willing and available, within a reasonable period of time, to perform child custody evaluations; or (2) The parties stipulate to a person who does not qualify as a child custody evaluator under subsection (a) and the court approves that person as a fact-finding investigator to the court.
6 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
testified solely to the comments and personal observations that
she documented in her first, second, and updated reports. In
those reports, Sokolow did not make recommendations as to whether
joint custody should be awarded and only commented on how the
Children would respond to increased visitation.
For example, in the updated report, Sokolow states that
"[v]isitation could be increased incrementally" because it would
"allow for more enjoyable experiences for the children." This is
not an opinion as to how the issue of visitation should be resolved. On cross-examination, Mother's counsel asked, "is it
your position that it's the best interest of the children that
supervised visits should go on indefinitely," in response to
which Sokolow stated that it would not be in their best interest.
Sokolow did not testify that she recommended the court should or
should not continue supervised visits; rather, Sokolow answered
counsel's question.
Mother does not point to any specific testimony in
which Sokolow testified outside the scope of her reports.
We conclude that the Family Court did not abuse its
discretion or err in permitting Sokolow's testimony.
(6) Mother argues that the Family Court abused its
discretion when it denied Mother's motion for joint legal custody
and/or access to the Children's school and school records. We
take judicial notice of the fact that on September 20, 2022,
Mother has since been awarded joint legal custody. Therefore,
this court can no longer grant effective relief and this issue is
7 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
moot. See, e.g., Bank of N.Y. Mellon v. R. Onaga, Inc., 140
Hawai#i 358, 365-66, 400 P.3d 559, 566-67 (2017).
(7) Mother argues that the Family Court erred and
abused its discretion when it ordered the Children to remain in
therapy with Sallee until clinically discharged. We take
judicial notice of the fact that on September 20, 2022, the
parties agreed and the Family Court ordered, inter alia, that
Sallee be discharged. Therefore, this court can no longer grant
effective relief and this issue is moot. In accordance with the above, to the extent that
Mother's appeal from the November 1, 2021 Post-Decree Order is
moot, this appeal is dismissed; the November 1, 2021 Post-Decree
Order is otherwise affirmed.
DATED: Honolulu, Hawai#i, March 27, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Michael S. Zola, for Defendant-Appellant. /s/ Sonja M.P. McCullen Associate Judge
/s/ Kimberly T. Guidry Associate Judge