Meyer v. Basco

516 P.3d 986, 151 Haw. 432

• Court: Hawaii Intermediate Court of Appeals
• Decided: September 20, 2022
• Docket: CAAP-21-0000027
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 20-SEP-2022 08:46 AM Dkt. 78 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

KIEU MEYER; STEPHEN MEYER; KIEU MEYER on behalf of a Minor, Petitioners-Appellees, v. MARY BASCO; JAMES BASCO, Respondents-Appellants.

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT WAILUKU DIVISION (CASE NO. 2DSS-XX-XXXXXXX)

MEMORANDUM OPINION (By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)

Respondents-Appellants Mary and James Basco

(collectively, Bascos) appeal from the District Court of the

Second Circuit's January 11, 2021 Order Granting Petition for

Injunction Against Harassment and February 8, 2021 Order

Regarding Attorneys' Fees and Costs. 1

On appeal, the Bascos challenge the district court's

jurisdiction. Relying on Hawai‘i Revised Statutes (HRS) § 604-

10.5(g) (2016), the Bascos assert that the temporary restraining

1 The Honorable Blaine J. Kobayashi presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

order in this case expired on August 30, 2020 and, thus, the

district court "lacked jurisdiction to enter the Order Granting

Petition for Injunction Against Harassment on January 11, 2021"

and to award attorneys' fees and costs. We affirm. 2

On June 1, 2020, the Petitioners-Appellees Kieu Meyer,

Stephen Meyer, and Kieu Meyer on behalf of a minor

(collectively, Meyers) petitioned the district court for, inter

alia, (1) "[a]n ex parte temporary restraining order not to

exceed a period of ninety (90) days . . ." and (2) "[a]n order

of an Injunction not to exceed a period of three (3)

years . . . ." That same day, the district court granted the

temporary restraining order against the Bascos "for fifteen (15)

days, unless extended or terminated by the Court."

The district court held a hearing on the Meyer's

petition for injunction on June 15, 2020. However, due to the

contested nature of this case, further hearings were necessary,

and were held on July 6, 2020, August 17, 2020, September 28,

2020, December 7, 2020, and January 11, 2021. Each order for

continuance also ordered that the June 1, 2020 temporary

restraining order shall remain in effect.

2 The Bascos do not challenge extensions to the temporary restraining order by the district court except to the extent it affected the district court's jurisdiction to issue the injunction against harassment on January 11, 2021, and to award fees and costs. Given our analysis below, we need not address whether the temporary restraining order expired on August 30, 2020 (i.e., after 90 days) or whether orders related to the COVID- 19 pandemic extended the statutory time period.

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On December 28, 2020, after five hearings on the

injunction petition, the Bascos filed a motion to dismiss

asserting the district court no longer had jurisdiction to

proceed because more than ninety days had passed since the

issuance of the temporary restraining order. The district court

denied the motion to dismiss and granted the request to enjoin

harassment on January 11, 2021.

The Bascos' points of error on appeal require an

interpretation of HRS § 604-10.5 (2016) to determine whether the

alleged expiration of a temporary restraining order divests the

district court of jurisdiction over a petition to enjoin. We

review questions of statutory interpretation and subject matter

jurisdiction de novo. See Bhakta v. Cnty. of Maui, 109 Hawai‘i

198, 208, 124 P.3d 943, 953 (2005); Lingle v. Hawai‘i Gov't Emps.

Ass'n, AFSCME, Local 152, AFL-CIO, 107 Hawai‘i 178, 183, 111 P.3d

587, 592 (2005).

"[D]istrict courts shall have the power to enjoin,

prohibit, or temporarily restrain harassment" and "[a]ny person

who has been subjected to harassment may petition the district

court of the district in which the petitioner resides for a

temporary restraining order and an injunction from further

harassment." HRS § 604-10.5(b), (c).

"Upon petition to a district court under this section,

the court may temporarily restrain the person or persons named

in the petition from harassing the petitioner upon a

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determination that there is probable cause to believe that a

past act or acts of harassment have occurred . . . ." HRS

§ 604-10.5(f). That temporary restraining order, however,

"shall remain in effect at the discretion of the court for a

period not to exceed ninety days from the date the order is

granted." HRS § 604-10.5(g).

Once a petition for a temporary restraining order is

granted, a hearing must then be held on the petition to enjoin

within fifteen days or as set forth below:

A hearing on the petition to enjoin harassment shall be held within fifteen days after the temporary restraining order is granted. If service of the temporary restraining order has not been effected before the date of the hearing on the petition to enjoin, the court may set a new date for the hearing; provided that the new date shall not exceed ninety days from the date the temporary restraining order was granted.

HRS § 604-10.5(g). "The parties named in the petition may file

or give oral responses explaining, excusing, justifying, or

denying the alleged act or acts of harassment." HRS § 604-

10.5(g).

Regarding the petition to enjoin, should the district

court find by clear and convincing evidence harassment of

"[p]hysical harm, bodily injury, assault, or the threat of

imminent physical harm, bodily injury, or assault," "it may

enjoin for no more than three years further harassment of the

petitioner[.]" HRS § 604-10.5(a), (g) (emphasis added). Should

the district court find by clear and convincing evidence

harassment of "[a]n intentional or knowing course of conduct

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directed at an individual that seriously alarms or disturbs

consistently or continually bothers the individual and serves no

legitimate purpose; provided that such course of conduct would

cause a reasonable person to suffer emotional distress[,]" "it

shall enjoin for no more than three years further harassment of

the petitioner[.]" HRS § 604-10.5(a), (g) (emphasis added).

Restated, a petitioner makes two separate requests to

the district court–a request for a temporary restraining order

and a request to enjoin harassment (i.e., order for injunction).

See HRS § 604-10.5(g). The petition for a temporary restraining

order may be granted on a finding of probable cause, and has a

statutory time limit of ninety days. HRS § 604-10.5(f), (g).

For the petition to enjoin harassment, the district

court must hold a hearing within fifteen days of granting the

temporary restraining order, or within the time set forth in HRS

§ 604-10.5(g). Should the district court find harassment by

clear and convincing evidence, it may or shall issue an order

granting the petition to enjoin depending on the nature of the

harassment. HRS § 604-10.5(g). That order has a statutory time

limit of three years. HRS § 604-10.5(g).

HRS § 604-10.5(g), however, does not require that the

district court decide the petition to enjoin harassment within

ninety days of granting the temporary restraining order. See

Ling v. Yokoyama, 91 Hawai‘i 131, 134, 980 P.2d 1005, 1008

(App. 1999) (holding that with respect to the requirement that a

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hearing be held within fifteen days, "the term 'held' suggests

that the parties must, at the least, convene or meet in a

hearing on the merits within the allotted time").

Moreover, HRS § 604-10.5(g) does not have any language

that indicates that the district court is divested of

jurisdiction over the petition to enjoin harassment after a

temporary restraining order expires. See State v. Villados, 55

Haw. 394, 397, 520 P.2d 427, 430 (1974) ("Because the

divestiture of jurisdiction is a serious matter, before a party

can claim that an act or statute has the effect of divesting

jurisdiction which has regularly and fully vested, the law in

favor of such divestment must be clear and unambiguous.")

It appears that the purpose of the temporary

restraining order is to protect the parties from imminent harm

by providing a period of separation while the district court

hears from the parties and decides whether to grant the petition

to enjoin harassment. See Hamilton ex rel. Lethem v. Lethem,

126 Hawai‘i 294, 305, 270 P.3d 1024, 1035 (2012) (discussing the

purpose of HRS chapter 586 temporary restraining orders as to

"provide emergency relief from imminent harm by assuring a

period of separation for the parties involved").

In sum, the petition for a temporary restraining order

and the petition to enjoin are related, and are part of a two-

step process. See HRS § 604-10.5(g). Each petition, however,

is a distinct legal vehicle for relief with different standards

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of proof. See HRS § 604-10.5(f), (g). Thus, the district

court's jurisdiction over a petition to enjoin does not hinge on

the status of the temporary restraining order.

Finally, because the district court had jurisdiction

over the petition to enjoin harassment, the district court also

had jurisdiction over attorneys' fees and costs pursuant to HRS

§ 604-10.5(h), which provides that "[t]he court may grant the

prevailing party in an action brought under this section costs

and fees, including attorney's fees."

Based on the foregoing, we affirm the district court's

January 11, 2021 Order Granting Petition for Injunction Against

Harassment and February 8, 2021 Order Regarding Attorneys' Fees

and Costs.

DATED: Honolulu, Hawai‘i, September 20, 2022.

On the briefs: /s/ Lisa M. Ginoza Chief Judge Hayden Aluli, for Respondents-Appellants. /s/ Karen T. Nakasone Associate Judge Joy M. Yanagida, for Petitioners-Appellees. /s/ Sonja M.P. McCullen Associate Judge