NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 13-JUN-2024 08:52 AM Dkt. 74 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
N.P., Petitioner-Appellee, v. A.C., Respondent-Appellant and CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT (CASE NO. 5PP171000013)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)
Respondent-Appellant A.C. (Mother) appeals from the
August 4, 2023 Order Re: [Mother's] May 22, 2023 Motion to Set
Aside Order Dissolving the Order for Protection Filed in FC-DA
No. 16-1-0193 (Order Denying Motion to Set Aside) entered by the
Family Court of the Fifth Circuit (Family Court).1 Mother also
challenges the Family Court's October 27, 2023 Findings of Fact
[(FOFs)] and Conclusions of Law [(COLs)]; Order (FOFs/COLs/
Order).
1 The Honorable Gregory Meyers presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
In 2016, Mother filed a petition in FC-DA 16-1-0193
(the OFP Matter), which also involved Petitioner-Appellee N.P.
(Father). Mother alleged that Father sexually abused the
parties' child (Child). The Family Court immediately entered a
temporary restraining order (TRO). On February 1, 2017, the
Family Court granted Mother's petition and entered an order for
protection (2017 OFP) to expire in twelve years, on January 31,
2029.2 The 2017 OFP stated that Mother would have temporary
legal and physical custody, and Father would have supervised visitation. Father appealed. The 2017 OFP was affirmed in 2018.
Meanwhile, Father filed this paternity case, seeking to
voluntarily establish paternity, and orders for custody, support
and visitation. A three-day trial was held in 2018 and 2019.
Thereafter, the Family Court entered its June 6, 2019 FOFs, COLs,
and Order (Paternity Order).3 Based on a totality of new
evidence, the Family Court found that Father did not sexually
abuse Child, Mother's allegations were false, and certain other
evidence of such abuse was not reliable or credible. The Family
Court concluded, inter alia, that it is in the best interests of
Child (and Father) for a process of therapeutic reunification to
take place, with supervised visitation to Father. Father and
Mother were awarded joint legal custody of Child. Mother did not
appeal the Paternity Order.
On June 20, 2019, in the OFP Matter, Father filed a
motion to dissolve the 2017 OFP. After an August 15, 2019
2 The Honorable Joe P. Moss presided. 3 The Honorable Edmund D. Acoba presided.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
hearing in the OFP Matter, the Family Court entered an order
dissolving the 2017 OFP on August 19, 2019. Mother did not file
an appeal in the OFP Matter from the August 19, 2019 order.
Nearly four years later, Mother filed the Motion to Set
Aside Order Dissolving the Order for Protection Filed in FC-DA
No. 16-1-0193 (Motion to Set Aside), in this paternity action,
basically on the grounds argued in this appeal.
Mother raises six points of error on appeal, contending
that the Family Court erred in: (1) finding in FOF 7 that until 2017, there was no formal custody order entered for Child; (2)
concluding in COLs 3, 6, 7, 8, and 9 that the Family Court judge
entering the Paternity Order in this case had the jurisdiction
and discretion to dissolve the 2017 OFP, which was issued in the
OFP Matter pursuant to Hawaii Revised Statutes (HRS) § 586-5.5
(2018), not HRS § 586-4(d) (2018); (3) concluding in COL 10 that
the 2017 OFP issued in the OFP Matter was properly dissolved; (4)
concluding in COL 13 that Mother failed to timely file her Motion
to Set Aside Order; (5) concluding in COL 14 that the concept of
a void judgment must be narrowly construed; and (6) entering the
Order Denying Motion to Set Aside.
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, we
resolve Mother's points of error as follows:
(1) Mother makes no argument in support of her first
point of error. Therefore it is waived. See Hawai#i Rules of
Appellate Procedure (HRAP) Rule 28(b)(7).
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(2) Mother argues that the Family Court did not have
jurisdiction in this paternity action to enter the Paternity
Order to the extent that it dissolved the 2017 OFP issued in the
OFP Matter. It appears that this issue is moot as a matter of
law. As stated in FOF 13 and COL 10 of the FOFs/COLs/Order, and
as argued by Father on appeal, in the OFP Matter, the Family
Court entered an order dissolving the 2017 OFP in the OFP Matter
on August 19, 2019. Mother did not file an appeal from that
order in the OFP Matter. Therefore, we need not further reach the substance of Mother's arguments on this point of error.
(3) COL 10 states that the 2017 OFP was properly
dissolved in the OFP Matter. Mother challenges this COL and adds
that because the Family Court had no jurisdiction to set aside
the 2017 OFP in the Paternity Order, it was "improper" for the
Family Court judge in the OFP Matter to hear Father's motion to
dissolve the 2017 OFP. Mother makes no other argument. Clearly,
this argument is directed toward the Family Court's actions in
the OFP matter and has no merit with respect to this appeal in
the paternity action.
(4) Mother contends the Family Court erred in
concluding that the Motion to Set Aside was untimely because a
challenge to a judgment as void for lack of jurisdiction may be
made at any time in a post-judgment motion brought under Hawai#i
Family Court Rules (HFCR) Rule 60(b)(4).
HFCR Rule 60(b) provides that the Family Court may
relieve a party from a judgment for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
discovered evidence; (3) fraud; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged; or (6) any
other reason. "The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one year
after the judgment, order, or proceedings was entered or taken."
Id. The Hawai#i appellate courts have held that this rule
applies to "all motions made" under HFCR Rule 60(b), "except
motions made under HFCR Rule 60(b)(4)." Greene v. Greene, 8 Haw.
App. 559, 568, 815 P.2d 28, 32 (1991) (emphasis added); Wagner v. World Botanical Gardens, Inc., 126 Hawai#i 190, 195, 268 P.3d
443, 448 (App. 2011) (noting that a judgment may be declared void
under HRCP Rule 60(b)(4) "regardless of how much time has passed
between entry of judgment and filing the motion" (quoting Bank of
Haw. v. Shinn, 120 Hawai#i 1, 11,
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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 13-JUN-2024 08:52 AM Dkt. 74 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
N.P., Petitioner-Appellee, v. A.C., Respondent-Appellant and CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT (CASE NO. 5PP171000013)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)
Respondent-Appellant A.C. (Mother) appeals from the
August 4, 2023 Order Re: [Mother's] May 22, 2023 Motion to Set
Aside Order Dissolving the Order for Protection Filed in FC-DA
No. 16-1-0193 (Order Denying Motion to Set Aside) entered by the
Family Court of the Fifth Circuit (Family Court).1 Mother also
challenges the Family Court's October 27, 2023 Findings of Fact
[(FOFs)] and Conclusions of Law [(COLs)]; Order (FOFs/COLs/
Order).
1 The Honorable Gregory Meyers presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
In 2016, Mother filed a petition in FC-DA 16-1-0193
(the OFP Matter), which also involved Petitioner-Appellee N.P.
(Father). Mother alleged that Father sexually abused the
parties' child (Child). The Family Court immediately entered a
temporary restraining order (TRO). On February 1, 2017, the
Family Court granted Mother's petition and entered an order for
protection (2017 OFP) to expire in twelve years, on January 31,
2029.2 The 2017 OFP stated that Mother would have temporary
legal and physical custody, and Father would have supervised visitation. Father appealed. The 2017 OFP was affirmed in 2018.
Meanwhile, Father filed this paternity case, seeking to
voluntarily establish paternity, and orders for custody, support
and visitation. A three-day trial was held in 2018 and 2019.
Thereafter, the Family Court entered its June 6, 2019 FOFs, COLs,
and Order (Paternity Order).3 Based on a totality of new
evidence, the Family Court found that Father did not sexually
abuse Child, Mother's allegations were false, and certain other
evidence of such abuse was not reliable or credible. The Family
Court concluded, inter alia, that it is in the best interests of
Child (and Father) for a process of therapeutic reunification to
take place, with supervised visitation to Father. Father and
Mother were awarded joint legal custody of Child. Mother did not
appeal the Paternity Order.
On June 20, 2019, in the OFP Matter, Father filed a
motion to dissolve the 2017 OFP. After an August 15, 2019
2 The Honorable Joe P. Moss presided. 3 The Honorable Edmund D. Acoba presided.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
hearing in the OFP Matter, the Family Court entered an order
dissolving the 2017 OFP on August 19, 2019. Mother did not file
an appeal in the OFP Matter from the August 19, 2019 order.
Nearly four years later, Mother filed the Motion to Set
Aside Order Dissolving the Order for Protection Filed in FC-DA
No. 16-1-0193 (Motion to Set Aside), in this paternity action,
basically on the grounds argued in this appeal.
Mother raises six points of error on appeal, contending
that the Family Court erred in: (1) finding in FOF 7 that until 2017, there was no formal custody order entered for Child; (2)
concluding in COLs 3, 6, 7, 8, and 9 that the Family Court judge
entering the Paternity Order in this case had the jurisdiction
and discretion to dissolve the 2017 OFP, which was issued in the
OFP Matter pursuant to Hawaii Revised Statutes (HRS) § 586-5.5
(2018), not HRS § 586-4(d) (2018); (3) concluding in COL 10 that
the 2017 OFP issued in the OFP Matter was properly dissolved; (4)
concluding in COL 13 that Mother failed to timely file her Motion
to Set Aside Order; (5) concluding in COL 14 that the concept of
a void judgment must be narrowly construed; and (6) entering the
Order Denying Motion to Set Aside.
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, we
resolve Mother's points of error as follows:
(1) Mother makes no argument in support of her first
point of error. Therefore it is waived. See Hawai#i Rules of
Appellate Procedure (HRAP) Rule 28(b)(7).
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(2) Mother argues that the Family Court did not have
jurisdiction in this paternity action to enter the Paternity
Order to the extent that it dissolved the 2017 OFP issued in the
OFP Matter. It appears that this issue is moot as a matter of
law. As stated in FOF 13 and COL 10 of the FOFs/COLs/Order, and
as argued by Father on appeal, in the OFP Matter, the Family
Court entered an order dissolving the 2017 OFP in the OFP Matter
on August 19, 2019. Mother did not file an appeal from that
order in the OFP Matter. Therefore, we need not further reach the substance of Mother's arguments on this point of error.
(3) COL 10 states that the 2017 OFP was properly
dissolved in the OFP Matter. Mother challenges this COL and adds
that because the Family Court had no jurisdiction to set aside
the 2017 OFP in the Paternity Order, it was "improper" for the
Family Court judge in the OFP Matter to hear Father's motion to
dissolve the 2017 OFP. Mother makes no other argument. Clearly,
this argument is directed toward the Family Court's actions in
the OFP matter and has no merit with respect to this appeal in
the paternity action.
(4) Mother contends the Family Court erred in
concluding that the Motion to Set Aside was untimely because a
challenge to a judgment as void for lack of jurisdiction may be
made at any time in a post-judgment motion brought under Hawai#i
Family Court Rules (HFCR) Rule 60(b)(4).
HFCR Rule 60(b) provides that the Family Court may
relieve a party from a judgment for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
discovered evidence; (3) fraud; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged; or (6) any
other reason. "The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one year
after the judgment, order, or proceedings was entered or taken."
Id. The Hawai#i appellate courts have held that this rule
applies to "all motions made" under HFCR Rule 60(b), "except
motions made under HFCR Rule 60(b)(4)." Greene v. Greene, 8 Haw.
App. 559, 568, 815 P.2d 28, 32 (1991) (emphasis added); Wagner v. World Botanical Gardens, Inc., 126 Hawai#i 190, 195, 268 P.3d
443, 448 (App. 2011) (noting that a judgment may be declared void
under HRCP Rule 60(b)(4) "regardless of how much time has passed
between entry of judgment and filing the motion" (quoting Bank of
Haw. v. Shinn, 120 Hawai#i 1, 11, 200 P.3d 370, 380 (2008))).
Thus, the Family Court erred in concluding that Mother's
"jurisdictional" challenge was untimely.
We conclude, however, that the error is harmless, as
the Family Court did not deny the Motion to Set Aside based on
untimeliness, but considered and rejected it on the merits.
(5) Mother makes no argument in support of her fifth
point of error. Therefore, it is waived. See HRAP Rule
28(b)(7).
(6) Mother's final point of error is simply a catch-
all statement that the Family Court was wrong.
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
For these reasons, the Family Court's August 4, 2023
Order Denying Motion to Set Aside is affirmed.
DATED: Honolulu, Hawai#i, June 13, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Samuel P. King, Jr., For Respondent-Appellant. /s/ Keith K. Hiraoka Associate Judge Peter Van Name Esser, for Petitioner-Appellee. /s/ Sonja M.P. McCullen Associate Judge