TF v. RD

508 P.3d 1217, 151 Haw. 131

• Court: Hawaii Intermediate Court of Appeals
• Decided: May 9, 2022
• Docket: CAAP-21-0000270
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 09-MAY-2022 08:21 AM Dkt. 83 SO NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

TF, Plaintiff-Appellee, v. RD, Defendant-Appellant.

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT (FC-D NO. 12-1-0495)

SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)

Self-represented Defendant-Appellant RD (Father)

appeals from the Family Court of the Second Circuit's

February 25, 2021 "Order on Plaintiff's Motion to Delete

Provision #4 or Modify Provision #4 in the Order on Defendant's Motion to Modify Divorce Decree and to Establish Paternity Filed

February 26, 2015."1

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 Father's points of error as follows.

(1) Father argues that the Family Court abused its

discretion by modifying the Custody Order based on his decision

to live in Alaska.

1 The Honorable Douglas J. Sameshima presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

When the family court modifies a child custody order,

the single inquiry focuses on the child's best interest. See

Waldecker v. O'Scanlon, 137 Hawai#i 460, 470, 375 P.3d 239, 249

(2016). Hawaii Revised Statutes (HRS) § 571-46 (2018) empowers

the court to modify or change a custody award "whenever the best

interests of the child require or justify the modification or

change . . . ." HRS § 571-46(a)(6) (2018). Furthermore, the

statute provides a non-exhaustive list of factors to assist in

the determination of what is in the best interest of the child.

Here, Father filed an ex parte motion to take minor

child (Child) from Maui to Alaska from March 28, 2019 to April 2,

2019. He argued that travel was authorized under provision four

of the Divorce Decree. Father declared that the ex parte order

was necessary because Plaintiff-Appellee TF (Mother) was

uncooperative in allowing Child to travel with him. The Family

Court granted Father's ex parte motion on March 27, 2019.2

Mother declared that when Father was granted the ex

parte motion, he "tricked Mother into believing he wanted

visitation with the child, met Mother in Lahaina to pick up the

child and made arrangements with Mother to meet her later in the

day at Central Pacific Bank in Kahului so he could return the

child to Mother . . . ." However, when Mother went to the bank

to pick up Child, a process server served her with the ex parte

order. Mother later learned that Father was taking Child to

Alaska and was not allowed to speak to Child for the length of

the trip. Mother stated that when Child returned home, "she was

2 The Honorable Adrianne N. Heely presided.

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

emotionally and psychologically damaged and required intensive

counseling."

Counselor Sonya Chambliss-Alexander, LCSW, (Chambliss-

Alexander) with Maui Counseling Group, reported Child "suffered

extensive harm from the trip," as evidenced by Child's

"uncomfortable nature when discussing her father and in multiple

counseling sessions where she reported a lack of trust with the

father related to fear of being taken away again." Chambliss-

Alexander believed it would be extremely harmful to Child's

mental health and recommended that any off-island trip be planned

in advance.

After reviewing the evidence, the Family Court modified

provision four by requiring a mutual written agreement by the

parents before any travel to prevent unplanned trips by Father

that might negatively impact Child. The Family Court reasoned

and concluded that this modification was in the best interest of

Child. This conclusion was supported by the record and properly

based on the statutory "best interest of the child" factors. See

Waldecker, 137 Hawai#i at 466, 375 P.3d at 245 ("[T]he family court is given much leeway in its examination of the reports

concerning a child's care, custody, and welfare, and its

conclusions in this regard, if supported by the record and not

clearly erroneous, must stand on appeal."); HRS § 571-46(a)(5)

and (b) (2018).

(2) Father contends that the Family Court violated his

constitutional right to move between Hawai#i and Alaska, and

further contends that the Family Court erred by admitting

evidence of the frequency of his visitation with Child.

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

Father, however, fails to provide any discernible

argument and fails to cite to the record or legal authority to

support these contentions. Hawai#i Rules of Appellate Procedure

Rule 28(b)(7); In re Guardianship of Carlsmith, 113 Hawai#i 236,

246, 151 P.3d 717, 727 (2007) ("This court may disregard a

particular contention if the appellant makes no discernible

argument in support of that position") (citations, internal

quotation marks, and brackets omitted). Therefore, we deem these

contentions waived. For the foregoing reasons, we affirm the Family Court's

February 25, 2021 "Order on Plaintiff's Motion to Delete

Provision #4 or Modify Provision #4 in the Order on Defendant's

Motion to Modify Divorce Decree and to Establish Paternity Filed

February 26, 2015."

DATED: Honolulu, Hawai#i, May 9, 2022.

On the briefs: /s/ Clyde J. Wadsworth Presiding Judge RD, Defendant-Appellant, pro se. /s/ Karen T. Nakasone Associate Judge Erin L. Lowenthal, for Plaintiff-Appellee. /s/ Sonja M.P. McCullen Associate Judge