NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 26-JAN-2024 08:33 AM Dkt. 225 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
T.H., Plaintiff-Appellant/Cross-Appellee, v. N.H., Defendant-Appellee/Cross-Appellant.
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (CASE NO. 3DV17100165K)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Plaintiff-Appellant/Cross-Appellee T.H. (Mother)
appeals from the Family Court of the Third Circuit's 1 July 14,
2022 Findings of Fact and Conclusions of Law (FOF and COL).
Defendant-Appellee/Cross-Appellant N.H. (Father) cross-appeals
from the family court's August 22, 2022 Amended Findings of Fact
and Conclusions of Law (Amended FOF and COL) and September 13,
2022 Divorce Decree (Divorce Decree).
1 The Honorable Wendy M. DeWeese presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
parties' points of error as discussed below.
(1) Mother raises three points of error on appeal.
First, Mother argues that the family court failed to
comply with the statutory requirements under Hawai‘i Revised
Statutes (HRS) § 571-46(a)(9) (2018) "when the issue of domestic
abuse became an aggravating factor" in the case.
Under HRS § 571-46(a)(9),
a determination by the court that family violence has been committed by a parent raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence.
The family court, however, did not determine either parent was a
perpetrator of family violence. Instead, in unchallenged
Amended FOF 31, the family court found "both parties have
accused the other of domestic violence[,]" "the evidence on this
issue is unclear to the Court especially in light of the
parties' questionable credibility[,]" and there appear to have
been physical altercations, but "it [was] impossible to
determine with any sense of certainty whether one parent [was]
the primary aggressor . . . ." See In re Doe, 99 Hawai‘i 522,
538, 57 P.3d 447, 463 (2002) ("Unchallenged findings are binding
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
on appeal."). With no determination of domestic violence, HRS
§ 571-46(a)(9) was not applicable.
Next, Mother contends the presumptions of joint
custody under HRS §§ 571-46(a)(1) and 571-46.1 (2018) unduly
prejudice and discriminate against mothers who report domestic
abuse or family violence on the basis of sex and marital status,
violating due process and equal protection.
Contrary to Mother's contention, there was no equal
protection violation. See Palmore v. Sidoti, 466 U.S. 429, 433
(1984) ("The goal of granting custody based on the best
interests of the child is . . . a substantial governmental
interest for" equal protection purposes); Williamson v. Basco,
Civil No. 06-00012 JMS/LEK, 2007 WL 4570496 at *6 (D. Haw.
Dec. 31, 2007) (Order) ("HRS § 571-46, containing the 'best
interests of the child' standard, constitutes a reasonable
regulation of parental rights upon the dissolution of
marriage"). Further, Mother received due process as she
participated in the trial, was represented by counsel,
testified, and had the opportunity to cross-examine Father's
witnesses. See DJ v. CJ, 147 Hawai‘i 2, 17, 464 P.3d 790, 805
(2020) (explaining that "parental rights cannot be denied
without an opportunity for them to be heard at a meaningful time
and in a meaningful manner") (cleaned up)).
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Finally, Mother contends the family court abused its
discretion by "allowing [Father] to remove 100% of her
income[,]" pay her equalization, and then "retain the business,"
while she would be forced to start over. 2
The family court considered the circumstances of the
case as HRS § 580-47 (2018) requires. Moreover, the family
court found that
in view of Wife's continued inability and unwillingness to pay (Wife has spent money on other things from her business income in lieu of paying Husband what he is owed), the Court sees no realistic way to ensure Husband receives what is owed to him as long as Wife remains in control and possession of the business.
Mother does not challenge this finding in her points of error.
Because the family court considered the factors required under
the statute and unchallenged findings support its decision, the
family court did not abuse its discretion in dividing the
business. See Gordon v. Gordon, 135 Hawai‘i 340, 348-49, 350
P.3d 1008, 1016-17 (2015) (vesting the family court with "wide
discretion to divide marital partnership property according to
what is 'just and equitable' based on the facts and
circumstances of each case") (citation omitted); Baker v.
Bielski, 124 Hawai‘i 455, 464, 248 P.3d 221, 230 (App. 2011)
2 Mother also maintains her rights under article 1, sections 2, 4-7, 10, and 12 of the Hawai‘i Constitution and the first, fourth, fifth, eighth, ninth, and fourteenth amendments of the U.S. Constitution were denied. Mother, however, does not explain how the family court's division of assets violated her constitutional rights. See Hawai‘i Rules of Appellate Procedure Rule 28(b)(7) (providing "[p]oints not argued may be deemed waived").
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(determining "family court was not required to divide each asset
and debt equally, and the court properly equalized the property
based on numerous, undisputed FOFs regarding the circumstances
of the marriage pursuant to HRS § 580-47").
(2) Father raises three points of error on cross-appeal.
First, Father challenges "awarding physical custody of
the parties' children to Mother with visitation to Father only
in the form of dinner and therapeutic visits[.]" Father also
challenges Amended FOF 1, contending "the family court's finding
that 'neither party is particularly credible' and that 'neither
parent has demonstrated the ability to place the best interest
of their children above their own battle with the other parent'
. . .
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 26-JAN-2024 08:33 AM Dkt. 225 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
T.H., Plaintiff-Appellant/Cross-Appellee, v. N.H., Defendant-Appellee/Cross-Appellant.
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (CASE NO. 3DV17100165K)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Plaintiff-Appellant/Cross-Appellee T.H. (Mother)
appeals from the Family Court of the Third Circuit's 1 July 14,
2022 Findings of Fact and Conclusions of Law (FOF and COL).
Defendant-Appellee/Cross-Appellant N.H. (Father) cross-appeals
from the family court's August 22, 2022 Amended Findings of Fact
and Conclusions of Law (Amended FOF and COL) and September 13,
2022 Divorce Decree (Divorce Decree).
1 The Honorable Wendy M. DeWeese presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
parties' points of error as discussed below.
(1) Mother raises three points of error on appeal.
First, Mother argues that the family court failed to
comply with the statutory requirements under Hawai‘i Revised
Statutes (HRS) § 571-46(a)(9) (2018) "when the issue of domestic
abuse became an aggravating factor" in the case.
Under HRS § 571-46(a)(9),
a determination by the court that family violence has been committed by a parent raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence.
The family court, however, did not determine either parent was a
perpetrator of family violence. Instead, in unchallenged
Amended FOF 31, the family court found "both parties have
accused the other of domestic violence[,]" "the evidence on this
issue is unclear to the Court especially in light of the
parties' questionable credibility[,]" and there appear to have
been physical altercations, but "it [was] impossible to
determine with any sense of certainty whether one parent [was]
the primary aggressor . . . ." See In re Doe, 99 Hawai‘i 522,
538, 57 P.3d 447, 463 (2002) ("Unchallenged findings are binding
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
on appeal."). With no determination of domestic violence, HRS
§ 571-46(a)(9) was not applicable.
Next, Mother contends the presumptions of joint
custody under HRS §§ 571-46(a)(1) and 571-46.1 (2018) unduly
prejudice and discriminate against mothers who report domestic
abuse or family violence on the basis of sex and marital status,
violating due process and equal protection.
Contrary to Mother's contention, there was no equal
protection violation. See Palmore v. Sidoti, 466 U.S. 429, 433
(1984) ("The goal of granting custody based on the best
interests of the child is . . . a substantial governmental
interest for" equal protection purposes); Williamson v. Basco,
Civil No. 06-00012 JMS/LEK, 2007 WL 4570496 at *6 (D. Haw.
Dec. 31, 2007) (Order) ("HRS § 571-46, containing the 'best
interests of the child' standard, constitutes a reasonable
regulation of parental rights upon the dissolution of
marriage"). Further, Mother received due process as she
participated in the trial, was represented by counsel,
testified, and had the opportunity to cross-examine Father's
witnesses. See DJ v. CJ, 147 Hawai‘i 2, 17, 464 P.3d 790, 805
(2020) (explaining that "parental rights cannot be denied
without an opportunity for them to be heard at a meaningful time
and in a meaningful manner") (cleaned up)).
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Finally, Mother contends the family court abused its
discretion by "allowing [Father] to remove 100% of her
income[,]" pay her equalization, and then "retain the business,"
while she would be forced to start over. 2
The family court considered the circumstances of the
case as HRS § 580-47 (2018) requires. Moreover, the family
court found that
in view of Wife's continued inability and unwillingness to pay (Wife has spent money on other things from her business income in lieu of paying Husband what he is owed), the Court sees no realistic way to ensure Husband receives what is owed to him as long as Wife remains in control and possession of the business.
Mother does not challenge this finding in her points of error.
Because the family court considered the factors required under
the statute and unchallenged findings support its decision, the
family court did not abuse its discretion in dividing the
business. See Gordon v. Gordon, 135 Hawai‘i 340, 348-49, 350
P.3d 1008, 1016-17 (2015) (vesting the family court with "wide
discretion to divide marital partnership property according to
what is 'just and equitable' based on the facts and
circumstances of each case") (citation omitted); Baker v.
Bielski, 124 Hawai‘i 455, 464, 248 P.3d 221, 230 (App. 2011)
2 Mother also maintains her rights under article 1, sections 2, 4-7, 10, and 12 of the Hawai‘i Constitution and the first, fourth, fifth, eighth, ninth, and fourteenth amendments of the U.S. Constitution were denied. Mother, however, does not explain how the family court's division of assets violated her constitutional rights. See Hawai‘i Rules of Appellate Procedure Rule 28(b)(7) (providing "[p]oints not argued may be deemed waived").
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(determining "family court was not required to divide each asset
and debt equally, and the court properly equalized the property
based on numerous, undisputed FOFs regarding the circumstances
of the marriage pursuant to HRS § 580-47").
(2) Father raises three points of error on cross-appeal.
First, Father challenges "awarding physical custody of
the parties' children to Mother with visitation to Father only
in the form of dinner and therapeutic visits[.]" Father also
challenges Amended FOF 1, contending "the family court's finding
that 'neither party is particularly credible' and that 'neither
parent has demonstrated the ability to place the best interest
of their children above their own battle with the other parent'
. . . is in error, and not supported by the evidence at trial."
We will not disturb credibility determinations, and
the remainder of Amended FOF 1 was supported by substantial
evidence in the record. LC v. MG & Child Support Enf't Agency,
143 Hawai‘i 302, 310-11, 430 P.3d 400, 408-09 (2018) (regarding
credibility); In re Doe, 95 Hawai‘i 183, 190, 20 P.3d 616, 623
(2001) (providing clearly erroneous standard of review for FOF).
However, the family court abused its discretion when it a
restricted Father's visitation to one therapy session per week
or a dinner visit from 5:00 p.m. to 7:00 p.m. on Wednesday if
Father did not see the children during therapy.
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
"Reasonable visitation rights shall be awarded to
parents . . . in the discretion of the court, unless it is shown
that rights of visitation are detrimental to the best interests
of the child[.]" 3 HRS § 571-46(a)(7). Although the family court
made many findings regarding custody, in restricting Father's
visitation to one therapy session or a two-hour dinner once a
week, the family court found that "[t]he need to eliminate
conflict for the children outweighs the need to craft a
visitation plan that includes substantial time for the other
parent." This finding, however, does not explain how one
therapy session or a two-hour dinner per week with Father for
the rest of children's childhood (absent a court-ordered
modification) is reasonable. This finding also does not show
how the "rights of visitation" 4 (as opposed to conflict between
Mother and Father) was detrimental to the children's best
interests. Thus, the family court disregarded HRS § 571-
46(a)(7) to Father's substantial detriment.
Next, Father contends "the Family Court err[ed] and
abuse[d] its discretion in awarding joint legal custody to the
3 Many consider the term "visitation" outmoded, preferring "'Parenting Time' because it speaks to what actually takes place: parenting. Some also view it as a more respectful term (parents do not 'visit' children, they 'parent' children)." 2015 Hawaiʻi Divorce Manual, § 3 (9th ed. 2015).
4 "Visitation is not only a right and responsibility of a parent but children have a right to have parenting time with each of their parents, unless there are tangible risks to the child's well-being in the parent-child relationship." 2015 Hawaiʻi Divorce Manual, § 3 (9th ed. 2015).
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
parties but then ordering 'tie breaking' authority to Father as
to medical decisions and to Mother as to all other decisions,
while limiting Father's ability to make those decisions[.]"
Father claims "[t]his is clearly unworkable."
As discussed above, unchallenged findings support the
family court's award of physical custody to Mother. Moreover,
the family court found Mother testified essential oils were "a
better alternative treatment to vaccines and antibiotics," and
determined "with [Father's] medical background and his desire to
rely on scientific evidence rather than religion or leaving
medical decisions to the children (who are too young to
competently do so), the children's best interests will be better
served by Father making the final decisions regarding their
medical care[.]" Amended FOF 34 and 39. The family court
further found "both parents should be listed on all of the
children's records, including but not limited to school, mental
health, and medical" and "[b]oth parents should have access to
information concerning the children." Amended FOF 38. These
findings support the family court's decision to award joint
legal custody with Father having tie breaking authority
regarding medical care. See also KS v. RS, 151 Hawaiʻi 336, 345,
512 P.3d 702, 714 (App. 2022) (concluding "the Family Court was
not precluded from ordering joint legal custody with tie-
breaking authority to one parent, based on its broad discretion,
7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
if the Court determined that this was in the Child's best
interests").
Finally, Father contends "the Family Court [abused its
discretion] in failing to award" him attorney's fees and costs.
Father challenges Amended FOF 77, which states in part that
"[Wife] has advanced sums to the Discovery Master and the
[custody evaluator] on Husband's behalf."
The family court, determining it was fair and
reasonable, ordered "[e]ach party shall pay his/her own attorney
fees and costs, except as previously otherwise ordered." HRS
§§ 580-9 and -47(f) (2018). The family court noted the earning
capacity of each party. In unchallenged Amended FOF 76, the
family court determined "[b]oth parties have spent, what the
Court would characterize as excessive amounts on attorneys and
other costs" and both sides drove "litigation in this case,
whether about custody, visitation, or financial matters." Based
on these findings, we cannot say ordering each party to pay his
or her own attorney's fees and costs was an abuse of discretion.
See Hamilton v. Hamilton, 138 Hawai‘i 185, 209-10, 378 P.3d 901,
925-26 (2016) ("[A]n award of attorney's fees is in the sound
discretion of the trial court, limited only by the standard that
it be fair and reasonable.") (citations omitted).
Regarding the fees for the custody evaluator, the
record shows the family court previously ruled the parties were
8 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
to split the cost of the custody evaluator's preparation time,
and Mother was to pay for cross-examination time. Thus, the
record does not support the portion of Amended FOF 77 stating
Mother advanced the fees for the custody evaluator. This error,
however, does not require vacating the family court's decision
as to attorney's fees and costs.
For the above reasons, we vacate in part the family
court's August 22, 2022 Amended Findings of Fact and Conclusions
of Law, and September 13, 2022 Divorce Decree, and remand for
further proceedings consistent with this summary disposition
order, as to Father's visitation. We affirm the family court's
August 22, 2022 Amended Findings of Fact and Conclusions of Law,
and September 13, 2022 Divorce Decree in all other respects.
DATED: Honolulu, Hawai‘i, January 26, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Susan Lim Liang, for Plaintiff-Appellant/ /s/ Karen T. Nakasone Cross-Appellee. Associate Judge
Michael S. Zola, /s/ Sonja M.P. McCullen Defendant-Appellee/ Associate Judge Cross-Appellant.