AB v. MF ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUN-2022
07:58 AM
Dkt. 88 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
AB, Petitioner-Appellant, v.
MF, Respondent-Appellee
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-P NO. 18-1-0175)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
This appeal stems from Petitioner-Appellant AB's
(Father) November 13, 2019 "Motion for Post-Decree Relief for
Sole Custody with Supervised Visitation to Mother" (Motion for
Sole Custody) of the parties' minor female child (Child) and
March 18, 2021 "Motion to Address Excessive False Allegations and
Contempts of Court and Manipulation and Awardment of Petitioner's
Attorneys' Fees" (Motion to Address Allegations). Father appeals
from the corresponding May 26, 2021 "Written Findings of Facts
Conclusions of Law, Decisions and Orders Following Trial"
(5/26/21 FOFs/COLs and Order)1 entered by the Family Court of the
Second Circuit (Family Court) which denied Father's motions.2
1
On July 23, 2021, the Family Court entered "Errata Sheet Re: [5/26/21
FOFs/COLs and Order]" to "correct/revise a few non-substantive, typographical,
grammatical errors that would not affect the substance of the court's orders."
2
The Honorable Adrianne N. Heely presided.
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On appeal, Father contends the Family Court erred by:
(1) finding no evidence that Respondent-Appellee MF (Mother)
coached or "brainwashed" Child into making child abuse and child
molestation allegations; (2) rejecting Father's assertion that
Mother, Mother's family, and Mother's counsel are trying to ruin
Father's life and keep Child out of his life, and awarding Mother
sole legal and physical custody; and (3) finding Mother credible
in its 5/26/21 FOFs/COLs and Order where the Family Court
previously found Mother not credible. Related to these points of
error, Father challenges finding of fact (FOF) 1.45(3) and
footnotes 65 and 69, FOF 1.45(11), and conclusions of law (COLs)
2.01, 2.03, 2.26, and 2.7.
For the reasons set out below, we affirm.
I. Background
Father and Mother are the natural parents of Child, who
was born in 2015. On August 8, 2018, Father filed his Petition
for Paternity when Child was three years old requesting, inter
alia, joint legal custody, physical custody to Mother with rights
of reasonable visitation to Father, and that the Department of
Health prepare a new Certificate of Live Birth inserting Father's
name as the natural father of Child. On August 28, 2018, Mother
filed her Answer to Father's Petition for Paternity and a Cross-
Petition on Behalf of Child for Termination of Parental Rights of
Petitioner (Cross-Petition). In her Cross-Petition, Mother
requested sole legal and physical custody of Child with no
visitation to Father and argued, inter alia, that at the time of
Child's conception, there were non-consensual sexual relations
between Mother and Father. After an evidentiary hearing on
October 24, 2018, the Family Court entered its November 15, 2018
Findings of Fact, Conclusions of Law, and Order (Order Re:
Mother's Cross-Petition)3 denying Mother's Cross-Petition.
On December 6, 2018, the Family Court entered an
Expedited Order Regarding Visitation which, inter alia, granted
3
The Honorable Lloyd A. Poelman presided.
2
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Father supervised visitation and adopted Father's proposal of
graduated unsupervised visits with unsupervised overnight visits
beginning four months after the entry of the order. Thereafter,
Father and Mother had difficulty co-parenting and communicating,
such as Father un-enrolling Child from her school without
consulting Mother and Mother filing several police reports and
temporary restraining orders (TROs) against Father. The record
reflects that between April 2019 and October 2019, Mother filed
five TROs, four of which were filed on behalf of Child alleging
Father sexually or physically abused Child.
On November 13, 2019, Father filed his Motion for Sole
Custody. On December 29, 2020, the Family Court granted Father's
request to withdraw his counsel and proceed pro se. Self-
represented Father then filed his Motion to Address Allegations
and after a three day trial, the Family Court entered its 5/26/21
FOFs/COLs and Order. This appeal followed.
II. Standards of Review
Generally, the family court possesses wide discretion in
making its decisions and those decisions will not be set
aside unless there is a manifest abuse of discretion. Thus,
we will not disturb the family court's decision on appeal
unless the family court disregarded rules or principles of
law or practice to the substantial detriment of a party
litigant and its decision clearly exceeded the bounds of
reason.
DL v. CL, 146 Hawai#i 415, 420, 463 P.3d 1072, 1077 (2020)
(quoting Brutsch v. Brutsch, 139 Hawai#i 373, 381, 390 P.3d 1260,
1268 (2017)).
It is well established that a family court abuses its
discretion where "(1) the family court disregarded rules or
principles of law or practice to the substantial detriment
of a party litigant; (2) the family court failed to exercise
its equitable discretion; or (3) the family court's decision
clearly exceeds the bounds of reason."
Id. (quoting Brutsch, 139 Hawai#i at 381, 390 P.3d at 1268).
The appellate court reviews the family court's FOFs
under the "clearly erroneous" standard. W.N. v. S.M., 143
Hawai#i 128, 133, 424 P.3d 483, 488 (2018) (citing Waldecker v.
O'Scanlon, 137 Hawai#i 460, 466, 375 P.3d 239, 245 (2016)).
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A FOF is clearly erroneous when (1) the record lacks
substantial evidence to support the finding, or (2) despite
substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made. "Substantial
evidence" is credible evidence which is of sufficient
quality and probative value to enable a person of reasonable
caution to support a conclusion.
Id. (quoting Waldecker, 137 Hawai#i at 466, 375 P.3d at 245).
The family court's COLs are reviewed de novo under the
right/wrong standard. Id. (citing Waldecker, 137 Hawai#i at 466,
375 P.3d at 245).
III. Discussion
A. Findings on Mother's Credibility
We first address Father's third point of error that the
Family Court erred in FOF 1.45(11) by finding Mother credible in
its 5/26/21 FOFs/COLs and Order, which contradicts the Family
Court's previous finding in its Order Re: Mother's Cross-Petition
that Mother is not credible.
The Order Re: Mother's Cross-Petition found, in
pertinent part:
1. The parties met and began dating in June 2014. Both were
students at the University of Hawaii - Maui Campus at the
time.
2. Approximately two (2) weeks into their relationship, the
parties began having sexual relations.
3. In or around September 2014, the parties learned that
Mother was pregnant with [Child].
. . . .
6. Father testified that all of the sexual encounters
between the parties were consensual. He testified that there
was never an occasion on which Mother expressed, in any way,
that she did not want to have sex with Father. Father
testified that all but one of their encounters occurred at
his residence, which he shared with his parents, in his
bedroom. That single other occasion was at her residence,
which she shared with her parents, in her bedroom. Father
testified that Mother drove to Father's house for most of
those encounters. The court finds Father's testimony
credible.
7. Mother testified that in late July 2014, Father had non-
consensual sex with her. She testified that every single
sexual encounter thereafter was non-consensual. Mother
testified that between that first non-consensual encounter
in late July 2014 and September 25, 2014, the parties had
sex one to two times per week. Mother then contradicted
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herself and testified that the frequency was zero to one
time per week. Mother agreed, however, that during that
period of time the parties had multiple sexual encounters,
and that they occurred at Father's residence in his bedroom.
8. In describing the non-consensual nature of their sexual
relationship, Mother testified that sometimes she would
simply indicate to him verbally that she was not interested,
but he persisted. On other occasions, she testified, Father
physically restrained her.
9. [Child] was born in May 2015 following a normal, full-
term pregnancy, placing the date of conception sometime
between late August 2014 and early September 2014.
. . . .
16. The court finds that on the issue of sexual assault,
Father's testimony is credible and Mother's testimony is
not. The court specifically finds not credible Mother's
testimony that during the entire period of time in which
conception occurred the parties had multiple sexual
encounters, all of which were non-consensual. The court
cannot find, therefore, that [Child]'s birth was the result
of a sexual assault committed by Father on Mother.
(Emphases added.) The 5/26/21 FOFs/COLs and Order found in
relevant part:
1.45 At the evidentiary hearings on Father's Motions the
court heard for [sic] the following witnesses:
. . . .
11) [Mother], Mother testified that she had a sexual
relationship with Father, mainly nonconsensual, and after
she got pregnant their relationship turned rocky . . .
Mother testified of the activities she and [Child] like to
do . . . Mother also testified that Father had not been a
part of his daughter's life, however he did reach out a
couple of times, but never followed through with trying to
bond with his daughter . . . . Mother also testified about
Adverse Child Experiences ("ACES") and noticing something
happening (rolling in ball, grinding her teeth, rocking back
and forth, saying she does not want to go before visits,
becoming withdrawn) to her daughter feel [sic] that it's not
in the best interest of her child to have the visits with
Father continue until it [sic] can figure it out. She also
testified that Father does not have the ability to co-parent
or follow the good co-parenting guidelines, as during
exchanges she was called names (B-I-T-C-H or asshole) by
Father or Father's family as they rolled down the window as
[Child] was in the car; would like Father to take Anger
Management and Parenting classes; and possible therapy with
child; and until he does would like visits suspended. The
court finds this witness credible.
(Emphases added.) (Footnotes omitted.)
With regard to Father's argument that the Family
Court's credibility determinations contradict each other and thus
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FOF 1.45(11) is clearly erroneous, the credibility determination
in the Order Re: Mother's Cross-Petition is specific to Mother's
testimony on the issue of sexual assault, that during the entire
period of time in which conception occurred the parties had
multiple sexual encounters, all of which were non-consensual.
"It is for the trial judge as fact-finder to assess the
credibility of witnesses and to resolve all questions of fact;
the judge may accept or reject any witness's testimony in whole
or in part." State v. Eastman, 81 Hawai#i 131, 139, 913 P.2d 57,
65 (1996) (citing Lono v. State, 63 Haw. 470, 473, 629 P.2d 630,
633 (1981)). Moreover, "[i]t is well-settled that an appellate
court will not pass upon issues dependent upon the credibility of
witnesses and the weight of the evidence; this is the province of
the trier of fact." In re Doe, 95 Hawai#i 183, 190, 20 P.3d 616,
623 (2001) (citation omitted).
We conclude the Family Court did not err in finding
Mother's testimony credible, except with regard to her testimony
that her sexual relationship with Father was mainly
nonconsensual. To the extent that FOF 1.45(11) contradicts the
Order Re: Mother's Cross-Petition without explanation, we strike
as clearly erroneous the portion of FOF 1.45(11) finding credible
Mother's testimony that she had a "mainly nonconsensual" sexual
relationship with Father.
B. Findings Regarding Coaching of Child
Father contends that the Family Court erred in the
portion of FOF 1.45(3) and related footnote 65 finding there is
no evidence Mother and Mother's family are coaching Child to make
false allegations against Father. Father asserts the challenged
findings are "inconsistent with the overwhelming evidence in the
record below that all of the purported allegations of [Child],
which were first reported by [Mother] and/or a member of her
family, were not confirmed by [Department of Human Services
(DHS)] experts."4 (emphasis omitted).
4
FOF 1.45(3) provides, in relevant part:
(continued...)
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Notwithstanding Father's argument, the Family Court's
finding is not inconsistent with the evidence that DHS could not
confirm the allegations because the inability to confirm the
allegations against Father does not establish that Mother and her
family "brainwashed" or coached Child into making those
allegations. The Family Court's finding that there is no
evidence Child was coached is also supported by substantial
evidence in the record and the testimony of witnesses the Family
Court found to be credible, including Stein (who "was received by
the parties as an expert in the field of custody and abuse and
neglect and domestic violence"), Maternal Grandmother, and
Mother.
Mother filed the first TRO on behalf of Child after
Father's first unsupervised overnight visit with Child, alleging
that Child told Mother that Father bathed her while Father was
also naked. During the trial, Father testified that during the
first overnight visit, Father bathed Child while naked. Stein
testified that Child had "a very, ah, abrupt behavioral change
that happened after a visitation" that Stein believed occurred
after the first overnight visitation with Father. Stein also
testified she was concerned because "there has been, ah, a
visitation schedule set up that included overnights. And then
the child was coming home from those in -- in a seemingly
traumatized state."
During recross-examination by self-represented Father,
Stein testified at trial regarding the possibility Child is being
coached as follows:
4
(...continued)
1.45 At the evidentiary hearings on Father's Motions the
court heard for [sic] the following witnesses:
. . . .
3) [Father] . . . . Father also argues that Mother and
Mother's family is brainwashing and coaching minor child to
make false child abuse and child molestation allegations.
The footnote to this sentence, footnote 65 states: "The court finds no
evidence of this and has heard from witnesses that this is not happening; see
trial testimony of Father, Mother, [Lee Stein ( Stein)], and Maternal
Grandmother[.]"
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[Father:] Could the abrupt change be from being coached by
the mother? Cuz what -- what mother is coaching –
THE COURT: Let her answer the question before you get to
another question.
[Stein:] What was the last question?
THE COURT: Ah, could the abrupt change be as a result of
being coached by the mother?
[Stein:] Oh, ah, I have seen no evidence that mother's
coaching and/or the family members. I understand that you
believe that. Um, I would have to know that that happened.
And I have testified in three cases where children were
coached and so I know how to recognize that.
Um, and I haven't seen it yet. I haven't seen anything
about that.
Father does not challenge FOF 1.45(6), which relates to Stein's
testimony and provides in pertinent part:
6) [Stein], . . . . Ms. Stein read documents in the matter
. . . and has never met the minor child[], but has concerns
based on the best interest of the child, that there was a
very abrupt behavioral change that happened after the first
overnight visitation with the Father, leaving the child
feeling very afraid and a change in child's behavior ever
since then, with the child returning to her home
(Mother's/Maternal Grandparents) in a seemingly traumatized
state, curling into a ball; child has not gotten more
comfortable with Father; exchanges are very problematic and
chaotic; and there are problems with the co-parenting[.]
. . . .
On cross-examination Father as [sic] Ms. Stein if she was
aware of the trial where Father was found credible and
mother not credible; or the five TROs Mother filed against
Father; and also suggests: . . . a time out from visiting
with Father; since the crawling up into a ball happens when
returns [sic] from father's house; a hyperactive stress
response, a was [sic] that the central nervous system
responds to fear in the brain; freezing up or a
disassociation; and a not wanting to go and crying and
crying not wanting to go to Father's house; and not as a
result of Mother coaching child and sees no evidence of
Mother or Mother's family coaching child[.] . . . . This
court finds Ms. Stein's testimony credible.
(Emphases added.) (Footnote omitted.) See In re Doe, 99 Hawai#i
522, 538, 57 P.3d 447, 463 (2002) (unchallenged findings of fact
are binding on appeal).
Father also does not challenge FOF 1.45(10), which
relates to Maternal Grandmother's testimony and provides in
pertinent part:
10) [Maternal Grandmother] . . . . has noticed [Child] very
withdrawn after visits and a dramatic change in her usually
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talkative, playful behavior; numerous times she noticed
[Child] shut down, and run and find the nearest corner and
curl up into a ball (Exhibit "F"); she felt something was
not right; she also testified that the TRO's that [Mother]
filed on behalf of [Child] against Father was necessary and
in child's best interest . . . she testified that she was
occasionally present at exchanges and seen the effects on
[Child] and the changes in her life; and she prays for
[Child] every day as she noticed drastic changes since
having to visit with her Father. The court finds this
witness credible.
Mother testified with regard to the TROs and police
reports against Father as follows:
THE COURT: Do you want to -- are you able to answer the
question whether you feel it's better to contact the police
than [Father]?
[Mother:] So, for my work, I am a mandated reporter. So
even with clients that walk into our working place I know
how to address certain concerns. So when it came to the
TRO's I notice the concern. So I did go to the authorities,
which I was trained to do. As her vaginitis that was
included in the TRO's.
[Father:] Why would you -- why would you keep filing
police reports instead of trying to communicate with me?
[Mother:] Again, it's difficult to communicate with you.
As whenever I do for a health related thing with [Child] you
do not respond.
. . . .
[Father:] So you think the way that you handled what
was happening to [Child] was in the best interest of the
child?
[Mother:] I do. Because as a concerned parent I will
report it to the best people that I think is the best
person to handle it. Which was to report it to Maui
Police Department, especially when it came to disclosures
that [Child] was telling me upon return.
The Family Court's finding that there is no evidence
Child was "brainwashed" or coached to make false abuse
allegations against Father is directly supported by Stein's
testimony that she does not believe Child is being coached. The
Family Court's finding is also supported by: Maternal
Grandmother's testimony regarding Child's negative behavioral
changes after unsupervised visits with Father and that Maternal
Grandmother believed the TROs were necessary and valid; Stein's
testimony that the first overnight visit with Father left Child
feeling very afraid and that Child's crawling into a ball after
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visits with Father was a hyperactive stress response; and
Mother's testimony that she believed it was in Child's best
interest to report Child's disclosures to authorities rather than
discuss them with Father.
Based on our review of the record, FOF 1.45(3) and
footnote 65 are not clearly erroneous.
C. Findings and Conclusions of Law Regarding Parental
Alienation
Finally, Father contends the Family Court erred in the
portion of FOF 1.45(3) and related footnote 69 which disagreed
with Father's argument that Mother, Mother's family, and Mother's
counsel are trying to ruin his life because Father presented
evidence that Mother engaged in a pattern of "parental
alienation" by interfering with Father's visitation schedule and
by filing multiple police reports and TROs.5 Father also argues
the Family Court erred in awarding sole legal custody of Child to
Mother (COLs 2.01 and 2.03), awarding sole physical custody of
Child to Mother (COL 2.26), and finding Mother in compliance with
court orders and that Father's time with Child has had a negative
effect on Child's welfare (COL 2.7), because Mother engaged in
parental alienation.6
5
FOF 1.45(3) states, in relevant part:
3) [Father] . . . . Father argues that Mother is using
[Child] as a tool to destroy his life and in turn hurt
[Child] in the hopes to keep [Child] out of Father's life. .
. . The court finds father's testimony credible as to him
wanting to be a part of [Child]'s life, and his inability to
communicate with Mother, but disagrees with Father's
argument that Mother, Mother's family, and Mother's counsel
are trying to ruin his life and doing perverted and evil
things, and committing contempt of court and manipulation.
(Emphasis added.) (Footnotes omitted.)
Footnote 69 states in pertinent part, "Father also argues Mother's fixation on
[Child]'s vagina is perverted and insane (Exhibit "41); but Mother testified
as to the reasons she took [Child] to doctor re: vaginitis or diaper rash
cream; The court also disagrees with Father's argument that Mother's actions
in responding to [Child's] health and welfare, is perverted and/or insane."
Father does not provide any cogent argument regarding footnote 69.
Accordingly, this point has been waived. See Hawai #i Rules of Appellate
Procedure Rule 28(b)(7).
6
COLs 2.01, 2.03, 2.26, and 2.7 state, in pertinent part:
(continued...)
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Although Father claims that Mother engaged in "parental
alienation," and argues that the Family Court clearly erred in
rejecting his claim, Father fails to show that the record
supports his claim. Cf. JR v. IR, No. CAAP-XX-XXXXXXX, 2019 WL
363471, at *4 (Haw. App. Jan. 25, 2019) (noting the testimony of
a clinical and forensic psychologist regarding parental
alienation behaviors exhibited by the parties' child). Instead,
Jennifer Purcell (Purcell) testified she was appointed as Custody
Evaluator and had signed contracts from both parties on or about
August 4, 2020. In the Family Court's Order Appointing Custody
Evaluator, Purcell was ordered to focus her investigation on,
inter alia, "parental alienation/alignment". However, Purcell
testified that she received an email from Father on September 9,
2020, asking her to withdraw from her services because he
believed Purcell had a conflict. Purcell also testified Father
indicated that he wanted her to go through an excess of 800 pages
6
(...continued)
2.01. It is in the minor child's best interests that Mother
be awarded sole legal custody with Father have [sic] rights
of meaningful contact.
. . . .
2.03. Mother shall be awarded sole legal custody of
[Child].
. . . .
2.26. The court has however considered the testimony of the
witnesses and exhibits and heard for [sic] experts in
certain fields, and finds it in the [best interest of the
child] that Mother be awarded sole physical custody of the
minor child as mother is currently the primary caregiver and
is cable [sic] of providing the minor child with a safe
environment, participate in the minor child's therapy
sessions and has substantial evidence that mother acts in
the best interest of the minor child.
. . . .
2.7. In considering factors enumerated in [Hawaii Revised
Statutes (HRS)] §571-46(b), the court finds as follows:
. . . .
Arguments have been made that one party have done things to
alienate and limit time or restrict the other party's time.
However the court finds Mother in compliance with the court
orders of her having primary custody and Father's time with
minor child has occurred pursuant to court orders have had a
negative effect on the welfare of [Child] and may not be in
the best interest of the child to continue until therapy
counseling and parent education classes can be successfully
completed.
(Footnote omitted.)
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of transcripts from previous court proceedings and did not
provide Purcell with the custody evaluation packet. Purcell
testified she withdrew from the case as follows:
Q. And so when you -- so if I'm understanding you right,
the unique difference -- challenge too difficult to overcome
and the lack of sufficient information to render any
recommendations is why you withdrew from this case; is that
correct?
A. Well, it's, ah, a multitude of things. One being I
couldn't get the initial evaluation packet back. One being
that he's asked me to withdraw. A third that he's asked --
he's accused me of having a conflict of interest. Which I
don't even know where he came up with that at.
Um, you know, he was asking me to meet him with paperwork in
Kahului. He was not willing to drive to my office.
Um, he was willing to only give me the paperwork he wanted,
which I understand was court transcripts of matters that
have already been settled.
And then the refusal of my -- my paperwork, on top of him
telling me that, you know, yes, he -- his lawyers withdrew
from him and he needed to find counsel. When, in fact, he
withdrew from his attorneys.
Father's contention that the Family Court clearly erred in
rejecting his claim of parental alienation is without merit.
Father cites a Vermont Supreme Court case which
explains that "[a]cross the country, the great weight of
authority holds that conduct by one parent that tends to alienate
the child's affections from the other is so inimical to the
child's welfare as to be grounds for a denial of custody to, or a
change of custody from, the parent guilty of such conduct."
Renaud v. Renaud, 721 A.2d 463, 465-66 (Vt. 1998) (emphasis
added). However, Father does not specifically argue that Mother
alienated Child's affections, but asserts parental alienation
through Mother's alleged abuse of the TRO process to gain an
advantage in the custody litigation and that Mother interfered
with his visitation.
Regarding Father's argument that Mother misused the TRO
process, the Family Court's 5/26/21 FOFs/COLs and Order states in
relevant part:
Father has not met his burden of proving by clear and
convincing evidence that Mother has committed contempts of
court or any manipulations by Mother; nor abused the TRO
process (and her voluntary dismissal is not prima facie
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evidence that a willful misuse of the protection from abuse
process has occurred pursuant to HRS §571-46(b)(16))[.] 7
(Footnote omitted.)
As explained above, there is substantial evidence in
the record that Mother and Mother's family had concerns over
Child's well-being because of Child's negative change in behavior
after visits with Father and that Mother and Maternal Grandmother
believed the police reports and TROs were necessary. Father's
argument that Mother and Mother's family are manipulating Child
appears to be based on his assertion that Child is being coached,
of which the Family Court found no evidence. We conclude the
Family Court did not clearly err in rejecting Father's claim that
Mother misused the TRO process.
Finally, Father asserts in his opening brief that
Mother interfered with his visitation on at least four occasions
and that he "filed contempt of court complaints against [Mother]"
for violating the Family Court's orders regarding visitation.
Specifically, Father argues that twice in early March 2019,
Mother interfered with his visitation by taking Child to the
hospital for a fever and he disputes that Child was sick. Father
7
HRS § 571-46(b)(16) (2018) provides:
(b) In determining what constitutes the best interest of
the child under this section, the court shall consider, but
not be limited to, the following:
. . .
(16) A parent's prior wilful misuse of the protection from
abuse process under chapter 586 to gain a tactical
advantage in any proceeding involving the custody
determination of a minor. Such wilful misuse may be
considered only if it is established by clear and
convincing evidence, and if it is further found by
clear and convincing evidence that in the particular
family circumstance the wilful misuse tends to show
that, in the future, the parent who engaged in the
wilful misuse will not be able to cooperate
successfully with the other parent in their shared
responsibilities for the child. The court shall
articulate findings of fact whenever relying upon this
factor as part of its determination of the best
interests of the child. For the purposes of this
section, when taken alone, the voluntary dismissal of
a petition for protection from abuse shall not be
treated as prima facie evidence that a wilful misuse
of the protection from abuse process has occurred.
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also argues that twice in early August 2019, Mother failed to
exchange Child in the manner specified by the Family Court.
The contempt of court complaints that Father asserts he
made appear to be reports he made to the Maui Police Department.
Although a status hearing was held regarding visitation on June
6, 2019, Father points to nothing in the record showing he raised
the two March 2019 incidents at this hearing. Our review of the
record shows that Father also failed to raise the alleged
incidents in his November 13, 2019 Motion for Sole Custody, and
waited until his March 18, 2021 Motion to Address Allegations to
raise the issue of Mother's alleged visitation interferences to
the Family Court, two years after they allegedly occurred. The
Family Court rejected Father's claim that Mother committed
contempt of court, and we conclude this was not error.
In sum, the Family Court did not clearly err with
regard to Father's assertions about parental alienation, and the
court did not err in determining that it is in the best interest
of Child to award sole physical and sole legal custody to Mother.
IV. Conclusion
Based on the foregoing, the May 26, 2021 "Written
Findings of Facts Conclusions of Law, Decisions and Orders
Following Trial" entered by the Family Court of Second Circuit is
affirmed, with the exception of the portion of FOF 1.45(11) which
we have struck as inconsistent with the Order regarding Mother's
Cross-Petition.
DATED: Honolulu, Hawai#i, June 28, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Hayden Aluli,
for Petitioner-Appellant /s/ Katherine G. Leonard
Associate Judge
Erin Lea Lowenthal
for Respondent-Appellee /s/ Karen T. Nakasone
Associate Judge
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