MS v. PP ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
01-DEC-2022
11:50 AM
Dkt. 48 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
MS, Plaintiff-Appellant,
v.
PP, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CASE NO. 3DV201000029)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and Chan, JJ.)
Self-represented Plaintiff-Appellant MS (Mother)
appeals from the "Decree Granting Absolute Divorce" (Divorce
Decree) entered by the Family Court of the Third Circuit on
November 9, 2021.1 For the reasons explained below, we affirm.
Mother was married to Defendant-Appellee PP (Father).
They have four minor Children. Mother filed for divorce in 2020.
A trial was held. The family court entered findings of fact,
conclusions of law, and a decision on September 27, 2021. The
court decided (among other things):
1
The Honorable Jeffrey A. Hawk presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
2. [Father] is awarded sole legal and physical
custody of the minor children, subject to Defendant's [sic]
rights of reasonable visitation as set forth above.[2]
. . . .
7. Counsel for [Mother] shall prepare a Divorce
Decree consistent with these findings, conclusions, and
decision.
Then-counsel for Mother submitted a proposed divorce
decree. Father filed objections and an alternative proposed
divorce decree. The Divorce Decree was entered on November 9,
2021. The family court used Mother's form of the divorce decree,
but made the following changes:
3. Custody of Minor Children.
a) Legal Custody. [Father] is awarded sole legal
custody of the minor children of the parties. [Father]
shall give [Mother] 30 days' advance notice prior to making
any major decision involving the children. JAH
b) Physical custody. [Father] is awarded sole
physical custody of the minor children of the parties[.]
c) For so long as any child is a minor, the
custodial parent shall keep the non-custodial parent
informed of the children's residence address. JAH
The strikeouts were initialed by the family court judge.
Mother, representing herself, filed a timely notice of
appeal. She obtained an extension of time to file the opening
brief, but failed to meet the extended deadline. Mother
requested a second extension of time. We extended the deadline
to May 9, 2022. Mother again failed to meet the deadline. A
"Default of Opening Brief" was entered on May 10, 2022. Mother
filed her opening brief on May 18, 2022, without first setting
aside the default or obtaining another extension of time.
2
The family court had previously concluded:
10. Despite the anxiety of the children, the Court
concludes that Mother shall be awarded visitation with the
minor children as therapeutically driven by the children's
therapists.
(Emphasis added.)
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Mother's opening brief did not comply with Hawai#i Rules of
Appellate Procedure (HRAP) Rule 28(b), and was not signed by
Mother (as required by HRAP Rule 32(d)).3
(1) Father requests dismissal of Mother's appeal.
However, the Hawai#i Supreme Court instructs that self-
represented litigants should not be foreclosed from appellate
review "because of failure to conform to requirements of the
procedural rules." Erum v. Llego, 147 Hawai#i 368, 381, 465 P.3d
815, 828 (2020) (citing Morgan v. Plan. Dep't, Cnty. of Kauai,
104 Hawai#i 173, 180-81, 86 P.3d 982, 989-90 (2004)). Under the
circumstances, we decline to dismiss Mother's appeal. We address
Mother's arguments to the extent they can be discerned, because
Hawai#i appellate courts have "consistently adhered to the policy
of affording litigants the opportunity 'to have their cases heard
on the merits, where possible.'" Morgan, 104 Hawai#i at 180-81,
86 P.3d at 989-90 (citing O'Connor v. Diocese of Honolulu, 77
Hawai#i 383, 386, 885 P.2d 361, 364 (1994)).
(2) Mother argues that the family court violated her
procedural and substantive due process rights by sua sponte
striking provisions from sections 3(a) and 3(c) of her proposed
divorce decree. After a trial, the family court entered findings
of fact, conclusions of law, and a decision, and ordered that
Mother's then-counsel submit a proposed divorce decree. Mother's
former counsel complied. Father objected and filed his own
proposed divorce decree. The family court accepted Mother's
proposed decree, but struck provisions that were inconsistent
with the family court's findings, conclusions, and decision. The
family court was authorized to do so under Rule 23 of the Rules
of the Circuit Courts of the State of Hawai#i. The family court
did not violate Mother's procedural or substantive due process
rights.
3
Mother also filed a reply brief after the applicable deadline
without first obtaining an extension of time or leave for the late filing.
See HRAP Rule 28(d).
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(3) Mother argues that the Divorce Decree improperly
terminated her parental rights under Hawai#i Revised Statutes
(HRS) § 571-61. The proceeding below was not initiated by a
verified petition filed pursuant to HRS § 571-61(b)(3).4 Mother
initiated the proceeding by filing for a divorce. In divorce
cases the family court is authorized to decide child custody,
visitation, and support under HRS § 571-46. "Any custody award
shall be subject to modification or change whenever the best
interests of the child require or justify the modification or
change[.]" HRS § 571-46(a)(6) (2018). The family court did not
terminate Mother's parental rights.
(4) Mother argues that the family court erred by
awarding sole legal and physical custody of Children to Father.
[T]he family court possesses wide discretion in making its
decisions and those decision[s] will not be set aside unless
there is a manifest abuse of discretion. Thus, we will not
disturb the family court's decisions 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.
Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)
(citation omitted).
HRS § 571-46 (2018) sets forth the criteria and
procedure for awarding child custody and visitation. The family
court must make a custody decision "according to the best
interests of the child[.]" HRS § 571-46(a)(1). When determining
what constitutes "the best interest of the child" the family
court must consider the sixteen factors set forth in HRS § 571-
46(b). No single factor is given presumptive weight. Fisher,
4
HRS § 571-61(b)(3) (2018) provides, in relevant part:
In respect to any proceedings under paragraphs (1) and (2),
the authority to terminate parental rights may be exercised
by the court only when a verified petition, substantially in
the form above prescribed, has been filed by some
responsible adult person on behalf of the child in the
family court of the circuit in which the parent resides or
the child resides or was born and the court has conducted a
hearing of the petition.
4
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111 Hawai#i at 50, 137 P.3d at 364. The family court weighed all
sixteen of the factors in this case in conclusion of law no. 8.
The family court then concluded:
9. Considering all of those factors, and the
evidence and arguments presented by the parties, the Court
concludes that Father has provided the bulk of the care for
the children for the past 19 months, that the care he has
provided is nurturing and appropriate and that Father is
better situated to continue to provide care for the
children. Based on the testimony of the guardian ad litem
in this case, it appears that the relationship with Mother
is damaged and that the children cannot safely return to
Mother at this point. The Court further concludes that
because of the level of conflict between the parties the
best interests of the children will be served by awarding
Father sole legal and physical custody of the children.
Conclusions of law nos. 8 and 9 actually present mixed
questions of fact and law, which we review under the "clearly
erroneous" standard because the family court's conclusions are
dependent on the facts and circumstances of each individual case.
Est. of Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152
P.3d 504, 523 (2007). A conclusion of law that is supported by
the family court's findings of fact and reflects an application
of the correct rule of law will not be overturned. Id.Mother argues that the credibility of the witnesses and
the evidence presented at trial should have been weighed in her
favor, rather than in favor of Father. However, "it is not the
province of the appellate court to reassess the credibility of
witnesses or the weight of the evidence, as determined by the
family court[.]" Fisher, 111 Hawai#i at 51, 137 P.3d at 365
(citing In re Doe, 95 Hawai#i 183, 197, 20 P.3d 616, 630 (2001)).
The family court's findings of fact were supported by substantial
evidence, and are not clearly erroneous. The family court's
conclusions of law reflect an application of the correct rule of
law, HRS § 571-46(b). The family court did not err by awarding
sole legal and physical custody of Children to Father.
(5) We decline to consider the arguments made for the
first time in Mother's reply brief. In re Hawaiian Flour Mills,
Inc., 76 Hawai#i 1, 14 n.5, 868 P.2d 419, 432 n.5 (1994) (holding
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that arguments raised for the first time in the reply brief on
appeal were deemed waived).
For the foregoing reasons, the "Decree Granting
Absolute Divorce" entered by the family court on November 9,
2021, is affirmed.
DATED: Honolulu, Hawai#i, December 1, 2022.
On the briefs:
/s/ Keith K. Hiraoka
MS, Presiding Judge
Self-represented Plaintiff-
Appellant. /s/ Karen T. Nakasone
Associate Judge
William Dean,
for Defendant-Appellee PP. /s/ Derrick H.M. Chan
Associate Judge
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