A.S. v. D.S.

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-AUG-2024
08:28 AM
Dkt. 40 SO

CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

A.S., Petitioner-Appellee, v.
D.S., Respondent-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-DA NO. 20-1-1236)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)

Respondent-Appellant D.S. (Father) appeals from the

June 30, 2020 Order for Protection (OFP) entered by the Family

Court of the First Circuit (Family Court) in favor of Petitioner-

Appellee A.S. (Mother).1 Father also challenges in part the

Family Court's August 26, 2020 Findings of Fact [(FOFs)] and

Conclusions of Law [(COLs)], specifically FOFs 11, 35, 36, 38,

40, 41, 43-47, and 49, and COLs 7-13, 16, 17, 25, 26, 28, and 33.

Father raises a single point of error on appeal,

contending based on his challenges to the Family Court's FOFs and

COLs that there was no substantial evidence to support the Family

Court's finding that a protective order was necessary to prevent

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The Honorable Dyan M. Medeiros presided.
future acts of domestic abuse by Father against the parties'

minor child (Child), and the OFP as to Child must be vacated.

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 point of error as follows:

FOF 11 includes that Child was in the home at the time

of the incident when Father choked Mother until she passed out.

Father argues that FOF 11 is clearly erroneous because it does

not clarify that Child was not present in the same room at the

time. This argument is without merit.

Father challenges FOFs 35 and 36 as clearly erroneous

because Father disagrees that Mother was more credible than

Father's mother. However, "[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." LC v. MG & Child Support

Enf't Agency, 143 Hawai#i 302, 310-11, 430 P.3d 400, 408-09
(2018) (citation omitted). Accordingly, we will not disturb the

Family Court's determinations of credibility here.

In FOF 38, the Family Court found that Mother was not

competent to testify as to what happened while she was

unconscious. This FOF is not clearly erroneous.

FOFs 40, 41, 43-45, and 49 state:
40. With respect to [Child], the Court finds that
events of April 25, 2020 through April 26, 2020 constitute
an offense under [Hawai#i Revised Statutes (HRS)] § 709-906,
which is, by definition pursuant to HRS Chapter 586,
domestic abuse. Since the events occurred in the presence
of [Child], a minor, an OFP for [Child] is appropriate.

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41. The Court also finds that the events of April
25, 2020 through April 26, 2020 constituted a threat of
imminent physical harm, threat of bodily injury, and threat
of assault to [Child] given [Father's] sudden, immediate,
and extremely violent attack on [Mother].
. . . .

43. [Father] has failed to show cause as to why an
OFP should not be issued for [Child]. [Father's] argument
at trial was that no abuse was directed at [Child], and that
the request for an OFP for [Child] was due to a custody and
visitation dispute between the parties.
44. In support of his argument, [Father] elicited
testimony showing that [Mother] resided with [Father] for a
time after she was released from the hospital and that she
continued to allow him to visit with [Child] until she filed
a police report and the Petition in this case.

45. The Court does not find [Mother's] behavior
after [Father's] attack on her to be an appropriate gauge of
whether an OFP is appropriate for [Child]. Victims of
domestic violence often remain with the perpetrators of
abuse for various reasons. The choice does not mean that
domestic abuse did not occur or that a victim or a child is
safe or does not need the protection of the Court.

. . . .
49. Alternatively, even if [Child] was not included
in the OFP in this case, it is appropriate for [Father] to
have supervised visits with [Child] to ensure [Mother's]
safety and the safety of [Child].

As discussed further below, Father disagrees with the

Family Court's interpretation of domestic abuse, argues that

there is no evidence that he presented any danger to Child, and

contends that the incident with Mother has no bearing on whether

Father presented a threat of imminent physical harm, threat of
bodily injury, or threat of assault to Child. Father points out

that after Mother was released from the hospital, she stayed with

Father and his mother.2 The factual findings in FOFs 40, 41, 43-

45, and 49 are supported by substantial evidence in the record,

with due deference given to the Family Court's determinations of

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Mother testified that she returned to the home because her jaw had
been broken in multiple places and was wired shut, she was in pain and on pain
medication, and she could not adequately care for Child when she left the
hospital.

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credibility, weighing of the evidence, and drawing of justifiable

inferences of fact from the evidence adduced. See, e.g., State

v. Eastman, 81 Hawai#i 131, 135-39, 913 P.2d 57, 61-65 (1996)

(discussing substantial evidence standard); State v. Naeole, 62

Haw. 563, 565, 568-69, 617 P.2d 820, 823, 824-25 (1980) (same).

Father argues that a number of the Family Court's COLs

are wrong, as part of his overarching argument that the Family

Court erred in issuing the OFP for Child because there was no

substantial evidence that an OFP was necessary to prevent future
domestic abuse of Child. Father contends that the Family Court

was wrong in concluding that Father's alleged HRS § 709-906(a)

(Supp. 2019) offense against Mother in Child's presence

constituted grounds for the OFP with respect to Child. Father

further contends that the Family Court clearly erred and was

wrong in finding and concluding that Father's sudden, immediate,

and extremely violent attack on Mother demonstrated that Father

was clearly unable to control his actions to such a degree that

he posed a threat of imminent physical harm, bodily injury, or
assault to Child, the parties' very young child, if Father were

similarly angered by either Mother or Child.

We consider the Family Court's FOFs and COLs in the

overall context of HRS chapter 586, which can provide for

temporary restraining orders (TROs), without prior notice to an

alleged domestic abuser, and on a longer-term basis, after notice

and a hearing of all relevant evidence. We begin with HRS § 586-

1 (2018), which provides in pertinent part:

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§ 586-1 Definitions. As used in this chapter:
. . . .
"Domestic abuse" means:
(1) Physical harm, bodily injury, assault, or the
threat of imminent physical harm, bodily injury,
or assault, extreme psychological abuse, or
malicious property damage between family or
household members; or

(2) Any act which would constitute an offense under
section 709-906, or under part V or VI of
chapter 707 committed against a minor family or
household member by an adult family or household
member.

Father did not contest that his actions constituted

domestic abuse of Mother, agreed to the entry of an OFP as to

Mother, but argued that the OFP was not warranted as to Child

because, in effect, he only physically harmed the mother, not the

young child, who was in another room. In particular, Father now

seizes on isolated phrases and explanations in the Family Court's

COLs, including the Family Court's explication of the part of the

above definition of domestic abuse referring to "[a]ny act which

would constitute an offense under section 709-906[.]" COL 9, for

example, states that "[Father's] actions were physical abuse

(pursuant to HRS § 709-906) in the presence of a minor (as

defined by HRS § 706-606.4) and therefore constitute domestic

abuse as defined by HRS § 586-1." This COL has three clauses,

none of which is wrong per se. In isolation from the rest of the

FOFs and COLs, COL 9 is nevertheless unclear, as the presence of

the minor is not determinative of whether the physical abuse

pursuant to HRS § 709-906 constituted domestic abuse as defined

by HRS § 586-1. However, in the overall context of the Family

Court's FOFs and COLs, read in their entirety, it is clear that

the Family Court found and concluded that the presence of Child

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at the time of Father's domestic abuse against Mother was part of

the court's rationale for granting the OFP as to Child, albeit

stated awkwardly in COL 9. Cf. FOFs 40 and 41.

HRS § 586-5.5 (2018) provides, in pertinent part:
§ 586-5.5 Protective order; additional orders . (a)
If, after hearing all relevant evidence, the court finds
that the respondent has failed to show cause why the order
should not be continued and that a protective order is
necessary to prevent domestic abuse or a recurrence of
abuse, the court may order that a protective order be issued
for a further fixed reasonable period as the court deems
appropriate.

The protective order may include all orders stated in
the temporary restraining order and may provide for further
relief as the court deems necessary to prevent domestic
abuse or a recurrence of abuse, including orders
establishing temporary visitation and custody with regard to
minor children of the parties and orders to either or both
parties to participate in domestic violence intervention
services.

Here, Mother was granted a TRO when she filed her

petition for an OFP for herself and on behalf of Child. After

hearing evidence presented by both parties, based on the totality

of the evidence presented, the Family Court found and concluded

based on Father's actions in choking Mother until she passed out,

with Mother waking the next morning with a tooth knocked out and

her jaw broken in multiple places, followed by Father's
resistance to taking Mother to the emergency room (that continues

for a full day) despite her repeated requests, all of which took

place with Child present in the home, the Family Court found and

concluded, inter alia, that those events constituted a threat of

imminent physical harm to Child, and Father failed to show cause

why an OFP should not be issued for Child. The Family Court's

finding and conclusion that Father was clearly unable to control

his actions to such a degree that it posed a threat to both

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Mother and Child is grounded in substantial evidence in the

record.

We conclude that, even if the Family Court erred in

some of the language contained in its written FOFs and COLs, any

such error was harmless error based on the full record before the

court in this case. Accordingly, the Family Court's June 30,

2020 OFP is affirmed.

DATED: Honolulu, Hawai#i, August 13, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Alen M. Kaneshiro,
for Respondent-Appellant. /s/ Keith K. Hiraoka
Associate Judge
K. Kenji Akamu,
for Petitioner-Appellee. /s/ Clyde J. Wadsworth
Associate Judge

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