D.F. v. T.F.

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-SEP-2024
07:59 AM
Dkt. 76 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

D.F., Plaintiff-Appellant, v.
T.F., nka T.Y., Defendant-Appellee.

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CASE NO. 3DV181000175)

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

Plaintiff-Appellant Father appeals from the Family

Court of the Third Circuit's 1 April 17, 2023 "Decision and Order

Following Trial re: Child Custody, Timesharing, Child Support,

Child Related Expenses and Fees[.]"

In September 2019, the family court entered a divorce

decree 2 awarding legal and physical custody of the three minor

children to Father with a time-sharing schedule. At the time of

1 The Honorable Jeffrey W. Ng presided.

2 The Honorable Charles H. Hite presided.
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the divorce decree, Father was represented by counsel and

Defendant-Appellee Mother was not.

In September 2020, a year later, and represented by

counsel, Mother moved for post-decree relief requesting sole

legal and physical custody of the children and to relocate to

Connecticut. Mother provided a statement explaining that a

change in custody was in the best interests of the children

based on, among other reasons: lack of supervision while Father

worked; Father's physical violence towards one of the children;

Father's use of pain medication; and the children's poor

performance and poor attendance at school.

Following trial, the family court found Mother

credible and Father not credible. The family court further

found that the issue of domestic violence was not litigated in

the "initial divorce case," Father committed family violence,

Father was emotionally abusive and used coercive control,

"Mother's concern that Father abuses prescription medication and

is unsafe for the Children is credible and valid," and Father

neglected the children's educational and health needs.

The family court granted Mother's request as to the

youngest child, concluding it was in that child's best interest

to relocate with Mother. The family court noted that when the

proceedings began, the oldest child was a minor but had turned

18 years old by the time trial ended and moved to another state.

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The family court also noted the middle child was going to turn

18 in two months.

On appeal, Father argues (1) res judicata bars

Mother's abuse claims, and (2) Mother failed to show relocation

was in the youngest child's best interest.

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

points of error as discussed below, and affirm.

(1) In asserting claim preclusion, Father contends

"[i]f Mother desired for her allegations of abuse to be raised

and considered by the Court prior to having their divorce

finalized, she should - and could - have raised them at the

divorce trial in August 2019" and in her motions to reconsider.

Res judicata, or claim preclusion, "prohibits a party

from relitigating a previously adjudicated cause of action."

Bremer v. Weeks, 104 Hawai‘i 43, 53, 85 P.3d 150, 160 (2004)

(citation omitted). But, res judicata appears less constraining

when a court considers the best interest of the child factors

while modifying a custody order. See generally, Tumaneng v.

Tumaneng, 138 Hawai‘i 468, 473, 474, 382 P.3d 280, 285, 286

(2016) (allowing evidence of pre-decree family violence to be

brought forth in a custody modification hearing).

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Under Hawaiʻi Revised Statutes (HRS) § 571-46 (2018),

the family court considers the best interest of the child when

making a custody award, and any custody award is subject to

further order by the court. HRS § 571-46(a)(6) ("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) ("In actions for divorce . . .

or any other proceeding where there is at issue a dispute as to

the custody of a minor child, the court . . . may make an order

for the custody of the minor child as may seem necessary or

proper.").

In every proceeding where the custody of a child is at

issue, "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."

HRS § 571-46(a)(9). And the family court is required to

consider "[a]ny history of sexual or physical abuse of a child

by a parent[.]" HRS § 571-46(b)(1).

Here, the family court found the "issue of domestic

violence was not litigated during the initial divorce case."

Father does not challenge this finding in his points of error.

Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(4).

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The family court also found Father committed domestic

violence and sexual violence against Mother, and committed

domestic abuse against the oldest child who was still a minor at

the start of trial. The family court also determined Father

committed family violence. Father does not challenge these

findings in his points of error. HRAP Rule 28(b)(4).

Under these circumstances, the family court properly

considered evidence of violence in determining the best

interests of the children pursuant to HRS § 571-46, and claim

preclusion did not bar the consideration of such evidence.

(2) Father next contends the family court "was clearly

erroneous and also abused its discretion in allowing [the

youngest child] to relocate with Mother because Mother did not

meet her burden of proving that the relocation was in [the

youngest child]'s best interests." (Formatting altered.)

HRS § 571-46 sets forth the "[c]riteria and procedure

in awarding custody and visitation," and "Hawai‘i courts have

consistently adhered to the best interests of the child standard

as paramount when considering the issue of custody." HRS § 571-

46 (emphasis omitted); Fisher v. Fisher, 111 Hawai‘i 41, 50, 137

P.3d 355, 364 (2006). "In doing so, the family court is granted

broad discretion to weigh the various factors involved, with no

single factor being given presumptive paramount weight, in

determining whether the standard has been met." Id.

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Here, the family court methodically evaluated the 16

factors listed in HRS § 571-46(b), with 12 factors weighing in

Mother's favor, one factor weighing in Father's favor, and the

other three factors being inapplicable or not clearly in either

party's favor.

As to the factors in Mother's favor, the family court

found Father committed physical violence against the oldest

child; Father was emotionally abusive and coercively

controlling; Father neglected the children's educational,

emotional, and health needs; Father did not support the

children's relationship with Mother; Mother did not abandon the

children but was escaping domestic violence; Mother's concern

about children's safety due to father's use of pain medication

was credible; Mother's claim that Father made visitation

difficult was credible, and Mother demonstrated she was willing

to consider the needs of the children ahead of her own.

The family court found Mother credible and, thus,

Mother's testimony provided sufficient evidence to support these

findings. "It 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." Fisher, 111 Hawai‘i at 46, 137 P.3d at 360 (citation

omitted).

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As to relocation in particular, the appointed custody

fact finder in this case testified the youngest child "is bright

and that the educational opportunit[ies] in Connecticut [are]

substantially better than [Hawaiʻi]." He further testified it

was his opinion the youngest child "would do well overall and

thrive in Connecticut."

Because the family court considered the factors

outlined in HRS § 571-46(b), assessed the credibility of

witnesses, and accorded weight to certain witnesses over others,

the family court did not abuse its discretion in determining it

was in the youngest child's best interest to relocate to

Connecticut to live with Mother. See Fisher, 111 Hawai‘i at 50-

51, 137 P.3d at 364-65 ("Inasmuch as the family court accorded

weight to certain witnesses over others and those witnesses

provided evidence that the relocation would benefit the

children, the ICA did not err in upholding the family court's

findings and conclusions regarding the best interests of the

children.").

Based on the foregoing, we affirm the family court's

April 17, 2023 "Decision and Order Following Trial re: Child

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Custody, Timesharing, Child Support, Child Related Expenses and

Fees[.]"

DATED: Honolulu, Hawai‘i, September 27, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Rosa Flores,
for Plaintiff-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
David B. Leas,
for Defendant-Appellee. /s/ Sonja M.P. McCullen
Associate Judge

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