CourtListener 10707383

Full text

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-OCT-2025
08:17 AM
Dkt. 39 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

H.A., Plaintiff-Appellee, v.
S.A., Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1DV191007532)

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

S.A. (Father), representing himself, appeals from the
Orders Following Extended Hearing on March 21, 2025 entered by
the Family Court of the First Circuit.1 We vacate and remand for
further proceedings.
Father and H.A. (Mother) were married and are the
parents of Child. Mother filed for divorce. A Divorce Decree
2
was entered on April 3, 2023. Relevant to this appeal, Father
and Mother had joint legal and physical custody of Child, with
equal time-sharing alternating every two weeks.
Father moved for post-decree relief on May 31, 2023.
He sought sole legal custody of Child and physical custody during
the school year, with Mother to have physical custody during
school holidays and breaks, because "[M]other's lifestyle has

1
The Honorable Kyle T. Dowd presided.
2
The Honorable Elizabeth Paek-Harris presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

exhibited a consistent lack of stability, creating an environment
characterized by unpredictability and alcohol abuse."
Father's motion was denied after an evidentiary
hearing.3 The Family Court maintained joint legal and physical
custody. Its October 30, 2023 order stated: "Neither party shall
drink and drive while the minor child is in their custody."
On August 15, 2024, Mother was charged by criminal
complaint with Operating a Vehicle Under the Influence of an
Intoxicant (OVUII) in violation of Hawaii Revised Statutes (HRS)
§ 291E-61. The offense date was August 5, 2024. The record does
not show whether Child was with Mother on that date.
Father moved for post-decree relief on August 26, 2024.
He sought temporary sole legal and physical custody of Child
because of the "[r]ecent arrest of [Mother] and DUI." On
September 12, 2024, the Family Court referred the case to Barbara
Wung Shintani, a child custody evaluator, consistent with HRS
§ 571-46(a)(4) (2018).4 The Family Court ordered Mother "to
start the Soberlink monitoring Level I" and "test each morning
during her 2 weeks with Child." A return hearing date was set.
Shintani filed her report on October 28, 2024. It
included a copy of the criminal complaint charging Mother with
OVUII, copies of Child's school attendance and medical records,
text messages between Mother, Child, and Father, and photographs
provided by Father.
The Family Court entered temporary orders on March 11,
2025.5 Mother's blood-alcohol was to be monitored while Child
was with her; if Mother tested positive, Child was to be
immediately returned to Father until Mother's next scheduled
visit. No adult could consume alcohol or use any substance while
Child was in their care and custody. If minor reported a

3
The Honorable Maria F. Penn presided.
4
The Honorable Robert J. Brown presided.
5
The Honorable Robert J. Brown presided.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

parent's substance use, that parent's visit was to be immediately
terminated.
The Family Court held an extended evidentiary hearing
ten days later, and entered the Orders Following Extended Hearing
that day. The court denied Father's motion for post-decree
relief and vacated the orders requiring Mother to test for
alcohol use, but continued the prohibition on either parent
consuming alcohol while Child is in their respective custody and
care.
This appeal followed.6 The Family Court entered
findings of fact and conclusions of law on June 13, 2025,
consistent with Hawai#i Family Court Rules Rule 52.
Father's opening brief states five points of error,
which we have reordered:

1. A new judge was abruptly assigned on the date of
trial, proceeding without familiarity with the case.

2. The court denied a Motion in Limine and allowed
prejudicial, irrelevant testimony from Ronald Freitas,
[Mother]'s father and elected high ranked public
official, District Attorney of SJ county CA.

3. The court excluded critical documentary evidence
without justification under the Hawai#i Rules of
Evidence.
4. The court denied [Father]'s timely request for remote
witness testimony.
5. The Family Court ignored CPS's formal recommendation
of a CPS court officer for full custody to [Father].

(1) The family court judge who presided over the
extended evidentiary hearing took judicial notice of the record
and case files. Father's point of error lacks merit.
(2) Father's brief does not cite to the record where
his motion in limine appears, quote the testimony he contends was
prejudicial and irrelevant, or cite where he objected, as
required by Rule 28(b)(4)(A) of the Hawai#i Rules of Appellate

6
Child custody appeals have statutory priority. HRS § 571-54
(2018).

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Procedure (HRAP). We are not obligated to search the record for
information that should have been provided by Father. Haw.
Ventures, LLC v. Otaka, Inc., 114 Hawai#i 438, 480, 164 P.3d 696,
738 (2007). We disregard this point of error. HRAP
Rule 28(b)(4).
(3) Father's brief does not cite to the record where
his documentary evidence was offered, the grounds on which it was
objected to, or the basis for the court's ruling excluding the
evidence, as required by HRAP Rule 28(b)(4)(A). We disregard
this point of error. HRAP Rule 28(b)(4).
(4) Father's brief does not cite to the record where
he requested remote testimony, who the witness was, the facts to
which the witness would have testified, or the basis for the
court's denial of remote testimony, as required by HRAP Rule
28(b)(4)(A). We disregard this point of error. HRAP
Rule 28(b)(4).
(5) Father's final point of error has some merit.
Shintani reported:

Despite [M]other's denial of alcohol abuse and neglect of
the child, court officer is concerned that [M]other has
minimized her use of alcohol and the effect that it has on
the child. Text messages exchanged between the parents, and
mother and the child indicate that mother has already
threatened the child with abandonment if she chooses to live
primarily with father. These text messages occur[red] two
months before the court officer's interview with the child.
Mother's continued use of alcohol (no matter how minimal)
indicates that she has not taken the allegations seriously
and defends this by not having a specific order from the
court to stop all alcohol consumption when she has the
child.
She acknowledges that the [C]hild is sensitive to any
alcohol use but flaunts this in front of the [C]hild.
. . . .
Mother's driving conditions: [M]other shall not drink before
driving or while driving when the [C]hild is with her.
Mother shall abide by all conditions as a result of the DUI
and upcoming criminal proceedings. Court officer recommends
a substance abuse assessment and treatment as recommended.

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Shintani's report raised issues relevant to Child's
best interest under HRS § 571-46(b)(2) (history of neglect or
emotional abuse of a child by a parent), (7) (emotional needs of
the child), (8) (safety needs of the child), (12) (parent's
actions demonstrating that they separate the child's needs from
the parent's needs), and (13) (evidence of past or current drug
or alcohol abuse by a parent).
The Family Court's findings of fact are largely a
recitation of pleadings and procedure and summaries of Father's,
Shintani's, Mother's, and Ronald Freitas's testimony. "[M]ere
recapitulations of evidence do not constitute findings of fact."
Kilauea Neighborhood Ass'n v. Land Use Comm'n, 7 Haw. App. 227,
232–33, 751 P.2d 1031, 1035 (1988).
The Family Court found that Father was not credible
because "[h]is accusations against [Mother] as to an alcohol
problem are entirely speculative, stale, or both." The court
found Shintani credible, but found her testimony also "stale."
The court did not make findings explaining why Mother being
charged with OVUII just seven months before the hearing made the
issue speculative or stale.
Nor did the Family Court make findings to explain its
conclusion that "[a]ny orders requiring breath alcohol monitoring
of [Mother], the sharing of such results with [Father], and
modification of custodial time pinned to the outcome of such
testing results are hereby vacated." "Unless
cogent reasons support the second court's action, any
modification of a prior ruling of another court of equal and
concurrent jurisdiction will be deemed an abuse of discretion."
Wong v. City & Cnty., 66 Haw. 389, 396, 665 P.2d 157, 162 (1983).
The Family Court stated it found "cogent reasons to do
so based upon the evidentiary record developed at today's
extended hearing." But it cited only to the recent previous
orders requiring monitoring of Mother's blood alcohol levels when
Child was with her. It made no findings of fact that established
cogent reasons to vacate the prior orders — the most recent of

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

which was entered just ten days before the extended evidentiary
hearing. See State v. Oughterson, 99 Hawai#i 244, 254–55, 54
P.3d 415, 425–26 (2002) (absent change in material facts or
publication of new legal authority, disagreement with prior
judge's judgment "cannot constitute a 'cogent reason' for
modifying [prior judge]'s ruling"). Under these circumstances,
the Family Court acted outside its discretion by vacating the
"orders requiring breath alcohol monitoring of [Mother], the
sharing of such results with [Father], and modification of
custodial time pinned to the outcome of such testing results[.]"
Father's statement that Shintani recommended he have
"full custody" is not correct. But Shintani did recommend that
the Family Court consider a change in the custody schedule
because of the concerns she identified. The Family Court did not
make findings about Child's best interest to address the HRS
§ 571-46(b)(2), (7), (8), (12), and (13) issues raised by
Shintani. The court did not "set forth sufficient facts so that
the reviewing court can prudently discharge its duty and not
experience a sense of frustration through inability to get at the
facts." In re Haw. Elec. Light Co., 60 Haw. 625, 642, 594 P.2d
612, 623 (1979). "We cannot fill the voids . . . for we are not
the fact finding body." Id. at 643, 594 P.2d at 624. On this
record, Father's claim that the Family Court "ignored" Shintani's
recommendation has some merit.
The Family Court's March 21, 2025 Orders Following
Extended Hearing on March 21, 2025 and June 13, 2025 Findings of
Fact & Conclusions of Law are vacated. This case is remanded for
the Family Court to make appropriate findings and conclusions and
determine the best interest of Child based on the evidence from
the March 21, 2025 extended hearing. Vacation of prior family
court orders must be supported by findings and conclusions
establishing cogent reasons for so doing. If it is impracticable
for the Family Court to make findings and conclusions based on
the evidence from the March 21, 2025 extended hearing, it must

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

conduct another evidentiary hearing on Father's August 26, 2024
motion for post-decree relief.
DATED: Honolulu, Hawai#i, October 17, 2025.

On the briefs:
/s/ Karen T. Nakasone
S.A., Self-represented Chief Judge
Defendant-Appellant.
/s/ Katherine G. Leonard
Associate Judge

/s/ Keith K. Hiraoka
Associate Judge