Thompson v. Thompson

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-FEB-2025
07:55 AM
Dkt. 164 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MEGAN THOMPSON, Petitioner-Appellee-Cross-Appellant,
v.
MICHAEL THOMPSON, Respondent-Appellant-Cross-Appellee

APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
(CASE NO. 5DA191000083)

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

Michael Thompson appeals, and Megan Thompson cross-
appeals, from several orders of the Family Court of the Fifth
Circuit.1 Michael challenges the family court's two-year Order
for Protection and order awarding him $0 in attorneys fees
incurred to quash Megan's subpoenas duces tecum. Megan
challenges the Order For Protection's expiration date, order
denying her motion to supplement her petition for protection, and
order granting Michael's request for attorneys fees. We reverse
the September 29, 2021 "Order for Protection." We affirm the
November 29, 2019 "Order Following Hearing on Petitioner's
September 13, 2019 Motion for Leave to Supplement the Petition
for an Order for Protection Filed on April 11, 2019." We reverse
the October 29, 2021 "Order and Judgment in Favor of Respondent

1
The Honorable Edmund D. Acoba presided.
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Michael Thompson and Against Petitioner Megan Thompson for
Attorney's Fees."

Background

Megan petitioned for an order for protection against
Michael on April 11, 2019. A temporary restraining order (TRO)
was issued that day, with a hearing set for April 24, 2019.
Michael was served on April 13, 2019, but did not appear at the
hearing. An order for protection was entered on April 24, 2019,
effective for 10 years. We take judicial notice2 that Megan
filed for divorce on May 8, 2019, and a divorce decree was
entered on November 27, 2023. Thompson v. Thompson, Judiciary
Information Management System (JIMS) Case No. 5DV191000080, at 1,
410 (Haw. Fam. Ct. Nov. 27, 2023).
Michael moved to set aside the order for protection on
July 8, 2019. The motion was heard on September 11, 2019. The
family court granted Michael's motion and scheduled an
evidentiary hearing on Megan's petition. Megan moved to
supplement her petition on September 13, 2019. She claimed that
Michael had "engaged in multiple acts of harassment" between the
issuance of the TRO and the hearing on his motion to set aside.
The family court denied Megan's motion.
Megan filed a second petition for order for protection
on October 4, 2019. Thompson v. Thompson, JIMS Case No.
5DA191000239, at 1 (Haw. Fam. Ct. Oct. 4, 2019). Megan's
petitions were consolidated for hearing only, and were heard over
several days between December 18, 2019 and September 29, 2021,
primarily due to the COVID-19 pandemic. The TRO remained in
effect during that period. The Order for Protection was entered
in this case on September 29, 2021. It was effective for two

2
See Hawaii Rules of Evidence Rule 201.

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years, until September 28, 2023.3 The family court dismissed
Megan's second petition as moot because it was granting the
petition in this case.4 The family court entered findings of
fact and conclusions of law on December 27, 2021, consistent with
Hawai#i Family Court Rules (HFCR) Rule 52.

Discussion

(1) Michael and Megan both challenge the Order for
Protection.

[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).
(a) Michael contends the family court erroneously
found and concluded that the Order for Protection was necessary
to prevent domestic abuse or a recurrence of abuse. Relevant to
this case, Hawaii Revised Statutes (HRS) § 586-1 (2018) defined
"domestic abuse" as "[p]hysical 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[.]"
The family court found that on April 10, 2019 (the day
before Megan filed her petition), Michael and Megan were married
but separated. Megan returned to their home that morning. She
and Michael argued about who should be at the home. Michael
"became physical" with Megan while both were in the house
standing by the door. Megan "defended herself" by gripping

3
Michael's appeal from the Order for Protection is moot, but we
conclude that the collateral consequences exception to the mootness doctrine
applies. See Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i 1, 8, 193 P.3d
839, 846 (2008).
4
Megan has not appealed from the dismissal of her second petition.

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Michael's testicles "to make him let go." These unchallenged
findings are binding on appeal. Okada Trucking Co. v. Bd. of
Water Supply, 97 Hawai#i 450, 459, 40 P.3d 73, 82 (2002).
Michael challenges finding of fact (FOF) nos. 8, 9, 11,
and 13. We review findings of fact under the clearly erroneous
standard. Est. of Klink ex rel. Klink v. State, 113 Hawai#i 332,
351, 152 P.3d 504, 523 (2007). An FOF is clearly erroneous when
the record lacks substantial evidence to support the finding.
Id. "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.
The family court found that after Megan gripped
Michael's testicles:

8. When [Michael] went to the ground, he got on his
back and kicked [Megan]'s abdomen with his foot.

9. Officer Asuncion on responding to the incident
recognized redness to [Megan]'s Abdomen in the general shape
and size of a foot, he witnessed dirt on [Megan]'s shirt in
a particular pattern over that portion of the abdomen, and
he subsequently matched that pattern to the shoe [Michael]
was wearing.

These FOFs are supported by the testimony of Ross Ruiz
and Kaua#i Police Department officer Gilbert Asuncion, and by
photographs of Megan taken by Officer Asuncion. The family court
found Michael's testimony to the contrary not credible. "It is
well-settled that an appellate court will not pass upon issues
dependent upon the credibility of witnesses and the weight of
evidence; this is the province of the trier of fact." Fisher,
111 Hawai#i at 46, 137 P.3d at 360.
The parties do not dispute that Michael then "came into
possession" of Megan's phone without her permission, put the
phone into the toilet bowl, and "sat on the toilet in an effort
to deprive" Megan of her phone. The family court found:

11. [Michael] ran towards the bedroom with [Megan]'s
phone, he pivoted and held his arm out in such a way that
she was unable to stop and was hit in the chest by
[Michael].

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. . . .
13. During [Megan]'s attempt to retrieve her phone,
[Michael] shoved her against jealousies [sic] in the
bathroom window breaking them and leaving visible marks on
[Megan]'s back.

These FOFs are supported by Megan's testimony ("He was
pushing me towards the window."), testimony by Ruiz and Officer
Asuncion, and photographs of Megan, the toilet's proximity to the
bathroom window, and the broken jalousies.
Michael also challenges FOF no. 2, which is actually a
mixed FOF and conclusion of law (COL), and COL nos. 4, 5, and 12,
which are also mixed findings and conclusions. We review a mixed
finding of fact and conclusion law under the clearly erroneous
standard because the court's ruling depends on the facts and
circumstances of the case. Klink, 113 Hawai#i at 351, 152 P.3d
at 523. A ruling supported by the trial court's findings and
applying the correct rule of law will not be overturned. Id.
The family court found and concluded:

2. A protective order is necessary to prevent
domestic abuse or a recurrent [sic] of abuse, and is
necessary for a period of 2 years, which is a reasonable
amount of time.

. . . .

4. [Michael] has failed to show cause why the
Temporary Restraining Order should not be continued.

5. [Megan] has met her burden of proof by a
preponderance of the credible and reliable evidence, and she
is entitled to a Protective Order pursuant to Hawaii Revised
Statutes § 586-5.5.
. . . .

12. The Protective Order is necessary to prevent
domestic abuse or a recurrent [sic] of abuse, and is
necessary for a period of 2 years, which is a reasonable
amount of time.

HRS § 586-5.5 (Supp. 2021) provides, in relevant part:

(a) If, after hearing all relevant evidence, the court
finds that the respondent has failed to show cause why the
[temporary restraining] 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

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protective order be issued for a further fixed reasonable
period as the court deems appropriate[.]

Michael argues the evidence was insufficient to show
that domestic abuse, or a recurrence, had to be prevented. He
cites Schack v. Kassebeer, No. CAAP-XX-XXXXXXX, 2018 WL 2441563
(Haw. App. May 31, 2018) (SDO), and Peck v. Kuiper,
No. CAAP–11–0000806, 2013 WL 966956 (Haw. App. Mar. 12, 2013)
(SDO). In Schack "[t]here was no evidence of any abuse prior to
or after the incident" and there was "no evidence in the record,
and no reasonable inferences could be drawn from the evidence, to
support a conclusion that the incident was anything other than an
isolated event." 2018 WL 2441563, at *1, *2.
In Peck "[t]he Family Court stated that there may have
been an incident of domestic abuse, but that it did not feel that
a protective order was necessary to prevent further domestic
abuse." 2013 WL 966956, at *1. We held:

Due to the lack of a finding of a prior history of domestic
abuse and a finding that Kuiper's apparent abuse of Peck was
an isolated incident that occurred after the accusations by
Peck, this court cannot say the Family Court abused its
discretion by finding insufficient evidence to support a
conclusion that a protective order was necessary to prevent
domestic abuse or a recurrence of abuse.

Id.
Michael contrasts Schack and Peck with MD v. PR,
No. CAAP-XX-XXXXXXX, 2020 WL 888336 (Haw. App. Feb. 24, 2020)
(SDO), where we held:

[T]he evidence supports the Family Court's findings that
there were two instances of domestic abuse. Moreover,
although there was testimony that the parties were living
separately, there was also testimony that they were living
only five houses apart. Additionally, Husband and Wife have
a child together. Consequently, they were likely to
interact with each other and, given the apparent tension
between them, there was the potential for a recurrence of
abuse. Thus, there was substantial evidence to support the
Family Court's determination that domestic abuse was not an
isolated event between the parties and a protective order
was necessary to prevent a recurrence of abuse.

2020 WL 888336, at *5.

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Here, the family court did not make a finding that
there had been domestic abuse before April 10, 2019. When it
announced its decision it stated: "I want to focus mainly on the
incident that occurred on April 10, 2019 because it seems as
though a lot of evidence was focused on that incident[.]" FOF
no. 3 (which Megan challenges) stated, "[t]he thrust of the
evidence in relation to the Request for the Protective Order
related to a particular incident that occurred on April 10,
2019."
The family court did not find that the April 10, 2019
incident was an isolated event. Megan presented evidence that
Michael also abused her on April 22, 2018, and December 16, 2018.
The family court ruled that evidence sufficient to establish
prima facie abuse, and denied Michael's motion to dismiss.
Michael's counsel responded: "So there are three incidents that
will need to be responded to by [Michael], the April 22nd, '18
incident. . . . The December 6 [sic], 2018 incident and the
April 10, 2019 incident; is that correct?"
The family court stated, "Yes."
Megan's answering brief details the conflicting
evidence she and Michael presented at trial about the April 22,
2018 and December 16, 2018 incidents. Michael's reply brief does
not dispute Megan's description or argue additional evidence.
The family court did not mention the April 22, 2018 or
December 16, 2018 incidents when it announced its decision. Its
FOFs did not mention either incident.

HRS § 586–5 addresses the problem of domestic abuse by
providing protection for an abused family or household
member through the issuance of a restraining order. The
legislature enacted HRS Chapter 586 in 1982 "to streamline
the procedures for obtaining and issuing ex parte temporary
restraining orders to prevent acts of or the recurrence of
domestic abuse." Hse. Conf. Comm. Rep. No. 1, in 1982 House
Journal, at 815; see also Hse. Stand. Comm. Rep. No. 592, in
1982 House Journal, at 1165; Sen. Conf. Comm. Rep. No. 4, in
1982 Senate Journal, at 873. The Senate Standing Committee
Report found that a restraining order serves "to cool
violent relationships that have been developing for a number
of years" and that giving the court "the discretion to
extend protective orders" provides "greater flexibility in

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trying to calm the emotionally charged nature of such
situations." Sen. Stand. Comm. Rep. No. 643, in 1982 Senate
Journal, at 1222. Thus, the purpose of the restraining
order is to "prevent [] acts of abuse, or a recurrence of
actual domestic abuse, and assur[e] a period of separation
of the parties involved." HRS § 586–4 [(1993)].

Coyle v. Compton, 85 Hawai#i 197, 204–05, 940 P.2d 404, 411–12
(App. 1997).
When it announced its decision the family court stated:

Now, as a result of this scuffle that occurred in the
home, both parties received minor injuries. . . .
. . . .
. . . [T]he Court also is taking judicial notice that
a divorce action was filed in Thompson v Thompson, the Court
finds -- and also that attorneys are involved in the divorce
action and that -- and I agree with [Megan's counsel],
there's no reason for [Michael] to have any contact with
[Megan] other than through his attorney to negotiate the
terms and conditions of the divorce action. . . .

This case is not an unusual case because, as many
divorce cases, especially when parties initially separate,
there's hostile feelings and there's always questions about
who should live in the home, how money should be spent,
division of property, and at that time there's no Court
orders in place so there's a lot of conflict, and hopefully
this can be resolved all through the divorce action and the
parties can go their separate ways and not have any contact
with each other.

The family court found, and the parties do not dispute:

15. No evidence was admitted of any continuing
harassing behavior that occurred subsequent to the filing of
[Megan's second petition].

The family court found and concluded:

10. As no evidence was admitted as to violations of
the protective order subsequent to the filing of [Megan's
second petition] there is no fear that there will be further
contact subsequent to the finalization of the divorce case.

Megan's cross-appeal challenges COL no. 10. But the record shows
she has no children with Michael, and her opening brief cites to
no evidence in the record tending to show she feared further
contact with Michael after their impending divorce.

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This case is more like Schack and Peck than MD v. PR.
Here, the family court made no findings of multiple incidents of
abuse. The family court did not find what happened on April 10,
2019 to be an isolated incident; but it characterized the event
as a "scuffle" in which Megan and Michael both received "minor
injuries." The family court's mixed finding and conclusion that
the Order for Protection was "necessary to prevent domestic abuse
or a [recurrence] of abuse" was not supported by findings of
fact, and was contrary to the findings that there was no reason
for Michael to have contact with Megan except through their
respective divorce attorneys, and "there is no fear that there
will be further contact subsequent to the finalization of the
divorce case." Under these circumstances, we conclude the family
court acted outside of its discretion by entering the Order for
Protection.
(b) Megan contends the Order for Protection should
have been issued for 10 years instead of two. We need not
address this issue because we've concluded that the family court
erred by entering the Order for Protection.
(2) Megan challenges the family court's order denying
her motion to supplement her petition under HFCR Rule 15(d).
Megan's motion was supported by her declaration describing things
she said Michael did after he was served with the Order for
Protection. During the September 20, 2019 hearing the family
court stated that the new allegations concerned events after the
TRO was issued, so that Megan wouldn't be barred by res judicata
from filing a new petition based on those events. Megan's
counsel stated, "if it's the Court's finding that my client will
not be prejudice because the Court recognizes she could file a
separate TRO, I would concede there's no prejudice to her." The
family court denied the motion to supplement. Megan filed her
second petition two weeks later. The cases were consolidated for
evidentiary hearing. Under these circumstances, the family court
acted within its discretion by denying Megan's motion to
supplement.

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(3) On June 2, 2020, Michael moved to quash subpoenas
duces tecum Megan served on Avis Budget Group, Inc. and Venmo.
The family court granted the motion and Michael's request for
attorneys fees, and directed counsel to submit an affidavit of
fees. Counsel submitted an affidavit on September 7, 2021,
requesting $2,499.98 in fees. The family court entered an order
on October 29, 2021. It awarded Michael $0 in attorney fees.
Megan does not challenge the family court's decision to
quash her subpoenas, but challenges the family court granting
Michael's request for attorneys fees.
Michael challenges the family court awarding him $0 in
attorneys fees.
Michael moved to quash subpoenas Megan had issued on
April 30, 2020 — after the November 4, 2019 discovery deadline,
and after the evidentiary hearing began (on December 18, 2019).
Michael argued the subpoenas were unreasonable and oppressive,
and requested an award of attorneys fees. Megan opposed the
motion and also requested an award of attorneys fees. But Megan
now argues the family court had no legal basis to award fees.
The family court's order didn't state the authority for
the fee award, as required by Kaina v. Gellman, 119 Hawai#i 324,
331, 197 P.3d 776, 783 (App. 2008). Michael argues the family
court had inherent power to award fees under HRS § 571-
8.5(a)(10), citing Enos v. Pacific Transfer & Warehouse, Inc., 79
Hawai#i 452, 457, 903 P.2d 1273, 1278 (1995). But the family
court didn't make "a specific finding of bad faith." Kaina, 119
Hawai#i at 331, 197 P.3d at 783. The record does not show "clear
evidence that the challenged actions [were] entirely without
color, and [were] taken for reasons of harassment or delay or for
other improper purposes[.]" Enos, 79 Hawai#i at 458, 903 P.2d at
1279. The transcript of the August 5, 2020 hearing on Michael's
motion does not show "a high degree of specificity in the factual
findings of the" family court. Id. The family court acted
outside of its discretion by assessing Michael's attorneys fees
against Megan without stating the authority for the award or

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making a specific finding of bad faith. We need not decide
whether the $0 award was error.

Conclusion

The September 29, 2021 "Order for Protection" is
reversed. The November 29, 2019 "Order Following Hearing on
Petitioner's September 13, 2019 Motion for Leave to Supplement
the Petition for an Order for Protection Filed on April 11, 2019"
is affirmed. The October 29, 2021 "Order and Judgment in Favor
of Respondent Michael Thompson and Against Petitioner Megan
Thompson for Attorney's Fees" is reversed.
DATED: Honolulu, Hawai#i, February 4, 2025.

On the briefs:
/s/ Katherine G. Leonard
Charles T. Kleintop, Acting Chief Judge
Lynn K. Kashiwabara,
for Respondent-Appellant- /s/ Keith K. Hiraoka
Cross-Appellee Michael Associate Judge
Thompson.
/s/ Kimberly T. Guidry
Dyan K. Mitsuyama, Associate Judge
Paula S. Nakata,
for Petitioner-Appellee-
Cross-Appellant Megan
Thompson.

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