Ostrowski v. Ostrowski

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-JUN-2025
07:49 AM
Dkt. 33 SO

NO. CAAP-XX-XXXXXXX

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

ZONA O. OSTROWSKI, Petitioner-Appellee,
v. ANTHONY C. OSTROWSKI, Respondent-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1FDA-22-002299)

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

This appeal challenges a domestic abuse protective
order. We affirm.
Respondent-Appellant Anthony C. Ostrowski (Husband)
appeals from the October 18, 2022 Order for Protection entered
by the Family Court of the First Circuit (family court) 1 pursuant
to Hawaii Revised Statutes (HRS) § 586-5.5, 2 which prohibited

1 The Honorable Bode A. Uale presided.

2 HRS § 586–5.5(a) (2018 & 2024 Supp.) provides for the issuance of
a "protective order . . . for a further fixed reasonable period as the court
deems appropriate" upon proof "that a protective order is necessary to
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Husband from contacting, abusing, or threatening his wife,
Petitioner-Appellee Zona O. Ostrowski (Wife), for one year
(Protective Order). 3
On appeal, Husband challenges the December 8, 2022
Findings of Fact (FOFs) and Conclusions of Law (COLs), by
contending the family court erred in FOFs 7(a)-(g), and COLs 18
and 19, which found Wife credible and her domestic abuse
allegations for the October 1, 2022 incident proven by a
preponderance of the evidence, as follows:
7. Following the trial on the Petition, . . . the
Court finds that WIFE proved the material allegations of
the Petition by a preponderance of the evidence as to:

a. Allegation A: WIFE testified that on October 1,
2022 she sustained domestic abuse by HUSBAND when HUSBAND
chased WIFE while videoing her and calling her names,
including slut and whore.

b. Allegation B: On October 1, 2022, WIFE fell down
when HUSBAND was chasing her while videoing her out by her
car, WIFE sustained injuries.

c. Allegation C: HUSBAND refused to render aid to
WIFE during this incident on October 1, 2022. Police came
to the scene along with an ambulance and assisted WIFE.

d. WIFE is afraid of HUSBAND's ongoing violent and
degrading behavior towards her.

prevent domestic abuse or a recurrence of abuse[.]" HRS § 586-1 (2018 & 2024
Supp.) defines "Domestic abuse" as "[p]hysical harm, bodily injury, assault,
or the threat of imminent physical harm, bodily injury, or assault, extreme
psychological abuse, coercive control, or malicious property damage between
family or household members[.]"

At a protective order hearing under HRS § 586-5.5(a), while "the
respondent must 'show cause why' the protective order is not necessary, . . .
the burden remains on the petitioner to prove the petitioner's underlying
allegations by a preponderance of the evidence." Kie v. McMahel, 91 Hawai‘i
438, 442, 984 P.2d 1264, 1268 (App. 1999).

3 Although the Protective Order expired on October 18, 2023, the
appeal is not moot, and we review this appeal under the collateral
consequences exception. See Hamilton ex rel. Lethem v. Lethem, 119 Hawai‘i 1,
9–10, 193 P.3d 839, 847–48 (2008).

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e. The Court finds that HUSBAND did not show good
cause why the order should not be continued.

f. The Court finds that a protective order is
necessary to prevent domestic abuse or recurrence of
domestic abuse, and

g. The Court issues an Order for Protection for a
period of one year, is a fit and reasonable amount of time
given the facts and circumstances of the case.

. . . .
18. Following the trial on the Petition, the Court
finds that WIFE is credible and that WIFE proved the
material allegations of the Petition by a preponderance of
the evidence as to allegations A, B, and C, that HUSBAND
failed to show good cause why the order should not be
continued, and finds a protective order is necessary to
prevent domestic abuse or recurrence of domestic abuse.

19. Based on the foregoing, the Court issues an
Order for Protection for a period of one year and finds
this to be a fit and reasonable amount of time given the
facts and circumstances of the case.

(Emphases added.)
Upon careful review of the record and the brief
submitted, 4 and having given due consideration to the arguments
advanced and the issues raised, we resolve Husband's challenges
as follows.
We conclude that FOFs 7(a)-(g), and COLs 18 and 19
(which are mixed FOFs and COLs), are not clearly erroneous. See
In re Doe, 95 Hawai‘i 183, 196, 20 P.3d 616, 629 (2001) ("[T]he
question on appeal is whether the record contains 'substantial
evidence' supporting the family court's determinations, and
appellate review is thereby limited to assessing whether those
determinations are supported by 'credible evidence of sufficient
quality and probative value.' In this regard, the testimony of
a single witness, if found by the trier of fact to have been

4 No answering brief was filed.

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credible, will suffice." (citations omitted)). Reconciling
conflicting testimony is the province of the trial court, as
factfinder, and beyond the scope of appellate review. Schiller
v. Schiller, 120 Hawai‘i 283, 288, 205 P.3d 548, 553 (App. 2009).
Here, there was substantial evidence to support the
family court's determination under HRS § 586–5.5(a) that the
Protective Order was "necessary to prevent domestic abuse or a
recurrence of abuse[.]" With regard to the October 1, 2022
incident upon which the Protective Order was based, Wife
testified that Husband "was beginning to harass me" and "started
calling me names" including "slut" and "whore"; Husband chased
Wife out the door "[w]ith his video camera videotaping" her;
Wife "was very distraught" and fell down on the driveway; Wife
was "on the ground crying" and "wanted some help or
consoling[,]" but Husband "continued to videotape [her] and
didn't even want to get close"; Husband "just continued to
berate [her]" as she lay "face down on the ground" of their
concrete driveway until police and ambulance arrived. Regarding
whether she had "any injuries from [her] fall[,]" Wife
testified: "I have had bruises and some muscle strains," and
that "[p]hysically I feel threatened, I feel scared in fear
because it's unpredictable."
Notwithstanding the contrary testimony and evidence
presented by Husband, the family court, as the factfinder, found
Wife's testimony credible. "[A]n 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 v. Fisher, 111 Hawaiʻi 41, 46, 137 P.3d 355, 360
(2006).
Regarding Husband's argument that Exhibit D, the
police report for the October 1, 2022 incident, contradicts
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Wife's testimony, the family court received it in evidence and
noted Wife's testimony that "the police officers did not take
[her] statement" for Exhibit D. The family court reconciled the
conflicting testimonies and views of the evidence; and its
determinations, as set forth in the challenged FOFs and COLs,
were supported by substantial evidence. See Doe, 95 Hawai‘i at
196, 20 P.3d at 629.
Although not identified as points of error, Husband's
opening brief questions the family court's impartiality, and
argues the family court erred by not admitting certain video
evidence. Husband did not preserve these arguments below, and
they are waived. See Ass'n of Apartment Owners of Wailea Elua
v. Wailea Resort Co., 100 Hawai‘i 97, 107, 58 P.3d 608, 618
(2002) ("Legal issues not raised in the trial court are
ordinarily deemed waived on appeal." (citations omitted)).
For these reasons, the family court's October 18, 2022
Order for Protection, and the December 8, 2022 Findings of Fact
and Conclusions of Law are affirmed.
DATED: Honolulu, Hawai‘i, June 16, 2025.
On the briefs:
/s/ Katherine G. Leonard
Marrionnette L.S. Andrews,
Acting Chief Judge
for Respondent-Appellant
/s/ Clyde J. Wadsworth
Associate Judge

/s/ Karen T. Nakasone
Associate Judge

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