T.H. v. N.H.

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JAN-2024
08:33 AM
Dkt. 225 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

T.H., Plaintiff-Appellant/Cross-Appellee, v.
N.H., Defendant-Appellee/Cross-Appellant.

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CASE NO. 3DV17100165K)

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

Plaintiff-Appellant/Cross-Appellee T.H. (Mother)

appeals from the Family Court of the Third Circuit's 1 July 14,

2022 Findings of Fact and Conclusions of Law (FOF and COL).

Defendant-Appellee/Cross-Appellant N.H. (Father) cross-appeals

from the family court's August 22, 2022 Amended Findings of Fact

and Conclusions of Law (Amended FOF and COL) and September 13,

2022 Divorce Decree (Divorce Decree).

1 The Honorable Wendy M. DeWeese presided.
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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

parties' points of error as discussed below.

(1) Mother raises three points of error on appeal.

First, Mother argues that the family court failed to

comply with the statutory requirements under Hawai‘i Revised

Statutes (HRS) § 571-46(a)(9) (2018) "when the issue of domestic

abuse became an aggravating factor" in the case.

Under HRS § 571-46(a)(9),

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.

The family court, however, did not determine either parent was a

perpetrator of family violence. Instead, in unchallenged

Amended FOF 31, the family court found "both parties have

accused the other of domestic violence[,]" "the evidence on this

issue is unclear to the Court especially in light of the

parties' questionable credibility[,]" and there appear to have

been physical altercations, but "it [was] impossible to

determine with any sense of certainty whether one parent [was]

the primary aggressor . . . ." See In re Doe, 99 Hawai‘i 522,

538, 57 P.3d 447, 463 (2002) ("Unchallenged findings are binding

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on appeal."). With no determination of domestic violence, HRS

§ 571-46(a)(9) was not applicable.

Next, Mother contends the presumptions of joint

custody under HRS §§ 571-46(a)(1) and 571-46.1 (2018) unduly

prejudice and discriminate against mothers who report domestic

abuse or family violence on the basis of sex and marital status,

violating due process and equal protection.

Contrary to Mother's contention, there was no equal

protection violation. See Palmore v. Sidoti, 466 U.S. 429, 433

(1984) ("The goal of granting custody based on the best

interests of the child is . . . a substantial governmental

interest for" equal protection purposes); Williamson v. Basco,

Civil No. 06-00012 JMS/LEK, 2007 WL 4570496 at *6 (D. Haw.

Dec. 31, 2007) (Order) ("HRS § 571-46, containing the 'best

interests of the child' standard, constitutes a reasonable

regulation of parental rights upon the dissolution of

marriage"). Further, Mother received due process as she

participated in the trial, was represented by counsel,

testified, and had the opportunity to cross-examine Father's

witnesses. See DJ v. CJ, 147 Hawai‘i 2, 17, 464 P.3d 790, 805

(2020) (explaining that "parental rights cannot be denied

without an opportunity for them to be heard at a meaningful time

and in a meaningful manner") (cleaned up)).

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Finally, Mother contends the family court abused its

discretion by "allowing [Father] to remove 100% of her

income[,]" pay her equalization, and then "retain the business,"

while she would be forced to start over. 2

The family court considered the circumstances of the

case as HRS § 580-47 (2018) requires. Moreover, the family

court found that

in view of Wife's continued inability and unwillingness to
pay (Wife has spent money on other things from her business
income in lieu of paying Husband what he is owed), the
Court sees no realistic way to ensure Husband receives what
is owed to him as long as Wife remains in control and
possession of the business.

Mother does not challenge this finding in her points of error.

Because the family court considered the factors required under

the statute and unchallenged findings support its decision, the

family court did not abuse its discretion in dividing the

business. See Gordon v. Gordon, 135 Hawai‘i 340, 348-49, 350

P.3d 1008, 1016-17 (2015) (vesting the family court with "wide

discretion to divide marital partnership property according to

what is 'just and equitable' based on the facts and

circumstances of each case") (citation omitted); Baker v.

Bielski, 124 Hawai‘i 455, 464, 248 P.3d 221, 230 (App. 2011)

2
Mother also maintains her rights under article 1, sections 2, 4-7,
10, and 12 of the Hawai‘i Constitution and the first, fourth, fifth, eighth,
ninth, and fourteenth amendments of the U.S. Constitution were denied.
Mother, however, does not explain how the family court's division of assets
violated her constitutional rights. See Hawai‘i Rules of Appellate Procedure
Rule 28(b)(7) (providing "[p]oints not argued may be deemed waived").

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(determining "family court was not required to divide each asset

and debt equally, and the court properly equalized the property

based on numerous, undisputed FOFs regarding the circumstances

of the marriage pursuant to HRS § 580-47").

(2) Father raises three points of error on cross-appeal.

First, Father challenges "awarding physical custody of

the parties' children to Mother with visitation to Father only

in the form of dinner and therapeutic visits[.]" Father also

challenges Amended FOF 1, contending "the family court's finding

that 'neither party is particularly credible' and that 'neither

parent has demonstrated the ability to place the best interest

of their children above their own battle with the other parent'

. . . is in error, and not supported by the evidence at trial."

We will not disturb credibility determinations, and

the remainder of Amended FOF 1 was supported by substantial

evidence in the record. LC v. MG & Child Support Enf't Agency,

143 Hawai‘i 302, 310-11, 430 P.3d 400, 408-09 (2018) (regarding

credibility); In re Doe, 95 Hawai‘i 183, 190, 20 P.3d 616, 623

(2001) (providing clearly erroneous standard of review for FOF).

However, the family court abused its discretion when it a

restricted Father's visitation to one therapy session per week

or a dinner visit from 5:00 p.m. to 7:00 p.m. on Wednesday if

Father did not see the children during therapy.

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"Reasonable visitation rights shall be awarded to

parents . . . in the discretion of the court, unless it is shown

that rights of visitation are detrimental to the best interests

of the child[.]" 3 HRS § 571-46(a)(7). Although the family court

made many findings regarding custody, in restricting Father's

visitation to one therapy session or a two-hour dinner once a

week, the family court found that "[t]he need to eliminate

conflict for the children outweighs the need to craft a

visitation plan that includes substantial time for the other

parent." This finding, however, does not explain how one

therapy session or a two-hour dinner per week with Father for

the rest of children's childhood (absent a court-ordered

modification) is reasonable. This finding also does not show

how the "rights of visitation" 4 (as opposed to conflict between

Mother and Father) was detrimental to the children's best

interests. Thus, the family court disregarded HRS § 571-

46(a)(7) to Father's substantial detriment.

Next, Father contends "the Family Court err[ed] and

abuse[d] its discretion in awarding joint legal custody to the

3 Many consider the term "visitation" outmoded, preferring "'Parenting
Time' because it speaks to what actually takes place: parenting. Some also
view it as a more respectful term (parents do not 'visit' children, they
'parent' children)." 2015 Hawaiʻi Divorce Manual, § 3 (9th ed. 2015).

4
"Visitation is not only a right and responsibility of a parent but
children have a right to have parenting time with each of their parents,
unless there are tangible risks to the child's well-being in the parent-child
relationship." 2015 Hawaiʻi Divorce Manual, § 3 (9th ed. 2015).

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parties but then ordering 'tie breaking' authority to Father as

to medical decisions and to Mother as to all other decisions,

while limiting Father's ability to make those decisions[.]"

Father claims "[t]his is clearly unworkable."

As discussed above, unchallenged findings support the

family court's award of physical custody to Mother. Moreover,

the family court found Mother testified essential oils were "a

better alternative treatment to vaccines and antibiotics," and

determined "with [Father's] medical background and his desire to

rely on scientific evidence rather than religion or leaving

medical decisions to the children (who are too young to

competently do so), the children's best interests will be better

served by Father making the final decisions regarding their

medical care[.]" Amended FOF 34 and 39. The family court

further found "both parents should be listed on all of the

children's records, including but not limited to school, mental

health, and medical" and "[b]oth parents should have access to

information concerning the children." Amended FOF 38. These

findings support the family court's decision to award joint

legal custody with Father having tie breaking authority

regarding medical care. See also KS v. RS, 151 Hawaiʻi 336, 345,

512 P.3d 702, 714 (App. 2022) (concluding "the Family Court was

not precluded from ordering joint legal custody with tie-

breaking authority to one parent, based on its broad discretion,

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if the Court determined that this was in the Child's best

interests").

Finally, Father contends "the Family Court [abused its

discretion] in failing to award" him attorney's fees and costs.

Father challenges Amended FOF 77, which states in part that

"[Wife] has advanced sums to the Discovery Master and the

[custody evaluator] on Husband's behalf."

The family court, determining it was fair and

reasonable, ordered "[e]ach party shall pay his/her own attorney

fees and costs, except as previously otherwise ordered." HRS

§§ 580-9 and -47(f) (2018). The family court noted the earning

capacity of each party. In unchallenged Amended FOF 76, the

family court determined "[b]oth parties have spent, what the

Court would characterize as excessive amounts on attorneys and

other costs" and both sides drove "litigation in this case,

whether about custody, visitation, or financial matters." Based

on these findings, we cannot say ordering each party to pay his

or her own attorney's fees and costs was an abuse of discretion.

See Hamilton v. Hamilton, 138 Hawai‘i 185, 209-10, 378 P.3d 901,

925-26 (2016) ("[A]n award of attorney's fees is in the sound

discretion of the trial court, limited only by the standard that

it be fair and reasonable.") (citations omitted).

Regarding the fees for the custody evaluator, the

record shows the family court previously ruled the parties were

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to split the cost of the custody evaluator's preparation time,

and Mother was to pay for cross-examination time. Thus, the

record does not support the portion of Amended FOF 77 stating

Mother advanced the fees for the custody evaluator. This error,

however, does not require vacating the family court's decision

as to attorney's fees and costs.

For the above reasons, we vacate in part the family

court's August 22, 2022 Amended Findings of Fact and Conclusions

of Law, and September 13, 2022 Divorce Decree, and remand for

further proceedings consistent with this summary disposition

order, as to Father's visitation. We affirm the family court's

August 22, 2022 Amended Findings of Fact and Conclusions of Law,

and September 13, 2022 Divorce Decree in all other respects.

DATED: Honolulu, Hawai‘i, January 26, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Susan Lim Liang,
for Plaintiff-Appellant/ /s/ Karen T. Nakasone
Cross-Appellee. Associate Judge

Michael S. Zola, /s/ Sonja M.P. McCullen
Defendant-Appellee/ Associate Judge
Cross-Appellant.

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