A.S. v. J.S.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-FEB-2024
08:18 AM
Dkt. 90 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

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

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1DV181006111)

SUMMARY DISPOSITION ORDER
(Hiraoka, Presiding Judge, McCullen and Guidry, JJ.)

This appeal arises out of a family court case in which

the underlying divorce and child custody rulings are not

challenged on the merits. Defendant-Appellant J.S. appeals

solely from the Order Re: Defendant's (1) Motion to Sanction

Attorney David Hayakawa for Rules Violations Filed 9/28/21, and

(2) Motion for Relief from Judgment Filed 1/20/22 (Order),
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

entered on July 29, 2022 by the Family Court of the First

Circuit (family court).1

J.S. argues four points of error, which we consider in

turn:2

(1) J.S. contends Judge Paek-Harris should have

recused herself because there arose an appearance of bias due to

A.S.'s counsel (Hayakawa) "'liking' photographs on the Judge's

Facebook and Instagram pages during the litigation and

especially during the divorce trial[.]"3 We review the family

court's ruling for abuse of discretion. DL v. CL, 146 Hawaiʻi

328, 336, 463 P.3d 985, 993 (2020). "Decisions on recusal or

disqualification present perhaps the ultimate test of judicial

discretion and should thus lie undisturbed absent a showing of

abuse of that discretion." State v. Ross, 89 Hawaiʻi 371, 375,

974 P.2d 11, 15 (1998).

Hawaiʻi courts reviewing questions of disqualification

and recusal apply a two-part analysis. First, with respect to

1 The Honorable Elizabeth Paek-Harris (Judge Paek-Harris) presided.

2 J.S. also raises, but does not provide any discernible argument
on the following point of error: "[t]he family court judge erred . . . in
holding that [J.S.] should have discovered her social media sites, when she
misled him in her pretrial disclosure." "Points not argued may be deemed
waived." Hawaiʻi Rules of Appellate Procedure Rule 28(b)(7); see also
Kahoʻohanohano v. Dep't of Hum. Servs., State of Haw., 117 Hawaiʻi 262,
297 n.37, 178 P.3d 538, 573 n.37 (2008). We therefore need not address this
point.

3 Facebook and Instagram are social media platforms on which
account holders may post messages and photos on their accounts to be shared
with others.

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judicial disqualification, "courts determine whether the alleged

bias is covered by [Hawaii Revised Statutes (HRS)] § 601-7,

which only pertains to cases of affinity or consanguinity,

financial interest, prior participation, and actual judicial

bias or prejudice." Kondaur Cap. Corp. v. Matsuyoshi,

150 Hawaiʻi 1, 10-11, 496 P.3d 479, 488-89 (App. 2021) (quoting

Ross, 89 Hawai‘i at 377, 974 P.2d at 17).

Second, with respect to judicial recusal, "if

HRS § 601-7 does not apply, courts may then turn, if

appropriate, to the notions of due process . . . in conducting

the broader inquiry of whether circumstances . . . fairly give

rise to an appearance of impropriety and . . . reasonably cast

suspicion on [the judge's] impartiality." Id. at 11, 496 P.3d

at 489 (cleaned up). "The test for appearance of impropriety is

whether the conduct would create in reasonable minds a

perception that the judge's ability to carry out judicial

responsibilities with integrity, impartiality and competence is

impaired." Id. at 21, 496 P.3d at 499 (quoting Off. of

Disciplinary Counsel v. Au, 107 Hawaiʻi 327, 338, 113 P.3d 203,

214 (2005)).

Judge Paek-Harris disclosed on record, at the start of

the trial, the nature of her relationship with Hayakawa as

follows,

[T]he Court did want to make a disclosure on the
record that it was from roughly about 2009 to 2010, when I
was practicing law, I did share offices with Howard Luke.
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At the time [] Hayakawa was working with Mr. Luke as an
associate. I was not affiliated with the firm. I was
simply sharing an office with them. And I never co-
counselled any cases with [] Hayakawa. My relationship
when I shared offices was primarily with Mr. Luke.

I made this disclosure to Mr. Waki [Fred Waki, J.S.'s
counsel] at the Rule 16 conference last week Thursday.
Asked him to consult with [J.S.] to see whether there would
be any objections. And then on Friday Mr. Waki notified
the Court that his client would likely not make any
objections. And I just want to make sure that [J.S.] has
had an opportunity to talk it over with Mr. Waki and think
about it and then of course today state any objections, if
he has any. I have no personal connection to any of the
parties in this case, no personal knowledge of the facts of
this case other than what I've reviewed in the record and
heard from counsel during the Rule 16 conferences. I have
no financial interest in the result of this case. I'm not
related to any of the attorneys. Aside from the fact that
I shared offices with [] Hayakawa during that one-year
period, I don't have a social relationship with him,
business or other professional relationship with him or
Mr. Waki.

. . . I do not believe that I have any personal bias
or prejudice for or against a party in this case or the
attorneys. And I can be fair and impartial in this case.

Following the above disclosure, J.S., who was represented by

counsel at the time, affirmatively consented to Judge Paek-

Harris's involvement in this matter.

We note the absence of record evidence supporting that

Judge Paek-Harris is herself the owner of the social media

accounts, or author of the social media posts, at issue. The

record supports instead that Hayakawa "liked" social media posts

on publicly accessible social media accounts belonging to

Judge Paek-Harris's husband. J.S. does not challenge the

numerous findings of fact about the absence of any evidence

demonstrating an actual conflict. Unchallenged findings of fact

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are binding on appeal. See State v. Rodrigues, 145 Hawaiʻi 487,

494, 454 P.3d 428, 435 (2019).

"[A] judge is duty-bound not to withdraw where the

circumstances do not fairly give rise to an appearance of

impropriety and do not reasonably cast suspicion on his [or her]

impartiality." Kondaur, 150 Hawaiʻi at 22, 496 P.3d at 500

(quoting Ross, 89 Hawaiʻi at 377, 974 P.2d at 17) (cleaned up)

(emphasis in original). We conclude that Judge Paek-Harris did

not abuse her discretion by not disqualifying or recusing

herself from this case.

(2) J.S. contends that the family court erred by

"failing to disqualify" Hayakawa for "liking" photographs on

Judge Paek-Harris's social media accounts during the litigation.

This argument is factually inaccurate because, as explained

supra, the referenced social media accounts and posts belonged

to Judge Paek-Harris's husband, not to Judge Paek-Harris.

"The disqualification of an attorney is a matter which

rests within the sound discretion of the court." Boyd v. Trent,

287 A.D.2d 475, 476 (N.Y. 2001) (citation omitted); see also

Davis v. Wholesale Motors, Inc., 86 Hawaiʻi 405, 425, 949 P.2d

1026, 1046 (App. 1997) (reviewing denial of motion to disqualify

attorney under the abuse of discretion standard). We conclude,

on this record, that the family court did not abuse its

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discretion in denying J.S.'s request for the disqualification of

Hayakawa.

(3) J.S. contends that the family court erred because

Judge Paek-Harris used her own personal knowledge to rule on his

Motion for Relief From Judgment. J.S.'s contention lacks merit.

"The jurist requested to recuse himself [or herself] is the most

capable to determine those factors . . . which would bear upon

his or her capability to maintain the impartiality that each

matter must receive." TSA Int'l Ltd. v. Shimizu Corp.,

92 Hawaiʻi 243, 252, 990 P.2d 713, 722 (1999) (cleaned up). We

conclude that Judge Paek-Harris did not abuse her discretion by

considering personal facts that were directly relevant, and

applying these facts to the objective disqualification and

recusal standard.

(4) J.S. contends that Judge Paek-Harris "held no

evidentiary hearing on the issue [of disqualification or

recusal] and just denied the allegation without further hearing,

apparently based upon her own personal knowledge." J.S.'s

contention is factually incorrect. On March 17, 2022, the

family court held a hearing on J.S.'s Motion for Relief From

Judgment. The family court heard J.S.'s allegations, and

considered the admissible evidence, in support of J.S.'s motion

prior to issuing its Order.

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For the foregoing reasons, the Family Court of the

First Circuit's Order Re: Defendant's (1) Motion to Sanction

Attorney David Hayakawa for Rules Violations Filed 9/8/21, and

(2) Motion for Relief from Judgment Filed 1/20/22, entered on

July 29, 2022, is affirmed.

DATED: Honolulu, Hawai‘i, February 7, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Earle A. Partington, Presiding Judge
for Defendant-Appellant.
/s/ Sonja M.P. McCullen
David M. Hayakawa, Associate Judge
for Plaintiff-Appellee.
/s/ Kimberly T. Guidry
Associate Judge

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