K.P. v. E.M.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-MAR-2024
08:18 AM
Dkt. 181 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

K.P., Petitioner-Appellant,
v.
E.M., Respondent-Appellee

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NO. 2PA211000062)

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

Petitioner-Appellant K.P. (mother) appeals from the

Family Court of the Second Circuit's1 (family court) "Findings of

Fact, Conclusions of Law, Decision and Order[,]" entered

March 28, 2022 (Order), which denied mother's petition for

1 The Honorable Lance D. Collins presided.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

custody of the two minor children (collectively, the children),2

and "Order Denying Petitioner's Motion for Reconsideration,

Clarification and Further Hearing, filed April 7, 2022"3 (Order

Denying Reconsideration). The family court's Order granted

Respondent-Appellee E.M. (father) sole legal and physical

custody of the children, and permitted father to relocate and

return to the State of Utah with the children.

Mother raises two points of error on appeal. Upon

careful review of the record and briefs, and having given due

consideration to the arguments advanced and the issues raised,

we resolve Mother's contentions as follows:

(1) Mother contends that the family court "erred as a

matter of law, and abused [its] discretion when [it] dissolved

Judge Healy's [sic] [amended] protective order,[4] granted father

2 Mother's Petition for Custody, Visitation, Support Orders After
Voluntary Establishment of Paternity, entered May 6, 2021, requested that the
family court grant mother legal and physical custody of the children, and no
visitation between father and the children until further order of the family
court. Father's Motion for Emergency Custody and Relocation, entered
August 12, 2021, requested that the family court grant father temporary
emergency custody of the children, and permit father to relocate to Utah with
the children.

3 The Order Denying Reconsideration was filed in the family court
on April 25, 2022.

4 The Honorable Judge Adrianne Heely (Judge Heely) issued the
protective order, in October 2021, in the separately docketed Domestic Abuse
case (Domestic Abuse case), FC-DA No. 21-1-0510. The transcript of the
November 2021 evidentiary hearing in the Domestic Abuse case, on mother's
petition requesting the protective order, was filed in this custody case. The
protective order was amended in December 2021 (amended protective order). At
the time the amended protective order was entered, Judge Heely was presiding
over both the Domestic Abuse case and this custody case. Although the
Domestic Abuse case was not formally consolidated with this custody case, the
record reflects the parties' understanding that no further motions were to be
(continued . . .)
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

sole custody and relocation to Utah with the children, and

limited mother to supervised visitation of uncertain time, place

and duration."

We review the family court's rulings under the abuse

of discretion standard. "Generally, the family court possesses

wide discretion in making its decisions and those decisions will

not be set aside unless there is a manifest abuse of

discretion." In re Doe, 95 Hawaiʻi 183, 189, 20 P.3d 616, 622

(2001) (cleaned up). "[W]e 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." Id. (cleaned up).

We conclude that the family court did not abuse its

discretion by dissolving the amended protective order. Although

Judge Heely issued the amended protective order in the separate

Domestic Abuse case, this custody matter is a closely-related

proceeding that involves the same parties. In addressing the

custody matter, the family court considered the children's

4(continued . . .)
filed in the Domestic Abuse case, and that "everything would be heard" in
this custody case.

It appears that, subsequent to Judge Heely's issuance of the
amended protective order, the Domestic Abuse case and this paternity case
were both reassigned, such that Judge Heely was no longer the presiding judge
in these cases.

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

safety and made findings and conclusions, based on the evidence

presented at the custody trial,5 that there was insufficient

evidence of sexual or other abuse of the children by father.6 On

this basis, the family court did not abuse its discretion by

dissolving the amended protective order in this case docket, as

well as in the Domestic Abuse case docket.

We further conclude that the family court did not err

in awarding father sole physical and legal custody, and granting

father permission to relocate and return to the State of Utah

with the children. The family court made sufficient findings

and conclusions, based on the record evidence, that this would

be in the children's best interest.7 AC v. AC, 134 Hawaiʻi 221,

5 The custody trial was held on January 28 and 31, 2022, and
February 15, 2022.

6 "It is well-settled that an 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." In re Doe, 95 Hawaiʻi
at 190, 20 P.3d at 623.

7 The family court found, inter alia, that mother filed multiple
petitions for a TRO or protective order because "Mother has coached the minor
children to make statements regarding inappropriate touching by Father[.]"

The family court also made the following conclusions regarding
the children's best interest,

21. Father is a fit and proper parent who can provide a
stable, safe and wholesome home for the minor children in
Utah.

22. Mother is not present [sic] a fit or proper parent who
can provide a stable, safe and wholesome home for the minor
children.

(continued . . .)
4
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

230, 339 P.3d 719, 728 (2014) ("[I]n child custody cases, a

guiding principle for family courts in awarding custody under

Hawaiʻi law is the best interest of the child.") (cleaned up);

DJ v. CJ, 147 Hawaiʻi 2, 23, 464 P.3d 790, 811 (2020) ("[T]he

governing consideration is not a parent's interests, but whether

allowing relocation is in the best interests of the child.")

(cleaned up); see also HRS § 571-46 (2018).

The family court's findings of fact (FOF) are not

clearly erroneous. Amfac, Inc. v. Waikiki Beachcomber Inv. Co.,

74 Haw. 85, 116, 839 P.2d 10, 28 (1992) ("Where there is

substantial evidence, which is credible evidence of sufficient

quantity and probative value to justify a reasonable person in

reaching conclusions that support the FOFs, the FOFs cannot be

set aside.") (citation omitted). Moreover, the family court's

mixed findings of fact are not clearly erroneous, and its

conclusions of law are not wrong. Id. at 119, 839 P.2d at 29

("A COL that is supported by the trial court's FOFs and that

7(continued . . .)

23. Father's relocation plan is realistic, credible and
sustainable.

24. Mother's conduct demonstrates she is unable to act in
the best interest of the minor children and that
unsupervised visitation of the children would presently be
detrimental to their best interest.

25. Mother's actions demonstrate that either she is unable
to separate her needs from the minor children or she is
unable to protect the children from her parents' needs and
wants.

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

reflects an application of the correct rule of law will not be

overturned. However, a COL that presents mixed questions of

fact and law is reviewed under the clearly erroneous

standard[.]") (citation omitted).

On this record, we conclude that the family court did

not abuse its discretion in awarding sole legal and physical

custody to father, and allowing the children to relocate with

father out-of-state.

(2) Mother contends that the family court "denied

mother due process of law and her [] fundamental liberty

interest in the care, custody and control of her children, by

limiting this case to a two-day trial because of court

congestion, refusing to admit evidence regarding the credibility

of the children's disclosures and Mother's good faith, and

vacating a prior judge's protective order. . . ."8 We conclude

that mother's contentions lack merit for the reasons set forth

in section (1), supra.

8 We decline to address mother's contentions regarding the family
court's limitations on the duration of trial, and the admission of evidence,
because those contentions were not properly raised pursuant to Hawaiʻi Rules
of Appellate Procedure (HRAP) Rule 28(b)(4)(ii) and (iii). HRAP 28(b)(4)
("Each point [of error] shall state . . . (ii) where in the record the
alleged error occurred; and (iii) where in the record the alleged error was
objected to or the manner in which the alleged error was brought to the
attention of the court or agency.").
6
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

For the reasons set forth above, the family court's

Order and Order Denying Reconsideration are affirmed.

DATED: Honolulu, Hawai‘i, March 28, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Peter Van Name Esser,
for Petitioner-Appellant. /s/ Karen T. Nakasone
Associate Judge
Benard M. Herren,
for Respondent-Appellee. /s/ Kimberly T. Guidry
Associate Judge

7