J.L. v. M.V.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-AUG-2024
08:11 AM
Dkt. 64 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

J.L., Petitioner-Appellee, v. M.V., Respondent-Appellant, and
CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI#I,
Respondent-Appellee

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1PP131006287)

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

M.V. (Father) appeals from the (1) September 7, 2023
"Order Granting Petitioner's Motion to Strike Custody Evaluator's
[R]eport and Exclude Custody Evaluator from Testifying at Trial"
(Order Striking Report) and (2) September 15, 2023 "Decision and
Order Re: Father's Motion for Relief after Judgment or Order
Filed July 19, 2022[,]" both entered by the Family Court of the
First Circuit.1 We affirm in part and reverse in part.
Father and J.L. (Mother) are the parents of Child.
Mother started this case on August 1, 2013, by filing a Petition
for Paternity or for Custody, Visitation and Support Orders After
Voluntary Establishment of Paternity. By stipulated order of
October 3, 2013, the family court awarded joint legal custody,
physical custody to Mother, visitation to Father, and payment of
temporary child support by Father to Mother. On April 4, 2014,

1
The Honorable Jessi L.K. Hall presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

after a trial, the court entered a decision and order for
Father's payment of child support and a detailed visitation
schedule.
Mother and Father both filed motions for relief in
2018. By order of May 31, 2019, the family court maintained
joint legal custody but awarded joint physical custody subject to
a time-sharing schedule.
On August 15, 2019, Father moved for relief over which
school Child should attend. On November 18, 2019, the family
court ordered that Child remain enrolled in Child's new school.
Father appealed. We affirmed. JL v. MV, No. CAAP-XX-XXXXXXX,
2020 WL 5412828 (Haw. App. Sept. 9, 2020) (mem. op.).
On July 28, 2020 (while Father's appeal was pending),
Father moved for relief over Mother's moving and changing Child's
school without informing him. The family court resolved Father's
motion by order of August 7, 2020.
During August 2020, Mother and Father both moved for
relief, seeking sole legal and physical custody. By order of
June 21, 2021, the family court continued joint legal and
physical custody, with no change to the visitation schedule.
On July 19, 2022, Father filed the motion that gave
rise to this appeal. He sought to modify physical custody and
visitation, and reduce child support. After a hearing, the
family court ordered "a custody evaluation to be performed at
Respondent/Father's sole cost."2 Father asked for Kevin Harding
as the evaluator. By order of December 16, 2022, the family
court appointed Harding "to conduct an investigation and
evaluation" on "visitation[,]" with the cost to be paid by Father
"subject to allocation at the time of trial." The evaluation
report was due on February 6, 2023.
Harding did not file a report by the due date. Over
Mother's objection, the family court continued the due date to
April 27, 2023. Harding's report was filed on April 27, 2023.

2
The Honorable Bryant Zane presided.

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The report recommended joint physical custody, sole legal custody
to Father, and equal timesharing.
On July 31, 2023, Mother moved to strike Harding's
report and prevent him from testifying at trial. The Order
Striking Report was entered on September 7, 2023. The Decision
and Order was entered on September 15, 2023, after the trial.
The family court ruled "there has not been a proper request to
modify legal custody"; did not find "such a change in
circumstances that it would be in the minor child's best interest
to change physical custody"; and found "Father's comments [during
the trial] to be his intention of becoming a vexatious litigant."
The court "ordered that if Father files another motion for equal
timesharing and does not prevail he may be ordered to pay all of
Mother's attorney's fees and costs incurred from the date that
Father files his motion." Father moved for reconsideration.
Reconsideration was denied in part and granted in part. The
family court entered findings of fact (FOF) and conclusions of
law (COL) on November 20, 2023, under Hawai#i Family Court Rules
Rule 52(a).
Father challenges FOF nos. 26 and 28 and COL nos. 9,
10, 13, 14, 17, and 19. He contends the family court erred by:
(1) striking Harding's report and preventing him from testifying;
(2) not sua sponte appointing another custody evaluator;
(3) finding him an intended vexatious litigant and threatening to
hold him liable for Mother's future attorneys fees; and
(4) allocating 100% of Harding's fees to him.
We review findings of fact under the clearly erroneous
standard, and conclusions of law under the right/wrong standard.
Est. of Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152
P.3d 504, 523 (2007). A ruling involving mixed questions of fact
and law is reviewed under the clearly erroneous standard because
it implicates the facts and circumstances of the specific case.
Id. A ruling supported by the trial court's findings of fact and
applying the correct rule of law will not be overturned. Id.

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(1) The family court has broad discretion to limit
expert testimony. Doe v. Doe, 120 Hawai#i 149, 176, 202 P.3d
610, 637 (App. 2009). The family court found, and Father does
not contest,3 that:

11. [Harding's] report indicated that much of the
work on the investigation and report was actually conducted
by Mr. Harding's "colleague," Clair Doctor, LCSW.[4]
Ms. Doctor is also on the First Circuit's registry of
custody evaluators.

. . . .
13. [Mother's] motion [to strike Harding's report]
was heard August 22, 2023 before the Hon. Jessi L.K. Hall.
Mr. Harding did not appear at this hearing or submit any
declaration responsive to the motion. The court expressed
concern about whether Mr. Harding disclosed to the parties
in advance that he would be using someone else to help write
the report. From the testimony of [Mother], which was
confirmed by [Father], it appears that he did not.

(Citation to the record omitted.)
The family court concluded:

9. [Harding] violated his appointment order by
(1) using another custody evaluator to conduct his
evaluation and/or (2) failing to follow the procedure set
forth in paragraph 12 of his appointment order pertaining to
the assistance of specialists or experts and/or
(3) rendering recommendations on legal custody, which was
not an issue raised in respondent's motion nor included in
the appointment order.
10. It was proper to resolve the issues of striking
[Harding]'s report and precluding the testimony of him or
his "colleague" prior to trial.

. . . .
13. The Family Court judge does not abuse his/her
wide discretion to admit reports or testimony by a Custody
Evaluator when the evaluator violates the terms of his
appointment order.
14. There is no due process right to a Custody
Evaluator. This conclusion is made without prejudice to
[Father]'s ability to raise on appeal the issue of whether
the appointment of a custody evaluator over the objection of
a party violates that party's due process rights.

3
Unchallenged findings of fact are binding on appeal. Okada
Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450, 459, 40 P.3d 73, 82
(2002).
4
LCSW stands for Licensed Clinical Social Worker.

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COL no. 9 is a mixed finding and conclusion. It is
supported by substantial evidence in the record and correctly
applies the December 16, 2022 order appointing custody evaluator.
COL nos. 10 and 13 are not wrong.
Father cites Hawaii Revised Statutes (HRS) §§ 571-46
and -46.4 to support his argument that his due process right to a
custody evaluator was violated when the family court struck
Harding's report and barred him from testifying. Both statutes
use the word "may" to describe the family court's authority to
appoint a child custody evaluator. Father did not have an
absolute right to have a child custody evaluator evaluate child
custody. Under the circumstances, the family court acted within
its discretion by striking Harding's report and barring him (and
Clair Doctor) from testifying at trial.
(2) Father did not ask the family court to appoint
another custody evaluator after it struck Harding's report and
barred him from testifying. He argues that the family court's
failure to sua sponte appoint a replacement for Harding was plain
error. We decline to recognize plain error because Father did
not have a due process right to have a child custody evaluator
involved in the case below. See Okada Trucking, 97 Hawai#i at
458, 40 P.3d at 81 (explaining plain error doctrine is exercised
sparingly and in civil cases only when justice so requires).
(3) The family court found:

26. [Father] testified to his intent to continue to
file motions, to seek custody evaluators being appointed,
and attempt to proceed to trial until he obtained equal
timesharing. [Father]'s comments reflect his intention of
possibly becoming a vexatious litigant. This was [Father]'s
third attempt in four years to obtain equal timesharing.
All of his requests have been denied.

FOF no. 26 is a mixed finding and conclusion. Most of
the findings are clearly erroneous. Father testified, "I'm going
to keep asking for equal time-sharing until I get equal time-
sharing 'cause I feel that that's what's in [Child]'s best
interest." While Father filed several motions for relief before

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the one at issue in this appeal, only one sought equal time-
sharing. His November 2018 motion was filed when Mother had sole
physical custody; he was awarded joint physical custody and
increased visitation rights. In August 2019 he moved for relief
over which school Child should attend; he did not ask for equal
timesharing. In July 2020 he moved for relief over Mother's
moving and changing Child's school without telling him; he did
not ask for equal timesharing. In August 2020, Mother and Father
both moved for sole physical custody. The family court continued
joint physical custody with no change to the visitation schedule.
Father's July 19, 2022 motion was only his second attempt at
equal timesharing, and the family court did not find either to
have been frivolous or in bad faith. See Trs. of Est. of Bishop
v. Au, 146 Hawai#i 272, 283, 463 P.3d 929, 940 (2020) (holding
that a court must make findings that set forth with reasonable
specificity the perceived misconduct, including any finding of
bad faith).
The family court's mixed finding and conclusion that it
was Father's "intention of possibly becoming a vexatious
litigant" is wrong. HRS § 634J-1 (2016) has these definitions:

"Vexatious litigant" means a plaintiff who does any of the
following:

(1) In the immediately preceding seven-year period has
commenced, prosecuted, or maintained in propria
persona at least five civil actions other than in a
small claims court that have been:

(A) Finally determined adversely to the plaintiff;
or
(B) Unjustifiably permitted to remain pending at
least two years without having been brought to
trial or hearing;
(2) After litigation has been finally resolved against the
plaintiff, relitigates or attempts to relitigate in
propria persona and in bad faith, either:
(A) The validity of the determination against the
same defendant or defendants as to whom the
litigation was finally determined; or
(B) The cause of action, claim, controversy, or any
of the issues of fact or law, determined or
concluded by the final determination against the

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same defendant or defendants as to whom the
litigation was finally determined;
(3) In any litigation while acting in propria
persona, files, in bad faith, unmeritorious
motions, pleadings, or other papers, conducts
unnecessary discovery, or engages in other
tactics that are frivolous or solely intended to
cause unnecessary delay; or

(4) Has previously been declared to be a vexatious
litigant by any state or federal court of record
in any action or proceeding based upon the same
or substantially similar facts, transaction, or
occurrence.

The record reflects that Father is far from becoming a vexatious
litigant. Father testified he felt equal timesharing was in
Child's best interest. "[T]he determination of the terms of
custody and visitation is dictated by the 'best interests of the
child[.]'" Brutsch v. Brutsch, 139 Hawai#i 373, 383, 390 P.3d
1260, 1270 (2017). A child's best interests can, and often do,
change. That is why "custody orders are subject to modification
at any time during the minority of the child[.]" Doe v. Doe, 98
Hawai#i 144, 158 n.15, 44 P.3d 1085, 1099 n.15 (2002); see HRS
§ 571-50 (2018). The record does not support the family court's
mixed finding and conclusion that Father intended to "possibly
become a vexatious litigant."
The family court also concluded:

17. Although [Father] is not a Plaintiff, his
actions and testimony is coming within the intent of the
definition of vexatious litigant.

. . . .
19. It was not an abuse of discretion for the Court
to issue an order that [Father] may be required to pay for
[Mother]'s attorney fees if he files another motion seeking
equal timesharing and is not successful.

COL no. 17 is wrong for the reasons explained above.
As to COL no. 19, the family court acted outside its discretion
by ordering that Father may have to pay Mother's attorney fees if
he filed another unsuccessful motion for equal timesharing.
Creating a financial disincentive for a parent to contest

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visitation rights when they have a legitimate concern for the
best interests of the child undermines the foundational principle
of such determinations and is contrary to the societal interest
that decisions in the best interests of the child be made without
financial influence. See Brutsch, 139 Hawai#i at 383, 390 P.3d
at 1270.5
(4) The family court's order appointing Harding
required that Father pay 100% of an $8,000 advance, with "[a]ll
costs [being] subject to allocation at the time of trial." The
Decision and Order made no reallocation. Father's motion for
reconsideration argued that reallocation should have been
addressed. The family court agreed that reallocation was not
addressed and granted reconsideration on that issue, but found
"no basis to modify the allocation set out in the Order
Appointing Custody Evaluator." The family court found:

28. On October 17, 2023, the Court denied [Father]'s
Motion for Reconsideration, except that the Court found that
an additional issue --- reallocation of [Harding's] fees ---
had been overlooked, and granted that portion of the motion,
allocating all fees to [Father].

(Citation to the record omitted.)
FOF no. 28 accurately reflected the record, and was not
clearly erroneous. We cannot determine whether the family
court's finding that there was "no basis to modify the allocation
set out in the Order Appointing Custody Evaluator" was clearly
erroneous, because the order appointing Harding does not have
reasons for the allocation, the record on appeal does not include
a transcript of the October 6, 2022 hearing, and the minutes for
the hearing do not explain the court's reasoning. We note that
the family court told Father, in response to his complaint that
he had paid $8,000 to Harding for the stricken report, "that is
something that should be taken up with Mr. Harding. . . . His

5
We note, however, that HRS § 580-47(a), (f) (2018) allows a family
court to make orders that are "just and equitable[,]" including orders
awarding attorneys fees and costs. See Brutsch, 139 Hawai#i at 385, 391 P.3d
at 1272.

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procedure is absolutely inappropriate if he's not providing
notice that he is not the one doing the evaluations, completely
and solely." We express no opinion about Father's right, if any,
to obtain reimbursement in whole or in part from Harding.
For these reasons, (1) the September 7, 2023 "Order
Granting Petitioner's Motion to Strike Custody Evaluator's
[R]eport and Exclude Custody Evaluator from Testifying at Trial"
is affirmed; (2) the September 15, 2023 "Decision and Order
Re: Father's Motion for Relief after Judgment or Order Filed
July 19, 2022[,]" is affirmed in part except that the first
paragraph of item "4. Future Motions" on page 116 is reversed;
and (3) FOF no. 26 and COL nos. 17 and 19 are stricken from the
November 20, 2023 "Findings of Fact and Conclusions of Law."
DATED: Honolulu, Hawai#i, August 20, 2024.

On the briefs:
/s/ Katherine G. Leonard
Michael A. Glenn, Acting Chief Judge
for Respondent-Appellant.
/s/ Keith K. Hiraoka
Thomas D. Farrell, Associate Judge
for Petitioner-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge

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The Decision and Order contains two paragraphs numbered "4."

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