N.Y. v. D.H.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-DEC-2024
08:06 AM
Dkt. 101 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

N.Y., Petitioner-Appellee,
v.
D.H., Respondent-Appellant,
and
CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAII, Defendant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1PP171006360)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

D.H. (Father) appeals from the October 19, 2023 "Order
Regarding Attorney's Fees and Costs Related to Respondent-
Father's Motion for Relief after Judgment or Order and
Declaration, Filed June 15, 2023" (Fee Order) entered by the
Family Court of the First Circuit.1 We affirm.
N.Y., now known as N.S. (Mother), is the mother of
Child. Mother filed a petition for paternity against Father on
September 25, 2017. A stipulated order that Father is Child's
father was entered on January 10, 2018. After more than five
years of litigation, the family court entered a stipulated "Order
Regarding Custody, Visitation, Child Support and Other Child
Related Orders" (Custody Order) on April 3, 2023.

1
The Honorable Lesley N. Maloian presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Two months later, Father moved for relief from the
Custody Order. A hearing was held on August 31, 2023. Father
and Mother testified. On October 3, 2023, the family court
entered an order on Father's motion. On October 19, 2023, the
family court entered the Fee Order, awarding Mother $2,776.12 in
attorney's fees and costs,2 to be paid by Father within 60 days.
This appeal followed. The family court entered findings of fact
and conclusions of law (COL) on January 25, 2024, under Hawai#i
Family Court Rules Rule 52(a).
Father's opening brief states four points of error and
challenges many of the family court's findings and conclusions.
But he does not argue that any finding of fact was clearly
erroneous. See Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d
355, 360 (2006) (findings of fact are reviewed under the clearly
erroneous standard). His points on the family court's findings
of fact are waived. Hawai#i Rules of Appellate Procedure
Rule 28(b)(7) ("Points not argued may be deemed waived.").
Father states: "While some of the Findings of Fact are
important to this case, the determinative factor for this appeal
is a question of law on the extent of the Court's authority in a
paternity case to assess attorney's fees and court costs in a
post-judgment Motion." Conclusions of law are reviewed de novo.
Fisher, 111 Hawai#i at 46, 137 P.3d at 360.
Hawaii Revised Statutes (HRS) § 584-163 applies to
awards of attorneys fees and costs in paternity actions. Father
argues the statute applies only to proceedings that establish

2
The family court reduced the fee amount. Mother has not appealed
the reduction. Father does not challenge the amount of the award.
3
HRS § 584-16 (2018) provides:
The court may order reasonable fees of counsel, experts, and
the child's guardian ad litem, and other costs of the action
and pre-trial proceedings, including genetic tests, subject
to the provisions of section 584-11(f) [regarding contested
genetic tests], to be paid by the parties in proportions and
at times determined by the court. The court may order the
proportion of any indigent party to be paid by the State, or
such person as the court shall direct.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

paternity, not to motions filed after the order establishing
paternity. "We agree that HRS § 584–16 is limited to paternity
actions. As specified in HRS § 584–15,[4] however, paternity
actions may involve custody issues." Doe v. Doe, 85 Hawai#i 108,
112, 937 P.2d 949, 953 (App. 1997). Father's motion for relief
involved visitation privileges. The family court was authorized
to award Mother the attorneys fees and costs she incurred in
connection with Father's motion for relief.

[T]he family court possesses wide discretion in making its
decisions and those decision[s] will not be set aside unless
there is a manifest abuse of discretion. Thus, we 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.

Fisher, 111 Hawai#i at 46, 137 P.3d at 360.
The family court found:

12. On June 15, 2023, [Father's attorney] filed a
Motion For Relief After Judgment Or Order And Declaration
("Motion For Relief"). Prior to filing the Motion for
Relief, [Father's attorney] made no attempt to communicate
with [Mother's attorney] to determine whether the issues
raised in the Motion for Relief could be resolved outside of
a judiciary court.

. . . .

18. Prior to filing the Motion for Relief, [Father's
attorney] made no attempts to communicate the substance of
FATHER's issues with [Mother's attorney], nor seek to
resolve FATHER's issues with [Mother's attorney] through a
method of alternative dispute resolution, such as
negotiation or mediation.
. . . .

20. In her August 25, 2023 Declaration, MOTHER
articulated her desire to peacefully co-parent with FATHER.
MOTHER asserted her desire to avoid renewed court filings,

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HRS § 584-15 (2018) provides, in relevant part:
(c) The judgment or order may contain any other provision
directed against the appropriate party to the proceeding,
concerning the . . . custody . . . of the child, visitation
privileges with the child, . . . or any other matter in the
best interest of the child.
(Emphasis added.)

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

as constant litigation was financially expensive and added
undoubted stress and anxiety to her family. MOTHER was
amendable to any competent dispute resolutions methods such
as mediation.
21. MOTHER articulated [that], prior to filing the
Motion for Relief, FATHER failed to engage in any good faith
attempts to settle the issues by intelligently communicating
the issues to MOTHER or to her counsel through [Father's
attorney]. Instead, FATHER continued to engage in
conflictual behavior by filing frivolous motions and seeking
litigation for each and every issue.
. . . .
37. [Father's attorney] objected to [Mother's
attorney]'s request for attorney fees and costs but admitted
he made no attempts to resolve FATHER's issues with
[Mother's attorney] prior to filing the Motion for Relief.
[Father's attorney] gave no reason why he failed in his
obligation to make any attempts to contact [Mother's
attorney] prior to filing the Motion for Relief.

On this record, we conclude the family court acted
within its discretion by awarding attorneys fees and costs to
Mother. The October 19, 2023 "Order Regarding Attorney's Fees
and Costs Related to Respondent-Father's Motion for Relief after
Judgment or Order and Declaration, Filed June 15, 2023" is
affirmed. The record does not show that Father obtained a stay
on enforcement of the Fee Order, or whether Father paid the
award. If Father has not yet paid the award, Father shall also
pay interest on the amount of the award, at ten percent a year
under HRS § 478-3 (2008), from December 18, 2023 until the Fee
Order is satisfied.
DATED: Honolulu, Hawai#i, December 5, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Stephen T. Hioki, Presiding Judge
for Respondent-Appellant.
/s/ Karen T. Nakasone
N.Y., now known as N.S., Associate Judge
Self-Represented
Petitioner-Appellee. /s/ Sonja M.P. McCullen
Associate Judge

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