SA v. AE

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-APR-2023
08:17 AM
Dkt. 84 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I
SA, Plaintiff-Appellee, v.
AE, Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-M NO. 18-1-0001)

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

Defendant-Appellant AE (Father), self-represented,

appeals from the January 24, 2019 Order Granting Plaintiff's

Motion to Establish Child Custody, Visitation, Child Support and

Property Division (Custody Order), entered in the Family Court of

the First Circuit (Family Court).1

Father raises four points of error on appeal,

contending that the Family Court erred by: (1) finding Father
was in default; (2) failing to enter written findings of fact

(FOFs) and conclusions of law (COLs); (3) awarding Plaintiff-

Appellee SA (Mother) sole legal and physical custody of their

child (Child); and (4) imposing restrictions upon Father.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

1/
The Honorable Kevin T. Morikone presided.
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the arguments advanced and the issues raised by the parties, we

resolve Father's points of error as follows:

(1) The Family Court did not err by finding Father was

in default for failing to appear. "There is no question that

parents in Hawai#i have a substantive liberty interest in the

care, custody, and control of their children protected by the due

process clause of article 1, section 5 of the Hawai#i

Constitution" and that "[d]ue process also requires that parents

be afforded notice and an opportunity to be heard at a meaningful
time and in a meaningful manner before their significant parental

rights are denied." Stump v. Stump, CAAP-XX-XXXXXXX, 2014 WL

1744081, *6 (Haw. App. Apr. 30, 2014) (mem. op.) (citations and

internal quotation marks omitted). Nonetheless, "[c]ourts have

inherent power to control the litigation process, to curb abuses,

and to promote a fair process, which includes the imposition of

the sanction of dismissal in severe circumstances." Tamman v.

Tamman, CAAP-XX-XXXXXXX, 2015 WL 9594740, *4 (Haw. App. Dec. 31,

2015) (mem. op.) (citation omitted). "The sanction of default is

a harsh one and is not favored." Id. at *5 (citation omitted).

"However, a trial court has discretion in imposing sanctions,

including default, for violations of its orders, and we review

the court's imposition of sanctions for abuse of discretion."

Id. "In determining whether the sanction of dismissal

constituted an abuse of discretion, we look to the entire

procedural history of the case." Id. (citations omitted).

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Rule 55(b) of the Hawai#i Family Court Rules (HFCR)

states:
(b) Judgment. In a contested or uncontested
action, where it appears from the record and by
testimony (or by affidavit or declaration in an
uncontested matrimonial action) that the adverse party
has been duly served with the complaint or dispositive
motion, and the adverse party has failed to appear or
otherwise defend as provided by these Rules, the court
may grant an entry of default and proceed with a proof
hearing, when a hearing is required, and enter a
default judgment. No judgment by default shall be
entered against a minor or incompetent person unless
represented in the action by a guardian, or other such
representative who has appeared therein, and upon whom
service may be made under Rule 17(c) of these rules.

Contrary to Father's assertion that he "did not fail to

show," Father failed to appear at the January 2, 2019 hearing for

disposition of Plaintiff's Motion to Establish Child Custody,

Visitation, Child Support and Property Division (Motion to

Establish Child Custody) and a Motion to Transfer Custody

Proceedings to Courts in the Virgin Islands (Motion to Transfer),

which were dispositive motions in the case.

On January 2, 2019, less than half an hour prior to the

scheduled hearing on the motions at 8:30 a.m., Father faxed a

"Notice of Inability to Appear" to the Family Court. Father
stated he would not be able to appear in person at the hearing

because he lived in St. Croix, Virgin Islands, his attorney was

not able to be admitted to practice in Hawai#i in time for the

hearing, it was too expensive, and "[i]t was practically

impossible for me to arrange travel to Hawaii to attend the

hearing set for January 2, 2019. All flights were booked."

Father does not dispute that he did not call the Family

Court to appear by telephone. Father instead states the Family

Court did not contact him, and he had provided his contact

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information and was available by telephone. Father's Notice of

Inability to Appear did not request a continuance, request to

appear by telephone, state he was available by telephone, provide

his telephone number, or request that the Family Court call him.

The Family Court did not abuse its discretion by

defaulting Father, in light of all of the circumstances of this

case. Nearly nine months earlier, on March 21, 2018, at the

initial hearing on the Motion to Establish Child Custody, Father

and his attorney from the Virgin Islands appeared by telephone
without the Family Court's prior approval; nevertheless, Father

was allowed to appear by telephone only for the next hearing,

after the matter was continued, and Father was instructed to make

an appropriate and proper request if he further desired to appear

by telephone. The Family Court also prohibited Father's Virgin

Islands counsel, who was not licensed to practice law in Hawai#i,

from representing Father in these proceedings.

On March 23, 2018, the Family Court entered a written

order on Father's request to appear telephonically or by video

conference. The order noted that Father's request with respect

to all proceedings was not approved, but that Father's appearance

by telephone for the March 21, 2018 hearing was approved.

On June 27, 2018, Father failed to appear for a hearing

on the still-pending motions. Instead, Father sent the Family

Court an ex-parte communication by fax to request a continuance.

Over Mother's objections, a further continuance was ordered. The

Family Court entered a June 27, 2018 Order Re: (1) [Motion to

Establish Child Custody], (2) [Motion to Transfer], and (3)

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Motion to Continue Hearing set for 6/27/18, and stated "Defendant

shall physically appear in-person at the Kapolei Courthouse in

Hawaii at the continued hearing on October 3, 2018 at 8:30 am

(4675 Kapolei Parkway, Kapolei, Hawaii). Defendant's failure to

appear in person physically may result in the court entering

default judgment against Defendant & awarding Plaintiff with her

requested relief including legal fees & costs."

On October 3, 2018, the Family Court entered an Order

Re: (1) [Motion to Establish Child Custody] and (2) [Motion to
Transfer Custody], which noted that Father appeared by telephone

over Mother's objection. The Family Court ordered Father to

serve documents sent to the court on Mother's attorney, and the

hearing was continued to January 2, 2019. Father's new attorney

also appeared by phone,2 but was only allowed to listen to the

proceeding, again over the objection by Mother.

On January 2, 2019, as noted above, Father did not

appear in person, ask for a continuance, or appear by telephone,

even without prior authorization, which he had done previously.

Father was aware of his counsel's inability to appear before the

Family Court but failed to obtain an attorney who was licensed to

do so. Father must have also been aware that he would not be

appearing in person on January 2, 2019, well in advance of a half

hour prior to the hearing since he was not traveling from the

Virgin Islands to Hawai#i. Father nevertheless chose to only

inform the Family Court immediately prior to the hearing. Based

2/
Although no transcript was provided to this court, it appears that
the new attorney was not licensed to practice law in Hawai #i.

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on the entire procedural history of the case, we conclude that

the Family Court did not abuse its discretion by defaulting

Father for failing to appear, either in person or by telephone on

January 2, 2019.

(2) The Family Court did not fail to enter written

FOFs and COLs. On June 19, 2019, the Family Court entered its

FOFs and COLs. Although Father filed his Opening Brief prior to

the entry of the FOFs and COLs, Father again contended in his

Reply Brief, filed on August 13, 2019, that the Family Court made
no findings, despite being informed in Mother's Answering Brief

that the FOFs and COLs were in fact entered. Father did not, at

any point, request leave to amend or supplement his Opening Brief

to challenge any specific FOF or COL and did not point to any FOF

or COL in his Reply Brief. Father's second point of error is

without merit.

(3) Father contends that the Family Court failed to

make any findings to support awarding sole legal and physical

custody to Mother and submits that there was no evidence he was

an unfit parent to justify not awarding joint custody.
Where an appellant alleges that the trial court
failed to make adequate findings of fact, the
appellate court will examine all the findings, as
made, to determine whether they are (1) supported by
the evidence; and (2) sufficiently comprehensive and
pertinent to the issues in the case to form a basis
for the conclusions of law. If those findings include
sufficient subsidiary facts to disclose to the
reviewing court the steps by which the lower court
reached its ultimate conclusion on each factual issue,
then the findings are adequate.

Rezentes v. Rezentes, 88 Hawai#i 200, 203, 965 P.2d 133, 136

(App. 1998) (quoting Nani Koolau Co. v. K & M Constr., 5 Haw.

App. 137, 140, 681 P.2d 580, 584 (1984)). "The trial judge is

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required to only make brief, definite, pertinent findings and

conclusions upon the contested matters; there is no necessity for

over-elaboration of detail or particularization of facts." Id.

(citing Doe IV v. Roe IV, 5 Haw. App. 558, 565, 705 P.2d 535, 542

(1985)).

Hawaii Revised Statutes (HRS) § 571-46(a)(1) (2018)

states:
§ 571-46 Criteria and procedure in awarding
custody and visitation; best interest of the child.
(a) In actions for divorce, separation, annulment,
separate maintenance, or any other proceeding where
there is at issue a dispute as to the custody of a
minor child, the court, during the pendency of the
action, at the final hearing, or any time during the
minority of the child, may make an order for the
custody of the minor child as may seem necessary or
proper. In awarding the custody, the court shall be
guided by the following standards, considerations, and
procedures:
(1) Custody should be awarded to either parent
or to both parents according to the best
interests of the child, and the court also
may consider frequent, continuing, and
meaningful contact of each parent with the
child unless the court finds that a parent
is unable to act in the best interest of
the child[.]

The ultimate finding as to what is in the best interest

of a child with respect to custody is subject to the clearly

erroneous standard of review. Fisher v. Fisher, 111 Hawai#i 41,
49, 137 P.3d 355, 363 (2006) (citation omitted).

In addition, "[a] judgment by default shall not be

different in kind from or exceed in amount that which was prayed

for in the demand for judgment." HFCR Rule 54(c).

Here, the Family Court concluded that the Custody Order

"was entered in the child's best interest based upon [Mother's]

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declarations filed with the court." See COL 14.3 Mother

requested she be awarded sole legal and physical custody and

submitted a declaration detailing the family history involving

Father. The Family Court's award of sole legal and physical

custody to Mother was based in part upon Father's default and did

not exceed the relief requested by Mother. COL 14 sufficiently

stated the custody award was based on Mother's declarations and

was in the best interest of the child.

The Family Court's award of sole legal and physical
custody to Mother is supported by the record. Mother stated in

her declaration that she was the victim of domestic violence by

Father; specifically, he would slap her and Child when upset, he

cursed at her, called her names, made threats to her, threatened

to take Child away so she would never see Child again, would

withhold money to control her and would not allow her to leave

the family residence to buy food or take Child to a doctor.

Mother moved to Hawai#i with Child where mother was raised and

had extended family. Child spent time with aunts, uncles, and

cousins and lived with Mother and Maternal Grandparents, and

Child attended preschool and participated in extracurricular

activities such as gymnastics and soccer.

3/
The labeling of a finding of fact as a conclusion of law and vice
versa is freely reviewable by the appellate courts. Kilauea Neighborhood
Ass'n v. Land Use Comm., 7 Haw. App. 227, 229, 751 P.2d 1031, 1034 (1988)
(accuracy of label affixed by an agency is a finding of fact or conclusion of
law is freely reviewable by reviewing courts) (citing Molokoa Village Dev. Co.
v. Kauai Elec. Co., 60 Haw. 582, 593 P.2d 375 (1979)). Thus, COL 14 may be
reviewed as an FOF.

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Based upon the relevant factors in HRS § 571-46(b)4 and

4/
HRS § 571-46(b) states:

(b) In determining what constitutes the best interest
of the child under this section, the court shall consider,
but not be limited to, the following:
(1) Any history of sexual or physical abuse of a
child by a parent;
(2) Any history of neglect or emotional abuse of a
child by a parent;
(3) The overall quality of the parent-child
relationship;
(4) The history of caregiving or parenting by each
parent prior and subsequent to a marital or
other type of separation;
(5) Each parent's cooperation in developing and
implementing a plan to meet the child's ongoing
needs, interests, and schedule; provided that
this factor shall not be considered in any case
where the court has determined that family
violence has been committed by a parent;
(6) The physical health needs of the child;
(7) The emotional needs of the child;
(8) The safety needs of the child;
(9) The educational needs of the child;
(10) The child's need for relationships with
siblings;
(11) Each parent's actions demonstrating that they
allow the child to maintain family connections
through family events and activities; provided
that this factor shall not be considered in any
case where the court has determined that family
violence has been committed by a parent;
(12) Each parent's actions demonstrating that they
separate the child's needs from the parent's
needs;
(13) Any evidence of past or current drug or alcohol
abuse by a parent;
(14) The mental health of each parent;
(15) The areas and levels of conflict present within
the family; and
(16) A parent's prior wilful misuse of the protection
from abuse process under chapter 586 to gain a
tactical advantage in any proceeding involving
the custody determination of a minor. Such
wilful misuse may be considered only if it is
established by clear and convincing evidence,
and if it is further found by clear and
convincing evidence that in the particular
family circumstance the wilful misuse tends to
show that, in the future, the parent who engaged
in the wilful misuse will not be able to
cooperate successfully with the other parent in
their shared responsibilities for the child.
The court shall articulate findings of fact
whenever relying upon this factor as part of its
determination of the best interests of the
child. For the purposes of this section, when
taken alone, the voluntary dismissal of a
petition for protection from abuse shall not be
treated as prima facie evidence that a wilful
(continued...)

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Mother's statements in her declaration, the Family Court's

finding that it was in the Child's best interest that sole legal

and physical custody be awarded to Mother was not clearly

erroneous.

Father quotes In re Guardianship of Doe, 93 Hawai#i

374, 381-84, 4 P.3d 508, 515-18 (App. 2000), as stating "in the

absence of a valid court order to the contrary, the parents are

equally entitled to the child's custody . . . unless it clearly

appears they are unfit," to support his argument that lack of a
finding he was an unfit parent requires an award of joint

custody. In re Guardianship of Doe is inapplicable because this

case does not involve an award of custody to a non-parent. Id.

at 381, 4 P.3d at 515. "Hawai#i courts have consistently adhered

to the best interests of the child standard as paramount when

considering the issue of custody." Fisher, 111 Hawai#i at 50,

137 P.3d at 364. Sole or joint custody is based on the child's

best interest and a lack of finding of parental unfitness does

not entitle a parent to joint custody.

(4) Father contends there are no justifications for

all of the restrictions, conditions, and prohibitions imposed on

him by the January 24, 2019 order. Citing AC v. AC, 134 Hawai#i

221, 339 P.3d 719 (2014), Father again claims that the Family

Court should not have awarded Mother sole legal and physical

custody because parents should be provided a full and fair

opportunity to present their case in custody decisions because it

4/
(...continued)
misuse of the protection from abuse process has
occurred.

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is in the best interest of the child to maintain meaningful

contact with both parents. Father also contends that "the Court

orders me to pay for support, healthcare, and education while at

the same time restricting me from interacting with my [child]."

In AC, the Supreme Court did not opine that default

could not be imposed for failure to appear; rather, the court

held only that parties must be afforded a full and fair

opportunity to present their case. Id. at 234-35, 339 P.3d at

732-33. AC is not dispositive as to whether a parent may be
defaulted for failing to appear.

Ordinarily, when establishing the amount of child

support required to be paid by a parent, the Family Court is

required to follow the guidelines of HRS § 576D-7 (2018).5 HRS

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HRS § 576D-7(a) states:

§ 576D-7 Guidelines in establishing amount of child
support. (a) The family court, in consultation with the
agency, shall establish guidelines to establish the amount
of child support when an order for support is sought or
being modified under this chapter. The guidelines shall be
based on specific descriptive and numeric criteria and
result in a computation of the support obligation.
The guidelines may include consideration of the
following:
(1) All earnings, income, and resources of both
parents; provided that earnings be the net
amount, after deductions for taxes, and social
security. Overtime and cost of living allowance
may be deducted where appropriate;
(2) The earning potential, reasonable necessities,
and borrowing capacity of both parents;
(3) The needs of the child for whom support is
sought;
(4) The amount of public assistance which would be
paid for the child under the full standard of
need as established by the department;
(5) The existence of other dependents of the obligor
parent;
(6) To foster incentives for both parents to work;
(7) To balance the standard of living of both
parents and child and avoid placing any below
the poverty level whenever possible;
(continued...)

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§ 571-52.5 (2018);6 Wong v. Dey, No. 29128, 2012 WL 171612, *2

(Haw. App. Jan. 20, 2012) (mem. op.). However, in this case,

Father was defaulted and ordered to provide support for no more

than what Mother had requested. Father's argument does not

appear to challenge his child support obligations, rather it

appears Father argues he should be provided with custody or more

contact based on the type and/or amount of child support he was

ordered to provide. Child custody is based on the child's best

interest pursuant to HRS § 571-46(b), while child support is
based on the guidelines of HRS § 576D-7. None of the factors in

HRS §§ 571-46(b) or 576D-7 indicate the type or amount of child

support weighs in favor of increased contact or an award of child

custody. Father cites no authority that child custody is based

on the type and/or amount of child support ordered by the Family

Court. Therefore, Father's point of error is without merit.

5/
(...continued)
(8) To avoid extreme and inequitable changes in either
parent's income depending on custody; and
(9) If any obligee parent (with a school age child
or children in school), who is mentally and
physically able to work, remains at home and
does not work, thirty (or less) hours of weekly
earnings at the minimum wage may be imputed to
that parent's income.
6/
HRS 571-52.5 states:

§ 571-52.5 Guidelines to determine child support
amounts. When the court establishes or modifies the amount
of child support required to be paid by a parent, the court
shall use the guidelines established under section 576D-7,
except when exceptional circumstances warrant departure.

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For these reasons, the Family Court's January 24, 2019

Custody Order is affirmed.

DATED: Honolulu, Hawai#i, April 10, 2023.

On the briefs:
/s/ Lisa M. Ginoza
AE, Chief Judge
Defendant-Appellant.
/s/ Katherine G. Leonard
Rebecca A. Copeland, Associate Judge
for Plaintiff-Appellee.
/s/ Karen T. Nakasone
Associate Judge

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