Palmeri v. Hayes

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-NOV-2024
08:09 AM
Dkt. 68 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

JUDITH PALMERI, Petitioner-Appellee,
v.
THOMAS HAYES, Respondent-Appellant

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-DA NO. 20-1-0559)

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

This appeal challenges a family court protective
order. We reverse.
Respondent-Appellant Thomas Hayes (Hayes) appeals from
a December 16, 2020 Order of Protection, filed by the Family
Court of the Second Circuit (Family Court). 1 Hayes and

1 The Honorable Michelle L. Drewyer presided.
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Petitioner-Appellee Judith Palmeri (Palmeri) were both self-
represented in the proceedings below, but are both represented
by counsel on appeal.
On appeal, Hayes raises six points of error (POEs), 2
contending that the Family Court: (1) lacked personal
jurisdiction over Hayes; (2) "abused its discretion when it
failed to address and rule on the issue of res judicata, which
was raised by the parties substantively, if not by name";
(3) "abused its discretion when it failed to make any
determinations regarding the credibility of the parties-
witnesses, which was the only possible 'substantial evidence'
that could support its findings of fact"; (4) clearly erred by
finding "that there was 'an instance' of 'extreme psychological
abuse' and that 'any reasonable person would suffer [] extreme
emotional distress'"; (5) "abused its discretion when it failed
to give [Hayes] a chance to cross-examine [Palmeri]"; and
(6) "abused its discretion" in "not giv[ing] both pro se parties
equal opportunities to present their cases[.]" Hayes requests
that this court reverse the Order of Protection.
Upon review of the record on appeal and relevant legal
authorities, giving due consideration to the issues raised and
arguments advanced by the parties, we resolve Hayes's
contentions as follows.
On December 3, 2020, Palmeri filed an ex parte
petition (Petition) for a temporary restraining order (TRO)

2 Hayes's POEs are reordered for clarity.

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under Hawaii Revised Statutes (HRS) § 586-4 against Hayes. 3 The
family court 4 granted the Petition and issued a TRO the same day.
On December 16, 2020, an evidentiary hearing was held
on the TRO (show-cause hearing). 5 Palmeri testified that she was
afraid of Hayes because Hayes followed her, made posts on social
media that felt threatening to her, and surveilled her. Hayes
testified that he never followed Palmeri, the social media posts
were not intended for her, he was in a new relationship, and
wanted to move on in life.
At the conclusion of the show-cause hearing, the
Family Court issued the Order of Protection for one year, 6
pursuant to HRS § 586-5.5. 7 The Family Court found that "this
instance constituted cer [sic]-- extreme psychological abuse, a
course of conduct that was directed at [Palmeri], that seriously
alarmed [Palmeri] or disturbed [Palmeri] constantly, or
continuously bothers [Palmeri] and serves no legitimate

3 HRS § 586-4 (2018 & 2020 Supp.), entitled "Temporary restraining
order," permits a family court to grant an ex parte TRO petition "to restrain
either or both parties from contacting, threatening, or physically abusing
each other," if the court finds "probable cause to believe that a past act or
acts of abuse have occurred, or that threats of abuse make it probable that
acts of abuse may be imminent." HRS § 586-4 (a), (c).

4 The TRO was granted by the Honorable Douglas J. Sameshima.

5 HRS § 586-5 (2006 & 2011 Supp.) requires the court, within 15
days of the TRO being granted, to "hold a hearing on the application
requiring cause to be shown why the [TRO] should not continue."

6 Although the one-year Order for Protection in effect from
December 16, 2020 to December 16, 2021 has expired, the appeal is not moot
because the collateral consequences exception applies. See Hamilton ex rel.
Lethem v. Lethem, 119 Hawai‘i 1, 11, 193 P.3d 839, 849 (2008).

7 HRS § 586-5.5 (2018 & 2020 Supp.), provides for the issuance of a
protective order following a show-cause hearing, if "the court finds that
the respondent has failed to show cause why the order should not be continued
and that a protective order is necessary to prevent domestic abuse or a
recurrence of abuse[.]"

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purpose." The Family Court determined that "any reasonable
person would suffer the extreme [sic] emotional distress."
Hayes timely appealed.
POEs 1 and 2: Hayes's defenses of lack of personal
jurisdiction and res judicata are waived.
Hayes argues that the Family Court lacked personal
jurisdiction over him due to his "tenuous" "connection to this
state"; and that the Petition was barred by res judicata.
Hayes presents these defenses for the first time on
appeal, and they are waived. See State ex rel. Off. of Consumer
Prot. v. Honolulu Univ. of Arts, Scis., & Humans., 110 Hawaiʻi
504, 516, 135 P.3d 113, 125 (2006) (holding defendant waived its
res judicata defense by not pleading such in its answer or
raising it during circuit court proceedings); Puckett v.
Puckett, 94 Hawaiʻi 471, 481, 16 P.3d 876, 886 (App. 2000)
(holding husband waived defense of lack of personal jurisdiction
by failing to assert the defense in pleadings or a motion to
dismiss, and by personally appearing in court for hearing on
pre-decree relief).
POEs 3 and 4: The Family Court's finding of "extreme
psychological abuse" was clearly erroneous.
Hayes argues, inter alia, that "there was insufficient
evidence to support a finding that domestic abuse occurred," and
that the Family Court "made no clear, specific finding of fact
as to what incident constituted 'domestic abuse' within the
meaning of HRS § 586-1."
"We review a trial court's granting of a protective
order for an abuse of discretion." Doe v. Doe, 120 Hawaiʻi 149,
165, 202 P.3d 610, 626 (App. 2009) (citation omitted). "[W]hen
a conclusion of law presents mixed questions of fact and law, we
review it under the 'clearly erroneous' standard because the

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court's conclusions are dependent on the facts and circumstances
of each individual case." JW v. RJ, 146 Hawai‘i 581, 585, 463
P.3d 1238, 1242 (App. 2020) (citation omitted).
"Domestic abuse" is defined as "[p]hysical harm,
bodily injury, assault, or the threat of imminent physical harm,
bodily injury, or assault, [or] extreme psychological abuse
. . . between family or household members[.]" HRS § 586-1 (2018
& 2020 Supp.) (emphasis added). "Extreme psychological abuse"
means "an intentional or knowing course of conduct directed at
an individual that seriously alarms or disturbs consistently or
continually bothers the individual, and that serves no
legitimate purpose; provided that such course of conduct would
cause a reasonable person to suffer extreme emotional distress."
Id. (emphasis added).
Here, the record reflects that Palmeri testified to
multiple alleged incidents that she found threatening, and the
Family Court granted the protective order based on a single,
unspecified "instance" of "extreme psychological abuse[.]" The
Family Court found that: "this instance constituted cer [sic]
-- extreme psychological abuse, a course of conduct that was
directed" at Palmeri. (Emphases added.) While HRS § 586-1 does
not define the "course of conduct" term used in the "extreme
psychological abuse" definition, it is clear that a single
instance does not constitute a "course of conduct." See Auger
v. Pocino, No. CAAP-XX-XXXXXXX, 2017 WL 2797657, at *2 (Haw.
App. June 28, 2017) (SDO) (holding that the family court's
"reliance solely on two incidents of name-calling did not amount
to . . . [a] course of conduct [that] constituted extreme
psychological abuse"); cf. Duarte v. Young, 134 Hawai‘i 459, 463,
342 P.3d 878, 882 (App. 2014) (holding that a single act did not

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constitute a "course of conduct" under the harassment statute,
HRS § 604-10.5(a), which defined "course of conduct" as "a
pattern of conduct composed of a series of acts over any period
of time"). Because a single "instance" cannot constitute a
"course of conduct" required for "extreme psychological abuse"
under HRS § 586-1, the Family Court's conclusion that a
protective order was warranted, was clearly erroneous. See JW,
146 Hawai‘i at 585, 463 P.3d at 1242. The Family Court acted
outside its discretion in issuing the December 16, 2020 Order of
Protection, and we reverse. See Doe, 120 Hawai‘i at 165,
202 P.3d at 626; Auger, 2017 WL 2797657, at *1-2 (reversing the
family court's issuance of the protective order, where the
family court's finding of "domestic abuse" was clearly
erroneous).
In light of our disposition, we need not address
Hayes's remaining POEs.
For the foregoing reasons, we reverse the December 16,
2020 Order of Protection filed by the Family Court of the Second
Circuit.
DATED: Honolulu, Hawai‘i, November 4, 2024.
On the briefs:
/s/ Clyde J. Wadsworth
Pamela I. Lundquist
Presiding Judge
for Respondent-Appellant.
/s/ Karen T. Nakasone
Kristin Coccaro
Associate Judge
for Petitioner-Appellee.
/s/ Sonja M.P. McCullen
Associate Judge

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