J.S. v. K.R.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-JUN-2024
08:13 AM
Dkt. 63 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

J.S., Plaintiff-Appellee,
v.
K.R., Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1DV201008563)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.)

Defendant-Appellant K.R. (Mother) appeals from the

Decision and Order Granting in Part and Denying in Part

Plaintiff's Motion and Declaration for Pre-Decree Relief, filed

on April 13, 2022, and Defendant's Motion and Declaration for

Post-Decree Relief filed on June 30, 2022 (Decision and Order),

entered by the Family Court of the First Circuit (family court)
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

on February 21, 2023.1 Pursuant to its Decision and Order, the

family court, inter alia, awarded joint legal custody of the

three children (Children) to Mother and Plaintiff-Appellee J.S.

(Father), and sole physical custody to Father.2 The family court

entered its Findings of Fact and Conclusions of Law on May 12,

2023.

On appeal, Mother raises three points of error: (1)

"[t]he alleged error committed by the court failed to determine

proper actions regarding the criteria and procedure in awarding

custody and visitations; for the best interest of the children";

(2) "[t]he alleged error committed by the court failed to

enforce [Hawaii Revised Statutes (HRS)] § 571-46"; and (3)

"[t]he alleged error committed by the court failed to follow

Chapter 626 of the Hawaii Rules of Evidence (HRE), Rule 702."

At the outset, we note that Mother's points of error

and arguments are nearly indiscernible. From what we are able

to discern,3 Mother appears to contend that, given the evidence

presented by six witnesses at the hearing on January 30, 2023,

1 The Honorable Maria F. Penn presided.

2 Mother and Father are both self-represented on appeal. Father
did not file an answering brief.

3 We will address Mother's arguments to the extent we can discern
them, as we endeavor to afford "litigants the opportunity to have their cases
heard on the merits, where possible." Marvin v. Pflueger, 127 Hawaiʻi 490,
496, 280 P.3d 88, 94 (2012) (cleaned up).

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the family court erred in its custody ruling.4 She contends that

"[t]he court and agency failed to enforce HRS § 571-46 and

failed to follow Chapter 626 of the Hawaii Rules of Evidence

[(HRE)] Rule 702."5 With regard to HRS § 571-46 (2018),6 Mother

argues that "[t]he best interest for the parties['] three minors

was overlooked with the concerns that were brought forth to the

courts."

4 The family court awarded joint legal custody of the Children to
Mother and Father, with Father having tie-breaking authority. Mother does
not specifically argue that the family court's award of tie-breaking
authority to Father was erroneous. The family court awarded sole physical
custody of the children to Father. The family court set a timesharing
schedule that it found to be in the children's best interests that included
overnight and weekend visits with Mother.

5 Mother does not make any argument as to how HRE 702 was violated.
An appellate court "may disregard a particular contention if the appellant
makes no discernible argument in support of that position." In re
Guardianship of Carlsmith, 113 Hawaiʻi 236, 246, 151 P.3d 717, 727 (2007)
(cleaned up).

6 HRS § 571-46(a) states, in pertinent part,

In actions for divorce . . . 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[.]

Id. HRS § 571-46(b) sets forth factors that "the court shall consider, but
not be limited to," "[i]n determining what constitutes the best interest of
the child[.]"

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The record reflects that the family court considered

and made conclusions of law regarding the best interests of the

Children as follows,

6. Pursuant to the factors enumerated in HRS §571-
46(b), it is in the children's best interest that the
parties be awarded joint legal custody of the minor
children: X.R. (born 2015), Y.R. (born 2016), and K.R.
(born 2018), with Father having tie-breaking authority.

7. Pursuant to the factors set forth in HRS §571-
46(b), it is in the children's best interest that the
parties continue to communicate through Talking Parents of
any major decisions that need to be made for a child as
soon as possible after learning of the issue that needs to
be decided. Each party shall provide the other parent with
substantive input concerning the issue to be decided. The
parties shall then discuss the issue through Talking
Parents. If the parties are unable to reach a mutual
decision concerning the issue, then Father shall have final
decision-making authority. However, Father shall not be
authorized to make a unilateral decision with a significant
financial cost and expect Mother to pay for a portion of
the expense. In addition, Father shall not be allowed to
make unilateral decisions that would affect Mother's time
with the children.

8. The parties shall continue to keep each other
informed of all matters concerning the children through
Talking Parents, including but not limited to the
children's schedules, medical and dental appointments, etc.
Mother shall continue to have direct access to the
children's educational and medical/dental records.

9. There are concerns that Mother has encouraged
K.R. to make sexual assault allegations against Father's
stepson even though the allegations have been repeatedly
unconfirmed and there is no credible history or evidence
that such abuse occurred. Encouraging a child to
repeatedly make such allegations can be a form of emotional
abuse. Although the Court is not making such a finding
against Mother, if future allegations are again made and
are again not confirmed, the Court will consider making
such a finding against Mother in the future.

In addition, the Court is concerned that even
though the sexual assault allegations involving K.R. have
been repeatedly unconfirmed, Mother continues to still try
to label K.R. as a "victim", which is not in the child's
best interest.

Pursuant to the factors set forth in HRS §571-
46(b) and after considering the evidence presented and
having taken judicial notice of the records and files in

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this case and all related cases, the Court finds that it is
in the children's best interest that Father be awarded sole
physical custody of the parties' three (3) minor children,
subject to Mother's timesharing schedule.[7]

In reaching these unchallenged conclusions,8 the family

court exercised its discretion in weighing the evidence,

including the testimony of the witnesses and the parties.

Fisher v. Fisher, 111 Hawaiʻi 41, 46, 137 P.3d 355, 360 (2006)

("It is well-settled that an appellate court will not pass upon

issues dependent upon the credibility of witnesses and the

weight of evidence; this is the province of the trier of fact.")

(cleaned up).

On this record, we conclude that the family court

sufficiently considered the factors set forth in HRS § 571-46,

including the best interests of the Children, in its custody

ruling. The circuit court did not abuse its discretion in

awarding joint legal custody, with tie-breaking authority to

7 The family court also found that it would be in the Children's
best interests to continue with their individual therapy. However, given
that "there was insufficient evidence to establish and/or confirm that any of
the three children were sexually assaulted[,]" and "[t]he Honolulu Police
Department, Child Welfare Services, and Children's Justice Center have not
confirmed any such allegations[,]" the family court determined that the
children would not need to continue with individual therapy at the Sex Abuse
Treatment Center.

8 Mother does not specifically challenge any of the family court's
findings of fact and conclusions of law. Unchallenged findings of fact and
conclusions of law are binding upon this court. Okada Trucking Co., Ltd. v.
Bd. of Water Supply, 97 Hawaiʻi 450, 459, 40 P.3d 73, 82 (2002) ("unchallenged
factual findings are deemed to be binding on appeal"); Alvarez Fam. Tr. v.
Ass'n of Apartment Owners of Kaanapali Alii, 121 Hawaiʻi 474, 489, 221 P.3d
452, 467 (2009) ("It is also well-settled that all unchallenged conclusions
by the circuit court are considered binding upon this court.") (citations
omitted).

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Father, and sole physical custody to Father. Id. ("Generally,

the 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.")

For the foregoing reasons, we affirm the family

court's Decision and Order Granting in Part and Denying in Part

Plaintiff's Motion and Declaration for Pre-Decree Relief, filed

on April 13, 2022 and Defendant's Motion and Declaration for

Post-Decree Relief filed on June 30, 2022, entered on

February 21, 2023, and its Findings of Fact and Conclusions of

Law, entered on May 12, 2023.

DATED: Honolulu, Hawai‘i, June 17, 2024.

On the brief: /s/ Keith K. Hiraoka
Presiding Judge
K.R.,
Self-represented /s/ Clyde J. Wadsworth
Defendant-Appellant. Associate Judge

/s/ Kimberly T. Guidry
Associate Judge

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