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NO. CAAP-21-0000411

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

WC, Petitioner-Appellee, v.

TC, Respondent-Appellant

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT

(FC-DA NO. 18-1-0361)

SUMMARY DISPOSITION ORDER

(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)

Self-represented Respondent-Appellant TC (Mother)

appeals from the "Six[th] Amended Order for Protection" (Sixth

Amended Order), entered in favor of Petitioner-Appellee WC

(Father) on June 18, 2021, by the Family Court of the Second

Circuit (Family Court).1/ Mother also claims to appeal from the

"Findings of Fact and Conclusions of Law and Order"

(FOFs/COLs/Order), entered on August 18, 2021, by the Family

Court. 

On appeal, Mother appears to contend that the Family

Court entered the Sixth Amended Order: (1) without the support

of substantial evidence and in abuse of the court's discretion;

(2) in violation of Mother's due process rights; and (3) in

1/ The Honorable James R. Rouse presided. It appears that the Sixth

Amended Order, which mistakenly bears the filing date of June 18, 2020, was

signed on June 18, 2021, and filed on the same date. 

Electronically Filed

Intermediate Court of Appeals

CAAP-21-0000411

21-JUL-2022

07:51 AM

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violation of evidentiary rules.2/ Mother does not challenge any

specific FOFs or COLs made by the Family Court.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, as

well as the relevant statutory and case law, we resolve Mother's

contentions as follows and affirm.

I. Background

On July 23, 2018, Father filed an ex parte petition for

a temporary restraining order (TRO) against Mother pursuant to

Hawaii Revised Statutes (HRS) Chapter 586. Father declared under

penalty of perjury that Mother had committed acts of domestic

abuse or threats of domestic abuse, including hitting Father in

the face and punching him in the back of the head, and

threatening to commit suicide in front of the parties' minor

daughter. On July 23, 2018, the Family Court entered a TRO,

finding in part that it was "necessary to prevent acts of abuse

or recurrence of actual domestic abuse . . . ."

As reflected in unchallenged FOF 1, and in the record,

on July 27, 2018, following a show-cause hearing, the Family

Court entered an Order for Protection (Order), ordering in part

that Mother be restrained from committing further acts of abuse.3/

2/ Mother's points of error, to the extent discernible, have been

restated and condensed for clarity. We note that Mother's opening brief fails

to comply in material respects with Hawai#i Rules of Appellate Procedure

(HRAP) Rule 28(b)(4) and (7). Mother's "failure to comply with HRAP Rule

28(b)(4) is alone sufficient to affirm the [family] court's judgment." Morgan

v. Planning Dep't, Cty. of Kauai, 104 Hawai#i 173, 180, 86 P.3d 982, 989

(2004); see also HRAP Rule 28(b)(7) ("Points not argued may be deemed

waived."). Nevertheless, we have "consistently adhered to the policy of

affording litigants the opportunity 'to have their cases heard on the merits,

where possible.'" Morgan, 104 Hawai#i at 180–81, 86 P.3d at 989–90 (quoting

O'Connor v. Diocese of Honolulu, 77 Hawai#i 383, 386, 885 P.2d 361, 364

(1994)). We thus address Mother's arguments to the extent discernible.

3/ The Family Court further found that Mother's recent conduct

included psychological abuse that constituted "family violence" under HRS

§ 571-2. We note that under HRS § 586-5.5(a) (2018), a protective order may

be issued when it is necessary to prevent "domestic abuse or a recurrence of

abuse[.]" The statutory definitions of "domestic abuse" (see HRS § 586-1

(Supp. 2020)) and "family violence" are not coextensive. Here, it appears

that the Family Court issued the Protective Order based on conduct that

constituted domestic abuse and also included family violence. 

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The following FOFs are also unchallenged on appeal:

2. The Order was subsequently amended on September 21,

2018, October 18, 2018, January 14, 2019, and July 31,

2019. The Order was extended for good cause by this

Court on June 26, 2020 and is set to expire on

July 27, 2021. [Mother] was then represented by

[counsel]. 

3. After the Order was amended on January 14, 2019,

[Mother] was alleged to have violated the Order on

January 26, 2019. The Order was then amended again on

July 31, 2019, and [Mother] was once again alleged to

have violated the Order on February 27, 2020. 

4. Per Court records and [Mother's] testimony, the

charges for the alleged violations of the Order are

still pending before Judge Bissen in 2FFC-20-0000102

and 2FFC-19-0000048. 

5. Additionally, per the Court's records and [Mother's]

testimony, she has several felony charges, five (5)

total consisting of (3) Class C felony counts in 2CPC

17-0000244 before Judge Loo, and (1) Class B count and

(1) Class C count in 2 CPC 17-0000114 before Judge

Bissen that are pending resolution. 

6. Currently, [Father] has sole legal and physical

custody of the minor child as ordered in 2DV181000355

by order entered on July 31, 2019. Further, Court

records indicate that on June 14, 2021, [Mother] was

ordered to have continued supervised visits with the

child because a change in visitation would not be in

the child's best interests as there was been no

material change in the circumstances since the date of

the last order entered in the matter. 

7. The Court finds that [Mother's] prior alleged noncompliance with the Order for Protection as well as

her failure to address the charges against her for her

alleged violation of the Order is good cause for the

Order for Protection to be extended.

8. The Court finds that [Mother] has demonstrated a

capacity for [sic] to disregard the orders of this

Court. As a result, the Court also finds that the

Order for Protection is still necessary to prevent

domestic abuse or recurrence of abuse. As a result,

this Court may extend the Order for such further fixed

reasonable period as the Court deems appropriate

pursuant to [HRS] § 586-5.5(b).4/

(Footnote added.)

4/ We note that FOFs 7 and 8 actually present mixed determinations of

fact and law.

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II. Discussion

A. Substantial Evidence

Mother contends that the Sixth Amended Order "[w]as

made without the support of substantial evidence" and "[w]as

arbitrary, capricious, or an abuse of discretion." 

We review the Family Court's exercise of discretion as

follows:

[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 v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006)

(quoting In re Doe, 95 Hawai#i 183, 189-90, 20 P.3d 616, 622-23

(2001)).

We review the Family Court's findings of fact for clear

error and vacate only when "the record lacks substantial evidence

to support the finding or, . . . despite substantial evidence in

support of the finding, [we are] left with a definite and firm

conviction that a mistake has been made." Id. "'Substantial

evidence' is credible evidence which is of sufficient quality and

probative value to enable a person of reasonable caution to

support a conclusion." Id. Unchallenged findings of fact are

binding on the parties and this court. See In re Doe, 99 Hawai#i

522, 538, 57 P.3d 447, 463 (2002). We likewise review

conclusions of law that present mixed questions of fact and law

for clear error. See Estate of Klink ex rel. Klink v. State, 113

Hawai#i 332, 351, 152 P.3d 504, 523 (2007). 

Mother does not present any argument on her points of

error (see HRAP Rule 28(b)(7)); however, she asserts in her

"Statement of Facts" that "[t]he Court had all the information

present to render a decision to allow some sort of respite from

the TRO" and "dismissed [Mother's] success and progress in selfrealization and rehabilitation." Father responds that the Family

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Court "properly exercised its discretion to extend the Protective

Order." 

HRS § 586-5.5(b) (Supp. 2021) provides:

A protective order may be extended for a further fixed

reasonable period as the court deems appropriate, including,

in the case where a protective order restrains any party

from contacting, threatening, or physically abusing a minor,

for a fixed reasonable period extending to a date after the

minor has reached eighteen years of age. Upon application

by a person or agency capable of petitioning under section

586-3, the court shall hold a hearing to determine whether

the protective order should be extended. In making a

determination, the court shall consider evidence of abuse

and threats of abuse that occurred before the initial

restraining order and whether good cause exists to extend

the protective order.

The extended protective order may include all orders

stated in the preceding restraining order and may provide

further relief as the court deems necessary to prevent

domestic abuse or a recurrence of abuse, including orders

establishing temporary visitation and custody with regard to

minor children of the parties and orders to either or both

parties to participate in domestic violence intervention

services. The court may terminate the extended protective

order at any time with the mutual consent of the parties.

(Emphases added.)

Here, as reflected in FOFs 1 through 8, the Family

Court considered the "evidence of abuse and threats of abuse that

occurred before the initial restraining order and whether good

cause exist[ed] to extend the protective order." HRS § 586-

5.5(b). The Family Court cited, among other things, Mother's

abusive conduct that led to the initial order for protection, her

alleged non-compliance with subsequent amended orders for

protection, and her "demonstrated capacity . . . to disregard the

orders of this court." Mother has not challenged any of the

Family Court's related findings, which are thus binding on appeal

(see supra) and support the Family Court's conclusions in FOFs 7

and 8 that there was good cause to extend the protective order.5/

5/ In COLs 4 through 6, the Family Court also concluded that Father

established a material change of circumstances after issuance of the June 26,

2020 Order for Protection, pursuant to HRS § 586-9 (2018). The applicable

standard in these circumstances, however, was the "good cause" standard set

forth in HRS § 586-5.5(b), which the court properly applied in FOFs 7 and 8. 

To the extent the Family Court erred in relying on HRS § 586-9, we conclude

that such error was harmless. 

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In asserting that the Family Court "had all the

information . . . to allow some sort of respite from the TRO" and

disregarded Mother's "progress in self-realization and

rehabilitation[,]" Mother appears to dispute the weight of the

evidence. It is well-settled, however, that "an appellate court

will not pass upon issues dependent upon the credibility of

witnesses and the weight of the evidence; this is the province of

the trier of fact." Fisher, 111 Hawai#i at 46, 137 P.3d at 360

(quoting Doe, 95 Hawai#i at 190, 20 P.3d at 623). Moreover,

Mother does not point to any evidence in the record supporting

her assertions or provide any argument as to why any of the FOFs

or mixed FOFs/COLs were clearly erroneous. See HRAP Rule

28(b)(7). 

Accordingly, we conclude that the FOFs/COLs/Order and

the Sixth Amended Order were supported by substantial evidence,

and we are not left with a definite and firm conviction that a

mistake has been made. We further conclude that the Family Court

did not abuse its discretion in entering the Sixth Amended Order.

B. Due Process

Mother contends:

The Due Process clauses [sic] of the United States

Constitution encourages courts to decide a case that could

adversely affect a party's interest in the light deemed

fundamental or natural. To satisfy this requirement, all

evidence must be viewed in a light equal to both parties and

all permissible inferences must be reasonably calculated and

entered into the record properly.

Mother further asserts that "El v. Granville, 530 U.S. 57 (2000)

settles that the state court cannot interfere by allocating

children without a high standard of proof that one parent is

unfit."6/

However, Mother fails to specify where in the record

she brought the alleged error to the attention of the Family

6/ It appears that Mother is referring to Troxel v. Granville, 530

U.S. 57 (2000), in which the United States Supreme Court affirmed the

Washington Supreme Court's judgment that a Washington visitation statute

violated the United States Constitution. Id. at 63.

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Court, and makes no discernible argument as to how the Sixth

Amended Order violated her due process rights. Her argument is

thus deemed waived. See HRAP Rule 28(b)(4) and (7); Ito v.

Investors Equity Life Holding Co., 135 Hawai#i 49, 74, 346 P.3d

118, 143 (2015) ("Where an appellant makes general assertions of

a due process violation, without further elaboration or citation

to authority, the court cannot reach a reasoned conclusion, and

the due process argument is deemed waived." (citing Cty. of

Hawaii v. C & J Coupe Family Ltd. P'ship, 119 Hawai#i 352, 373,

198 P.3d 615, 636 (2008)); State v. Moses, 102 Hawai#i 449, 456,

77 P.3d 940, 947 (2003) ("As a general rule, if a party does not

raise an argument at trial, that argument will be deemed to have

been waived on appeal[.]").

C. Evidentiary Rules

Mother contends that "Hawaii Rules of Evidence [(HRE)]

626 were not followed . . . relating to the mindset of [Mother]

. . . ."7/ She also asserts that "[m]uch of [Father's] filings

proffered were irrelevant, . . . were entered into the record

erroneously[, and] were unfairly prejudicial, confusing, and

based on hearsay." 

However, Mother fails to set forth the substance of the

evidence she claims was improperly admitted or rejected, fails to

identify the evidentiary rule or rules she claims were violated,

fails to specify where in the record, and on what grounds, she

objected, and fails to make any discernible argument regarding

her contentions. See HRAP Rule 28(b)(4) and (7). Her

contentions based on alleged evidentiary violations are therefore

deemed waived. See In re Guardianship of Carlsmith, 113 Hawai#i

236, 246, 151 P.3d 717, 727 (2007) (an appellate court "may

disregard a particular contention if the appellant makes no

discernible argument in support of that position" (quoting Norton

v. Admin. Dir. of the Court, 80 Hawai#i 197, 200, 908 P.2d 545,

548 (1995)) (internal quotation marks and brackets omitted));

7/ There is no HRE Rule 626. It appears that Mother may be referring

to HRS chapter 626, which sets forth the Hawai#i Rules of Evidence. 

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Moses, 102 Hawai#i at 456, 77 P.3d at 947; HRAP Rule 28(b)(7)

("Points not argued may be deemed waived."). 

III. Conclusion

For the reasons discussed above, the "Six[th] Amended

Order for Protection," entered on June 18, 2021, by the Family

Court of the Second Circuit, is affirmed.

DATED: Honolulu, Hawai#i, July 21, 2022.

On the briefs:

TC

Self-represented RespondentAppellant.

Alan Y. Okamoto

(Kleintop & Luria, LLP)

for Petitioner-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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