NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000762

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LO, Plaintiff-Appellant,

v.

NO, Defendant-Appellee

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(FC-D NO. 16-1-1111)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, Chan and Hiraoka, JJ.)

Plaintiff-Appellant LO (Father) appeals from the Order

Granting in Part Motion for Post-Decree Relief (Order) entered by

the Family Court of the First Circuit1 on October 3, 2019. For

the reasons explained below, we affirm the Order.

Father and Defendant-Appellee NO (Mother) were married

in 2014. Their child (Child) was born in 2015. Father filed a

complaint for divorce in 2016. A Divorce Decree was entered on

May 20, 2019. Mother appealed. We affirmed. LO v. NO,

No. CAAP-19-0000446, 2020 WL 589201 (Haw. App. Feb. 6, 2020)

(mem.). The supreme court granted Mother's application for writ

of certiorari. LO v. NO, No. SCWC-19-0000446, 2020 WL 2562020

(Haw. May 20, 2020). That case remains pending in the supreme

court.

1 The Honorable Jessi L.K. Hall presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000762

13-AUG-2020

07:50 AM
On June 12, 2019, Mother filed the Motion and

Declaration for Post-Decree Relief (Motion) at issue in this

appeal. The Motion sought, among other relief:

[Mother] needs [Child]'s passport to travel with the

child. [Father] has utterly refused to cooperate with this

matter and must be ordered by this Court to allow a pssport

[sic] to be issued.

The family court entered the Order on October 3, 2019. Father

filed a notice of appeal on October 30, 2019.

The family court entered findings of fact and

conclusions of law on December 16, 2019. Father's opening brief

does not quote any of the family court's findings of fact urged

as error, nor were the findings of fact appended to the brief, as

alternatively required by Rule 28(b)(4)(C) of the Hawai#i Rules

of Appellate Procedure. Accordingly, the family court's findings

of fact are binding on Father and on us. Kawamata Farms, Inc. v.

United Agri Prods., 86 Hawai#i 214, 252, 948 P.2d 1055, 1093

(1997).

Father raises three points of error: (1) the family

court erred when it failed to require Mother to mediate before

filing the Motion; (2) the family court lacked jurisdiction over

the Motion because Mother's appeal from the Divorce Decree was

pending; and (3) the family court abused its discretion by

ordering Father to cooperate with Child's passport application.

[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)

(citation omitted).

1. Father correctly contends that the Divorce Decree

required the parties to mediate before filing any post-decree

motions "about a major decision concerning the child[.]" The

record on appeal does not contain any indication that Father

raised Mother's failure to mediate with the family court. The

2
issue is waived. Ass'n of Apartment Owners of Wailea Elua v.

Wailea Resort Co., 100 Hawai#i 97, 107, 58 P.3d 608, 618 (2002)

(holding that legal issues not raised before trial court are

deemed waived on appeal).

2. We address Father's challenge to the family

court's jurisdiction even though the record does not indicate

that Father raised the issue with the family court. Chun v.

Emps' Ret. Sys., 73 Haw. 9, 14, 828 P.2d 260, 263 (1992) (noting

that a court will consider subject matter jurisdiction even if

the parties have not raised the issue, because a judgment entered

without subject matter jurisdiction is invalid).

Mother's Motion requested modification of her child

visitation rights, enforcement of Father's child support

obligations, and an order that Father cooperate to apply for a

passport for Child.2 The family court had jurisdiction over

Mother's Motion notwithstanding the pendency of Mother's appeal

from the Divorce Decree. See Hawaii Revised Statutes (HRS)

§ 580-47;3 Hawai#i Family Court Rules (HFCR) Rule 62.4

3. The family court's unchallenged findings of fact

were:

9. At the continued hearing on [Mother]'s Motion

held October 2, 2019, [Mother] sought an order that the

2 The Divorce Decree contained no provision about Child obtaining a

passport.

3 HRS § 580-47(b) (2018) provides, in relevant part:

The [family] court shall at all times, including during the

pendency of any appeal, have the power to grant any and all

orders that may be necessary to protect and provide for the

support and maintenance of the parties and any children of

the parties to secure justice, to compel either party to

advance reasonable amounts for the expenses of the appeal

including attorney's fees to be incurred by the other party,

and to amend and revise such orders from time to time.

4 HFCR Rule 62(a) provides, in relevant part:

When an appeal is taken from any judgment relating to the

custody or support of a child or spousal support, the court

in its discretion may suspend, modify or grant such

judgments during the pendency of the appeal upon such terms

as it considers proper.

3
minor child be issued a passport. [Mother] via counsel made

it clear that she was not requesting to travel with the

minor child at this time.

10. [Father] did not present any relevant nor

compelling grounds for the minor child to not have a

passport.

11. [Father] was informed that the fact of the minor

having a passport issued will not require [Father] to agree

to any travel in the future.

12. [Mother] agreed and the Court reiterated that

the subject minor cannot leave the country without the

express written consent of the parties or by future order of

the Court.

13. [Father] was concerned that if the minor child

had a passport, [Mother] would take the minor child to

Vietnam.

14. [Father] was asked if he still objected if he

kept the passport in his possession. [Father] stated that

he did object[5] and again only due to his concern that

[Mother] would take the minor child to Vietnam.

15. [Mother] understood that just because a passport

is ordered to be issued that there was not any promise that

any court will ever allow her to take the minor to Vietnam.

(Emphasis and footnote added.) The family court also made the

following conclusions of law, which were actually findings of

fact:

5. No evidence was provided to show that obtaining

a passport for the minor child would not be in the minor's

best interests.

6. [Mother] has shown that having a passport could

be beneficial for the minor child for future use with either

parent or as a form of identification for the minor child.

The Order stated, among other things:

Father [is] to cooperate with [Child]'s Passport

application process and the US Passport application for the

child is to be submitted within 90 days from today. Mother

shall pay the costs, and Father is entitled to possess the

Passport.

We hold that the family court did not abuse its discretion by

entering the Order.

5 Father's contention that the family court found he "did not object

to the passport issuance" is without merit.

4
Based upon the foregoing, the Order Granting in Part

Motion for Post-Decree Relief entered by the Family Court of the

First Circuit on October 3, 2019, is affirmed.

DATED: Honolulu, Hawai#i, August 13, 2020.

On the briefs:

/s/ Katherine G. Leonard

Scot Stuart Brower, Presiding Judge

for Plaintiff-Appellant.

/s/ Derrick H.M. Chan

Michael A. Glenn, Associate Judge

for Defendant-Appellee.

/s/ Keith K. Hiraoka

Associate Judge

5