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NO. CAAP-23-0000299 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAIʻI 

D.F., Plaintiff-Appellant, v. 

T.F., nka T.Y., Defendant-Appellee. 

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT 

(CASE NO. 3DV181000175) 

SUMMARY DISPOSITION ORDER

(By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.) 

Plaintiff-Appellant Father appeals from the Family 

Court of the Third Circuit's1 April 17, 2023 "Decision and Order 

Following Trial re: Child Custody, Timesharing, Child Support, 

Child Related Expenses and Fees[.]" 

In September 2019, the family court entered a divorce 

decree2 awarding legal and physical custody of the three minor 

children to Father with a time-sharing schedule. At the time of 

1 The Honorable Jeffrey W. Ng presided. 

2 The Honorable Charles H. Hite presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-23-0000299

27-SEP-2024

07:59 AM

Dkt. 76 SO
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the divorce decree, Father was represented by counsel and 

Defendant-Appellee Mother was not.

In September 2020, a year later, and represented by 

counsel, Mother moved for post-decree relief requesting sole 

legal and physical custody of the children and to relocate to 

Connecticut. Mother provided a statement explaining that a 

change in custody was in the best interests of the children 

based on, among other reasons: lack of supervision while Father 

worked; Father's physical violence towards one of the children;

Father's use of pain medication; and the children's poor 

performance and poor attendance at school.

Following trial, the family court found Mother 

credible and Father not credible. The family court further

found that the issue of domestic violence was not litigated in 

the "initial divorce case," Father committed family violence, 

Father was emotionally abusive and used coercive control, 

"Mother's concern that Father abuses prescription medication and 

is unsafe for the Children is credible and valid," and Father 

neglected the children's educational and health needs.

The family court granted Mother's request as to the 

youngest child, concluding it was in that child's best interest 

to relocate with Mother. The family court noted that when the 

proceedings began, the oldest child was a minor but had turned 

18 years old by the time trial ended and moved to another state. 
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The family court also noted the middle child was going to turn 

18 in two months.

On appeal, Father argues (1) res judicata bars 

Mother's abuse claims, and (2) Mother failed to show relocation 

was in the youngest child's best interest. 

Upon careful review of the record and the briefs 

submitted by the parties and having given due consideration to 

the issues raised and the arguments advanced, we resolve the 

points of error as discussed below, and affirm. 

(1) In asserting claim preclusion, Father contends 

"[i]f Mother desired for her allegations of abuse to be raised 

and considered by the Court prior to having their divorce 

finalized, she should - and could - have raised them at the 

divorce trial in August 2019" and in her motions to reconsider. 

Res judicata, or claim preclusion, "prohibits a party 

from relitigating a previously adjudicated cause of action." 

Bremer v. Weeks, 104 Hawai‘i 43, 53, 85 P.3d 150, 160 (2004) 

(citation omitted). But, res judicata appears less constraining 

when a court considers the best interest of the child factors 

while modifying a custody order. See generally, Tumaneng v. 

Tumaneng, 138 Hawai‘i 468, 473, 474, 382 P.3d 280, 285, 286 

(2016) (allowing evidence of pre-decree family violence to be 

brought forth in a custody modification hearing). 
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Under Hawaiʻi Revised Statutes (HRS) § 571-46 (2018),

the family court considers the best interest of the child when 

making a custody award, and any custody award is subject to 

further order by the court. HRS § 571-46(a)(6) ("Any custody 

award shall be subject to modification or change whenever the 

best interests of the child require or justify the modification 

or change[.]"); HRS § 571-46(a) ("In actions for divorce . . . 

or any other proceeding where there is at issue a dispute as to 

the custody of a minor child, the court . . . may make an order 

for the custody of the minor child as may seem necessary or 

proper.").

In every proceeding where the custody of a child is at 

issue, "a determination by the court that family violence has 

been committed by a parent raises a rebuttable presumption that 

it is detrimental to the child and not in the best interest of 

the child to be placed in sole custody, joint legal custody, or 

joint physical custody with the perpetrator of family violence." 

HRS § 571-46(a)(9). And the family court is required to 

consider "[a]ny history of sexual or physical abuse of a child 

by a parent[.]" HRS § 571-46(b)(1).

Here, the family court found the "issue of domestic 

violence was not litigated during the initial divorce case." 

Father does not challenge this finding in his points of error. 

Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(4).
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The family court also found Father committed domestic 

violence and sexual violence against Mother, and committed 

domestic abuse against the oldest child who was still a minor at 

the start of trial. The family court also determined Father 

committed family violence. Father does not challenge these 

findings in his points of error. HRAP Rule 28(b)(4). 

Under these circumstances, the family court properly 

considered evidence of violence in determining the best 

interests of the children pursuant to HRS § 571-46, and claim 

preclusion did not bar the consideration of such evidence. 

(2) Father next contends the family court "was clearly 

erroneous and also abused its discretion in allowing [the 

youngest child] to relocate with Mother because Mother did not 

meet her burden of proving that the relocation was in [the 

youngest child]'s best interests." (Formatting altered.) 

HRS § 571-46 sets forth the "[c]riteria and procedure 

in awarding custody and visitation," and "Hawai‘i courts have 

consistently adhered to the best interests of the child standard 

as paramount when considering the issue of custody." HRS § 571-

46 (emphasis omitted); Fisher v. Fisher, 111 Hawai‘i 41, 50, 137 

P.3d 355, 364 (2006). "In doing so, the family court is granted 

broad discretion to weigh the various factors involved, with no 

single factor being given presumptive paramount weight, in 

determining whether the standard has been met." Id. 
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Here, the family court methodically evaluated the 16 

factors listed in HRS § 571-46(b), with 12 factors weighing in 

Mother's favor, one factor weighing in Father's favor, and the 

other three factors being inapplicable or not clearly in either 

party's favor.

As to the factors in Mother's favor, the family court 

found Father committed physical violence against the oldest 

child; Father was emotionally abusive and coercively 

controlling; Father neglected the children's educational, 

emotional, and health needs; Father did not support the 

children's relationship with Mother; Mother did not abandon the 

children but was escaping domestic violence; Mother's concern 

about children's safety due to father's use of pain medication 

was credible; Mother's claim that Father made visitation 

difficult was credible, and Mother demonstrated she was willing 

to consider the needs of the children ahead of her own.

The family court found Mother credible and, thus, 

Mother's testimony provided sufficient evidence to support these 

findings. "It is well-settled 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 (citation 

omitted). 
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As to relocation in particular, the appointed custody 

fact finder in this case testified the youngest child "is bright 

and that the educational opportunit[ies] in Connecticut [are] 

substantially better than [Hawaiʻi]." He further testified it 

was his opinion the youngest child "would do well overall and 

thrive in Connecticut." 

Because the family court considered the factors 

outlined in HRS § 571-46(b), assessed the credibility of 

witnesses, and accorded weight to certain witnesses over others, 

the family court did not abuse its discretion in determining it 

was in the youngest child's best interest to relocate to 

Connecticut to live with Mother. See Fisher, 111 Hawai‘i at 50-

51, 137 P.3d at 364-65 ("Inasmuch as the family court accorded 

weight to certain witnesses over others and those witnesses 

provided evidence that the relocation would benefit the 

children, the ICA did not err in upholding the family court's 

findings and conclusions regarding the best interests of the 

children."). 

Based on the foregoing, we affirm the family court's 

April 17, 2023 "Decision and Order Following Trial re: Child 
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Custody, Timesharing, Child Support, Child Related Expenses and 

Fees[.]"

DATED: Honolulu, Hawai‘i, September 27, 2024.

On the briefs:

Rosa Flores,

for Plaintiff-Appellant.

David B. Leas,

for Defendant-Appellee.

/s/ Katherine G. Leonard

Acting Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge