NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-21-0000677

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MS, Plaintiff-Appellant, 

v.

PP, Defendant-Appellee

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT

(CASE NO. 3DV201000029)

SUMMARY DISPOSITION ORDER

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

Self-represented Plaintiff-Appellant MS (Mother)

appeals from the "Decree Granting Absolute Divorce" (Divorce

Decree) entered by the Family Court of the Third Circuit on

November 9, 2021.1 For the reasons explained below, we affirm.

Mother was married to Defendant-Appellee PP (Father). 

They have four minor Children. Mother filed for divorce in 2020. 

A trial was held. The family court entered findings of fact,

conclusions of law, and a decision on September 27, 2021. The

court decided (among other things):

1 The Honorable Jeffrey A. Hawk presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-21-0000677

01-DEC-2022

11:50 AM

Dkt. 48 SO
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

2. [Father] is awarded sole legal and physical

custody of the minor children, subject to Defendant's [sic]

rights of reasonable visitation as set forth above.[2]

. . . .

7. Counsel for [Mother] shall prepare a Divorce

Decree consistent with these findings, conclusions, and

decision.

Then-counsel for Mother submitted a proposed divorce

decree. Father filed objections and an alternative proposed

divorce decree. The Divorce Decree was entered on November 9,

2021. The family court used Mother's form of the divorce decree,

but made the following changes:

3. Custody of Minor Children.

a) Legal Custody. [Father] is awarded sole legal

custody of the minor children of the parties. [Father]

shall give [Mother] 30 days' advance notice prior to making

any major decision involving the children. JAH

b) Physical custody. [Father] is awarded sole

physical custody of the minor children of the parties[.]

c) For so long as any child is a minor, the

custodial parent shall keep the non-custodial parent

informed of the children's residence address. JAH

The strikeouts were initialed by the family court judge.

Mother, representing herself, filed a timely notice of

appeal. She obtained an extension of time to file the opening

brief, but failed to meet the extended deadline. Mother

requested a second extension of time. We extended the deadline

to May 9, 2022. Mother again failed to meet the deadline. A

"Default of Opening Brief" was entered on May 10, 2022. Mother

filed her opening brief on May 18, 2022, without first setting

aside the default or obtaining another extension of time.

2 The family court had previously concluded:

10. Despite the anxiety of the children, the Court

concludes that Mother shall be awarded visitation with the

minor children as therapeutically driven by the children's

therapists.

(Emphasis added.) 

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Mother's opening brief did not comply with Hawai#i Rules of

Appellate Procedure (HRAP) Rule 28(b), and was not signed by

Mother (as required by HRAP Rule 32(d)).3

(1) Father requests dismissal of Mother's appeal.

However, the Hawai#i Supreme Court instructs that selfrepresented litigants should not be foreclosed from appellate

review "because of failure to conform to requirements of the

procedural rules." Erum v. Llego, 147 Hawai#i 368, 381, 465 P.3d

815, 828 (2020) (citing Morgan v. Plan. Dep't, Cnty. of Kauai,

104 Hawai#i 173, 180-81, 86 P.3d 982, 989-90 (2004)). Under the

circumstances, we decline to dismiss Mother's appeal. We address

Mother's arguments to the extent they can be discerned, because

Hawai#i appellate courts 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 (citing O'Connor v. Diocese of Honolulu, 77

Hawai#i 383, 386, 885 P.2d 361, 364 (1994)). 

(2) Mother argues that the family court violated her

procedural and substantive due process rights by sua sponte

striking provisions from sections 3(a) and 3(c) of her proposed

divorce decree. After a trial, the family court entered findings

of fact, conclusions of law, and a decision, and ordered that

Mother's then-counsel submit a proposed divorce decree. Mother's

former counsel complied. Father objected and filed his own

proposed divorce decree. The family court accepted Mother's

proposed decree, but struck provisions that were inconsistent

with the family court's findings, conclusions, and decision. The

family court was authorized to do so under Rule 23 of the Rules

of the Circuit Courts of the State of Hawai#i. The family court

did not violate Mother's procedural or substantive due process

rights.

3 Mother also filed a reply brief after the applicable deadline

without first obtaining an extension of time or leave for the late filing. 

See HRAP Rule 28(d).

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(3) Mother argues that the Divorce Decree improperly

terminated her parental rights under Hawai#i Revised Statutes

(HRS) § 571-61. The proceeding below was not initiated by a

verified petition filed pursuant to HRS § 571-61(b)(3).4 Mother

initiated the proceeding by filing for a divorce. In divorce

cases the family court is authorized to decide child custody,

visitation, and support under HRS § 571-46. "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)(6) (2018). The family court did not

terminate Mother's parental rights.

(4) Mother argues that the family court erred by

awarding sole legal and physical custody of Children to Father.

[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).

HRS § 571-46 (2018) sets forth the criteria and

procedure for awarding child custody and visitation. The family

court must make a custody decision "according to the best

interests of the child[.]" HRS § 571-46(a)(1). When determining

what constitutes "the best interest of the child" the family

court must consider the sixteen factors set forth in HRS § 571-

46(b). No single factor is given presumptive weight. Fisher,

4 HRS § 571-61(b)(3) (2018) provides, in relevant part:

 

In respect to any proceedings under paragraphs (1) and (2),

the authority to terminate parental rights may be exercised

by the court only when a verified petition, substantially in

the form above prescribed, has been filed by some

responsible adult person on behalf of the child in the

family court of the circuit in which the parent resides or

the child resides or was born and the court has conducted a

hearing of the petition. 

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

111 Hawai#i at 50, 137 P.3d at 364. The family court weighed all

sixteen of the factors in this case in conclusion of law no. 8.

The family court then concluded:

9. Considering all of those factors, and the

evidence and arguments presented by the parties, the Court

concludes that Father has provided the bulk of the care for

the children for the past 19 months, that the care he has

provided is nurturing and appropriate and that Father is

better situated to continue to provide care for the

children. Based on the testimony of the guardian ad litem

in this case, it appears that the relationship with Mother

is damaged and that the children cannot safely return to

Mother at this point. The Court further concludes that

because of the level of conflict between the parties the

best interests of the children will be served by awarding

Father sole legal and physical custody of the children.

Conclusions of law nos. 8 and 9 actually present mixed

questions of fact and law, which we review under the "clearly

erroneous" standard because the family court's conclusions are

dependent on the facts and circumstances of each individual case. 

Est. of Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152

P.3d 504, 523 (2007). A conclusion of law that is supported by

the family court's findings of fact and reflects an application

of the correct rule of law will not be overturned. Id.

Mother argues that the credibility of the witnesses and

the evidence presented at trial should have been weighed in her

favor, rather than in favor of Father. However, "it is not the

province of the appellate court to reassess the credibility of

witnesses or the weight of the evidence, as determined by the

family court[.]" Fisher, 111 Hawai#i at 51, 137 P.3d at 365

(citing In re Doe, 95 Hawai#i 183, 197, 20 P.3d 616, 630 (2001)). 

The family court's findings of fact were supported by substantial

evidence, and are not clearly erroneous. The family court's

conclusions of law reflect an application of the correct rule of

law, HRS § 571-46(b). The family court did not err by awarding

sole legal and physical custody of Children to Father.

(5) We decline to consider the arguments made for the

first time in Mother's reply brief. In re Hawaiian Flour Mills,

Inc., 76 Hawai#i 1, 14 n.5, 868 P.2d 419, 432 n.5 (1994) (holding

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

that arguments raised for the first time in the reply brief on

appeal were deemed waived). 

For the foregoing reasons, the "Decree Granting

Absolute Divorce" entered by the family court on November 9,

2021, is affirmed.

DATED: Honolulu, Hawai#i, December 1, 2022.

On the briefs:

/s/ Keith K. Hiraoka

MS, Presiding Judge

Self-represented PlaintiffAppellant. /s/ Karen T. Nakasone

Associate Judge

William Dean,

for Defendant-Appellee PP. /s/ Derrick H.M. Chan

Associate Judge

6