NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. CAAP-22-0000512

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

A.S., Plaintiff-Appellee, 

v.

J.S., Defendant-Appellant.

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(CASE NO. 1DV181006111)

SUMMARY DISPOSITION ORDER

(Hiraoka, Presiding Judge, McCullen and Guidry, JJ.)

This appeal arises out of a family court case in which 

the underlying divorce and child custody rulings are not 

challenged on the merits. Defendant-Appellant J.S. appeals 

solely from the Order Re: Defendant's (1) Motion to Sanction 

Attorney David Hayakawa for Rules Violations Filed 9/28/21, and 

(2) Motion for Relief from Judgment Filed 1/20/22 (Order), 

Electronically Filed

Intermediate Court of Appeals

CAAP-22-0000512

07-FEB-2024

08:18 AM

Dkt. 90 SO
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entered on July 29, 2022 by the Family Court of the First 

Circuit (family court).1 

J.S. argues four points of error, which we consider in 

turn:2 

(1) J.S. contends Judge Paek-Harris should have 

recused herself because there arose an appearance of bias due to 

A.S.'s counsel (Hayakawa) "'liking' photographs on the Judge's 

Facebook and Instagram pages during the litigation and 

especially during the divorce trial[.]"3 We review the family 

court's ruling for abuse of discretion. DL v. CL, 146 Hawaiʻi 

328, 336, 463 P.3d 985, 993 (2020). "Decisions on recusal or 

disqualification present perhaps the ultimate test of judicial 

discretion and should thus lie undisturbed absent a showing of 

abuse of that discretion." State v. Ross, 89 Hawaiʻi 371, 375, 

974 P.2d 11, 15 (1998).

Hawaiʻi courts reviewing questions of disqualification 

and recusal apply a two-part analysis. First, with respect to 

1 The Honorable Elizabeth Paek-Harris (Judge Paek-Harris) presided.

2 J.S. also raises, but does not provide any discernible argument 

on the following point of error: "[t]he family court judge erred . . . in 

holding that [J.S.] should have discovered her social media sites, when she 

misled him in her pretrial disclosure." "Points not argued may be deemed 

waived." Hawaiʻi Rules of Appellate Procedure Rule 28(b)(7); see also

Kahoʻohanohano v. Dep't of Hum. Servs., State of Haw., 117 Hawaiʻi 262, 

297 n.37, 178 P.3d 538, 573 n.37 (2008). We therefore need not address this 

point. 

3 Facebook and Instagram are social media platforms on which 

account holders may post messages and photos on their accounts to be shared 

with others.
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judicial disqualification, "courts determine whether the alleged 

bias is covered by [Hawaii Revised Statutes (HRS)] § 601-7, 

which only pertains to cases of affinity or consanguinity, 

financial interest, prior participation, and actual judicial 

bias or prejudice." Kondaur Cap. Corp. v. Matsuyoshi, 

150 Hawaiʻi 1, 10-11, 496 P.3d 479, 488-89 (App. 2021) (quoting 

Ross, 89 Hawai‘i at 377, 974 P.2d at 17). 

Second, with respect to judicial recusal, "if 

HRS § 601-7 does not apply, courts may then turn, if 

appropriate, to the notions of due process . . . in conducting 

the broader inquiry of whether circumstances . . . fairly give 

rise to an appearance of impropriety and . . . reasonably cast 

suspicion on [the judge's] impartiality." Id. at 11, 496 P.3d 

at 489 (cleaned up). "The test for appearance of impropriety is 

whether the conduct would create in reasonable minds a 

perception that the judge's ability to carry out judicial 

responsibilities with integrity, impartiality and competence is 

impaired." Id. at 21, 496 P.3d at 499 (quoting Off. of 

Disciplinary Counsel v. Au, 107 Hawaiʻi 327, 338, 113 P.3d 203, 

214 (2005)). 

Judge Paek-Harris disclosed on record, at the start of 

the trial, the nature of her relationship with Hayakawa as 

follows,

[T]he Court did want to make a disclosure on the 

record that it was from roughly about 2009 to 2010, when I 

was practicing law, I did share offices with Howard Luke. 
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At the time [] Hayakawa was working with Mr. Luke as an 

associate. I was not affiliated with the firm. I was 

simply sharing an office with them. And I never cocounselled any cases with [] Hayakawa. My relationship 

when I shared offices was primarily with Mr. Luke. 

I made this disclosure to Mr. Waki [Fred Waki, J.S.'s 

counsel] at the Rule 16 conference last week Thursday. 

Asked him to consult with [J.S.] to see whether there would 

be any objections. And then on Friday Mr. Waki notified 

the Court that his client would likely not make any 

objections. And I just want to make sure that [J.S.] has 

had an opportunity to talk it over with Mr. Waki and think 

about it and then of course today state any objections, if 

he has any. I have no personal connection to any of the 

parties in this case, no personal knowledge of the facts of 

this case other than what I've reviewed in the record and 

heard from counsel during the Rule 16 conferences. I have 

no financial interest in the result of this case. I'm not 

related to any of the attorneys. Aside from the fact that 

I shared offices with [] Hayakawa during that one-year 

period, I don't have a social relationship with him, 

business or other professional relationship with him or 

Mr. Waki. 

. . . I do not believe that I have any personal bias 

or prejudice for or against a party in this case or the 

attorneys. And I can be fair and impartial in this case.

Following the above disclosure, J.S., who was represented by 

counsel at the time, affirmatively consented to Judge PaekHarris's involvement in this matter. 

We note the absence of record evidence supporting that 

Judge Paek-Harris is herself the owner of the social media 

accounts, or author of the social media posts, at issue. The 

record supports instead that Hayakawa "liked" social media posts 

on publicly accessible social media accounts belonging to 

Judge Paek-Harris's husband. J.S. does not challenge the 

numerous findings of fact about the absence of any evidence 

demonstrating an actual conflict. Unchallenged findings of fact 
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are binding on appeal. See State v. Rodrigues, 145 Hawaiʻi 487, 

494, 454 P.3d 428, 435 (2019).

"[A] judge is duty-bound not to withdraw where the 

circumstances do not fairly give rise to an appearance of 

impropriety and do not reasonably cast suspicion on his [or her] 

impartiality." Kondaur, 150 Hawaiʻi at 22, 496 P.3d at 500 

(quoting Ross, 89 Hawaiʻi at 377, 974 P.2d at 17) (cleaned up) 

(emphasis in original). We conclude that Judge Paek-Harris did 

not abuse her discretion by not disqualifying or recusing 

herself from this case. 

(2) J.S. contends that the family court erred by 

"failing to disqualify" Hayakawa for "liking" photographs on 

Judge Paek-Harris's social media accounts during the litigation. 

This argument is factually inaccurate because, as explained 

supra, the referenced social media accounts and posts belonged 

to Judge Paek-Harris's husband, not to Judge Paek-Harris. 

"The disqualification of an attorney is a matter which 

rests within the sound discretion of the court." Boyd v. Trent, 

287 A.D.2d 475, 476 (N.Y. 2001) (citation omitted); see also 

Davis v. Wholesale Motors, Inc., 86 Hawaiʻi 405, 425, 949 P.2d 

1026, 1046 (App. 1997) (reviewing denial of motion to disqualify 

attorney under the abuse of discretion standard). We conclude, 

on this record, that the family court did not abuse its 
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discretion in denying J.S.'s request for the disqualification of 

Hayakawa. 

(3) J.S. contends that the family court erred because 

Judge Paek-Harris used her own personal knowledge to rule on his 

Motion for Relief From Judgment. J.S.'s contention lacks merit. 

"The jurist requested to recuse himself [or herself] is the most 

capable to determine those factors . . . which would bear upon 

his or her capability to maintain the impartiality that each 

matter must receive." TSA Int'l Ltd. v. Shimizu Corp., 

92 Hawaiʻi 243, 252, 990 P.2d 713, 722 (1999) (cleaned up). We 

conclude that Judge Paek-Harris did not abuse her discretion by 

considering personal facts that were directly relevant, and 

applying these facts to the objective disqualification and 

recusal standard.

(4) J.S. contends that Judge Paek-Harris "held no 

evidentiary hearing on the issue [of disqualification or 

recusal] and just denied the allegation without further hearing, 

apparently based upon her own personal knowledge." J.S.'s 

contention is factually incorrect. On March 17, 2022, the 

family court held a hearing on J.S.'s Motion for Relief From 

Judgment. The family court heard J.S.'s allegations, and 

considered the admissible evidence, in support of J.S.'s motion 

prior to issuing its Order. 
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For the foregoing reasons, the Family Court of the 

First Circuit's Order Re: Defendant's (1) Motion to Sanction 

Attorney David Hayakawa for Rules Violations Filed 9/8/21, and

(2) Motion for Relief from Judgment Filed 1/20/22, entered on 

July 29, 2022, is affirmed. 

DATED: Honolulu, Hawai‘i, February 7, 2024.

On the briefs:

Earle A. Partington,

for Defendant-Appellant.

David M. Hayakawa,

for Plaintiff-Appellee.

/s/ Keith K. Hiraoka

Presiding Judge

/s/ Sonja M.P. McCullen

Associate Judge

/s/ Kimberly T. Guidry

Associate Judge