NB v. GA, s. CAAP–13–0000171

Decision Date23 May 2014
Docket NumberNos. CAAP–13–0000171,CAAP–13–0001118.,s. CAAP–13–0000171
Citation329 P.3d 341,133 Hawai'i 436
Parties NB, Plaintiff–Appellant, v. GA, Defendant–Appellee, and Child Support Enforcement Agency, State of Hawaii, Defendant.
CourtHawaii Court of Appeals

Huilin Dong, Honolulu, on the briefs, for PlaintiffAppellant.

Michael A. Glenn, on the briefs, for DefendantAppellee.

NAKAMURA, C.J., FUJISE and REIFURTH, JJ.

Opinion of the Court by REIFURTH, J.

In this consolidated appeal, PlaintiffAppellant NB ("Father") appeals from (1) the Order Setting Aside Hearing Date filed February 19, 2013, (2) the Record of Communication Between Courts ("Record of Communication") filed February 19, 2013, and (3) the Order Denying Motion for Relief from Orders/Stay of Orders filed May 23, 2013 in the Family Court of the First Circuit ("Family Court")1 , in which the Family Court declined to exercise jurisdiction over the dispute between Father and GA ("Mother") over custody of their daughter ("Daughter"). Father challenges certain findings of fact ("FOF") and conclusions of law ("COL") in the Findings of Fact and Conclusions of Law issued by the Family Court on May 28, 2013 ("FOF/COL").

We vacate that portion of the Record of Communication stating that "Hawaii declines jurisdiction[,]" as well as the FOF/COL. We instruct the Family Court to defer ruling on Father's previous motions, pending a determination as to whether it is more appropriate for Florida to exercise jurisdiction pursuant to Hawaii Revised Statutes ("HRS") § 583A–207.

I. BACKGROUND

Daughter was born on August 31, 2004 in California. Father, Mother, and Daughter apparently lived in Hawai‘i for some period of time between November 2005 and August 2007. On August 20, 2007, Father filed a Petition for Paternity or for Custody, Visitation and Support Orders After Voluntary Establishment of Paternity ("Petition for Paternity"). The petition contended that Daughter was then living in Honolulu with both Mother and Father. That claim notwithstanding, the related Affidavit of Serving Officer Without the State of Hawaii stated that Mother was served with a copy of the petition at an address in Miami Beach, Florida.

Mother, appearing by telephone, Father, and their respective attorneys were present at a November 1, 2007 return date hearing on the Petition for Paternity. On November 13, 2007, the Family Court entered a Stipulated Judgment of Paternity.2 Legal custody of Daughter was awarded to Mother and Father jointly, and the issue of physical custody was reserved for trial. Prior to the scheduled trial, Father and Mother resolved physical custody via stipulation on January 3, 2008 ("Stipulated Joint Custody Order"), with Daughter to spend some holidays and two months each summer with Father.3

On March 13, 2009, Father filed a Motion for Relief After Judgment or Order and Declaration, requesting sole physical custody of Daughter. Father subsequently filed an Amended Motion for Relief After Judgment or Order and Declaration on May 7, 2009. Father, however., withdrew the motions on June 22, 2009, stating that Mother had not been served with the motions.

More than three years passed and, on August 8, 2012, Father filed an Ex Parte Motion for an Order Granting Plaintiff Temporary Sole Custody of His Minor Child or in the Alternative to Shorten the Time For Hearing Plaintiff's Motion for Relief After Judgment or Order and Declaration, which was denied. On August 13, 2012, Father filed another Motion for Relief After Judgment or Order and Declaration ("Motion for Sole Custody"), in which he requested sole physical and legal custody of Daughter. The declaration accompanying the motion appeared to imply, without expressly stating, that, at the time of the filing, Daughter was in Hawai‘i and living with Father. On August 23, 2012, Father submitted another Ex Parte Motion for an Order Granting Plaintiff Temporary Sole Custody of His Minor Child. On August 28, 2012, the Family Court granted Father's ex parte motion giving him temporary sole physical and legal custody, and ordered a hearing on September 27, 2012.

On September 13, 2012, Michael A. Glenn entered a special appearance of counsel on behalf of Mother, in order to contest the Family Court's jurisdiction. On September 17, 2012, Glenn submitted an "Order Setting Hearing," dated September 13, 2012, from the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida ("Florida court"). According to the order, Mother had filed an emergency verified petition to domesticate and enforce out of state custody agreement ("Emergency Verified Petition") in the Florida court.4

On September 27, 2012, the Family Court stayed the proceedings in Hawai‘i, pending communication between the Family Court and the Florida court. The September 27, 2012 hearing was postponed until the originally scheduled December 6, 2012 hearing on Father's Motion for Sole Custody, and then again until February 28, 2013.

The Family Court held a telephone conference call with the Florida court on February 7, 2013, at 12:00 p.m. ET, with the call transcribed by a stenographer in Florida. According to the transcription, also present on the conference call were Grant Gisondo, an attorney for Mother, and Jason Brodie, an attorney for Father located in Florida. Father's Florida attorney objected to the fact that he, Father, and Father's Hawai‘i attorney had received no notice of the conference setting; and that neither Father nor his Hawai‘i attorney were present for the call because the Hawai‘i courthouse was not open. Counsel stated that "my client wanted to be able to present evidence and testimony and legal argument, as he's entitled to."

The Florida court responded:

"This conference was set up and we had a hearing the other day. You were notified of that. If you had ... wanted those parties to also be available, they would either be in this courtroom or you could have set it up on a proper telephonic conference situation, but as it is, this has been a previously-set hearing...."

The Florida court stated that it was the home state of the child under the Uniform Child Custody Jurisdiction and Enforcement Act ("Uniform Act") and that on "the issue of forum non conveniens," the best place for jurisdiction was Florida. The Florida court suggested that the Family Court decline jurisdiction and the Family Court agreed. The Florida court stated that it would make "some determination [of] what's in the best interest of this child" with regard to staying with her schooling in Hawai‘i. Mr. Gisondo made an oral motion for visitation or return of Daughter to Mother. The Florida court advised Mr. Gisondo "to make a formal motion so all the parties can have an opportunity to address this[.]"

On February 19, 2013, the Family Court filed the Record of Communication, stating that "[the Florida court] and [Family Court] agreed that it is appropriate for Florida to have jurisdiction. Hawaii declines jurisdiction." That same day, the Family Court set aside the February 28, 2013 hearing on Father's Motion for Sole Custody.

On March 18, 2013, the Family Court entered an Order to Submit Proposed Findings of Fact and Conclusions of Law, which advised that an appeal had been taken in the case and directed the parties to submit proposed FOF and COL within ten days of the notice of appeal. Mother and Father submitted proposed FOF and COL on April 11, 2013, and April 12, 2013, respectively.

On March 22, 2013, Father filed a "Motion for Relief from the Orders of 2/19/13 Pursuant to [Hawai‘i Family Court Rules] Rule 60 ; In the Alternative, to Stay the Orders of 2/19/13" ("Motion for Relief"). The Family Court held a hearing on the Motion for Relief on May 23, 2013, and denied the motion.

The Family Court entered the FOF/COL on May 28, 2013. FOF 3 provided that "[f]rom 2006 until mid–2012, [Daughter] lived primarily with Mother in Florida, and visited with Father in Hawaii." FOFs 12–15 stated as follows:

12. During the communication between [the Family] Court and the [Florida court], Mother and her Florida counsel, and Father's counsel were present in [Florida court].
13. A recorded transcript was made of this communication.
14. The [Florida court] determined that the State of Florida had jurisdiction over the subject matter and the parties. It was also noted during the communication that most of the evidence is in Florida.
15. [The Family] Court and the [Florida court] determined, and agreed, that Florida is the more appropriate forum. Hawaii declined jurisdiction.

The COLs stated, in relevant part, as follows:

3. Under HRS Section 583A–110(a) [5], a court of this State may communicate with a court in another state concerning a proceeding arising under the [Uniform Act].
....
9. HRS Section 583A–110 was complied with.
10. HRS Section 583A–206 governs simultaneous proceedings.
11. Under HRS Section 583A–206(a), a court of Hawaii shall not exercise its jurisdiction if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with the [Uniform Act].
....
16. Under Section 583A–206(b), if the court of the state having jurisdiction substantially in accordance with the [Uniform Act] does not determine that the court of this State is a more appropriate forum, the court of this State shall dismiss the proceeding.
....
20. [The Family] Court properly and correctly, after communicating with the Florida court, declined jurisdiction in this matter.
II. POINTS OF ERROR

On appeal, Father contends that (1) FOF 3 is clearly-erroneous because Hawai‘i was Daughter's home state from 20052008, when Father filed his paternity petition, and (2) COLs 10–20 are clearly wrong.6

III. STANDARDS OF REVIEW

Whether the family court properly exercised jurisdiction is a question of law which we review de novo. In re Doe, 96 Hawai‘i 272, 283, 30 P.3d 878, 889 (2001).

"A trial court's FOFs are subject to the clearly
...

To continue reading

Request your trial
4 cases
  • MJ v. CR
    • United States
    • Hawaii Court of Appeals
    • 30 de junho de 2021
    ...issues that arise in interstate child custody proceedings and is codified in Hawai‘i in HRS chapter 583A." See NB v. GA, 133 Hawai‘i 436, 440, 329 P.3d 341, 345 (App. 2014). In this regard, HRS § 583A-201 (2006) provides the Family Court has jurisdiction to determine a child's initial custo......
  • State v. Milne
    • United States
    • Hawaii Supreme Court
    • 23 de junho de 2021
    ...family court's decision to decline jurisdiction should be reviewed under the abuse of discretion standard, citing to NB v. GA, 133 Hawai‘i 436, 329 P.3d 341 (App. 2014).7 Milne asserted the family court had actually properly exercised its discretion to dismiss Count 2. In its October 30, 20......
  • Westerdahl v. Boushley, CAAP–14–0000790.
    • United States
    • Hawaii Court of Appeals
    • 8 de julho de 2015
    ...appeal as follows:“A family court's decision to decline jurisdiction is reviewed for abuse of discretion.” NB v. GA, 133 Hawai‘i 436, 444, 329 P.3d 341, 349 (App.2014) (citing Fisher v. Fisher, 111 Hawaii 41, 46, 137 P.3d 355, 360 (2006) ).HRS § 583A–207 (2006) states, in relevant part:(a) ......
  • GP v. LP, CAAP–15–0000348.
    • United States
    • Hawaii Court of Appeals
    • 31 de março de 2016
    ...§§ 583A–101 et seq. The UCCJEA governs jurisdictional issues that arise in interstate child custody proceedings. NB v. GA, 133 Hawai‘i 436, 440, 329 P.3d 341, 345 (App.2014).I. Inconvenient ForumGP argues that the family court erred in finding that Hawai‘i was an inconvenient forum under HR......
1 books & journal articles
  • Happy Birthday, Family Court! 50 Years of Family Law
    • United States
    • Hawaii State Bar Association Hawai’i Bar Journal No. 19-07, July 2015
    • Invalid date
    ...v. Tukimura, 130 Hawai'i 1, 304 P.3d 1182 (2013).59. Doe v. Doe, 120 Hawai'i 149, 202 P.3d 610 (App. 2009).60. NB v. GA, 133 Hawai'i 436, 329 P.3d 341 (App. 2014).61. AC v. AC, 134 Hawai'i 221, 339 P.3d 719 (2014).62. In re Guardianship of Doe, 119 Hawai'i 234, 195 P.3d 701 (App. 2008).63. ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT