80 Hawai'i 225, Bettencourt v. Bettencourt

• Decision Date: 13 December 1995
• Docket Number: No. 18174,18174
• Citation: 80 Hawaii 225,909 P.2d 553
• Parties: 80 Hawai'i 225 -Appellee, v. Calvin G. BETTENCOURT, Jr., Defendant-Appellant. Supreme Court of Hawai'i
• Court: Hawaii Supreme Court

Page 553

909 P.2d 553

80 Hawai'i 225

Ruby Ann BETTENCOURT, nka Ruby Ann Richardson, Plaintiff-Appellee, v. Calvin G. BETTENCOURT, Jr., Defendant-Appellant.

No. 18174.

Supreme Court of Hawai'i.

Dec. 13, 1995.

Lionel T. Oki, on the briefs, Waianae, for defendant-appellant.

Ronald P. Tongg of Tongg & Tongg, on the briefs, Honolulu, for plaintiff-appellee.

MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

MOON, Chief Justice.

Defendant-appellant Calvin G. Bettencourt, Jr. (appellant) appeals from the family court's August 6, 1993 order requiring, inter alia, that appellant pay attorney's fees incurred by plaintiff-appellee Ruby Ann Bettencourt, nka Ruby Ann Richardson (appellee), as a result of appellant's failure to follow court rules [hereinafter, the sanction order]. Appellant also appeals from the family court's May 23, 1994 order, wherein the court held that the sanction order "currently stands and is enforceable" [hereinafter, the May 23, 1994 order]. Because we have no basis upon which to review the sanction order, we dismiss that portion of appellant's appeal, and we affirm the May 23, 1994 order. Additionally, we are referring the supreme court record of this case to the Office of Disciplinary Counsel to determine whether the lack of professionalism demonstrated by appellant's counsel in this case violates the Hawai'i Rules of Professional Conduct (HRPC).

I. BACKGROUND

Appellant and appellee [hereinafter, the Bettencourts] were divorced in 1984. On May 12, 1993, appellee sought, via motion, a modification of court-ordered child support payments based upon a material change in the circumstances of the parties. The matter was scheduled for a "Motion to Set Conference" on July 28, 1993. Appellant apparently requested a half-day hearing, arguing that he intended to present witnesses to show that (1) the Bettencourts' daughter was not sincere in her desire to attend college, but had been put up to it by her mother as a ploy to continue her child support, and (2) the $1,500 per month income imputed to appellee should more properly be $2,500 per month.

Judge Allene Suemori presided over the motion to set conference and set the matter of child support for hearing on the expedited trial calendar for August 6, 1993, which was reflected in her order filed July 28, 1993. Appellant's counsel, Lionel T. Oki, signed the July 28 order, approving it as to form. At the August 6 hearing, Oki attempted to call non-party witnesses, although he had not submitted a witness list and the procedures for expedited hearings allow only party witnesses. Judge Suemori, apparently after a contentious exchange with Oki, terminated the hearing and ordered that the case be set for (1) pre-trial conference on August 26, 1993, (2) calendar call on September 3, 1993, and (3) trial for the week of September 13, 1993. The judge further ordered appellant to pay appellee $360 "towards [appellee's] attorney's fees for resetting this matter on the trial calendar."

On August 26, 1993, appellant filed a motion for reconsideration of Judge Suemori's sanction order, and the matter was set for hearing on September 7, 1993. At appellant's request, the September 7 hearing date was continued to October 8, 1993. On that date, appellant orally moved for a continuance of the hearing. Although the motion was granted, the hearing was not continued to a date certain but "to [be] moved on by either party via motion."

On February 7, 1994, appellee filed a motion for an order to show cause, seeking, inter alia, a hearing on "why [appellant's motion for reconsideration], filed herein on August 26, 1993, should not come on for hearing, or in the alternative, be dismissed with prejudice." The motion came on for hearing on February 28, 1994, before then-district family judge Victoria Marks. At the hearing, Judge Marks indicated that she was disinclined to consider the issue of the sanction order because it would be more appropriately heard by Judge Suemori. Appellee's counsel persisted in his requests that the matter be calendared, noting that "our feeling, anyway, is that they don't want to bring it up because it's going to mean if they lose they have to pay the three hundred sixty dollars. I wanted to bring this to a head. My client really wants to get on with her life." The matter regarding the sanction order was then set for hearing on May 9, 1994, before Judge Suemori.

The May 9 hearing was continued to May 16, 1994, due to Judge Suemori's illness. Oki was ill on May 16 and called appellee's counsel, who agreed to continue the hearing to May 23, 1994. However, Oki did not appear at the May 23 hearing at which district family judge Linda Luke was presiding. At the time of the hearing, Judge Luke stated: "I have not seen any order to the contrary that either reconsiders or alters that order of August 6, 1993 so that it should be enforceable forthwith." Thus, the May 23, 1994 written order stated that "Judge Suemori's order of August 6, 1993 awarding [appellee] $360 in attorney's fees currently stands and is enforceable."

On June 13, 1994, appellant filed a motion for reconsideration of the May 23, 1994 order, which was denied without hearing, and this appeal followed.

II. DISCUSSION

A. Appellant's Opening Brief

Preliminarily, it appears both necessary and appropriate that we address the form and content of appellant's opening brief. Oki was granted five extensions of time in which to file the opening brief on behalf of appellant, the last of which was embodied in an order for Oki to show cause why he failed to file the opening brief in a timely manner. Notwithstanding the five extensions, appellant's brief in almost no respect conforms to the requirements of Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b), which we have held is, alone, sufficient basis to affirm the judgment of the circuit court. See, e.g., O'Connor v. Diocese of Honolulu, 77 Hawai'i 383, 385, 885 P.2d 361, 363, reconsideration denied, 77 Hawai'i 489, 889 P.2d 66 (1994). First, HRAP 28(a) provides in pertinent part that, "[e]xcept after leave granted, the clerk will not receive an opening or answering brief of more than 35 typewritten pages[.]" Appellant's brief actually totals thirty-seven pages. Although the last numbered page of the brief reflects the number "35," the brief contains two pages, with different text, that are designated as page "20" and an unnumbered page after the last page numbered 35. Were it not for the "creative" page numbering technique, the opening brief would not have been accepted for filing.

Second, HRAP Rule 28(b)(3) requires that an opening brief contain

[a] concise statement of the case, containing the facts material to consideration of the questions and points presented, with record references supporting each statement of fact or mention of trial proceedings. In presenting those material facts[,] all supporting and contradictory evidence shall be presented in summary fashion and with appropriate record references. There shall be appended to the brief a copy of the findings of fact and conclusions of law, or opinion or decision, if any, unless otherwise ordered by the court.

(Emphases added.) The opening brief filed by Oki on appellant's behalf does not contain a single citation to the record, nor does it include copies of the decisions from which the appeal is taken.

Third, appellant's statement of points on appeal similarly fails to comport with the requirements of HRAP Rule 28(b)(4), which provides in relevant part that "[e]ach point shall refer to the alleged error committed by the court or agency upon which appellant intends to rely. The point shall show where in the record the alleged error occurred and where it was objected to[.]"

Finally, as vexatious as the aforementioned departures from HRAP Rule 28(b) are, it is the failure to heed HRAP Rule 28(b)(7) that most warrants comment in this case. Rather than "exhibiting clearly the points of fact and of law being presented, citing the authorities relied upon," HRAP Rule 28(b)(7), the argument section of appellant's brief excoriates individual family court judges personally in a scathingly contemptuous diatribe that has no place in appellate argument.

Despite the existence of arguably applicable precedent, ¹ the only "point of law" cited and argued by appellant was that the family court, by imposing sanctions, failed to give proper consideration to the "Aloha Spirit," and thereby violated HRS § 5-7.5(b) (1993), which provides in pertinent part:

In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, ... judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the "Aloha Spirit."

The remainder of the argument section consists of lengthy quotations from the hearing transcript ² and Oki's running sarcastic commentary, carried on in footnotes throughout the opening brief. For example, where the court commented that calling non-party witnesses without a witness list was an unfair surprise, the comment was footnoted with the remark that

If this is not an example of an out-an-out [sic] abuse of power, then the author [Oki] does not what [sic] is. At this point, the only surprise that played in appellant's counsel's thought was "how'd she ever become a judge!" Followed by "why am I putting up with this b-------?" ODC, baby!

(Bold in original.) The judge apparently afforded Oki one last chance to provide a "complete answer" to her repeated questions about how many witnesses he planned to call and how long he expected to take. Again commenting in a footnote, Oki states:

Discretion at this point prevents the author [Oki] to [sic] describe Appellant counsel's thoughts were [sic] at this point. But, the appellate courts being the overseer of the lower courts, if counsel saw fit at that time to provide the trial judge with the sort of ...