90 Hawai'i 76, Hill v. Inouye

• Decision Date: 14 December 1998
• Docket Number: No. 21253,21253
• Parties: 90 Hawai'i 76 Frances L. HILL, Plaintiff-Appellant, v. Kerry K. INOUYE, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 390

976 P.2d 390

90 Hawai'i 76

Frances L. HILL, Plaintiff-Appellant, v. Kerry K. INOUYE, Defendant-Appellee.

No. 21253.

Supreme Court of Hawai'i.

Dec. 14, 1998.

Reconsideration Granted in Part and

Opinion Amended Jan. 13, 1999.

Stephen T. Hioki, on the briefs, Honolulu, for plaintiff-appellant.

Keith S. Agena (Michael K. Tanigawa and Howard K. K. Luke with him on the brief) Honolulu, for defendant-appellee.

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

Opinion of the Court by RAMIL, J.

Plaintiff-Appellant Frances L. Hill appeals from the family court's order, dated December 8, 1997, dissolving the temporary restraining order (TRO) for protection from Defendant-Appellee Kerry K. Inouye and denying Hill's motion for a permanent protective order. Hill argues that the family court incorrectly applied Hawai'i Revised Statutes (HRS) § 586-4 (Supp.1997), which requires a showing of recent acts of abuse. Hill, instead, argues that the family court should have applied HRS § 586-3 (Supp.1997), which does not require a showing of recent acts of abuse. Inouye counters that the family court correctly interpreted and applied HRS § 586-4 and correctly required Hill to show recent acts of abuse.

Because the family court incorrectly interpreted HRS § 586-3 (Supp. 1997), the applicable statute in this case, and because the family court required Hill to show recent acts of abuse, we vacate the family court's order and remand the matter for a new hearing in accordance with HRS § 586-3 (Supp. 1997) and in accordance with this opinion.

I. BACKGROUND

Hill was a patrol officer with the Honolulu Police Department and Inouye was her supervisor when they started to date romantically in August 1995. Hill moved in with Inouye one month later. Within two weeks of living together, according to Hill, Inouye began to display violent behavior. Inouye's behavior continued, and Hill finally moved out of the apartment on January 27, 1997. Although Hill moved out and Inouye began a new relationship, Hill and Inouye continued dating romantically.

On November 4, 1997, Hill visited Inouye's new girlfriend to talk about Inouye. Inouye became angry and threatened Hill that, if she spoke with his girlfriend again, Hill would have to "face the consequences." Interpreting this as a threat, on November 20, 1997, Hill filed for and was granted a TRO for protection. An order to show cause (OSC) hearing was held on December 8, 1997. ¹

At the OSC hearing, Hill asked the family court for an extended three-year protective order against her ex-boyfriend, Inouye. Inouye opposed the motion and asked for mutual restraining orders. The transcript of the OSC hearing provides the following exchange:

Mr. Luke: [T]he last date of the alleged threat to which we vehemently object was in March or April of 1996, which would be--your Honor, almost two years ago--two years and nine--excuse me, one year and nine months ago.

The Court: Well--well--

Mr. Luke: So--

The Court: --this Court's constitutionally bound to make a finding of current event first by statute--although they did not allege a recent act. I must find a recent act. And even without that, I think constitutionally for this Court to make such--these rulings, I need to find--unless the parties stipulate. In this case I need not make that finding.

But you are correct though, recent acts are essential for--

Mr. Luke: That's correct.

The Court: --the Court to grant restraining orders--

Mr. Luke: Appreciate that, your Honor.

The Court: -- regardless of what was happening earlier where they passed a statute saying that petitioner need not show a recent act. I still think I--constitutionally have to show a recent act as a finding. Otherwise, I can't curtail basic civil rights of shelter, home, communication, money, loved ones--

Mr. Luke: Right.

The Court: --based upon an old allegation. Okay. In any case, we still have stip.

Mr. Hioki: And--

Mr. Luke: Can I have one--one moment please, your Honor? I'm sorry.

(Mr. Luke and client conferring).

(Mr. Hioki and client conferring).

Mr. Luke: Your Honor, I apologize. Your Honor, I--I'm going to have to ask the Court to--that we have a contested hearing as far as the restraining order. I'd like to examine the Petitioner.

The Court: Very well.

(Inaudible).... I'm looking at my time here.

Mr. Luke: I'm sorry for that, your Honor.

The Court: All right.

I gave you twenty minutes a piece.

Mr. Luke: Okay.

The Court: Okay.

Please be seated.

Mr. Luke: Thank you.

The Court: Thank you.

Mr. Hioki, you may proceed. Your twenty minutes commences at this time.

Mr. Hioki: Yes, your Honor. Will this be by way of offer of proof, your Honor?

The Court: You can do it any way you want. Go ahead.

Mr. Hioki: Okay. Because we only have twenty minutes, your Honor, I'd like to proceed by offer of proof.

The Court: Proceed.

Mr. Hioki: I'd like the Court to know that the burden of proof is actually on the Respondent under Chapter-- The Court: Yes. By statute.

Mr. Hioki: --586.

The Court: By constitution though clearly your--your client had the burden of proof.

Mr. Hioki: I'm--I'm willing to proceed, your Honor.

The Court: Go ahead.

Mr. Hioki: Your Honor, as an offer of proof I'll--I'll present the following facts for the court;

The Petitioner, Frances Hill, if called to testify would indicate that she's presently employed with the Honolulu Police Department, City and County of Honolulu, State of Hawaii.

She has been employed--so employed for a total number of six years.

Her first term of employment was 1989 to the end of 1991. And she was employed with the police department as a police officer in the patrol division.

She then was re-employed from the time period of November 14th, 1994 to the present time. Again, also as a police officer with the Honolulu Police Department in the patrol division.

She's--began working with the Respondent, Sergeant Inouye in approximately July of 1995, at that time the Respondent was Ms. Hill's supervisor. In particular, he was a Sergeant, she was a patrol officer.

He maintained the supervisory position from July of 1995 until November 1995. They began socializing together in August of 1995. And the Petitioner moved in with the Respondent in September 1995 after they began a--a romantic or intimate relationship.

She eventually moved out January 27th, 1997.

The relationship from the period of September 1995 to January 27th, 1997 was as follows;

Within two weeks of moving [in] together the Respondent demonstrated a violent temper. This would include yelling at the Petitioner, swearing at her, punching and kicking the walls as to leave indentations in the walls, flipping over his dinner plates and spill food on the table, stomping food into the carpet--for example, potato chips. And also destroying her personal effects, such as her son's photograph by crumpling it and throwing it out.

He also destroyed a pair of sunglasses that he had earlier given to her as a gift.

The reasons for such demonstrations of--of temper included times when the Petitioner would be late in making appointment with him, the shoes were not lined up neatly enough for him, she would forget clothes in the washing machine, she wouldn't put away magazines, she would forget to run an errand. And other similar--what she would testify to be minor mistakes, would--would send him into a--to be very upset and angry.

During this time period, he would literally throw her out of the apartment they were living in. Throw her clothes and belongings out on the sidewalk and lawn.

After these arguments, he would then call her up and act as if nothing had happened and they'd get back together again.

Two months after she moved in with the Respondent, the Respondent started to threaten to kill himself with his firearm.

The discussions or arguments concerning using a firearm to cause bodily harm escalated to April of 1996 where--approximately April of 1996 when during an argument the Respondent placed his service pistol to Ms. Hill's head and threatened to shoot her.

He then later took the gun away from her head and put the gun to his own head and threatened to kill himself.

Ms. Hill in past instances where the Petitioner--or strike that--where the Respondent threatened to kill himself, would talk him out of killing himself. And this would eventually calm him down.

The threat--strike that.

The Petitioner, Ms. Hill, felt dependent upon the Respondent during this time period. She felt isolated from other persons. She could only socialize with other persons if he was present and they were only his friends.

If the Petitioner mentioned that she had any male friends or worked with any of the male officers, the--the Defendant would--would get upset and an argument would ensue.

Some of the instances of mistrust by the Respondent of the Petitioner included him interrogating her about where she was coming and going, why, any--strike that.

He would interrogate her on the exact minutes that she would be on an errand or--or at work. He would constantly page her even while she was at work. The pages would come as frequent as within one or two minutes of each other.

At home when they were living together, he'd even hit the redial button to see who she may have called on--on their telephone.

In approximately October 1996, Plaintiff started to get depressed. By December 1996 she decided to leave and moved out January 27th, 1997.

She presently resides at 1323 Kinau Street, apartment number 2, City and County of Honolulu, State of Hawaii.

When she moved out, the Petitioner was afraid to tell the Defendant. Eventually Defendant called her and they agreed to continue dating.

If called to testify, the Petitioner would say that she was dating because in certain respects she still cared for him, in other respects she was very much afraid of him and was trying to negotiate a--a common ground regarding the relationship.

The--the next incident occurred on March 26, 1997,...