AB v. MF

• Decision Date: 28 June 2022
• Docket Number: CAAP-21-0000387
• Parties: AB, Petitioner-Appellant, v. MF, Respondent-Appellee
• Court: Hawaii Court of Appeals

AB, Petitioner-Appellant, v. MF, Respondent-Appellee

No. CAAP-21-0000387

Intermediate Court of Appeals of Hawaii

June 28, 2022

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

Appeal from the Family Court of the Second Circuit (FC-P NO 18-1-0175)

Hayden Aluli, for Petitioner-Appellant

Erin Lea Lowenthal for Respondent-Appellee

Ginoza, Chief Judge, Leonard and Nakasone, JJ.

MEMORANDUM OPINION

This appeal stems from Petitioner-Appellant AB's (Father) November 13, 2019 "Motion for Post-Decree Relief for Sole Custody with Supervised Visitation to Mother" (Motion for Sole Custody) of the parties' minor female child (Child) and March 18, 2021 "Motion to Address Excessive False Allegations and Contempts of Court and Manipulation and Awardment of Petitioner's Attorneys' Fees" (Motion to Address Allegations). Father appeals from the corresponding May 26, 2021 "Written Findings of Facts Conclusions of Law, Decisions and Orders Following Trial" (5/26/21 FOFs/COLs and Order)^[1] entered by the Family Court of the Second Circuit (Family Court) which denied Father's motions.^[2] On appeal, Father contends the Family Court erred by: (1) finding no evidence that Respondent-Appellee MF (Mother) coached or "brainwashed" Child into making child abuse and child molestation allegations; (2) rejecting Father's assertion that Mother, Mother's family, and Mother's counsel are trying to ruin Father's life and keep Child out of his life, and awarding Mother sole legal and physical custody; and (3) finding Mother credible in its 5/26/21 FOFs/COLs and Order where the Family Court previously found Mother not credible. Related to these points of error Father challenges finding of fact (FOF) 1.45(3) and footnotes 65 and 69, FOF 1.45(11), and conclusions of law (COLs) 2.01, 2.03, 2.26, and 2.7.

For the reasons set out below, we affirm.

I. Background

Father and Mother are the natural parents of Child, who was born in 2015. On August 8, 2018, Father filed his Petition for Paternity when Child was three years old requesting, inter alia, joint legal custody, physical custody to Mother with rights of reasonable visitation to Father, and that the Department of Health prepare a new Certificate of Live Birth inserting Father's name as the natural father of Child. On August 28, 2018, Mother filed her Answer to Father's Petition for Paternity and a Cross-Petition on Behalf of Child for Termination of Parental Rights of Petitioner (Cross-Petition). In her Cross-Petition, Mother requested sole legal and physical custody of Child with no visitation to Father and argued, inter alia, that at the time of Child's conception, there were non-consensual sexual relations between Mother and Father. After an evidentiary hearing on October 24, 2018, the Family Court entered its November 15, 2018 Findings of Fact, Conclusions of Law, and Order (Order Re: Mother's Cross-Petition)^[3] denying Mother's Cross-Petition.

On December 6, 2018, the Family Court entered an Expedited Order Regarding Visitation which, inter alia, granted Father supervised visitation and adopted Father's proposal of graduated unsupervised visits with unsupervised overnight visits beginning four months after the entry of the order. Thereafter, Father and Mother had difficulty co-parenting and communicating, such as Father un-enrolling Child from her school without consulting Mother and Mother filing several police reports and temporary restraining orders (TROs) against Father. The record reflects that between April 2019 and October 2019, Mother filed five TROs, four of which were filed on behalf of Child alleging Father sexually or physically abused Child.

On November 13, 2019, Father filed his Motion for Sole Custody. On December 29, 2020, the Family Court granted Father's request to withdraw his counsel and proceed pro se. Self-represented Father then filed his Motion to Address Allegations and after a three day trial, the Family Court entered its 5/26/21 FOFs/COLs and Order. This appeal followed.

II. Standards of Review

Generally, the family court possesses wide discretion in making its decisions and those decisions will not be set aside unless there is a manifest abuse of discretion. Thus, we will not disturb the family court's decision 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.

DL v. CL, 146 Hawai'i 415, 420, 463 P.3d 1072, 1077 (2020) (quoting Brutsch v. Brutsch, 139 Hawai'i 373, 381, 390 P.3d 1260, 1268 (2017)).

It is well established that a family court abuses its discretion where "(1) the family court disregarded rules or principles of law or practice to the substantial detriment of a party litigant; (2) the family court failed to exercise its equitable discretion; or (3) the family court's decision clearly exceeds the bounds of reason."

Id. (quoting Brutsch, 139 Hawai'i at 381, 390 P.3d at 1268).

The appellate court reviews the family court's FOFs under the "clearly erroneous" standard. W.N. v. S.M., 143 Hawai'i 128, 133, 424 P.3d 483, 488 (2018) (citing Waldecker v. O'Scanlon, 137 Hawai'i 460, 466, 375 P.3d 239, 245 (2016)).

A FOF is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made. "Substantial evidence" is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.

Id. (quoting Waldecker, 137 Hawai'i at 466, 375 P.3d at 245). The family court's COLs are reviewed de novo under the right/wrong standard. Id. (citing Waldecker, 137 Hawai'i at 466, 375 P.3d at 245).

III. Discussion

A. Findings on Mother's Credibility

We first address Father's third point of error that the Family Court erred in FOF 1.45(11) by finding Mother credible in its 5/26/21 FOFs/COLs and Order, which contradicts the Family Court's previous finding in its Order Re: Mother's Cross-Petition that Mother is not credible.

The Order Re: Mother's Cross-Petition found, in pertinent part:

1. The parties met and began dating in June 2014. Both were students at the University of Hawaii - Maui Campus at the time.

2. Approximately two (2) weeks into their relationship, the parties began having sexual relations.

3. In or around September 2014, the parties learned that Mother was pregnant with [Child].

6. Father testified that all of the sexual encounters between the parties were consensual. He testified that there was never an occasion on which Mother expressed, in any way, that she did not want to have sex with Father. Father testified that all but one of their encounters occurred at his residence, which he shared with his parents, in his bedroom. That single other occasion was at her residence, which she shared with her parents, in her bedroom. Father testified that Mother drove to Father's house for most of those encounters. The court finds Father's testimony credible.

7. Mother testified that in late July 2014, Father had nonconsensual sex with her. She testified that every single sexual encounter thereafter was non-consensual. Mother testified that between that first non-consensual encounter in late July 2014 and September 25, 2014, the parties had sex one to two times per week. Mother then contradicted herself and testified that the frequency was zero to one time per week. Mother agreed, however, that during that period of time the parties had multiple sexual encounters, and that they occurred at Father's residence in his bedroom.

8. In describing the non-consensual nature of their sexual relationship, Mother testified that sometimes she would simply indicate to him verbally that she was not interested, but he persisted. On other occasions, she testified, Father physically restrained her.

9. [Child] was born in May 2015 following a normal, full-term pregnancy, placing the date of conception sometime between late August 2014 and early September 2014.

16. The court finds that on the issue of sexual assault, Father's testimony is credible and Mother's testimony is not. The court specifically finds not credible Mother's testimony that during the entire period of time in which conception occurred the parties had multiple sexual encounters, all of which were non-consensual. The court cannot find, therefore, that [Child]'s birth was the result of a sexual assault committed by Father on Mother.

(Emphases added.) The 5/26/21 FOFs/COLs and Order found in relevant part:

1.45 At the evidentiary hearings on Father's Motions the court heard for [sic] the following witnesses:

11) [Mother], Mother testified that she had a sexual relationship with Father, mainly nonconsensual, and after she got pregnant their relationship turned rocky Mother testified of the activities she and [Child] like to do . . . Mother also testified that Father had not been a part of his daughter's life, however he did reach out a couple of times, but never followed through with trying to bond with his daughter . . . . Mother also testified about Adverse Child Experiences ("ACES") and noticing something happening (rolling in ball, grinding her teeth, rocking back and forth, saying she does not want to go before visits, becoming withdrawn) to her daughter feel [sic] that it's not in the best interest of her child to have the visits with Father continue until it [sic] can figure it out. She also testified that Father does not have the ability to co-parent or follow the good co-parenting guidelines, as during exchanges she was called names (B-I-T-C-H or asshole) by Father or Father's family as they

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