Doe v. Doe

• Decision Date: 18 April 2002
• Docket Number: No. 23584.,23584.
• Parties: John DOE, Petitioner-Appellee, v. Jane DOE, Respondent-Appellant.
• Court: Hawaii Supreme Court

44 P.3d 1085

98 Haw. 144

John DOE, Petitioner-Appellee, v. Jane DOE, Respondent-Appellant.

No. 23584.

Supreme Court of Hawai`i.

April 18, 2002.

Paul A. Lynch and Steven J. Kim, Honolulu, (Lynch Ichida Thompson & Kim), for respondent-appellant.

Robert M. Harris, Honolulu, and Darren L. Wu, for petitioner-appellee.

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

Opinion of the Court by ACOBA, J.

We hold that, in a child custody proceeding, where the best interests of the child are paramount, the family court of the first circuit (the court)¹ abused its discretion, under the circumstances, when it denied the Hawai`i Family Court Rule (HFCR) Rule 59(a) (2000) motion of Respondent-Appellant Jane Doe (Mother)² requesting that additional testimony be taken subsequent to the termination of a custody proceeding limited to three hours.

Mother appeals from the following orders of the court: (1) the May 22, 2000 findings of fact, conclusions of law, and order and (2) the June 24, 2000 order denying her motion for new trial, reconsideration, and/or relief from the default judgment. The court orders resulted in confirming sole legal and physical custody of Child in Petitioner-Appellee John Doe (Father) with visitation rights to Mother. For the reasons stated herein, we affirm the denial of her motion to set aside the prior default judgment, but vacate the aforesaid findings of fact, conclusions of law, and order and the order denying her motion for new trial as they pertain to Mother's alternative motion for award of custody to her, and remand for further proceedings.

I.

According to Mother, she and Father became romantically involved in November 1994. In August 1995, Mother became pregnant, and Child was born to Mother and Father on May 15, 1996. The three lived together in Father's home for two-and-a-half years in Honolulu. Father worked in the construction industry, and Mother owned a bridal shop. In October 1998, Mother moved to reside with her friend, Kim Barnes, taking Child with her. On December 25, 1998, Mother left the state, saying she was taking Child with her on a two-week visit with her brother in Texas; however, they did not return.

On January 6, 1999, as a result of Child's disappearance, Father filed a petition to establish his paternity of Child and asked for "joint care, custody[,] and control of the subject child" by Father and Mother. The petition and a summons for Mother were delivered to Mother's bridal shop by a process server on January 26, 1999. The documents were received by an employee of the bridal shop. Mother did not respond. Mother testified that she did not learn of the paternity action until January or February of 1999, when she contacted the shop. She explained that she believed the paternity action only involved a blood test.

Mother first contacted Father in "January 1999" from her father's home in Montana. Father made an unsuccessful attempt to serve Mother in Montana using a process server there. On February 15, 1999, Mother went to Bali, remaining there until approximately February 15, 2000, when she went to Canada.

On March 3, 1999, Father filed a motion for entry of default, or, in the alternative, for an order for service by publication of the paternity petition and for sole legal custody of Child, with reasonable visitation rights to Mother. The court granted publication of the notice, and the order granting publication was filed on March 5, 1999.

The notice was published in the Honolulu Advertiser and stated, inter alia, that (1) Father "should be adjudged the natural father of [Child]," (2) he "should be awarded sole legal and physical custody of [Child], subject to [Mother]'s rights of reasonable visitation," and (3) a hearing would be conducted on May 20, 1999.

Mother did not respond or appear at the hearing on May 20, 1999, and the court entered default judgment against her. Father did not hear from Mother until she called him collect on May 23, 1999 from Perth, Australia. In this phone call, Father said he would "give [Mother] anything [she] want[ed] if [she would] just bring [Child] back because. . . [he had] documents for custody." According to Father, Mother "said[,] `[N]o, I'm not coming back and don't try to find me.'" Father did not inform Mother that he had been granted sole physical and legal custody of Child. Judgment was entered on June 23, 1999, adjudging Father the father of Child, granting Father "sole legal and sole physical care, custody[,] and control of the subject child," and denying Mother visitation until further order of the court.

Father subsequently applied for services with, inter alia, the Missing Children's Society of Canada, and, by February 2000, it had located Mother and Child in Calgary. In a Hague Convention³ proceeding in Canada, the Canadian court (1) found that Mother had wrongfully retained Child within the meaning of the Hague Convention, (2) ordered Mother and Child back to Hawai`i, (3) required that Father consent to a restraining order in favor of Mother, and (4) ordered joint physical custody with supervised visitation rights for Father until determination by a court in Hawai`i about Mother's claims of abuse.

On March 6, 2000, Mother filed an ex parte motion for approval of the Canadian court's orders. The ex parte motion was granted and the restraining order and the interim custody order were also entered on that day. Mother and Child then returned to Hawai`i.

II.

On March 10, 2000, Father filed a "Motion to Set Aside Interim Custody and Access Order in Order . . . to Prevent [Mother] from Wrongfully Fleeing to the Mainland with the Child and to Set Aside Restraining Order Filed March 6, 2000[.]"

On March 13, 2000, Mother filed a motion to set aside the default judgment or, in the alternative, to award custody of Child and child support to her, and for attorney's fees and costs.

The hearing on the two motions was originally set for April 12, 2000. However, on April 4, Father filed a motion to allow testimony by telephone at the hearing scheduled for April 12, 2000. On April 5, Mother's counsel filed a motion to withdraw as counsel and a motion to continue the evidentiary hearing. On April 10, 2000, the court granted the latter three motions and set the new hearing regarding the two former motions for May 1, 2000. The court also ordered that "[t]rial is to be ½ day."

Father filed his amended witness list as follows:

1. [Father]

2. [Mother]

3. E.A. (Ted) Davis

4. Jesus Navarro

5. Mohala Nunies

6. Kalani [sic] Tuifua

7. Any and all witnesses named and/or called by Defendant, as necessary and appropriate 8. Any and all rebuttal and/or impeachment witnesses, as necessary and appropriate

On April 28, 2000, Mother submitted a six-witness list as follows:

1. [Mother]

2. Kim Barnes

3. Kathy Kerhoulas

4. Mele Poleo

5. Kaulana Watanabe

6. Kaloni Tuifua

7. Any and all witnesses named and/or called by the Defendant, as necessary and appropriate

8. Any and all rebuttal and/or impeachment witnesses, as necessary and appropriate.

On May 1, 2000, the evidentiary hearing on the pending motions was held before the court. The hearing began at 9:04 a.m. and ended at 12:17 p.m. The court heard the testimony of Father and his witnesses, Edward Davis, Mohala Nunies, Jesus Navarro, and Kaloni Tuifua, and of Mother.

Father testified that he was concerned that Mother would take Child and leave the State of Hawai`i. Testifying for Father, Davis, an investigator for the Missing Children's Society of Canada, characterized the relationship between Father and Child as "a good interaction," and "their visits were very father-daughter oriented, very good visits." He said that when Child saw Father, she went right to him.

Father's witness, Nunies, whose husband worked with Father, described Father's relationship with Child as "[h]appily unseparable.... [They are v]ery happy, close, and [Child] seemed like a daddy's little girl." She stated that Father seemed to be a "natural" and a "[v]ery good father" because "he knows how to provide well for his daughter, he knows how to keep her busy and going, playful." Tuifua, whose name appeared on both Father's and Mother's witness lists, but was called by Father, testified that Child was "always a happy girl" and was happy when she was with Father. On cross-examination, Tuifua indicated that, before Mother had left with Child, Mother and Child had spent many holidays with the Tuifua family, which Father had not attended, and that, accordingly, she had not seen Father, Mother, and Child together prior to Christmas 1998.

In contrast to the foregoing testimony, Mother testified that, after one alleged abusive sexual encounter to which Mother did not consent and "cried" throughout, Father "rolled over and punched [a] nightstand" and made "a pretty big hole" in it. Mother described another alleged incident between herself and Father in which they "got into a physical contact and he had his hands around [her] neck and [she] had hair pulled out of [her] head." Mother also related that Father abused the family dog.⁴

Mother recounted that Father used vulgar language in the presence of both her and Child. She explained that "[m]ost of the statements always involved the word `fuck.'"

Father testified that Mother's allegations of physical and mental abuse were "false and total lies" and that he did "nothing to her at all." Father related that he believed Mother made these claims "to try to get [Child] away from [him]." On cross-examination, Father denied using "vulgarities in front of [Child]," swearing at Mother, throwing things at Mother, kicking objects, and breaking furniture.

Mother's counsel indicated that she wanted to call Barnes as her next witness, but asked, "Do we have time to go on? Oh, it's already after 12." The court responded, "Yes, and I think your time is up also," and concluded the proceedings. Both parties submitted written closing arguments. On May 22, 2000, written findings...