G.L. v. D.L., 112217 HIICA, CAAP-15-0000485

Docket Nº:CAAP-15-0000485
Party Name:G.L., Plaintiff-Appellee, v. D.L., Defendant-Appellant
Attorney:James A. Stanton, Judge for D.L.
Judge Panel:Leonard and Ginoza, JJ.; and Nakamura, Chief Judge, dissenting
Case Date:November 22, 2017
 
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G.L., Plaintiff-Appellee,

v.

D.L., Defendant-Appellant

No. CAAP-15-0000485

Intermediate Court of Appeals of Hawaii

November 22, 2017

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-D NO. 08-1-3575)

James A. Stanton, Judge for D.L.

Leonard and Ginoza, JJ.; and Nakamura, Chief Judge, dissenting

SUMMARY DISPOSITION ORDER

Defendant-Appellant D.L. (D.L.) appeals from the Family Court of the First Circuit's (Family Court's) Order Denying Defendant's Motion to Set Aside or Vacate (Order Denying 2014 Motion to Set Aside), entered on April 22, 2015, and Order Denying Defendant's Motion for Reconsideration of Order re Defendant's Motion to Set Aside or Vacate, entered on May 26, 2015 (Order Denying 2015 Motion for Reconsideration).1 D.L. also seeks to challenge the Family Court's Order Denying Motion for Post-Decree [Relief filed on] 7/11/2011 (2011 Order Denying DNA Testing), entered on August 2, 2011, and Findings of Fact [(FOFs)] and Conclusions of Law [(COLs)], entered on October 31, 2011.2

In this appeal, D.L. raises several points of error and contends that the Family Court erred when it: (1) denied Defendant's Rule 60(b) Motion for Relief from Judgment Regarding Paternity and Child Support, which was filed on July 30, 2010 (2010 Motion for Relief); (2) denied the Motion and Affidavit for Post-Decree Relief, which D.L. filed on July 11, 2011 (2011 Motion for DNA Testing); (3) denied Defendant's Motion to Set Aside or Vacate, in Part, Divorce Decree (with Children) Filed April 6, 2009 (2014 Motion to Set Aside); (4) denied Defendant's Motion to Reconsider Order Denying Motion to Set Aside or Vacate Filed April 22, 2015 (2015 Motion for Reconsideration); and (5) entered FOF 2, and COLs 6, 10, 15 and 16, which related to D.L.'s 2010 Motion for Relief and 2011 Motion for DNA Testing.

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve D.L.'s points of error as follows:

On April 6, 2009, the Family Court entered a Divorce Decree (with Children) (Decree) granting Plaintiff-Appellee G.L. (G.L.) a divorce from D.L., and awarding physical and legal custody of two children to G.L., with D.L. to have reasonable visitation to be arranged by the parties, and D.L. to pay child support to G.L.3

Thereafter, D.L. filed the 2010 Motion for Relief seeking relief from the Decree regarding paternity and child support on the grounds that he now believed, and confirmed with diagnostic testing, that the children were not his biological children, but instead may have been the result of an affair that G.L. purportedly had been having with a co-worker. D.L. argued in essence that, as the children were very young, it would be in their best interests to resolve the issue, so they could grow up knowing the identity of their actual father. After various continuances, shortly before a trial was to be held on paternity, D.L. filed the 2011 Motion for DNA Testing, which was denied.4The trial was taken off the calendar, the Family Court entered the 2011 Order Denying DNA Testing, and D.L. filed an appeal (First Appeal). This court dismissed D.L.'s appeal for lack of appellate jurisdiction because the 2011 Order Denying DNA Testing was not a final appealable order, as it did not finally determine the proceedings on the 2010 Motion for Relief.

Upon the dismissal of the First Appeal, however, D.L. did not seek the entry of an appealable order on the 2010 Motion for Relief. Instead, in the 2014 Motion to Set Aside, D.L. sought relief pursuant to, inter alia, Hawai'i Family Court Rules (HFCR) Rule 60(b) (4), 5 arguing that, to the extent that it required personal jurisdiction over D.L., the Decree should be set aside because service of process on D.L. was defective. D.L. argued that the purported service of the Complaint for Divorce and the accompanying summons while he was in the Philippines was not authorized by rule or statute and, therefore, the Family Court lacked jurisdiction over his person and should have declared the Decree to be void to the extent that jurisdiction over his person was required. The Family Court denied the 2014 Motion to Set Aside on the grounds that the issue was waived when D.L. submitted the 2010 Motion for Relief without raising the service issue.

Hawai'i courts have long held that a judgment is void if the court that rendered it "lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law." Wagner v. World Botanical Gardens, Inc., 126 Hawai'i 190, 195, 268 P.3d 443, 448 (App. 2011) (internal quotation marks omitted) (citing In re Genesys Data Techs., Inc., 95 Hawai'i 33, 38, 18 P.3d 895, 900 (2001); Citicorp Mortq., Inc. v. Bartolome, 94 Hawai'i 422, 430, 16 P.3d 827, 835 (App. 2000). In addition, "[t]he determination of whether a judgment is void is not a discretionary issue." Id. (internal quotation marks omitted) (citinq In re Hana Ranch Co., 3 Haw.App. 141, 146, 642 P.2d 938, 941 (1982); see also 12 James Wm. Moore et al., Moore's Federal Practice § 60.44 [5] [a] at 60-163 (3d ed. 2011)). Thus, we...

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