Hamilton ex rel. Lethem v. Lethem

• Decision Date: 14 October 2008
• Docket Number: No. 27580.,27580.
• Citation: 193 P.3d 839,119 Hawai'i 1
• Parties: Lily E. HAMILTON, on behalf of Amber J. LETHEM, a minor, Respondent/Plaintiff-Appellee. v. Chris L. LETHEM, Petitioner/Defendant-Appellant.
• Court: Hawaii Supreme Court

193 P.3d 839

119 Hawai'i 1

Lily E. HAMILTON, on behalf of Amber J. LETHEM, a minor, Respondent/Plaintiff-Appellee. v. Chris L. LETHEM, Petitioner/Defendant-Appellant.

No. 27580.

Supreme Court of Hawai`i.

October 14, 2008.

Robert H. Thomas (of Damon Key Leong Kupchak Hastert), Honolulu, for petitioner/defendant-appellant.

Stephen T. Hioki, for respondent/plaintiff-appellee, on the record.

MOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ.; and ACOBA, J., concurring separately.

Opinion of the Court by MOON, C.J.

On September 23, 2008, this court accepted a timely application for a writ of certiorari, filed on August 14, 2008, by petitioner/defendant-appellant Chris L. Lethem (Father), seeking review of the Intermediate Court of Appeals' (ICA) June 23, 2008 judgment on appeal, entered pursuant to its May 16, 2008 summary disposition order (SDO). See Hamilton v. Lethem, No. 27580 117 Hawai`i 379, 183 P.3d 756, 2008 WL 2069780 (App. May 16, 2008) (Foley, J., dissenting). Therein, the ICA—after holding that the underlying appeal brought by Father was moot— vacated the Family Court of the First Circuit's¹ (1) September 23, 2005 ex parte temporary restraining order (TRO) issued against Father; (2) October 23, 2005 order regarding the TRO; and (3) March 3, 2006 Findings of Fact (FOFs) and Conclusions of Law (COLs) [hereinafter, collectively, the TRO, FOFs, and COLs] and remanded the case to the family court with instructions to dismiss the underlying case.

Briefly stated, respondent/plaintiff-appellee Lily E. Hamilton (Mother), on behalf of her then-fifteen-year-old daughter (Minor), obtained a TRO against Father based upon Father's alleged physical and psychological abuse of Minor. At the show cause hearing on the TRO, Father unsuccessfully asserted the parental justification defense.² Ultimately, the family court confirmed the TRO, allowing it to remain in effect until December 22, 2005 (the TRO's original ninety-day term). The TRO expired during the pendency of Father's appeal. Consequently, the ICA unanimously held that, because Father's appeal did not fall within any of the exceptions to the mootness doctrine, the appeal was moot. A majority of the ICA, however, proceeded to vacate the family court's TRO, FOFs, and COLs, remanding the case with instructions to the family court to dismiss the underlying case. The dissent disagreed, opining that the appeal should be dismissed.

Father argues on application that the ICA erred when it determined his appeal did not fall within any of the exceptions to the mootness doctrine. As such, Father contends that the ICA erred in dismissing his appeal without addressing the merits.³

Based upon the discussion below, we hold that the ICA erred in failing to address the merits of Father's appeal. We, therefore, vacate the ICA's June 23, 2008 judgment on appeal and remand this case to the ICA with instructions to address the merits of Father's appeal, consistent with this opinion.

I. BACKGROUND

A. Proceedings Before the Family Court

As succinctly summarized by the ICA:

On September 23, 2005, [Mother], on behalf of [Minor], filed an ex parte petition for a [TRO] against Father under [HRS] § 586-3 (1993 & Supp.2004). Father allegedly had physically and psychologically abused [Minor] on and prior to August 25, 2005, by striking her during a heated argument about the [Minor's] assisting a friend in obtaining a birth control product. The [TRO], granted on September 23, 2005 had an expiration date of December 22, 2005.

At a hearing on October 5, 2005, the [f]amily [c]ourt found the TRO was justified[⁴] and [ruled] that no further action was necessary. It its Order Regarding [TRO], filed the same day, the [family] court declared no further action would be taken and that the TRO would expire on its own on December 22, 2005.

SDO at 1-2 (footnote omitted).

Additionally, at the close of the hearing, Father's counsel argued that, pursuant to the parental justification defense, see supra note 2, the events that transpired between Father and Minor were not "an abuse situation," but, instead,

what we really have is a daughter who's you know, trying to find a way not to follow the rules, and a dad who is trying to enforce those rules. And the two things are just in conflict, and that's exactly when it is appropriate to use discipline.

The family court, however, rejected Father's argument, orally ruling that "what happened in this [case] was not parental discipline. On those grounds, this court is compelled to grant ... this restraining order. As you know, this [sic] will be no further action. [The c]ourt believes that the restraint was justified."

On November 3, 2005, Father timely filed his notice of appeal from the family court's October 5, 2005 order. Thereafter, on March 3, 2006, the family court—at the request of Father—entered its FOFs and COLs. Of particular relevance to the instant application are the following COLs:

The material allegations of the petition have been proven. [Father] is the father of [Minor] and statutory blood relationship has been established. [Father] did physically harm, injure[] or assault[] [Minor] by striking her on August 25, 2005 and by threatening her with further physical harm.

[Father] has raised parental discipline under [HRS § 701-309(a)]. However, that section applies to criminal not civil actions. Moreover, while it would appear that [Minor] was disciplined by [Father] for assisting her friend with obtaining a birth control product, discipline over issues of morals lies with [Mother], who has sole legal and physical custody. Assuming additionally that [Father] struck [Minor] because of her refusal to discuss this issue late during a school night, the court concludes that such an action is not proper parental discipline.

The court, therefore, concludes that the allegations in support of the [TRO] have been prove[n] and that allowing the order to remain in full force and effect until the set expiration date of December 22, 2005 as requested by [Mother] is justified.

B. Appeal Before the ICA

On appeal, Father (appearing pro se) challenged the family court's FOFs and COLs. Father essentially argued that: (1) HRS chapter 586 (governing domestic abuse protective orders) unconstitutionally "infringes upon a parent's right[] to discipline and raise [his or her] children without governmental interference" as "parental discipline is not child or domestic abuse"; and (2) the family court abused its discretion in finding that past acts of abuse had occurred. Although recognizing that the TRO had expired,⁵ Father nevertheless contended that his appeal was not moot. In his view, the TRO's effect on Mother's and Father's ongoing custody case with respect to Minor—of which he asked the ICA to take judicial notice—"was dramatic, unfair, wrong[,] and significant."⁶ Further, Father argued that, even if his appeal was moot, it fell within the exceptions to the mootness doctrine.⁷

In response, Mother contended, inter alia, that: (1) Father's appeal was moot because the TRO expired on December 22, 2005; (2) Father did not and could not "demonstrate that the [family] court's [FOFs were] `clearly erroneous'"; and (3) Father's contention that the entry of the TRO was erroneous was without merit because Mother had sole legal and physical custody of Minor, and, as such, she had the "sole right to determine the manner of discipline of said minor." Thus, Mother requested that the ICA dismiss Father's appeal as moot.

On May 16, 2008, the ICA, in a 2-1 SDO, held that Father's appeal was moot and that it did not fall within any exceptions to the mootness doctrine, discussed more fully infra. SDO at 2-4. However, as previously stated, the ICA, relying on its decision in McCabe Hamilton & Renny Co. v. Chung, 98 Hawai`i 107, 43 P.3d 244 (App.2002) (holding that imposition of issue preclusion where appellate review has been frustrated by mootness is obviously unfair) [hereinafter McCabe], vacated the family court's TRO, FOFs, and COLs, remanding the case to the family court with instructions to dismiss the underlying action. SDO at 5-6. Specifically, the majority concluded that, in light of McCabe,

Father's appeal from the September 23, 2005 TRO (and the related orders) [was] moot[,] and we do not reach the merits of his points on appeal. See Johnston v. Ing, 50 Haw. 379, 381, 441 P.2d 138, 140 (1968) (noting that "appellate courts will not consider moot questions"). In reaching this conclusion, we note that the mootness of this case was not the result of any action taken by [F]ather. Because we are unable to reach the merits of Father's claim, we vacate the [f]amily [c]ourt's orders so that they will not have any issue preclusive effect.

Id. at 5. Consequently, the ICA remanded the case to family court "with direction to dismiss the action." Id. at 6.

Contrary to the majority's position, Associate Judge Foley, in his two-sentence dissent, declared that, inasmuch as Father's appeal was moot, it should have simply been dismissed. Dissenting Op. at ___, 193 P.3d at 840. In support of its position, the dissent cites to this court's decision in Lathrop v. Sakatani, 111 Hawai`i 307, 312-13, 141 P.3d 480, 485-86 (2006) (dismissing the appeal as moot because the appellants failed to seek a stay on the execution of the circuit court's order expunging the lis pendens and the property was sold to a third party pending appeal).

The ICA entered its judgment on appeal on June 23, 2008. On August 14, 2008, Father filed his application for a writ of certiorari. Mother did not file a response.

II. STANDARD OF REVIEW

It is axiomatic that mootness is an issue of subject matter jurisdiction. "Whether a court possesses subject matter jurisdiction is a question of law reviewable de novo." Kaho`ohanohano v. Dep't of Human Serv., 117 Hawai`i 262, 281, 178 P.3d 538, 557 (2008) (citation and internal quotation marks omitted).

III. DISCUSSION

As previously stated, Father—arguing pro se...