Inoue v. Inoue

• Decision Date: 31 January 2008
• Docket Number: No. 28028.,28028.
• Citation: 118 Haw. 86,185 P.3d 834
• Parties: Egan Hajime INOUE, Plaintiff-Appellee, v. Gina Lenee' INOUE, nka Gina Lenee Khouw, Defendant-Appellant.
• Court: Hawaii Court of Appeals

185 P.3d 834

118 Haw. 86

Egan Hajime INOUE, Plaintiff-Appellee, v.Gina Lenee' INOUE, nka Gina Lenee Khouw, Defendant-Appellant.

No. 28028.

Intermediate Court of Appeals of Hawai`i.

January 31, 2008.

Robert M. Harris and Sara R. Harvey, on the briefs, for Defendant-Appellant.

A. Debbie Jew(Oliver, Lau, Lawhn, Ogawa & Nakamura), Honolulu, on the briefs, for Plaintiff-Appellee.

RECKTENWALD, C.J., WATANABE and FUJISE, JJ.

Opinion of the Court by RECKTENWALD, C.J.

Defendant-AppellantGina L. Inoue, now known as Gina L. Khouw(Gina), appeals from the Divorce Decree filed on June 9, 2006(Divorce Decree), as well as several related orders entered by the Family Court of the First Circuit (family court).¹

Gina challenges a number of the findings of fact and conclusions of law entered by the family court.Most notably, Gina contends that the family court erred in holding that she was equitably estopped from denying that Plaintiff-AppelleeEgan H. Inoue(Egan) was the father of Child One for the purposes of determining custody.Egan was indisputably not Child One's biological father.Gina was pregnant with Child One when she met Egan, and she did not identify him as Child One's father when she first obtained a birth certificate for Child One.However, Gina and Egan subsequently were married, and Gina, with Egan's consent, obtained an amended birth certificate for Child One which identified Egan as Child One's father.Moreover, both Gina and Egan treated Child One as the daughter of Egan.The family court found that Egan was Child One's "legal father," and that Gina was equitably estopped from contending otherwise.

We conclude that the family court was correct in holding that Gina was equitably estopped in the circumstances of this case.Since we find that Gina's other points of error are without merit, we affirm.

I.Background

Gina met Egan in February 1996, when Gina was pregnant and working at an art gallery.Egan ran a company called Grappling Unlimited, which conducted training seminars and classes on self-defense and fighting.

Child One, a girl, was born on September 11, 1996.Egan went with Gina to her doctor's appointments while she was pregnant, and Egan was present for Child One's delivery.At the time of Child One's birth, Gina and Egan were living in Mililani with Gina's parents, Teri Butera(Teri) and Anthony Butera(Anthony).Gina returned to work when Child One was approximately five weeks old, and Egan assumed child care responsibilities for Child One, including feeding her, bathing her, and putting her to bed.Egan took Child One to work with him, where he taught grappling classes while carrying Child One in his left hand.When Egan was not able to watch Child One while he was working, he would take Child One to his parents' house.

Gina did not identify Child One's father on Child One's original birth certificate.At some point after Child One's birth, Child One's birth certificate was changed to reflect Egan as her father.

The new birth certificate bears the same certificate number as the original, as well as the same receipt date, which is identified as September 17, 1996, six days after Child One's birth.While the original certificate did not identify either Child One's "father's name" or "father's race," the new certificate identifies Child One's father as "Egan Hajime Inoue," and her father's race as "Japanese."

The family court did not make any findings about when this change occurred, and neither Gina nor Egan testified at trial about when it occurred.However, Jean Chun(Ms. Chun), a Child Protective Services (CPS) social worker with the Department of Human Services(DHS), investigated Gina's allegations of domestic violence against Egan and testified about statements that Gina made to her about when the birth certificate was changed.Ms. Chun testified, in part, about an entry in her records of investigation as follows:

Q.[By counsel for Egan] At the top, you indicate that Ms. Inoue stated that she put Mr. Inoue's name on [Child One]'s birth certificate when her daughter was 3 and a half years old.They were not asked questions when they went to the Department of Health, but only told the clerk that they were now married and wanted to put Mr. Inoue on [Child One]'s birth certificate.That's a statement that Mrs. Inoue made to you —

A.That's correct.²

Gina and Egan were married on June 8, 1997.A daughter, Child Two, was born on December 30, 1997.Another daughter, Child Three, was born on May 20, 2003.Gina, Egan, and Child One continued to live in Mililani with Gina's parents until shortly after Child Two's birth.Gina, Egan, Child One, and Child Two then moved to live in one half of the duplex house in Mānoa owned by Egan's mother and father, Evangeline Inoue(Evangeline) and Errol Inoue(Errol).They continued to live in the duplex until Gina and Egan separated.

While living in Mānoa, Gina and Egan shared child care responsibilities for the three girls with Evangeline and Errol.Both sets of grandparents attended the children's school functions.Child One and Child Two participated in a number of extracurricular activities.Egan chose the children's pediatrician and participated in their medical care.

Egan established education accounts for Child One and Child Two.According to Egan, he gave Gina $1,000.00 of prize monies from each of his fights, to be evenly split between the accounts for Child One and Child Two.During the period of separation before the Divorce Decree, Gina withdrew funds from these accounts.

Egan began working for Merck Pharmaceuticals in 2002, and subsequently met Marsia Damas(Marsia) on an airplane during a business trip.In about September 2003, their relationship "got [a] little more serious" and Marsia joined Egan on a trip to Thailand.

On October 26, 2003, Gina and Egan had an argument about Egan wearing a shirt that Marsia had given him.Gina attempted to prevent Egan from leaving their Mānoa home by blocking the doors as Egan tried to exit the house.Egan held Gina against a wall to avoid being hit or kicked by her.During this argument, Gina fell to the floor.According to Gina, Egan "squeezed" her throat during the argument.Gina testified that she felt dizzy and that after Egan stopped squeezing her throat, she crawled to the kitchen area where she laid on the floor.Egan denied causing Gina to fall to the floor and testified that Gina would frequently drop to the floor, start crying, and go into a fetal position as a "tactic" to prevent him from leaving the house when they argued.

After checking on Gina, Egan left.Gina then called her parents and told them that Egan had assaulted her.Neither Gina nor her parents called the police that night, nor did Gina's parents go to Mānoa to help Gina that night.

On the following day, October 27, 2003, Gina took $12,000.00 from the couple's home safe and left the residence with Child Three.After withdrawing an additional $24,500.00 from a joint savings account, Gina retained the services of an attorney, visited with her parents, then called the police and reported Egan for domestic violence.That same day, Gina filed an Ex Parte Motion for Temporary Restraining Order(TRO) and obtained a TRO against Egan.During a November 6, 2003 hearing on the TRO, Egan denied Gina's allegations of abuse.Egan did, however, agree to the entry of an Order for Protection without findings.According to Egan, he did this because the TRO also prohibited Gina from contacting him and he did not trust her because of her false allegations.

Gina's allegations of domestic abuse on October 26, 2003, resulted in criminal proceedings against Egan.Egan was found not guilty on all charges.On December 2, 2003, Egan filed a motion to dissolve the TRO because Gina used the TRO to prevent Egan from participating in Child One and Child Two's school events.

Ms. Chun, the CPS social worker, testified that on November 7, 2003, Child One's "paternal grandmother" reported to the DHS that Child One had bruises on her arm.Ms. Chun did not see or interview Child One and Child Two until December 1, 2003, and at that time did not observe bruises on Child One, but she acknowledged that any evidence of bruising may have been "gone" by that time.

At the December 1, 2003 interview of the children, Child Two told Ms. Chun that "dad chokes mom, he hits mom with his fist, hitting her on the calf."Child One told Ms. Chun that "her parents yell at each other and dad tried to choke mom one time."Child One told Ms. Chun that she had not seen any hitting or pushing between her parents, but "shared that [Egan] threw [Child One] across the room once when [Child One] was 4 years old, she landed on the couch."

On May 4, 2004, Child Two told Ms. Chun that Egan disciplines her by talking to her, not hitting her or choking her, but that Gina disciplines by hitting her, choking her, and slapping her on the cheek.Ms. Chun testified that what the children told her in the December 1 interview "was closer to the truth" because she felt "that the children were not prepared for [the] interview, that they were more relaxed, that they were more open to talking about the family situation."By the time of the May 4 interview, however, Ms. Chun testified that "the children were very enmeshed in what was going on, and they seemed to reflect the attitudes . . . of the parent bringing them into the office."

Ms. Chun further testified that she was not aware, at the time of the December 1, 2003 interview with Child One and Child Two, that Gina had custody of the two girls on November 7, 2003, when the bruises were observed by Child One's paternal grandmother.She testified that she did not know that there was a restraining order against Egan on December 1, 2003, but also admitted that the November 8, 2003 intake report mentioned a restraining order.

Ms. Chun testified that she was "very concerned there was domestic violence in [Gina and Egan's] relations...