Kie v. McMahel, 21808.

• Decision Date: 13 July 1999
• Docket Number: No. 21808.,21808.
• Citation: 984 P.2d 1264,91 Haw. 438
• Parties: Emma C. KIE, Plaintiff-Appellee, v. Dean T. McMAHEL, Defendant-Appellant.
• Court: Hawaii Court of Appeals

984 P.2d 1264

91 Haw. 438

Emma C. KIE, Plaintiff-Appellee, v. Dean T. McMAHEL, Defendant-Appellant.

No. 21808.

Intermediate Court of Appeals of Hawai`i.

July 13, 1999.

Dean T. McMahel, defendant-appellant, on the briefs, pro se.

Shawna J. Sodersten, on the briefs, Kailua, for plaintiff-appellee.

BURNS, C.J., WATANABE, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that in an action under Hawai`i Revised Statutes (HRS) chapter 586 (1993 and Supp.1997) relating to domestic abuse protective orders, a temporary restraining order (TRO) may only issue upon probable cause, and any TRO conditions which are incorporated into a protective order and the allegations underlying a request for a protective order must be proven by the petitioner by a preponderance of the evidence. While a respondent to such an action is required "to show cause" why the TRO conditions should not continue and a protective order issue, the burden on the respondent is to appear and respond to the allegations at a hearing therefor, not to carry the initial burden of proving the negative of the allegations. We conclude that the Family Court of the First Circuit (the court) did not err in ruling that Plaintiff-Appellee Emma C. Kie (Plaintiff) had proven her HRS chapter 586 petition against Defendant-Appellant Dean T. McMahel (Defendant) by a preponderance of the evidence, although we caution against the court establishing Plaintiff's prima facie case by its own questions and allowing the admission of Plaintiff's direct case by the improper use of an offer of proof. We further hold that pursuant to HRS § 134-7(f) (Supp.1998),¹ all firearms and ammunition therefor in the possession or control of a person subject to a HRS chapter 586 order may be seized by the police, even if not owned by such person; the actual owners, however, may recover such items in an appropriate action or by other lawful means.

I.

On July 10, 1998, Plaintiff filed a petition with the court for a domestic abuse² order for protection³ against Defendant, her live-in boyfriend,⁴ pursuant to HRS chapters 134 (1993 and Supp.1998) and 586.⁵ In her petition, made under penalty of perjury, Plaintiff requested that a TRO issue against Defendant barring him from contacting, threatening, or physically abusing Plaintiff and her two children. Plaintiff also disclosed on the pre-printed petition form that Defendant "own[ed]" two shotguns, two "high powered rifles," and a pistol, and that "the firearm[s] may be used to threaten, injure[,] or abuse any person[.]"⁶

On the basis of the petition, the court issued a TRO which was served on Defendant on July 13, 1998. The TRO ordered Defendant, inter alia, to vacate Plaintiff's residence, to avoid any contact with Plaintiff or her children, and to turn over all firearms, ammunition, and permits and/or licenses therefor to the police for the duration of the TRO or the extension thereof. At the time the TRO was served on Defendant, police officers confiscated four firearms which had been described in Plaintiff's petition.

Under the TRO, Defendant was further ordered to appear at a hearing on July 23, 1998 "to show cause" why the restraining order "should not continue."⁷ By this order, Defendant was notified that at the show cause hearing "the parties [would] be allowed to testify, call and examine witnesses[,] and give legal or factual reasons [for] why these orders should or should not be continued."

At the hearing, Plaintiff was represented by counsel and Defendant appeared pro se. Testimony was given by both parties. No other witnesses were called. Plaintiff's diary was the only other evidence introduced. In his testimony, Defendant denied all allegations of abuse made by Plaintiff.

On the basis of the evidence presented, the court determined that allegations made under parts IV-A(7) and -D of Plaintiff's petition had been proven. Those provisions stated, in relevant part:

IV. The following domestic abuse happened:

A. [X] The Defendant has physically harmed, injured or assaulted me by:

. . .

7. [X] other: Physically blocked pathway to prevent me from entering the house.

Last date: 6/25/98

. . . .

D. [X] The Defendant has subjected me to extreme psychological abuse. . . .⁸

After hearing all of the evidence presented, the court granted the petition as follows:

This [c]ourt has heard the positions of the parties. This [c]ourt has heard the testimony of both of the witnesses.

The burden of proof is upon the petitioner in this case to prove this matter by a preponderance of the evidence.

The [c]ourt believes that Roman numeral 4A7 [sic], Roman numeral [sic] D has [sic] been proven. This [c]ourt will grant this restraining order for the duration requested.

On July 23, 1998, the court entered an "Order for Protection" pursuant to HRS § 586-5.5 (Supp.1997) and effective for a period of three years. In entering this order, the court found that "Plaintiff has proven the material allegations of the petition and that... Defendant has failed to show cause why the order [for protection] should not issue and that a protective order is necessary to prevent domestic abuse or recurrence of abuse." The order essentially prohibited Defendant from having contact with Plaintiff and her children and, pertinent to this case, from possessing or controlling any firearms "during [its] duration."

II.

On appeal, Defendant first contends that (1) his "right" to be considered "innocent until proven guilty" was violated by the proceedings, and (2) Plaintiff should have been required to produce police reports, photographs, testimony of other witnesses, or other proof to support her allegations.

A.

With respect to Defendant's complaint about the ex parte nature of the TRO, we note the TRO was issued upon filing of the petition pursuant to HRS § 586-4(a) (1993).⁹ Under HRS § 586-4(b), the family court is authorized to issue such a TRO only upon "probable cause to believe that a recent past act or acts of abuse have occurred, or that threats of abuse make it probable that acts of abuse may be imminent." HRS § 586-5(a) (1993) further provides that a TRO "shall remain in effect at the discretion of the court, for a period not to exceed ninety days from the date the [TRO] is granted." However, HRS § 586-5(b) directs that

[o]n the earliest date that the business of the court will permit, but no later than fifteen days from the date the [TRO] is granted, the court shall, after giving due notice to all parties, hold a hearing on the application requiring cause to be shown why the order should not continue.

The general purpose of a TRO is to "`prevent[] acts of abuse, or a recurrence of actual domestic abuse, and assure[s] a period of separation of the parties involved.'" Coyle v. Compton, 85 Hawai`i 197, 205, 940 P.2d 404, 412 (App.1997) (quoting HRS § 586-4(b)). Conceivably, however, a respondent¹⁰ may move to lift or modify a TRO once it is entered.

Nothing in the statute prohibits a respondent from applying for such relief. Indeed, as indicated above, HRS § 586-5(a) reposes discretion in the court to determine the duration of a TRO, subject to a ninety-day limit. Because such discretion is vested in the court, the court possesses the power to vacate or otherwise modify the TRO. Such power must, of necessity, include the jurisdiction to entertain a motion by any party affected to vacate or modify the TRO. Defendant thus could have moved the court at any point to vacate or modify the TRO.

With respect to the evidentiary hearing for determining whether a protective order should issue, we acknowledge that HRS § 586-5(b) describes the hearing as one "requiring cause to be shown [by the respondent on] why the [TRO] should not continue." HRS § 586-5.5(a) also authorizes a protective order to issue if the court finds that "the respondent has failed to show cause why the [TRO] should not be continued[.]"

By their use of the words "show cause," HRS §§ 586-5(b) and -5.5(a) seemingly place on a respondent the burden of disproving allegations in the petition which have yet to be proven. While at that hearing the respondent must "show cause why" the protective order is not necessary, HRS § 586-5.5(a), the burden remains on the petitioner to prove the petitioner's underlying allegations by a preponderance of the evidence. Coyle, 85 Hawai`i at 206, 940 P.2d at 413. In Coyle, we held, construing HRS § 586-5.5 with HRS §§ 571-14 and -42 (the family court jurisdiction provisions), that the burden was on the petitioner to prove the allegations of the petition by a preponderance of the evidence. Id. We believe that this construction of HRS § 586-5.5(a) is consistent with the ultimate power given the court to issue protective orders, and meets any implicit due process objections raised in Defendant's claim that he was not considered "innocent until proven guilty." In our view, the order to a respondent to show cause is a direction from the court to appear at a hearing to answer and to respond to the petition's allegations, rather than a mandate which places the burden on the respondent of initially going forward with evidence to prove the negative of the allegations.

B.

We observe that although Plaintiff was represented by counsel, the court conducted the direct examination of Plaintiff as to the elements of Plaintiff's case.¹¹ Further, Plaintiff's counsel did not ask Plaintiff questions on direct examination, except to confirm a lengthy "offer of proof" recited by counsel into the record:

[PLAINTIFF'S COUNSEL] That concludes our offer of proof.

THE COURT: Any other questions of your client?

[PLAINTIFF'S COUNSEL]: No, Your Honor.

THE COURT: Are you going to establish the offer of proof then?

[Plaintiff], if called to testify, would that be your testimony which your counsel just said on record?

[PLAINTIFF]: Yes.

We have affirmed the premise "that an impartial judge is required to insure a fair trial." State v. Silva, 78 Hawai`i 115, 117, 890 P.2d 702, 704 (App.1995) ...