Lily E. Hamilton On Behalf of Amber J. Lethem v. Lethem

Citation260 P.3d 1148,125 Hawai'i 330
Decision Date30 June 2011
Docket NumberNo. 27580.,27580.
PartiesLily E. HAMILTON on behalf of Amber J. LETHEM, a minor, Plaintiff–Appellee,v.Christy L. LETHEM, Defendant–Appellant.
CourtCourt of Appeals of Hawai'i

OPINION TEXT STARTS HERE

Christy L. Lethem, on the briefs, pro se DefendantAppellant (Robert H. Thomas, later appearing as appellate counsel).Stephen T. Hioki, on the briefs, for PlaintiffAppellee.FOLEY, presiding, LEONARD and REIFURTH, JJ.Opinion of the Court by LEONARD, J.

DefendantAppellant Christy L. Lethem (Father) appeals from the Ex Parte Temporary Restraining Order (Ex Parte TRO) filed September 23, 2005, and the Order Regarding Temporary Restraining Order filed October 5, 2005 (Order), both entered by the Family Court of the First Circuit (Family Court). 1 PlaintiffAppellee Lily E. Hamilton (Mother) obtained the Ex Parte TRO against Father on behalf of the parties' minor child (Minor), alleging acts of physical and emotional abuse. Following a hearing held on October 5, 2005, the Family Court entered the Order allowing the Ex Parte TRO to remain in effect until its expiration on December 22, 2005.

Appearing pro se on appeal, Father argues that (1) the Family Court's application of Hawaii Revised Statutes (HRS) Chapter 586, providing for ex parte temporary restraining orders (TROs) and orders for protection arising from domestic abuse, unconstitutionally infringes on parental rights and violates constitutional guarantees of due process; (2) the process for obtaining an ex parte TRO is unconstitutionally gender-biased; and (3) the Family Court abused its discretion in finding that past acts of abuse occurred. On remand from the Hawai‘i Supreme Court's opinion in Hamilton ex rel. Lethem v. Lethem, 119 Hawai‘i 1, 193 P.3d 839 (2008), we now conclude that Father's arguments are without merit and affirm.

I. BACKGROUNDA. Ex Parte TRO

On September 23, 2005, Mother filed an Ex Parte Petition for a Temporary Restraining Order for Protection and Statement (Petition) on behalf of Minor. The Petition was handwritten on a form pleading, with various blanks filled in and boxes checked off. It alleged that Father had “physically harmed, injured or assaulted me [Minor] by “slapping, punching, hitting me.” It indicated the last date of this occurrence as August 25, 2005. It alleged that Father had “threatened me [Minor] with physical harm, injury or assault by threatening to ... physically hurt me,” the last date being August 25, 2005. The Petition further alleged that Father “subjected me [Minor] to extreme psychological abuse by showing up at my school unannounced, putting me down by blaming financial problems on me, and saying many problems (such as work problems/emotional distress) was [sic] my fault.” (Punctuation altered.) The last date for this incident was September 16, 2005. The Petition alleged immediate danger of physical and psychological abuse based on Father's “previous actions such as hitting me [Minor] on Aug. 12th and Aug. 25th, showing up at my school, and verbally abusing me.”

On September 23, 2005, the Family Court entered the Ex Parte TRO, prohibiting Father from having contact with Minor. The Ex Parte TRO was served on Father that afternoon along with a notice of the hearing scheduled for October 5, 2005.

B. The Evidentiary Hearing

The Family Court held an evidentiary hearing regarding the Ex Parte TRO on October 5, 2005. Minor testified that she and Father had a visitation arrangement under which she spent time with him every week and stayed at his house every other weekend. She testified regarding three alleged acts of abuse:

1. On August 11, 2005, Father was scheduled to pick Minor up from school. Minor lied to Father, telling him that Mother would pick her up from school, but instead went with her friends to obtain a “morning-after” contraceptive pill for one of her friends. Father became concerned when he could not locate Minor, but eventually picked her up from Mother's house. The following day, Father and Minor got into an argument about Minor's behavior. Minor told Father that he did not need to “get involved in the situation” because she had already spoken to her Mother about what had happened. Minor testified that “because I wouldn't tell him, he hit me for that, because I wouldn't talk.” He hit her more than once during the argument. Minor described how she blocked his hand before it reached her face. She further testified that Father restrained her from calling Mother.

2. On August 25, 2005, Minor got into another argument and “power struggle” with Father. Father had tried to initiate a conversation with Minor, but she wanted to go to bed as it was late and she had school the next day. She further testified:

We continued to argue. That's when he hit me. Like, as I was covering my head, like, he hit me on my arms. And then we started—once we ended the argument, he left the room. And I tried to get to bed, but then I ended up calling my mother and telling her that I—that I was uncomfortable being at my father's house anymore.

She testified that her Father told her, “Don't make me do that again.... Don't make me hit you again.”

3. Around September 16, 2005, Father unexpectedly arrived at Minor's school during class hours. He pulled Minor out of class and “blam[ed] me [Minor] for financial problems and [said] how a lot of the things were my fault ... and that he was going to pull me out of school and that—that all of this was going to end and stuff.” Father told Minor that her younger sister was “better than [Minor] in this way and this way.” Minor felt that he was emotionally “getting to me and that it wasn't right at all.”

In support of the Ex Parte TRO, Minor testified that she felt she was in immediate danger because [Father] hit me previous times before, and I feel like he could hit me in the future or physically harm me in the future because of actions in the past.”

Father also testified. He described his strained relationship with Minor and explained the frequent disciplinary struggles that arose from her repeated rule-breaking and misbehavior. He described each of the three incidents of alleged abuse as follows:

1. On August 11, 2005, Father became very concerned when he realized Minor had lied to him and he was unable to locate her. The next morning, he tried to confront Minor about her behavior. She became very upset and was “screaming and yelling” and “ranting and raving.” At one point, Minor tried to stand up, and Father slapped her on the shoulder. He testified that he “would not hit her in the face.”

2. On August 25, 2005, Father picked Minor up from school. He had not seen her for several days and wanted to talk with her and “catch up.” Minor did not want to talk and accused him of interrogating her. Several hours later, Father tried to initiate a conversation and they began to argue. When Minor tried to stand up, Father “reached across to sit her back down.” He denied threatening to hit her.

3. On September 16, 2005, Father picked Minor up after school, as Minor had arranged to stay at his house for the weekend. When Father arrived at school, Minor told him she had changed her mind and decided not to stay with him. Father waited with Minor until Mother arrived to bring her home from school.

Father also testified that on one or two prior occasions, he went to Minor's school to “sit down with [Minor] and discuss the issues with her” in a counseling context. He denied ever blaming financial or emotional problems on Minor.

Father testified that any physical force or contact with Minor was employed solely to “get her attention” and “not to hurt her.” Finally, he testified that on the day he was served with the Ex Parte TRO, Minor called him to ask for a favor and she was in a good mood.

C. The Order; Findings of Fact and Conclusions of Law

On October 5, 2005, the Family Court entered the Order determining that [f]or good cause shown, The Court shall take no further action.” It directed the TRO to remain in effect until December 22, 2005.

On March 31, 2006, the Family Court entered the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. The defendant is [Minor's] father. Petitioner is [Minor's] mother and has sole legal and physical custody. The defendant has visitation rights. Both petitioner and defendant have been involved in a protracted and ongoing custody dispute.

2. In the weeks prior to August 25, 2005, [Minor] had helped a sexually active friend and classmate obtain a birth control product. When the defendant learned of [Minor's] involvement, he became quite upset. Protracted arguments took place between the defendant and [Minor].

3. At approximately 11:00 p.m. on the evening of August 25, 2005, [Minor] was visiting with the defendant and had just completed her homework. Since the following day was a school day, she wanted to turn in for the night. The defendant came to her room and demanded that they continue their unresolved discussion over her helping a friend obtain a birth control product. [Minor] refused to continue the discussion and stated that she was tired and wanted to go to bed. A loud argument ensued which ended with the defendant striking [Minor] and threatening her with further physical harm.

CONCLUSIONS OF LAW

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

The defendant has raised parental discipline under section 703–309(a) HRS. However, that section applies to criminal not civil actions. Moreover, while it would appear that [Minor] was disciplined by the defendant for assisting her friend with obtaining a birth control product, discipline over issues of morals lies with the petitioner, who has sole legal and physical custody. Assuming additionally that...

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  • Hamilton ex rel. Lethem v. Lethem
    • United States
    • Hawaii Supreme Court
    • February 7, 2012
    ...because parents do not have a right to abuse their children. 126 Hawai'i 301270 P.3d 1031 Hamilton III, 125 Hawai‘i 330, 337–47, 260 P.3d 1148, 1155–65 (App.2011). As to Petitioner's contention that the process for obtaining an ex parte TRO was unconstitutionally gender-biased, the ICA foun......
  • Sin v. Fung, CAAP-12-0000817
    • United States
    • Hawaii Court of Appeals
    • June 17, 2015
    ...prior notice or opportunity to challenge the allegations. HRS § 586-4. See Hamilton ex rel. Lethem v. Lethem, 125 Hawai'i 330, 341, 260 P.3d 1148, 1159 (App. 2011) (Hamilton II) vacated on other grounds, 126 Hawai'i 294, 270 P.3d 1024 (2012). Where the respondent does not have the opportuni......
  • Sau Wan Sin v. Fung, CAAP–12–0000817.
    • United States
    • Hawaii Court of Appeals
    • June 17, 2015
    ...freedom without prior notice or opportunity to challenge the allegations. HRS § 586–4. See Hamilton ex rel. Lethem v. Lethem, 125 Hawai‘i 330, 341, 260 P.3d 1148, 1159 (App.2011) (Hamilton II ) vacated on other grounds, 126 Hawai‘i 294, 270 P.3d 1024 (2012). Where the respondent does not ha......

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