Sau Wan Sin v. Fung, CAAP–12–0000817.

• Decision Date: 17 June 2015
• Docket Number: No. CAAP–12–0000817.,CAAP–12–0000817.
• Citation: 353 P.3d 411 (Table),135 Hawai'i 408
• Parties: SAU WAN SIN, Petitioner–Appellant, v. Jeff FUNG, Respondent–Appellee.
• Court: Hawaii Court of Appeals

135 Hawai'i 408

353 P.3d 411 (Table)

SAU WAN SIN, Petitioner–Appellant

v.Jeff FUNG, Respondent–Appellee.

No. CAAP–12–0000817.

Intermediate Court of Appeals of Hawai‘i.

June 17, 2015.

Philip Dureza, on the briefs, for Petitioner–Appellant.

NAKAMURA, C.J., FUJISE and GINOZA, JJ.

SUMMARY DISPOSITION ORDER

In this appeal from the denial of a petition for protective order, Petitioner–Appellant Sau Wan Sin (Sin) challenges the procedure allegedly mandated by the Family Court of the First Circuit (Family Court)¹ in denying her ex parte petition.

Sin argues that, although there is no longer a live controversy in this case, it is not moot because it falls within the public interest exception to the mootness doctrine. On the merits of her appeal, Sin contends that the Family Court erred when it applied the requirements of Hawaii Revised Statutes (HRS) § 586–3(c) (2006) because it (1) ruled that a petitioner seeking a protective order must use the form provided by the court; (2) refused to consider her Declaration; and (3) ruled that a Petition for Order For Protection (POFP) must be signed under penalty of perjury.

After a careful review of the points raised and arguments made by the parties, the applicable authority and the record, we conclude that Sin's case is moot and that this case does not implicate the public interest exception to the mootness doctrine because, on the facts of this case, the Family Court merely applied the plain language of the applicable statute and therefore did not err in refusing to consider Sin's attachment to the POFP.

Sin concedes that there is no live controversy in this case because the Family Court granted her subsequent petition for a protective order.² Whether a case is moot is a matter of jurisdiction that we review de novo. Hamilton ex rel. Lethem v. Lethem, 119 Hawai‘i 1, 4–5, 193 P.3d 839, 842–43 (2008) ( Hamilton. ) It is well settled that

The mootness doctrine is said to encompass the circumstances that destroy the justiciability of a suit previously suitable for determination. Put another way, the suit must remain alive throughout the course of litigation to the moment of final appellate disposition. Its chief purpose is to assure that the adversary system, once set in operation, remains properly fueled. The doctrine seems appropriate where events subsequent to the judgment of the trial court have so affected the relations between the parties that the two conditions for justiciability relevant on appeal—adverse interest and effective remedy—have been compromised.

Hamilton, 119 Hawai‘i at 5, 193 P.3d at 843 (citation omitted). As evidenced by the Family Court's Conclusion of Law # 6,³ as well as Finding # 19(b),⁴ a Temporary Restraining Order (TRO) was apparently issued against Fung at Sin's request in a subsequent case, and said TRO was not set to expire until more than four months after the Family Court entered its Findings of Fact and Conclusions of Law in this case. Further, Sin alleges on appeal that she subsequently received an order of protection in that case. Therefore, we agree that no further remedy can be awarded to Sin.

However, Sin relies on the public interest exception to the mootness doctrine in support of her argument that we reach the merits of her appeal. In Hawai‘i,

when the question involved affects the public interest and an authoritative determination is desirable for the guidance of public officials, a case will not be considered moot. When analyzing the public interest exception, we look to (1) the public or private nature of the question presented, (2) the desirability of an authoritative determination for future guidance of public officers, and (3) the likelihood of future recurrence of the question.

Doe v. Doe, 116 Hawai‘i 323, 327, 172 P.3d 1067, 1071 (2007) (citations and quotation marks omitted). Sin argues that her appeal qualifies under the public interest exception because (1) the process for filing a petition for a protective order is a matter of public concern; (2) the Family Court should not have unchecked discretion in deciding whether or not to consider a petition in its entirety; (3) the POFP form provided to the public must conform to the statutory requirements; and (4) as prospective petitioners frequently prepare statements regarding their experience of abuse without knowledge of the statutory requirements, there is a strong likelihood of future recurrence of this issue.

Here, Sin mischaracterizes the Family Court's action. The Family Court did consider the information contained in the POFP but refused to take into account the allegations in Sin's attached Declaration because these allegations were not made under penalty of perjury.

HRS § 586–3(c) provides,

A petition for relief shall be in writing upon forms provided by the court and shall allege, under penalty of perjury, that: a past act or acts of abuse may have occurred; threats of abuse make it probable that acts of abuse may be imminent; or extreme psychological abuse or malicious property damage is imminent; and be accompanied by an affidavit made under oath or a statement made under penalty of perjury stating the specific facts and circumstances from which relief is sought.

(Emphasis added.)

Thus, the Family Court's decision was not a product of “unchecked” discretion, but applied the statute's mandate. Moreover, this statutory requirement is necessary to a reasonable balance between the interests and rights of the petitioner and respondent. A POFP is essentially a combination request for a TRO pursuant to HRS § 586–4 (2006 and Supp.2014) and an order for protection (OFP) pursuant to HRS § 586–5.5 (2006). Under HRS § 586–4, the Family Court may immediately grant relief to a petitioner without notice or hearing upon the attested allegations, provided that petitioner's allegations show probable cause that past abuse has occurred or that threats of abuse make it probable that acts of abuse may be imminent, and that a hearing is held within fifteen days of issuing the TRO. Further, the TRO can be continued for a maximum total of 180 days. See HRS § 586–5 (2006 and Supp.2014).

Under HRS § 586–5.5, an OFP can be granted after the court considers all relevant evidence and the petitioner has met her burden of “prov[ing] the petitioner's underlying allegations by a preponderance of the evidence.” Kie v. McMahel, 91 Hawai‘i 438, 442, 984 P.2d 1264, 1268 (App.1999). An OFP “may include all orders stated in the temporary restraining order and may provide for further relief as the court deems necessary to prevent domestic abuse or a recurrence of abuse” and has no maximum duration. HRS § 586–5.5. The POFP form used in this case includes both a request for a TRO to ensure protection in the short term and a request for an OFP to continue that protection.

By its very nature, a restraining or protective order impinges upon a person's fundamental freedom of movement as it prevents the respondent from taking certain actions or being in certain places. See Coyle v. Compton, 85 Hawai‘i 197, 207, 940 P.2d 404, 414 (App.1997) (examining orders under HRS §§ 586–4 and...