State v. Grindling, 23472.

• Decision Date: 19 September 2001
• Docket Number: No. 23472.,23472.
• Parties: STATE of Hawai`i, Respondent/Plaintiff-Appellee, v. Christopher GRINDLING, Petitioner/Defendant-Appellant.
• Court: Hawaii Supreme Court

31 P.3d 915

96 Haw. 402

STATE of Hawai`i, Respondent/Plaintiff-Appellee, v. Christopher GRINDLING, Petitioner/Defendant-Appellant.

No. 23472.

Supreme Court of Hawaii.

September 19, 2001.

Christopher Grindling, petitioner/defendant-appellant, pro se, on the writ.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that the provisions of an unexpired temporary restraining order (TRO) issued pursuant to Hawai`i Revised Statutes (HRS) § 586-4 (Supp.1999) remain in effect until modified or set aside. Inasmuch as the provisions of the TRO in this case were not modified or set aside, the factual basis for the TRO was not subject to collateral attack at the criminal trial charging Petitioner/Defendant Appellant Christopher Grindling (Petitioner) with violation of the TRO. The second circuit family court (the court),¹ therefore, correctly applied the TRO provision prohibiting Petitioner from contacting Priscilla Vladimir to the evidence before it. We thus affirm the affirmance by the Intermediate Court of Appeals (the ICA)² of the court's April 27, 2000 judgment of probation against Petitioner, but on the grounds set forth herein.

I.

In relevant part, HRS § 586-4 provides as follows:

Temporary restraining order. (a) Upon petition to a family court judge, a temporary restraining order may be granted without notice to restrain either or both parties from contacting, threatening, or physically abusing each other .... The order may be granted to any person who, at the time such order is granted, is a family or household member as defined in section 586-1.... The order shall enjoin the respondent or person to be restrained from performing any combination of the following acts:

(1) Contacting, threatening, or physically abusing the petitioner;

....

(b) The family court judge may issue the ex parte temporary restraining order orally, if the person being restrained is present in court. The order shall state that there is probable cause to believe that a past act or acts of abuse have occurred, or that threats of abuse make it probable that acts of abuse may be imminent. The order further shall state that the temporary restraining order is necessary for the purpose of preventing acts of abuse or preventing a recurrence of actual domestic abuse, and assuring a period of separation of the parties involved. The order shall describe in reasonable detail the act or acts sought to be restrained.... The order shall enjoin the respondent or person to be restrained from performing any combination of the following acts:

(1) Contacting, threatening, or physically abusing the petitioner;

....

(c) When a temporary restraining order is granted pursuant to this chapter and the respondent or person to be restrained knows of the order, a knowing or intentional violation of the restraining order is a misdemeanor....

(Emphases added.)

Pursuant to HRS § 586-4, Vladimir obtained a TRO against Petitioner. The TRO was dated February 16, 2000, expired on May 16, 2000, and set a hearing date for a "show cause hearing" (OSC hearing) at which "the parties [would] be allowed to testify, call and examine witnesses[,] and give legal or factual reasons why these orders should or should not be continued to be in effect." The TRO was served upon Petitioner on February 16, 2000.

A March 2, 2000 complaint charged Petitioner with having violated the TRO on February 25, 2000. On April 26, 2000, his bench trial on the complaint was held. Vladimir testified for the defense, relating in pertinent part as follows:

Q. [PROSECUTING ATTORNEY] And there is a protective order [sic³] still in effect, correct?

A. [VLADIMIR] Yes.

Q. And that is a no-contact protective order.

A. Yes. From both sides of the party.

Q. Have you attempted to get that protective order amended?

A. No. My court date is a couple days from now, Friday, and I'll be doing that.

Q. So you want that court—you want it amended to have contact?

A. Yes.

Q. And who filed to amend it, you or [Petitioner]?

A. I will have to go about doing that.

Q. But you have a court date already, so somebody already—

A. No, I have a court date on Friday and I was going to speak to the judge and my attorney about that situation.

Q. So you can amend the protective order to have contact [with Petitioner]?

A. Yes.

Q. And that's because you want to maintain that relationship with him?

A. Because I want do [sic] undo the damage that I've done. The whole restraining order was in spite. Because—

On redirect examination, Vladimir testified as follows:

Q. [DEFENSE COUNSEL] Why did you file the order for protection?

A. Cuz he had sent me to jail for abuse.

Vladimir also testified as follows on redirect examination:

Q. So you didn't consider that language threatening or—

A. Oh, he wouldn't—

Q. —verbally abusive.

A. Physically hurt me. No.

....

Q. He's never hit you, ever, right?

A. Right, he's never hit me.

Q. And your relationship has been such that you've hit him, right?

[PROSECUTING ATTORNEY]: Objection, [Y]our Honor.

[VLADIMIR]: Many times.

....

Q. You've hit him in the past, right?

A. Yes, I've hit him, I've thrown things at him. I've broken things.

Q. And so you've actually been arrested for abuse.

A. Yes, I have.

The court convicted Petitioner of violating the TRO and entered a judgment of probation on April 27, 2000.

On appeal, the sole contention of Petitioner on plain error grounds⁴ is that Respondent/Plaintiff-Appellee State of Hawaii (the prosecution) "failed to prove the existence of a lawful TRO issued pursuant to HRS § 586-4, inasmuch as the trial record demonstrates that [Vladimir] filed the TRO against [Petitioner] for an improper purpose: `[t]he whole restraining order was in spite.'" (Emphasis added.)

This court assigned Petitioner's appeal from the court's April 27, 2000 judgment of probation to the ICA, and on July 31, 2001, the ICA filed a memorandum opinion affirming the judgment. See State v. Grindling, No. 23472, mem. op. at 16 (Haw.Ct.App. Jul. 31, 2001) (hereinafter, "the ICA's opinion")⁵. On August 22, 2001, Petitioner filed his application for writ of certiorari. On August 27, 2001, certiorari was granted.

II.

The ICA affirmed the judgment of probation, apparently on the grounds that (1) "[b]ased on the signed statement contained in the ex parte petition [for TRO] that Vladimir signed under penalty of perjury, the family court properly relied on probable cause," ICA's opinion at 16, and (2) "Vladimir never testified at trial that the alleged abuse charges were false, but merely that she was motivated to expose the abuse out of `spite' and in retaliation." ICA's opinion at 15.

In his pro se application for certiorari, Petitioner maintains that "the [ICA] erred in misstating evidence from [the] transcript. I could not find anywere [sic] in the transcript were [sic] ... Vladimir stated that she exposed the abuse for spite or any statement similar ..., thus rendering there [sic] decision based on evidence not in the record."

III.

Under HRS § 586-4, the court may issue a TRO without notice upon a finding of "probable cause to believe that a past act or acts of abuse may be imminent." "[T]he purpose of the restraining order is to `prevent[ ] acts of abuse, or a recurrence of actual domestic abuse, and assur[e] 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) (brackets in original).⁶ The TRO is effective upon signing and filing, HRS § 586-5.6 (1993), and enforceable when the respondent is served with the order. See HRS § 586-4(c).⁷ Violation of the TRO is a misdemeanor. HRS § 586-4(c).

The TRO remains in effect until: (1) the TRO terminates after a designated period not to exceed ninety days, HRS § 586-5(a) (Supp.1999); (2) a protective order is issued by the court at the OSC hearing, HRS § 586-5.5;⁸ (3) the court dissolves or modifies the TRO at the OSC hearing; or (4) the court dissolves or modifies the TRO upon petition by either party after notice and a hearing. See Kie v. McMahel, 91 Hawai`i 438, 442, 984 P.2d 1264, 1268 (App.1999)

.

Petitioner maintains that Vladimir's subsequent testimony at trial on the criminal complaint demonstrates that in fact there was no actual abuse, and therefore, no probable cause to support the previously issued TRO. However, by its terms, the TRO was in effect from February 16, 2000 until May 16, 2000. No party moved to set it aside. Petitioner himself could have requested that the TRO be modified or rescinded. As stated in Kie,

[n]othing in the statute prohibits a respondent from applying for [modification or dismissal of the TRO]. Indeed, ... 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. [A respondent] thus could have moved the court at any point to vacate or modify the TRO.

91 Hawai`i at 442, 984 P.2d at 1268. Although Vladimir announced at trial her intention to have the TRO amended, she took no action to do so from February 6, 2000, the date the TRO was issued, to April 26, 2000, the date of trial.

IV.

Petitioner's attempt at trial to challenge the factual basis for the TRO and on appeal to question its lawfulness on that basis constitutes a collateral attack on the TRO.

A collateral attack ... is an attempt to impeach a judgment or decree in a proceeding not instituted for the express purpose of annulling, correcting or modifying such judgment or decree. As a general rule, a collateral attack may not be made upon a judgment or order rendered by a court of competent jurisdiction. If it is only a question of error or irregularity and not of jurisdiction, it cannot be raised on collateral attack.

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