Komata v. Komata

128 Hawai'i 497

291 P.3d 395

Shari H. KOMATA, nka Shari H. Uyeno, Plaintiff–Appellant,

v.James M. KOMATA, Defendant–Appellee.

No. CAAP–11–0000537.

Intermediate Court of Appeals of Hawai‘i.

Oct. 31, 2012.

Appeal from the Family Court of the Third Circuit (FC–D NO. 08–1–0101).

Peter Van Name Esser, Joy A. San Buenaventura, on the briefs, for Plaintiff–Appellant.

Brian J. De Lima, William B. Heflin (Crudele & De Lima), on the briefs, for Defendant–Appellee.

FOLEY, Presiding Judge, LEONARD and GINOZA, JJ.

MEMORANDUM OPINION

Plaintiff–Appellant Shari H. Komata, nka Shari H. Uyeno (Mother), appeals from the Decree Granting Absolute Divorce (Decree) entered in the Family Court of the Third Circuit ¹ (family court) on June 13, 2011. The Decree dissolved the marriage between Mother and Defendant–Appellee James M. Komata (Father), and, among other things, awarded primary legal and physical custody of their two minor children to Father, subject to Mother's rights of reasonable visitation.

On appeal, Mother challenges the custody award for the parties' children, contending that the family court abused its discretion when it: (1) precluded Marvin Acklin, PhD (Dr. Acklin) from providing expert testimony; and (2) awarded physical and legal custody to Father after the court cut short Mother's cross-examination of Custody Evaluator/Guardian ad litem Edith Kawai (GAL), ignored statutory factors, and failed to make necessary findings.

For the reasons discussed below, we affirm.

I. Dr. Acklin's Testimony

The family court did not abuse its discretion when it precluded Marvin Acklin, PhD from presenting expert testimony at trial. “The Family Court has wide discretion to limit expert testimony.” Doe v. Doe, 120 Hawai‘i 149, 176, 202 P.3d 610, 637 (App.2009) (citations omitted). “The imposition of a sanction is generally within the discretion of the trial court.” Weinberg v. Dickson–Weinberg, 123 Hawai‘i 68, 71, 229 P.3d 1133, 1136 (2010) (citation and internal quotation marks omitted). It is also within the court's discretion to set the pre-trial calendar. See Hawai‘i Family Court Rules (HFCR) Rule 16.

Mother contends that the family court abused its discretion in precluding Dr. Acklin's testimony because the court did not make a finding that she acted in bad faith or that Father was prejudiced due to the untimely disclosure of Dr. Acklin's report. In short, Mother asserts that the factors set forth by this court in Weinberg v. Dickson–Weinberg, 121 Hawai‘i 401, 435, 220 P.3d 264, 298 (App.2009)affd. in part and vacated in part by Weinberg v. Dickson–Weinberg, 123 Hawai‘i 68, 229 P.3d 1133 (2010) should apply to this case. We do not agree. As expressed in the Hawai‘i Supreme Court's subsequent opinion in Weinberg, the family court in that case struck a number of exhibits and witnesses which had the “effect of essentially barring nearly an entire body of evidence [.]” 123 Hawai‘i at 77–78, 229 P.3d at 1142–43. The supreme court distinguished those circumstances from Glover v. Grace Pacific Corp., 86 Hawai‘i 154, 948 P.2d 575 (App.1997), in which this court upheld a ruling that precluded one expert from testifying due to his failure to produce a timely report, without a finding of bad faith or prejudice.

The instant case is similar to Glover rather than Weinberg. Mother was precluded from presenting one expert, whose testimony would purportedly challenge the GAL and the GAL's report. However, although the GAL's report was issued over seven months prior to the experts' report deadline, Dr. Acklin's report was untimely and instead the record indicates it was provided four days before trial. As noted in Glover, where the expert had failed to finalize his opinions before the discovery cut-off, “the fair import of the policies underlying the discovery cutoff date is that an expert should have arrived at his or her final opinions by that date. Otherwise, the party seeking discovery of such opinions would be prevented from adequately preparing for trial.” 86 Hawai‘i at 164, 948 P.2d at 585.

Similar to Glover, the family court in this case had the authority, and did not abuse its discretion, in precluding Dr. Acklin's testimony. Pursuant to HFCR Rule 16, related to pretrial conferences, “[t]he court shall make an order which recites the action taken at the conference ... and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” (Emphasis added.)

Here, the family court's August 14, 2009 Stipulation/Order To Set Trial required that, “[a]ll discovery will be completed by no later than December 1, 2009. After this date, no additional formal discovery will be initiated without court approval or the agreement of the other party.” Importantly, this order instructed the parties to serve on the other party “all appraisals and reports of expert witnesses with their expert opinions” at least one week before the settlement conference set for January 12, 2010; thus, the due date for expert reports was January 5, 2010. The order further explicitly stated: “Appraisals and other expert reports not provided as required above shall not be admitted, and such experts will not be permitted to testify at trial over the objection of the opposing party unless otherwise ordered by the court.” (Emphasis added.)

Mother failed to meet the order's deadline to submit expert reports by January 5, 2010. Even though Mother provided Dr. Acklin's name in her January 5, 2010 witness list, she did not provide his report to Father until February 4, 2010, which was four days before trial commenced. Mother made no effort to request agreement from Father or leave of the court to submit the report late.

At trial on February 8, 2010, in response to the family court's query as to why the court should permit Dr. Acklin to testify, Mother responded that:

our good cause is if this Court looks at Doctor Acklin's report it talks about the problems with the GAL's report, which is basically the lack of time logs, the lack of correspondence, the lack of a client—the lack of a file, basically case notes. None of those, none of those were provided by the GAL.

The court confirmed that Mother was offering Dr. Acklin “as a sort of industry expert to impeach [the GAL's], uh, professional approach[.]” Mother then also argued that Dr. Acklin's report was delayed because the GAL had not produced documents Dr. Acklin needed to write his report.

The family court noted that the GAL report “at the heart of this dispute has been in the parties' hands since May [2009],” and thus Mother's “late-hour problems” in getting information were essentially of her own creation. Mother's discovery request to the GAL was not served until November 3, 2009, less than a month before the discovery deadline and two months before expert reports were due. The family court also noted that Mother had failed to raise her concerns at the pretrial conference. Finally, the court determined that it was premature to allow for a rebuttal witness to testify before the GAL had testified. The family court thus ruled that it would not permit Dr. Acklin to testify at the February 8, 2010 hearing “in contravention of the pre-trial order” and would not admit into evidence any exhibits based on Dr. Acklin's report.

At the continued trial on March 15, 2010, Mother again requested that Dr. Acklin be sworn in as a rebuttal witness to “testify as to ... the standards required of a child custody evaluator” and to “the fact that the standards have not in fact been met.” The family court again denied Mother's request that Dr. Acklin testify as a rebuttal witness. The court explained that it was not ruling on Dr. Acklin's qualifications as an expert. The court disallowed Dr. Acklin's testimony because it was improper rebuttal testimony and the “requirements imposed by this Court in its earlier rulings with regard to production of records ... otherwise have not been complied with.”

There was no manifest injustice requiring the family court to modify its pretrial order under HFCR 16. Mother was able to present the children's therapist, Theresia Presbrey, PhD (Dr. Presbrey), as an expert witness. Mother was also able to cross-examine the GAL and made clear her challenge to the GAL's methodology, standards utilized, and qualifications. Under the circumstances of this case, we conclude that the family court did not abuse its discretion when it precluded Dr. Acklin from testifying.

II. Award of Custody

With regard to the award of custody to Father, Mother contends that the family court abused its discretion when it:

(1) cut off Mother's cross-examination of the GAL; and

(2) ignored statutory criteria under Hawaii Revised Statutes (HRS) § 571–46(b) (Supp 2011) and failed to make necessary findings.

A. The family court did not abuse its discretion when limiting Mother's cross-examination of the GAL.

Mother contends that the family court “should have allowed Mother to finish her case,” rather than cutting off counsel “in mid-sentence, when she was questioning [the GAL] about the supporting documents.”

The family court had the authority to set a reasonable time limit for the trial and control the litigation process, including the scope of cross-examination at trial. Doe v. Doe, 98 Hawai‘i 144, 154–55, 44 P.3d 1085, 1095–96 (2002). Furthermore, Hawaii Rules of Evidence (HRE) Rule 611² vests the court with the discretion to determine the “mode and order” of interrogation and the “scope of cross-examination.”

In Doe, the family court limited the evidentiary hearing to three hours, which had the effect of precluding mother from presenting testimony in support of her claims regarding father's abusive behavior. Doe, 98 Hawai‘i at 154–56, 44 P.3d at 1095–97. The Hawai‘i Supreme Court concluded that the family court had abused its discretion when it denied mother's HFCR Rule 59 ³ motion for further proceedings, determining that mother had shown good cause to grant the motion...