Medeiros v. Medeiros

GENOA KUUIPO MEDEIROS, Plaintiff-Appellee, v. KEVIN FRANCIS MEDEIROS, Defendant-Appellant

NO. CAAP-13-002023

INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I

Dated: May 14, 2014

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(FC-D NO. 11-1-6577)

MEMORANDUM OPINION

(By: Foley, Presiding J., Fujise and Leonard, JJ.)

Defendant-Appellant Kevin Francis Medeiros (Kevin) appeals from the June 17, 2013 "Order Denying Post-Decree Relief filed March 12, 2013" (Order Denying Motion) entered in the Family Court of the First Circuit¹ (family court).

On appeal, Kevin² contends the family court erred by:

(1) receiving Plaintiff-Appellee Genoa Kuuipo Medeiros's (Genoa) Exhibits "1" through "14" into evidence over his objections;

(2) refusing to allow him to present oral testimonies and requiring offers of proof;

(3) refusing to allow him to present evidence from a medical doctor regarding Genoa's alleged failure to providemedical care for one of the parties' children;

(4) finding he had not shown a prima facie case for a material change in circumstances regarding custody of the parties' children;

(5) ruling on his motion before allowing and considering all evidence that was to be moved into evidence;

(6) receiving evidence before the hearing commenced and before moving it into evidence; and

(7) allowing Genoa to cross-examine him regarding her offer of proof and not affording him the opportunity to cross-examine Genoa.

I. BACKGROUND

On April 13, 2011, Genoa filed a complaint for divorce. The parties had three minor children (collectively, children).

On January 18, 2013, the family court entered a divorce decree that: (1) dissolved the marriage between Kevin and Genoa; (2) awarded the parties joint physical custody of the children; (3) awarded sole legal custody of the children to Genoa; (4) awarded child support payments of $12 per month from Genoa to Kevin; and (5) divided and distributed the parties' assets, property, and debts.³ The divorce decree provided that Kevin was to have the children from Monday afternoon until Friday morning while school was in session.

On March 12, 2013, Kevin filed a "Motion And Declaration For Post-Decree Relief," (Motion for Post-Decree Relief) requesting sole legal and physical custody of the children. Kevin alleged that Genoa "did not provide medical care for the daughter which put the child at risk of causing permanent damage to the minor child's hearing and "failed to pay her share of the school expense."

On June 17, 2013, the family court held a hearing on Kevin's Motion for Post-Decree Relief. In response to the family court's request that the parties agree that Genoa's exhibits would be received subject to cross-examination, Kevin's counsel, Scot Brower (Brower) asserted that a lot of Genoa's exhibits werecumulative, unauthenticated, and hearsay. The family court responded with, "actually the court has received the face sheet of this exhibit list, and everything that has been proffered by [Genoa] is either a filed court document or a statement by [Genoa] . . . ."

When Brower indicated he would call Kevin to testify, the family court stated it first required an offer of proof. Brower stated Kevin would testify that on October 13, 2012, Genoa took one of the children to a pediatrician who prescribed a medication, and that Genoa did not inform Kevin of the child's medical condition or provide the medication to Kevin when he received the child for her regular visit with him. Kevin also would testify to being contacted by the children's school and teacher numerous times "with regard to the children not being properly prepared for school after visitation with [Genoa] . . . ." The family court interjected: "[t]his is an offer of proof just with respect to your client, and this is about material change in circumstance. So don't - you needn't argue the case because there's no . . . rule that allows you to argue the case at this juncture anyway."

Genoa, proceeding pro se, testified the medication in question was the child's ear drops, which were used to clear mucous from the child's ears. In light of the temporary restraining order (TRO) against Kevin, Genoa left the medication with his mother, a third party. Genoa testified that "I text[ed] him, you know, your mom has the medication. And so he just went and said I didn't give him the medication." Genoa further testified that the child's ear infections were not caused by a lack of medical attention, but because of the way her ear is physically formed. Genoa also stated:

So, my daughter's ear infections are not physically caused because I don't give her medication which I do. I have all the documents showing that I take her to doctors, I always get the medication for her. Um, it's just that one time I didn't give him the drops because I asked the doctor for extra drops so that they could have - he could have one, his mom could have one, and we have our set so we don't have to keep switching the drops and taking it off - taking it to school and whatnot.

After Genoa's testimony, the family court indicatedthat it would follow an "important rule" that "previous orders do not even get looked at unless there's a finding of material change in circumstance. No. The court does not find that. The [Motion for Post-Decree Relief] is denied."

The family court asked Genoa to prepare a handwritten order that Kevin's Motion for Post-Decree Relief would be denied for failure to show a material change in circumstance. Brower then asked to "make a record for the purposes of appeal" and proceeded to argue that the family court erred by refusing to admit Kevin's Exhibits "A" and "B" into evidence. The following colloquy occurred:

THE COURT: I didn't -- whoa. I didn't refuse to allow it. I just forgot to get to it.

[Brower]: Well, then I don't know how the court could make a ruling if -- because we were going to put these into evidence and --

THE COURT: I received them.

[Brower]: Yeah. So everything is received except C and D; is that correct?

THE COURT: No. I received A and B. And by the way I read A and B --

[Brower]: All right.

THE COURT: -- already.

[Brower]: And -

THE COURT: C and D is in and read.

[Brower]: Okay.

THE COURT: You want to speak to E?

[Brower]: E is the photographs of the minor showing the injuries she sustained at the hands of [Genoa]. We think that that's material to the case.

THE COURT: Well, um, your, uh -- it's material. The problem is that there was a failure of proof about that after I listened to both your offer of the testimony of your client and, um, the, uh, defendants testimony -- yes, defendant's testimony. The court will receive it -

[Brower]: Well, Your Honor -

THE COURT: -- E and F.

[Brower]: -- you didn't give me an opportunity to examine my client -

THE COURT: And I read it.

[Brower]: -- as a witness which I wanted to do. Iwanted to ask questions of my client and I was going to lay a foundation with regard to the photographs.

THE COURT: I received D and F.

[Brower]: All right. E - F is received.

THE COURT: E is received. F is received. And --

The family court also received Kevin's Exhibits G, H, and I. The family court then reiterated that Kevin's Motion for Post-Decree Relief was dismissed.

On June 17, 2013, the family court entered the Order Denying Motion denying Kevin's Motion for Post-Decree Relief "due to no material change in circumstance found."

On July 16, 2013, Kevin filed a notice of appeal from the family court's Order Denying Motion.

On July 17, 2013, Genoa and Kevin filed their respective exhibit lists. Genoa's exhibits consisted of the following:

1. medical records for the children's visits with Jason Ninomiya M.D. (Dr. Ninomiya) for 2008-2013;

2. Custody Investigation Report dated September 13, 2011;

3. an "Amended Extended Order for Protection" expiring on September 27, 2014;

4. a letter from the Department of the Prosecuting Attorney, City and County of Honolulu, indicating Kevin violated the TRO on March 22, 2011;

5. an "Order for Protection," which expired on October 1, 2011;

6. a "Petition for an Order for Protection on Behalf of a Family or Household Member," filed by Genoa on November 2, 2012;

7. a letter dated August 8, 2011 from Cheryl Y. Yamaki (Yamaki), Staff Attorney for the Domestic Violence Action Center (DVAC), to Brower indicating Kevin had faxed the Complaint for Divorce to the children's school and stated the document gave him full custody of the children;

8. a letter dated June 21, 2011 from Yamaki to Brower, indicating Kevin called DVAC's helpline twice and stated DVAC was"helping the wrong person";

9. letters from two of her children;

10. her paystubs;

11. her 2012 Individual Income Tax Return; and

12. her 2012 Wage and Tax Statement.

Kevin's exhibits consisted of the following:

A. Dr. Ninomiya's declaration including a November 2, 2012 report from his medical examination of the child to "recheck ears";

B. Wilson T. Murakami, M.D.'s declaration indicating he had examined the child on October 27, 2012;

C. Genoa's November 2, 2012 "Petition For An Order For Protection On Behalf Of A Family Or Household Member;"(id. at 838);

D. the family court's "Order Dissolving the [TRO] Filed on November 2, 2012," (Order Dissolving TRO)

E. a photograph of one of the children with a bruised arm;

F. a Honolulu Police Department Incident Report, for an incident that occurred on December 7, 2012;

G. a summary of educational expenses paid by Kevin;

H. receipts from educational expenses paid by Kevin; and

I. a mobile phone screenshot of text messages from Genoa to Kevin, dated June 12 and 13, 2013.

II. DISCUSSION

Kevin's March 12, 2013 "Motion For Declaration For Post-Decree Relief" was apparently made pursuant to Hawaii Revised Statutes (HRS) § 571-46(a)(6) (Supp. 2013). He used a family court post-decree motion-form, part A of which required the movant to identify ways "the circumstances of the subject child(ren) have changed since the last custody order . . . [.]"...