Tortorello v. Tortorello

CAROLINE MICHELLE TORTORELLO,now known as CAROLINE MEYERS, Plaintiff-Appellant, v. DAVID LYNN TORTORELLO, Defendant-Appellee

NO. CAAP-13-0004373

INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I

March 23, 2015

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(FC-D NO. 11-1-1898)

MEMORANDUM OPINION

(By: Nakamura, C.J., and Foley and Reifurth, JJ.)

In this post-divorce child-custody proceeding, Plaintiff-Appellant Caroline Michelle Tortorello nka Caroline Myers ("Mother") appeals from (1) the September 24, 2013 Order re: Trial/Extended Hearing ("Order"), which granted a motion for post-decree relief filed by Defendant-Appellee David Lynn Tortorello ("Father"), and (2) the August 27, 2013 Order Denying Plaintiff's Motion for New Trial Filed July 31, 2013. Both orders were entered in the Family Court of the First Circuit ("Family Court").¹ We affirm.

I. BACKGROUND

Mother and Father have two children together—a daughter ("Daughter") and a son (collectively, the "Tortorello Children"). Mother filed for divorce (thereby initiating the "Divorce Case"),and on January 26, 2 012, the Family Court entered a Decree Granting Absolute Divorce and Awarding Child Custody ("Divorce Decree"). The Divorce Decree awarded Mother sole physical custody of the Tortorello Children, subject to Father's rights of reasonable visitation, and ordered Father to pay child support.

Mother subsequently married Stepfather, whose two children from a previous marriage ("Stepchildren") also lived with them. Father also subsequently married SH who had physical custody of two children from her previous marriage.

On August 9, 2 012, the State of Hawai'i, Department of Human Services ("DHS") received a report of possible child abuse involving Mother and Stepfather's treatment of Daughter, based on observations made at the Hickam Air Force Base Child Development Center and Tripler Army Medical Center. The Tortorello Children moved in with Father the same day.² Mother subsequently provided Father with a notarized document allowing him to be the temporary guardian and legal caregiver of the Tortorello Children.

On September 4, 2012, DHS filed a Child Welfare Services Petition for Family Supervision ("Petition") with the family court ("CWS Court")³ in connection with the Tortorello Children (thereby initiating the "CWS Case"). DHS filed a similar petition in connection with the Stepchildren, who were placed in foster custody thereafter.

A hearing regarding the CWS Case was held on January 7, 2013. At the outset, Mother and Father "knowingly and voluntarily stipulated to jurisdiction, adjudication of the [P]etition, foster custody, and the service plan dated 8-31-12." The CWS Court entered Orders Concerning Child Protective Act, in which it stated that "DHS agrees that the bruises on [Daughter']s buttocks [were] due to a spanking by [Mother,] which she hasadmitted . . . may have been excessive . . . . [Mother] agrees there is a basis for jurisdiction. [Mother's] position [is that] it was for disciplinary reasons." DHS was awarded foster custody over the Tortorello Children. Subsequently, the CWS Court awarded temporary physical custody of the children to Father, revoked foster custody, and terminated jurisdiction. A separate order confirming the custody arrangement was filed that same day in the Divorce Case.

Meanwhile, in the Divorce Case, Father had filed Defendant's Motion and Declaration for Post Decree Relief ("Motion for Post-Decree Relief") on November 8, 2012, asking that he be awarded sole physical and legal custody of the Tortorello Children and that he receive child support. The Family Court heard the Motion for Post-Decree Relief on May 31, 2013 and June 7, 2013. Testifying witnesses included Father, SH, Mother, Stepfather, and Dr. Gregory K. Yim, a pediatric physician testifying as an expert on child medical health and identification and/or treatment of child abuse and neglect.

The Family Court made several initial oral findings summarizing the CWS Case's procedural history, concluding that there was no material change in circumstances to support the Motion for Post-Decree Relief, and opining that any physical custody award to either Mother or Father would be consistent with the Tortorello Children's best interests. Specifically, the Family Court stated:

[A]t some point DHS, after filing the petition for family-supervision, concluded that [Stepfather and Mother] could provide a safe family home for the children who resided there, not only [the Tortorello Children] but also [the Stepchildren] and returned [the Stepchildren] to the residence, . . . and closed the case awarding Mr. Tortorello temporary physical custody of [the Tortorello Children]. The court notes that the Department of Human Services did not adjudicate the allegations in the petition and the allegations in the petition remain unproved.

. . . .

[T]he movant is required to show for a change of physical and legal custody that there has been a material change in circumstances. As the court has noted, the allegations in the motion refer to DHS's petition which was closed without findings. And, . . . as a practical matter, . . . there has been no evidence of abuse for which the court can find a material change in circumstances.

[A]ddressing the issue of whether . . . a change in custody is . . . in the best interest of the children, the court would simply note that both families in this case obviously love the children. . . . [A]nd very frankly the court is -- the court simply notes that these children have been blessed by the number of people who love them, care for them, and . . . with either set of parents the children will do fine.

(Emphases added.) On the basis of those findings, the Family-Court denied the Motion for Post-Decree Relief.

Father's attorney objected to the Family Court's statements that DHS neither adjudicated nor proved the allegations in the Petition before closing the CWS Case. He pointed to findings in the Orders Concerning Child Protective Act in the CWS Case, which stated that Mother and Father had knowingly and voluntarily stipulated to jurisdiction and adjudication of the Petition, and acknowledged Mother's admission that she had used excessive force in spanking Daughter. In response, Mother's attorney claimed that Mother and Father had stipulated only to the family court's jurisdiction over the matter, but that the actual adjudication did not occur because the stipulation was on the eve of trial, and DHS chose to close the case instead of having trial. Unconvinced, the Family Court sided with Father and announced that its initial oral finding was made in error, and called a recess to further consider the issue.

Returning from recess, the Family Court modified its initial ruling, noting that it had erred "in saying that there was no adjudication because clearly the order concerning the Child Protective Act does reflect that [Stepfather⁴ and Mother] stipulated to adjudication and they stipulated to . . . the jurisdiction of the [CWS] Court." The Family Court, however, also found that DHS could not have terminated jurisdiction and subsequently returned Stepchildren to the home without finding that Mother and Stepfather could provide a safe family home. As such, the Family Court reinstated its earlier finding that there had not been a material change in circumstances and re-awarded sole physical custody of the Tortorello Children to Mother.

On June 18, 2013, and before any written order could issue regarding the Motion for Post-Decree Relief, Father filed a motion for reconsideration of the June 7, 2013 oral ruling under Hawai'i Family Court Rules ("HFCR") Rule 59(e). In the declaration attached to the motion, Father's attorney argued that there had been a material change in circumstances, both because Father was moving away from Hawai'i and because Mother had been "charged with child abuse and had stipulated to jurisdiction and adjudication of the [P]etition filed by the DHS[.]" As such, the declaration contended that the custody dispute is governed by HRS § 571-46 which specifically states that:

a determination by the court that family violence has been committed by a parent raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence.

Haw. Rev. Stat. § 571-46(a)(9) (2006) ("Rebuttable Presumption").

On July 22, 2013, the Family Court issued a minute order granting Father's motion for reconsideration because Mother had failed to overcome the Rebuttable Presumption. Accordingly, Father was awarded sole legal and physical custody of the Tortorello Children, subject to Mother's visitation rights. Consistent with the July 22, 2013 ruling, the Family Court entered an order granting the motion for reconsideration on August 27, 2013, and subsequently issued the September 24, 2013 Order, which forms now the basis for this timely appeal.

The Family Court entered its Findings of Fact and Conclusions of Law and Order ("FOF/COL") on December 23, 2013, determining that the Rebuttable Presumption applied because Mother had committed acts of "family violence" against Daughter, and that Mother had failed to rebut the presumption. Specifically, the court found that Mother's act of spanking Daughter so excessively as to cause bruising constituted "family violence" under HRS § 571-2. This disposition follows.

II. POINTS OF ERROR

Mother contends that the Family Court abused its discretion by (A) granting Father's motion for reconsiderationbecause Father presented no new evidence or argument that could not have been raised at the hearing; and (B) modifying child custody in accordance with Father's Motion for Post-Decree Relief because (1) Father failed to establish a material change in circumstances, (2) the Family Court violated Mother's...