Tumaneng v. Tumaneng

136 Hawai'i 192

358 P.3d 761 (Table)

Brelie Gail Balon TUMANENG, Plaintiff–Appellant

v.Brixon Andres TUMANENG, Defendant–Appellee.

No. CAAP–14–0000895.

Intermediate Court of Appeals of Hawai‘i.

Oct. 26, 2015.

Charles H. Brower, on the briefs, for Plaintiff–Appellant.

Richard J. Diehl (Diehl & Weger), on the briefs, for Defendant–Appellee.

FOLEY, Presiding J. and FUJISE, J., with GINOZA, J. dissenting.

SUMMARY DISPOSITION ORDER

Plaintiff–Appellant Brelie Gail Balon Tumaneng (Brelie ) appeals from the “Orders Re Plaintiff's Motion and Declaration for Post–Decree Relief Filed September 11, 2013” entered on April 14, 2014 in the Family Court of the First Circuit¹ (family court ).

On appeal, Brelie contends the family court erred when it (1) excluded all evidence prior to the April 4, 2013 divorce decree, which included evidence of abusive conduct and neglect by Defendant–Appellee Brixon Andres Tumaneng (Brixon ), and the care given to the minor child by Brelie and the child's maternal grandmother; and (2) awarded child custody without making findings regarding the best interests of the child.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments and the issues raised by the parties, as well as the relevant statutory and case law, we conclude Brelie's appeal is without merit.

I. Exclusion of Evidence Prior to April 4, 2013

Brelie argues that she should have been permitted to introduce evidence of domestic violence that occurred before the entry of the original April 4, 2013 divorce decree.

In moving to exclude evidence prior to the divorce decree, Brixon relied on Nadeau v. Nadeau, 10 Haw.App. 111, 121, 861 P.2d 754, 759 (1993), which requires the person seeking a change of custody or visitation to “show a material change of circumstances since the previous custody order, and must show that such a change of custody is in the best interest of the child.” Upon a finding of a material change, the relevant inquiry is whether the material change itself is sufficient to alter the best interests of the child. See Id. (“The question is, based on what facts did the family court reduce Father's summer visitation from two and one-half months to six weeks?”); Hollaway v. Hollaway, 133 Hawai‘i 415, 417–20, 422–23, 329 P.3d 320, 322–25, 327–28 (App.2014) (focusing on the evidence underlying the family court's finding regarding educational decision-making authority which related to the parents' impasse over their son's education—the material change in circumstance justifying modification). Thus, Brelie was required to show that the evidence of domestic violence prior to the divorce decree was related to Brixon's pending relocation to Arizona. Brelie did not show such a relation. Therefore, there is no basis to find that the family court committed plain error. Doe v. Doe, 98 Hawai‘i 144, 154, 44 P.3d 1085, 1095 (2002).

Brelie asserts that the family court's ruling was erroneously based on the principles of res judicata. However, the family court's ruling was based on the relevance of the evidence under Hawaii Rules of Evidence (HRE ) Rule 402.²

II. Best Interests of the Child Finding

Brelie argues the family court failed to make any findings regarding the best interests of the child, both in the oral rulings of the court and in the court's written orders. In its “Findings of Fact and Conclusions of Law,” the family court stated:

CONCLUSIONS OF LAW

1. Based upon the reliable and credible evidence including the exhibits admitted into evidence, the testimony of the parties and witnesses and the argument of counsel, The Court finds that it is the best interest of the minor child that the parties are awarded joint legal custody and sole physical custody to [Brixon] with reasonable visitation to [Brelie]. If parties reside in the same jurisdiction they will share joint physical custody.

....

4. However, even if [Brixon's] reassignment outside of Hawaii was not contemplated and the Court were to find that this was a Material change in Circumstance, the Court finds that it is in the Child's best interest to live with [Brixon].

Brelie clarifies in her reply brief that the family court's conclusions were objectionable because they were categorized under “Conclusions of Law” (COL ) rather than “Findings of Fact” (FOF ).

COL 6 stated “To the extent that any [FOF] herein may be a[COL], it shall be so construed. To the extent that a[COL] herein may be a[FOF], it shall be so construed.” Even without COL 6, the family court's determination that it was within the child's best interests to be placed with Brixon was a mixed question of law and fact. In re Doe, 95 Hawai‘i 185, 190, 20 P.3d 616, 623 (2001). The family court's characterization of its determination as a “COL” rather than a “FOF” does not mean the family court “awarded custody of the child without making any findings regarding the best interest of the child[,]” as Brelie contends. As such, the family court's determination of the best interest of the child was not clear error. Fisher v. Fisher, 111 Hawai‘i 41, 46, 137 P.3d 355, 360 (2006).

Therefore,

IT IS HEREBY ORDERED that the “Orders Re Plaintiff's Motion and Declaration for Post–Decree Relief Filed September 11, 2013” entered on April 14, 2014 in the Family Court of the First Circuit is affirmed.

DISSENTING OPINION BY GINOZA, J.

Based on the circumstances in this case and the requirements under Hawaii Revised Statutes (HRS) § 571–46 (Supp.2014), I conclude that Plaintiff–Appellant Brelie Gail Balon Tumaneng (Mother) should have been allowed to present evidence regarding family violence in seeking to modify custody terms set out in the uncontested Divorce Decree. Therefore, I respectfully dissent.

I. Background

On April 4, 2013, Mother and Defendant–Appellee Brixon Andres Tumaneng (Father) entered into the uncontested Divorce Decree which inter alia awarded temporary physical custody of Child to Mother “until September 2013” and then physical custody to Father “starting September 2013.” Both Mother and Father were unrepresented at that time.

On September 11, 2013, Mother filed a Motion and Declaration for Post–Decree Relief (Motion for Post–Decree Relief) seeking full physical custody of Child, asserting that Father was in the U.S. Air Force and planning to move Child to Arizona. In a declaration filed the following month, on October 22, 2013, Mother asserted inter alia that for almost two (2) years she and Child had lived with Father in Japan, where Father was stationed, and that she was physically abused by Father during that time. Mother's declaration states in pertinent part:

7. It was very difficult for us in Japan, as [Father] would often hit me and I would have to leave the house, quickly so I would not be hurt further, and if I had time I always tried to take [Child] with me so he would be safe, but sometimes I was forced to leave him behind, I was so scared.

8. I spoke to my mother and she told me to come home, since there was no reason for me to stay there and let him hit me all the time.

9. [Child] and I returned to Hawaii in September of 2012 and moved back in with my mother.

10. When I got to Hawaii, I filed for divorce, but [Father] kept changing the papers. He would not sign the Divorce Decree I drafted and made his own Decree. He forced me to sign it by saying if I did not sign it, he would go to the judge and tell the judge that I was unfaithful during the marriage and that the judge would give [Child] to him and I would never see my child again. I believed him and I was afraid of him, so I signed the Divorce Decree he drafted.

11. The Decree he drafted says I have custody of [Child] until September 2013. In September 2013 [Father] would get custody. [Father] told me he was leaving the military in September of 2013 and that he would raise [Child] here in Hawaii and that I could see him whenever I wanted. I believed him, I thought I had no choice.

12. I want the judge to know that I did not sign the Decree of my own free will, I only did it because [Father] said he would take [Child] away from me forever if I didn't sign it. He said if I signed it, he would live here and raise [Child] here and I could see him anytime I wanted.

On November 13, 2013, the family court issued Pretrial Order No. 1, which temporarily continued physical custody of Child with Mother and set trial to further decide the matter.

Trial on Mother's Motion for Post–Decree Relief was held on March 3, 2014. The family court explained that the material change in circumstance warranting the trial was that the Divorce Decree was silent as to Father's relocation. Father's counsel then orally moved to limit the evidence to events occurring after April 4, 2013, the date the Divorce Decree was entered. Mother's counsel argued in response that Father's trial memorandum had introduced facts predating the Divorce Decree. The family court ruled, however, that the evidence would be limited to evidence after April 4, 2013. Trial proceeded with testimony from Mother, Child's maternal grandmother, and Father.

On April 14, 2014, the family court filed the “Orders Re Plaintiff's Motion and Declaration For Post–Decree Relief Filed September 11, 2013” (Order Regarding Post–Decree Relief), which awarded sole physical custody of Child to Father beginning on May 30, 2014 and allowed Father to relocate to Arizona at that time.

On April 24, 2014, Mother, through new counsel, filed a timely Motion for Reconsideration of the Order Regarding Post–Decree Relief (Motion for Reconsideration), in which she requested reconsideration and a new trial on the custody issue. In particular, Mother argued that she had been precluded at the trial from presenting evidence of family violence and abuse by Father because it had occurred before the entry of the Divorce Decree, but that family violence is a substantial factor that should be considered in deciding custody. Mother further argued that under HRS § 571–46(a), there is a rebuttable presumption that...