FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-SEP-2026
02:04 PM
Dkt. 163 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---oOo---J.T., Petitioner-Appellee, v.
M.R., Respondent-Appellant
NO. CAAP-XX-XXXXXXX
(Consolidated with No. CAAP-XX-XXXXXXX)
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NO. 2PA211000129)
September 9, 2026
HIRAOKA, PRESIDING JUDGE, MCCULLEN AND GUIDRY, JJ.
OPINION OF THE COURT BY HIRAOKA, J.
In this highly contentious paternity action, M.R.
(Mother) appeals from several post-judgment orders entered by the
Family Court of the Second Circuit.1 We hold that the family court abused its discretion by: (1) denying Mother's motion to
remove a special master, which ultimately deprived her of due
process and access to justice; (2) concluding that Mother was a
vexatious litigant and imposing sanctions; and (3) modifying
1
The Honorable Lance D. Collins presided over the post-judgment proceedings.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
legal custody without applying the Hawaii Revised Statutes (HRS)
§ 571-46(b) best-interest-of-the-child factors or entering
findings of fact and conclusions of law. We vacate the postjudgment orders at issue and remand to the family court with
instructions.
I. BACKGROUND
Mother and J.T. (Father) are Child's natural parents.
Father petitioned for custody, visitation, and support. The
family court entered the October 28, 2022 Judgment Regarding
Custody, Visitation, and Support After Trial.2 Mother and Father
were awarded joint legal and physical custody, with equal
timesharing.
Within a year, Mother and Father both moved for postjudgment relief. Mother requested sole legal and physical
custody of Child and amendment of the timesharing and holiday
schedule. Father requested sole legal and physical custody of
Child, amendment of the holiday schedule, and an order that Child
could not travel out of state.
The family court appointed a child custody evaluator.
The custody evaluator's April 30, 2024 report stated "there has
not been any evidence presented that should warrant a change from
the last court order with regard to Physical and Legal custody."
The evaluator didn't believe a collaborative co-parenting
approach was possible because Mother and Father could not
communicate. "[P]arallel parenting with strictly ordered
structure" which would "mitigate the need for any communication
2
The Honorable Loren K. Tilley II presided.
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beyond major decision making" was recommended should joint
custody be continued.
Mother's counsel withdrew in September 2024. On
September 19, 2024, Mother (representing herself) filed a Motion
to Address Illegal Drug Use by Father's Caregivers and Family
Members. On October 17, 2024, the family court orally ordered:
"Neither party shall be under the influence of any unprescribed
medication or illegal drug in the presence of the minor child."
Mother was directed to submit a form of order, but it doesn't
appear she did.
On October 16, 2024, Mother filed a Motion to Compel
Discovery and Set Deposition Dates and Deadline for
Interrogatories. On October 23, 2024, Mother filed requests for
answers to interrogatories to Father and to ten non-parties. The
family court denied Mother's motion and struck the
interrogatories to the non-parties.3
Trial on Mother's and Father's 2023 motions for postjudgment relief was held on December 11 and 12, 2024. The family
court entered its January 22, 2025 Order Granting in Part
Father's Motion for Post-Decree Relief. Joint legal and physical
custody was continued, but Father was given tie-breaking
authority for major decisions about Child. If Mother disagreed
with Father's decision she was to present the issue to a special
master. The special master was to prepare a proposed order for
the family court. If Father's decision was affirmed, Mother was
to pay the special master's costs. If Father's decision was
3
Interrogatories may only be served on parties. Hawai #i Family Court Rules Rule 33(a).
3
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overruled, Father was to pay the special master's costs. If
Father's decision was affirmed in part, the special master was to
recommend apportionment of costs.
On January 24, 2025, the family court entered the Order
Appointing Special Master. A lawyer was appointed to be the
special master.
Also on January 24, 2025, the family court entered an
order denying Mother's motion for post-judgment relief and motion
to address illegal drug use.
On January 29, 2025, Mother moved for "reconsideration
of the judgment entered on January 24, 2025," apparently
intending to refer to the January 22, 2025 Order. Mother
separately moved for a new trial. The family court entered
orders denying reconsideration and denying a new trial.
Mother appealed from the January 22, 2025 Order and the
January 24, 2025 order appointing special master, creating
CAAP-XX-XXXXXXX. We granted Mother's motion to proceed in forma
pauperis. A copy of our order was filed in family court on
March 13, 2025.
On March 31, 2025, Mother filed a motion to remove the
special master.
On April 7, 2025, Mother moved for recusal of the
family court judge.
On April 15, 2025, Father moved for sole legal custody
of Child and an order designating Mother a vexatious litigant.
Mother filed an objection to Father's motion and a separate
motion to strike Father's motion.
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The family court held an evidentiary hearing on
April 17, 2025. The court orally denied Mother's motion for
recusal. It orally denied Mother's motion to remove the special
master, found the motion "was made in bad faith and frivolous,"
and sanctioned Mother $100 to be paid to Father's counsel. The
court continued the evidentiary hearing to May 22, 2025, and
orally awarded Father temporary sole legal custody of Child.
A written order denying Mother's motion for recusal was
entered on April 17, 2025. The record does not contain a written
order denying Mother's motion to remove the special master or
imposing the $100 sanction on Mother.
On April 22, 2025, Mother requested findings of fact
and conclusions of law on the April 17, 2025 orders, moved for
reconsideration of the oral order denying her motion to remove
the special master and imposing sanctions, and moved for
reconsideration of the oral temporary legal custody order.
On May 6, 2025, Mother filed an Emergency ex Parte
Motion to Stay Enforcement of April 17, 2025 Order Pending
Evidentiary Hearing or Trial.
On May 7, 2025, Mother subpoenaed a police officer to
appear at the May 22, 2025 continued evidentiary hearing.
On May 8, 2025, the family court entered orders denying
Mother's motions for reconsideration and her motion to stay
enforcement.
On May 9, 2025, the family court entered an order
denying Mother's request for findings of fact and conclusions of
law.
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On May 19, 2025, the family court entered an order
awarding "temporary sole legal custody" of Child to Father. The
order also "temporarily suspended" the special master process
"due to Father being awarded temporary sole legal custody, as
there is no need for Father's tie-breaking authority to be
reviewed."
The continued evidentiary hearing on Father's motion
for sole legal custody of Child and to designate Mother a
vexatious litigant was held on May 22, 2025. During the hearing
the family court addressed the police officer who Mother
subpoenaed:
You are excused from your subpoena at this time. We do not
have an evidentiary hearing set today, and so I'm not sure
why exactly you were subpoenaed, but you are excused. And
I'm also going to be issuing a sanction to [Mother] in the
amount of $150 payable forthwith to the County of Maui for
issuing the subpoena to -- improperly to Sergeant Kuamo #o
and taking time out of his morning to have to be here. All
right.
On May 27, 2025, the family court entered its Findings
of Fact, Conclusions of Law and Order Determining [Mother] to Be
a [sic] HRS § 634J-l "Vexatious Litigant."
Mother appealed, creating CAAP-XX-XXXXXXX. We granted
Mother's motion to proceed in forma pauperis and consolidated her
appeals.
The Order Regarding Continued Hearing and [Mother]'s
Motion to Strike Father's Motion for Post-Decree Relief was
entered on August 19, 2025. It denied Father's motion and
"awarded temporary joint legal custody" of Child to Mother and
Father, with Father having "tie breaking authority." The order
also "temporarily suspended" the special master process and
provided:
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5. [The family] Court sanctioned [Mother] $150.00 to be
paid by [Mother] forthwith to the County of Maui.
6. The [family] Court Ordered for any approved NonEvidentiary Motion filed by [Mother], a security of
$2500 and any approved evidentiary motion filed by
[Mother], a security of S7,500 to be paid by [Mother]
and held in trust with the Clerk of the Court.
II. POINTS OF ERROR
Mother's opening brief was filed by an attorney from
the Hawai#i Appellate Pro Bono Program. It states three points
of error: (1) the family court erred by appointing a special
master, denying Mother's motion to remove the special master, and
denying Mother's motion for reconsideration; (2) the family court
erred by designating Mother a vexatious litigant and imposing
sanctions; and (3) the family court erred by modifying legal
custody without announcing or entering findings of fact.
III. STANDARDS OF REVIEW
The "family court possesses wide discretion in making
its decisions and those decisions will not be set aside unless
there is a manifest abuse of discretion." Hamilton v. Hamilton,
138 Hawai#i 185, 197, 378 P.3d 901, 913 (2016). The family court
abuses its discretion if it disregards rules or principles of law
or practice to the substantial detriment of a party litigant;
fails to exercise its equitable discretion; or its decision
clearly exceeds the bounds of reason. Id.
We review the appointment or removal of a special
master for abuse of discretion. In re Est. of Damon, 119 Hawai#i
500, 503, 199 P.3d 89, 92 (2008).
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We review the imposition of sanctions for abuse of
discretion. LaPeter v. LaPeter, 144 Hawai#i 295, 304, 439 P.3d
247, 256 (App. 2019).
We review a vexatious litigant determination for abuse
of discretion. Trs. of Est. of Bishop v. Au, 146 Hawai#i 272,
278, 463 P.3d 929, 935 (2020).
IV. DISCUSSION
A. The family court abused its discretion by
denying Mother's motion to remove the special
master.
Father contends Mother's challenges to the special
master orders are moot because the family court "suspended the
special master process and intends to remove it once it has
jurisdiction again." The issue is not moot because the family
court "temporarily suspended" the special master process; it did
not remove the special master or rescind the special master
procedure. And Mother's motion to remove the special master was
the basis for the family court fining Mother and finding her a
vexatious litigant.
Hawai#i Family Court Rules (HFCR) Rule 53 provides:
(a) Appointment. The court may appoint a . . .
special master . . . to perform specific acts and/or obtain
specific evidence to assist the court.
(b) Compensation. A master (except a volunteer
settlement master) shall be compensated as determined by the
court, and shall be paid out of any fund or subject matter
of the action, which is in the custody and control of the
court, or by one or more of the parties themselves, as the
court may direct. . . .
(c) Reference. A reference to a master shall be made
for good cause. A party may move for the appointment of a
master. The court may appoint a master on its own
initiative after affording the parties an opportunity to be
heard.
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(e) Report. The order of reference to a master shall
specify the date by which the master's report shall be
completed, served on all parties, and filed with the court.
No party requested a special master. Appointment of a
special master was not addressed during the trial on Mother's and
Father's post-judgment motions. The family court ordered it on
its own during the December 26, 2024 post-trial hearing, without
first seeking input from the parties. The court stated:
So the Court is going to adopt Father's proposed parenting
plan with some modifications.
The first is that the parents will have joint legal
custody of the minor's [sic] [Child]. But Father will have
a [sic] tie-breaking authority. If Mother disagrees with
Father's decision, she will address her disagreement to a
Special Master who I'm going to appoint by filing a written
request and presenting all evidence to that Special Master.
And after a hearing from the parties, the Special Master
will prepare a recommended findings and conclusions and a
decision in the form of a proposed order. And the Special
Master will file the recommendations and proposed order and
either party will have 10 days to take exceptions to the
recommendations in the proposed order otherwise the order
will be filed as the Court's decision. If Father's decision
is upheld, then Mother shall pay the cost of the Special
Master. If Father's decision is upheld in part, the Special
Master will also include recommendations for the equitable
apportionment of costs. And if Father's decision is
overruled, Father will pay the cost of the Special Master.
The family court explained to Mother:
I have created a Special Master process so that his -- if
you disagree with [Father's] decision, that you have the
ability to not have to wait 18 months to have somebody make
a decision that you have a -- should be less expensive and
more convenient process to have actual disputes resolved by
somebody in a much quicker time so that you don't have to
wait a long time to have an evidentiary hearing before a
judge.
Mother expressed concern she couldn't afford the
special master fees, but the family court told her she'd only
have to pay if the special master disagreed with her:
[MOTHER]: -- my concern is the disparity between
income between the two parties. And at this point, like,
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I'm -- need to file for some sort of exemption from fees
because I can't afford -- I proposed a free parenting
therapist through my insurance which was denied and proposed
a couple free parenting therapists through my insurance
which have been denied. But I can't afford any payment of
any Special Masters or any payment of anybody else at this
point because I --THE COURT: Well, I know and that's the thing is that
-- but this only comes into play if you actually have a
legitimate dispute with -- if you get to the point where you
folks don't agree, [Father] makes a call and breaks the tie
that you don't agree with, this process only comes into play
at that time. And you're only responsible for the costs if
the -- if the Special Master completely agrees with [Father]
and doesn't agree with you. So it's really under -- it
should be under normal co-parenting circumstances, a process
that's never used. But it's entirely up to you. If you
feel like you need to dispute every single thing that he
does, then it's going to end up -- you know, there's going
to be a cost to it. But I'm ordering this because I think
that this is a -- it's in the best interest of your child to
have what I consider to be the sort of disputes between
co-parents resolved quickly and more efficiently than having
these long drawn out court processes where things don't get
resolved for a long time.
The January 22, 2025 Order provided:
2. SPECIAL MASTER. If Mother disagrees with a tie
breaking decision made by Father she may address her
disagreement to the Special Master by filing a written
request and presenting all evidence to the Special
Master.
a. After a hearing on the disagreement the Special
Master will prepare a written finding and
conclusion with a decision. The written finding
shall be filed with the court in the form of a
Proposed Order.
b. Either Party will have ten days to make an
exception to the recommendations otherwise the
Order will be filed as the courts [sic]
decision. If either Party disagrees with the
recommendations they may request a hearing with
the Family Court.
c. If Father's decision is upheld then Mother shall
pay the costs of the special master. If
Father's decision is upheld in part then the
Special Master will include recommendations on
the apportionment of costs. If Father's
decision is overruled then Father shall pay the
cost of the Special Master.
d. A separate Order naming the Special Master will
be filed with the Courts. If the appointed
Special Master is unable or unwilling to
continue with their appointment the Parties can
file a Non-Hearing Motion for the appointment of
a new Special Master if they cannot agree on a
new Special Master.
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The January 22, 2025 Order did not specify the date by
which the special master's report must be completed, as required
by HFCR Rule 53(e), despite the family court's stated rationale
that "it's in the best interest of your child to have . . .
disputes between co-parents resolved quickly[.]"
Mother's Motion to Remove Special Master was filed on
March 31, 2025. She argued:
[The special master] requires a $1,500 retainer before
beginning work. This financial requirement stands in direct
contradiction to the appellate court's order granting Mother
in forma pauperis status. The denial of Mother's request
for a fee waiver creates an access to justice issue,
effectively barring her from participation due to inability
to pay.
o The current arrangement establishes a "pay-toplay" dynamic, where only the party who can
afford the retainer is guaranteed participation.
o This dynamic disproportionately impacts Mother,
a self-represented litigant with proven
financial limitations, and violates the
principle of equal access to justice.
o The Special Master's refusal to consider a
waiver or sliding scale, even when informed of
the [in forma pauperis] ruling, effectively
excludes Mother from full participation in a
court-ordered process.
(emphasis in original).
Mother pointed out she had proposed a no-fee "qualified
licensed therapist" as a special master during the post-trial
hearing, but the family court appointed a lawyer instead.
The record does not contain an order disposing of
Mother's Motion to Remove Special Master. However, during the
April 17, 2025 hearing on Father's motion to have Mother declared
a vexatious litigant, this exchange took place:
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THE COURT: Okay. Well, let me ask you this. If you
were unwilling to participate in the Special Master process,
are you -- do you have an objection to [Father] having sole
legal custody of your child?
[MOTHER]: I'm very willing to participate in the
Special Master process, but I would like a Special Master
that I can afford. I can't afford $1,500 and --THE COURT: Okay. Well -- well, let me ask you,
[Mother]. What is the issue that [Father] has -- what is
the issue that [Father]'s made a tie-breaking on [sic] that
you don't agree with?
[MOTHER]: I -- I don't -- I -- we haven't had an
issue --THE COURT: Okay.
[MOTHER]: Okay. Wait. Can we pick -- can I --THE COURT: I'm -- no, no, no. Stop. Stop. No. I'm
denying your motion and I'm sanctioning you a $100 for
filing the motion. I find that it's frivolous and made in
--[MOTHER]: Okay.
THE COURT: -- bad faith. No, and we're not having a
discussion about it --[MOTHER]: Which motion --THE COURT: -- no.
[MOTHER]: -- are you denying?
THE COURT: Your motion to -- motion to remove Special
Master for conflict of interest and financial hardship. I'm
denying it --[MOTHER]: Okay. And --THE COURT: No, no –-[MOTHER]: -- may I please --THE COURT: No, don't --[MOTHER]: -- may I please finish --THE COURT: -- no -- stop.
[MOTHER]: -- what I'm saying?
THE COURT: No. No. You cannot. I'm finding that
that motion was frivolous and it was made in bad faith. The
-- you don't even have a conflict yet and --[MOTHER]: I do. I --THE COURT: -- no, no, no. You -- no more. I already
asked you --[MOTHER]: I -- you didn't --12
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THE COURT: -- and you said --[MOTHER]: -- let me finish what I'm saying.
THE COURT: No, no, I don't want you to say anymore
because I'm finding that this motion was made in bad faith
and frivolous. No, I don't want to hear anymore about this.
[MOTHER]: I'd like to please state one thing for the
--THE COURT: No.
[MOTHER]: -- record, Your Honor.
THE COURT: I don't -- I don't want to hear it. I
don't want to hear it right now. You -- I think what you
are not appreciating that this is a very expensive process.
So every time that you file something, especially like these
motions like the discovery motion which was completely not
based on the rule, and I denied it without a hearing to
avoid everybody having to go through the expense of having
to oppose it. And then you -- then you use it as a basis to
say that I should be removed as the judge when I'm trying to
save you and the other side money. No, this motion to
remove the Special Master, if there's no dispute --[MOTHER]: There was, Your Honor.
THE COURT: -- and you're already --[MOTHER]: I would like to please state -- please.
THE COURT: Okay. What's the dispute that absolutely
--[MOTHER]: I have sent two e-mails to [Father]. We
had Jewish holidays that past -- the holiday of Purim and
the holiday of Passover. And as a legal joint tie-breaking
authority, he has the legal -- that's a -- access to
religion is a legal concern. And my request was for him to
bring the child to temple to participate. I didn't ask for
custody. I asked for the child to participate in the Purim
holiday at the temple, and I asked again for the Passover,
and those were sent within over a month ago.
THE COURT: All right. I am maintaining that this
motion was frivolous and filed in bad faith. This issue you
raised when I made my ruling, and I already determined what
the holiday schedule was. So there isn't a dispute that he
has tie-breaking authority over it. I had already ruled on
that, so I am maintaining that this motion was made in bad
faith and was frivolous, and I am going to sanction you
$100.
[MOTHER]: So how do we -- how do I get access to a
Jewish holiday, then?
THE COURT: I can't give you legal advice, but, you
know, your -- you -- in your other motion you said there's
res judicata. In your objections, you say there's res
judicata. And what the Court's already decided, the Court's
already decided. But you're now here arguing the exact
opposite that apparently if I make a decision that it's
always open to reinterpretation or further proceedings but
[Father] can't do that. So, you know, I'm not going to tell
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you what you should do or what you can do. But I'm just
telling you the motion that you filed regarding the Special
Master was made in bad faith and it's frivolous, and I'm
sanctioning $100 for filing it and I'm denying it.
On April 22, 2025, Mother moved for reconsideration of
the oral order denying her motion to remove the special master
and imposition of the $100 sanction. Attached to the motion was
an email from the special master's office stating, "We do not
work without a retainer up front."
The family court denied reconsideration. The order
incorrectly stated the "appointment of the Special Master
complies with the requirements of Rule 53, HFCRs." The order
also stated:
The arguments regarding financial hardship are without
merit. Mother would not be financially responsible for any
meritorious issue in dispute between the parents that she
may raise through the Special Master. She would only be
responsible ultimately for issues that lack merit.
[Mother]'s contention that she has not been given due
process lacks merit.
We hold that the family court abused its discretion by
denying Mother's motion to remove the special master. Doing so
deprived Mother of due process and access to justice. The
special master required that Mother pay a $1,500 retainer before
he would work on a dispute over Father's tie-breaking authority.
Even if the special master recommended the family court rule in
Mother's favor (so that Father would have to reimburse Mother's
payment of the retainer fee), Mother is indigent (she was granted
in forma pauperis status in these appeals) and unable to pay the
retainer fee up front. Her hands were tied because she could be
sanctioned if she moved for relief from Father's decision without
following the special master procedure.
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[A] parent's right to the care, custody, and control of the
parent's child is a fundamental liberty interest protected
by the United States and Hawai#i constitutions and entitled
to due process protection. In a child custody context, we
have specifically stated that the State may not deprive a
parent of the fundamental liberty interest in the care,
custody, and control of a child
without providing a fair procedure for the
deprivation. Furthermore, the Supreme Court has
said that parental rights cannot be denied
without an opportunity for them to be heard at a
meaningful time and in a meaningful manner .
DJ v. CJ, 147 Hawai#i 2, 17, 464 P.3d 790, 805 (2020) (quoting In
Re Doe, 108 Hawai#i 144, 157, 118 P.3d 54, 67 (2005)).
Under these circumstances, the special master procedure
deprived Mother of her constitutional right to due process and of
access to the courts. See Doe v. Doe, 118 Hawai#i 293, 307, 188
P.3d 807, 821 (App. 2008) (noting that "the State's imposition of
substantial filing and other fees upon indigents seeking divorces
was held to deny them due process") (quoting Logan v. Zimmerman
Brush Co., 455 U.S. 422, 430 n.5 (1982) (citing Boddie v.
Connecticut, 401 U.S. 371, 377 (1971))). The family court thus
abused its discretion by denying Mother's motion to remove the
special master. If Mother paid the $100 sanction, the family
court shall on remand order repayment to Mother.
B. The family court abused its discretion by
determining that Mother was a vexatious
litigant and imposing sanctions.
Father's April 15, 2025 motion for post-decree relief
requested a determination that Mother was a vexatious litigant.
HRS § 634J-1 (2016) provides in part:
"Vexatious litigant" means a plaintiff who does any of the
following:
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(3) In any litigation while acting in propria
persona, files, in bad faith, unmeritorious
motions, pleadings, or other papers, conducts
unnecessary discovery, or engages in other
tactics that are frivolous or solely intended to
cause unnecessary delay[.]
The Findings of Fact, Conclusions of Law and Order
Determining [Mother] to Be a [sic] HRS § 634J-l "Vexatious
Litigant" was entered on May 27, 2025. The order included a $150
sanction against Mother, to be paid to the County of Maui, for
serving a police officer with a subpoena to appear at the May 22,
2025 continued hearing on Father's motion. The family court
found and concluded:
Respondent [Mother] is a "person who commences,
institutes or maintains litigation or causes it to be
commenced, instituted, or maintained" and therefore a
Plaintiff as defined by HRS § 634J-l.
The conclusion was wrong. HRS § 634J-1 defines
"vexatious litigant" as "a plaintiff who does any of the
following . . . ." HRS § 634J-1 states:
"Plaintiff" means the person who commences, institutes or
maintains litigation or causes it to be commenced,
instituted, or maintained, including an attorney at law
acting on the attorney's own behalf.
This paternity action was commenced by Father. Mother
is the respondent. "HRS § 634J-1's definition of 'plaintiff'
does not encompass a litigant who maintains litigation by filing
motions in the litigant's capacity as a defendant." Au, 146
Hawai#i at 280, 463 P.3d at 937.
The legislative history of HRS chapter 634J demonstrates
that the inclusion of the bad faith requirement in HRS
§ 634J-1(2) and (3) was intended to limit the definition of
vexatious litigant to those plaintiffs who attempt to
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relitigate in bad faith and who intentionally abuse the
system by filing frivolous claims or deliberately cause
unnecessary delay.
Id. at 281–82, 463 P.3d at 938–39 (emphasis added).
Mother, as the respondent, could not be a vexatious
litigant under HRS § 634J-1 even if she, "while acting in propria
persona, files, in bad faith, unmeritorious motions, pleadings,
or other papers, conducts unnecessary discovery, or engages in
other tactics that are frivolous or solely intended to cause
unnecessary delay[.]" The family court's determination that
Mother was a vexatious litigant "disregarded rules or principles
of law or practice to the substantial detriment of" Mother. Au,
146 Hawai#i at 278, 463 P.3d at 935.
But we caution that the limitations of HRS § 634J-1 do
not give self-represented litigants who are not plaintiffs free
reign to engage in inappropriate behavior. Other remedies are
available to opposing parties. See, e.g., Hawai#i Rules of Civil
Procedure Rules 11(c), 16(f), 26(h), 30(d)(3), and 37; HFCR
Rules 2.1, 11, 26(g)(2), 30(d)(3), 37, 58(c), 94(f), and 94.1(c).
The family court also abused its discretion by
sanctioning Mother $150 for serving a police officer with a
subpoena to appear at the May 22, 2025 continued hearing. "The
court's sanction order must inform the person sanctioned of the
authority pursuant to which the sanction was imposed." LaPeter,
144 Hawai#i at 309, 439 P.3d at 261. The family court failed to
state its authority for imposing the sanction.
And a court may not sanction a party "without a
specific finding of bad faith" based on "clear and convincing
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evidence." Id. Here, the family court stated, "We do not have
an evidentiary hearing set today[.]" But during the April 17,
2025 evidentiary hearing, when the court discussed a continuance,
Mother stated "I'd like to call the witnesses, the police
officers that are being cited[.]"
The family court set the continued hearing for
"May 22nd at 11:30."
Mother asked, "And is that an evidentiary hearing? Is
that -- what is the May 22nd? Is that just a continuance to set
. . . the hearing or?"
The court responded, "It's just a continuance of the
motion."
During the April 17 hearing both parties were sworn and
testified. Neither party rested. The family court did not close
the evidentiary part of the hearing and never told Mother it
would not receive evidence during the continued hearing. On this
record, sanctioning Mother for issuing a subpoena for the
continued hearing, without citing authority for the sanction or
making findings that Mother had acted in bad faith, was a clear
abuse of discretion.
The May 27, 2025 Findings of Fact, Conclusions of Law
and Order Determining [Mother] to Be a [sic] HRS § 634J-l
"Vexatious Litigant" is vacated. If Mother paid the $150
sanction, the family court shall on remand enter an order
directing repayment to Mother.
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C. The family court abused its discretion by
modifying joint legal custody without making
best-interest-of-the-child findings and
conclusions under HRS § 571-46.
The 2022 Judgment awarded Mother and Father joint legal
custody. They were to "mutually make major decisions regarding"
Child. The custody evaluator's 2024 report stated there was no
evidence warranting a change of physical or legal custody. The
January 22, 2025 Order modified legal custody by giving Father
tie-breaking authority over major decisions for Child. Mother
contends the family court erred by modifying legal custody
without making written findings about Child's best interests.
HRS § 571-46 (2018) establishes criteria and procedures
for awarding custody and visitation based on the best interests
of the child. Subsection (a) lists seventeen "standards,
considerations, and procedures" to guide the family court in
awarding or modifying custody. Subsection (b) lists sixteen nonexclusive factors that the family court "shall consider" to
determine "what constitutes the best interest of the child" under
the statute.
1. The January 22, 2025 Order.
During the December 26, 2024 hearing, Mother asked the
family court why it was giving Father tie-breaking authority.
The court explained:
THE COURT: Well -- yeah, and I feel that some of your
actions are unreasonable and were detrimental to the child.
So while I agree that the way that Father handled the
Kamehameha Preschool issue probably wasn't ideal, I don't
think it was in the best interest of your child to prevent
your child from being possibly admitted to the Kamehameha
Preschool. So that is just one example, but I do feel that
your child is suffering by this sort of high conflict
parenting that's going on between you and [Father], and I
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feel unbalanced from the evidence that was presented that if
one of you has to have tie-breaking authority, I think that
he at this moment is in the better position to make that
decision. But I have created a Special Master process so
that his -- if you disagree with his decision, that you have
the ability to not have to wait 18 months to have somebody
make a decision that you have a -- should be less expensive
and more convenient process to have actual disputes resolved
by somebody in a much quicker time so that you don't have to
wait a long time to have an evidentiary hearing before a
judge.
[MOTHER]: Would you feel comfortable sharing any
other actions that you felt were unreasonable or detrimental
to the child?
THE COURT: I'm not going to put all of my findings
on the record today --[MOTHER]: Okay.
THE COURT: -- so. But I -- you know, having sat
through the thing is I -- I think, you know, in my view, I
-- there's no question that both of you care about your
child very much. However, I -- and this is, of course, my
view and my review of the evidence, in my view it seems that
in addition to the concerns about your child that there is
something extra going on in how you co-parent that has to do
with [FATHER] and not your child. And I think that that is
slightly bending the antenna about good co-parenting, and so
that's something if -- I'm not going to order you to, you
know, go into therapy about it, but that would be something
that would be a suitable topic for a therapist. And I don't
think you're doing anything with malintent, but I do think
that there's -- that there's something involving [FATHER]
that is contaminating your ability to best and effectively
co-parent. And so that is the concern that I have, but I
feel that it's a relatively minor concern that can be
addressed in the way that I proposed it, and so that you
have an immediate process to resolve any, like reasonable
disputes, you know, where he may have made the wrong call.
That's why I'm doing the Special Master process so that you
folks have a more -- less expensive and a quicker way of --if there are real disputes, to resolve them.
The family court did not announce findings of fact or
conclusions of law applying the HRS § 571-46(b) "best interests
of the child" factors during the hearing.
The January 22, 2025 Order did not contain findings or
conclusions applying the HRS § 571-46(b) factors.
After Mother filed her notice of appeal, the family
court did not enter the requisite findings of fact and
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conclusions of law to enable meaningful appellate review under
HFCR Rule 52(a).4
On this record, we conclude the family court abused its
discretion by giving Father tie-breaking authority — modifying
legal custody — without making findings of fact or conclusions of
law applying the HRS § 571-46 "best interests of the child"
standards, considerations, procedures, and factors.
2. The temporary sole legal custody orders.
During the April 17, 2025 evidentiary hearing the
family court orally awarded Father temporary sole legal custody
of Child. Mother asked, "what was the reasoning -- the legal
reasoning for temporarily granting sole legal custody [to
Father]?" The family court responded:
THE COURT: Based on the credibility of the witnesses
and the testimony that was provided, in the Court's view, it
is in the best interest of the child temporarily to have
Father have sole legal custody until we can address the
matter substantively on May 22nd at 11:30.
The family court did not reference or analyze any of
the HRS § 571-46(b) "best interests of the child" factors. The
court actually acknowledged it had not "substantively" addressed
the matter of legal custody.
The May 8, 2025 Order Denying [Mother]'s Motion for
Reconsideration of Temporary Legal Custody Order Entered
April 17, 2025 did not contain findings or conclusions or an HRS
§ 571-46(b) analysis.
4
HFCR Rule 52 provides:
(a) . . . . [U]pon notice of appeal filed with the
court, the court shall enter its findings of fact and
conclusions of law where none have been entered, unless the
written decision of the court contains findings of fact and
conclusions of law.
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The May 19, 2025 Order Granting in Part Father's Motion
for Post-Decree Relief, Filed April 15, 2025 "awarded temporary
sole legal custody" of Child to Father, but did not contain
findings or conclusions or an HRS § 571-46(b) analysis.
The family court failed to enter findings of fact and
conclusions of law under HFCR Rule 52(a) after Mother filed her
second notice of appeal.
Father argues the issue of temporary sole legal custody
is moot because the family court eventually restored joint legal
custody. The capable of repetition, yet evading review exception
to the mootness doctrine applies here. See Hamilton ex rel.
Lethem v. Lethem, 119 Hawai#i 1, 5, 193 P.3d 839, 843 (2008).
On this record, we conclude the family court abused its
discretion by awarding Father temporary sole legal custody
without making findings of fact and conclusions of law applying
the HRS § 571-46(b) "best interests of the child" factors. That
is especially so because the family court modified legal custody
against the written recommendation of the child custody
evaluator.
3. The temporary international travel ban.
The 2022 Judgment allowed Child to travel interstate
subject to conditions, and reserved the issue of international
travel "until further order from the Family Court." Father's
motion for post-judgment relief requested an order prohibiting
all out-of-state travel with Child.
The transcripts of the December 11 and 12, 2024 trial
and the December 26, 2024 post-trial hearing do not contain
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evidence, argument, or a ruling about Child's international
travel. Yet, the January 22, 2025 Order stated: "Once the minor
child turns 8 years old the Parties shall be allowed to travel
internationally with the child provided any international travel
shall require 60 days advanced notice." The January 22, 2025
Order contains no findings of fact or conclusions of law or other
explanation for the decision.
We conclude the family court abused its discretion by
ordering a travel restriction that was neither litigated nor
stipulated to by the parties, and for which no HRS § 571-46(b)
best-interests-of-the-child analysis appears in the record.
4. Mother's arguments about Child's health
insurance and child-related tax credits
lack merit.
Mother argues the "January 22, 2025 Order omits the
child's health insurance provision entirely, which was previously
included in the 2022 Judgment." Mother is correct.
Mother argues the January 22, 2025 "Order does not
clearly address allocation of child-related tax credits." Mother
is correct; the January 22, 2025 Order does not address
allocation of child-related tax credits at all.
Father points out that the January 22, 2025 Order did
not modify the 2022 Judgment's provisions about Child's
healthcare coverage or the schedule for claiming child tax
credits. Father is correct.
Mother's argument that the family court should be
ordered to "clarify and address the health insurance provision
through written findings" and enter an "express ruling" on the
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child tax credits "grounded in findings under HRS § 571-46(b)"
are without merit. The provisions in the 2022 Judgment about
Child's healthcare coverage and the schedule for claiming child
tax credits remain in effect.
V. CONCLUSION
The following post-judgment orders are vacated: (1) the
January 22, 2025 Order Granting in Part Father's Motion for PostDecree Relief; (2) the January 24, 2025 Order Appointing Special
Master; (3) the May 8, 2025 Order Denying [Mother]'s Motion for
Reconsideration of Order Denying Motion to Remove Speical [sic]
Master and Imposing Sanctions; (4) the May 19, 2025 Order
Granting in Part Father's Motion for Post-Decree Relief; (5) the
May 27, 2025 Findings of Fact, Conclusions of Law and Order
Determining [Mother] to Be a [sic] HRS § 634J-1 "Vexatious
Litigant"; and (6) the August 19, 2025 Order Regarding Continued
Hearing and [Mother]'s Motion to Strike Father's Motion for
Post-Decree Relief, Filed April 15, 2025, Held May 22, 2025.
This case is remanded to family court. On remand, the
family court shall enter orders for return of the $100 and $150
sanctions imposed on Mother to the extent Mother has paid them.
A different judge should preside over any further proceedings.
On the briefs:
/s/ Keith K. Hiraoka
Darwin Peng, Presiding Judge
for Respondent-Appellant
M.R. /s/ Sonja M.P. McCullen
Associate Judge
Benjamin E. Lowenthal,
Sarah M. Nishioka, /s/ Kimberly T. Guidry for Petitioner-Appellee Associate Judge
J.T.
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