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Jarret C. Ko v. David D. Adamus

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII


November 30, 2011

JARRET C. KO,
PETITIONER-APPELLEE,
v.
DAVID D. ADAMUS, FKA DAVID D. KO,
RESPONDENT-APPELLANT

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-DA NO. 10-1-1134)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Foley, Presiding Judge, Reifurth and Ginoza, JJ.)

Respondent-Appellant David D. Adamus ("Adamus"), formerly known as David D. Ko, appeals from the Order for Protection ("Protective Order") filed on October 25, 2010 in the Family Court of the First Circuit ("Family Court").*fn1 The Protective Order, inter alia, prohibits Adamus from contacting Petitioner-Appellee Jarret H. C. Ko ("Ko"), Adamus's father, for ten years.

On appeal, Adamus argues that the Family Court erroneously adopted Ko's proposed findings of fact ("FOFs") and conclusions of law ("COLs") in their entirety, where doing so is discouraged.*fn2 Adamus also argues that the Family Court erred in granting Ko's Petition for an Order for Protection despite insufficient supporting evidence. Finally, Adamus argues that the court made numerous errors at trial by admitting into evidence disputed testimony of Ko's witnesses and crediting Ko's witnesses over his.*fn3

Adamus asks that we remand this case with instructions to the Family Court to file the parties' respective proposed FOFs and COLs, so that we may see that the court improperly adopted Ko's proposed FOFs and COLs without change. Alternatively, he asks that we set aside the challenged FOFs and reverse the Protective Order.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Adamus's arguments as follows:

(1) Adamus provides no authority for the notion that the Family Court erred if it adopted Ko's proposed FOFs and COLs in their entirety, and we find none. See Haw. Fam. Ct. R. 52. Regardless, there was substantial evidence in the record to support the court's FOFs and COLs. The FOFs are not clearly erroneous, and the COLs are not wrong.

(2) With regard to Adamus's argument that the Family Court erred in admitting and relying upon the testimony of various witnesses whom Adamus contends should not have been believed, or should or should not have been allowed to testify, we decline to review the Family Court's credibility determinations. Kie v. McMahel, 91 Hawaii 438, 444, 984 P.2d 1264, 1270 (App. 1999) ("[A]n appellate court will not pass upon issues dependent upon [the] credibility of witnesses . . . ; this is the province of the trial judge.") .

The Family Court did not err by prohibiting Adamus's witness, Natalie Adamus, from testifying about statements

Veronica Ko ("Veronica") made to her regarding Veronica's fear of Ko, where the testimony would have constituted hearsay without exception and was inadmissible. Haw. R. Evid. 801 & 802. The Family Court was also not wrong to find Katherine Ko ("Katherine") competent to testify. Haw. R. Evid. 601 & 603.1. Even omitting the court's question "So you can get in trouble [for committing perjury]?" and her response, "Yeah, I know already," Katherine's testimony showed that she understood the duty of a witness to tell the truth.

Finally, even if we assume that the Family Court erred in admitting Veronica's testimony of what Ko said to her over the telephone shortly after the July 31, 2010 incident ("Incident") because Ko's statements did not fall under the "present sense impression" or "excited utterance" exceptions to the prohibition against hearsay, Haw. R. Evid. 803(b)(1) & (2), any error was harmless as Veronica's testimony in this area was merely cumulative and substantial evidence was presented to support the conclusion that the Incident occurred as Ko said it did, and as the court concluded in COL 32. See State v. Ikeda, No. 29926, 2011 WL 927669, *1 (Haw. Ct. App. March 16, 2011) (harmless error when improperly admitted evidence was merely cumulative); In re Estate of Herbert, 90 Hawaii 443, 454, 979 P.2d 39, 50 (1999) (we will not disturb the trial court's findings if there is substantial evidence to support them). FOFs 13-21 summarize the incident, including the events that Veronica claimed Ko described to her, and are all derived from and accurately reflect Ko's trial testimony, which the Family Court had the discretion to credit. Kie, 91 Hawaii at 444, 984 P.2d at 1270. Sufficient evidence can be established by the testimony of a single witness. State v. Pulse, 83 Hawaii 229, 244, 925 P.2d 797, 812 (1996). Therefore,

IT IS HEREBY ORDERED that the Order for Protection filed on October 25, 2010 in the Family Court of the First Circuit is affirmed.


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