Dora J. GRIFFIN, Petitioner-Appellee, on behalf of Michael E. GRIFFIN, a Minor, Subject,
Jean DAVENPORT, Respondent-Appellant.
This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35
Appeal from the Family Court of the First Circuit (FC-Domestic Abuse No. 10-1-7071).
Harlan Y. Kimura, on the briefs, for Appellant.
NAKAMURA, C.J., FOLEY and GINOZA, JJ.
Respondent-Appellant Jean Davenport (Davenport) appeals from an Order for Protection issued on November 12, 2010 by the Family Court of the First Circuit (family court), pursuant to which, among other things, Davenport is precluded from contacting the subject minor (Minor). The Order for Protection is to remain in effect for five years, until November 12, 2015.
On appeal, Davenport asserts the following points of error: (1) the family court erred in granting the restraining order in FC-DA No. 10-1-7071 because of the res judicata effect of the dissolution of the temporary restraining order in a prior case, FC-DA No. 10-1-6987; and (2) the family court erred in ruling that res judicata was inapplicable to FC-DA No. 10-1-7071 because Petitioner-Appellee Dora J. Griffin (Griffin) was not misled that Minor's dislocated elbow was caused by a fall, when Griffin already independently concluded how the injury occurred before proceeding with the prior case, FC-DA No. 10-1-6987.
For the reasons discussed below, we remand for further proceedings consistent with this opinion to determine if res judicata applies.
On behalf of her son, Minor, then four-years old, Griffin filed two successive Petitions for an Order of Protection against Davenport in the family court. Davenport, who used to be Minor's pre-school teacher, began a relationship with Minor's father, Darren Iwamoto, in March of 2010.
Griffin's first petition, in FC-DA No. 10-1-6987, was filed on October 8, 2010 alleging two incidents of abuse. The first incident Griffin alleged was on September 27, 2010, as to which she asserted " my son's preschool administrator informed me that Jean Davenport had threatened to choke & stab him with a knife because of an argument between his father." The second incident was alleged to have been in October of 2010 and Griffin asserted " my son said ‘ she choke me on my neck’ after I asked him if Jean had ever touched him." On October 8, 2010, a temporary restraining order (TRO) was issued and a hearing was set for October 18, 2010.
At the hearing on the first petition, Griffin, Davenport and Iwamoto testified. Griffin represented to the family court that she had a witness who did not show up. Griffin sought to present a letter from Kelly Shodahl (Shodahl), Davenport's " boss" at the preschool, but because Shodahl was not in court to testify, Griffin was not allowed to admit the letter into evidence. The family court concluded at the end of the hearing that Griffin had not carried her burden of proof and issued an order that day, October 18, 2010, dissolving the TRO against Davenport due to insufficient evidence.
Griffin's second petition, in FC-DA No 10-1-7071, was filed eleven days later, on October 29, 2010, alleging three incidents of abuse. The first alleged incident (which had not been alleged in the first petition) was in April of 2010 and Griffin asserted that " Ms. Jean Davenport grab my son and dislocated his elbow when I asked his father what happen he told me he fell." The second alleged incident (previously alleged in the first petition) was in October of 2010 and Griffin asserted " my son said ‘ she choke me on my neck’ after I asked him if Jean Davenport had ever touched him." The third alleged incident (similar to an incident alleged in the first petition) was in September of 2010 and Griffin asserted " Ms. Jean Davenport had threatened to take my son in a bathroom and beat him up also wanted to ‘ punch’ um in the throat and stab him in the neck." A TRO was issued on October 29, 2010 and a hearing set for November 12, 2010.
At the hearing on the second petition, Griffin, Shodahl, Davenport and Iwamoto testified. During the hearing, Davenport argued that the prior TRO had been dissolved and that res judicata should apply. At the end of the hearing, the family court issued its ruling, as follows:
THE COURT: The Court is going to find that— that there was new evidence in this case that was not brought up in the original TRO or presented to Judge Aburano and was not available to Ms. Griffin prior to the filing of the first TRO, which was denied.
The Court in this case is going to also find that the petitioner has proven the allegations and is going to ...