CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI'I, Petitioner-Appellee,
MS-M, Respondent-Appellant, and BS, Respondent-Appellee
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT (FC-P NO. 08-1-0116)
Barbra A. Kavanaugh (admitted Pro Hac Vice), and Gary Victor Dubin, Frederick J. Arensmeyer, and Lila C.A. King, (Dubin Law Offices) for Respondent-Appellant.
Elizabeth C. Melehan for Respondent-Appellee.
Foley, Presiding Judge, Fujise and Reifurth, JJ.
SUMMARY DISPOSITION ORDER
Respondent-Appellant MS-M ("Mother") appeals from the February 22, 2 010 "Order on February 3, 2 010 Hearing" ("February 22, 2010 Order"); the October 18, 2010 "Order on September 29, 2010 Hearing" ("Custody Order"); and the January 19, 2011 "Findings of Fact and Conclusions of Law Granting Respondent['s] Motion for Post-Decree Relief Filed August 27, 2010; Order" ("Relocation Order"), each entered in the Family Court of the Second Circuit ("Family Court") .
On appeal, Mother argues that (A) the February 22, 2 010 Order erroneously "depriv[ed] . . . Mother of custody without notice or opportunity to be heard"; (B) the Family Court erroneously granted Respondent-Appellee BS's ("Father") motion to reconsider absent specific grounds under Hawai'i Family Court Rules ("HFCR") 60(b); (C) the Family Court "fail[ed] to make sufficient findings of fact and conclusions of law pursuant to [HFCR] Rule 52(a)" regarding custodial rights, visitation, and Father's "rebut[tal of] the presumption against awarding custody to [him] after he was found guilty of committing family violence against . . . Mother"; and (D) regarding the Relocation Order, the Family Court (1) erroneously found that "Father had established a material change of circumstances in support of his application for leave to relocate"; (2) erroneously entered Findings of Fact 12, 23, and 24; and (3) failed to act in the parties' daughter's ("Daughter") best interests in awarding custody of Daughter to Father and permitting him to relocate to Minnesota.
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 Mother's appeal as follows:
Mother argues that the Family Court violated her constitutional due process rights by depriving her of custody of Daughter "without notice or opportunity to be heard" via the February 22, 2010 Order, which temporarily awarded joint legal and sole physical custody of Daughter to Father while Mother was undergoing and recovering from surgery. Separately, Mother argues that there were insufficient grounds for the Family Court to entertain Father's motion for reconsideration, which the Family Court eventually granted, leading to the Family Court's Custody Order awarding sole legal and physical custody of Daughter to Father. Mother also argues that the Family Court neglected to issue findings of fact ("FOF") and conclusions of law in conjunction with its award of custody to Father. However, this court is without jurisdiction or discretion to consider these arguments because Mother did not timely appeal from the Custody Order.
Mother did not file her notice of appeal until May 9, 2011, well after the time to appeal the Custody Order and its preliminary orders had lapsed. See Haw. R. App. P. 4(a). While Mother timely appealed from the Relocation Order, the orders preceding it were not preliminary rulings upon which the Relocation Order was predicated, nor did they collectively lead to the Relocation Order. It was the Custody Order, not the Relocation Order, that was the capstone of the earlier custody proceedings. Cf. Riethbrock v. Lange, 128 Hawai'i 1, 17-18, 282 P.3d 543, 559-60 (2012) ("' [P]reliminary' [means] 'coming before' and usually 'leading up to the main part of something.'" (quoting Black's Law Dictionary 1299 (9th ed. 2009)) (original brackets omitted)). The Relocation Order arose solely from, and resolved nothing other than, Father's August 27, 2010 Motion for Post-Decree Relief ("Motion to Relocate"), whereby Father sought permission to relocate to Minnesota with Daughter.
Therefore, this Court lacks jurisdiction to consider Mother's appeal from either the February 22, 2 010 Order or the Custody Order.
B. Material change in circumstances
In order to prevail on a motion to modify a custody or visitation order, as a threshold matter, the moving party must demonstrate that there has been a material change in circumstances since that prior order.
See In re Guardianship of Doe, 93 Hawai'i 374, 388, 4 P.3d 508, 522 (App. 2000); Nadeau v. Nadeau, 10 Haw.App.
111, 121, 861 P.2d 754, 759 (1993) (holding that the statutory provision requiring demonstration of a material change in circumstances before a custody order can be modified requires a similar showing to modify a visitation order). The purpose of requiring a showing of a material change in such cases is to prevent ...