APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT. FC-P NO. 07-1-0894.
On the briefs: Huilin Dong, for Plaintiff-Appellant.
Michael A. Glenn, for Defendant-Appellee.
NAKAMURA, C.J., FUJISE AND REIFURTH, JJ.
[133 Hawai'i 437] REIFURTH, J.
In this consolidated appeal, Plaintiff-Appellant NB (" Father" ) appeals from (1) the Order Setting Aside Hearing Date filed February 19, 2013, (2) the Record of Communication Between Courts (" Record of Communication" ) filed February 19, 2013, and (3) the Order Denying Motion for Relief from Orders/Stay of Orders filed May 23, 2013 in the Family Court of the First Circuit (" Family Court" ), in which the Family Court declined to exercise jurisdiction over the dispute between Father and GA (" Mother" ) over custody of their daughter (" Daughter" ). Father challenges certain findings of fact (" FOF" ) and conclusions of law (" COL" ) in the Findings of Fact and Conclusions of Law issued by the Family Court on May 28, 2013 (" FOF/COL" ).
We vacate that portion of the Record of Communication stating that " Hawaii declines jurisdiction[,]" as well as the FOF/COL. We instruct the Family Court to defer ruling on Father's previous motions, pending a determination as to whether it is more appropriate for Florida to exercise jurisdiction pursuant to Hawaii Revised Statutes (" HRS" ) § 583A-207.
Daughter was born on August 31, 2004 in California. Father, Mother, and Daughter apparently lived in Hawai'i for some period of time between November 2005 and August 2007. On August 20, 2007, Father filed a Petition for Paternity or for Custody, Visitation and Support Orders After Voluntary Establishment of Paternity (" Petition for Paternity" ). The petition contended that Daughter was then living in Honolulu with both Mother and Father. That claim notwithstanding, the related Affidavit of Serving Officer Without the State of Hawaii stated that Mother was served with a copy of the petition at an address in Miami Beach, Florida.
Mother, appearing by telephone, Father, and their respective attorneys were present at a November 1, 2007 return date hearing on the Petition for Paternity. On November 13, 2007, the Family Court entered a Stipulated Judgment of Paternity. Legal custody of Daughter was awarded to Mother and Father jointly, and the issue of physical custody was reserved for trial. Prior to the scheduled trial, Father and Mother resolved physical custody via stipulation on January 3, 2008 (" Stipulated Joint Custody Order" ), with Daughter to spend some holidays and two months each summer with Father.
[133 Hawai'i 438] On March 13, 2009, Father filed a Motion for Relief After Judgment or Order and Declaration, requesting sole physical custody of Daughter. Father subsequently filed an Amended Motion for Relief After Judgment or Order and Declaration on May 7, 2009. Father, however, withdrew the motions on June 22, 2009, stating that Mother had not been served with the motions.
More than three years passed and, on August 8, 2012, Father filed an Ex Parte Motion for an Order Granting Plaintiff Temporary Sole Custody of His Minor Child or in the Alternative to Shorten the Time For Hearing Plaintiff's Motion for Relief After Judgment or Order and Declaration, which was denied. On August 13, 2012, Father filed another Motion for Relief After Judgment or Order and Declaration (" Motion for Sole Custody" ), in which he requested sole physical and legal custody of Daughter. The declaration accompanying the motion appeared to imply, without expressly stating, that, at the time of the filing, Daughter was in Hawai'i and living with Father. On August 23, 2012, Father submitted another Ex Parte Motion for an Order Granting Plaintiff Temporary Sole Custody ...