NO. 26436

IN THE SUPREME COURT OF THE STATE OF HAWAI`I


PEGGY FEARN, Plaintiff-Petitioner

vs.

THE HONORABLE GREGG YOUNG, Per Diem Judge of the Family
Court of the First Circuit, State of Hawai`i, or his successor
in interest of the Family Court of the First Circuit, Respondent

and

RODGER JOHNSON, Defendant-Respondent


ORIGINAL PROCEEDING

ORDER DENYING PETITION FOR WRIT OF MANDAMUS
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)

Upon consideration of Petitioner Peggy Fearn's petition for a writ of mandamus and the supplemental memorandum in regard to the petition for a writ of mandamus, the papers in support, and the records and files herein, it appears that: (1) Petitioner asks this court to review the order issued by the respondent judge in Fearn v. Johnson, FC-DA 03-1-2850, wherein the respondent judge refused to take further action on Petitioner's petition for a temporary restraining order and deferred jurisdiction to the North Dakota court that was handling matters related to Petitioner's divorce and custody of a minor child in Johnson v. Fearn, Civil No. 95-C-1658, pending in the District Court, Grand Fork County, North Dakota; (2) Petitioner also filed a motion in the North Dakota case asking North Dakota to decline to exercise its jurisdiction and to relinquish jurisdiction to the Hawai`i court; (3) on March 26, 2004, the North Dakota court issued a memorandum decision granting Petitioner's motion and relinquishing jurisdiction to the Hawai`i family court; (4) inasmuch as the North Dakota court relinquished jurisdiction over these matters to the Hawai`i court and Petitioner can seeks any appropriate relief in the Hawai`i family court, the issuance of a writ of mandamus is not warranted. See Kema v. Gaddis, 91 Hawai`i 200, 204, 982 P.2d 334, 338 (1999) (citing Straub Clinic & Hospital v. Kochi, 81 Hawaii 410, 414, 917 P.2d 1284, 1288 (1996))(a writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress the alleged wrong or obtain the requested action). Therefore,

IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied without prejudice to Petitioner seeking any appropriate relief in the Family Court of the First Circuit.

DATED: Honolulu, Hawai`i, April 16, 2004.
 

Everett Cuskaden,
Ryan Cuskaden, and
Evan Uchida (Everett
Cuskaden & Associates)
for plaintiff-petitioner
on the writ