NOT FOR PUBLICATION
IN THE INTERMEDIATE COURT OF APPEALS
ANN QUON DONNELLY, Plaintiff-Appellant, v.
WILLIAM HORACE DONNELLY, Defendant-Appellee
FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO. 99-0236)
(By: Burns, C.J., Watanabe and Nakamura, JJ.)
We vacate the March 28, 2003 order and the April 25, 2003 order and remand for further proceedings consistent with this opinion.
On January 2, 2002, Jo Ann was awarded sole legal and physical custody of Son, subject to William's rights of reasonable visitation.
On January 14, 2003, Mother filed a motion asking that William's "visitation with the minor child of the parties . . . be restricted and modified and [William] should not be allowed to have overnight visitation until further order of the Family Court."
On February 5, 2003, Judge Allene Suemori entered an Order for Short Trial. This order scheduled the trial to occur on March 28, 2003, allowed each party a maximum of sixty minutes to present their case, allowed only the parties to testify, and stated:
5. The disputed issue(s) at trial shall be limited to:
(a) Restriction of [William's] visitation of the minor child of the parties.
(b) [Jo Ann's] request for reimbursement of medical costs.
(c) [Jo Ann's] request for reimbursement of attorney's fees.
No issues shall be presented to the Court other than as specified in this paragraph.Judge Gregg H. Young presided over the March 28, 2003 trial. The transcript of the evidentiary part of this trial has a total of ninety-three pages.
In her presentation, Jo Ann noted that Son "is ill today with chronic sinus and eye allergy" that required the parties to communicate regarding his medicines, condition, and treatment, alleged that William refuses to communicate, and noted that "the remedy that we are asking, therefore, is is [sic] that the visitation be limited."After Jo Ann testified, while William was testifying, it is reported on page eighty-five of the transcript that William stated, in relevant part, that "[t]here's -- there's a mass of confusion that's going on towards the well being of my son, and coming here doesn't suit it, Your Honor. That's why, in and of itself, with all of these circumstances, I'm gonna ask for temporary custody of my son for six months."
It is reported at page ninety-four of the transcript that, at the conclusion of the trial, Judge Young orally decided as follows:
THE COURT: . . . .
[COUNSEL FOR JO ANN]: Joint legal custody, Your Honor?
[COUNSEL FOR JO ANN]: Your Honor, that's what it was before and we went through great lengths to change that, Your Honor.
[COUNSEL FOR JO ANN]: Your Honor, he is not even --
[COUNSEL FOR JO ANN]: -- asking for that, Your Honor.
[COUNSEL FOR JO ANN]: He has not filed a --
. . . .
On March 28, 2003, Judge Young entered an order stating, in relevant part, as follows:
(1) Custody shall be changed to joint legal and physical as of today.
(2) Time sharing shall be
one week/one week beginning Monday 3/31. Drop off/pick up shall be at
school on Mondays. In summer,
at [Jo Ann's] residence.
(3) Communication shall be by writing & voice mail.
(4) Child support shall be recalculated; [William] to submit guidelines w/in 20 days.
(5) [William] to pay [Jo Ann] $635.32 within 90 days of this order.
(6) [Jo Ann's] requests for attorney's fees are denied.On April 25, 2003, after a hearing, Judge Young entered an order which states, in relevant part, as follows:
Child Support shall be reduced from 620.00/mo. to 160.00/mo. per recalculated child support guidelines from May 1st, 2003.
On April 11, 2003, Jo Ann filed a motion for a new trial or for reconsideration of the March 28, 2003 order. On May 15, 2003, after a hearing on May 9, 2003, Judge Young entered an order denying Jo Ann's request for a new trial, granting Jo Ann's request for reconsideration, but deciding not to change its March 28, 2003 order, and ordering counsel for Jo Ann to submit proposed findings of fact through William within twenty days.
On August 21, 2003, Judge Young entered William's proposed findings of fact and conclusions of law.
The basic elements of procedural due process of law require notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). In this case, with respect to custody of Son, the family court denied Jo Ann's right to the basic elements of procedural due process of law.
Accordingly, we vacate the March 28, 2003 order and the April 25, 2003 order and remand for further proceedings consistent with this opinion.
DATED: Honolulu, Hawai`i, March 31, 2005.
Blake T. Okimoto