Perez v. Perez

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-SEP-2020
08:07 AM

NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

CAAP-XX-XXXXXXX
(FC-DA NO. 17-1-2343)
JOHN H. PEREZ, Petitioner-Appellee, v.
MICHAEL HELIO PEREZ, Respondent-Appellant

AND
CAAP-XX-XXXXXXX
(FC-DA NO. 17-1-2344)
DENNIS J. PEREZ, Petitioner-Appellee, v.
MICHAEL HELIO PEREZ, Respondent-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

In this consolidated appeal, Respondent-Appellant

Michael Helio Perez (Michael) appeals from two Orders of

Protection entered on December 19, 2017, by the Family Court of

the First Circuit (Family Court),1 pursuant to which he was

prohibited from contacting his brothers, Petitioners-Appellees

John J. Perez (John) and Dennis J. Perez (Dennis), and prohibited

1
The Hon. Catherine Remigio presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

from possessing firearms except under certain specified

circumstances, for a period of ten years.

Michael raises four points of error on appeal,

contending that the Family Court erred when it: (1) & (2)

entered the Orders of Protection in favor of John and Dennis; (3)

entered Conclusions of Law (COLs) 9, 13, 14, 15, and 16 in each

of the Orders of Protection; and (4) considered the contents of

the documents in a court file as evidence under the judicial

notice rule of evidence.2
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 Michael's points of error as follows:

(1) Hawaii Revised Statutes (HRS) § 586–5.5 (2018)

authorizes a trial court to convert a temporary restraining order

into a longer-lasting protective order upon making certain

findings. See Styke v. Sotelo, 122 Hawai#i 485, 489 n.5, 228

P.3d 365, 369 n.5 (App. 2010). The statute states, in relevant

part:
If, after hearing all relevant evidence, the court finds
that the respondent has failed to show cause why the order
should not be continued and that a protective order is
necessary to prevent domestic abuse or a recurrence of
abuse, the court may order that a protective order be issued
for a further fixed reasonable period as the court deems
appropriate.

Domestic abuse is defined as "[p]hysical harm, bodily

injury, assault, or the threat of imminent physical harm, bodily

2
In each of the two Orders of Protection, COL 9 concerned the
taking of judicial notice, COLs 13-15 addressed the issuance of the respective
Order of Protection, and COL 16 addressed the period of the Order of
Protection. This Summary Disposition Order addresses these points by topic,
rather than as enumerated.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

injury, or assault, extreme psychological abuse or malicious

property damage between family or household members." HRS § 586-

1 (2018).

Under HRS § 586–5.5(a), the burden remains on the

petitioner to prove the underlying allegations by a preponderance

of the evidence. Kie v. McMahel, 91 Hawai#i 438, 442, 984 P.2d

1264, 1268 (App. 1999) (citation omitted).

Here, the Family Court concluded that "[a] protective

order is necessary to prevent domestic abuse or a recurrence of
abuse by [Michael]." Both Dennis and John testified, inter alia,

that Michael threatened to kill them, that they believed that

Michael is angry with them and harbors a grudge over the care of

their late mother, and the handling of her affairs, and that they

feared that he might use a gun against them. Both Dennis and

John, as well as Dr. Amy Brown, an unrelated witness who

described herself as someone who knew Michael through her work

and as a friend to Michael, testified that Michael had episodes

of auditory hallucinations in their presence and/or had described

his auditory hallucinations to them. The Family Court found and

concluded that the testimonies of John, Dennis, and Dr. Amy Brown

were credible. The Family Court found and concluded that

Michael's testimony, in which he disputed the other witnesses'

statements, was not credible.

"[I]t is well-settled that an appellate court will not

pass upon issues dependent upon the credibility of witnesses and

the weight of the evidence; this is the province of the trier of

fact." DL v. CL, 146 Hawai#i 328, 336, 463 P.3d 985, 993 (2020)

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(citation omitted). "[W]here the trial court's determinations of

fact are largely dependent upon the resolution of conflicting

testimony, great weight will be accorded its findings upon

review." Kie, 91 Hawai#i at 444, 984 P.2d at 1270 (citation and

internal quotation marks omitted).

We conclude that the Family Court's findings of fact

were supported by the evidence before the court, and they were

not clearly erroneous. Thus, the Family Court did not err in

concluding that John and Dennis established by a preponderance of
evidence that the Orders of Protection were necessary to protect

them from physical harm.

(2) Michael argues that the Family Court erred when it

fixed the period of the Orders of Protection at "an incredible"

span of ten years. Nothing in HRS § 586-5.5(a) prescribes the

maximum length of a protective order, but rather it allows the

court to extend an order "for such further fixed reasonable

period as the court deems appropriate." John and Dennis's

counsel stated that John and Dennis wanted an order for "as long

as possible" and requested orders lasting fifteen years;

Michael's counsel requested three years. The Family Court

concluded that ten years was a "fixed, reasonable and appropriate

amount of time based on the facts and circumstances of this

case."

The Family Court had the discretion to determine the

length of the protective order. See Styke, 122 Hawai#i at 491,

228 P.3d at 371. "[G]iving the court 'the discretion to extend

protective orders' provides 'greater flexibility in trying to

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

calm the emotionally charged nature of such situations.'" Id.

(citations omitted).

In Lite v. McClure, this court concluded that a family

court did not abuse its discretion when it issued an order of

protection for ten years. No. 29107, 2009 WL 1263099 (Haw. App.

May 8, 2009) (SDO). There, the petitioner had requested a no-

contact protective order for "[f]orever, as long as the Court

will allow." Id. at *2. The family court rejected Lite's

request for an "indefinite protective order," and instead issued
an order for "a fixed period of ten years." Id. We found "no

legal impediment to a term of ten years" and held that ten years

was not unreasonable, did not disregard the rules and principles

of law, and accordingly was not an abuse of discretion. Id.

Here, we similarly conclude that, under the facts and

circumstances of this case, especially the relationship and

history of the parties, a ten-year duration for the Orders of

Protection was not unreasonable, did not disregard the rules and

principles of law, and accordingly was not an abuse of

discretion.

(3) Michael argues that the Family Court erred by

taking judicial notice of the records and files in FC-DA No.

15-1-1530 (Rosanne Harrigan v. Michael H. Perez), FC-DA No.

17-1-3243 (John H. Perez v. Michael Helio Perez), and FC-DA No.

17-1-2344 (Dennis J. Perez v. Michael Helio Perez). The Family

Court took judicial notice in its oral ruling, as well as its

written Findings of Fact and Conclusions of Law, but Michael made

no objection. Accordingly, we examine the court's ruling for

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

plain error. See State v. Kotis, 91 Hawai#i 319, 341, 984 P.2d

78, 100 (1999) (citing Hawai#i Rules of Evidence (HRE) Rule

103(a)(1) and (d) (1993)). See also Hawai#i Family Court Rules

Rule 61.

Under HRE Rule 201, the court may take judicial notice

of a fact "not subject to reasonable dispute in that it is either

(1) generally known within the territorial jurisdiction of the

trial court, or (2) capable of accurate and ready determination

by resort to sources whose accuracy cannot reasonably be
questioned." HRE Rule 201(b). Put more simply, a fact is a

proper subject for judicial notice if it is common knowledge or

can be easily verified. Uyeda v. Schermer, 144 Hawai#i 163, 172,

439 P.3d 115, 124 (2019). The contents of court records are

frequently the subject of judicial notice, because court records,

particularly those in the trial court's files or immediate

possession, are readily accessible and the accuracy of those

records "generally cannot be considered reasonably questionable."

Id. (quoting State v. Akana, 68 Haw. 164, 166, 706 P.2d 1300,

1302 (1985)). A trial court may take judicial notice of "an

interrelated proceeding where the parties are the same[.]" Id.

(quoting Akana, 68 Haw. at 165, 706 P.2d at 1302). However, the

court must carefully distinguish between taking judicial notice

of "the existence of documents in the Court file as opposed to

the truth of the facts asserted in those documents." Id.

(quoting Kotis, 91 Hawai#i at 342, 984 P.2d at 101) (emphasis in

original). "Factual allegations, conclusions, and findings[,]

whether authored by the court, by the parties or their attorneys,

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

or by third persons, should not be noticed to prove the truth of

the matters asserted even though the material happens to be

contained in court records." Id. (quoting Addison M. Bowman,

Hawaii Rules of Evidence Manual 2-5 (2014-15 ed.)). A court "may

only take judicial notice of the truth of facts asserted in

documents such as orders, judgments, and findings of fact and

conclusions of law because of the principles of collateral

estoppel, res judicata, and the law of the case." Id. (quoting

Kotis, 91 Hawai#i at 342, 984 P.2d at 101) (emphasis in
original).

Upon review of the record on appeal, particularly the

May 30, 2018 Findings of Fact and Conclusions of Law, it does not

appear that the judicial notice taken by the Family Court

exceeded the bounds of HRE Rule 201(b). Michael asserts that he

denied the allegations in his mother's petition but stipulated to

the entry of a protective order in her favor nonetheless, so the

Family Court in this case erred in taking judicial notice of that

case because there was no opportunity to confront his mother.

However, Michael fails to point to any facts contained in FC-DA

No. 15-1-1530 that the court in this case relied upon

inappropriately. The appellant has the burden "to show error by

reference to matters in the record." Bettencourt v. Bettencourt,

80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995) (citation omitted).

"[W]e should presume, absent an indication in the record to the

contrary, that the [trial] court took judicial notice only where

appropriate." Kotis, 91 Hawai#i at 343, 984 P.2d at 102.

Accordingly, we cannot conclude that the Family Court plainly

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

erred in taking judicial notice of the records and files in the

other family court matters.

For these reasons, the Family Court's December 19, 2017

Orders of Protection are affirmed.

DATED: Honolulu, Hawai#i, September 29, 2020.

On the briefs:
/s/ Lisa M. Ginoza
Scot Stuart Brower, Chief Judge
for Respondent-Appellant.
/s/ Katherine G. Leonard
David M. Hayakawa, Associate Judge
for Petitioners-Appellees
JOHN H. PEREZ and /s/ Keith K. Hiraoka
DENNIS J. PEREZ. Associate Judge

8