Thomas v. Thomas

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-JUN-2022
07:56 AM
Dkt. 74 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CHRISTINE DINE THOMAS, Plaintiff-Appellant,
v.
SEA SOVEREIGN THOMAS, Defendant-Appellee

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NUMBER 1DV151006527)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

In this divorce case, self-represented Plaintiff-
Appellant Christine Dine Thomas, now known as Christine Dine
Flinterman, appeals from the post-decree "Order Denying
Plaintiff's Motion for Extension of Time to File Notice of
Appeal" entered by the Family Court of the First Circuit on
July 14, 2021.1 For the reasons explained below, we affirm the
Order.

Background

Flinterman was married to Defendant-Appellee Sea
Sovereign Thomas. Flinterman filed a complaint for divorce on
April 8, 2015. The Divorce Decree was entered on September 11,

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The Honorable Bryant Zane presided.
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2015; Flinterman then resumed the use of her last name before the
marriage.
On September 1, 2020, Flinterman (through counsel)
filed a motion for post-decree relief. She sought a share of
Thomas's military pension. The motion was heard on January 8,
2021. The family court orally denied the motion.
On March 4, 2021, the family court entered the written
order denying the motion. A notice of appeal from the order was
due on Monday, April 5, 2021. See Hawai#i Rules of Appellate
Procedure (HRAP) Rule 4(a)(1).2
On April 12, 2021, Flinterman (through new counsel)
filed a motion for an extension of time to file her notice of
appeal. The motion was heard on April 28, 2021. The Order
denying the motion was entered on July 14, 2021. This appeal
followed.3

Standard of Review

We review an order denying a motion to extend time to
file notice of appeal for abuse of discretion. See Eckard
Brandes, Inc. v. Dep't of Lab. & Indus. Rels., 146 Hawai#i 354,
358, 463 P.3d 1011, 1015 (2020). "A court abuses its discretion
whenever it exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment of a
party." Berry v. Berry, 127 Hawai#i 243, 254, 277 P.3d 968, 979
(2012) (citation omitted).

2
The 30th day from March 4, 2021 was Saturday, April 3, 2021. See
HRAP Rule 26(a).
3
Flinterman's opening brief does not comply with HRAP Rule 28(b).
Thomas requests that the appeal be dismissed, or that Flinterman be
sanctioned, for non-compliance; he correctly observes that Flinterman's
"errors and omissions place an unnecessary burden upon [Thomas] who is
compelled to respond to [Flinterman's opening brief], as well as the appellate
court to render an informed judgment." However, the Hawai#i Supreme Court
instructs that to promote access to justice, pleadings prepared by self-
represented litigants should be interpreted liberally, and self-represented
litigants should not automatically be foreclosed from appellate review because
they fail to comply with court rules. Erum v. Llego, 147 Hawai#i 368, 380-81,
465 P.3d 815, 827-28 (2020). Accordingly, we address the issues we discern to
be raised by Flinterman.

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The family court entered findings of fact and
conclusions of law on September 3, 2021, in support of its
decision. We review findings of fact under the "clearly
erroneous" standard. Est. of Klink ex rel. Klink v. State, 113
Hawai#i 332, 351, 152 P.3d 504, 523 (2007). A finding of fact is
clearly erroneous when the record lacks substantial evidence to
support the finding or when, despite substantial evidence to
support the finding, we are left with a definite and firm
conviction that a mistake has been committed. Id. "Substantial
evidence" is "credible evidence which is of sufficient quality
and probative value to enable a person of reasonable caution to
support a conclusion." Id. (citations omitted). We review
conclusions of law under the "right/wrong" standard. Id. A
conclusion of law that is supported by the trial court's findings
of fact and reflects an application of the correct rule of law
will not be overturned. Id.

Discussion

Flinterman's motion to extend time was filed after the
deadline to file a notice of appeal from the order denying her
motion for post-decree relief had passed. HRAP Rule 4(a)(4)(B)
applies to this situation; it provides, in relevant part:

The court or agency appealed from, upon a showing of
excusable neglect, may extend the time for filing the notice
of appeal upon motion filed not later than 30 days after the
expiration of the time prescribed by subsections (a)(1)
through (a)(3) of this Rule.

(emphasis added). Thus, to obtain an extension of time,
Flinterman had to show that her failure to timely file the notice
of appeal was due to her "excusable neglect."

"[E]xcusable neglect" is to be construed pursuant to its
plain language: "neglect" that is "excusable," which,
involves a broad, equitable, inquiry taking into account all
relevant circumstances surrounding the party's omission.
. . . [T]he determination of whether "excusable neglect"
exists should lie largely in the discretion of the court.

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Eckard Brandes, 146 Hawai#i at 364, 463 P.3d at 1021 (cleaned up)
(emphasis added).
Flinterman's motion for extension of time argued:

In the instant case, based on the declarations and
exhibits included below, though the dispositive Order in
this case issued March 4, 2021, [Flinterman]'s trial counsel
did not alert her to said filing until March 15, 2021.
Though trial counsel included the March 4, 2021, Order in
their communication to [Flinterman], [Flinterman] wrongly
assumed that her counsel had apprised her of the filing
immediately upon said Order being entered. Therefore, she
wrongly assumed that she had until April 14, 2021, thirty
days from March 15, to file her notice of appeal. [On]
April 9, 2021, [Flinterman] dutifully began, pro se, to
prepare a notice of appeal using court forms from the
judiciary website so that she would be able to file her
notice of appeal prior to her perceived April 14, 2021
deadline. It was as she was preparing said notice that she
realized her neglect.

The motion was supported by Flinterman's declaration, which
stated:

4. March 15, 2015, I was notified via my trial
counsel's messaging app . . . that the Order had been
entered . . . ;
5. I wrongly assumed that he notified me the same
day that the Order was issued, and thereby wrongly assumed
that I had 30 days from March 15, 2021, to file my notice of
appeal;

6. April 9, 2021, I began attempting a notice of
appeal, pro se, as there is a possibility of an ineffective
assistance of counsel claim, and at that time I noticed the
filestamp [sic] on the Order, and realized my grievous
error;

. . . .
8. I am a full-time single mother of three young
boys, and during the Covid pandemic, my nights and days have
been filled with taking care of the children;

9. Because of Covid, I've been unemployed and on
Medicaid, and am doing everything I can to make ends meet[.]

Flinterman testified at the hearing on her motion to
extend time. She testified that she understood, shortly after
the January 8, 2021 hearing where the family court announced its
decision to deny her motion for post-decree relief, that she

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would have 30 days from entry of the written order to file a
notice of appeal. She also testified:

Q. (By [Thomas's counsel]) Okay. So, now,
thereafter, you did try to track down the order from [your
former attorney], right, on March 8th?

A. Yes.
Q. Okay. And you messaged him and you have this
Space [sic] Camp HQ messaging app, right?
A. Yes.
Q. Okay. And on March 8th you were informed I don't
have the order yet, right?

A. Yeah.
Q. Okay. And then on March 15th you get a
communication from his staff member, and that communication
has the order attached, right?

A. On March 15th, yes.
Q. And you received that message?

A. I received the message.

Q. And you reviewed that message?
A. No, I didn't review -- I saw -- the -- the
message coming from his attorney I saw March 15th and
(indiscernible) I got -- like I'm -- like since –- ever
since the pandemic, it's like e-mail -- technol-- technology
is the only way (indiscernible) and there's like hundreds of
e-mails a day, and I saw the e-mail come in and I
(indiscernible) it's in, it's here, I have to go -- I have
to work on it, and so I have -- I have a 30-day --

. . . .

Q. On March 15th, when you got that message from
[your former attorney]'s office, you knew that the file
stamp was important because you had already been informed of
that?
A. No, I don't -- I honestly -- I -- like when I
have -- (indiscernible) this is a -- a motion from -- I
mean, this is an (indiscernible) file stamp March 4th. He
just said whatever -- here, I'll look at it again. I forgot
the language, but he said we are in receipt of the following
order from the Plaintiff's [sic] office (indiscernible)
Galario, who is his assistant, and I just -- you know, the
beginning of it says this is regarding Plaintiff's [sic]
motion, so, I mean, I -- I know -- I'm not saying -- I know
that I missed the deadline, but (indiscernible) it's not a
-- not like (indiscernible) you know, willful disregard of
the court, it was honestly like a hundred percent honest, I
did not read the -- the date of March 4th.

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. . . .
Q. Okay. Now, isn't it true that you didn't
actually open that message and the attachment until 26 days
later?
A. April 9th. I think that's when I
(indiscernible).
Q. Yes.
A. Okay. Yes.

. . . .
Q. (By [Thomas's counsel]) I want to talk about the
entirety of that message. Isn't it true that what you're
saying is you received that message on March 15th, and you
read a portion of it, but you're saying you didn't read the
whole thing?

A. Yes.

The family court made the following findings of fact:

11. The Order re: [Flinterman]'s Motion for Post-
Decree Relief filed September 1, 2020 ("the Order") was
filed on March 4, 2021;

12. On March 8, 2021, [Flinterman] contacted [her
former attorney] through communication application,
"lawofficeofchristopherdthomas.base camphq.com"
("Basecamphq"), and inquired about whether the court had yet
issued a written order;

13. On the same day, [Flinterman's former attorney]
replied to [Flinterman] indicating he had not yet been
provided the order, but that he would let her know when he
gets it;
14. On the same day, [Flinterman] replied indicating
she knew she needed a written order before filing a notice
of appeal within 30 days;
15. On March 15, 2021, [Flinterman's former
attorney's] staff sent [Flinterman] a Basecamphq
communication indicating, "we are in receipt of the
following Order from Opposing Counsel's office";

16. Attached as a PDF file to that Basecamphq
communication was the Order. The attachment was entitled,
"Order re: Plaintiff's Motion for Post-Decree Relief (filed
2021.03.04).pdf";

17. [Flinterman] read the email on March 15, 2021,
but neglected to open the attachment which contained the
Order;
18. [Flinterman] further neglected to read the title
of the attachment at that time;

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19. [Flinterman] did not open the attached Order
until April 9, 2021;
. . . .
24. [Flinterman] assumed that March 15, 2021, the
date that she received the Basecamphq communication, was the
entry date of the Order;
25. [Flinterman] consequently further assumed that
the deadline to file the NOA was 30 days after March 15,
2021[.]

These findings were supported by substantial evidence and are not
clearly erroneous.
The family court made the following conclusion of law:

5. Considering all relevant, surrounding
circumstances, [Flinterman]'s neglect that resulted in
the failure to file the NOA within 30 days of the
filing of the Order was not excusable. . . . HRAP
Rule 4(a)(4)(B).

The conclusion was supported by the family court's findings of
fact and reflected an application of the correct rule of law.
Accordingly, the family court did not abuse its discretion by
denying Flinterman's motion to extend time. Eckard Brandes, 146
Hawai#i at 358, 463 P.3d at 1015.
Flinterman also contends that the family court
erroneously denied her oral motion for recusal. We decline to
consider the contention because Flinterman cites no legal
authority supporting the proposition that the family court judge
should have recused himself or been disqualified and, in the
latter case, Flinterman fails to show compliance with HRS § 601-
7(b).4

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§601-7 Disqualification of judge; relationship, pecuniary
interest, previous judgment, bias or prejudice.

. . . .
(b) Whenever a party to any suit, action, or proceeding, civil or
criminal, makes and files an affidavit that the judge before whom the action
or proceeding is to be tried or heard has a personal bias or prejudice either
against the party or in favor of any opposite party to the suit, the judge
shall be disqualified from proceeding therein. Every such affidavit shall
state the facts and the reasons for the belief that bias or prejudice exists
(continued...)

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For the foregoing reasons, the "Order Denying
Plaintiff's Motion for Extension of Time to File Notice of
Appeal" entered by the family court on July 14, 2021, is
affirmed.
DATED: Honolulu, Hawai#i, June 23, 2022.

On the briefs:
/s/ Katherine G. Leonard
Christine D. Thomas, Presiding Judge
Self-represented
Plaintiff-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Crystal K. Glendon,
for Defendant-Appellee. /s/ Clyde J. Wadsworth
Associate Judge

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(...continued)
and shall be filed before the trial or hearing of the action or proceeding, or
good cause shall be shown for the failure to file it within such time. No
party shall be entitled in any case to file more than one affidavit; and no
affidavit shall be filed unless accompanied by a certificate of counsel of
record that the affidavit is made in good faith. Any judge may disqualify
oneself by filing with the clerk of the court of which the judge is a judge a
certificate that the judge deems oneself unable for any reason to preside with
absolute impartiality in the pending suit or action.

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