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Oral Argument Before the Hawaii Supreme Court

Amended 09/08/15)

No. SCWC-13-0004373, Wednesday, September 16, 2015, 11:15 a.m.

C.M.T., Petitioner/Plaintiff-Appellant, vs. D.L.T., Respondent/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Rebecca A. Copeland

Attorney for Respondent:

Francis T. O’Brien

NOTE: Order accepting Application for Writ of Certiorari, filed 08/03/15.

NOTE: Amended notice of setting for oral argument filed 09/08/15; oral argument rescheduled from 09/17/15, 8:45 a.m. to 09/16/15, 11:15 a.m.


[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/Plaintiff-Appellant Mother applied for writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its memorandum opinion.

This case arises out of the divorce of Mother and Respondent/ Defendant-Appellee Father. Upon their divorce, Mother and Father entered into an agreement which gave Mother sole physical custody of their two children (“Son” and “Daughter”). The agreement was approved in a divorce decree entered by the Family Court of the First Circuit (family court).

Subsequent to the divorce, Child Welfare Services (“CWS”) opened a case against Mother after bruising and red marks were observed on Daughter’s buttocks and neck. Father was given temporary custody of the children pending the family court deciding Father’s post-divorce decree motion to modify custody.

After a two-day trial on Father’s post-decree motion, the family court orally denied the motion and ordered that Mother retain sole physical custody of the children. Before the family court entered a written order, Father filed a motion to reconsider, arguing that the family court had failed to apply HRS ‘ 571-46(a)(9), pursuant to which there is a rebuttable presumption that any individual who has committed “family violence” should not be awarded custody of the children. The family court granted Father’s motion to reconsider, finding that Mother had committed “family violence” and had failed to rebut the presumption, and awarded Father sole custody of the children.

Mother appealed and the ICA affirmed the family court’s orders.

In her application, Mother presents the following questions:

I. Whether the ICA erred in imposing a new and less stringent standard on motions for reconsideration where the Family Court has not yet reduced its order to writing; and, whether the ICA erred in affirming the Family Court’s decision to grant reconsideration of an oral decision even though [Father] failed to meet the settled standards governing motions for reconsideration.

II. Whether the ICA erred in affirming the Family Court’s decision to grant [Father]’s motion for post-decree relief and modify child custody.