HAWAIʻI FAMILY
COURT RULES
(SCRU-11-0000582)
Adopted and
Promulgated by
the Supreme Court
of the State of
Hawaiʻi
December 15, 1989
With Amendments as
Noted
Comments and
commentary are provided by the Rules committee
for interpretive
assistance. The comments and commentary
express
the view of the
committee and are not binding on the courts.
The Judiciary
State of Hawaiʻi
HAWAIʻI FAMILY COURT RULES
Table of Contents
PART A. GENERAL RULES
I. SCOPE OF RULES - ONE FORM OF ACTION;
ELECTRONIC
FILING
Rule 1. SCOPE OF RULES; CONSTRUCTION, APPLICATION,
AND INTERPRETATION OF RULES;
EFFECT OF ELECTRONIC
FILING; AUTOMATION.
(a) Scope.
(b) Construction and Application.
(c) Interpretation of Rules.
(d) Effect of Hawaiʻi Electronic Filing and
Service Rules.
(e) Effect of automation on processes and
procedures.
(f) Definitions.
Rule 1.1. REGISTRATION IN JUDICIARY ELECTRONIC FILING
AND
SERVICE SYSTEM REQUIRED FOR
ATTORNEYS IN CASES
MAINTAINED IN JUDICIARY
INFORMATION MANAGEMENT
SYSTEM.
Rule 1.2. FAMILY COURT CASES MAINTAINED IN JIMS.
Rule 1.3. CLASSIFICATION OF ACTIONS.
Rule 2. CIVIL ACTION.
Rule 2.1. COMPLIANCE WITH RULES.
II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS,
PLEADINGS, MOTIONS
AND ORDERS
Rule 3. COMMENCEMENT OF ACTION.
Rule 4. PROCESS.
(a) Summons: Issuance.
(b) Summons: Form.
(c) Summons: By whom served.
(d) Summons: Personal service.
(e) Summons: Other service.
(f) Territorial limits of effective service.
(g) Return.
(h) Amendment.
Rule 5. FILING AND SERVICE OF PLEADINGS AND OTHER
DOCUMENTS
ON PARTIES.
(a) Service: When required.
(b) Service of Post-Decree Motions: How made.
(c) Service of All Other Documents: How made.
(d) Proof of service.
(e) Certificate of service.
(f) Filing.
(g) Filing with the court defined.
(h) Nonfiling of
discovery materials.
Rule 5.1. SERVICE OF JUDGMENTS, DECREES, OR ORDERS
BY ATTORNEYS.
Rule 5.2. NOTICE IN PROCEEDING RELATING TO CHILD IN
FOSTER CARE.
Rule 6. TIME.
(a) Computation.
(b) Enlargement.
(c) Reserved.
(d) For motions; affidavits or declarations.
(e) Additional time after service by mail.
(f) Filing deadlines.
III. PLEADINGS AND
MOTIONS
Rule 7. PLEADINGS ALLOWED.
Rule 7.1. FORM AND FORMATTING OF PLEADINGS, MOTIONS,
AND OTHER DOCUMENTS.
(a) Form.
(b) No blank sheet shall be attached to any pleading,
motion,
or
other document.
(c) Caption; form of first page.
(d) Two or more documents filed together.
(e) Proposed findings, conclusions, orders, or
judgments
submitted
for signature.
(f) Sanctions.
Rule 7.2. DOCUMENTS SEALED UPON FILING.
Rule 8. GENERAL RULES OF PLEADING.
(a) Claims for relief.
(b) Defenses; form of denials.
(c) Affirmative defenses.
(d) Demurrers, pleas, etc., abolished.
(e) Effect of failure to deny.
(f) Pleading to be concise and direct;
consistency.
(g)
Construction of pleadings.
(h) Appearance and waiver.
Rule 9. PLEADING SPECIAL MATTERS.
(a) Capacity.
(b) Fraud, mistake, condition of the mind.
(c) Conditions precedent.
(d) Official document or act.
(e) Judgment.
(f) Time and place.
(g) Reserved.
Rule 10. MOTIONS.
(a) Form of motions.
(b) Declaration in lieu of affidavit.
(c) Motions requesting financial relief.
(d) Response to motions; effect of failure to
appear.
(e) Appearance and waiver.
Rule 11. SIGNING OF PLEADINGS, MOTIONS AND OTHER DOCUMENTS;
SANCTIONS.
Rule 11.1. LIMITED APPEARANCE AND WITHDRAWAL.
(a) Limited Appearance of Attorneys.
(b) Termination of Limited Representation.
(c) Pleading Prepared for Unrepresented Party.
Rule 12. DEFENSES AND OBJECTIONS - WHEN AND HOW
PRESENTED – BY
PLEADING OR MOTION - MOTION
FOR JUDGMENT ON THE
PLEADINGS.
(a) When presented.
(b) How presented.
(c) Motion for judgment on the pleadings.
(d) Preliminary hearings.
(e) Motion for more definite statement.
(f) Motion to strike.
(g) Consolidation of defenses in motion.
(h) Waiver or preservation of certain defenses.
Rule 13. COUNTERCLAIM AND CROSS-CLAIM.
(a) Compulsory counterclaims.
(b) Permissive counterclaims.
(c) Counterclaim exceeding opposing claim.
(d) Counterclaim against the State.
(e) Counterclaim maturing or acquired after
pleading.
(f) Omitted counterclaim.
(g) Cross-claim against co-party.
(h) Joinder of additional parties.
(i) Separate
trials; separate judgment.
Rule 14. THIRD-PARTY PRACTICE.
(a) When parties may bring in third-party.
(b) Reserved.
Rule 15. AMENDED AND SUPPLEMENTAL PLEADINGS.
(a) Amendments.
(b) Amendments to conform to the evidence.
(c) Relation back of amendments.
(d) Supplemental pleadings.
Rule 16. CONFERENCES WITH THE COURT; FORMULATING
ISSUES.
IV. PARTIES
Rule 17. PARTIES; CAPACITY.
(a) Real party in interest.
(b) Reserved.
(c) Minors or incompetent persons.
(d) Unidentified defendant.
Rule 18. RESERVED.
Rule 19. JOINDER OF PERSONS NEEDED FOR JUST
ADJUDICATION.
(a) Persons to be joined if feasible.
(b) Determination by court whenever joinder not
feasible.
(c) Pleading reasons for nonjoinder.
(d) Reserved.
Rule 19A. REPEALED.
Rule 20. PERMISSIVE JOINDER OF PARTIES.
(a) Permissive joinder.
(b) Separate trials.
Rule 21. MISJOINDER AND NON-JOINDER OF PARTIES.
Rule 22. RESERVED.
Rule 23. RESERVED.
Rule 24. INTERVENTION.
(a) Intervention of right.
(b) Permissive intervention.
(c) Procedure.
(d)
Notice of Claim of
Unconstitutionality.
Rule 25. SUBSTITUTION OF PARTIES.
(a) Death.
(b) Incompetency.
(c) Reserved.
(d) Reserved.
V. DEPOSITIONS AND DISCOVERY
Rule 26. GENERAL PROVISIONS GOVERNING DISCOVERY.
(a) Discovery methods.
(b) Discovery scope and limits.
(1) In General.
(2) Limitations.
(3) Reserved.
(4) Trial Preparation: Materials.
(5) Trial Preparation: Experts.
(6) Claims of Privilege or Protection of Trial
Preparation Materials.
(c) Protective orders.
(d) Sequence and timing of discovery.
(e)
Supplementation of responses.
(f) Discovery conference.
(g) Signing of discovery requests, responses,
and objections.
Rule 27. DEPOSITIONS BEFORE ACTION OR PENDING
APPEAL.
(a) Before action.
(1) Petition.
(2) Notice and service.
(3) Order and examination.
(4) Use of deposition.
(b) Pending appeal.
(c) Perpetuation by action.
Rule 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE
TAKEN.
(a) Within the United States.
(b) In foreign countries.
(c) Disqualification for interest.
Rule 29. STIPULATIONS REGARDING DISCOVERY PROCEDURE.
Rule 30. DEPOSITIONS UPON ORAL EXAMINATION.
(a) When depositions may be taken; when leave
required.
(b) Notice of examination: General
requirements; method of recording;
production
of
documents and things; deposition of organization; deposition by
telephone.
(c) Examination and cross-examination; record
of examination; oath;
objections.
(d) Schedule and duration; motion to terminate
or limit examination.
(e) Review by witness; changes; signing.
(f) Certification and delivery by officer;
exhibits; copies.
(g) Failure to attend or to serve subpoena;
expenses.
Rule 31. DEPOSITIONS UPON WRITTEN QUESTIONS.
(a) Serving questions; notice.
(b) Officer to take responses and prepare
record.
(c) Notice of filing.
Rule 32. USE OF DEPOSITIONS IN COURT PROCEEDINGS.
(a) Use of depositions.
(b) Pretrial disclosures.
(c) Objections to admissibility.
(d) Form of presentation.
(e) Effect of errors and irregularities in
depositions.
(1) As to Notice.
(2) As to Disqualification of Officer.
(3) As to Taking of Deposition.
(4) As to Completion and Return of Deposition.
Rule 33. INTERROGATORIES TO PARTIES.
(a) Availability.
(b) Answers and objections.
(c) Scope; use at trial.
(d) Option to produce business records.
Rule 34. PRODUCTION OF DOCUMENTS AND THINGS AND
ENTRY UPON
LAND FOR INSPECTION AND OTHER
PURPOSES.
(a) Scope.
(b) Procedure.
(c) Persons not parties.
Rule 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS.
(a) Order for examination.
(b) Report of examiner.
Rule 36. REQUESTS FOR ADMISSION.
(a) Request for admission.
(b) Responses.
(c) Objections to the response.
(d) Effect of admission.
Rule 37. FAILURE TO MAKE OR COOPERATE IN DISCOVERY;
SANCTIONS.
(a) Motion for order compelling discovery.
(1)
Appropriate court.
(2) Motion.
(3) Evasive or incomplete answer or response.
(4) Expenses and sanctions.
(b) Failure to comply with order.
(1) Sanctions by court in circuit where
deposition is taken.
(2) Sanctions by court in which action is
pending.
(c) Failure to disclose; false or misleading
disclosure; refusal to admit.
(d) Failure of party to attend at own
deposition or serve answers to
interrogatories
or respond to request for inspection.
(e) Expenses against the State.
VI. TRIALS
Rule 38. RESERVED.
Rule 39. RESERVED.
Rule 40. ASSIGNMENT OF CASES FOR TRIAL; CONTINUANCE
OF TRIAL.
(a) Assignment of case for trial.
(b) Motions for continuance.
(c) Consent of party to continuance of trial.
Rule 41. DISMISSAL OF ACTIONS.
(a) Voluntary dismissal: Effect thereof.
(1) By notice of dismissal; by stipulation.
(2) By order of court on initiating party’s
motion to dismiss.
(b) Involuntary dismissal: Effect thereof.
(c) Dismissal of cross-action.
(d) Reserved.
(e) Dismissal for want of service or
prosecution.
Rule 42. CONSOLIDATION; SEPARATE TRIALS.
(a) Consolidation.
(b) Separate trials.
Rule 43. TAKING OF TESTIMONY.
(a) Form.
(b) Presentation of expert testimony.
(c) Record of the excluded evidence.
(d) Affirmation in lieu of oath.
(e) Evidence on motions.
(f) Interpreters.
Rule 43.1. RECORDING OF TESTIMONY AND PROCEEDINGS.
Rule 44. PROOF OF OFFICIAL RECORD.
(a) Authentication.
(1) Domestic.
(2) Foreign.
(b) Lack of record.
(c) Other proof.
Rule 44.1. DETERMINATION OF FOREIGN LAW.
Rule 45. SUBPOENA.
(a) For attendance of witnesses; form; issuance.
(b) For production of documentary evidence.
(c) Service and notice.
(d) Subpoena for taking depositions; place of
examination.
(e) Duties in responding to subpoena.
(f) Contempt.
Rule 45.1. TESTIMONY OF MINOR CHILD.
Rule 46. EXCEPTIONS UNNECESSARY.
Rule 47. RESERVED.
Rule 48. RESERVED.
Rule 49. RESERVED.
Rule 50. RESERVED.
Rule 51. RESERVED.
Rule 52. FINDINGS AND CONCLUSIONS BY THE COURT.
(a) Effect.
(b) Amendment.
Rule 53. MASTERS
(a) Appointment.
(b) Compensation.
(c) Reference.
(d) Powers.
(e) Report.
(f)
Admission.
(g) Dismissal of action.
Rule 53.1. ALTERNATIVE DISPUTE RESOLUTION.
(a) Authority to order.
(b) Factors to consider; fees and expenses.
(c) Selection of the neutral.
(d) Disclosure.
(e) Physical presence of counsel and parties
required.
(f) Communication by parties, counsel, neutral
and the Court.
VII. JUDGMENT
Rule 54. JUDGMENT; COSTS.
(a) Definition; form.
(b) Reserved.
(c) Demand for judgment.
(d) Costs.
(e) Effective date.
Rule 54.1. PERIODIC PAYMENTS.
Rule 54.2. MODIFICATION OF JUDGMENTS.
(a) Custody and visitation.
(b) Modifying or terminating support for adult
children.
Rule 55. DEFAULT.
(a) Entry.
(b) Judgment.
(c) Setting aside default.
(d) Plaintiff, cross-plaintiff.
(e) Judgment against the State, etc.
Rule 56. SUMMARY JUDGMENT.
(a) For claimant.
(b) For defending party.
(c) Motion and proceedings thereon.
(d) Case not fully adjudicated on motion.
(e) Form of affidavits or declarations; further
testimony; defense required.
(f) When affidavits or declarations are
unavailable.
(g) Affidavits or declarations made in bad
faith.
(h) Form of order.
Rule 57. RESERVED.
Rule 58. PREPARATION AND SIGNING OF JUDGMENTS AND
OTHER
ORDERS.
(a) Preparation of judgments and other orders.
(b) Party approval or objection to form;
delivery to Court.
(c)
Court approval; sanctions.
(d) Request for entry.
(e) No waiver of right to appeal.
(f) Documents submitted for court’s signature
pursuant to formal hearing.
(g) Preparation of stipulated order when
provisions on record.
Rule 58.1. STIPULATIONS AND ORDERS.
(a) Forms of stipulations and orders.
(b) Stipulations extending or enlarging time.
Rule 59. NEW TRIALS; RECONSIDERATION OR AMENDMENT OF
JUDGMENTS AND ORDERS.
(a) Grounds.
(b) Time for motion.
(c) Time for serving affidavits or declaration.
(d) On initiative of court.
(e) Motion to reconsider, alter or amend a
judgment or order.
(f) Entry of judgment.
Rule 60. RELIEF FROM JUDGMENT OR ORDER.
(a) Clerical mistakes.
(b) Mistakes; inadvertence; excusable neglect;
newly discovered evidence;
fraud.
Rule 61. HARMLESS ERROR
Rule 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT.
(a) No automatic stay: Exceptions -
Injunctions, receiverships and
accountings.
(b) Stay on motion for new trial or for
alteration or amendment of judgment
or
order.
(c) Restraining orders pending appeal.
(d) Stay upon appeal.
(e) Stay in favor of the State, etc.
(f) Reserved.
(g) Power of supreme court and intermediate
court of appeals not limited.
(h) Reserved.
Rule 63. DISABILITY OF JUDGE.
VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL
PROCEEDINGS
Rule 64. RESERVED.
Rule 65. INJUNCTIONS.
(a) Reserved.
(b) Restraining order; notice; hearing;
duration.
(c) Security.
(d) Form and scope of restraining order.
(e) Reserved.
Rule 65.1. SECURITY: PROCEEDINGS AGAINST SURETIES.
(a) Security and sureties.
(b) Who may not be surety.
Rule 66. RESERVED.
Rule 67. DEPOSIT IN COURT.
Rule 68. OFFER OF SETTLEMENT.
Rule 69. ENFORCEMENT OF JUDGMENT OR ORDER FOR
PAYMENT OF
SUPPORT.
Rule 70. JUDGMENT FOR SPECIFIC ACTS; VESTING TITLE.
Rule 71. PROCESS IN BEHALF OF AND AGAINST PERSONS
NOT PARTIES.
IX. APPEALS
Rule 72. APPEAL TO THE FAMILY COURT.
(a) How taken.
(b) Time.
(c) Service.
(d) Record on appeal.
(1) Designation.
(2) Counter designation.
(e) Statement of case.
(f) Reserved.
(g) Reserved.
(h) Costs.
(i) Stay.
(j) Reserved.
(k) Judgment.
Rule 72.1. BRIEFS
(a)
Briefing schedules and scheduling of
argument dates.
(b)
Opening brief, answering brief and
reply brief.
(c) Extension of time for briefs.
(d)
Briefs not timely filed or not in
conformity with rule.
Rules 73. to 76. RESERVED.
X. FAMILY COURTS AND CLERKS
Rule 77. FAMILY COURTS AND CLERKS.
(a) Family courts always open.
(b) Filing with the clerk of the court.
(c) Clerk’s office and orders by clerk.
(1) Orders extending time.
(2) Orders granting extension.
(d) Service of orders, decrees, and judgments.
(e) “Court” and “family court” defined.
(f) “Judge” defined.
(g) Costs awarded by the court.
Rule 77.1. PREPARATION OF CLERK’S MINUTES AND DEPOSIT OF
EXHIBITS.
Rule 78. MOTION DAY.
Rule 79. CONFIDENTIALITY OF RECORDS.
Rule 80. REQUEST FOR TRANSCRIPT.
(a) Request for transcript.
(b) Request for an audio or video recording.
(c) Stenographic report or transcript as
evidence.
XI. MISCELLANEOUS PROVISIONS
Rule 81. APPLICABILITY.
(a) Generally.
(b) Juvenile cases.
(c) Criminal cases.
(d) Reserved.
(e) Conflict.
(f) Appeals.
(g) Depositions and discovery.
(h) Reserved.
(i) Applicability
in general.
(j) Reserved.
Rule 81.1. RESERVED.
Rule 82. JURISDICTION AND VENUE UNAFFECTED.
Rule 83. RULES.
Rule 84. FORMS.
Rule 85. TITLE.
Rule 86. WITHDRAWAL OF DOCUMENTS AND EXHIBITS.
Rule 87. ATTORNEYS.
(a) Withdrawal of counsel unnecessary.
(b) Court approval of withdrawal necessary.
(1)
Withdrawal and substitution of
counsel.
(2)
Motion to withdraw as counsel.
Rule 88. RESERVED.
Rule 89. EXPEDITION OF COURT BUSINESS: SANCTIONS.
(a) Required notice.
(b) Submission of documents, adherence to court
policy.
(c) Effect of failure to appear or tardiness.
PART B. Matrimonial or Civil Union Actions
I. COMMENCEMENT OF ACTION: PLEADINGS
Rule 90. MATRIMONIAL OR CIVIL UNION ACTIONS;
DOCUMENTS.
(a) Definition.
(b) Documents required.
Rule 91. RESERVED.
Rule 92. RESERVED.
II. TRIALS
Rule 93. RESERVED.
Rule 94. SETTING CONTESTED MATTERS FOR TRIAL.
(a) Motion to set.
(b) Response to Motion to Set.
(c) Motion to Set conference.
(d) Third party practice.
(e) Deviation in time for filing.
(f) Sanctions; non-appearance; failure to
comply.
Rule 94.1. SETTLEMENT CONFERENCE; SETTLEMENT CONFERENCE
STATEMENT; CONFIDENTIAL
SETTLEMENT CONFERENCE
LETTER.
(a)
Settlement conference.
(b) Confidential settlement conference letter.
(c) Sanctions.
Rule 94.2. TRIAL CALENDAR.
Rule 94.3. PRE-TRIAL CONFERENCE, PRE-TRIAL DISCLOSURE AND
MARKING EXHIBITS.
(a) Disclosures and exhibits.
(b) Effect of Pre-Trial Order.
Rule 95. RESERVED.
III. JUDGMENTS AND ORDERS
Rule 96. RESERVED.
Rule 97. RESERVED.
IV. MISCELLANEOUS
Rule 98. JUDGMENTS APPROVED AS TO FORM AND CONTENT
BY THE
PARTIES IN UNCONTESTED
MATRIMONIAL ACTIONS.
Rule 99. RESERVED.
Rule 100. RESERVED.
Rule 101. RESERVED.
PART C. ADOPTION
I. COMMENCEMENT OF ACTION: PLEADINGS; PARTIES; PROCESS
Rule 102. RESERVED.
Rule 103. PLEADINGS.
(a) Reserved.
(b) Reserved.
(c) Names.
(1) Of petitioners.
(2)
Of individual.
(d) Signing of petition.
(e) More than one individual in a petition.
(f) Reserved.
(g) Reserved.
(h) Reserved.
Rule 104. RESERVED.
Rule 105. RESERVED.
II. HEARING
Rule 106. HEARING.
(a) Who must attend.
(b) Procedures at the hearing.
Rule 107. DEFAULT.
Rule 108. CONTESTED HEARING; MOTION TO SET.
Rule 109. RESERVED.
Rule 110. FINDINGS OF THE COURT.
Rule 111. RESERVED.
Rule 112. RESPONSIBILITY OF ATTORNEY AFTER ENTRY OF
DECREE.
(a) To obtain new birth certificate for
individual.
(b) To distribute copies.
Rule 113. RESERVED.
II. MISCELLANEOUS
Rule 114. DISMISSAL OF ACTIONS.
Rule 115. DISPOSITION OF MINOR CHILD ON DISMISSAL,
WITHDRAWAL OR
DENIAL OF PETITION.
Rule 116. RESERVED.
Rule 117. RESERVED.
Rule 118. AFFIDAVITS OR DECLARATIONS REQUIRED IN DOCTOR
AND
OTHER THIRD PERSON PLACEMENT
CASES, AND WHEN
MOTHER’S AFFIDAVIT OR DECLARATION
IS REQUIRED.
(a) Attorney’s affidavit or declaration of
birth background.
(b) Natural mother’s affidavit or declaration
of relationship with natural
father.
(c) Foreign adoption placement agency’s
affidavit or declaration.
Rule 119. RESERVED.
Rule 120. RESERVED.
PART D. JUVENILE PROCEEDINGS
I. GENERAL PROVISIONS
Rule 121. PURPOSE AND SCOPE; DEFINITIONS.
(a) Purpose and scope.
(b) Definitions.
II. INTAKE
Rule 122. RECEPTION OF COMPLAINT.
Rule 123. INTAKE PROCEDURE.
Rule 124. INFORMAL ADJUSTMENT PROCEDURE.
III. PETITION
Rule 125. CONTENTS OF PETITION.
Rule 126. RESPONSIVE PLEADING OR MOTION.
Rule 127. AMENDMENT OF PETITION.
IV. TRANSFER TO CRIMINAL COURT
Rule 128. RESERVED.
Rule 129. TRANSFER OR WAIVER HEARING.
V. SHELTER AND DETENTION
Rule 130. ADMISSION TO SHELTER OR DETENTION.
Rule 131. NOTICE OF ADMISSION TO SHELTER OR DETENTION.
Rule 132. TELEPHONING AND VISITATION.
Rule 133. CONTINUED DETENTION.
Rule 134. PREHEARING PROCEDURE.
Rule 135. DETENTION HEARING.
Rule 136. REVIEW OF DETENTION ORDERS.
VI. THE ADJUDICATION HEARING
Rule 137. RESERVED.
Rule 138. SUMMONS.
Rule 139. CONTENTS OF SUMMONS.
Rule 140. ORDER OF PROCEEDINGS.
Rule 141. RESERVED.
Rule 142. EXTRA-JUDICIAL STATEMENTS.
Rule 143. STANDARD OF PROOF.
Rule 144. FINDINGS.
Rule 145. RESERVED.
Rule 146. RESERVED.
Rule 147. RESERVED.
Rule 148. DISMISSAL OF PETITION.
VII. THE DISPOSITION HEARING
Rule 149. SOCIAL STUDY.
Rule 150. CHILDREN UNDER COURT JURISDICTION: INITIATION
OF
REVIEW PROCEEDINGS.
VIII. MISCELLANEOUS
Rule 151. JUDGMENT.
Rule 152. PRESENCE AND EXCLUSION OF PARTIES.
Rule 153. NOTICE TO CHILDREN.
Rule 154. RIGHT TO REMAIN SILENT.
Rule 155. RIGHT TO COUNSEL.
IX. OTHER PROCEDURES AND REQUIREMENTS
Rule 156. RESERVED.
Rule 157. COURT DISPOSITIONS REPORTED ON JUVENILE
INFORMATION
REPORT.
Rule 158. RESERVED.
APPENDIX
OF FORMS
Form 1. Agreement
and Consent to Limited Representation
Form 1-A. Notice
of Limited Appearance
Form 1-B. Notice
of Withdrawal of Limited Appearance
Form 1-C. Objection to Withdrawal of Limited Appearance
HAWAIʻI FAMILY COURT RULES
PART A. GENERAL RULES
I. SCOPE OF RULES - ONE FORM OF ACTION; ELECTRONIC
FILING
Rule 1. SCOPE OF RULES;
CONSTRUCTION, APPLICATION,
AND INTERPRETATION OF
RULES; EFFECT OF
ELECTRONIC FILING;
AUTOMATION.
(a) Scope. These Rules govern the procedures
in the family courts of the State in all suits of a civil nature with the
exceptions stated in Rule 81 of these Rules.
(b) Construction and application. These Rules shall be construed and applied in
such manner as will advance the fair, equitable, speedy and inexpensive
determination of every action.
(c) Interpretation of Rules. These Rules shall be read and construed with
reference to each other, the Hawaiʻi Electronic Filing and Service Rules, and
the Hawaiʻi Court Records Rules. To the
extent that there is any conflict between these Rules, the Hawaiʻi Electronic
Filing and Service Rules, and the Hawaiʻi Court Records Rules, the Hawaiʻi
Electronic Filing and Service Rules shall prevail. To the extent that there is any conflict
between Rule 7.2 of these Rules and Rule 9 of the Hawaiʻi Court Records Rules,
Rule 7.2 of these Rules shall prevail.
(d) Effect of Hawaiʻi Electronic Filing and
Service Rules. Documents filed and
notices given in accordance with the Hawaiʻi Electronic Filing and Service Rules
shall be deemed to comply with the filing, mailing, certified mailing, notice
and service requirements of these Rules, except when personal service is
required by these Rules or by court order.
(e) Effect of automation on processes and
procedures. Duties set out in these Rules
may be performed by automation.
(f) Definitions. In addition to any
definitions stated in these Rules or applicable statutes, see Rule 1 of the
Hawaiʻi Electronic Filing and Service Rules for definitions.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
1.1. REGISTRATION
IN JUDICIARY
ELECTRONIC FILING AND
SERVICE SYSTEM REQUIRED
FOR ATTORNEYS IN CASES
MAINTAINED IN JUDICIARY
INFORMATION MANAGEMENT
SYSTEM.
As provided by Rule 4 of the Hawaiʻi
Electronic Filing and Service Rules, unless exempted by the court, each
attorney representing a party to a case maintained in the Judiciary Information
Management System (JIMS) shall register as a Judiciary Electronic Filing and
Service System (JEFS) User and shall file all documents electronically. An
unrepresented party may register as a JEFS User for the case in which the
unrepresented party is an individual party.
(Added
March 30, 2022, effective April 25, 2022.)
Rule
1.2. FAMILY
COURT CASES
MAINTAINED IN JIMS.
All cases filed in Family Court shall be
maintained in JIMS except for cases filed under the Child Protective Act (HRS
Chapter 587A) and cases filed regarding the adjudication of juvenile offenders
(under HRS §571-11(1) and HRS §571-11(2)).
All documents for cases maintained in JIMS shall be filed through JEFS
or JIMS as appropriate in accordance with the Hawaiʻi Electronic Filing and
Service Rules.
(Added
March 30, 2022, effective April 25, 2022.)
Rule
1.3. CLASSIFICATION
OF ACTIONS.
(a) Actions in the Family Court are classified
as follows and shall be assigned case numbers preceded by one of the following prefixes:
(1) Actions
for divorce, separation, and annulment (FDV)
(2) Actions
for civil union divorce, separation, and annulment (FCU)
(3) Actions
for parentage filed before January 1, 2021 (FPP)
(4) Actions
for parentage filed on or after January 1, 2021 (FPA)
(5) Actions
for an Order for Protection (FDA)
(6) Actions
for a Gun Violence Protective Order (FGV)
(7) Actions
for Orders under the Child Protective Act (FC-S)
(8) Criminal
Prosecutions of Adults (FFC)
(9) Adjudication
of Juvenile Offenders (FC-J)
(10) Guardianships
of the Person of Minors or Incapacitated Adults (FGD)
(11) Actions
under the Dependent Adult Protective Services Act (FAB)
(12) Actions
under the Uniform Interstate Family Support Act (FUF)
(13) Actions
under the Uniform Child Custody Jurisdiction and Enforcement Act (FUJ)
(14) Actions
under the Uniform Reciprocal Enforcement of Support Act (Repealed) (FUF)
(15) Appeals
to the Family Court from the Decisions and Orders of the Office of Child
Support Hearings (FAL)
(16) Actions
for adoption (FAN)
(17) Actions
for Termination of Parental Rights which are not brought in an FC-S case (FTM)
(18) Any
other miscellaneous action over which the Family Court has jurisdiction (FFM)
(b) For documents filed in JEFS or JIMS, the
prefixes stated above shall be preceded with a number (1, 2, 3, or 5)
indicating the Circuit in which the action is proceeding (e.g., 1FDV, 2FDV,
3FDV or 5FDV).
(Renumbered
March 30, 2022, effective April 25, 2022.)
Rule 2. CIVIL ACTION.
Any case over which the family courts
have exclusive, original jurisdiction, except a case against an adult charged
with a criminal offense, shall be a “civil action” for the purpose of these Rules.
Rule
2.1. COMPLIANCE
WITH RULES.
The court may impose sanctions for
non-compliance with these Rules, the Hawaiʻi Electronic Filing and Services Rules,
and/or the Hawaiʻi Court Records Rules, including but not limited to the
sanctions authorized in Rule 37(b)(2) and 89 of these Rules.
(Amended
March 30, 2022, effective April 25, 2022.)
II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS,
PLEADINGS, MOTIONS
AND ORDERS
Rule 3. COMMENCEMENT OF ACTION.
A civil action is commenced by filing with
the court a complaint, petition, or registration of an out-of-state order,
judgment, or decree under HRS Chapter 576B or HRS Chapter 583A. As used in
these Rules, Acomplaint@ includes any initial pleading
required by statute such as petitions, but does not include registrations filed
under HRS Chapter 576B or HRS Chapter 583A.
For cases filed under HRS Chapter 576B or HRS Chapter 583A, the
registration of the out-of-state order, judgment, or decree shall constitute
the initial pleading. As used in these Rules,
Aplaintiff@ includes any party initiating a
civil action including but not limited to cross-plaintiff(s), petitioner(s),
cross-petitioner(s), etc. As used in
these Rules, Adefendant@ includes any party who is
responding to a civil action, including but not limited to cross-defendant(s),
respondent(s), cross-respondent(s), etc.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule 4. PROCESS.
(a) Summons: Issuance. Upon the filing of a complaint, the clerk
shall forthwith issue a summons and deliver it to the plaintiff for personal service
along with the complaint by a person authorized to serve process. Electronic service of a complaint and the
accompanying summons shall not be allowed.
Upon request of the plaintiff, separate or additional summons shall
issue against any defendant.
(b) Summons: Form. The summons shall
(1) be
signed by the clerk under the seal of the court,
(2) contain
the name of the court, the names of the parties, and the date when issued,
(3) be
directed to the defendant,
(4) state
the name, address, telephone number, and electronic mail address of the
plaintiff’s attorney, if any, otherwise the plaintiff’s address, telephone
number, and electronic mail address as long as no order has been filed
designating the plaintiff’s information as confidential.
(5) state
the time within which the defendant is required to appear and defend under
these Rules and notify the defendant that the failure to appear and defend may
result in an entry of default and default judgment being rendered against the
defendant for the relief demanded in the complaint, and
(6) state
that the summons shall be personally served but that it shall not be personally
served between 10:00 p.m. and 6:00 a.m. on premises not open to the public,
unless a judge of the family or circuit courts permits, in writing on the
summons, personal delivery during those hours.
When, under Rule 4(e) of these Rules,
service is made pursuant to a statute or order, the summons or notice, or order
in lieu of summons, shall correspond to that required by the statute or order.
(c) Summons: By whom served. Service shall be made:
(1) anywhere
in the State by the sheriff or the sheriff's deputy, by some other person
specially appointed by the court for that purpose, or by any person who is not
a party and is 18 years of age or older; or
(2) in
any county by the chief of police of that county or a duly authorized
subordinate. Subpoena, however, shall be served as provided in Rule 45 of these
Rules.
(d) Summons: Personal service. The complaint and the accompanying summons shall
be served together. The plaintiff shall furnish the person making service with
such copies as are necessary. Service shall be made as follows:
(1) Upon
an individual other than a child or an incompetent person,
(A) by
delivering a copy of the summons and of the complaint to the individual
personally or in case the individual cannot be found by leaving copies thereof
at the individual’s dwelling house or usual place of abode with some person of
suitable age and discretion then residing therein or
(B) by
delivering a copy of the summons and of the complaint to an agent authorized by
appointment or by law to receive service of process.
(2) Upon
a child, by delivering a copy of the summons and of the complaint personally
(A) to
the parent or parents, custodian, or guardian of the minor or as provided by
order of the court and
(B) except
as required by statute, if the child is 16 years or over, also to the child.
(3) Upon
an incompetent person, by delivering a copy of the summons and of the complaint
personally
(A) to
the guardian of the incompetent person or to the guardian or conservator of the
incompetent person’s property, or if the incompetent person is living in an
institution, care facility or care home, then to the director or chief
executive officer of the institution or owner or operator of the care facility
or care home, or if service cannot be made upon either of them, then as
provided by order of the court, and
(B) unless
the court otherwise orders, also to the incompetent person.
(4) Upon
a domestic or foreign corporation or upon a partnership or other unincorporated
association which is subject to suit under a common name, by delivering a copy
of the summons and of the complaint to an officer, a managing or general agent,
or to any other agent authorized by appointment or by law to receive service of
process and, if the agent is one authorized by statute to receive service and
the statute so requires, by mailing a copy to the defendant.
(5) Upon
the State, by delivering a copy of the summons and of the complaint to the
attorney general of the State, or to the assistant attorney general or to any
deputy attorney general who has been appointed by the attorney general.
(6) Upon
an officer or agency of the State, by serving the State and by delivering a
copy of the summons and of the complaint to such officer or agency. If the
agency is a corporation, the copies shall be delivered as provided in paragraph
(4) of this subdivision of this Rule.
(7) Upon
a county, as provided by statute or the county charter, or by delivering a copy
of the summons and of the complaint to the corporation counsel or county
attorney or any of the deputies.
(8) Upon
an officer or agency of a county, by serving the county and by delivering a
copy of the summons and of the complaint to such officer or agency. If the
agency is a corporation the copies shall be delivered as provided in paragraph
(4) of this subdivision of this Rule.
(9) Upon
a defendant of any class referred to in paragraph (d)(1), (d)(2), or (d)(3) of
this Rule, it is also sufficient if the summons and complaint are served in the
manner prescribed by any statute.
(e) Summons: Other service.
(1) Whenever
a statute or an order of court provides for service upon a party who is not a resident
of or found within the State of a summons, or of a notice, or of an order in
lieu of summons, service shall be made under the circumstances and in the
manner prescribed by the statute or order.
(2) Whenever
a statute or an order of court requires or permits service by publication of a
summons, or of a notice, or of an order in lieu of summons, any publication
pursuant thereto shall be made under the circumstances and in the manner
prescribed by the statute or order. Whenever the publication in a newspaper of
any summons, process, notice or order is permitted, evidence of such
publication shall be given by the affidavit or declaration of the editor,
publisher, manager, foreman, clerk or printer of such newspaper, not interested
in the suit, action, matter or proceeding to which such publication relates, to
which affidavit or declaration shall be attached a copy of such summons,
process, notice or order, and which affidavit or declaration shall also specify
the dates and times when and the newspaper in which the publication was made.
Said affidavit or declaration shall be filed with the clerk before the time
fixed for hearing.
(3) Whenever
a statute or order of court requires or permits service by posting the
pleadings and summons at a courthouse and sending a copy of the pleadings and
summons to the individual’s last known address by certified mail with a return
receipt requested and a directive to deliver to addressee only (i.e. restricted
delivery), service shall be made under the circumstances and in the manner
prescribed by the statute or order.
(f) Territorial limits of effective service.
All process may be served anywhere
within the State and, when a statute or order so provides, beyond the limits of
the State.
(g) Return. The person serving the process shall make
proof of service thereof to the court promptly and in any event within the time
during which the person served must respond to process. Proof of service may also be shown through
the filing of an acknowledgment of service by an attorney or party or the
filing of an appearance and waiver pursuant to Rule 8(h) of these Rules. When service is made by any person specially
appointed by the court, that person shall make an affidavit or declaration of
such service.
(h) Amendment. At any time in its discretion and upon such
terms as it deems just, the court may allow any process or proof of service
thereof to be amended, unless it clearly appears that material prejudice would
result to the substantial rights of the party against whom the process issued.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule 5. FILING AND SERVICE OF
PLEADINGS AND OTHER
DOCUMENTS ON PARTIES.
(a) Service:
When required. Unless otherwise ordered by the Court, every document
filed subsequent to the original complaint, including every written
communication to the court, shall be served upon each of the parties. Electronic service shall be made on JEFS
Users as provided by Rule 6 of the Hawaiʻi Electronic Filing and Service Rules. Conventional service shall be made on
non-JEFS Users as provided in these Rules and Rules 1 and 6 of the Hawaiʻi
Electronic Filing and Service Rules. Unless
otherwise ordered by the court, no service needs to be made on parties in
default for failure to appear, except that pleadings asserting new or
additional claims for relief against them shall be served upon them in the
manner provided for service of a summons in Rule 4 of these Rules.
(b) Service of Post-Decree Motions: How made.
If, after the entry of a judgment,
order, or decree finally determining all pending issues and after the
expiration of the time for taking an appeal which lies from such judgment,
order, or decree, a motion is filed raising new issues, that motion shall be
personally served upon the responding party in the same manner as stated in
Rule 4 of these Rules for service of a summons.
Service through JEFS or JIMS shall not be permitted.
(c) Service of All Other Documents: How made.
Except for the service of a complaint and accompanying summons or
post-decree motion or a motion filed under Rule 87(b)(2) of these Rules,
whenever service of a document is required to be made upon a party and that
party is represented by an attorney, service shall be made upon the attorney
unless service upon the party is ordered by the court. Documents shall be served upon attorneys
electronically as provided in Rule 6 of the Hawaiʻi Electronic Filing and
Service Rules. Parties who are JEFS
Users shall also be served electronically as provided in Rule 6 of the Hawaiʻi
Electronic Filing and Service Rules.
Service through JEFS or JIMS is complete upon electronic transmission of
the Notice of Electronic Filing.
Non-JEFS Users shall be served as follows:
(1) Service
upon a party shall be made by delivering a copy to the party or by mailing it
to the party at the party’s last known address or, if no address is known, by
any other method authorized by Rule 4(e) of these Rules.
(2) Delivery
of a copy within this Rule means: handing it to the party; or leaving it at the
party’s office with a clerk or other person in charge thereof; or, if there is
no one in charge, leaving it in a conspicuous place therein; or, if the party’s
office is closed or the party has no office, leaving it at the party’s dwelling
house or usual place of abode with some person of suitable age and discretion
then residing therein.
(3) Service
by mail is complete upon mailing.
(d) Proof of service. A Proof of Service shall be filed to show
proof that a pleading or other document was personally served. Proof of Service may be by written
acknowledgment of service, by affidavit or declaration of the person making
service, by appearance and waiver pursuant to Rule 8(h) or 10(e) of these Rules,
or by any other proof satisfactory to the court, unless otherwise provided by
these Rules, order of the court, or statute. A party who has been prejudiced by
failure to receive due notice or to be served, or who has been prejudiced by
reason that service was made by mail, may apply to the court for appropriate
relief.
(e) Certificate of service. For all documents which are not required to
be personally served, a certificate of service shall be filed with the
court. For electronically filed
documents, the Notice of Electronic Filing shall constitute a certificate of
service on JEFS Users in accordance with Rule 6.1 of the Hawaiʻi Electronic
Filing and Service Rules. For documents
which are served on non-JEFS Users, a certificate of conventional service shall
be filed, indicating the date the document was actually served and the method
of service.
(f) Filing. Except as provided in
subdivision (h) of this Rule, all documents after the complaint required to be
served upon a party shall be filed with the court before service.
(g) Filing with the court defined. The filing of pleadings and other documents with
the court as required by these Rules shall be made by filing them with the
clerk of the court, except that the judge may permit the documents to be filed
with the judge, in which event the judge shall note thereon the filing date and
forthwith transmit them to the office of the clerk. Any other rule to the
contrary notwithstanding, the clerk shall not refuse to accept for filing any document
presented for that purpose solely because it is not presented in proper form as
required by these Rules. Proposed findings, conclusions, orders, or judgments
submitted for signature shall be attached to a coversheet which includes
“Proposed” in the title, although the attached document itself shall not
include “Proposed” in its title, and shall be filed in accordance with Rule 9
of the Hawaiʻi Electronic Filing and Service Rules.
(h) Nonfiling of
discovery materials. A deposition,
interrogatory, request for discovery production or inspection, request for
documents, request for admissions, and answers and responses thereto shall not
be filed automatically with the court; provided that on a motion or at trial
any such document shall be filed when offered in evidence or submitted as an
exhibit. In addition the court may at any time, on ex parte request or sua sponte, order the filing of any discovery material. A certificate of service shall be filed by
the party requesting discovery and shall indicate the date the discovery
request was actually served and the method of service. A certificate of service shall also be filed
by the party responding to the discovery request and shall indicate the date
the response was actually served and the method of service.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
5.1. SERVICE
OF JUDGMENTS,
DECREES,
OR ORDERS
BY
ATTORNEYS.
In
addition to the requirements of Rule 5(c) of these Rules, within 2 days after a
judgment, decree, or order prepared by an attorney is filed in any case, the
preparing attorney shall mail or deliver a copy of the judgment, decree, or
order (and a copy of any agreement of the parties referred to therein) to the
other party at the other party=s
last known address if the other party is not represented by an attorney and is
not a JEFS User. Proof of mailing or delivery of the copy of the judgment,
decree, or order within the 2-day period to the party shall be made by filing a
certificate of service consistent with Rule 5(e) of these Rules. Failure to
comply with this Rule may be considered as grounds for relief from a final
judgment, decree, or order under Rule 60(b)(3) or 60(b)(6) of these Rules. The Notice of Electronic Filing automatically
generated by JEFS is sufficient to show service of the order, decree, or
judgment on all JEFS Users. A judgment,
decree, or order prepared by the court shall be served on parties who are not
JEFS Users in accordance with Rule 6.2(b) of the Hawaiʻi Electronic Filing and
Service Rules.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
5.2. NOTICE
IN PROCEEDING
RELATING TO CHILD IN
FOSTER CARE.
In any judicial proceeding held with
respect to a child in foster care or pursuant to Chapter 587A of the Hawaiʻi
Revised Statutes, the foster parents, pre-adoptive parents, and/or relative
caregivers of the child, or their attorney, shall be duly notified in writing
of the proceeding. The petitioning party shall bear the burden of preparing and
serving notice. Notice shall include the name of the court and names of the
parties, as well as the date, time, location, and nature of the proceeding.
Unless otherwise ordered by the court, notice shall be conventionally served
(pursuant to Rule 1 of the Hawaiʻi Electronic Filing and Service Rules and Rules
4 and 5 of these Rules) at least 24 hours before a hearing for temporary foster
custody and 48 hours before any other scheduled proceeding, subject to a
shortening of time when a proceeding is set within a shorter time frame. If
notice is not conventionally served (pursuant to Rule 1 of the Hawaiʻi
Electronic Filing and Service Rules and Rules 4 and 5 of these Rules), no
proceeding shall be held except as ordered by the court upon good cause shown.
Failure to provide conventional notice as required herein may result in
sanctions pursuant to Rule 89(b) of these Rules.
(Renumbered
March 30, 2022, effective April 25, 2022.)
Rule 6. TIME.
(a) Computation. In computing any period of
time prescribed or allowed by these Rules, by order of court, or by any
applicable statute, the day of the act, event, or default after which the
designated period of time begins to run shall not be included. The last day of
the period so computed shall be included unless it is a Saturday, a Sunday or a
holiday, in which event the period runs until the end of the next day which is
not a Saturday, a Sunday or a holiday. When the period of time prescribed or
allowed is less than 7 days, intermediate Saturdays, Sundays and holidays shall
be excluded in the computation. As used in this Rule, "holiday"
includes any day designated as such pursuant to section 8-1 of the Hawaiʻi
Revised Statutes.
(b) Enlargement. When by these Rules or by a notice given
thereunder or by order of court an act is required or allowed to be done at or
within a specified time, the court may in its discretion
(1) with
or without motion or notice order, upon showing of good cause, the period
enlarged if request therefor is made before the expiration of the period
originally prescribed or as extended by a previous order; or
(2) upon
motion made after the expiration of the specified period, permit the act to be
done where the failure to act was the result of excusable neglect; but it may
not extend the time for taking any action under Rules 52(b), 59(b), (d) and (e)
and 60(b) of these Rules and Rule 4(a) of the Hawaiʻi Rules of Appellate
Procedure, except to the extent and under the conditions stated in them.
(c) Reserved.
(d) For motions; affidavits or declarations.
A written motion, other than a motion
pursuant to Rules 56 and 59 of these Rules, and one which may be heard ex parte, and notice of the hearing
thereof, shall be served not later than 48 hours before the time specified for
hearing, provided that whenever a motion which seeks relief pendente lite is served on the adverse
party by mail in a circuit other than where the motion is filed, such service
shall be made not later than 5 days before the time specified for the hearing,
unless a different period is fixed by these Rules or by order of the court, and
provided further that whenever the motion is served upon the adverse party
outside of the State, such service shall be made not later than 20 days before
the time specified for hearing, unless different period is fixed by these Rules
or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is
supported by an attached affidavit or declaration, the affidavit or declaration
shall be served concurrently with the motion. A response shall be served not
later than the day preceding the hearing, unless the court permits it to be
served at some other time.
(e) Additional time after service by mail. Whenever a party has the right or is required
to do some act or take some proceedings within a prescribed period after the
service of a notice or other document upon the party and the notice or document
is served upon the party by mail, 2 days shall be added to the prescribed
period.
(f) Filing deadlines. Documents which are electronically filed
through JEFS or JIMS shall be deemed timely filed if they are filed before
midnight on the date the document is due, unless there is a specific legal
requirement for an earlier deadline or if the presiding judge prescribes a
specific filing deadline in a particular case.
(Amended
March 30, 2022, effective April 25, 2022.)
III. PLEADINGS AND
MOTIONS
Rule 7. PLEADINGS ALLOWED.
There shall be a complaint, petition,
application or written request, as required by statute, and an answer that may
include a counterclaim and/or cross-claim(s); a reply to a counterclaim
denominated as such; an answer to a cross-claim, if the answer contains a
cross-claim; a third-party complaint, if a person who was not an original party
is summoned under the provisions of Rule 14 of these Rules; and a third-party
answer, if a third-party complaint is served. No other initial pleading shall
be allowed, except that the court may order a reply to an answer or a
third-party answer.
Rule 7.1. FORM AND FORMATTING OF
PLEADINGS, MOTIONS, AND
OTHER DOCUMENTS.
(a) Form. All pleadings, motions, and other documents to
be filed shall be typewritten, printed, photocopied, or otherwise similarly
prepared by a duplication process that will produce clear and permanent copies
equally legible to printing.
Conventionally filed documents shall be printed upon unruled, opaque,
unglazed white paper of standard quality not less than 13 pound weight, 8 ½ x
11 inches in size with a portrait orientation. Each sheet of text shall have a
margin at the top and bottom of 1 inch (except as otherwise provided in
paragraph (c) of this Rule). Each sheet of text shall have a left-hand and
right-hand side margin and each margin shall be not less than 1 inch. The text
of all documents shall be printed in black. The type shall be standard 12 point
Times New Roman, Arial, or equivalent. For conventionally filed documents, copies, but
not originals, may be two-sided. The
lines on each page shall be double-spaced or one and one-half spaced; provided,
however, descriptions of real property, and quotations, may be single spaced.
All pages shall be numbered consecutively at the bottom. Conventionally filed documents shall be
firmly bound together at the top and exhibits may be fastened to pages of the
specified size. Documents, when prepared
by a machine-copying process, shall be equal to typewritten material in
legibility and permanency of image. Conventional signatures and all other
original hand-written entries on documents shall be in black or blue ink. The name of the person signing the pleading,
motion, or other document shall be typed or printed in block letters directly
below the signature.
(b) No blank sheet shall be attached to any pleading,
motion, or other document. No blank
sheet shall be attached to the front or back of any pleading, motion, or other document.
All pleadings, motions, or other documents shall be filed without backs and
shall be neat, clean, legible and free of interlineations.
(c) Caption; form of first page. The first page of every pleading, motion or other
document shall contain a caption setting forth the name of the court, the title
of the action, the case number, and the name of the pleading, motion, or other
document as described below. The first
page of each document shall have either a 3-inch top margin or a
3-inch-by-3-inch space in the top right corner, to accommodate an electronic
file stamp. The first page of each
document shall also have a 1.5 inch bottom margin to accommodate a court
certification. The first page of each
document, except as provided below in (d) shall be in the following form:
(1) The
space at the top left of the page shall contain the name, attorney number,
office address, telephone number, facsimile number (if any), and electronic
mail address of the attorney for the party on whose behalf the document is
filed, or of the party if the party is not represented by an attorney and if no
order has been filed designating the party’s information confidential;
(2) Next,
the name of the court shall be centered and not less than 3 inches from the top
of the page;
(3) Next,
the space to the left of the center of the page shall contain the title of the
case (which title shall include the names of all of the parties in the initial
pleading, but thereafter may be appropriately abbreviated);
(4) In
the space to the right of the title to the case, there shall be listed the case
number, the title of the document, and the title of each additional document
that is attached as required by (d) below; and
(5) Next,
there shall be centered the title of the document itself.
(d) Two or more documents filed together. Except as otherwise provided in this Rule, where
2 or more documents are filed together, only the first page of the first
document shall follow all of the requirements of (c) above. The top of the first page of each of the
subsequent documents shall start with the name of the court and include the
case number, the title of the case and the title of that document itself, in the
appropriate spaces as set forth in (c) above.
Where a document is electronically filed with attached exhibits, it
shall be filed in accordance with Rule 2.3 of the Hawaiʻi Electronic Filing and
Service Rules and each exhibit shall have either a 3-inch top margin or a
3-inch-by-3-inch space in the top right corner, to accommodate an electronic
file stamp.
(e) Proposed findings, conclusions, orders, or
judgments submitted for signature.
Proposed findings, conclusions, orders, or judgments which are attached
to a coversheet and submitted for signature pursuant to these Rules shall also
comply with all of the requirements of (c) above.
(f) Sanctions. The court may impose sanctions for
non-compliance with these Rules.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
7.2. DOCUMENTS
SEALED UPON
FILING.
(a) The following documents shall be sealed
upon filing:
(1) Divorce-Action
Information/
Matrimonial-Action
Information/Civil-Union
Divorce-Action
Information;
(2) Notice/Order
to Withhold Income;
(3) Petition
for Parentage;
(4) Hawaiʻi
Parentage-Action Information;
(5) Confidential
Information Sheet/
Form
A;
(6) Attachment
for Information on
Additional
Children
(7) Birth
certificate;
(8) Marriage
certificate;
(9) Death
certificate;
(10) DNA-testing
results;
(11) Court-ordered
professional evaluation;
(12) Custody
Investigation and/or
Evaluation
Reports;
(13) Guardian
Ad Litem reports; and
(14) Kokua
Kanawai reports.
The forgoing documents shall remain
sealed unless otherwise ordered by the court.
(b) In addition to the forgoing, all documents
filed in the following case types shall be sealed upon filing:
(1) Involuntary-Hospitalization
and/or
Medication
cases under HRS Chapter 334;
(2) Assisted-Community
Treatment cases under HRS Chapter 334;
(3) Adoption
cases under HRS Chapter 578; and
(4) Guardianship-of-a-Minor
cases under HRS Chapter 560.
(Added
March 30, 2022, effective April 25, 2022.)
Rule 8. GENERAL RULES OF
PLEADING.
(a) Claims for relief. A pleading which sets forth a claim for
relief, whether an original claim, counterclaim, cross-claim, or third-party
claim, shall contain
(1) a
short and plain statement of the claim showing that the pleader is entitled to
relief, and
(2) a
demand for judgment for the relief the pleader seeks. Relief in the alternative
or of several different types may be demanded.
(b) Defenses; form of denials. A party shall state in short and plain terms
the party’s defenses to each claim asserted and shall admit or deny the
averments upon which the adverse party relies. If a party is without knowledge
or information sufficient to form a belief as to the truth of an averment, the
party shall so state and this has the effect of a denial. Denials shall fairly
meet the substance of the averments denied. When a pleader intends in good
faith to deny only a part or a qualification of an averment, the pleader shall specify
so much of it as is true and material and shall deny only the remainder. Unless
the pleader intends in good faith to controvert all the averments of the
preceding pleading, the pleader may make denials as specific denials of
designated averments or paragraphs, or the pleader may generally deny all the
averments except such designated averments or paragraphs as the pleader
expressly admits; but, when the pleader does so intend to controvert all its
averments, the pleader may do so by general denial subject to the obligations
set forth in Rule 11 of these Rules.
(c) Affirmative defenses. In pleading to a preceding pleading, a party
shall set forth affirmatively accord and satisfaction, arbitration and award,
assumption of risk, contributory negligence, discharge in bankruptcy, duress,
estoppel, failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statute of frauds,
statute of limitations, waiver, and any other matter constituting an avoidance
or affirmative defense. When a party has mistakenly designated a defense as a counterclaim
or a counterclaim as a defense, the court on terms, if justice so requires,
shall treat the pleading as if there had been a proper designation.
(d) Demurrers, pleas, etc., abolished. Demurrers, pleas, exceptions for insufficiency
of a pleading and motions for bills of particulars shall not be used.
(e) Effect of failure to deny. Averments in a pleading to which a responsive
pleading is required, other than those as to the amount of damage, are admitted
when not denied in the responsive pleading. Averments in a pleading to which no
responsive pleading is required or permitted shall be taken as denied or
avoided.
(f) Pleading to be concise and direct;
consistency.
(1) Each
averment of a pleading shall be simple, concise, and direct. No technical forms
of pleading or motions are required.
(2) A
party may set forth 2 or more statements of a claim or defense alternatively or
hypothetically, either in one count or defense or in separate counts or
defenses. When 2 or more statements are made in the alternative and one of them
if made independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative statements.
A party may also state as many separate claims or defenses as the party has
regardless of consistency and whether based on legal or on equitable grounds or
on both. All statements shall be made subject to the obligations set forth in
Rule 11 of these Rules.
(3) Paragraphs; separate statements. All
averments of claim or defense shall be made in numbered paragraphs, the
contents of each of which shall be limited as far as practicable to a statement
of a single set of circumstances; and a paragraph may be referred to by number
in all succeeding pleadings. Each claim founded upon a separate transaction or
occurrence and each defense other than denials shall be stated in a separate
count or defense whenever a separation facilitates the clear presentation of
the matters set forth.
(4) Adoption by reference; exhibits.
Statements in a pleading may be adopted by reference in a different part of the
same pleading or in another pleading or in any motion. A copy of any written
instrument which is an exhibit to a pleading is a part thereof for all
purposes.
(g) Construction of pleadings. All pleadings shall be so construed as to do
substantial justice.
(h) Appearance and waiver. Any defendant named in a complaint or petition
may execute a form of appearance and waiver of notice or further notice of
hearing on the complaint or petition at any time after receiving a copy of the
filed or unfiled complaint or petition. The appearance and waiver shall be
filed within a reasonable time before the date of the hearing on said complaint
or return date of the summons to the complaint or petition. Upon the filing of
an appearance and waiver, all averments in the complaint or petition shall be
deemed admitted and the hearing on the complaint or petition shall proceed
without further notice to the defendant, unless further notice shall be ordered
by the court. A notice of disclaimer of an appearance and waiver and an answer
may be filed at any time prior to the hearing on the complaint or petition.
Rule 9. PLEADING SPECIAL MATTERS.
(a) Capacity. It is not necessary to aver the capacity of a
party to sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized association of
persons that is made a party. When a party desires to raise an issue as to the
legal existence of any party or the capacity of any party to sue or be sued or
the authority of a party to sue or be sued in a representative capacity, the
party desiring to raise the issue shall do so by specific negative averment,
which shall include such supporting particulars as are peculiarly within the
pleader’s knowledge.
(b) Fraud, mistake, condition of the mind. In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.
Malice, intent, knowledge, and other condition of mind of a person may be
averred generally.
(c) Conditions precedent. In pleading the performance or occurrence of
conditions precedent, it is sufficient to aver generally that all conditions
precedent have been performed or have occurred. A denial of performance or
occurrence shall be made specifically and with particularity.
(d) Official document or act. In pleading an official document or official
act it is sufficient to aver that the document was issued or the act done in
compliance with law.
(e) Judgment. In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-judicial tribunal, or of a board
or officer, it is sufficient to aver the judgment or decision without setting
forth matters showing jurisdiction to render it.
(f) Time and place. For the purpose of testing the sufficiency of
a pleading, averments of time and place are material and shall be considered
like all other averments of material matters.
(g) Reserved.
Rule
10. MOTIONS.
(a) Form of motions. All motions, except when made during a hearing
or trial, shall be in writing, shall state the grounds therefor, shall set
forth the relief or order sought, and if involving a question of law shall be
accompanied by a memorandum in support of the motion. Every motion, except one
entitled to be heard ex parte, shall
be accompanied by a notice of hearing or setting for hearing thereof. If a
motion requires the consideration of facts not appearing of record, it shall be
supported by affidavit or declaration. All written motions shall comply with
the requirements of Rule 7.1 of these Rules.
(b) Declaration in lieu of affidavit. In lieu of an affidavit, an unsworn
declaration may be made by a person, in writing, subscribed as true under
penalty of law, and dated, in substantially the following form:
I, (name of person), do declare under
penalty of law that the foregoing is true and correct.
Dated: ____________________
Signature _____________
(c) Motions requesting financial relief. Any motion seeking an order for or
modification of financial or monetary relief of any kind, except for an award
of attorney’s fees in enforcement proceedings, shall have attached,
typewritten, unless otherwise permitted by the court for good cause shown,
income and expense and asset and debt statements on the form provided by the
court or equivalent forms, executed by the movant and duly notarized or
executed under penalty of perjury. Unless otherwise ordered, any person
responding to such motion shall prepare and submit to the court and the movant,
no later than 48 hours prior to the hearing of such motion, unless the date of
the hearing is less than 5 working days after service of said motion on the
respondent, income and expense and asset and debt statements on the form
provided by the court or equivalent forms, executed by such respondent and duly
notarized or executed under penalty of perjury. Where the time between service
and the hearing date is less than 5 working days, such statements shall be submitted
not later than immediately prior to the hearing.
(d) Response to motions; effect of failure to
appear. In addition to the
requirements of Rule 7.1 of these Rules and subsection (c) of this Rule, any party
responding to a motion shall file and serve the party’s written response
pursuant to these Rules, unless ordered otherwise by the court. A party who
does not oppose or who intends to support a motion, or who desires a
continuance, shall give written notification to the court and opposing counsel
pursuant to these rules, unless ordered otherwise by the court. Failure to
appear at the hearing may be deemed a waiver of objections to the granting of
the motion.
(e) Appearance and waiver. Any respondent to any motion may execute a
form of appearance and waiver of notice or further notice of hearing on the
motion at any time after receiving a copy of the filed motion. The appearance
and waiver of notice shall be filed within a reasonable time before the date of
hearing on said motion. Upon the filing of an appearance and waiver, all
averments in the motion shall be deemed admitted and the hearing on the motion
shall proceed without further notice to the respondent, unless further notice shall
be ordered by the court. A notice of disclaimer of an appearance and waiver of
notice and an answer may be filed at any time prior to the hearing on the
motion.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
11. SIGNING
OF PLEADINGS,
MOTIONS AND OTHER
DOCUMENTS; SANCTIONS.
Every pleading, motion, and other document
of a party represented by an attorney shall be signed by at least one attorney
of record in the attorney’s individual name, whose address, telephone number,
facsimile number (if any), and electronic mail address shall be stated. Any
document prepared by an attorney for a self-represented party shall comply with
Rule 11.1(c) of these Rules. A party who is not represented by an attorney
shall sign the party’s pleading, motion, or other document and state the
party’s address, telephone number, facsimile number (if any), and electronic
mail address (if any). Documents
electronically filed by JEFS Users shall be signed as provided in Rule 5 of the
Hawaiʻi Electronic Filing and Service Rules using “/s/” followed by the typed
name of the JEFS User. However, proposed
judgments, decrees, and orders which are filed electronically shall only be
signed in this manner by the JEFS User who is actually electronically filing
the proposed judgment, decree, or order.
All other signatures on the proposed judgment, decree, or order shall be
an original handwritten signature.
Documents which are conventionally filed by non-JEFS Users shall contain
handwritten signatures. The name of the
person signing the document shall be typed or hand-printed in block letters
directly below the signature. Except when otherwise specifically provided by
rule or statute, pleadings need not be verified or accompanied by affidavit or
declaration. The rule in equity that the averments of an answer under oath must
be overcome by the testimony of 2 witnesses or of one witness sustained by
corroborating circumstances is abolished. The signature of an attorney or party
constitutes a certificate by the signer that the signer has read the pleading,
motion, or other document; that to the best of the signer’s knowledge, information,
and belief formed after reasonable inquiry it is well grounded in fact and is
warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for
any improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation. If a pleading, motion, or other document
is not signed, it shall be stricken unless it is signed promptly after the
omission is called to the attention of the pleader or movant. If a pleading,
motion, or other document is signed in violation of this Rule, the court, upon
motion or upon its own initiative, shall impose upon the person who signed it,
a represented party, or both, an appropriate sanction, which may include an
order to pay to the other party or parties the amount of the reasonable
expenses incurred because of the filing of the pleading, motion, or other document,
including a reasonable attorney’s fee.
(Amended
September 17, 2019, effective September 17, 2019; further amended March 30,
2022, effective April 25, 2022.)
Rule
11.1 LIMITED
APPEARANCE AND
WITHDRAWAL.
(a) Limited Appearance of Attorneys.
(1) An
attorney providing limited representation to an unrepresented party as
authorized by Rule 1.2 of the Hawaiʻi Rules of Professional Conduct may file
with the court a “Notice of Limited Appearance,” appended to these Rules, if
the representation will include appearances in court. The attorney shall use
the form appended to the Rules or a substantially similar document.
(2) An
attorney may submit in camera an
“Agreement and Consent to Limited Representation” by using the form appended to
these Rules or a substantially similar document.
(3) An
attorney who has filed a “Notice of Limited Appearance” and who later files a
pleading or motion outside the scope of the limited representation shall be
deemed to have amended the notice to extend to the filing of that pleading or
motion.
(b) Termination of Limited
Representation.
(1) An
attorney who has made a limited representation appearance, has filed a “Notice
of Limited Appearance” and has completed the agreed-upon services stated in an
“Agreement and Consent to Limited Representation,” may file a “Notice of
Withdrawal of Limited Appearance” by using the form appended to these Rules or
a substantially similar document.
(2) Any
attorney who has filed a “Notice of Limited Appearance” and who seeks to
withdraw prior to the completion of the agreed-upon services stated in the
“Agreement and Consent to Limited Representation” shall file a motion for
withdrawal of counsel pursuant to Rule 87 of these Rules.
(3) An
attorney who provides limited representation that includes a court appearance
but who has elected not to file a “Notice of Limited Appearance” shall file a
motion for withdrawal of counsel pursuant to Rule 87 of these Rules.
(4) A
client who objects to the withdrawal of the client’s attorney under this Rule
11.1(b) may file an “Objection to Withdrawal of Limited Appearance” using the
form appended to these Rules or a substantially similar document, and a hearing
will be scheduled. The objection shall be filed within 14 days of the date the
attorney files the notice of withdrawal.
(5) In
any hearing on a motion for withdrawal of counsel or an objection to withdrawal
of limited appearance, the court shall consider the terms of any agreement for
limited scope representation.
(c) Pleading Prepared for Unrepresented Party.
(1) When
an attorney, regardless of whether a formal “Agreement and Consent to Limited
Representation” has been entered into, provides limited representation to a
self-represented party by drafting a pleading, written motion, or other document
intended to be filed with the court, but the attorney has not agreed to appear
in court or otherwise provide representation regarding that document, the
attorney is not required to disclose the attorney’s name on that document.
However, the first page of the document must conspicuously contain the
following statement, “This document was prepared with the assistance of an
attorney.” The self-represented party must comply with this required
disclosure.
If, however, a pleading, motion, or
other document is prepared by an attorney providing limited representation
under the auspices of a program sponsored by a nonprofit organization, court,
or government, the pleading, motion or other document need not contain this
statement.
(2) An
attorney who provides limited representation as described in paragraph (c)(1),
above, shall be deemed to have made the certifications set forth in Rule 11 of
these Rules.
(Added
September 17, 2019, effective September 17, 2019; amended August 4, 2020,
effective January 1, 2021; further amended March 30, 2022, effective April 25,
2022.)
Rule
12. DEFENSES AND
OBJECTIONS –
WHEN AND HOW PRESENTED –
BY PLEADING OR MOTION –
MOTION FOR JUDGMENT ON
THE PLEADINGS.
(a) When presented. A defendant shall serve an answer within 20
days after the service of the summons and complaint upon that defendant, except
when service is made under Rule 4(e) of these Rules and a different time is
prescribed in an order of court under a statute or rule of court. A party
served with a pleading stating a cross-claim against that party shall serve an
answer thereto within 20 days after the service upon that party. The plaintiff
shall serve a reply to a counterclaim in the answer within 20 days after
service of the answer or, if a reply is ordered by the court, within 20 days
after service of the order, unless the order otherwise directs. The service of
a motion permitted under this rule alters these periods of time as follows,
unless a different time is fixed by order of the court:
(1) if
the court denies the motion or postpones its disposition until the trial on the
merits, the responsive pleading shall be served within 10 days after notice of
the court’s action; or
(2) if
the court grants a motion for a more definite statement the responsive pleading
shall be served within 10 days after the service of the more definite
statement.
(b) How presented. Every defense, in law or fact, to a claim for
relief in any pleading, whether a claim, counterclaim, cross-claim, or
third-party claim, shall be asserted in the responsive pleading thereto if one
is required, except that the following defenses may at the option of the
pleader be made by motion:
(1) lack
of jurisdiction over the subject matter,
(2) lack
of jurisdiction over the person,
(3) improper
venue,
(4) insufficiency
of process,
(5) insufficiency
of service of process,
(6) failure
to state a claim upon which relief can be granted, and
(7) failure
to join a party under Rule 19 of these Rules.
A motion making any of these defenses
shall be made before pleading if a further pleading is permitted. No defense or
objection is waived by being joined with one or more other defenses or
objections in a responsive pleading or motion. If a pleading sets forth a claim
for relief to which the adverse party is not required to serve a responsive
pleading, the adverse party may assert at the trial any defense in law or fact
to that claim for relief. If, on a motion asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and disposed of
as provided in Rule 56 of these Rules, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a motion
by Rule 56.
(c) Motion for judgment on the pleadings. After the pleadings are closed but within such
time as not to delay the trial, any party may move for judgment on the
pleadings. If, on a motion for judgment on the pleadings, matters outside the
pleadings are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in Rule 56 of
these Rules, and all parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56 of these Rules.
(d) Preliminary hearings. The defenses specifically enumerated (1) - (7)
in subdivision (b) of this Rule, whether made in a pleading or by motion, and
the motion for judgment allowed by subdivision (c) of this Rule shall be heard
and determined before trial on application of any party unless the court orders
that the hearing and determination thereof be deferred until the trial.
(e) Motion for more definite statement. If a pleading to which a responsive pleading
is permitted is so vague or ambiguous that a party cannot reasonably be
required to frame a responsive pleading, the party may move for a more definite
statement before interposing a responsive pleading. The motion shall point out
the defects complained of and the details desired. If the motion is granted and
the order of the court is not obeyed within 10 days after notice of the order
or within such other time as the court may fix, the court may strike the
pleading to which the motion was directed or make such order as it deems just.
(f) Motion to strike. Upon motion made by a party before responding
to a pleading or, if no responsive pleading is permitted by these Rules, upon
motion made by a party within 20 days after the service of the pleading upon
the party or upon the court’s own initiative at any time, the court may order
stricken from any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.
(g) Consolidation of defenses in motion. A party who makes a motion under this rule may
join with it any other motions herein provided for and then available to the
party. If a party makes a motion under this rule but omits therefrom any
defense or objection then available to the party which this rule permits to be
raised by motion, the party shall not thereafter make a motion based on the
defense or objection so omitted, except a motion as provided in subdivision
(h)(2) of this Rule on any of the grounds there stated.
(h) Waiver or preservation of certain defenses.
(1) A
defense of lack of jurisdiction over the person, improper venue, insufficiency
of process, or insufficiency of service of process is waived
(A) if
omitted from a motion in the circumstances described in subdivision (g), or
(B) if
it is neither made by motion under this rule nor included in a responsive
pleading or an amendment thereof permitted by Rule 15(a) of these Rules to be
made as a matter of course.
(2) A
defense of failure to state a claim upon which relief can be granted, a defense
of failure to join a party indispensable under Rule 19 of these Rules, and an
objection of failure to state a legal defense to a claim may be made in any
pleading permitted or ordered under Rule 7(a) of these Rules, or by motion for
judgment on the pleadings, or at the trial on the merits.
(3) Whenever
it appears by motion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.
Rule
13. COUNTERCLAIM
AND
CROSS-CLAIM.
(a) Compulsory counterclaims. A pleading shall state as a counterclaim any
claim which at the time of serving the pleading the pleader has against any
opposing party, if it arises out of the transaction or occurrence that is the
subject matter of the opposing party’s claim and does not require for its
adjudication the presence of third parties of whom the court cannot acquire
jurisdiction. But the pleader need not state the claim if
(1) at
the time the action was commenced the claim was the subject of another pending
action; or
(2) the
opposing party brought suit upon the claim by attachment or other process by
which the court did not acquire jurisdiction to render a personal judgment on
that claim, and the pleader is not stating any counterclaim under this Rule 13.
(b) Permissive counterclaims. A pleading may state as a counterclaim any
claim against an opposing party not arising out of the transaction or
occurrence that is the subject matter of the opposing party’s claim.
(c) Counterclaim exceeding opposing claim. A counterclaim may or may not diminish or
defeat the recovery sought by the opposing party. It may claim relief exceeding
in amount or different in kind from that sought in the pleading of the opposing
party.
(d) Counterclaim against the State. These Rules shall not be construed to enlarge
beyond the limits now fixed by law the right to assert counterclaims or to
claim credits against the State or a county, or an officer or agency of the
State or a county.
(e) Counterclaim maturing or acquired after
pleading. A claim which either
matured or was acquired by the pleader after serving a pleading may, with the
permission of the court, be presented as a counterclaim by supplemental
pleading.
(f) Omitted counterclaim. When a pleader fails to set up a counterclaim
through oversight, inadvertence, or excusable neglect, or when justice
requires, the pleader may by leave of court set up the counterclaim by
amendment.
(g) Cross-claim against co-party. A pleading may state as a cross-claim any
claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of a
counterclaim therein or relating to any property that is the subject matter of
the original action. Such cross-claim may include a claim that the party
against whom it is asserted is or may be liable to the cross-claimant for all
or part of a claim asserted in the action against the cross-claimant.
(h) Joinder of additional parties. Persons other than those made parties to the
original action may be made parties to a counterclaim or cross-claim in
accordance with the provisions of Rules 19 and 20 of these Rules.
(i) Separate
trials; separate judgment. If the
court orders separate trials as provided in Rule 42(b) of these Rules, judgment
on a counterclaim or cross-claim may be rendered when the court has
jurisdiction so to do, even if the claims of the opposing party have been
dismissed or otherwise disposed of.
Rule
14. THIRD-PARTY
PRACTICE.
(a) When parties may bring in third-party. A party to the action may cause a third-party
to be brought in only in the event that property rights of such third-party may
be affected or such third-party has or may have an interest in the custody or
visitation of a minor child of a party to the action. The party seeking to
bring in a third-party defendant shall file a motion for leave to file a
third-party complaint together with an affidavit or declaration and notice in
accordance with Rule 10 of these Rules. The person served with the summons and
third-party complaint, hereinafter called the third-party defendant, shall make
any defenses to the third-party complaint as provided in Rule 12 of these Rules.
The third-party defendant may also assert any claim against the plaintiff or
defendant arising out of the transaction or occurrence that is the subject
matter of the complaint.
(b) Reserved.
Rule
15. AMENDED
AND
SUPPLEMENTAL PLEADINGS.
(a) Amendments. A party may amend the party’s pleading once as
a matter of course at any time before a responsive pleading is served or, if
the pleading is one to which no responsive pleading is permitted and the action
has not been placed upon the trial calendar, the party may so amend it at any
time within 20 days after it is served. Otherwise a party may amend the party’s
pleading only by leave of court or by written consent of the adverse party; and
leave shall be freely given when justice so requires. Amendments to pleadings
and documents shall state clearly what is being changed and, thereinafter, what
the change is. A party shall plead in response to an amended pleading within
the time remaining for response to the original pleading or within 10 days
after service of the amended pleading, whichever period may be the longer,
unless the court otherwise orders.
(b) Amendments to conform to the evidence. When issues not raised by the pleadings are
tried by express or implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any time, even after
judgment; but failure so to amend does not affect the result of the trial of
these issues. If evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, the court may allow the pleadings
to be amended and shall do so freely when the presentation of the merits of the
action will be served thereby and the objecting party fails to satisfy the
court that the admission of such evidence would prejudice the party in
maintaining the party’s action or defense upon the merits. The court may grant
a continuance to enable the objecting party to meet such evidence.
(c) Relation back of amendments. Whenever the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or occurrence set forth
or attempted to be set forth in the original pleading, the amendment relates
back to the date of the original pleading. An amendment changing the party
against whom a claim is asserted relates back if the foregoing provision is
satisfied and, within the period provided by law for commencing the action
against the party, the party to be brought in by amendment
(1) has
received such notice of the institution of the action that the party will not
be prejudiced in maintaining a defense on the merits, and
(2) knew
or should have known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against the party.
(d) Supplemental pleadings. Upon motion of
a party the court may, upon reasonable notice and upon such terms as are just,
permit the party to serve a supplemental pleading setting forth transactions or
occurrences or events which have happened since the date of the pleading sought
to be supplemented. Permission may be granted even though the original pleading
is defective in its statement of a claim for relief or defense. If the court
deems it advisable that the adverse party respond to the supplemental pleading,
it shall so order, specifying the time therefor.
Rule
16. CONFERENCES
WITH THE
COURT; FORMULATING ISSUES.
In any action, the court may in its discretion
direct the attorneys for the parties to appear before it for a conference to
consider:
(1) The
settlement of the case;
(2) The
simplification of the issues;
(3) The
necessity or desirability of amendments to the pleadings;
(4) The
possibility of obtaining admissions of fact and of documents which will avoid
unnecessary proof;
(5) The
limitation of the number of expert witnesses;
(6) The
advisability of a preliminary reference of issues to a master for findings to
be used as evidence;
(7) Such
other matters as may aid in the disposition of the action.
The court shall make an order which
recites the action taken at the conference, the amendments allowed to the
pleadings, and the agreements made by the parties as to any of the matters
considered, and which limits the issues for trial to those not disposed of by
admissions or agreements of counsel; and such order when entered controls the
subsequent course of the action, unless modified at the trial to prevent
manifest injustice. The court in its discretion may establish a pre-trial
calendar on which actions may be placed for consideration as above provided.
IV. PARTIES
Rule
17. PARTIES;
CAPACITY.
(a) Real party in interest. Every action shall be prosecuted in the name
of the real party in interest. No action shall be dismissed on the ground that
it is not prosecuted in the name of the real party in interest until a
reasonable time has been allowed after objection for ratification of
commencement of the action by, or joinder or substitution of, the real party in
interest; and such ratification, joinder, or substitution shall have the same
effect as if the action had been commenced in the name of the real party in
interest.
(b) Reserved.
(c) Minors or incompetent persons. The court may appoint a guardian ad litem for
a minor or incompetent person not otherwise represented in an action or shall
make such other order as it deems proper for the protection of the minor or
incompetent person.
(d) Unidentified defendant.
(1) When
it shall be necessary or proper to make a person a party defendant and the
party desiring the inclusion of the person as a party defendant has been unable
to ascertain the entire name of the defendant or a part of the defendant’s name
to ascertain the defendant’s identity, the party desiring the inclusion of the
person as a party defendant shall in accordance with the criteria of Rule 11 of
these Rules set forth in a pleading the person’s interest in the action, so
much of the defendant’s name as is known (and if unknown, a fictitious name
shall be used), and shall set forth with specificity all actions already
undertaken in a diligent and good-faith effort to ascertain the person’s full
name and identity.
(2) Subject
to HRS section 657-22, the person intended shall thereupon be considered a
party defendant to the action, as having notice of the institution of the
action against that person, and as sufficiently described for all purposes,
including services of process, and the action shall proceed against that
person.
(3) Any
party may, by motion for certification, make the name or identity of the party
defendant known to the court within a reasonable time after the moving party
knew or should have known the name or identity of the party defendant. The
motion shall be supported by affidavit or declaration setting forth all facts
substantiating the movant's claim that the naming or identification has been
made with due diligence. When the naming or identification is made by a
plaintiff, it shall be made prior to the filing of the position statement by
that plaintiff, or within such additional time as the court may allow. The
court shall freely grant reasonable extensions of the time in which to name or
identify the party defendant to any party exercising due diligence in attempting
to ascertain the party defendant’s name or identity.
(4) When
a party defendant has been named or identified in accordance with this rule,
the court shall so certify and may make any order that justice requires to
protect any party from undue burden and expense in any further proceedings
involving the party defendant.
(5) A
party defendant who has been named or identified in accordance with this rule
may have dismissal of one or more claims against the party defendant if the
party defendant shows in a timely manner that the delay in naming or
identifying the party defendant has caused the party defendant substantial
prejudice and if the interests of justice so require.
Rule
18. RESERVED.
Rule
19. JOINDER
OF PERSONS NEEDED
FOR JUST ADJUDICATION.
(a) Persons to be joined if feasible. A person who is subject to service of process
shall be joined as a party in the action if
(1) in
the person’s absence complete relief cannot be accorded among those already
parties, or
(2) the
person claims an interest relating to the subject of the action and is so
situated that the disposition of the action in the person’s absence may
(A) as
a practical matter impair or impede the person’s ability to protect that
interest. or
(B) leave
any of the persons already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations by reason of the
claimed interest.
If the person has not been so joined,
the court shall order that the person be made a party. If the person should
join as a plaintiff but refuses to do so, the person may be made a defendant,
or, in a proper case, an involuntary plaintiff.
(b) Determination by court whenever joinder not
feasible. If a person as described
in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall
determine whether in equity and good conscience the action should proceed among
the parties before it, or should be dismissed, the absent person being thus regarded
as indispensable. The factors to be considered by the court include: first, to
what extent a judgment rendered in the person’s absence might be prejudicial to
the person or those already parties; second, the extent to which, by protective
provisions in the judgment, by the shaping of relief, or other measures, the
prejudice can be lessened or avoided; third, whether a judgment rendered in the
person’s absence will be adequate; fourth, whether the plaintiff will have an
adequate remedy if the action is dismissed for nonjoinder.
(c) Pleading reasons for nonjoinder. A pleading asserting a claim for relief shall
state the names, if known to the pleader, of any persons described in
subdivision (a)(1)-(2) of this Rule who are not joined, and the reasons why
they are not joined.
(d) Reserved.
Rule
19A. REPEALED.
Rule 20. PERMISSIVE
JOINDER OF
PARTIES.
(a) Permissive
joinder. All persons may join or be
joined in one action as parties concerning any right to relief jointly,
severally, or in the alternative, in respect of or arising out of property
ownership or an issue as to parentage, custody, visitation, support, placement,
or treatment of a child.
(b) Separate
trials. The court may make such
orders as will prevent a party from being embarrassed, delayed, or put to
expense by the inclusion of a party against whom the party asserts no claim and
who asserts no claims against the party, and may order separate trials or make
other orders to prevent delay or prejudice.
(Amended March 30, 2022, effective April 25,
2022.)
Rule
21. MISJOINDER
AND
NON-JOINDER OF PARTIES.
Misjoinder of parties is not ground for
dismissal of an action. Parties may be dropped or added by order of the court
on motion of any party or of its own initiative at any stage of the action and
on such terms as are just. Any claim against a party may be severed and
proceeded with separately by order of the court.
Rule
22. RESERVED.
Rule
23. RESERVED.
Rule
24. INTERVENTION.
(a) Intervention of right. Upon timely application anyone shall be
permitted to intervene in an action:
(1) when
a statute confers an unconditional right to intervene; or
(2) when
the applicant claims an interest relating to the property, transaction, or
custody, visitation, or parental rights of a minor child which is the subject
of the action and the applicant is so situated that the disposition of the
action may as a practical matter impair or impede the applicant’s ability to
protect that interest, unless the applicant’s interest is adequately
represented by existing parties.
(b) Permissive intervention. Upon timely application anyone may be
permitted to intervene in an action:
(1) when
a statute confers a conditional right to intervene; or
(2) when
an applicant’s claim or defense and the main action have a question of law or
fact in common.
When a party to an action relies for
ground of claim or defense upon any statute, ordinance or executive order
administered by an officer, agency or governmental organization of the State or
a county, or upon any regulation, order, requirement or agreement issued or
made pursuant to the statute, ordinance or executive order, the officer, agency
or governmental organization upon timely application may be permitted to
intervene in the action. In exercising its discretion the court shall consider
whether the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties.
(c) Procedure. A person desiring to intervene shall serve a
motion to intervene upon all parties affected thereby. The motion shall state
the ground therefor and shall be accompanied by a pleading setting forth the
claim for which intervention is sought. The same procedure shall be followed
when a statute gives a right to intervene.
(d) Notice of Claim of Unconstitutionality.
A party who draws into question the
constitutionality of a Hawaiʻi statute in any proceeding to which the State of
Hawaiʻi, or any agency thereof, or any officer or employee thereof in an
official capacity is not a party, shall provide immediate written notice of the
constitutional issue to the Attorney General of the State of Hawaiʻi.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
25. SUBSTITUTION
OF PARTIES.
(a) Death.
(1) If
a party dies and the case is not thereby extinguished, the court may on motion
order substitution of the proper parties where appropriate. The motion for
substitution may be made by the successors or representatives of the deceased
party or by any party and, together with the notice of hearing, shall be served
on the parties as provided in Rule 5 of these Rules and upon persons not
parties in the manner provided in Rule 4 of these Rules for the service of
process. Unless the motion for substitution is made not later than 120 days
after the death is suggested upon the record by service of a statement of the
fact of the death as provided herein for the service of the motion, the action
shall be dismissed as to the deceased party.
(2) If
a party to any action or motion relating to any action dies, and if it appears
that the action is thereby extinguished, the surviving party shall suggest the
death of the party and also move that the action is thereby extinguished and
should be dismissed, and shall serve such suggestion and motion on all parties,
including the personal representative of and the attorney of record for the
deceased party, if any, and on any children of the deceased party, known to the
suggesting party, in the manner provided for service in these rules. Unless
objections are filed within 30 days after the last date of service of said
suggestion and motion, an order dismissing the action without prejudice, to be
prepared by the attorney for the surviving party, shall be entered. Where
objections to the dismissal of such action are filed within said 30-day period
or any extension granted by the court, the court shall hear said objections
after notice to all persons who have appeared in the action and the attorney of
record for the deceased party, determine whether or not the case should be
dismissed, and enter an appropriate order.
(3) If
a petitioner in a pending adoption action dies, the court may enter an adoption
decree upon motion of the surviving petitioner or the spouse of such deceased
petitioner and if the court deems the adoption to be in the best interests of
the child concerned.
(b) Incompetency. If a party becomes incompetent, the court upon
motion served on the parties as provided in Rule 5 of these Rules and upon
persons not parties in the manner provided in Rule 4 of these Rules for the
service of process may allow the action to be continued by or against the
representative of that party.
(c)
and (d). Reserved.
V. DEPOSITIONS AND DISCOVERY
Rule
26. GENERAL
PROVISIONS
GOVERNING DISCOVERY.
(a) Discovery methods. Parties may obtain discovery by one or more of
the following methods: depositions upon oral examination or written questions;
written interrogatories; production of documents or things; permission to enter
upon land or other property, for inspection and other purposes; physical and
mental examinations; and requests for admission.
(b) Discovery scope and limits. Unless otherwise limited by order of the court
in accordance with these Rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any
matter, not privileged, or otherwise protected by law, which is relevant to the
subject matter involved in the pending action, whether it relates to the claim
or defense of the party seeking discovery or to the claim or defense of any
other party, including the existence, description, nature, custody, condition
and location of any books, documents, or other tangible things and the identity
and location of persons having knowledge of any discoverable matter. It is not
ground for objection that the information sought will be inadmissible at the
trial if the discovery appears reasonably calculated to lead to the discovery
of admissible evidence. All discovery is subject to the limitations imposed by
Rule 26(b)(2)(i), (ii), and (iii) and Rule 45.1 of
these Rules.
(2) Limitations. By order, the court may alter the limits in
these Rules on the number of depositions or the length of depositions under
Rule 30 of these Rules and the number of interrogatories under Rule 33 of these
Rules. By order, the court may also limit the number of requests under Rule 36
of these Rules. The frequency or extent of use of the discovery methods
otherwise permitted under these Rules shall be limited by the court if it
determines that:
(i) the discovery sought is unreasonably
cumulative or duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive;
(ii) the
party seeking discovery has had ample opportunity by discovery in the action to
obtain the information sought; or
(iii) the
burden or expense of the proposed discovery outweighs its likely benefit,
taking into account the needs of the case, the amount in controversy,
limitations on the parties’ resources, the importance of the issues at stake in
the litigation, and the importance of the proposed discovery in resolving the
issues.
The court may act upon its own
initiative after reasonable notice or pursuant to a motion under Rule 26(c) of
these Rules.
(3) Reserved.
(4) Trial Preparation: Materials. A party may obtain discovery of documents and
tangible things otherwise discoverable under subdivision (b)(1) of this Rule
and prepared in anticipation of litigation or for trial by or for another party
or by or for that other party’s representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent) only upon a
showing that the party seeking discovery has substantial need of the materials
in the preparation of the party’s case and that the party is unable without undue
hardship to obtain the substantial equivalent of the materials by other means.
In ordering discovery of such materials when the required showing has been
made, the court shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative
of a party concerning the litigation.
A party may obtain without the required
showing a statement concerning the action or its subject matter previously made
by that party. Upon request, a person not a party may obtain without the
required showing a statement concerning the action or its subject matter
previously made by that person. If the request is refused, the person may move
for a court order. The provisions of Rule 37(a)(4) of these Rules apply to the
award of expenses incurred in relation to the motion. For purposes of this
paragraph, a statement previously made is
(A) a
written statement signed or otherwise adopted or approved by the person making
it, or
(B) a
stenographic, mechanical, electrical, or other recording, or a transcription
thereof, which is a substantially verbatim recital of an oral statement by the
person making it and contemporaneously recorded.
(5) Trial Preparation: Experts.
(A) A
party may depose any person who has been identified as an expert whose opinions
may be presented at trial.
(B) A
party may, through interrogatories and/or by deposition, discover facts known
or opinions held by an expert who has been retained or specially employed by
another party in anticipation of litigation or preparation for trial and who is
not expected to be called as a witness at trial, only as provided in Rule 35(b)
of these Rules or upon a showing of exceptional circumstances under which it is
impracticable for the party seeking discovery to obtain facts or opinions on
the same subject by other means.
(C) Unless
manifest injustice would result,
(i) the court shall require that the party
seeking discovery pay the expert a reasonable fee for time spent in responding
to discovery under this subdivision; and
(ii) with
respect to discovery obtained under subdivision (b)(5)(B) of this Rule, the
court shall require the party seeking discovery to pay the other party a fair
portion of the fees and expenses reasonably incurred by the latter party in
obtaining facts and opinions from the expert.
(6) Claims of Privilege or Protection of Trial
Preparation Materials. When a
party withholds information otherwise discoverable under these Rules by
claiming that it is privileged or subject to protection as trial preparation
material, the party shall make the claim expressly and shall describe the
nature of the documents, communications, or things not produced or disclosed in
a manner that, without revealing information itself privileged or protected,
will enable other parties to assess the applicability of the privilege or
protection.
(c) Protective orders. Upon motion by a party or by the person from
whom discovery is sought, accompanied by a certification that the movant has in
good faith conferred or attempted to confer with other affected parties in an effort
to resolve the dispute without court action, and for good cause shown, the
court in which the action is pending or alternatively, on matters relating to a
deposition, the court in the circuit where the deposition is to be taken may
make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including one
or more of the following:
(1) that
the disclosure or discovery not be had;
(2) that
the disclosure or discovery may be had only on specified terms and conditions,
including a designation of the time or place;
(3) that
the discovery may be had only by a method of discovery other than that selected
by the party seeking discovery;
(4) that
certain matters not be inquired into, or that the scope of the disclosure or
discovery be limited to certain matters;
(5) that
discovery be conducted with no one present except persons designated by the
court;
(6) that
a deposition after being sealed be opened only by order of the court;
(7) that
a trade secret or other confidential research, development, or commercial
information not be revealed or be revealed only in a designated way; and
(8) that
the parties simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court or file documents for in camera review pursuant to Rule 8.2 of
the Hawaiʻi Electronic Filing and Service Rules.
If the motion for a protective order is
denied in whole or in part, the court may, on such terms and conditions as are
just, order that any party or person provide or permit discovery. The
provisions of Rule 37(a)(4) of these Rules apply to the award of expenses
incurred in relation to the motion.
(d) Sequence and timing of discovery. Unless the court upon motion, for the
convenience of parties and witnesses and in the interests of justice, orders
otherwise, methods of discovery may be used in any sequence and the fact that a
party is conducting discovery, whether by deposition or otherwise, shall not
operate to delay any other party’s discovery.
(e) Supplementation of responses. A party who has responded to a request for
discovery with a response that was complete when made is under no duty to
supplement the response to include information thereafter acquired, except as
follows:
(1) A
party is under a duty seasonably to supplement the response with respect to any
question directly addressed to
(A) the
identity and location of persons having knowledge of discoverable matters, and
(B) the
identity of each person expected to be called as an expert witness at trial,
the subject matter on which the person is expected to testify, and the
substance of the person’s testimony.
(2) A
party is under a duty seasonably to amend a prior response to an interrogatory,
request for production, or request for admission if the party learns that
(A) the
response is in some material respect incomplete or incorrect or
(B) the
response omits information which if disclosed could lead to the discovery of
additional admissible evidence.
(3) A
duty to supplement responses may be imposed by order of the court, agreement of
the parties, or at any time prior to trial through new requests for
supplementation of prior responses.
(f) Discovery conference. At any time after commencement of an action
the court may direct the attorneys for the parties to appear before it for a
conference on the subject of discovery. The court shall do so upon motion by
the attorney for any party if the motion includes:
(1) A
statement of the issues as they then appear;
(2) A
proposed plan and schedule of discovery;
(3) Any
limitations proposed to be placed on discovery;
(4) Any
other proposed orders with respect to discovery; and
(5) A
statement showing that the attorney making the motion has made a reasonable
effort to reach agreement with opposing attorneys on the matters set forth in
the motion. Notice of the motion shall be served on all parties. Objections or
additions to matters set forth in the motion shall be served no later than 10
days after service of the motion.
Each party and each party’s attorney are
under a duty to participate in good faith in the framing of a discovery plan if
a plan is proposed by the court or by the attorney for any party.
Following the discovery conference, the
court shall enter an order tentatively identifying the issues for discovery
purposes, establishing a plan and schedule for discovery, setting limitations
on discovery, if any, and determining such other matters, including the
allocation of expenses, as are necessary for the proper management of discovery
in the action. An order may be altered or amended whenever justice so requires.
Subject to the right of a party who
properly moves for a discovery conference to prompt convening of the
conference, the court may combine the discovery conference with a conference
authorized by Rule 16 of these Rules.
(g) Signing of discovery requests, responses,
and objections.
(1) Every
discovery request, response, or objection made by a party represented by an
attorney shall be signed by an attorney of record in the attorney’s individual
name, whose address shall be stated. A self-represented party shall sign the
request, response, or objection and state the party’s address. The signature of
the attorney or party constitutes a certification that to the best of the
signer’s knowledge, information, and belief, formed after a reasonable inquiry,
the request, response, or objection is:
(A) Consistent
with these Rules and warranted by existing law or good faith argument for the
extension, modification, or reversal of existing law;
(B) Not
interposed for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation; and
(C) Not
unreasonable or unduly burdensome or expensive, given the needs of the case,
the discovery already had in the case, the amount in controversy, and the
importance of the issues at stake in the litigation. If a request, response, or
objection is not signed, it shall be stricken unless it is signed promptly
after the omission is called to the attention of the party making the request,
response or objection and a party shall not be obligated to take any action
with respect to it until it is signed.
(2) If
without substantial justification a certification is made in violation of the
rule, the court, upon motion or upon its own initiative, shall impose upon the
person who made the certification, the party on whose behalf the request,
response, or objection is made, or both, an appropriate sanction, which may
include an order to pay the amount of the reasonable expenses incurred because
of the violation, including a reasonable attorney’s fee.
(Amended
March 30, 2022, effective April 25, 2022.)
COMMENT:
The 2006 amendments to Rules 26 and 28
to 37 of the Hawaiʻi Family Court Rules track most of the 2004 amendments to
their counterparts in the Hawaiʻi Rules of Civil Procedure. Rule 27 of the
Hawaiʻi Family Court Rules was not amended because its Hawaiʻi Rules of Civil
Procedure counterpart is broader than necessary for Family Court and the
current Rule 27 of the Family Court Rules already contains gender neutral
language.
In proposing the amendments to Rule
26(b)(1) of the Hawaiʻi Family Court Rules, the limitations of Rule 45.1 of the
Hawaiʻi Family Court Rules, regarding child witnesses, were applied to the
general language of the corresponding language in Rule 26(b)(1) of the Hawaiʻi Rules
of Civil Procedure.
Rule 26(b)(3) of the Hawaiʻi Rules of
Civil Procedure, regarding insurance agreements, was not adopted because it is
not applicable to Family Court. Subsection 26(b)(3) is reserved to allow for
future amendments and to match the numbering of the Hawaiʻi Rules of Civil
Procedure.
Rule
27. DEPOSITIONS
BEFORE ACTION
OR PENDING APPEAL.
(a) Before action.
(1) Petition. A person who desires to perpetuate testimony
may file a verified petition in the family court in the circuit of the
residence of any expected adverse party. The petition shall be entitled in the
name of the petitioner and shall show:
(A) that
the petitioner expects to be a party to an action cognizable in a family court
of this State but is presently unable to bring it or cause it to be brought,
(B) the
subject matter of the expected action and the petitioner’s interest therein,
(C) the
facts which the petitioner desires to establish by the proposed testimony and
the reasons for desiring to perpetuate it,
(D) the
names or a description of the persons the petitioner expects will be adverse
parties and their addresses so far as known, and
(E) the
names and addresses of the persons to be examined and the substance of the
testimony the petitioner expects to elicit from each. The petition shall ask
for an order authorizing the petitioner to take the depositions of the persons
to be examined and named in the petition, for the purpose of perpetuating their
testimony.
(2) Notice and service. The petitioner shall thereafter serve a notice
upon each person named in the petition as an expected adverse party, together
with a copy of the petition, stating that the petitioner will apply to the
court, at a time and place named therein, for the order described in the
petition. Unless otherwise ordered by the court, at least 20 days before the
date of hearing the notice shall be served either within or without the State
in the manner provided in Rule 4(d) of these Rules for service of summons; but
if such service cannot with due diligence be made upon any expected adverse
party named in the petition, the court may make such order as is just for
service by publication or otherwise, and shall appoint, for persons not served
in the manner provided in Rule 4(d) of these Rules, an attorney who shall
represent them, and, in case they are not otherwise represented, shall
cross-examine the deponent. If any expected adverse party is a minor or
incompetent, the provisions of Rule 17(c) of these Rules apply.
(3) Order and examination. If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay of justice, it
shall make an order designating or describing the persons whose depositions may
be taken and specifying the subject matter of the examination and whether the
depositions shall be taken upon oral examination or written interrogatories.
The depositions shall then be taken in accordance with these Rules; and the
court may make orders of the character provided for by Rules 34 and 35 of these
Rules. For the purpose of applying these Rules to depositions for perpetuating
testimony, each reference therein to the court in which the action is pending
shall be deemed to refer to the court in which the petition for such deposition
was filed.
(4) Use of deposition. If a deposition to perpetuate testimony is
taken under these Rules or if, although not so taken, it would be admissible in
evidence in the courts of the United States or of the state, territory or
insular possession of the United States in which it is taken, it may be used in
any action involving the same subject matter subsequently brought in accordance
with the provisions of Rule 32(a) of these Rules.
(b) Pending appeal. If an appeal has been taken from a judgment of
a family court or before the taking of an appeal if the time therefor has not
expired, the court in which the judgment was rendered may allow the taking of
the depositions of witnesses to perpetuate their testimony for use in the event
of further proceedings in the court. In such case the party who desires to
perpetuate the testimony may make a motion in the court for leave to take the
depositions, upon the same notice and service thereof as if the action was
pending in the court. The motion shall show
(1) the
names and addresses of the persons to be examined and the substance of the
testimony the party expects to elicit from each, and
(2) the
reasons for perpetuating their testimony.
If the court finds that the perpetuation
of the testimony is proper to avoid a failure or delay of justice, it may make
an order allowing the depositions to be taken and may make orders of the
character provided for by Rules 34 and 35 of these Rules, and thereupon the
depositions may be taken and used in the same manner and under the same
conditions as are prescribed in these Rules for depositions taken in actions
pending in the court.
(c) Perpetuation by action. This rule does not limit the power of a court
to entertain an action to perpetuate testimony.
Rule
28. PERSONS
BEFORE WHOM
DEPOSITIONS MAY BE TAKEN.
(a) Within the United States. Within the United States or within a territory
or insular possession subject to the jurisdiction of the United States,
depositions shall be taken before an officer authorized to administer oaths by
the laws of this State or of the United States or of the place where the
examination is held, or before a person appointed by the court in which the
action is pending. A person so appointed has power to administer oaths and take
testimony. The term “officer” as used in Rules 30, 31, and 32 of these Rules
includes a person appointed by the court or designated by the parties under
Rule 29 of these Rules.
(b) In foreign countries. Depositions may be taken in a foreign country
(1) pursuant
to any applicable treaty or convention, or
(2) pursuant
to a letter of request (whether or not captioned a letter rogatory), or
(3) on
notice before a person authorized to administer oaths in the place in which the
examination is held, either by the law thereof or by the law of the United
States, or
(4) before
a person commissioned by the court, and a person so commissioned shall have the
power by virtue of the commission to administer any necessary oath and take
testimony.
A commission or a letter of request
shall be issued on application and notice and on terms that are just and
appropriate. It is not requisite to the issuance of a commission or a letter of
request that the taking of the deposition in any other manner is impracticable
or inconvenient; and both a commission and a letter of request may be issued in
proper cases. A notice or commission may designate the person before whom the
deposition is to be taken either by name or descriptive title. A letter of
request may be addressed "To the Appropriate Authority in [here name the
country]." When a letter of request or any other device is used pursuant
to any applicable treaty or convention, it shall be captioned in the form
prescribed by that treaty or convention. Evidence obtained in response to a
letter of request need not be excluded merely because it is not verbatim
transcript, because the testimony was not taken under oath, or because of any
similar departure from the requirements for depositions taken within the United
States under these Rules.
(c) Disqualification for interest. No deposition shall be taken before a person
who is a relative or employee or attorney or counsel of any of the parties, or
is a relative or employee of such attorney or counsel, or is financially
interested in the action.
Rule
29. STIPULATIONS
REGARDING
DISCOVERY PROCEDURE.
Unless otherwise directed by the court
or clerk as provided in Rule 77(c)(2) of these Rules, the parties may by
written stipulation
(1) provide
that depositions may be taken before any person, at any time or place, upon any
notice, and in any manner and when so taken may be used like other depositions,
and
(2) modify
other procedures governing or limitations placed upon discovery, except that
stipulations extending the time provided in Rules 33, 34 and 36 of these Rules
for responses to discovery may be made only with the approval of the court if
they would interfere with any time set for completion of discovery, a hearing
of a motion, or a trial.
Rule
30. DEPOSITIONS
UPON ORAL
EXAMINATION.
(a) When depositions may be taken; when leave
required.
(1) After
commencement of the action, any party may take the testimony of any person,
including a party, by deposition upon oral examination. Leave of court, granted
with or without notice, must be obtained only
(A) if
the plaintiff seeks to take a deposition prior to the expiration of 30 days
after service of the summons and complaint upon any defendant or service made
under Rule 4(e) of these Rules, except that leave is not required
(i) if a defendant has served a notice of
taking deposition or otherwise sought discovery, or
(ii) if
special notice is given as provided in subdivision (a)(2)(c) of this Rule, or
(B) as
provided in paragraph (2). The attendance of nonparty witnesses may be
compelled by subpoena as provided in Rule 45 of these Rules. (2) A
party must obtain leave of court, which shall be granted to the extent
consistent with the principles stated in Rule 26(b)(2) of these Rules, if the
person to be examined is confined in prison or if, without the written
stipulation of the parties:
(A) A
proposed deposition would result in more than ten depositions being taken under
this rule or Rule 31 of these Rules by the plaintiffs, or by the defendants, or
by third-party defendants;
(B) The
person to be examined already has been deposed in the case; or
(C) A
plaintiff seeks to take a deposition before the expiration of the 30 day period specified in Rule 30(a)(1)(A) of these Rules
unless the notice contains a certification, with supporting facts, that the
person to be examined is about to leave the State or the United States, or is
bound on a voyage to sea, and will be unavailable for examination unless
deposed before that time.
(b) Notice of examination: General
requirements; method of recording; production of documents and things;
deposition of organization; deposition by telephone.
(1) A
party desiring to take the deposition of any person upon oral examination shall
give reasonable notice in writing to every other party to the action. The
notice shall be filed and shall state the time and place for taking the
deposition and the name and address of each person to be examined, if known,
and, if the name is not known, a general description sufficient to identify the
person or the particular class or group to which the person belongs. If a
subpoena duces tecum is to be served on the person to be examined, the
designation of the materials to be produced as set forth in the subpoena shall
be attached to, or included in, the notice.
(2) The
party taking the deposition shall state in the notice the method by which the
testimony shall be recorded. Unless the court orders otherwise, it may be
recorded by sound, sound-and-visual, or stenographic means, and the party
taking the deposition shall bear the cost of recording. Any party may arrange
for a transcription to be made from the recording of a deposition taken by
non-stenographic means.
(3) With
prior notice to the deponent and other parties, any party may designate another
method to record the deponent’s testimony in addition to the method specified
by the person taking the deposition. The additional record or transcript shall
be made at that party’s expense unless the court otherwise orders.
(4) Unless
otherwise agreed by the parties, a deposition shall be conducted before an
officer appointed or designated under Rule 28 of these Rules and shall begin
with a statement on the record by the officer that includes
(A) the
officer’s name and business address;
(B) the
date, time and place of the deposition;
(C) the
name of the deponent;
(D) the
administration of the oath or affirmation to the deponent; and
(E) an
identification of all persons present. If the deposition is recorded other than
stenographically, the officer shall repeat items (A)
through (C) at the beginning of each unit of recorded tape or other recording
medium. The appearance or demeanor of deponents or attorneys shall not be
distorted through camera or sound-recording techniques. At the end of the
deposition, the officer shall state on the record that the deposition is
complete and shall set forth any stipulations made by counsel concerning the custody
of the transcript or recording and the exhibits, or concerning other pertinent
matters.
(5) The
notice to a party deponent may be accompanied by a request made in compliance
with Rule 34 of these Rules for the production of documents and tangible things
at the taking of the deposition. The procedure of Rule 34 shall apply to the
request.
(6) A
party may in the party’s notice and in a subpoena name as the deponent a public
or private corporation or a partnership or association or governmental agency
and describe with reasonable particularity the matter on which examination is
requested. In that event, the organization so named shall designate one or more
officers, directors, or managing agents, or other persons who consent to
testify on its behalf, and may set forth, for each person designated, the
matters on which the person will testify. A subpoena shall advise a non-party
organization of its duty to make such a designation. The persons so designated
shall testify as to matters known or reasonably available to the organization.
This subdivision (b)(6) does not preclude taking a deposition by any other
procedure authorized in these Rules.
(7) The
parties may stipulate in writing or the court may upon motion order that a
deposition be taken by telephone or other remote electronic means. For the
purposes of this rule and Rules 28(a), 37(a)(1), and 37(b)(1) of these Rules, a
deposition taken by such means is taken in the circuit and at the place where
the deponent is to answer questions.
(8) The
notice shall inform the deponent of the requirements of subsection (e) of this Rule
in substantially the following form:
You are hereby notified that you
may request a review of the completed transcript or recording of your
deposition. You must make this request before the completion of your
deposition. If you make such a request, after being notified by the court
reporter or other officer taking the deposition that the transcript or
recording is available, you will have 30 days to: (1) review the transcript or
recording; and (2) if there are changes in form or substance, to sign a
statement reciting such changes and the reasons for making them.
Failure
to substantially comply with this notice requirement prior to the completion of
the deposition shall preclude the use of the transcript or recording until the
deponent has been provided 30 days within which to review the transcript or
recording, and, if there are changes, to sign a statement reciting them and the
reasons therefor. Any changes shall be appended to the transcript or recording.
(c) Examination and cross-examination; record
of examination; oath; objections. Examination
and cross-examination of witnesses may proceed as permitted at the trial under
the provisions of the Hawaiʻi Rules of Evidence except Rules 103 and 615. The
officer before whom the deposition is to be taken shall put the witness under
oath or affirmation and shall personally, or by someone acting under the
officer’s direction and in the officer’s presence, record the testimony of the
witness. The testimony shall be taken stenographically
or recorded by any other method authorized by subdivision (b)(2) of this Rule. All objections made at the time of the
examination to the qualifications of the officer taking the deposition, to the
manner of taking it, to the evidence presented, to the conduct of any party, or
to any other aspect of the proceedings shall be noted by the officer upon the
record of the deposition; but the examination shall proceed, with the testimony
being taken subject to the objections. In lieu of participating in the oral
examination, parties may serve written questions in a sealed envelope on the
party taking the deposition and the party taking the deposition shall transmit
them to the officer, who shall propound them to the witness and record the
answers verbatim.
(d) Schedule and duration; motion to terminate
or limit examination.
(1) Any
objection during a deposition must be stated concisely and in a
non-argumentative and non-suggestive manner. A person may instruct a deponent
not to answer only when necessary to preserve a privilege, to enforce a
limitation directed by the court, or to present a motion under Rule 30(d)(4) of
these Rules.
(2) Unless
otherwise authorized by the court or stipulated by the parties, a deposition is
limited to one day of seven hours. The court must allow additional time
consistently with Rule 26(b)(2) of these Rules if needed for a fair examination
of the deponent or if the deponent or another person, or other circumstance,
impedes or delays the examination.
(3) If
the court finds that any impediment, delay or other conduct has frustrated the
fair examination of the deponent, it may impose upon the persons responsible an
appropriate sanction, including the reasonable costs and attorney’s fees
incurred by any parties as a result thereof.
(4) At
any time during a deposition, on motion of a party or of the deponent and upon
a showing that the examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass, or oppress the deponent or party,
the court in which the action is pending or the court in the circuit where the
deposition is being taken may order the officer conducting the examination to
cease forthwith from taking the deposition, or may limit the scope and manner
of the taking of the deposition as provided in Rule 26(c) of these Rules. If
the order made terminates the examination, it shall be resumed thereafter only
upon the order of the court in which the action is pending. Upon demand of the
objecting party or deponent, the taking of the deposition must be suspended for
the time necessary to make a motion for an order. The provisions of Rule
37(a)(4) of these Rules apply to the award of expenses incurred in relation to
the motion.
(e) Review by witness; changes; signing. If
requested by the deponent or a party before completion of the deposition, the
deponent shall have 30 days after being notified by the officer that the
transcript or recording is available in which to review the transcript or
recording and, if there are changes in form or substance, to sign a statement
reciting such changes and the reasons given by the deponent for making them.
The officer shall indicate in the certificate prescribed by subdivision (f)(1)
whether any review was requested and, if so, shall append any changes made by
the deponent during the period allowed.
(f) Certification
and delivery by officer; exhibits; copies.
(1) The
officer must certify that the witness was duly sworn by the officer and that
the deposition is a true record of the testimony given by the witness. This
certificate must be in writing and accompany the record of the deposition.
Unless otherwise ordered by the court, the officer must securely seal the
deposition in an envelope indorsed with the title of the action and marked
"Deposition of (here insert name of witness)" and must promptly send
it to the attorney who arranged for the transcript or recording, who must store
it under conditions that will protect it against loss, destruction, tampering,
or deterioration. Unless the court orders otherwise, depositions may be
destroyed 6 months after the final disposition of the action, including appeal.
Documents and things produced for
inspection during the examination of the witness must, upon the request of a
party, be marked for identification and annexed to the deposition and may be
inspected and copied by any party, except that if the person producing the
materials desires to retain them the person may
(A) offer
copies to be marked for identification and annexed to the deposition and to
serve thereafter as originals if the person affords to all parties fair
opportunity to verify the copies by comparison with the originals, or
(B) offer
the originals to be marked for identification, after giving to each party an
opportunity to inspect and copy them, in which event the materials may then be
used in the same manner as if annexed to the deposition. Any party may move for
an order that the original be annexed to and returned with the deposition to
the court, pending final disposition of the case.
(2) Unless
otherwise ordered by the court or agreed by the parties, the officer shall
retain stenographic notes of any deposition taken stenographically
or a copy of the recording of any deposition taken by another method. Upon
payment of reasonable charges therefor, the officer shall furnish a copy of the
transcript or other recording of the deposition to any party or to the
deponent.
(3) The
party taking the deposition shall give prompt notice of its filing to all other
parties.
(g) Failure to attend or to serve subpoena;
expenses.
(1) If
the party giving the notice of the taking of a deposition fails to attend and
proceed therewith and another party attends in person or by attorney pursuant
to the notice, the court may order the party giving the notice to pay to such
other party the reasonable expenses incurred by that party and that party’s
attorney in attending, including reasonable attorney’s fees.
(2) If
the party giving the notice of the taking of a deposition of a witness fails to
serve a subpoena upon the witness and the witness because of such failure does
not attend, and if another party attends in person or by attorney because that
party expects the deposition of that witness to be taken, the court may order
the party giving the notice to pay to such other party the reasonable expenses
incurred by that party and that party’s attorney in attending, including
reasonable attorney’s fees.
COMMENT:
Because the newly revised Rule 30(e) of
the Hawaiʻi Family Court Rules shifts the burden on the deponent to request a
review of the transcript or recording as well as the burden to prepare a signed
statement of changes within 30 days, Rule 30(b)(8), a new section, was drafted
to require notice of these provisions in the written Notice of Examination.
Rule
31. DEPOSITIONS
UPON WRITTEN
QUESTIONS.
(a) Serving questions; notice.
(1) After
commencement of the action, a party may take the testimony of any person,
including a party, by deposition upon written questions without leave of court
except as provided in paragraph (2). The attendance of witnesses may be
compelled by the use of subpoena as provided in Rule 45 of these Rules.
(2) A
party must obtain leave of court, which shall be granted to the extent
consistent with the principles stated in Rule 26(b)(2) of these Rules, if the
person to be examined is confined in prison or if, without the written
stipulation of the parties:
(A) A
proposed deposition would result in more than ten depositions being taken under
this rule or Rule 30 of these Rules by the plaintiffs, or by the defendants, or
by third-party defendants; or
(B) The
person to be examined has already been deposed in the case.
(3) A
party desiring to take a deposition upon written questions shall serve them
upon every other party with a notice stating
(A) the
name and address of the person who is to answer them, if known, and if the name
is not known, a general description sufficient to identify the person or the
particular class or group to which the person belongs, and
(B) the
name or descriptive title and address of the officer before whom the deposition
is to be taken. A deposition upon written questions may be taken of a public or
private corporation or a partnership or association or governmental agency in
accordance with the provisions of Rule 30(b)(6) of these Rules.
(4) Within
14 days after the notice and written questions are served, a party may serve
cross questions upon all other parties. Within 7 days after being served with
cross questions, a party may serve redirect questions upon all other parties.
Within 7 days after being served with redirect questions, a party may serve
recross questions upon all other parties. The court may for cause shown enlarge
or shorten the time.
(b) Officer to take responses and prepare
record. A copy of the notice and
copies of all questions served shall be delivered by the party taking the
deposition to the officer designated in the notice, who shall proceed promptly,
in the manner provided by Rule 30(c), (e), and (f) of these Rules, to take the
testimony of the witness in response to the questions and to prepare, certify,
and file or mail the deposition, attaching thereto the copy of the notice and
the questions received by the officer.
(c) Notice of filing. When the deposition is filed the party taking
it shall promptly give notice thereof to all other parties.
Rule
32. USE OF
DEPOSITIONS IN
COURT PROCEEDINGS.
(a) Use of depositions. At the trial or upon the hearing of a motion
or an interlocutory proceeding, any part or all of a deposition, so far as
admissible under the Hawaiʻi Rules of Evidence applied as though the witness
were then present and testifying, may be used against any party who was present
or represented at the taking of the deposition or who had reasonable notice
thereof, in accordance with any of the following provisions:
(1) Any
deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness, or for any other purpose
permitted by the Hawaiʻi Rules of Evidence.
(2) The
deposition of a party or of anyone who at the time of taking the deposition was
an officer, director, or managing agent, or a person designated under Rule
30(b)(6) or 31(a) of these Rules to testify on behalf of a public or private
corporation, partnership or association or governmental agency which is a party
may be used by an adverse party for any purpose.
(3) The
deposition of a witness, whether or not a party, may be used by any party for
any purpose if the court finds:
(A) that
the witness is dead; or
(B) that
the witness resides on an island other than that of the place of trial or
hearing, or is out of the State, unless it appears that the absence of the
witness was procured by the party offering the deposition; or
(C) that
the witness is unable to attend or testify because of age, illness, infirmity,
or imprisonment; or
(D) that
the party offering the deposition has been unable to procure the attendance of
the witness by subpoena; or
(E) upon
application and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the importance of
presenting the testimony of witnesses orally in open court, to allow the
deposition to be used.
A deposition taken without leave of
court pursuant to a notice under Rule 30(a)(2)(c) of these Rules shall not be
used against a party who demonstrates that, when served with the notice, the
party was unable through the exercise of diligence to obtain counsel to
represent the party at the taking of the deposition; nor shall a deposition be
used against a party who, having received less than 11 days
notice of a deposition, has promptly upon receiving such notice filed a
motion for a protective order under Rule 26(c)(2) of these Rules requesting
that the deposition not be held or be held at a different time or place and
such motion is pending at the time the deposition is held.
(4) If
only part of a deposition is offered in evidence by a party, an adverse party
may require the offeror to introduce any other part which ought in fairness to
be considered with the part introduced, and any party may introduce any other
parts.
Substitution of parties pursuant to Rule
25 of these Rules does not affect the right to use depositions previously taken
and, when an action has been brought in any court of the United States or of
any state and another action involving the same subject matter is afterward
brought between the same parties or their representatives or successors in
interest, all depositions lawfully taken and duly filed in the former action
may be used in the latter as if originally taken therefor. A deposition
previously taken may also be used as permitted by the Hawaiʻi Rules of
Evidence.
(b) Pretrial disclosures. A party must provide to other parties and
promptly file with the court the following information regarding the evidence
that it may present at trial other than solely for impeachment; the designation
of those witnesses whose testimony is expected to be presented by means of a
deposition and, if not taken stenographically, a
transcript of the pertinent portions of the deposition testimony. Unless
otherwise directed by the court, this information must be disclosed at least 30
days before trial. Within 14 days thereafter, unless a different time is
specified by the court, a party may serve and promptly file a list disclosing
(i) any objections to the use under Rule 32(a)
of these Rules of a deposition designated by another party, and
(ii) any
objection, together with the grounds therefor, that may be made to the
admissibility of that testimony. Objections
not so disclosed, other than objections under Rules 402 and 403 of the Hawaiʻi Rules
of Evidence, are waived unless excused by the court for good cause. These
disclosures must be made in writing, signed, and served.
(c) Objections to admissibility. Subject to the provisions of Rule 28(b) of
these Rules and subdivision (e) (3) of this Rule, objection may be made at the
trial or hearing to receiving in evidence any deposition or part thereof for
any reason which would require the exclusion of the evidence if the witness
were then present and testifying.
(d) Form of presentation. Except as otherwise directed by the court, a
party offering deposition testimony pursuant to this rule may offer it in
stenographic or nonstenographic form, but, if in nonstenographic form, the party shall also provide the
court with a transcript of the portions so offered.
(e) Effect of errors and irregularities in
depositions.
(1) As to Notice. All errors and irregularities in the notice
for taking a deposition are waived unless written objection is promptly served
upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a deposition because of
disqualification of the officer before whom it is to be taken is waived unless
made before the taking of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with reasonable
diligence.
(3) As to Taking of Deposition.
(A) Objections
to the competency of a witness or to the competency, relevancy, or materiality
of testimony are not waived by failure to make them before or during the taking
of the deposition, unless the ground of the objection is one that might have
been obviated or removed if presented at that time.
(B) Errors
and irregularities occurring at the oral examination in the manner of taking
the deposition, in the form of the questions or answers, in the oath or
affirmation, or in the conduct of parties, and errors of any kind that might be
obviated, removed, or cured if promptly presented, are waived unless seasonable
objection thereto is made at the taking of the deposition.
(C) Objections
to the form of written questions submitted under Rule 31 of these Rules are
waived unless served in writing upon the party propounding them within the time
allowed for serving the succeeding cross or other questions and within 5 days
after service of the last questions authorized.
(4) As to Completion and Return of Deposition.
Errors and irregularities in the manner
in which the testimony is transcribed or the deposition is prepared, signed,
certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the
officer under Rules 30 and 31 of these Rules are waived unless a motion to
suppress the deposition or some part thereof is made with reasonable promptness
after such defect is, or with due diligence might have been, ascertained.
Rule
33. INTERROGATORIES
TO
PARTIES.
(a) Availability. Without leave of court or written stipulation,
any party may serve upon any other party written interrogatories, not exceeding
60 in number, counting any subparts or subquestions
as individual questions, to be answered by the party served or, if the party
served is a public or private corporation or a partnership or association or
governmental agency, by any officer or agent, who shall furnish such
information as is available to the party. Interrogatories may, without leave of
court, be served upon the plaintiff after commencement of the action and upon
any other party with or after service of the summons and complaint upon that
party. Leave to serve additional interrogatories shall be granted to the extent
consistent with the principles of Rule 26(b)(2) of these Rules.
(b) Answers
and objections.
(1) Each
interrogatory shall be answered separately and fully in writing under oath,
unless it is objected to, in which event the objecting party shall state the
reasons for objection and shall answer to the extent the interrogatory is not
objectionable.
(2) The
answers are to be signed by the person making them, and the objections signed
by the attorney making them.
(3) The
party upon whom the interrogatories have been served shall serve a copy of the
answers, and objections if any, within 30 days after the service of the
interrogatories, except that a defendant may serve answers or objections within
45 days after service of the summons and complaint upon that defendant. A
shorter or longer time may be directed by the court or, in the absence of such
an order, agreed to in writing by the parties subject to Rule 29 of these Rules.
(4) All
grounds for an objection to an interrogatory shall be stated with specificity.
Any ground not stated in a timely objection is waived unless the party’s
failure to object is excused by the court for good cause shown.
(5) The
party submitting the interrogatories may move for an order under Rule 37(a) of
these Rules with respect to any objection to or other failure to answer an
interrogatory.
(c) Scope; use at trial. Interrogatories may relate to any matters that
can be inquired into under Rule 26(b)(1) of these Rules, and the answers may be
used to the extent permitted by the Hawaiʻi Rules of Evidence.
An interrogatory otherwise proper is not
necessarily objectionable merely because an answer to the interrogatory
involves an opinion or contention that relates to fact or the application of
law to fact, but the court may order that such an interrogatory need not be
answered until after designated discovery has been completed or until a
pre-trial conference or other later time.
(d) Option to produce business records. Where the answer to an interrogatory may be
derived or ascertained from the business records of the party upon whom the
interrogatory has been served or from an examination, audit or inspection of
such business records, including a compilation, abstract or summary thereof,
and the burden of deriving or ascertaining the answer is substantially the same
for the party serving the interrogatory as for the party served, it is a
sufficient answer to such interrogatory to specify the records from which the
answer may be derived or ascertained and to afford to the party serving the
interrogatory reasonable opportunity to examine, audit or inspect such records
and to make copies, compilations, abstracts or summaries. A specification shall
be in sufficient detail to permit the interrogating party to locate and to
identify, as readily as can the party served, the records from which the answer
may be ascertained.
Rule
34. PRODUCTION OF
DOCUMENTS
AND THINGS AND ENTRY UPON
LAND FOR INSPECTION AND
OTHER PURPOSES.
(a) Scope. Any party may serve on any other party a
request
(l) to
produce and permit the party making the request, or someone acting on the
requestor’s behalf, to inspect and copy, any designated documents (including
writings, drawings, graphs, charts, photographs, phonorecords, and other data
compilations from which information can be obtained, translated, if necessary,
by the respondent through detection devices into reasonably usable form), or to
inspect and copy, test, or sample any tangible things that constitute or
contain matters within the scope of Rule 26(b) of these Rules and that are in
the possession, custody or control of the party upon whom the request is
served; or
(2) to
permit entry upon designated land or other property in the possession or
control of the party upon whom the request is served for the purpose of
inspection and measuring, surveying, photographing, testing, or sampling the
property or any designated object or operation thereon, within the scope of
Rule 26(b) of these Rules.
(b) Procedure. The request may, without leave of court, be
served upon the plaintiff after commencement of the action and upon any other
party with or after service of the summons and complaint upon that party. The
request shall set forth, either by individual item or by category, the items to
be inspected and describe each with reasonable particularity. The request shall
specify a reasonable time, place, and manner of making the inspection and
performing the related acts.
The party upon whom the request is
served shall serve a written response within 30 days after the service of the
request, except that a defendant may serve a response within 45 days after
service of the summons and complaint upon that defendant. A shorter or longer
time may be directed by the court or, in the absence of such an order, agreed
to in writing by the parties, subject to Rule 29 or 77(c)(2) of these Rules.
The response shall set forth, either by individual item or by category, the
items to be produced and describe each with reasonable particularity. The
response shall state, with respect to each item or category, that inspection
and related activities will be permitted as requested, unless the request is
objected to, in which event the reasons for the objection shall be stated. If
objection is made to part of an item or category, the part shall be specified
and inspection permitted of the remaining parts. The party submitting the
request may move for an order under Rule 37(a) of these Rules with respect to
any objection to or other failure to respond to the request or any part
thereof, or any failure to permit inspection as requested.
A party who produces documents for
inspection shall produce them as they are kept in the usual course of business
or shall organize and label them to correspond with the categories in the
request.
(c) Persons not parties. A person not a party to the action may be
compelled to produce documents and things or to submit to an inspection as
provided in Rule 45 of these Rules.
Rule
35. PHYSICAL AND
MENTAL
EXAMINATION OF PERSONS.
(a) Order for examination. When the mental or physical condition
(including the blood group) of a party, or of a person in the custody or under
the legal control of a party, is in controversy, the court in which the action
is pending may order the party to submit to a physical or mental examination by
a suitably licensed or certified examiner or to produce for examination the
person in the party’s custody or legal control. The order may be made upon the
agreement of the parties or on motion for good cause shown and upon notice to
the person to be examined and to all parties and shall specify the scope of the
examination and the person or persons by whom it is to be made.
(b) Report of examiner.
(1) All
parties shall receive a copy of the written report of the examiner setting out
the examiner’s findings, including results of all tests made, diagnoses and
conclusions, together with like reports of all earlier examinations of the same
condition unless the court orders otherwise upon a showing of good cause by the
party requesting that the report be withheld. All parties shall also be
entitled upon request to receive from a like report of any examination of the
same party or person, previously or thereafter made, of the same condition,
unless, in the case of a report of examination of a person not a party, the
party shows that the party is unable to obtain it. The court on motion may make
an order requiring delivery of a report on such terms as are just, and if an
examiner fails or refuses to make a report, the court may exclude the
examiner’s testimony if offered at trial.
(2) By
requesting and obtaining a report of the examination so ordered or by taking
the deposition of the examiner, the party examined waives any privilege the
party may have in that action or any other involving the same controversy,
regarding the testimony of every other person who has examined or may
thereafter examine the party with respect to the same mental or physical
condition.
(3) This
subdivision does not preclude discovery of a report of an examiner or the
taking of a deposition of the examiner in accordance with the provisions of any
other rule.
Rule
36. REQUESTS FOR
ADMISSION.
(a) Request for admission. A party may serve upon any other party a
written request for the admission, for purposes of the pending action only, of
the truth of any matters within the scope of Rule 26(b)(1) of these Rules set
forth in the request that relate to statements or opinions of fact or of the
application of law to fact, including the genuineness of any documents
described in the request. Copies of documents shall be served with the request
unless they have been or are otherwise furnished or made available for
inspection and copying.
Each matter of which an admission is
requested shall be separately set forth, and shall provide reasonably
sufficient space for the answer after the question or demand. Two sets of the
request for admission shall be served on the adverse party. The request may,
without leave of court, be served upon the plaintiff after commencement of the
action and upon any other party with or after service of the summons and
complaint upon that party.
(b) Responses.
(1) The
response that includes the written answers and/or objections shall be served on
the requesting party within 30 days after service of the request, or within
such shorter or longer time as the court may allow or as the parties may agree
to in writing, subject to Rule 29 of these Rules. However, unless the court
shortens the time, a defendant shall not be required to serve answers or
objections before the expiration of 45 days after service of the summons and
complaint upon that defendant.
(2) The
matter of which an admission is sought is admitted unless the party to whom the
request is directed timely serves upon the party requesting the admission a
written answer or objection addressed to the matter. If objection is made, the
reasons therefor shall be stated. The answer shall specifically deny the matter
or set forth in detail the reasons why the answering party cannot truthfully
admit or deny the matter. A denial shall fairly meet the substance of the
requested admission, and when good faith requires that a party qualify an
answer or deny only a part of the matter of which an admission is requested,
the party shall specify so much of it as is true and qualify or deny the
remainder. An answering party may not give lack of information or knowledge as
a reason for failure to admit or deny unless the party states that the party
has made reasonable inquiry and that the information known or readily
obtainable by the party is insufficient to enable the party to admit or deny. A
party who considers that a matter for which an admission has been requested
presents a genuine issue for trial may not, on that ground alone, object to the
request; the party may, subject to the provisions of Rule 37(c) of these Rules,
deny the matter or set forth reasons why the party cannot admit or deny it.
(3) Each
answer or objection shall be set forth immediately following the question or
demand to which the response is being made. The response that includes the
written answers and/or objections shall be signed by the party or by the
party’s attorney.
(c) Objections to the response. The party who has requested the admissions may
move to determine the sufficiency of the answers or objections. Unless the
court determines that an objection is justified, it shall order that an answer
be served. If the court determines that an answer does not comply with the
requirements of this rule, it may order either that the matter is admitted or
that an amended answer be served. The court may, in lieu of these orders,
determine that final disposition of the request be made at a pre-trial
conference or at a designated time prior to trial. The provisions of Rule
37(a)(4) of these Rules apply to the award of expenses incurred in relation to
the motion.
(d) Effect of admission. Any matter admitted under this rule is
conclusively established unless the court on motion permits withdrawal or
amendment of the admission. Subject to the provisions of Rule 16 of these Rules
governing amendment of a conference order, the court may permit withdrawal or
amendment when the presentation of the merits of the action will be served
thereby and the party who obtained the admission fails to satisfy the court
that withdrawal or amendment will prejudice that party in maintaining the
party’s action or defense on the merits. Any admission made by a party under
this rule is for the purpose of the pending action only and is not an admission
by the party for any other purpose nor may it be used against the party in any
other proceeding.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
37. FAILURE TO
MAKE OR
COOPERATE IN DISCOVERY;
SANCTIONS.
(a) Motion for order compelling discovery. A party, upon reasonable notice to other
parties and all persons affected thereby, may apply for an order compelling discovery
as follows:
(1) Appropriate court. An application for an order to a party may be
made to the court in which the action is pending, or, on matters relating to a
deposition, to the court in the circuit where the deposition is being taken. An
application for an order to a person who is not a party shall be made to the
court in the circuit where the deposition is being, or is to be, taken.
(2) Motion. If a deponent fails to answer a question
propounded or submitted under Rule 30 or 31 of these Rules, or a corporation or
other entity fails to make a designation under Rule 30(b)(6) or 31(a) of these Rules,
or a party fails to answer an interrogatory submitted under Rule 33 of these Rules
if a party, in response to a request for inspection submitted under Rule 34 of
these Rules, fails to respond that inspection will be permitted as requested or
fails to permit inspection as requested, the discovering party may move for an
order compelling an answer, or a designation, or an order compelling inspection
in accordance with the request. The motion must include a certification that
the movant has in good faith conferred or attempted to confer with the person
or party failing to make the discovery in an effort to secure the information
or material without court action. When taking a deposition on oral examination,
the proponent of the question may complete or adjourn the examination before
applying for an order.
(3) Evasive or incomplete answer or response.
For purposes of this subdivision an evasive or incomplete answer or response is
to be treated as a failure to answer or respond.
(4) Expenses and sanctions.
(A) If
the motion is granted or if the disclosure or requested discovery is provided
after the motion was filed, the court shall, after affording an opportunity to
be heard, require the party or deponent whose conduct necessitated the motion
or the party or attorney advising such conduct or both of them to pay to the
moving party the reasonable expenses incurred in making the motion, including
attorney’s fees, unless the court finds that the motion was filed without the
movant’s first making a good faith effort to obtain the disclosure or discovery
without court action, or that the opposing party’s nondisclosure, response, or
objection was substantially justified or that other circumstances make an award
of expenses unjust.
(B) If
the motion is denied, the court may enter any protective order authorized under
Rule 26(c) of these Rules and shall, after affording an opportunity to be
heard, require the moving party or the attorney filing the motion or both of
them to pay to the party or deponent who opposed the motion the reasonable
expenses incurred in opposing the motion, including attorney’s fees, unless the
court finds that the making of the motion was substantially justified or that
other circumstances make an award of expenses unjust.
(C) If
the motion is granted in part and denied in part, the court may enter any
protective order authorized under Rule 26(c) of these Rules and may, after
affording an opportunity to be heard, apportion the reasonable expenses
incurred in relation to the motion among the parties and persons in a just
manner.
(b) Failure to comply with order.
(1) Sanctions by court in circuit where deposition
is taken. If a deponent fails to
be sworn or to answer a question after being directed to do so by the court in
the circuit in which the deposition is being taken, the failure may be
considered a contempt of that court.
(2) Sanctions by court in which action is pending.
If a party or an officer, director, or
managing agent of a party or a person designated under Rule 30(b)(6) or 31(a)
of these Rules to testify on behalf of a party fails to obey an order to
provide or permit discovery, including an order made under subdivision (a) of
this Rule or Rule 35 of these Rules, or if a party fails to obey an order
entered under Rule 26(f) of these Rules, the court in which the action is
pending may make such orders in regard to the failure as are just, and among
others the following:
(A) An
order that the matters regarding which the order was made or any other
designated facts shall be taken to be established for the purposes of the action
in accordance with the claim of the party obtaining the order;
(B) An
order refusing to allow the disobedient party to support or oppose designated
claims or defenses, or prohibiting that party from introducing designated
matters in evidence;
(C) An
order striking out pleadings or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against the disobedient party;
(D) In
lieu of any of the foregoing orders or in addition thereto, an order treating
as a contempt of court the failure to obey any orders except an order to submit
to a physical or mental examination;
(E) Where
a party has failed to comply with an order under Rule 35(a) of these Rules
requiring that party to produce another for examination, such orders as are
listed in paragraphs (A), (B), and (C) of this subdivision, unless the party
failing to comply shows that the party is unable to produce such person for
examination.
In lieu of any of the foregoing orders
or in addition thereto, the court shall require the party failing to obey the
order or the attorney advising that party or both to pay the reasonable
expenses, including attorney’s fees, caused by the failure, unless the court
finds that the failure was substantially justified or that other circumstances
make an award of expenses unjust.
(c) Failure to disclose; false or misleading
disclosure; refusal to admit.
(1) A
party that without substantial justification fails to amend a prior response to
discovery as required by Rule 26(e)(2) of these Rules, is not, unless such
failure is harmless, permitted to use as evidence at a trial, at a hearing, or
on a motion any witness or information not so disclosed. In addition to or in
lieu of this sanction, the court, on motion and after affording an opportunity
to be heard, may impose other appropriate sanctions. In addition to requiring
payment of reasonable expenses, including attorney’s fees, caused by the
failure, these sanctions may include any of the actions authorized under Rule
37(b)(2)(A), (B), and (C) of these Rules.
(2) If
a party fails to admit the genuineness of any document or the truth of any
matter as requested under Rule 36 of these Rules, and if the party requesting
the admissions thereafter proves the genuineness of the document or the truth
of the matter, the requesting party may apply to the court for an order
requiring the other party to pay the reasonable expenses incurred in making
that proof, including reasonable attorney’s fees. The court shall make the
order unless it finds that
(A) the
request was held objectionable pursuant to Rule 36(a) of these Rules, or
(B) the
admission sought was of no substantial importance, or
(C) the
party failing to admit had reasonable ground to believe that the party might
prevail on the matter, or
(D) there
was other good reason for the failure to admit.
(d) Failure of party to attend at own
deposition or serve answers to interrogatories or respond to request for
inspection. If a party or an
officer, director, or managing agent of a party or a person designated under
Rule 30(b)(6) or 31(a) of these Rules to testify on behalf of a party fails
(1) to
appear before the officer who is to take the deposition, after being served
with a proper notice, or
(2) to
serve answers or objections to interrogatories submitted under Rule 33 of these
Rules, after proper service of the interrogatories, or
(3) to
serve a written response to a request for inspection submitted under Rule 34 of
these Rules, after proper service of the request, the court in which the action
is pending on motion may make such orders in regard to the failure as are just,
and among others it may take any action authorized under subparagraphs (A),
(B), and (C) of subdivision (b)(2) of this Rule.
Any motion specifying a failure under
clause (2) or (3) of this subdivision shall include a certification that the
movant has in good faith conferred or attempted to confer with the party
failing to answer or respond in an effort to obtain such answer or response
without court action. In lieu of any order or in addition thereto, the court
shall require the party failing to act or the attorney advising that party or
both to pay the reasonable expenses, including attorney’s fees, caused by the
failure, unless the court finds that the failure was substantially justified or
that other circumstances make an award of expenses unjust.
The failure to act described in this
subdivision may not be excused on the ground that the discovery sought is
objectionable unless the party failing to act has a pending motion for a
protective order as provided by Rule 26(c) of these Rules.
(e) Expenses against the State. Except to the extent permitted by statute,
expenses and fees may not be awarded against the State or a county under this
rule.
VI. TRIALS
Rule
38. RESERVED.
Rule
39. RESERVED.
Rule
40. ASSIGNMENT OF
CASES FOR
TRIAL; CONTINUANCE OF
TRIAL.
(a) Assignment of case for trial. The family courts shall provide by order for
the placing of actions upon the trial calendar
(1) without
request of the parties, or
(2) upon
request of a party and notice to the other parties, or
(3) in
such other manner as the courts deem expedient. Precedence shall be given to
actions entitled thereto by statute.
(b) Motions for continuance. If a date has been assigned for trial of an
action, a motion for continuance of the trial shall include on the first page
of the notice of motion the trial date assigned and any previously assigned
trial dates.
(c) Consent of party to continuance of trial.
A motion for continuance of any assigned
trial date, whether or not stipulated to by respective counsel, shall be
granted only upon a showing of good cause, which shall include a showing that
the client-party has consented to the continuance. Consent may be demonstrated
by the client-party’s signature on a motion for continuance or by the personal
appearance in court of the client-party. However, consent is not required if
the client-party is a government agency.
Rule
41. DISMISSAL OF
ACTIONS.
(a) Voluntary dismissal: Effect thereof.
(1) By notice of dismissal; by stipulation.
Subject to the provisions of Rule 66 of
these Rules, and of any statute, an action may by dismissed by notice of
dismissal or by stipulation as set out respectively in paragraphs (a)(1)(A) and
(a)(1)(B) of this Rule. Unless otherwise stated in the notice of dismissal or
stipulation, the dismissal is without prejudice. The notice of dismissal or
stipulation shall state the Hawaiʻi Family Court Rule and subsections pursuant
to which the dismissal is filed.
(A) The
initiating party, without approval of the court, may file a notice of dismissal
at any time prior to service of process, unless an adverse party has already
filed a document or appeared in court. Although approval of the court is not
necessary for a dismissal under this paragraph (a)(1)(A), any such dismissal
shall first be submitted for processing to the family court and shall not be
effective until filed by the clerk of court.
(B) After
the service of process, or if an adverse party has already filed a document or
appeared in court prior to the service of process, a stipulation of dismissal
may be submitted to the court. The stipulation shall be signed by all parties
unless the signature of a party is waived by the court. The stipulation shall
be effective only if approved by the court.
(2) By order of court on initiating party’s motion
to dismiss. Except as provided in paragraphs (a)(1)(A) and (a)(1)(B) of
this Rule, an action shall not be dismissed at the instance of the initiating
party save upon order of the court after notice and hearing on a motion to
dismiss. The dismissal shall include such terms and conditions as the court
deems proper. If a cross-action has been pleaded by an adverse party prior to
the service upon the adverse party of the motion to dismiss, the action shall
not be dismissed against the objection of the adverse party unless the
cross-action can remain pending for independent adjudication by the court.
Unless otherwise specified in the order, a dismissal under this paragraph is
without prejudice.
(b) Involuntary dismissal: Effect thereof. For failure of the
plaintiff to prosecute or to comply with these Rules or any order of court, a
defendant may move for dismissal of an action or of any claim against the
defendant. After the plaintiff has completed the presentation of evidence, the
defendant, without waiving the right to offer evidence in the event the motion
is not granted, may move for a dismissal on the ground that upon the facts and
the law the claimant has shown no right to relief. The court may then determine
the facts and render judgment against the plaintiff or may decline to render
any decree until the close of all the evidence. Unless the court in its order
for dismissal otherwise specifies, a dismissal under this subdivision and any
dismissal not provided for in this Rule, other than a dismissal for lack of
jurisdiction or for improper venue, operates as an adjudication upon the
merits.
(c) Dismissal of cross-action. The provisions of this Rule apply to the
dismissal of any cross-action. A voluntary dismissal by the claimant alone
pursuant to paragraph (1) of subdivision (a) of this Rule shall be made before
a responsive pleading is served or, if there is none, before the introduction
of evidence at the trial or hearing.
(d) Reserved.
(e) Dismissal for want of service or
prosecution.
(1) A
diligent effort to effect service shall be made in all actions and if no
service be made within 6 months after an action or post-judgment motion has
been filed then, after notice of not less than 10 days to the filing party at their
last known address, the same may be dismissed. Such a dismissal may be set
aside and the action reinstated by order of court for good cause shown on ex parte motion duly filed in said
action within 30 days of service of the order of dismissal on JEFS Users
through JEFS or within 30 days of mailing of the order of dismissal to the last
known address of parties who are not represented by an attorney and who are not
JEFS Users.
(2) In
any case in which a final decree, judgment, or order has not been made and
filed prior to the expiration of 1 year from the date of the filing of the
complaint or post-judgment motion in said action, the same may be dismissed
unless a trial date has been set or an order has been filed enlarging the time following
a showing of good cause. Such a dismissal may be set aside and the action or
motion reinstated by order of court for good cause shown on ex parte motion duly filed in said
action within 30 days of service of the order of dismissal on JEFS Users
through JEFS or within 30 days of mailing of the order of dismissal to the last
known address of parties who are not represented by an attorney and who are not
JEFS Users.
(3) Reserved.
(4) An
order of any dismissal and notice pursuant to subsections (e)(1) or (2) of this
Rule shall be filed in the record of the case.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
42. CONSOLIDATION;
SEPARATE
TRIALS.
(a) Consolidation. When actions involving a
common question of law or fact are pending before the court, it may order a
consolidated hearing or trial of any or all the matters in issue in the
actions; it may order all the actions consolidated; and it may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs or delay.
(b) Separate trials. The court, in furtherance of convenience or to
avoid prejudice, or when separate trials will be conducive to expedition and
economy, may order a separate trial of any claim, cross-claim, counterclaim, or
third-party claim, or of any separate issue or of any number of claims,
cross-claims, counterclaims, third-party claims, or issues.
Rule
43. TAKING OF
TESTIMONY.
(a) Form. In all trials, the testimony of witnesses
shall be taken orally in open court, unless otherwise allowed by law or court
order.
(b) Presentation of expert testimony. The court may schedule the presentation of all
expert testimony during the same phase of the trial.
(c) Record of the excluded evidence. If an objection to a question propounded to a
witness is sustained by court, the examining attorney may make a specific offer
of what the attorney expects to prove by the answer of the witness, unless it
clearly appears that the evidence is not admissible on any grounds or that the
witness is privileged.
(d) Affirmation in lieu of oath. Whenever under these Rules an oath is required
to be taken, a solemn affirmation may be accepted in lieu thereof.
(e) Evidence on motions. When a motion is based on facts not appearing
of record, the court may hear the matter on affidavits or declarations
presented by the respective parties, but the court may direct that the matter
be heard wholly or partly on oral testimony or deposition.
(f) Interpreters. The court may appoint an interpreter of its
own selection and may fix the interpreter’s reasonable compensation. The
compensation shall be paid out of funds provided by law or by one or more of
the parties as the court may direct, and may be taxed ultimately as costs, in
the discretion of the court.
Rule
43.1. RECORDING
OF TESTIMONY
AND PROCEEDINGS.
The court shall order that the testimony
and other matters required to be preserved by a reporter shall be preserved by
audio or video recording or by such other method as may be appropriate. It is
the responsibility of the court to see to it that the record so made is
sufficiently clear to permit full transcription and truly discloses what
occurred in the court with such references to the record made as will enable
the record to be reviewed and transcribed as occasion arises.
Rule
44. PROOF OF
OFFICIAL RECORD.
(a) Authentication.
(1) Domestic. An official record kept within the United
States, or any state, district, commonwealth, or within a territory subject to
the administrative or judicial jurisdiction of the United States, or an entry
therein, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal
custody of the record, or by the deputy, and accompanied by a certificate that
the officer has the custody. The certificate may be made by a judge of a court
of record of the district or political subdivision in which the record is kept,
authenticated by the seal of the court, or may be made by any public officer
having a seal of office and having official duties in the district or political
subdivision in which the record is kept, authenticated by the seal of the
officer’s office.
(2) Foreign. A foreign official record, or an entry
therein, when admissible for any purpose, may be evidenced by an official
publication thereof; or a copy thereof, attested by a person authorized to make
the attestation, and accompanied by a final certification as to the genuineness
of the signature and official position
(A) of
the attesting person, or
(B) of
any foreign official whose certificate of genuineness of signature and official
position relates to the attestation or is in a chain of certificates of
genuineness of signature and official position relates to the attestation.
A final certification may be made by a
secretary of embassy or legation, consul general, consul, vice consul, or
consular agent of the United States, or a diplomatic or consular official of
the foreign country assigned or accredited to the United States. If reasonable
opportunity has been given to all parties to investigate the authenticity and
accuracy of the documents, the court may, for good cause shown,
(A) admit
an attested copy without final certification or
(B) permit
the foreign official record to be evidenced by an attested summary with or
without a final certification.
The final certification is unnecessary
if the record and the attestation are certified as provided in a treaty or
convention to which the United States and the foreign country in which the
official record is located are parties.
(b) Lack of record. A written statement that after diligent search
no record or entry of a specified tenor is found to exist in the records
designated by the statement, authenticated as provided in subdivision (a)(1) of
this Rule in the case of a domestic record, or complying with the requirements
of subdivision (a)(2) of this Rule for a summary in the case of a foreign
record, is admissible as evidence that the records contain no such record or
entry.
(c) Other proof. This rule does not prevent the proof of
official records or of entry or lack of entry therein by any other method
authorized by law.
Rule
44.1. DETERMINATION
OF FOREIGN
LAW.
A party who intends to raise an issue
concerning the law of a foreign country shall give notice by pleadings or other
reasonable written notice. The court, in determining foreign law, may consider
any relevant material or source, including testimony, whether or not submitted
by a party or admissible under the Hawaiʻi Rules of Evidence. The court’s
determination shall be treated as a ruling on a question of law.
Rule
45. SUBPOENA.
(a) For attendance of witnesses; form;
issuance. Every subpoena shall be
issued by the clerk of the circuit court of the circuit in which the action is
pending under the seal of the court, shall state the name of the court and the
title of the action, and shall command each person to whom it is directed to
attend and give testimony at a time and place therein specified. The clerk
shall issue a subpoena, or a subpoena for the production of documentary
evidence, signed and sealed but otherwise blank, to a party requesting it, who
shall fill it in before service.
(b) For production of documentary evidence.
A subpoena may also command the person
to whom it is directed to produce the books, papers, documents, or tangible
things designated therein; but the court, upon motion made promptly and in any
event at or before the time specified in the subpoena for compliance therewith,
may
(1) quash
or modify the subpoena if it is unreasonable and oppressive, or
(2) condition
denial of the motion upon the advancement by the person in whose behalf the
subpoena is issued of the reasonable cost of producing the books, papers,
documents, or tangible things.
(c) Service and notice. A subpoena may be served at any place within
the State. A subpoena may be served:
(1) anywhere
in the State by the sheriff or the sheriff’s deputy or by any other person who
is not a party and is not less than 18 years of age; or
(2) in
any county by the chief of police of that county or a duly authorized
subordinate.
Service of a subpoena upon a person
named therein shall be made by delivering a copy thereof to such person and by
tendering to such person the fees for one day’s attendance and the mileage
allowed by law. When the subpoena is issued on behalf of the State or a county,
or an officer or agency of the State or a county, fees and mileage need not be
tendered. Notice of the issuance and service of a subpoena shall be served on
all parties to the action.
(d) Subpoena for taking depositions; place of
examination.
(1) Proof
of service of a notice to take a deposition as provided in Rules 30(b) and
31(a) of these Rules constitutes a sufficient authorization for the issuance by
the clerk of the circuit court of the circuit in which the deposition is to be
taken of subpoenas for the persons named or described therein. The subpoena may
command the person to whom it is directed to produce and permit inspection and
copying of designated books, papers, documents, or tangible things which
constitute or contain matters within the scope of the examination permitted by
Rule 26(b) of these Rules, but in that event the subpoena will be subject to
the provisions of Rule 26(c) of these Rules and subdivision (b) of this Rule
45.
The person to whom the subpoena is
directed may, within 10 days after the service thereof or on or before the time
specified in the subpoena for compliance if such time is less than 10 days
after service, serve upon the attorney designated in the subpoena written
objection to inspection or copying of any or all of the designated materials.
If objection is made, the party serving the subpoena shall not be entitled to
inspect and copy the materials except pursuant to an order of the court from
which the subpoena was issued. The party serving the subpoena may, if objection
has been made, move upon notice to the deponent for an order at any time before
or during the taking of the deposition.
(2) A
resident of the State may be required to attend an examination only in the
county wherein that person resides or is employed or transacts business in
person, or at such other convenient place as is fixed by an order of court. A
nonresident of the State subpoenaed within the State may be required to attend
only in the county wherein that person is served with a subpoena, or at such
other convenient place as is fixed by an order of court.
(e) Duties in responding to subpoena.
(1) A
person responding to a subpoena to produce documents shall produce them as they
are kept in the usual course of business or shall organize and label them to
correspond with the categories in the demand.
(2) When
information subject to a subpoena is withheld on a claim that it is privileged
or subject to protection as trial preparation materials, the claim shall be
made expressly and shall be supported by a description of the nature of the
documents, communications, or things not produced that is sufficient to enable
the demanding party to contest the claim.
(f) Contempt. Failure by any person without adequate excuse
to obey a subpoena served upon that person may be deemed a contempt of the
court from which the subpoena issued.
Rule
45.1. TESTIMONY
OF MINOR CHILD.
Prior approval must be obtained from the
court before any child is summoned to appear as a witness so that the court may
determine whether to allow the testimony of the child and the form and manner
in which the child’s testimony will be permitted. The court may appoint a
guardian ad litem as provided by law and Rule 17(c) of these Rules before
allowing such testimony.
Rule
46. EXCEPTIONS
UNNECESSARY.
Formal exceptions to rulings or orders
of court are unnecessary; but for all purposes for which an exception has
heretofore been necessary it is sufficient that a party, at the time the ruling
or order of the court is made or sought, makes known to the court the action
that the party desires the court to take or the party’s objection to the action
of the court and grounds therefor; and, if a party has no opportunity to object
to a ruling or order at the time it is made, the absence of an objection does
not thereafter prejudice the party.
Rule
47. RESERVED.
Rule
48. RESERVED.
Rule
49. RESERVED.
Rule
50. RESERVED.
Rule
51. RESERVED.
Rule
52. FINDINGS AND
CONCLUSIONS
BY THE COURT.
(a) Effect. In all actions tried in the family court, the
court may find the facts and state its conclusions of law thereon or may
announce or write and file its decision and direct the entry of the appropriate
judgment; except upon notice of appeal filed with the court, the court shall
enter its findings of fact and conclusions of law where none have been entered,
unless the written decision of the court contains findings of fact and
conclusions of law. To aid the court, the court may order the parties or either
of them to submit proposed findings of fact and conclusions of law, within 10
days after the filing of the notice of appeal or within 10 days of the filing
of a request for entry of findings of fact and conclusions of law under Rule
10(f) of the Hawaiʻi Rules of Appellate Procedure, unless such time is extended
by the court. Requests for findings are not necessary for purposes of review.
The findings of a master, to the extent that the court adopts them, shall be
considered as the findings of the court. If a decision is filed, it will be
sufficient if the findings of fact and conclusions of law appear therein. For cases maintained in JIMS, proposed
findings of fact and conclusions of law shall be submitted in accordance with
Rule 9 of the Hawaiʻi Electronic Filing and Service Rules and in any other
manner ordered by the court. For cases
maintained in JIMS, the proposed findings of fact and conclusions of law shall
be attached to a coversheet which includes “Proposed” in its title, although the
title of the attached findings of fact and conclusions of law shall not include
the word “Proposed”. For cases which are
not included in JIMS, proposed findings of fact and conclusions of law shall be
attached to a coversheet which includes “Proposed” in its title, shall be
conventionally filed, and a courtesy copy shall be provided to the Court
(b) Amendment. Upon motion of a party made not later than 10
days after entry of judgment the court may amend its findings or make
additional findings and may amend the judgment accordingly. The motion may be
made with a motion for a new trial pursuant to Rule 59 of these Rules. When
findings of fact are made by the court, the question of sufficiency of the
evidence to support the findings may thereafter be raised whether or not the
party raising the question has made in the family court an objection to such
findings or has made a motion to amend them or a motion for judgment.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
53. MASTERS.
(a) Appointment. The court may appoint a master, referee,
auditor, examiner, assessor, special master, volunteer settlement master,
commissioner, or receiver (“a master”) to perform specific acts and/or obtain
specific evidence to assist the court.
(b) Compensation. A master (except a volunteer settlement
master) shall be compensated as determined by the court, and shall be paid out
of any fund or subject matter of the action, which is in the custody and
control of the court, or by one or more of the parties themselves, as the court
may direct. The master shall not retain the master’s report as security for
compensation, but when the party ordered to pay the compensation allowed by the
court does not pay it after notice and within the time prescribed by the court,
the master is entitled to a writ of execution against the delinquent party.
(c) Reference. A reference to a master shall be made for good
cause. A party may move for the appointment of a master. The court may appoint
a master on its own initiative after affording the parties an opportunity to be
heard.
(d) Powers. The order of reference to the master shall
specify the master’s powers and duties. It may direct the master to perform
particular acts only, or to obtain particular evidence only.
(e) Report. The order of reference to a master shall
specify the date by which the master’s report shall be completed, served on all
parties, and filed with the court.
(f) Admission. The written report of a master may be received
in evidence if no objection is made; or if objection is made, may be received
in evidence provided the person or persons responsible for the report are
available for cross-examination as to any matter contained therein. When a
report is received in evidence, any party may introduce other evidence
supplementing, supporting, modifying, or rebutting the whole or any part of the
report.
(g) Dismissal of action. An action wherein a master has been appointed
shall not be dismissed except by order of the court.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
53.1. ALTERNATIVE
DISPUTE
RESOLUTION.
(a) Authority to order. The court, sua sponte or upon motion by a party, may, in exercise of its
discretion, order the parties to participate in a nonbinding Alternative
Dispute Resolution process (ADR or ADR process) subject to terms and conditions
imposed by the court. ADR includes mediation or other such process the court
determines may be helpful in encouraging an economic and fair resolution of all
or any part of the disputes presented in the matter. Subsections (b) through
(d) do not apply to ADR administered by the Hawaiʻi Judiciary, such as the
Volunteer Settlement Master Program.
(b) Factors to consider; fees and expenses.
(1) Before
ordering a case to ADR, the court may consider factors, including, but not
limited to, the current status of the case, whether the parties would be better
served by a settlement conference held by the court, whether the parties are
willing to participate in ADR, and whether the parties have previously
participated in ADR in the pending matter. In addition, the court may consider
whether ordering a case into ADR would result in an unfair or unreasonable
economic burden on any party.
(2) All
ADR fees and expenses of the neutral shall be borne equally by the parties
unless otherwise agreed to by the parties, ordered by the court, or provided by
law.
(c) Selection of the neutral. If the ADR process ordered by the court
involves the selection of a neutral, the parties shall first attempt to select
a neutral by mutual agreement. If the parties cannot agree, then each party
shall submit a list to the court nominating up to 3 prospective neutrals by a
date determined by the court. The court shall then decide which person shall
serve as the neutral. If at any time the neutral becomes unable or unwilling to
serve, and the parties are unable to agree on the selection of another neutral,
the court shall select another neutral from the names previously provided by
the parties.
(d) Disclosure. Unless waived by all
parties, the parties, counsel, and neutral shall disclose to each other the
identity of other participants who may be included in the ADR process. In
addition, the neutral shall disclose any other facts and information, including
relationships, that a reasonable person would consider likely to affect the
impartiality of the neutral, including the neutral’s relationships with
counsel. The parties, counsel, and neutral shall have a continuing obligation
to disclose any information they subsequently learn during the ADR process that
a reasonable person would consider likely to affect the impartiality of the
neutral.
(e) Physical presence of counsel and parties
required. Lead trial counsel and
parties shall attend, in person, all ADR conferences scheduled by the neutral
unless excused by the neutral.
(f) Communication by parties, counsel, neutral
and the Court. Unless the parties otherwise agree in writing, the neutral,
counsel, the parties, and other participants in any ADR process shall not
communicate with the court adjudicating the merits of the matter about the
substance of any position, offer or other matter related to the ADR process,
nor shall a court request or order disclosure of such information unless such
disclosure is required to enforce a settlement agreement, adjudicate a dispute
over the neutral’s fees, or provide evidence in any attorney disciplinary
proceeding, and then only to the extent required to accomplish such purpose.
However, the neutral may disclose to a court whether the ADR process is
scheduled, pending, or concluded; who attended; and, if applicable, whether a
settlement or resolution was reached with regard to some or all issues
presented.
VII. JUDGMENT
Rule
54. JUDGMENT;
COSTS.
(a) Definition; form.
“Judgment” as used in these Rules
includes a decree and any order from which an appeal lies. A judgment shall not
contain a recital of pleadings, the report of a master, or the record of prior
proceedings.
(b) Reserved.
(c) Demand for judgment. A judgment by default shall not be different
in kind from or exceed in amount that which was prayed for in the demand for
judgment. Except as to a party against whom a judgment is entered by default,
every final judgment shall grant the relief to which the party in whose favor
it is rendered is entitled, even if the party has not demanded such relief in
the party’s pleadings.
(d) Costs. Costs shall be allowed where expressly
provided by statute, stipulation, agreement, order, or these Rules.
(e) Effective date. All judgments and orders shall take effect
upon the signing and filing thereof unless otherwise ordered.
Rule
54.1. PERIODIC
PAYMENTS.
Provisions for periodic payments of
alimony and/or child support shall be set forth specifically in the judgment or
order providing for the same to be paid. Provisions for alimony shall state
whether such payments are to be made directly to the recipient or through the
chief clerk of a circuit court, or through the Child Support Enforcement Agency
when there is a concurrent child support order. A provision for child support
shall state that it is payable through the Child Support Enforcement Agency and
pursuant to an order for income assignment, except that provisions for direct
payment of child support may be made pursuant to HRS section 576D-10. All
orders for periodic payment shall state the commencement date, and the date or
dates of each month and year on which such payments are to be made. Provisions
for periodic payments of alimony for an indefinite period may be approved but
shall be made subject to further order of the court. Provisions for periodic
payments of alimony for a definite period may be approved but shall be for a
definite period of time or until further order of the court, whichever occurs
sooner.
COMMENT:
This rule sets forth the requirements
in child support orders. At the time it was promulgated, the statute required
that all such orders be paid through the Child Support Enforcement Agency.
Subsequently, Haw. Rev. Stat. § 576D-10(b) through (i)
was amended to allow direct payments subject to certain conditions. This rule
was amended to be consistent with statutory amendments.
Rule
54.2. MODIFICATION
OF
JUDGMENTS.
(a) Custody and visitation. A proposed stipulation seeking to establish or
amend provisions in a judgment or any order relating to custody or visitation
of minor children will not be approved unless there is a showing that the
proposal is in the best interests of the children. Unless waived by the court,
such stipulation shall be signed by both parties.
(b) Modifying or terminating support for adult
children.
(1) In
an action where a party seeks to modify or terminate existing orders relating
to the support, maintenance and education of minor children upon a child
reaching the age of majority, service of the motion or pleading seeking such
relief shall be made on the adult child in addition to the adverse party in the
manner provided in these Rules.
(2) A
proposed stipulation seeking to modify existing orders relating to the support,
maintenance and education of minor children by reducing or terminating
provisions for child support upon a child attaining the age of majority shall
not be approved unless the adult child affected by the proposed change shall
have approved the stipulation in addition to the parties; or an affidavit or
declaration is provided by either party that the child is no longer dependent
for education and the child’s whereabouts are unknown; or a hearing is held.
Rule
55. DEFAULT.
(a) Entry. When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend as
provided by these Rules and that fact is made to appear by motion supported by
affidavit or declaration or as otherwise provided hereinbelow, the court shall
enter the party’s default.
(b) Judgment. In a contested or uncontested action, where it
appears from the record and by testimony (or by affidavit or declaration in an
uncontested matrimonial action) that the adverse party has been duly served
with the complaint or dispositive motion, and the adverse party has failed to
appear or otherwise defend as provided by these Rules, the court may grant an
entry of default and proceed with a proof hearing, when a hearing is required,
and enter a default judgment. No judgment by default shall be entered against a
minor or incompetent person unless represented in the action by a guardian, or
other such representative who has appeared therein, and upon whom service may
be made under Rule 17(c) of these Rules.
(c) Setting aside default. For good cause shown the court may set aside
an entry of default and, if a judgment by default has been entered, may
likewise set it aside in accordance with Rule 60(b) of these Rules.
(d) Plaintiff, cross-plaintiff. The provisions of this rule apply whether the
party entitled to the judgment by default is a plaintiff or a party who has
pleaded a cross-complaint. In all cases a judgment by default is subject to the
limitations of Rule 54(c) of these Rules.
(e) Judgment against the State, etc. No judgment by default shall be entered
against the State or a county, or an officer or agency of the State or a
county, unless the claimant establishes a claim or right to relief by evidence
satisfactory to the court.
Rule
56. SUMMARY
JUDGMENT.
(a) For claimant. A party seeking to recover upon a claim,
counterclaim, or cross-claim may, at any time after the expiration of 20 days
from the commencement of the action or after service of a motion for summary
judgment by the adverse party, move with or without supporting affidavits or
declarations for a summary judgment in the party’s favor upon all or any part
thereof.
(b) For defending party. A party against whom a claim, counterclaim, or
cross-claim is asserted may, at any time, move with or without supporting
affidavits or declarations for a summary judgment in the party’s favor as to
all or any part thereof.
(c) Motion and proceedings thereon. The motion shall be filed and served not less
than 18 days before the date set for the hearing. The adverse party may file
and serve opposing memorandum and/or affidavits or declarations not less than 8
days before the date set for the hearing. The moving party may file and serve a
reply or affidavit or declaration not less than 3 days before the date set for
the hearing. The judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits or declarations, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a
matter of law.
(d) Case not fully adjudicated on motion. If on motion under this rule judgment is not
rendered upon the whole case or for all the relief asked and a trial is
necessary, the court at the hearing of the motion, by examining the pleadings
and the evidence before it and by interrogating counsel, shall if practicable
ascertain what material facts exist without substantial controversy and what
material facts are actually and in good faith controverted. It shall thereupon
make an order specifying the facts that appear without substantial controversy,
and directing such further proceedings in the action as are just. Upon the
trial of the action the facts so specified shall be deemed established, and the
trial shall be conducted accordingly.
(e) Form of affidavits or declarations; further
testimony; defense required. Supporting
and opposing affidavits or declarations shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated
therein. Sworn or certified copies of all documents or parts thereof referred
to in an affidavit or declaration shall be attached thereto or served
therewith. The court may permit affidavits or declarations to be supplemented
or opposed by depositions, answers to interrogatories, or further affidavits or
declarations. When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations
or denials of the adverse party’s pleading, but the adverse party’s response,
by affidavits or declarations or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue for trial. If the
adverse party does not so respond, summary judgment, if appropriate, shall be
entered against the adverse party.
(f) When affidavits or declarations are
unavailable. Should it appear from
the affidavits or declarations of a party opposing the motion that the party
cannot for reasons stated present by affidavit or declaration facts essential
to justify the party’s opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits or declarations to be
obtained or depositions to be taken or discovery to be had or may make such
other order as is just.
(g) Affidavits or declarations made in bad
faith. Should it appear to the
satisfaction of the court at any time that any of the affidavits or
declarations presented pursuant to this rule are presented in bad faith or
solely for the purpose of delay, the court shall forthwith order the party
employing them to pay to the other party the amount of the reasonable expenses
which the filing of the affidavits or declarations caused the other party to
incur, including reasonable attorney’s fees, and any offending party or
attorney may be adjudged guilty of contempt.
(h) Form of order. Whenever the court on a motion for summary
judgment disposes of one or more but fewer than all claims, involving one or
more parties, the order entered must specifically set forth the claim or claims
disposed of, and with respect to each such claim, the party or parties in whose
favor the disposition is made and the party or parties against whom the
disposition is made.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
57. RESERVED.
Rule
58. PREPARATION
AND SIGNING
OF JUDGMENTS AND OTHER
ORDERS.
(a) Preparation of judgments and other orders.
Within 10 days (or such other time
directed by the court) after entry or announcement of the decision of the
court, the attorney or party designated by the court (“the drafting party”) shall
draft a proposed judgment, decree, or order in accordance with the decision and
attempt to secure thereon the approval of the opposing counsel or party (if self-represented)
as to form.
(b) Party approval or objection to form;
delivery to Court. If there is no
objection to the form of the proposed judgment, decree, or order, the opposing
counsel or party (if self-represented) shall promptly approve it as to form by
affixing a handwritten signature on it. Once the opposing counsel or party
approves the proposed judgment, decree, or order as to form, the drafting party
shall attach it to a coversheet which includes “Proposed” in its title, and
shall file it conventionally or electronically in accordance with Rule 9 of the
Hawaiʻi Electronic Filing and Service Rules.
If a proposed judgment, decree, or order
is not approved as to form by the opposing counsel or party (if
self-represented) within 5 days after a written request for such approval, the
drafting party shall file a Notice of Submission of the proposed order which
attaches the proposed order as an exhibit.
The drafting party shall serve the Notice of Submission on all attorneys
and any party who is not represented by an attorney. Service shall be made either through JEFS or
conventionally in accordance with Rule 6 of the Hawaiʻi Electronic Filing and
Service Rules. If the Notice of
Submission is conventionally served, a certificate of conventional service
shall be filed stating the actual date of service and the method of service
used.
If any party objects to the form of the
proposed judgment, decree, or order attached to the Notice of Submission, no
later than 5 days after service of the Notice of Submission, that party shall
file and serve upon each party a Statement of Objections which clearly states
the basis for each objection to the proposed judgment, decree, or order. The Statement of Objections shall also attach
the objecting party’s own proposed judgment, decree, or order as an exhibit.
In the event of an objection to the form
of a proposed judgment, decree, or order, the court may schedule a Rule 58
conference or shall proceed to settle the judgment, decree or order. Either
party may request a Rule 58 conference. Failure to file and serve objections
and a proposed judgment, decree, or order within the time frame required shall
constitute approval as to form of the drafting party’s proposed judgment,
decree, or order.
(c) Court approval; sanctions. If a proposed judgment, decree or order is
consistent with the decision of the court, the court shall cause the judgment,
decree or order to be entered forthwith. If a proposed judgment, decree or
order is not consistent with the decision of the court, the court may require
submission of a conforming judgment, decree or order. The court may impose a
monetary sanction against a party or attorney who submits a defective or
untimely judgment, decree, or order.
(d) Request for entry. If the drafting party fails to timely submit a
proposed judgment, decree, or order to the court, any other party may prepare a
proposed judgment, decree, or order and present it to the drafting party for
approval in compliance with subsection (b) above. If the drafting party is presented with a
proposed judgment, decree, or order under this subsection and fails to approve
it, the party who prepared the proposed judgment, decree, or order may filed a
Notice of Submission in compliance with subsection (b) above for the court’s
approval and entry. Any Notice of
Submission under this subsection (d) shall include a representation that the
party or attorney ordered to prepare the proposed judgment, decree, or order
failed to timely prepare and present it as required by subsection (a) above.
(e) No waiver of right to appeal. Approval as to form shall not affect the
right, or constitute waiver of the right, of any party to appeal from any
judgment, decree or order issued.
(f) Documents submitted for court’s signature
pursuant to formal hearing. All
documents submitted for the court’s signature that are pursuant to formal
hearing, shall reflect the exact hearing date or dates and the name of the
hearing judge under the case number and character of the document and shall
comply with Rule 7.1(c) of these Rules.
(g) Preparation of stipulated order when
provisions on record. If a party or
parties are present in court, with or without an attorney, and state for the
record that the parties stipulate to the entry of orders, the stipulation shall
be reduced to writing by the attorney or party designated by the court within
10 days (or such other time as designated by the court), and shall be approved
by all parties and their attorneys, if any, consistent with (b) above unless
such a requirement is waived by the court. If a party who was present in court
fails or refuses to approve the stipulation and order within 5 days after
receipt, the court may approve the stipulation and order without approval of
either the party or the party’s attorney, if any, provided that the provisions
are consistent with the provisions stipulated to in court, and provided that
the party or party’s attorney, if any, preparing the stipulation and order
informs the court via a Notice of Submission consistent with (b) above that
either the party or the party’s attorney, if any, refused or failed to approve
the stipulation and order within the 5-day period.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
58.1. STIPULATIONS
AND ORDERS.
(a) Forms of stipulations and orders. A stipulation not made in open court shall be
in writing, signed by the parties and/or their attorneys, and submitted to the
court for approval. The stipulation shall cite the authority and state the
reason(s) and factual or other basis for the stipulation therein. A stipulation
shall have the effect of an order if the words "Approved and so
ordered" or their equivalent appear on the stipulation, the stipulation is
signed by the judge, and the stipulation is filed by the court.
(b) Stipulations extending or enlarging time.
A stipulation for court approval to act
under Rule 6(b)(1), Hawaiʻi Family Court Rules, shall include the following:
(1) the
title of the document and the sequential number of such extension or
enlargement;
(2) the
reason(s) for the extension or enlargement; and
(3) the
expiration date of the originally prescribed period or as extended or enlarged
by a previous order.
Rule
59. NEW TRIALS;
RECONSIDERATION OR
AMENDMENT OF JUDGMENTS
AND ORDERS.
(a) Grounds. A new trial may be granted to all or any of
the parties and on all or part of the issues for good cause shown. On a motion
for a new trial, the court may open the judgment if one has been entered, take
additional testimony, amend findings of fact and conclusions of law, or make
new findings and conclusions, and direct the entry of a new judgment.
(b) Time for motion. A motion for a new trial shall be filed not
later than 10 days after the entry of the judgment unless otherwise provided by
statute.
(c) Time for serving affidavits or declaration.
When a motion for new trial is based on
affidavits or declarations, they shall be served with the motion. The opposing
party has 10 days after such service within which to serve opposing affidavits
or declarations, which period may be extended for an additional period not
exceeding 20 days either by the court for good cause shown or by the parties by
written stipulation. The court may permit reply affidavits or declarations.
(d) On initiative of court. Not later than 10 days after entry of judgment
the court of its own initiative may order a new trial, for any reason for which
it might have granted a new trial on motion of a party. After giving the
parties notice and an opportunity to be heard on the matter, the court may
grant a motion for a new trial, timely served, for a reason not stated in the
motion. In either case, the court shall specify in the order the grounds
therefor.
(e) Motion to reconsider, alter or amend a
judgment or order. Except as
otherwise provided by HRS section 571-54 regarding motions for reconsideration
in proceedings based upon HRS sections 571-11(1), (2), or (6), a motion to
reconsider, alter or amend a judgment or order is not required but may be filed
no later than 10 days after entry of the judgment or order and shall be a
non-hearing motion, except that the court in its discretion may set any matter
for hearing. Responsive pleadings to a motion for reconsideration shall be
filed no later than 10 days after service of the motion to reconsider, alter or
amend the judgment or order.
(f) Entry of judgment. Unless otherwise ordered by the court, the
filing of the judgment in the office of the clerk constitutes the entry of the
judgment, and the judgment is not effective before such entry.
COMMENT:
Rule 59(e) of the Hawaiʻi Family Court Rules
sets forth the requirements for motions to reconsider, alter or amend a
judgment or order. At the time this rule was originally promulgated, the
statute required that a motion for reconsideration be filed prior to taking an
appeal in a Chapter 587 case. Subsequently, HRS § 571-54 was amended to
eliminate this requirement. To be consistent with statutory amendments, this
amendment would permit but not mandate the filing of a motion for
reconsideration in Chapter 587 cases prior to appeal.
Rule
60. RELIEF FROM
JUDGMENT OR
ORDER.
(a) Clerical mistakes. Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from oversight or omission
may be corrected by the court at any time of its own initiative or on the
motion of any party and after such notice, if any, as the court orders. During
the pendency of an appeal, such mistakes may be so corrected before the appeal
is docketed, and thereafter while the appeal is pending may be so corrected
with leave of the appellate court.
(b) Mistakes; inadvertence; excusable neglect;
newly discovered evidence; fraud. On
motion and upon such terms as are just, the court may relieve a party or a
party’s legal representative from any or all of the provisions of a final
judgment, order, or proceeding for the following reasons:
(1) mistake,
inadvertence, surprise, or excusable neglect;
(2) newly
discovered evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b) of these Rules or to reconsider,
alter, or amend under Rule 59(e);
(3) fraud
(whether heretofore denominated intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party;
(4) the
judgment is void;
(5) the
judgment has been satisfied, released, or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or
(6) any
other reason justifying relief from the operation of the judgment.
The
motion shall be made within a reasonable time, and for reasons (1), (2), and
(3) not more than one year after the judgment, order, or proceedings was
entered or taken. For reasons (1) and (3) the averments in the motion shall be
made in compliance with Rule 9(b) of these Rules. A motion under this
subdivision (b) does not affect the finality of a judgment or suspend its
operation. This rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding, or
to set aside a judgment for fraud upon the court.
Rule
61. HARMLESS
ERROR.
No error in either the admission or the
exclusion of evidence and no error or defect in any ruling or order or in
anything done or omitted by the court or by any of the parties is ground for
granting a new trial or for setting aside a verdict or for vacating, modifying,
or otherwise disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The court at every
stage of the proceeding must disregard any error or defect in the proceeding that
does not affect the substantial rights of the parties.
Rule
62. STAY OF
PROCEEDINGS TO
ENFORCE A JUDGMENT.
(a) No automatic stay: Exceptions -
Injunctions, receiverships and accountings. Unless otherwise ordered by the court, a
temporary order or a judgment containing a restraining order, an order of
sequestration, or an order appointing receiver, or a judgment or order
directing an accounting, or an order for the payment of child support directly
or by income assignment, shall not be stayed during the period after its entry
and until an appeal is taken, or during the pendency of an appeal. The
provisions of subdivision (c) of this Rule govern the suspending, modifying,
restoring, or granting of a restraining order during the pendency of an appeal.
When an appeal is taken from any judgment relating to the custody or support of
a child or spousal support, the court in its discretion may suspend, modify or
grant such judgments during the pendency of the appeal upon such terms as it
considers proper.
(b) Stay on motion for new trial or for
alteration or amendment of judgment or order. In its discretion and on such conditions for
the security of the adverse party as are proper, the court may stay any
proceedings to enforce a judgment or order pending the disposition of a motion
for a new trial or to alter or amend a judgment or order made pursuant to Rule
59 of these Rules, or of a motion for relief from a judgment or order made
pursuant to Rule 60 of these Rules, or when justice so requires in other cases
until such time as the court may fix.
(c) Restraining orders pending appeal. When an appeal is taken from a restraining
order or final decree granting, dissolving, or denying a restraining order, the
court in its discretion may suspend, modify, restore, or grant a restraining
order during the pendency of the appeal upon such terms as to bond or otherwise
as it considers proper for the security of the rights of the adverse party.
(d)
Stay upon appeal. When an appeal is
taken the appellant on such conditions that the court may allow may obtain a
stay subject to the exceptions contained in subdivision (a) of this Rule. The
stay is effective when approved by the court.
(e) Stay in favor of the State, etc. When an appeal is taken by or at the direction
of the State or a county, or by an officer or agency of the State or a county,
and the operation or enforcement of the judgment is stayed, no bond,
obligation, or other security shall be required from the appellant.
(f) Reserved.
(g) Power of supreme court and intermediate
court of appeals not limited. The
provisions in this rule do not limit any power of the supreme court or of the
intermediate court of appeals or of a justice or judge thereof to stay
proceedings during the pendency of an appeal or to suspend, modify, restore, or
grant a restraining order during the pendency of an appeal or to make any order
appropriate to preserve the status quo or the effectiveness of the decree
subsequently to be entered.
(h) Reserved.
Rule
63. DISABILITY OF
JUDGE.
If a trial or hearing has been commenced
and the judge is unable to proceed, any other judge may proceed with it upon
certifying familiarity with the record and determining that the proceedings in
the case may be completed without prejudice to the parties. In a hearing or
trial without a jury, the successor judge shall at the request of a party
recall any witness whose testimony is material and disputed and who is
available to testify again without undue burden. The successor judge may also
recall any other witness.
VIII. PROVISIONAL AND
FINAL REMEDIES AND SPECIAL PROCEEDINGS
Rule
64. RESERVED.
Rule
65. INJUNCTIONS.
(a) Reserved.
(b) Restraining order; notice; hearing;
duration. Except as provided in HRS §580-10.5,
a restraining order may be granted without notice to the adverse party when it
clearly appears from specific facts shown by affidavit or declaration or by the
verified complaint that immediate relief to the applicant is appropriate. Every
restraining order granted without notice shall be filed with the court and
entered in the record, shall be accompanied by an appropriate application for
further relief, shall be set for a prompt hearing, and shall be served
forthwith upon any party or parties affected by the order. It shall continue in
effect until further order of the court. Upon notice to the party who obtained
the restraining order without notice, the adverse party may move to advance the
hearing.
(c) Security. In all cases, the court, on granting a
restraining order or at any time thereafter, may require security or impose
such other equitable terms as it deems proper. No such security shall be
required of the State or a county, or an officer or agency of the State or a
county.
The provisions of Rule 65.1 of these Rules
apply to a surety upon a bond or undertaking under this Rule.
(d) Form and scope of restraining order. Every restraining order shall set forth the
reasons for its issuance; shall be specific in terms; shall describe in
reasonable detail, and not by reference to the complaint or other document, the
act or acts sought to be restrained; and is binding only upon the parties to
the action, their officers, agents, servants, employees, and attorneys (to the
extent stated in the order), and upon those persons in active concert or
participation with them who receive actual notice of the order by personal
service or otherwise.
(e) Reserved.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
65.1. SECURITY:
PROCEEDINGS
AGAINST SURETIES.
(a) Security and sureties. Whenever these
Rules
require or permit the giving of security by a party, and security is given in
the form of a bond or stipulation or other undertaking with one or more
sureties, each surety submits to the jurisdiction of the court and irrevocably
appoints the clerk of the court as the surety’s agent upon whom any documents affecting
the surety’s liability on the bond or undertaking may be served. The surety’s
liability may be enforced on motion without the necessity of an independent
action. The motion and such notice of the motion as the court prescribes shall be
conventionally served on the clerk of the court, who shall forthwith mail
copies to the sureties if their addresses are known. For purposes of this Rule, the motion and
notice of motion shall not be served electronically.
(b) Who may not be surety. No attorney or other officer or employee of
the court shall become surety on any bond or undertaking in any action or
proceeding in this court, unless authorized by the court.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
66. RESERVED.
Rule
67. DEPOSIT IN
COURT.
In an action in which any part of the
relief sought is a judgment for a sum of money or the disposition of any other
thing capable of delivery, a party, upon notice to every other party, and by
leave of court, may deposit with the court all or any part of such sum or
thing. Money paid into court under this rule shall be deposited and withdrawn
in accordance with orders of the court.
Rule
68. OFFER OF
SETTLEMENT.
At any time more than 20 days before any
contested hearing held pursuant to HRS sections 571-11 to 14 (excluding law
violations, criminal matters, and child protection matters) is scheduled to
begin, any party may serve upon the adverse party an offer to allow a judgment
to be entered to the effect specified in the offer. Such offer may be made as
to all or some of the issues, such as custody and visitation. Such offer shall
not be filed with the court, unless it is accepted. If within 10 days after service
of the offer the adverse party serves written notice that the offer is
accepted, any party may then file the offer and notice of acceptance together
with proof of service thereof and thereupon the court shall treat those issues
as uncontested. An offer not accepted shall be deemed withdrawn and evidence
thereof is not admissible, except in a proceeding to determine costs and
attorney’s fees. If the judgment in its entirety finally obtained by the
offeree is patently not more favorable than the offer, the offeree must pay the
costs, including reasonable attorney’s fees incurred after the making of the
offer, unless the court shall specifically determine that such would be
inequitable.
Rule
69. ENFORCEMENT
OF JUDGMENT
OR ORDER FOR PAYMENT OF
SUPPORT.
A judgment or order for the payment of
child or spouse support may be enforced by an order of assignment of income or
other methods permitted by statute.
Rule
70. JUDGMENT FOR SPECIFIC
ACTS; VESTING TITLE.
If a judgment directs a party to execute
a conveyance of land or to deliver deeds or other documents or to perform any
other specific act and the party fails to comply within the time specified, the
court may direct the act to be done at the cost of the disobedient party by
some other person appointed by the court and the act when so done has like
effect as if done by the party. On application of the party entitled to
performance, the court shall issue a writ of attachment or sequestration
against the property of the disobedient party to compel obedience to the
judgment. The court may also in proper cases adjudge the party in contempt. If
real or personal property is within the State, the court in lieu of directing a
conveyance thereof may enter a judgment divesting the title of any party and
vesting it in others and such judgment has the effect of a conveyance executed
in due form of law. When any order or judgment is for the delivery of
possession, the party in whose favor it is entered is entitled to a writ of
execution or assistance upon application to the court.
Rule
71. PROCESS IN
BEHALF OF AND
AGAINST PERSONS NOT
PARTIES.
When an order is made in favor of a
person who is not a party to the action, that person may enforce obedience to
the order by the same process as if a party; and, when obedience to an order
may be lawfully enforced against a person who is not a party, that person is
liable to the same process for enforcing obedience to the order as if a party.
IX. APPEALS
Rule
72. APPEAL TO THE
FAMILY
COURT.
(a) How taken. Where a right of appeal to the family court is
allowed by statute, any person or party allowed by statute may appeal from such
decision, order or action by filing a notice of appeal in the family court
having jurisdiction of the matter. As used in this Rule, the term “appellant”
means any person or party filing a notice of appeal, and “appellee” means every
governmental body or official (other than a court) whose decision, order or
action is appealed from, and every other party to the proceedings.
(b) Time. The notice of appeal shall be filed in the
family court of the circuit in which the appellant resides within 30 days of
the preliminary ruling or within 30 days after the service of the copy of the
final decision and order. However, if the notice of appeal is mailed, the
notice of appeal shall be deemed timely filed if the mailing is postmarked
within the time fixed for filing and is received by the clerk no later than 5
days after the postmarked date. For the purposes of calculating other deadlines
in these Rules, date of filing under this Rule shall be the date the document
is received by the clerk.
(c) Service. Promptly after filing the notice of appeal,
the appellant shall serve a copy thereof upon each appellee.
(d) Record on appeal.
(1) Designation. The appellant shall, concurrently with filing
the notice of appeal or no later than 10 days after filing the notice of
appeal, file with the clerk of the court either conventionally or through JEFS a
Designation of Record on Appeal (the “Designation”). The Designation shall specify the documents,
transcripts, minutes, and exhibits (“the designated materials”) that the
appellant desires to be filed in the family court in connection with the
appeal.
The
appellant shall fill out an Order for Certification and Transmission of the
Record form, provided by the family court, which shall command the governmental
official or body whose decision, order or action is appealed from (the Aagency@),
to certify and transmit the designated materials to the family court no later
than 20 days following service of the filed AOrder
for Certification and Transmission of the Record@
or within such further time as may be allowed by the family court. The Order for Certification and Transmission
of the Record shall be attached to a coversheet which includes AProposed@
in its title, although the title of the attached Order shall not include the
word AProposed@.
If the appellant is a JEFS User, the AProposed
Order for Certification and Transmission of the Record@ (with the attached Order) shall be filed
electronically via JEFS. If the
appellant is not a JEFS User, the appellant shall submit the AProposed Order for Certification and
Transmission of the Record@
(with the attached Order) to the clerk for conventional filing.
The
clerk, in the name and under the seal of the court, shall sign, date, and file
the Order for Certification and Transmission of the Record. If the appellant is not a JEFS User, the
clerk shall conventionally serve certified copies of the Designation and Order
for Certification and Transmission of the Record on the appellant.
The
appellant shall serve certified copies of the Designation and the Order for
Certification and Transmission of the Record upon the agency and upon all
parties and, if serving conventionally, shall file a certificate of
conventional service.
The
family court may compel obedience to the Order for Certification and
Transmission of the Record by any appropriate process.
(2) Counter designation. Any appellee may,
within 10 days after service of the Designation and statement of the case, file
with the clerk of the court either conventionally or through JEFS a Counter-Designation
of Record on Appeal (the “Counter-Designation”) which shall specify additional documents,
transcripts, minutes and exhibits (the “counter-designated material”) that the
appellee desires to be filed in the family court in connection with the appeal.
The appellee shall fill out an Order for
Certification and Transmission of the Record form, provided by the family
court, which shall command the agency to certify and transmit the
counter-designated materials to the family court no later than 20 days
following service of the filed Order for Certification and Transmission of the
Record or within such further time as may be allowed by the family court. The Order for Certification and Transmission
of the Record shall be attached to a coversheet which includes “Proposed” in
its title, although the title of the attached Order shall not include the word
“Proposed”. If the appellee is a JEFS
User, the “Proposed Order for Certification and Transmission of the Record”
(with the attached Order) shall be filed electronically via JEFS. If the appellee is not a JEFS User, the
appellee shall submit the “Proposed Order for Certification and Transmission of
the Record” (with the attached Order) to the clerk for conventional filing.
The clerk, in the name and under the
seal of the court, shall sign, date, and file the “Order for Certification and
Transmission of the Record”. If the
appellee is not a JEFS User, the clerk shall conventionally serve certified
copies of the Counter-Designation and Order for Certification and Transmission
of the Record on the appellee.
The appellee shall serve certified
copies of the Counter-Designation and the “Order for Certification and
Transmission of the Record” upon the agency and upon all parties and, if
serving conventionally, shall file a certificate of conventional service.
When the appellee filing the
Counter-Designation is the agency which has official custody of the counter-designated
materials, it shall be sufficient that the appellee agency file the counter-designated
materials and identify the same in an accompanying certificate. A copy of such
certificate and of any counter-designation shall be served forthwith upon the
appellant either through JEFS or conventionally if the appellant is not a JEFS
User.
The family court may compel obedience to
the Order for Certification and Transmission of the Record by any appropriate
process.
(e) Statement of case. The appellant shall file in the family court,
concurrently with the filing of appellant’s designation, a short and plain
statement of the case and a prayer for relief. Copies of such statement shall be conventionally
served forthwith upon every appellee who has not yet registered with JEFS in
connection with the appeal. The statement shall be treated, as near as may be,
as an original complaint and the provision of these Rules respecting motions
and answers in response thereto shall apply.
(f)
and (g) Reserved.
(h) Costs. No appeal shall be heard, and the appeal shall
be dismissed, unless the appellant shall pay all costs, if any, including costs
for the transcribing of the transcripts, and furnish every bond or other
security, if any, required by law.
(i) Stay. The filing of a notice of appeal shall not
operate as a stay of the decision, order or action appealed from, unless
otherwise provided by statute.
(j) Reserved.
(k) Judgment. Upon final determination of the appeal, the family
court shall enter judgment. Such judgment shall be reviewable, or final, as may
be provided by law. Promptly after final determination of the appeal in the
family court, the clerk of the court shall serve the parties and the
governmental official or body concerned of the disposition of the appeal in
accordance with Rule 77 of these Rules.
(Amended
July 9, 2019, effective January 1, 2020; further amended March 30, 2022,
effective April 25, 2022.)
Rule 72.1. BRIEFS.
(a) Briefing
schedules and scheduling of argument dates. The court shall issue a briefing schedule
which will inform parties that oral argument will be scheduled upon request.
(b) Opening brief, answering brief and reply
brief. All briefs submitted for
appellate review to the family court shall conform with Hawaiʻi Rules of
Appellate Procedure Rule 28.
(c) Extension of time for briefs. Upon timely
(1) oral
request, or
(2) written
motion, or
(3) letter
request by a party, the clerk of court shall grant one extension of time for no
more than 30 days for the filing of an opening or answering brief and no more
than 10 days for the filing of a reply brief. The clerk shall note on the
record that the extension was granted and the date the brief is due. The
requesting party shall notify all other parties that the extension was granted
and shall file a copy of the notice in the record. A request is timely only if
it is received by the clerk within the original time for filing of the brief.
The submission of a request or motion for extension does not toll the time for
filing a brief.
(d) Briefs not timely filed or not in
conformity with rule. When the brief
for appellant is not filed within the time required, the clerk shall forthwith
give notice to the parties that the matter will be called to the attention of
the court on a day certain for such action as the court deems proper and that
the appeal may be dismissed. When the brief of an appellant is otherwise not in
conformity with these Rules, the appeal may be dismissed or the brief stricken
and monetary or other sanctions may be levied by the court with prior notice to
the parties. When the brief of an appellee is not filed within the time
required, or is not in conformity with these Rules, the brief may be stricken
and monetary or other sanctions may be levied by the court with prior notice to
the parties. In addition, the court may accept as true the statement of facts
in the appellant’s opening brief. Any party who may be adversely affected by
application of this Rule may submit a memorandum, affidavits or declarations,
or declarations setting forth the reasons for non-conformance with these Rules.
Rules
73. to 76. RESERVED.
X. FAMILY COURTS AND
CLERKS
Rule
77. FAMILY COURTS
AND CLERKS.
(a) Family courts always open. The family courts shall be deemed always open
for the purpose of filing any pleading or other proper document, of issuing and
returning mesne and final process, and of making and directing all
interlocutory motions, orders, and Rules.
(b) Filing with the clerk of court. Documents filed through JEFS or JIMS shall be
deemed filed with the clerk of the court.
(c) Clerk’s office and orders by clerk. The clerk’s office with the clerk or a deputy
in attendance shall be open during business hours on all days except Saturdays,
Sundays and legal holidays. Any order to show cause, summons, subpoena,
application for issuing final process to enforce or execute judgments, or
notice issued by the court in connection with any case or cause, may be signed
by a clerk of the court. The clerk shall grant, sign, and enter the following
orders without further direction by the court, but any orders so entered may be
set aside or modified by the court:
(1) Orders extending time. Orders extending once for 20 days the time
within which to file an answer to a complaint if the time originally prescribed
to answer or move has not expired.
(2) Orders granting extension. Orders extending once for 15 days the time
within which to object to or answer interrogatories to a party or object or
respond to a request for production of documents if the time to answer such
interrogatories or respond to a request for production of documents has not
expired and such extension would not violate a prior court order.
Any
orders submitted for the clerk=s
signature shall be attached to a coversheet which includes AProposed@
in the title, although the attached order itself shall not include “Proposed”
in its title. JEFS Users shall file the
proposed order electronically and non-JEFS Users shall conventionally file the
proposed order.
(d) Service of orders, decrees, and judgments. Immediately upon the filing of an order,
decree, or judgment prepared by the court, the clerk shall conventionally serve
a copy of the order, decree, or judgment by mail in the manner provided for in
Rule 5 of these Rules upon each self-represented party who is not in default
for failure to appear and who is not a JEFS User. The clerk shall note the
service by a text-only entry on the docket or by filing a certificate of
conventional service. Failure to make such service does not affect the time to
appeal or relieve or authorize the court to relieve a party for failure to
appeal within the time allowed, except as permitted in Rule 4(a) of the Hawaiʻi
Rules of Appellate Procedure. The Notice of Electronic Filing automatically
generated by JEFS is sufficient to show service of the order, decree, or
judgment on all JEFS Users. Orders prepared by attorneys shall be served in
accordance with Rules 5(c) and 5.1 of these Rules.
(e) “Court” and “family court” defined. As used in these Rules, the words “court” and
“family court” shall mean the family court, the district family court, or a
judge of the family court, or a judge of the district family court.
(f) “Judge” defined. As used in these Rules, the word “judge” shall
mean a judge of the family court or the district family court.
(g) Costs awarded by the court. In addition to any other costs allowed by
statute or rule, the court may award to a prevailing party the actual cost of
service of process, whether service is made by a public or private process
server, provided the amount shall not exceed the statutory amount(s) allowed
for service of process by sheriffs or police officers.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
77.1. PREPARATION
OF CLERK’S
MINUTES AND DEPOSIT OF
EXHIBITS.
The court shall cause minutes to be
prepared for its own use. Such minutes shall be appended chronologically at the
bottom of the case file. Immediately upon the conclusion of a proceeding, all
exhibits received, together with the original of the exhibit list, shall be
deposited with the clerk, who shall acknowledge receipt of same on a copy of
the exhibit list, which shall be filed in the file.
Rule
78. MOTION
DAY.
Unless local conditions make it
impracticable, each family court shall establish regular times and places, at
intervals sufficiently frequent for the prompt dispatch of business, at which
motions requiring notice and hearing may be heard and disposed of; but the
judge at any time or place and on such notice, if any, as the judge considers
reasonable may make orders for the advancement, conduct, and hearing of
actions.
To expedite its business, the court may
make provision by rule or order for the submission and determination of motions
without oral hearing upon brief written statements of reasons in support and
opposition.
Rule
79. CONFIDENTIALITY
OF
RECORDS.
Unless otherwise provided by statute or
rule, all requests for information contained in a confidential record shall be
made in writing and shall include the reason for the request.
Rule
80. REQUEST FOR
TRANSCRIPT.
(a) Request for transcript. In those cases where trials and hearings are
closed by statute, a request for a transcript by someone other than the party
or attorney of record shall be made in writing and shall include the reason for
the request. Such requests require approval of the court. Upon the request of
any person for a transcript of testimony or other court proceeding, the
official reporter shall furnish such transcript in the regular order of cases
tried or in such order as the court administrator directs. The official reporter
shall not furnish a transcript of a confidential proceeding without the court’s
written approval, unless otherwise authorized by law. No such transcript shall
be provided unless and until transcript fees are prepaid or a deposit is
requested and is made. The provisions of the Hawaiʻi Rules of Appellate
Procedure relating to transcripts shall govern requests for transcripts for
purposes of appeal. Each request for the transcript of a confidential
proceeding shall be in writing and contain a reason for the request. If a
request is accompanied by a deposit with the clerk, the deposit shall be
further accompanied by directions to the clerk of the court to use it to pay
for the reporter’s fees when the transcript is complete. A reporter need not
commence preparation of the transcript until the required prepayment or deposit
has been made.
(b) Request for an audio or video recording.
Upon the request of any person for an
audio or video recording of the evidence or other court proceeding, the court
clerk or other designated official court personnel shall furnish such audio or
video recording in the regular order of cases tried or in such order as the
court administrator directs. The court clerk or other designated official court
personnel shall not furnish an audio or video recording of a confidential
proceeding without the court’s written approval, unless otherwise authorized by
law. No such audio or video recording shall be provided until appropriate fees
are prepaid or a deposit is made. The provisions of the Hawaiʻi Rules of
Appellate Procedure relating to transcripts shall govern requests for audio or
video recordings for purposes of appeal. Each request for the audio or video
recording of a confidential proceeding shall be in writing and contain a reason
for the request. If a request is accompanied by a deposit with the clerk, the
deposit shall be further accompanied by direction to the clerk of the court to
use it to pay for the appropriate fees when the audio or video recording is
complete. The court clerk or other designated official court personnel need not
commence preparation of the audio or video recording until the required
prepayment or deposit has been made.
(c) Stenographic report or transcript as
evidence. Whenever the testimony of
a witness at a trial or hearing which was stenographically
reported or electronically recorded is admissible in evidence at a later trial,
it may be proved by the transcript thereof duly certified by the person who
reported the testimony if reported stenographically,
or by such person as provided by law or by rule if reported electronically.
XI. MISCELLANEOUS
PROVISIONS
Rule
81. APPLICABILITY.
(a) Generally. Part A of these Rules, together with the
designated supplements, shall apply to the following proceedings in any family
court:
(1) Matrimonial
actions under HRS chapter 580, supplemented by Part B of these Rules (Rules 90
to 101);
(2) Adoption
proceedings under HRS chapter 578, supplemented by Part C of these Rules (Rules
102 to 120);
(3) Child
Protective Act proceedings under HRS chapter 587A, except that the Hawaiʻi
Electronic Filing and Service Rules shall not apply to Child Protective Act
proceedings;
(4) Uniform
Interstate Family Support Act proceedings under HRS chapter 576B;
(5) Uniform
Parentage Act proceedings under HRS chapter 584;
(6) Termination
of Parental Rights proceedings under HRS chapter 571, part VI;
(7) Involuntary
hospitalization proceedings under HRS chapter 334;
(8) Guardianship
of Person of Minors and Incapacitated Persons under HRS chapter 560, article V;
(9) Domestic
Abuse Protective Order proceedings under HRS chapter 586;
(10) Gun
Violence Protective Order proceedings under HRS chapter 134, part IV;
(11) Uniform
Child Custody Jurisdiction Enforcement Act proceedings under HRS chapter 583A;
(12) Dependent
Adult Protective Services proceedings under HRS chapter 346, part X;
(13) Name
Changes under HRS chapter 574;
(14) Appeals
from the Administrative Process for Child Support Enforcement under HRS section
576E-13;
(15) Assisted
Community Treatment proceedings under HRS chapter 334 part VIII; and
(16) Any
other civil cases over which the family court has jurisdiction.
(b) Juvenile cases. Proceedings under HRS sections 571-11(1) and
571-11(2) shall be governed by Part D of these Rules (Rules 121 to 158). The Hawaiʻi Electronic Filing and Service Rules
shall not apply to juvenile cases.
(c) Criminal cases. Cases for adults charged with the commission
of a crime coming within the jurisdiction of the family courts shall be
governed by the Hawaiʻi Rules of Penal Procedure.
(d) Reserved.
(e) Conflict. To the extent that there is any conflict
between these Rules and the Hawaiʻi Electronic Filing and Services Rules, the
Hawaiʻi Electronic Filing and Service Rules shall prevail. To the extent there is any conflict between
these Rules and the Rules of the Circuit Courts, these Rules shall prevail.
(f) Appeals. Rule 4 of the Hawaiʻi Rules of Appellate
Procedure shall apply to appeals from a family court in proceedings listed in
subdivision (a) of this Rule 81.
(g) Depositions and discovery. Chapter V of Part A of these Rules, relating
to depositions and discovery, shall apply to proceedings listed in subdivision
(a) of this Rule 81 except that in any such proceedings:
(1) the
court may by order direct that said Chapter V shall not be applicable to the
proceeding if the court for good cause finds that the application thereof would
not be feasible or would work an injustice; and
(2) if
the proceedings be ex parte any
deposition therein upon oral examination or upon written questions shall be
pursuant to motion and order of court after entry of default pursuant to Rule
55 of these Rules, rather than pursuant to notice as set forth in subdivision
(a) of Rule 30 or subdivision (a) of Rule 31 of these Rules, and in any such
case the order of court shall, for all purposes relating to said Chapter V,
take the place of said notice.
(h) Reserved.
(i) Applicability
in general. These Rules shall apply
to all actions and proceedings of a civil nature in any family court and to all
appeals to the appellate courts in all actions and proceedings of a civil
nature in any family court; and for that purpose every action or proceeding of
a civil nature in the family court shall be a “civil action” within the meaning
of Rule 2 of these Rules.
(j) Reserved.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
81.1. RESERVED.
Rule
82. JURISDICTION
AND VENUE
UNAFFECTED.
These Rules shall not be construed to
extend or limit the jurisdiction of the family courts or the venue of actions
therein.
Rule
83. RULES.
The board of family court judges may
recommend, for adoption by the supreme court, from time to time, Rules of court
governing practices and procedure in the family courts and amendments of Rules.
Copies of Rules and amendments, when promulgated by the supreme court, shall be
made available to each attorney licensed to practice law in the State. In all
cases not provided for by rule, the family courts may regulate their practice
in any manner not inconsistent with these Rules.
Rule
84. FORMS.
Judges of the family courts may
prescribe forms from time to time consistent with these Rules and law.
Rule
85. TITLE.
These Rules shall be known and cited as
the Hawaiʻi Family Court Rules (HFCR).
Rule
86. WITHDRAWAL OF
DOCUMENTS
AND EXHIBITS.
For pleadings and documents in paper
records, the clerk shall not permit any pleading or document to be taken from the
clerk’s custody except as otherwise provided in these Rules, or as ordered by
the court. Exhibits may be withdrawn on the oral or written approval of a judge. Unless otherwise ordered by the court, the
parties shall withdraw all exhibits not attached to the pleadings, and
depositions within 1 year after final judgment. If not so withdrawn, they shall
be deemed abandoned and may be disposed of by the clerk.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
87. ATTORNEYS.
(a) Withdrawal of counsel unnecessary. After entry of a judgment, order, or decree
finally determining all pending issues and after the expiration of the time for
taking an appeal which lies from such judgment, order, or decree, an attorney for
a party shall no longer be considered attorney of record. In order for the attorney to be removed as
attorney of record in JEFS, a notice of withdrawal which contains a
certification by the attorney that all requirements of this subsection (a) have
been met shall be filed. The failure to
file such a notice does not constitute an agreement by an attorney to remain
attorney of record for a party. If any
issue is specifically reserved in any judgment, order, or decree for future
determination and a hearing on that issue is scheduled, the attorneys of record
for the parties shall continue to be attorneys of record for the service of
pleadings relating to those reserved issues, but for no other purpose, until
such time as the reserved issues are resolved and until after the expiration of
the time for taking an appeal which lies from the judgment, order, or decree resulting
from the resolution of such reserved issues, unless the withdrawal is expressly
approved and allowed by the court.
(b) Court approval of withdrawal necessary.
Whenever a party is represented by an
attorney at any stage of a proceeding, such attorney may not withdraw as
counsel of record without the approval of the court.
(1) Withdrawal and substitution of counsel.
Such approval may be obtained, without
hearing, where there is a withdrawal and substitution of counsel in writing,
approved by the party. After a withdrawal and substitution of counsel is
approved and filed by the court, the withdrawing attorney shall immediately
mail a copy to the opposing party at the opposing party’s last known address if
the opposing party is not represented by an attorney and is not a JEFS User.
(2) Motion to withdraw as counsel.
(A) Such
approval may be obtained after a hearing on a motion to withdraw as counsel, where
the motion and notice of the date and time of hearing have been personally served
on the client in the same manner as stated in Rule 4 of these Rules. The attorney seeking to withdraw shall submit
a proof of personal service prior to the hearing. The motion and notice of the date and time of
hearing shall also be served on the opposing party or the opposing party’s
attorney, if any, and the attorney seeking to withdraw shall submit a
certificate of conventional service if the opposing party is not represented by
an attorney and is not a JEFS User. A hearing and notification of opposing
counsel or party, however, shall not be required for withdrawal from
representations provided under Rule 11.1 of these Rules.
(B) Where
personal service of the motion to withdraw as counsel cannot be effected on the
client, the motion and notice of the date and time of hearing shall be mailed
to the last known address of the client and the attorney seeking to withdraw
shall submit a certificate of service prior to the hearing.
(C) After
a motion to withdraw as counsel is granted and the order permitting withdrawal
of counsel is filed, the withdrawing attorney shall immediately mail a copy of
the order to the client at the client’s last known address and to the opposing
party at the opposing party’s last known address if the opposing party is not
represented by an attorney and is not a registered JEFS User. This notice
requirement however, shall not apply to withdrawals from representations
provided under Rule 11.1 of these Rules.
(Amended
August 4, 2020, effective January 1, 2021; further amended March 30, 2022,
effective April 25, 2022.)
Rule
88. RESERVED.
Rule
89. EXPEDITION OF
COURT
BUSINESS: SANCTIONS.
(a) Required notice. Attorneys shall advise the court promptly if a
case is settled. An attorney who fails to give the court such prompt advice may
be subject to such sanction as the court deems appropriate.
(b) Submission of documents, adherence to court
policy. An attorney who, without
good cause, fails to submit documents in a timely manner in accordance with
these Rules, or who fails to adhere to these Rules or applicable statutes, may
be subject to such sanction as the court deems appropriate.
(c) Effect of failure to appear or tardiness.
An attorney who, without good cause,
fails to appear or is tardy when the attorney’s case is before the court on
call, motion, pre-trial or trial or who unjustifiably fails to prepare for a
presentation to the court necessitating a continuance, may be subject to such
sanction as the court deems appropriate.
PART B. Matrimonial
or Civil Union Actions
I. COMMENCEMENT OF
ACTION: PLEADINGS
Rule
90. MATRIMONIAL
OR CIVIL
UNION ACTIONS; DOCUMENTS.
(a) Definition. A matrimonial or civil union action shall be
an action for annulment, divorce, separation or separate maintenance.
(b) Documents required. At the time of filing, the complaint or
cross-complaint shall be accompanied by such other documents as may be required
by the court.
Rule
91. RESERVED.
Rule
92. RESERVED.
II. TRIALS
Rule
93. RESERVED.
Rule
94. SETTING
CONTESTED
MATTERS FOR TRIAL.
(a) Motion to set. Upon the filing of an answer or upon the
personal appearance of an adverse party or an adverse party’s attorney, either
party may at any time file a motion to set the case for trial. Such a motion
shall be filed no later than 9 months after a complaint has been filed or
within any further period of extension granted by the court upon motion or
stipulation of the parties.
Such a motion shall contain the
following information:
(1) the
movant’s declaration that a bona-fide attempt to settle the issues in said case
has been made, that mediation has been attempted or is inappropriate for
reasons specified in said motion, and that these efforts have been
unsuccessful;
(2) and
that all necessary or proper preliminary proceedings, including all discovery
allowed by statute or rule and desired by movant have been completed by the
movant, or that there is sufficient time to complete the same before trial,
that the other party has had a reasonable opportunity to complete all
preliminary proceedings including discovery, and that the case is otherwise
ready for trial.
Such a motion shall attach the following
information:
(1) the
movant’s current income and expense and asset and debt statements,
(2) a
written statement containing a statement of facts, a description of the
movant’s position on all of the issues, and the factual and legal bases of the
movant’s positions; and
(3) such
other documents as may be required by the court.
(b) Response to Motion to Set. Respondent shall file and serve a response to
the Motion to Set no later than 30 days after receipt of the Motion to Set or
if the Motion to Set conference is scheduled within 30 days of service, then a
response to the Motion to Set shall be filed no later than 14 days after
receipt of the Motion to Set. The response shall include the same information
and attachments as the Motion to Set itself.
(c) Motion to Set conference. Upon the filing of the Motion to Set, the
court shall schedule a conference to determine whether to set the case for
trial and the pretrial deadlines associated with any trial setting. The
conference shall be attended by each party and their counsel, if any. The court
shall:
(1) Assign
a trial date, if appropriate;
(2) Continue
the conference to a future date, if appropriate; and
(3) Discuss
and require alternative dispute resolution options, if appropriate.
At the conference the court may also set
deadlines for the completion of discovery, the submission of exhibits, exhibit
lists, and witness lists, and may schedule a pre-trial conference, settlement
conferences, and calendar calls to consider all matters as may aid in the
disposition of the action.
(d) Third party practice. If a third party is joined in the action after
the filing and service of the Motion to Set, the court shall set appropriate
deadlines for the filing and service of position statements by all the parties,
including the third party. All parties asserting affirmative claims against the
third party shall file and serve (in accordance with Rule 5 of these Rules) a
position statement against the additional party in accordance with the deadline
set by the court. The position statement shall set forth the same kind of
information as required by subsection (a) of this Rule. The third party shall
file and serve (in accordance with Rule 5 of these Rules) a responsive position
statement that sets forth the same kind of information required by subsection
(b) of this Rule within the time period set by the court.
(e) Deviation in time for filing. Deviations from the time requirements for the
filing of any document under this Rule shall be allowed only by order of the
court upon good cause shown.
(f) Sanctions; non-appearance; failure to
comply. If a party (whether
represented by an attorney or not), or an attorney fails to appear at any
conference set by the court, or unjustifiably fails to comply with any
requirements enunciated in this Rule, sanctions may be imposed pursuant to Rules
37(b) and 89 of these Rules.
Rule
94.1. SETTLEMENT
CONFERENCE;
SETTLEMENT CONFERENCE
STATEMENT; CONFIDENTIAL
SETTLEMENT CONFERENCE
LETTER.
(a) Settlement conference. A settlement conference may be ordered by the
court at any time before trial. Any party may also file a request for a
settlement conference at any time prior to trial. A settlement conference shall
be subject to the following guidelines:
(1) Each
party to the action shall attend the settlement conference unless excused by
the court;
(2) For
each party represented by an attorney, that attorney shall attend the
settlement conference and shall be familiar with all aspects of the case prior
to the settlement conference;
(3) Each
party and their attorneys, if any, shall have thoroughly evaluated the case;
(4) The
judge conducting the settlement conference may, at the conclusion of said
conference, continue said conference to another time and date, and from time to
time thereafter for continued settlement negotiations if the judge has reason
to believe a settlement can thereby be effectuated;
(b) Confidential settlement conference letter.
In its discretion, the court may require
each party to deliver directly to the settlement conference judge a
confidential settlement conference letter, which shall not be filed or served
upon the other parties.
The confidential settlement conference
letter shall not be made a part of the record and confidential information
contained in the letter shall not be disclosed to the other parties without
express authority from the party submitting the letter. The court shall destroy
the confidential settlement conference letter no later than the entry of the
final judgment in the case.
The confidential settlement conference
letter shall include a description of the major issues in dispute, a forthright
evaluation of each party’s likelihood of prevailing on their positions,
counsel’s good faith evaluation of the case, and any other information
requested by the court.
(c) Sanctions. If a party (whether represented by an attorney
or not) or an attorney fail to appear at any settlement conference set by the
court, or unjustifiably fails to comply with any requirements enunciated in
this Rule, sanctions may be imposed pursuant to Rules 37(b) and 89 of these Rules.
Such sanctions may include:
(1) Ordering
a party to pay the opposing party’s reasonable expenses and attorneys’ fees;
(2) Ordering
a change in the trial date of the action;
(3) Imposing
any other sanction as may be appropriate.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
94.2. TRIAL
CALENDAR.
The court shall prepare and maintain a
trial calendar. All cases placed on the trial calendar shall be assigned to any
judge available for trial during the week the trial is set unless it is
continued for good cause.
When any case that has been set for
trial is called for a calendar call, a pre-trial conference, a settlement
conference, or trial itself after timely notice to all attorneys or parties not
represented by counsel, the court may, on its own motion or on the motion of
any party, dismiss such action or hold one party in default, as the case may
be, if any of the parties fail to appear.
Any case, whether on the trial calendar
or not, may be advanced and set for a pretrial conference or a settlement
conference upon order of the court.
Rule
94.3. PRE-TRIAL
CONFERENCE,
PRE-TRIAL DISCLOSURE AND
MARKING EXHIBITS.
(a) Disclosures and exhibits. When a pre-trial conference is held, except as
and to the extent otherwise ordered by the court:
(1) Each
party shall disclose the theory of the party’s case, including the basic facts
that the party intends to prove and the names and addresses of all witnesses
that the party intends to call.
(2) Each
party shall submit to the other party by the exchange date listed in the
pre-trial order an Exhibit List and all exhibits which are in the party’s possession
or under the party’s control which the party intends to offer in evidence at
the trial.
(3) Unless
so disclosed and exchanged, no exhibits required to be disclosed and exchanged
by paragraph (2) of this Rule shall be received in evidence at the trial over
objection unless the court finds that there was reasonable ground for failing
to disclose and exchange such exhibits prior to trial.
(4) All
exhibits required to be disclosed by paragraph (2) of this Rule, and any other
exhibits as may be requested by counsel presenting the same, shall be marked
for identification and submitted to the court no later than at calendar call
unless another deadline is listed in any pre-trial order.
(5) Each
party shall provide any other documents or disclose any other information that
the court deems necessary for trial. Any such documents or information shall be
provided in accordance with the terms ordered by the court.
(b) Effect of Pre-Trial Order. The pre-trial order shall supersede the
pleadings where there is any conflict; and shall supplement the pleadings in
all other respects.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
95. RESERVED.
III. JUDGMENTS AND ORDERS
Rule
96. RESERVED.
Rule
97. RESERVED.
IV. MISCELLANEOUS
Rule
98. JUDGMENTS
APPROVED AS TO
FORM AND CONTENT BY THE
PARTIES IN UNCONTESTED
MATRIMONIAL ACTIONS.
Divorce judgments in uncontested actions
not incorporating a separate agreement incident to divorce shall be approved as
to form and content by both parties and as to form or form and content by their
attorneys, if any. If the judgment incorporates a separate agreement incident
to divorce, then only the opposing attorney, or party if pro se, need approve
the judgment as to form or form and content.
Rule
99. RESERVED.
Rule
100. RESERVED.
Rule
101. RESERVED.
PART C. ADOPTION
I. COMMENCEMENT OF
ACTION: PLEADINGS; PARTIES; PROCESS
Rule
102. RESERVED.
Rule
103. PLEADINGS.
(a)
and (b). Reserved.
(c) Names. Proof of full legal names shall be required in
all cases, unless excused by the judge for good cause.
(1) Of petitioners. The name of the petitioner or petitioners
shall be set forth in the title of the action. Wherever names appear in the
pleadings, they shall be written in full and without initials. The name of a
married woman shall include her first or given name, her middle name, if any,
her maiden name and if she has assumed it, the surname of her husband, and the
same procedure shall be required of a widow and of a divorcee who retains the
surname of her former husband.
(2) Of individual. The title of the action shall not include the
name of the individual to be adopted but shall identify the individual only by
its sex and date of birth.
In
a nonconsent petition, when it is necessary to allege and prove certain grounds
which permit dispensing with the consent, the name of the minor child sought to
be adopted shall be included in the allegations but not in the title.
(d) Signing of petition. Every petition for adoption shall be signed by
the petitioner or petitioners and may be executed under penalty of perjury.
(e) More than one individual in a petition.
The filing of one petition for adoption
of more than one individual shall be allowed only when the individuals who are
born in or out of wedlock are full siblings and all of the individuals are
being adopted by the same petitioner or petitioners. Separate petitions shall
be filed when the individuals are born out of wedlock to the same mother but
different fathers.
(f)
- (h). Reserved.
Rule
104. RESERVED.
Rule
105. RESERVED.
II. HEARING
Rule
106. HEARING.
(a) Who must attend. The petitioner or petitioners, any legal
parent married to a petitioner, and any individual age 10 or over who is the
subject of the adoption proceedings shall personally appear at the hearing,
unless excused by the court. Where the petitioner is related by blood to the child
sought to be adopted, a natural and legal parent or the legal adoptive parent
or parents who consented to the adoption shall personally appear at the hearing
if such person is residing within the circuit of the court hearing the
petition, unless excused by the court.
(b) Procedures at the hearing.
(1) When
a petitioner does not know the identity of one or both of the child’s parents,
the petitioner shall be excluded from that portion of the hearing at which is
presented the evidence concerning the child and the child’s parentage and
background. After submission of such evidence, the petitioners may then be
brought before the court to testify on the petitioners’ background and
suitability to be the adoptive parents for the child.
(2) When
all petitioners know the identity of the child’s parents, their background and
reasons for giving the child up for adoption, all evidence may be submitted to
the court at the same hearing.
Rule
107. DEFAULT.
When a respondent nonconsenting parent,
having been duly served with notice of time and place of hearing, fails to
answer or otherwise defend, and that fact is made to appear by affidavit or
declaration or otherwise, the court may proceed with the hearing without
further notice to the respondent.
Rule
108. CONTESTED
HEARING; MOTION
TO SET.
Upon the filing of an answer, either the
petitioners or the respondent nonconsenting parent may at any time file a
motion to set the matter for trial. On the return date of the motion, both
sides shall attend, and in the event that only one side appears, that appearing
party shall notify the other side of the setting, by letter, with a copy for
the court file, and the party who did not appear (in person or by attorney)
will be presumed to have agreed to that setting.
Rule
109. RESERVED.
Rule
110. FINDINGS
OF THE COURT.
Notwithstanding Rule 52 of these Rules,
following the hearing, written findings of fact and conclusions of law that
shall be prepared by the court or by the attorney for the petitioner or
petitioners shall be entered in each case.
Rule
111. RESERVED.
Rule
112. RESPONSIBILITY
OF
ATTORNEY AFTER ENTRY OF
DECREE.
(a) To obtain new birth certificate for
individual. It shall be the
responsibility of the attorney to assist the petitioners in obtaining the
amended birth certificate for the individual evidencing the legal relationship
of the individual to the adoptive parents.
(b) To distribute copies. The court may authorize, for immigration,
naturalization, allotment and other valid purposes, the issuance of copies of
findings of fact and conclusions of law and decrees which shall be given to the
attorney for forwarding to the adoptive parents. Copies authorized for filing
in termination proceedings or with the department of human services or other
agency entitled thereto shall be forwarded by the clerk of the court to the
attorney unless otherwise ordered.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
113. RESERVED.
III. MISCELLANEOUS
Rule
114. DISMISSAL
OF ACTIONS.
Notwithstanding Rule 41 of these Rules,
an action shall not be dismissed at the petitioner’s instance save upon order
of the court based on a motion and an affidavit or declaration in support of
the motion signed by the petitioner and upon such conditions that the court
deems proper. Upon the entry of an order of dismissal, the petitioner shall conventionally
serve a copy of the order of dismissal on any parent, other than the spouse of
the petitioner, who is representing themselves and is not a registered JEFS
User unless service is dispensed with by the court.
(Amended
March 30, 2022, effective April 25, 2022.)
Rule
115. DISPOSITION
OF MINOR CHILD
ON DISMISSAL, WITHDRAWAL
OR DENIAL OF PETITION.
Upon the dismissal or withdrawal or
denial of any petition for adoption, the court may make appropriate temporary
orders concerning the care, custody and control of a minor child involved and
may refer the minor child to the department of human services or to another
appropriate agency or officer for action as in the case of a minor child
subject to HRS sections 571-11(1), (2), and (9).
Rule
116. RESERVED.
Rule
117. RESERVED.
Rule 118. AFFIDAVITS
OR
DECLARATIONS REQUIRED IN
DOCTOR AND OTHER THIRD
PERSON PLACEMENT CASES,
AND WHEN MOTHER’S
AFFIDAVIT OR DECLARATION
IS REQUIRED.
(a) Attorney’s
affidavit or declaration of birth background. In every adoption where placement through a
doctor or other qualified non-agency person, is made of a child with proposed
adoptive parents to whom the child bears no relationship, the attorney for the
petitioner or petitioners shall, before or at the time of the hearing of the
petition, file an Affidavit or Declaration of Birth Background with the court
containing in substance the following information:
(1) the name and age of the natural mother and
the name and age of the natural father, if known;
(2) the name of the child at birth and the
place and date of birth;
(3) the marital status of the natural mother at
the time of the birth of the child;
(4) the racial backgrounds, physical
descriptions, educational backgrounds, occupations, religion and health
backgrounds of the natural mother and the natural father;
(5) special requests of either parent relating
to placement, if any;
(6) whether or not counseling was provided
either parent or reason none was obtained;
(7) the total number of times the attorney saw
the natural mother and information regarding the consistency of her indicated
desire to place the child in the manner proposed; and
(8) if the natural mother is an unmarried
minor, the name and relationship of the person endorsing her consent, if an
endorsement is made.
(b) Natural
mother’s affidavit or declaration of relationship with natural father. In every adoption in which the child sought to
be adopted is born out of wedlock where the natural father who has notice of
the birth or expected birth of the child has not given his written consent, in
order for the court to determine whether the consent of the natural father is
not required or may be dispensed with or whether or not notice of the adoption
proceeding must be given to the natural father, the natural mother shall,
before the hearing, sign an affidavit or declaration containing the following
information regarding her relationship with the natural father:
(1) whether or not the natural father knew
about or was told of the pregnancy and/or the birth of the child;
(2) whether or not the natural mother and the
natural father cohabited with each other before or after the birth of the child
and, if so, for what duration;
(3) whether or not the natural father
contributed toward the hospital and medical expenses in connection with the
birth of the child and, if so, how much and, if he did not, who did pay such
expenses;
(4) whether or not the natural father has
contributed toward the support of the child and, if so, to what extent and, if
not, who did support said child;
(5) whether or not the natural mother filed any
parentage action against the alleged natural father and, if so, whether or not
the alleged natural father was adjudicated to be the natural father of the
child; and
(6) whether or not the name of father appears
on the child’s birth certificate. The affidavit or declaration shall be
presented to the judge for review prior to the filing of the petition.
(c) Foreign
adoption placement agency’s affidavit or declaration. In an adoption where placement is made of a
child through a foreign adoption agency, and the mother’s affidavit or
declaration, as required by (b) of this Rule, is not obtainable, the foreign
adoption agency, which placed the child, may submit an affidavit or declaration
containing the following:
(1) information the agency possesses relating
to the relationship between the natural mother and the natural father;
(2) how the agency possesses this information;
(3) whether or not the natural father ever
attempted to contact the child while the child was in the custody of the
agency; and
(4) the attempts made by the agency to contact
the natural mother to secure the affidavit or declaration required by (b) of
this Rule.
The
local adoption agency which placed the child with the adoptive parents, in
conjunction with the foreign adoption agency, shall submit the affidavit or
declaration to the judge for review, together with its report and documents
relating to the child to be adopted.
(Amended March 30, 2022, effective April 25,
2022.)
Rule
119. RESERVED.
Rule
120. RESERVED.
PART D. JUVENILE PROCEEDINGS
I. GENERAL PROVISIONS
Rule
121. PURPOSE
AND SCOPE;
DEFINITIONS.
(a) Purpose and scope. The purpose of these Rules is to implement the
provisions of the Hawaiʻi Family Court Act, Chapter 571, Hawaiʻi Revised
Statutes, relating to cases coming under sections 571-11(1) and (2).
(b) Definitions. In addition to statutory definitions set forth
in HRS section 571-2 as used in these Rules, unless the context requires
another meaning:
(1) “Adjudication
hearing” means a hearing for the purpose of determining whether the allegations
of a petition are admitted or established under the provisions of HRS chapter
571, and these Rules.
(2) “Complaint”
means an oral or written report to the court concerning a child who is alleged
to come within the provisions of HRS section 571-11(1) or (2).
(3) “Custodian”
means a parent or other person or an agency having or legally exercising the
physical custody of a child.
(4) “Disposition
hearing” means a hearing for the purpose of determining what shall be done on
behalf of a child who has been adjudged to come within the provisions of HRS section
571-11(1) or (2).
(5) “Parent”
means a legal parent of a child who is the legal subject of a court proceeding.
If the child has no legal parents but does have a legally appointed guardian of
the child’s person, such legal guardian shall be deemed to be the parent for
the purpose of these Rules unless the court shall have appointed a guardian ad
litem for the child pursuant to these Rules in which event the guardian ad
litem shall be deemed the child’s parent.
(6) “Party”
means a child who is the subject of a court proceeding; or the parent,
guardian, or legal custodian of such child; or any person or agency denominated
by the statute or the court as a party in a given case.
(7) “Petition”
means the legal document containing the allegations upon which the court’s
jurisdiction is based.
(8) “Transfer
hearing” or “Waiver hearing” means a hearing for the purpose of determining
whether a person should be transferred for trial as an adult for a felony
offense allegedly committed during the person’s minority.
II. INTAKE
Rule
122. RECEPTION
OF COMPLAINT.
Complaints shall be processed in
accordance with HRS section 571-21. If the court’s staff refuses, after a
demand by the complainant, to recommend the filing of a petition, the
complainant shall be informed of the reasons for the refusal of the complaint
and shall be advised that the complainant may submit such complaint, in
writing, to a judge of the court, who may order the filing of a petition or may
affirm the action of the court’s staff.
Rule
123. INTAKE
PROCEDURE.
If the alleged facts recited in the
complaint appear to be legally sufficient for the filing of a petition, and if
they are serious enough to warrant further investigation by the court, the
court may request the child and the person or persons who have the child’s
custody to attend an intake interview.
The court officer may schedule a
subsequent interview with a member of the court staff in an attempt to adjust
the matter informally without the filing of a petition. At any time during the
intake process, the court officer may terminate the effort at adjustment and
recommend the filing of a petition.
If the child denies the petition, all
information pertaining to the allegations contained in the petition obtained
during the intake interviews shall be inadmissible at the adjudication hearing.
Said information shall be considered only in the disposition of an adjudicated
petition.
Rule
124. INFORMAL
ADJUSTMENT
PROCEDURE.
The court officer shall inform the
parties that informal adjustment will not constitute an adjudication of
jurisdiction and that if they wish the facts to be determined by the court at a
hearing, no effort will be made to arrive at informal adjustment. If the court
decides to continue the intake process to attempt informal adjustment of the
complaint, plans for continuing contact with the child by the probation
department without the filing of a petition shall be discussed. The parties
shall be informed that information obtained from them by the probation
department during the intake period will not be admissible in evidence against
them at the adjudication hearing, that they need not continue to participate in
the adjustment process; and that the effort at informal adjustment shall not
prevent the filing of a petition at a future date. However, no such petition
shall be filed if 90 days have elapsed after the complaint has been received by
the court unless prior thereto an extension of the time for filing has been
approved by a judge.
The parties shall be informed, however,
that an informal adjustment if agreed upon is tantamount to an admission of the
child’s complicity in the commission of the offense and that this information
may be considered at a disposition hearing for any subsequently adjudicated
offense.
III. PETITION
Rule
125. CONTENTS
OF PETITION.
The petition shall set forth, in plain
language and with reasonable particularity, the date, place, and manner of the
acts alleged and the law or standard of conduct allegedly violated.
Rule
126. RESPONSIVE
PLEADING OR
MOTION.
A party may file a written pleading or
motion supported by affidavit or declaration to the allegations of the petition
before the hearing. Such pleading shall be made available to the other parties
at least 48 hours prior to the hearing.
Rule
127. AMENDMENT
OF PETITION.
A petition may be amended by order of
the court at any time before an adjudication, provided that in cases alleging
law violations the charge shall not be enlarged thereby, and provided further
that the court shall grant the parties such additional time to prepare as may
be required to insure a full and fair hearing.
IV. TRANSFER TO
CRIMINAL COURT
Rule
128. RESERVED.
Rule
129. TRANSFER
OR WAIVER
HEARING.
The person shall be represented by
counsel at any transfer or waiver hearing.
If,
after the transfer or waiver hearing, the court orders the case to be
transferred to criminal court, it shall make specific findings supporting its
decision.
V. SHELTER AND
DETENTION
Rule
130. ADMISSION
TO SHELTER OR
DETENTION.
Admission to a shelter or detention
facility shall be in accordance with HRS section 571-31.
Rule
131. NOTICE
OF ADMISSION TO
SHELTER OR DETENTION.
The person in charge of the facility
shall notify any child admitted to shelter or detention of the reasons for the
action and of the child’s rights under Rules 154 and 155 of these Rules. That
person shall also notify the child that a hearing will be held by the court
concerning the necessity for shelter care or detention.
The court, parents, guardian, or
custodian of the child shall be immediately notified that the child has been
admitted to such shelter or detention facility. They shall be informed that
there will be a prompt hearing by the court regarding release or detention.
Rule
132. TELEPHONING
AND
VISITATION.
A child may telephone the child’s
parents, guardian, custodian, and attorney immediately after being admitted to
a shelter or detention facility.
Upon being admitted to a shelter or
detention facility, a child may be visited in private at any time by the
child’s attorney, parents, guardian, or custodian. After the initial visit, the
child may be visited by them at reasonable visiting hours.
Rule
133. CONTINUED
DETENTION.
Continued detention of the child shall
be in accordance with HRS section 571-32(b).
Rule
134. PREHEARING
PROCEDURE.
Upon receipt of notice of admission by
the court, a prompt investigation shall be made of a child who has not been
released by the director of detention services or other person with custody of
the child. The investigation shall be made by a member of the court’s staff who
shall prepare a report of the investigation in writing to include
(a) whether
or not the child requires care away from the child’s home and the reason
therefor;
(b) if
so, whether or not the child requires secure physical restriction either for
the child’s own welfare or for the safety of the community;
(c) what
agencies or individuals other than the court and its staff are currently active
in treatment or consultation with the child or the child’s family;
(d) what
efforts have been made to notify such agencies or individuals of the detention
hearing; and
(e) what
alternatives are available other than continued detention.
In the event that the child is within
the court’s jurisdiction under the provisions of HRS section 571-11(1) or (2)
as the result of a previous adjudication, the probation officer assigned to the
case, or the probation officer’s supervisor, shall be notified of the child’s
detention, and shall be consulted prior to the child’s release before the
detention hearing. Whenever possible, the probation officer, or the probation
officer’s substitute, shall be present at the initial detention hearing.
Rule
135. DETENTION
HEARING.
At the detention hearing, the court may
admit any testimony and other evidence relevant to the necessity for detaining
the child, including the report of investigation required by Rule 134 of these Rules.
Any written reports or social records made available to the court at the
hearing shall be made available to the parties at or before the hearing,
provided that the judge may withhold such material from the child if the judge
reasonably believes that to do so would be in the best interest of the child. A
copy of the petition, if one has been filed, but not yet served, shall be given
to each of the parties at or before the hearing.
A detention hearing may be held without
the presence of the child’s parents, guardian or custodian if they cannot be
located or refuse or neglect to attend.
At the conclusion of the hearing, the
court shall order the child released from shelter care or detention, or it
shall issue an order authorizing either shelter care or detention for up to
seven days, subject to extension pursuant to Rule 136 of these Rules. If the
child is not released and in the event that an adjudication hearing is to be
scheduled, a petition shall be filed within seven days of the initial detention
hearing, unless an extension of time is authorized by the judge.
Rule
136. REVIEW
OF DETENTION
ORDERS.
If
a child held in shelter care or detention by court order has not been released
after a detention hearing or a review pursuant to this rule or has not appeared
at an adjudication hearing within eight days, the court shall review the
child’s case, either in a review hearing or by review of the child’s file at
least once every 8 days.
VI. THE ADJUDICATION
HEARING
Rule
137. RESERVED.
Rule
138. SUMMONS.
The parties shall be entitled to the
issuance of compulsory process for the attendance of witnesses on their behalf
or on behalf of the child.
Rule
139. CONTENTS
OF SUMMONS.
If it appears from the petition and such
investigation as has been made that the child is in such condition or
surroundings that the child’s welfare requires that the child be taken into
custody, the court may order, by endorsement upon the summons, that the person
serving the summons take the child into custody. A summons so endorsed shall be
served by a police officer, a probation officer, or any other person therein
authorized to take the child into custody.
Rule
140. ORDER
OF PROCEEDINGS.
Before taking testimony, the court shall
explain to the child and the child’s parents their rights as set forth in Rules
154 and 155 of these Rules.
The court may then inquire of the child
in a case brought under HRS section 571-11(1) or (2) whether the child admits
or denies all or some of the allegations in the petition. Failure or refusal of
the child to admit the allegations shall be deemed a denial of them.
If any or all of the allegations of the
petition admitted by the child are sufficient to give the court jurisdiction,
the court may take testimony to corroborate the admission or otherwise to
establish the allegations of the petition. If any of the allegations of the
petition required to be established to give the court jurisdiction are denied
by the child, the court may proceed to hear such evidence as is presented in
support of such allegations and of the prayer of the petition. The court may
order that any allegations denied by the child and which are not supported by
adequate proof or not required to be heard be stricken from the petition. If
the court is satisfied after consideration of all of the facts and
circumstances presented that the prayer of the petition should be granted, it
may then proceed with the adjudication.
Rule
141. RESERVED.
Rule
142. EXTRA-JUDICIAL
STATEMENTS.
No extra-judicial statement by the child
made as a result of a custodial interrogation by a police officer shall be
admitted into evidence absent a showing that required warnings of the child’s
constitutional rights were given the child in a meaningful way; that the child
was informed of the child’s right to have the child’s parents or other adult
present during any custodial interview; that any waiver of said rights was
express and made with understanding; and that the statement itself was made
voluntarily and without coercion or suggestion. In determining the
admissibility of an extra-judicial statement, attention shall be given to the
totality of circumstances in giving the warnings and obtaining the statement,
including an examination into compliance with the provisions of HRS section
571-31.
Rule
143. STANDARD
OF PROOF.
Except in cases arising under the
court’s jurisdiction through HRS section 571-11(1), the facts alleged in the
petition shall be proved by a preponderance of the evidence.
In
law violation cases arising under HRS section 571-11(1) all material facts
shall be proved beyond a reasonable doubt.
Rule
144. FINDINGS.
If, upon the conclusion of the
adjudication hearing, the court determines that the material allegations of the
petition are established, or that a lesser included offense has been proved, it
may enter an order granting the prayer of the petition.
If, after such determination and action,
the disposition hearing is not to be held immediately and the child is in
detention or shelter care, the court shall determine whether the child shall be
released or continued in detention or shelter care.
Rule
145. RESERVED.
Rule
146. RESERVED.
Rule
147. RESERVED.
Rule
148. DISMISSAL
OF PETITION.
The court may at any time dismiss a
petition and thus terminate the proceedings relating to the child if such
action is in the interest of justice and the welfare of the child.
VII. THE DISPOSITION
HEARING
Rule
149. SOCIAL
STUDY.
A social study, consisting of an
investigation and evaluation of the child, shall be prepared or procured by the
probation department in all proceedings under the provisions of HRS section
571-11(1) or (2), unless this requirement is waived by the court.
A social study shall not be commenced
before the adjudication hearing in denial cases without the consent of the
parties. If the adjudicating officer wishes additional information not
reflected in the study, the hearing may be postponed or continued for a
reasonable time.
Rule
150. CHILDREN
UNDER COURT
JURISDICTION: INITIATION OF
REVIEW PROCEEDINGS.
When it appears to the court’s staff
that, because of a violation of law or of a supervisory order, a child under
the court’s jurisdiction should be removed from the child’s home or that the
child’s probation should be revoked, or special conditions imposed, it shall
file a motion for review and change of decree. Such motion shall include a
statement of the facts and shall set forth the reasons for the proposed review
and change.
Upon receipt of the motion, the court
may order a hearing to determine the allegations of the motion.
The court may modify a condition of
protective supervision or probation included in its decree. Such modification
shall be given to the parties in writing, and the parties may petition the
court to hold a hearing on the advisability of the modification.
VIII. MISCELLANEOUS
Rule
151. JUDGMENT.
Upon the termination of the disposition
hearing, the court shall enter an appropriate judgment of disposition.
Rule
152. PRESENCE
AND EXCLUSION OF
PARTIES.
Except in those hearings in which the
child’s behavior is not at issue, the child and a parent should be present at
the commencement of hearings. If the child’s behavior is not at issue, the
hearing may, in the court’s discretion, begin without the child’s presence. If
a continuance for the purpose of securing the attendance of a party or for any
other reason is advisable to ensure a fair hearing, it should be granted. If
for some reason found valid by the court no parent can be present, the court
may appoint a guardian ad litem prior to the hearing.
Rule
153. NOTICE
TO CHILDREN.
Whenever these Rules authorize notices
to be given to a “child”, the word shall be construed to refer to a child 12
years of age or more or as defined by statute. If a child is less than 12 years
old, the child's legal parent or parents, custodian or guardian shall receive the
notices authorized by these Rules. If the interests of the child and those of
the parents appear to conflict, or if neither parent is available, the court
shall appoint a guardian ad litem, or counsel, or both, to protect the
interests of the child. Such a guardian or counsel shall receive the notices
authorized by these Rules.
Rule
154. RIGHT
TO REMAIN SILENT.
A child who is the subject of a court
proceeding because of the child’s alleged violation of law under HRS section
571-11(1), or because of the child’s alleged violation of a required standard
of behavior under HRS section 571-48, or who is to be interrogated for the
purpose of deciding whether to commence a court proceeding, may remain silent
as of right through any or all questions posed during such proceedings or
interrogations, and shall be so advised.
Rule
155. RIGHT
TO COUNSEL.
The parties may be represented by
counsel retained by them in all proceedings.
In all proceedings under HRS sections
571-11(1) and (2), the court may appoint counsel for the child in any situation
in which it deems advisable.
IX. OTHER PROCEDURES
AND REQUIREMENTS
Rule
156. RESERVED.
Rule
157. COURT
DISPOSITIONS
REPORTED ON JUVENILE
INFORMATION REPORT.
The “final violation” on the juvenile
information report shall identify the charge against the child and shall cite
the section, or law, or ordinance which the child is alleged to have violated
or attempted to violate.
The adjudication made by the court shall
involve only the “final violation” charged by the police, unless the judge at
the adjudication shall determine that a lesser or related offense was
committed.
The disposition and the court status of
the child shall be reported to the police in a manner to be determined by the
Family Court. In traffic violation cases, an action by the court affecting the
child’s privilege to drive shall be indicated by license suspended, restricted
or revoked.
Rule
158. RESERVED.
Form
1. Agreement and Consent to Limited
Representation
Form
1-A. Notice of Limited Appearance
Form
1-B. Notice of Withdrawal of Limited
Appearance
Form
1-C. Objection to Withdrawal of Limited
Appearance
Form 1. Agreement and Consent to Limited
Representation.
Agreement and Consent
to Limited Representation
In order to help you with your
legal needs, you, ,
the client (“Client”),
and
the attorney (“Attorney”), agree that Attorney
will provide limited representation to help you with a specific legal matter
for a short time or for a particular purpose.
Attorney
must act in your best interest and give you competent help. It is important
that you be aware, however, that even after Attorney and you agree that
Attorney will provide limited help:
·
Attorney
DOES NOT HAVE TO GIVE MORE HELP in this limited representation than Attorney
and you have agreed upon; and
·
Attorney
DOES NOT HAVE TO HELP WITH ANY OTHER PART of your legal matter.
In
performing the limited legal services, Attorney:
·
Is
not promising any particular outcome; and
·
Is
relying entirely on your disclosure of facts and will not make any independent
investigation unless such an investigation is expressly agreed to in writing in
this document.
---------------
I, the Attorney, agree to help you
by performing the limited services listed below and no other service, unless we
revise this agreement in writing.
(Initial
each applicable section)
Preparation
of Pleadings and Documents: Draft pleadings, motions and other documents.
(If I am not appearing in court on your behalf, the pleadings, motions and
other documents will conspicuously display the following statement: “This
document was prepared with the assistance of an attorney.”)
(Optional) List of documents:
Court
Appearance: I will appear in court for the limited purpose of:
Discovery:
Perform discovery by interrogatories, depositions, production of documents
and/or request for admissions.
Settlement:
I will appear on your behalf to negotiate a settlement (i.e. mediation,
settlement conference, etc.)
Other:
Page 1 of 3
Attorney will charge to Client the
following costs:
Attorney will charge to Client the
following fee for the limited legal representation:
CLIENT’S CONSENT
I have read this Agreement and
Consent to Limited Representation and I understand it. I agree that the legal
services listed above are the ONLY legal services to be provided by Attorney. I
understand and agree that Attorney who is helping me with these services is not
my attorney for any other purpose and does not have to give me more legal help.
I agree to provide my cooperation to Attorney, including providing Attorney
with sufficient information to responsibly provide the limited assistance I am
seeking, and agree that failure to provide such cooperation may serve as a
basis for Attorney to withdraw from this limited representation. I also
understand Attorney will stop helping me when the services listed above have
been completed. I have been informed of, and Attorney has explained to me, the
material risks of and reasonably available alternatives to this proposed
limited representation.
I understand that when the legal
services listed above have been completed, Attorney may file a "Notice of
Withdrawal of Limited Appearance" and must give me notice. I further
understand that if I object to Attorney's withdrawal, I will have 14 days from
the filing of this notice to file an "Objection to Notice of Withdrawal of
Limited Appearance" in compliance with Rule 11.1(b) of the Hawaiʻi Family
Court Rules. Attorney may also file a motion to withdraw as counsel, in which
case Attorney must provide me with notice to give me the opportunity to
respond.
I understand that this Agreement
and Consent to Limited Representation may be filed with the court “in camera,”
which means that it can only be viewed by the court.
In exchange for Attorney’s limited
representation, I agree to pay Attorney’s fees and costs described above.
Signature of Client:
Printed name of Client:
The address I give below is my
permanent address where I can be reached:
Client address:
Phone number: FAX:
Message phone:
Name of individual with whom
messages may be left:
Email address:
Page 2 of 3
Attorney has reviewed this
Agreement and agrees to the terms.
Date:
[Attorney’s signature]
[Attorney’s printed name]
Page 3 of 3
Form 1-A. Notice of Limited Appearance.
(FILING PARTY)
Name & Attorney Number
Mailing Address
Phone Number
Email Address
Representing
______________________________
[ ] Plaintiff/Petitioner [ ]
Defendant/Respondent
IN THE FAMILY COURT OF THE CIRCUIT
STATE OF HAWAIʻI
) CIVIL NO.
, )
)
Plaintiff/Petitioner, ) NOTICE
OF LIMITED APPEARANCE
)
vs. )
)
, )
)
Defendant/Respondent. )
) JUDGE:
NOTICE OF LIMITED APPEARANCE
Attorney
(“Attorney”) enters a Notice of Limited
Appearance for
[ ]
Plaintiff/Petitioner [ ]
Defendant/Respondent, pursuant to Rule 11.1 of the Hawaiʻi Family Court Rules
(“HFCR”).
1. Attorney’s appearance in this matter
shall be limited to the following matter(s):
[
]
[
]
[
]
[
]
[
]
Page 1 of 3
2. A copy of the “Agreement and Consent to
Limited Representation” or a substantially similar document between Attorney
and Client may be submitted in camera
to the court in compliance with Rule 9 of the Hawaiʻi Court Records Rules.
3. Attorney is the attorney of record and
available for service of process in accordance with HFCR Rules 4 and 5 for all
matters related to paragraph #1 above.
4. Attorney hereby notifies this court
that Client can be contacted as follows:
Name:
Address:
Telephone:
FAX:
Email:
5. The attorney for opposing party [ ] may [ ] may not contact Client regarding matters not
listed in paragraph #1 above without first consulting Attorney.
6. To terminate a limited scope
representation either a “Notice of Withdrawal of Limited Appearance” or a
motion to withdraw as counsel may be filed pursuant to HFCR Rule 11.1(b).
Client shall be provided with notice and an opportunity to object.
7. This accurately sets forth the scope of
Attorney’s limited representation.
Date Signature
of Attorney
Page 2 of 3
I have read and approve this
notice:
Date Signature
of Client
The ORIGINAL of the foregoing is
filed with the court.
COPIES of the foregoing were
mailed/delivered this day of 20
, to:
The
Honorable [can be
presiding judge].
By:
Attorney
for:
Page 3 of 3
Form 1-B. Notice of Withdrawal of Limited
Appearance.
(FILING PARTY)
Name & Attorney Number
Mailing Address
Phone Number
Email Address
Representing
______________________________
[ ] Plaintiff/Petitioner [ ]
Defendant/Respondent
IN THE FAMILY COURT OF THE CIRCUIT
STATE OF HAWAIʻI
) CIVIL NO.
, )
)
Plaintiff/Petitioner, ) NOTICE
OF WITHDRAWAL OF
) LIMITED APPEARANCE;
vs. ) CERTIFICATE OF SERVICE
)
, )
)
Defendant/Respondent. )
) JUDGE:
NOTICE OF WITHDRAWAL OF LIMITED
APPEARANCE
Attorney
(“Attorney”) hereby files notice of Attorney’s
withdrawal of limited appearance for Client (“Client”) in the above-captioned matter. Client has14 days from the filing of this
notice to file an “Objection to the Withdrawal of Limited Appearance” pursuant
to Rule 11.1(b)(4) of the Hawaiʻi Family Court Rules.
DATED:
,
Hawaiʻi, .
Attorney
OPTIONAL: Client consents to this
withdrawal:
[Signature
of Client]
[attach proof of service upon the
client here]
Form 1-C. Objection to Withdrawal of Limited
Appearance.
(FILING PARTY)
Name & Attorney Number
Mailing Address
Phone Number
Email Address
Representing
______________________________
[ ] Plaintiff/Petitioner [ ]
Defendant/Respondent
IN THE FAMILY COURT OF THE CIRCUIT
STATE OF HAWAIʻI
) CIVIL NO.
, )
)
Plaintiff/Petitioner, ) OBJECTION
TO WITHDRAWAL OF
) LIMITED APPEARANCE;
vs. ) CERTIFICATE OF SERVICE
)
, )
)
Defendant/Respondent. )
) JUDGE:
OBJECTION TO WITHDRAWAL OF LIMITED
APPEARANCE
Pursuant
to Rule 11.1(b)(4) of the Hawaiʻi Family Court Rules, Client _________________________
_________________________________ (“Client”) hereby objects to the Notice of
Withdrawal of Limited Appearance of Attorney ______________________________
(“Attorney”) filed on
____________________, because
____________________________________________________________
________________________________________________________________________________________.
DATED:
,
Hawaiʻi, .
Client
A hearing on this matter shall be
held on ,
in Courtroom , at
a.m./p.m.
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