                                                       Electronically Filed
                                                       Supreme Court
                                                       SCPW-13-0000038
                                                       06-MAR-2013
                                                       08:43 AM


                         SCPW-13-0000038

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


            ANTOINETTE SMITH, Petitioner-Respondent,

                               vs.

 THE HONORABLE KEITH E. TANAKA, Judge of the Family Court of the
       Second Circuit of the State of Hawai#i, Respondent,

                               and

  KENT SMITH, PAULA SMITH, TIFFANY SMITH and ALEXANDRIA HOECK,
                    Respondents-Petitioners.


                       ORIGINAL PROCEEDING

 ORDER DENYING PETITION FOR WRIT OF MANDAMUS AND/OR PROHIBITION
(By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)

          On January 22, 2013, petitioner Antoinette Smith filed

a petition for a writ of mandamus and/or prohibition seeking an

order directing the respondent judge to dismiss the petition for

third-party visitation filed in FC-M No. 12-1-0146 on the grounds

that the family court lacks subject matter jurisdiction and

Hawai#i Revised Statutes § 571-46(a)(7) is unconstitutional.

Petitioner also seeks an order staying the family court

proceedings pending disposition of this original proceeding.
           A writ of mandamus is an extraordinary remedy that will

not issue unless the petitioner demonstrates a clear and

indisputable right to relief and a lack of alternative means to

redress adequately the alleged wrong or obtain the requested

action.   Kema v. Gaddis, 91 Hawai#i 200, 204, 982 P.2d 334, 338

(1999).   Such writs are not intended to supercede the legal

discretionary authority of the lower courts, nor are they

intended to serve as legal remedies in lieu of normal appellate

procedures.   Id.   Where a court has discretion to act, mandamus

will not lie to interfere with or control the exercise of that

discretion, even when the judge has acted erroneously, unless the

judge has exceeded his or her jurisdiction, has committed a

flagrant and manifest abuse of discretion, or has refused to act

on a subject properly before the court under circumstances in

which he or she has a legal duty to act.   Id. at 204-05, 982 P.2d

at 338-39.

           Similarly, a writ of prohibition “is an extraordinary

remedy the object of which is not to cure a mere legal error or

to serve as a substitute for appeal, but to restrain a judge of

an inferior court from acting beyond or in excess of his

jurisdiction.”   Honolulu Adv., Inc. v. Takao, 59 Haw. 237, 241,

580 P.2d 58, 62 (1978).

           Upon consideration of the petition, the supporting

documents, and the record, it appears that petitioner can seek


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relief by way of an appropriate appeal.   Moreover, petitioner

fails to demonstrate that the respondent judge exceeded his

jurisdiction, committed a flagrant and manifest abuse of

discretion, or refused to act on a subject properly before him

under circumstances in which he has a legal duty to act

sufficient to fall within the scope of mandamus and/or

prohibition relief.   Accordingly,

          IT IS HEREBY ORDERED that the petition for a writ of

mandamus and/or prohibition is denied.

          DATED:   Honolulu, Hawai#i, March 6, 2013.

                               /s/ Mark E. Recktenwald

                               /s/ Paula A. Nakayama

                               /s/ Simeon R. Acoba, Jr.

                               /s/ Sabrina S. McKenna

                               /s/ Richard W. Pollack




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