  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   09-APR-2020
                                                   11:10 AM
                            NO. CAAP-XX-XXXXXXX


                  IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I

    MICHELLE MONTGOMERY and on behalf of RYDER MONTGOMERY and
           BRODY MONTGOMERY, Petitioners-Appellees, v.
                 VAN CORUM, Respondent-Appellant


          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                           HONOLULU DIVISION
                     (Civil Case No. 1SS16-1-0376)


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

          Respondent-Appellant Van Corum (Corum), appeals from
the July 12, 2016 Injunction Against Harassment (Injunction)
entered by the District Court of the First Circuit (District
Court).1
          On appeal, Corum asks that we vacate the Injunction,
contending that the District Court erred when it determined that
he had no legitimate purpose when he videotaped Petitioner-
Appellee Michelle Montgomery (Montgomery) and her two minor
sons.2
          After reviewing his point on appeal, Corum's
arguments,3 the record on appeal, and relevant legal authorities,
we resolve Corum's point of error as follows and affirm.



      1
             The Honorable Melanie May presided.
      2
            Montgomery brought the instant Petition for Injunction in her own
behalf and on behalf of her minor sons, aged two and five.
      3
             No Answering Brief was filed by Montgomery.
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

          Montgomery and her extended family4 have had a
contentious relationship with Corum and his wife, Ann K. Corum.
Both families have petitioned for injunctions against the other
and, on at least one occasion, pursued criminal charges against a
member of the other family. Most, if not all of the incidents
described by testimony in the instant case, occurred on the
grounds of the condominium apartment complex in which both
families live. The Corums live next door to the senior
Montgomerys. Montgomery and her immediate family live in a
separate unit on the other side of the complex.
          In her Petition, brought under Hawai#i Revised Statutes
(HRS) § 604-10.5 (2012),5 Montgomery alleged, among other things,



      4
            Montgomery and her husband, Sam James Montgomery, have two sons,
on whose behalf Montgomery filed her April 19, 2016 Petition for Ex Parte
Temporary Restraining Order and For Injunction Against Harassment (Petition).
They live in a separate unit in the same apartment complex as her in-laws, Sam
Webster Montgomery and Linda Montgomery.
      5
            HRS § 604-10.5 (2012) gives the district courts of this state,
the power to enjoin and temporarily restrain harassment. It states, in
relevant part, (emphasis added):
                  § 604-10.5 Power to enjoin and temporarily restrain
            harassment. (a) For the purposes of this section:

                  "Course of conduct" means a pattern of conduct
            composed of a series of acts over any period of time
            evidencing a continuity of purpose.

                  "Harassment" means:

                  (1)   Physical harm, bodily injury, assault, or the
                        threat of imminent physical harm, bodily injury,
                        or assault; or
                  (2)   An intentional or knowing course of conduct
                        directed at an individual that seriously alarms
                        or disturbs consistently or continually bothers
                        the individual and serves no legitimate purpose;
                        provided that such course of conduct would cause
                        a reasonable person to suffer emotional
                        distress.

                  (b)   The district courts shall have the power to
            enjoin, prohibit, or temporarily restrain harassment.
                  (c)   Any person who has been subjected to harassment
            may petition the district court of the district in which the
            petitioner resides for a temporary restraining order and an
            injunction from further harassment.

                  . . . .
                                                                   (continued...)

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

that when she delivered her sons or shopping purchases from her
car to her in-law's apartment, Corum would exit his apartment to
videotape her activities. Montgomery alleged that Corum did not
need to move his car, as he would not leave, making her and her
sons fearful of his intentions. She also maintained that Corum
would videotape her mother-in-law unloading groceries from her
mother-in-law's car, parked in her own carport, to her own
apartment. Montgomery alleged that, based on her belief Corum
had conducted himself in a provocative, i.e., sexual, way and had
weapons in his home, she was fearful of his intentions toward
herself and her sons.
          At the hearing on the Petition, Linda Montgomery
testified that her grandchildren are dropped-off at her home
almost every day, that Corum appears and videotapes "everybody"
as this is being done, including Montgomery and her sons, and
that she does not know why Corum does this.
          Montgomery testified that she filed the Petition on
behalf of herself and her children

     5
      (...continued)
                 (g)   A temporary restraining order that is granted
           under this section shall remain in effect at the discretion
           of the court for a period not to exceed ninety days from the
           date the order is granted. A hearing on the petition to
           enjoin harassment shall be held within fifteen days after
           the temporary restraining order is granted. If service of
           the temporary restraining order has not been effected before
           the date of the hearing on the petition to enjoin, the court
           may set a new date for the hearing; provided that the new
           date shall not exceed ninety days from the date the
           temporary restraining order was granted.
                 The parties named in the petition may file or give oral
           responses explaining, excusing, justifying, or denying the alleged
           act or acts of harassment. The court shall receive all evidence
           that is relevant at the hearing and may make independent inquiry.

                 If the court finds by clear and convincing evidence
           that harassment as defined in paragraph (1) of that
           definition exists, it may enjoin for no more than three
           years further harassment of the petitioner, or that
           harassment as defined in paragraph (2) of that definition
           exists, it shall enjoin for no more than three years further
           harassment of the petitioner; provided that this paragraph
           shall not prohibit the court from issuing other injunctions
           against the named parties even if the time to which the
           injunction applies exceeds a total of three years.
                 . . . .

                 (j)   Nothing in this section shall be construed to
           prohibit constitutionally protected activity.

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

                [b]ecause [Corum has] been videotaping my kids, and I
          am fearful that he's going to do something to the kids and
          myself. Oftentimes I can't -- I don't have an extra arm to
          protect myself or the kids when I'm carrying groceries to my
          mother-in-law's house or I'm carrying one of my kids who's
          sleeping or dropping them off.
                He comes out and he's videotaping, and he keeps coming
          closer. And there's nothing I can do because I'm carrying
          something in my arms. And he just keeps coming closer and
          videotaping. And I just -- I can't handle it anymore. I'm
          scared.
          Montgomery maintained that Corum is "constantly
videotaping me or my kids . . ." for the past three years, he
videotaped her when she is parked outside of her in-laws' home
with her children, in the common areas when she was with her
children, and while they were in front of her home, about a
"football field" away from Corum's home. Corum has videotaped
her and her sons at their complex's pool. She testified that he
does not say anything when he is taping them. She has told Corum
to stop filming her, but Corum has continued. She has also
complained to the resident manager on multiple occasions about
Corum's videotaping; she has never had to complain about any
other resident's behavior.
          Montgomery admitted that when she is parked in front of
her in-laws' home unloading groceries or her children, she blocks
access to Corum's carport "for a time being." However, she also
maintained that Corum has never asked her to move her car and the
resident manager informed her that she is allowed to pull up and
load and unload her car.
          Montgomery also presented surveillance video of Corum
walking up to her mother-in-law's vehicle as it was parked in a
stall with its hatch open, and holding his phone and appearing to
be taking photographs or video of the interior of the open hatch.
Corum stood so close to the open hatch that her mother-in-law
brushed him away to close the hatch. Corum testified that he was
photographing or videoing to document she was "extending beyond
her assigned parking place," but could not explain why he needed
to approach her so closely to do so.
          Vince Dydasco (Dydasco), the resident manager of the
condominium, testified that the Corum and Montgomery families
live on opposite sides of the condominium complex. He testified


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

that he was familiar with Corum as the subject of three types of
complaints by about a half-dozen of the residents. One group of
complaints involved Corum walking around the complex, including
the pool area, without a shirt, staring at but not speaking to
anyone, then moving on. Another was about his video recording
people, in addition to the Montgomerys, around the neighborhood,
and the third involved him approaching kids while they were
playing, lodged by the Montgomerys and others. He was also aware
that Corum had been arrested because of Corum's possession of a
firearm.
          Dydasco testified that a resident may park in front of
their unit to unload groceries or passengers, and there is no
time limit on this, although he later stated that if it took a
half-hour, it would be in violation of condominium rules. He
acknowledged that Corum had complained to him that the
Montgomerys block access to his parking stall, and they take a
long time to load and unload their vehicles. However, he
investigated these complaints and found that the Montgomerys are
"well within their rights to unload and load. It's not
excessive." Moreover, he has not found any basis to corroborate
Corum's complaints about the Montgomerys and their use of the
common area with their vehicles; the complex's board has issued a
letter to Corum asking him to stop his video recording and
harassing behavior of the Montgomerys.
          Following the hearing, the District Court granted the
Injunction, and stated:
                In one of these cases [Montgomery] seeks an injunction
          on her behalf and on behalf of her minor children against
          [Corum]. [Montgomery] testified that [Corum] is always
          videotaping. When asked how close [Corum] has approached,
          [Montgomery] gestured from her seat in the witness stand to
          the corner of the witness stand.
                [Montgomery] further testified that she has asked
          [Corum] not to videotape her and her children on numerous
          occasions. [Montgomery] further testified that despite her
          requests, [Corum] has continued to videotape her and her
          children.

                The court finds that [Montgomery] is credible and []
          credits her testimony regarding the videotaping of
          [Montgomery and sons]. Based on her testimony and the
          reasonable inferences therefrom as well as on the recordings
          and exhibits that were admitted into evidence in this case,
          the court finds that [Montgomery] has proven by clear and
          convincing evidence that [Corum] has approached within five

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

          feet of [older son] while holding a cell phone camera with
          the lens pointed in [older son's] direction on more than one
          occasion, that [Corum] has approached within five feet of
          [younger son] while holding a cell phone camera with the
          lens pointed in . . . [younger son's] direction on more than
          one occasion, and that [Corum] has approached within five
          feet of [Montgomery] while holding a cell phone camera with
          the lens pointed in [Montgomery's] direction on more than
          one occasion.

                The court finds and concludes that [Corum's] actions
          of approaching [Montgomery and sons] while holding a cell
          phone camera with the lens pointed in [Montgomery and sons']
          direction on more than one occasion constitute a knowing
          course of conduct directed at [Montgomery and sons] that
          seriously alarms, disturbs consistently, and continually
          bothers [Montgomery and sons].
                The court further finds and concludes that these
          specific actions serve no legitimate purpose, and the
          evidence in this case does not support any finding or
          conclusion that [Corum] was videotaping [Montgomery and/or
          sons], Number 1, because he believed [Montgomery and/or
          sons] had committed a potential Association rule violation;
          and/or, 2, because he was fearful of a potential conflict
          with [Montgomery and/or sons]; and/or, 3, because he was
          trying to protect and/or defend himself against potential
          harassment by [Montgomery and sons].
                The court further finds and concludes that [Corum's]
          course of conduct with respect to [Montgomery and sons]
          would cause a reasonable person to suffer emotional
          distress. Accordingly the court grants [Montgomery's]
          request for an injunction against [Corum] for three years.

          Corum challenges the District Court's decision to issue
the Injunction, disagreeing with the court's conclusion that he
had no legitimate purpose for his actions, where the parties are
hostile and the facts are in dispute, in light of his receipt of
advice from the police to take pictures, that some of the videos
have been used in court against Montgomery's husband, and that as
applied in this case, was not contemplated by the legislature
when creating this remedy.
                Whether there was substantial evidence to support an
          injunction against an alleged harasser is reviewed under the
          "clearly erroneous standard." Bailey v. Sanchez, 92 Hawai #i
          312, 316 n.6, 990 P.2d 1194, 1198 n.6 (App. 1999). "A
          conclusion of law that presents mixed questions of fact and
          law is reviewed under the clearly erroneous standard because
          the conclusion is dependent upon the facts and circumstances
          of the particular case." Id. (brackets omitted) (quoting
          Booth v. Booth, 90 Hawai#i 413, 416, 978 P.2d 851, 854
          (1999)).

Duarte v. Young, 134 Hawai#i 459, 462, 342 P.3d 878, 881
(App. 2014). The District Court's finding that Corum had no
legitimate purpose for his videotaping activity of Montgomery and


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

her sons was supported by the substantial, credible evidence
presented at trial and was therefore not clearly erroneous.
          The evidence presented was sufficient to establish that
Corum had no legitimate basis to video record Montgomery and her
sons. Montgomery's testimony, found credible by the District
Court, established that Corum video recorded herself and her sons
on numerous occasions in various locations in their shared
apartment complex. Montgomery testified that Corum did not speak
during the video recording, let alone ask that she move her
vehicle. Although Corum had complained to the resident manager
that Montgomery was parking in violation of the complex's bylaws,
that accusation was not borne out by the board of directors'
investigation, which was communicated to Corum. Moreover, after
the board issued a letter to Corum's counsel asking Corum to stop
his video recording of the Montgomerys, Corum continued his
actions and indeed, maintained at trial he had a right to do so.
          There was no attempt by Corum to resolve any of his
complaints with the Montgomerys directly, thus undercutting his
claim that his recording was to enforce the complex's bylaws.
Moreover, his complaints, even with his videos, were not
sustained by the complex's board and general advice from the
police cannot serve to legitimize Corum's actions, regardless of
the circumstances and methods used. In addition, the video
recording of Montgomery's husband's actions does not establish a
legitimate reason to record Montgomery and her sons. Finally,
Corum's refusal to heed the warnings of the complex's board to
stop his harassing video recording was clear notice to Corum that
his recording activity was disapproved.
          Based on the foregoing, the July 12, 2016 Injunction
Against Harassment entered by the District Court of the First
Circuit is affirmed.
          DATED: Honolulu, Hawai#i, April 9, 2020.

On the briefs:                        /s/ Alexa D.M. Fujise
                                      Presiding Judge
Anthony L. Wong
(Sumida Au & Wong)                    /s/ Katherine G. Leonard
for Respondent-Appellant.             Associate Judge

                                      /s/ Keith K. Hiraoka
                                      Associate Judge


                                  7
