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                                                         Electronically Filed
                                                         Supreme Court
                                                         SCWC-XX-XXXXXXX
                                                         17-APR-2020
                                                         09:11 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                           ---oOo---
________________________________________________________________

                               DL,
                 Petitioner/Plaintiff-Appellant,

                                 vs.

                              CL,
                 Respondent/Defendant-Appellee.
________________________________________________________________

                          SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-XX-XXXXXXX; FC-D. NO. 16-1-1014)

                           APRIL 17, 2020

         RECKTENWALD, C.J., NAKAYAMA, MCKENNA, POLLACK,
                        AND WILSON, JJ.

               OPINION OF THE COURT BY McKENNA, J.

                          I.   Introduction

    This appeal arises from rulings concerning child custody

and relocation and disqualification of counsel made by the
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Family Court of the First Circuit (“family court”)1 in a divorce

proceeding.

        DL asserts that in its February 28, 2019 summary

disposition order (“SDO”) the Intermediate Court of Appeals

(“ICA”) erred by (1)(a) considering the family court’s April 26,

2018 amended findings of fact and conclusions of law regarding

child custody despite its entry of some findings of fact

regarding child custody before the March 26, 2018 notice of

appeal, as the family court was without jurisdiction to enter

additional findings after the notice of appeal had been filed;

and (b) not properly considering DL’s arguments that even if the

family court had jurisdiction to enter them, the April 26, 2018

findings and conclusions should be rejected; (2) affirming the

family court’s denial of its motion to disqualify CL’s counsel

and law firm; and (3) affirming the family court’s grant of sole

physical custody of the parties’ minor children to CL and

allowing CL to relocate the children to Arizona.

        For the reasons explained below, the ICA did not err.        We

therefore affirm the ICA’s May 3, 2019 judgment affirming the

family court’s (1) April 26, 2018 amended findings of fact,

conclusions of law and order regarding:           June 21, 2017 Order Re:


1       The Honorable Gale L.F. Ching presided.


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Defendant’s Motion for Pre-Decree Relief; March 13, 2016 Order

Re:    Evidentiary Hearing; and March 16, 2018 First Amended Order

Re:    Evidentiary Hearing; and (2) April 23, 2018 findings of

fact, conclusions of law, and order regarding Plaintiff’s Motion

to Disqualify Counsel.

                             II.   Background

A.    Family court proceedings

      DL and CL were married and had two children, who had yet to

enter kindergarten as of the 2016 commencement of divorce

proceedings.    Before the divorce proceedings began, CL had moved

to Arizona with the two minor children.

      Various proceedings and hearings then took place in the

family court, including DL’s filing of a motion to disqualify

counsel for CL and his law firm.       DL contended disqualification

was required because CL’s law firm had hired a family law

paralegal who had been employed by the law firm that previously

represented DL in the divorce case.       DL alleged the paralegal

had participated in DL’s case and was privy to privileged

communications and other confidential information related to

DL’s case.

      DL’s prior law firm indicated that although the paralegal

had not worked on DL’s matter, DL’s case was discussed during

the firm’s family law department monthly meetings in which the

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paralegal participated, and that the paralegal had received

email regarding DL’s case.    CL’s new law firm attested, however,

that it had taken appropriate steps to screen the paralegal from

any work or information related to DL’s case after the

paralegal’s employment, including filtering the mail to ensure

that pleadings regarding the matter would not be given to the

paralegal, that the paralegal’s computer could not access any of

the files in the case, and by instructing staff to exclude the

paralegal from all communications regarding the case.      On

October 17, 2017, the family court denied DL’s motion to

disqualify.   The family court did not enter findings of fact or

conclusions of law in the order denying disqualification.

    Meanwhile, other proceedings and hearings ensued regarding

other issues in the divorce, including child custody.      On March

13, 2018, the family court entered its “Order Re:      Evidentiary

hearing” concerning hearings it had conducted on eleven dates

from July 31, 2017 to January 8, 2018.     These hearings addressed

not only legal and physical custody of the children, but also

child support, alimony, property division as to certain

properties, debts, and attorney fees.

    With respect to legal and physical custody of the children

only, the March 13, 2018 order contained a section entitled

“findings of fact,” reflecting twelve findings of fact within

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two pages of the seventeen-page order.           The twelve findings of

fact were as follows:

              1. [DL] and [CL] were married [in] 2008,
              2. [DL] and [CL] are the natural parents of the minor
              [children],
              3. [DL] and [CL] are [] employable,
              4. Previously, [DL] and [CL] were living and working in
              California and decided to relocate to Hawaii,
              5. In approximately October 2015, [DL] and [CL] moved to
              Hawaii where they lived in a cottage [] owed [sic] by
              [DL]’s parents,
              6. During the course of the marriage, [DL] verbally abused
              [CL] and engaged in emotional and physical acts of violence
              in the presence of the [CL] and the [m]inor [c]hildren,
              7. On or about July 9, 2016 [CL] fled with the [m]inor
              [c]hildren to Arizona in order to protect herself and the
              [m]inor [c]hildren,2
              8. [CL] presently lives in Arizona and has obtained []
              employment [],
              9. [DL] presently lives in Hawaii and has obtained []
              employment [],




2       HRS § 571-46(a)(9) (2018) provides:

              (9) In every proceeding where there is at issue a dispute
              as to the custody of a child, a determination by the court
              that family violence has been committed by a parent raises
              a rebuttable presumption that it is detrimental to the
              child and not in the best interest of the child to be
              placed in sole custody, joint legal custody, or joint
              physical custody with the perpetrator of family violence.
              In addition to other factors that a court shall consider in
              a proceeding in which the custody of a child or visitation
              by a parent is at issue, and in which the court has made a
              finding of family violence by a parent:
              (A) The court shall consider as the primary factor the
              safety and well-being of the child and of the parent who is
              the victim of family violence;
              (B) The court shall consider the perpetrator's history of
              causing physical harm, bodily injury, or assault or causing
              reasonable fear of physical harm, bodily injury, or assault
              to another person; and
              (C) If a parent is absent or relocates because of an act of
              family violence by the other parent, the absence or
              relocation shall not be a factor that weighs against the
              parent in determining custody or visitation;
              . . . .


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              10. At present, [one of] the minor child[ren] is attending
              [an] [e]lementary [s]chool and the [other] minor child []is
              attending [a pre] [s]chool,
              11. [DL] has sought counseling for domestic violence,
              parenting, etc. [sic] and does not now pose a danger nor a
              safety risk to the [m]inor [c]hildren, and
              12. The [p]arties are unable to effectively communicate for
              the benefit of the [m]inor [c]hildren.

The family court awarded joint legal custody to DL and CL.                  As

CL had relocated to Arizona before the divorce proceedings, the

family court awarded CL sole physical custody.

        On March 16, 2018, the family court entered a “First

Amended Order Re:       Evidentiary Hearing” without amending the

findings of fact relating to child custody or its custody orders

contained in the March 13 order.            (The March 13 and 16 orders

are collectively referred to as the “March Orders.”)              Neither of

the March Orders contained a section entitled “Conclusions of

Law.”

B.      Family court and ICA proceedings after notice of appeal

        DL filed a notice of appeal of the March Orders as well as

all prior rulings upon which they were predicated3 on March 26,

2018.      On April 3, 2018, the family court ordered both parties



3     According to DL, these included, but were not limited to, the (1)
“Order Re: Plaintiff’s Motion to Disqualify Counsel, Filed October 6, 2017,”
filed October 17, 2017; (2) “Order Re: Defendant’s Motion and Declaration
for Pre-Decree Relief Filed June 7, 2017,” filed June 21, 2017; (3) “Order
Granting In Part and Denying in Part Motion and Declaration for Pre-Decree
Relief, Filed October 21, 2016,” filed December 16, 2018; (4) “Order Granting
In Part and Denying in Part Plaintiff’s Motion to Permit Visitation in
Hawaii, Filed December 8, 2016,” filed December 16, 2016; and (5) “Order,
Exhibit A,” filed September 22, 2016.

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to submit proposed findings of fact and conclusions of law

pursuant to Hawaiʻi Family Court Rules (“HFCR”) Rule 52(a) (2015)

by April 20, 2018.

     Meanwhile, on April 9, 2018, in the family court, counsel

for DL filed a motion to stay enforcement of a portion of the

March Orders that required a property to be listed for sale.

     Pursuant to the family court’s April 3, 2018 order, on

April 20, 2018, counsel for CL submitted four separate proposed

findings of fact and conclusions of law regarding the various

evidentiary hearings and matters addressed in the March Orders

and the disqualification motion.      On the same date, counsel for

DL submitted 484 proposed findings of fact and 48 conclusions of

law, not including subparts.

     On April 23, 2018, the family court entered four separate

findings of fact and conclusions of law, adopting verbatim the

proposals submitted by CL’s counsel.      The first of the four

contained 91 findings of fact and 26 conclusions of law

primarily focused on child custody and relocation, but which

also discussed other subjects included in the March Orders

(“4/23/18 FOFs/COLs re child custody”).      The fourth concerned




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DL’s motion to disqualify counsel (“4/23/18 FOFs/COLs re motion

to disqualify”).4

        At 1:32 p.m. on April 26, 2018, the family court entered a

divorce decree.      At 3:28 p.m. on April 26, 2018, the family

court entered a document entitled “first amended findings of

fact and conclusions of law,” which replaced the first of the

four findings of fact and conclusions of law it had entered on

April 23, 2018, which basically concerned child custody and

relocation.      The “first amended findings of fact and conclusions

of law” did not amend the 91 findings of fact and 26 conclusions

of law entered on April 23, 2018; it merely added a child

support guidelines worksheet and property division chart as

attachments (“4/26/18 FOFs/COLs re child custody”).

        The child custody and relocation rulings within the 4/26/18

FOFs/COLs re child custody and the 4/23/18 FOFs/COLs regarding

DL’s motion to disqualify are the subject of these certiorari

proceedings.5




4     The second of the four findings of fact and conclusions of law
concerned the family court’s September 22, 2016 order on DL’s motion for pre-
decree relief. The third concerned the family court’s December 16, 2016
order regarding another motion for pre-decree relief filed by DL and a
December 8, 2016 order regarding DL’s motions to permit visitation in Hawaiʻi.
5     On July 5, 2018, DL filed another notice of appeal, which is the
subject of CAAP-XX-XXXXXXX.
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     As noted earlier, the March Orders contained 12 cursory

findings regarding child custody and relocation and contained no

“conclusions of law.”   As to custody issues, the 4/26/18

FOFs/COLs re child custody provided additional factual findings

supporting the family court’s custody decisions in the March

Orders.   It also contained conclusions of law.     The 4/26/18

FOFs/COLs re child custody did not, however, substantively

modify the findings of fact and conclusions of law contained in

the original April 23, 2018 findings and conclusions and also

did not modify substantive rulings regarding custody and

relocation contained in the March Orders or in the April 26,

2018 divorce decree.

     On May 9, 2018, CL, appearing pro se, filed a motion to

dismiss DL’s appeal.    CL argued that because the divorce decree

was not filed until April 26, 2018, DL’s March 26, 2018 notice

of appeal was premature.

     On May 16, 2018, DL filed a memorandum opposing CL’s motion

to dismiss.   DL argued that because the family court’s March

Orders contained findings of fact, they had the requisite degree

of finality to be appealable, citing to In re Doe, 102 Hawaiʻi

246, 250, 74 P.3d 998, 1002 (2003) (“In [family court] cases, an

order possesses the requisite finality if it determines the

ultimate rights of the parties, with respect to distinct matters

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which have no bearing on other matters left for consideration.”)

(internal quotation marks omitted).       DL contended that the ICA

therefore had appellate jurisdiction over DL’s appeal from the

March Orders.

     On June 4, 2018, the ICA entered an order denying CL’s

motion to dismiss appeal.     It rejected both parties’ arguments

and ruled that dismissal of the appeal was not appropriate based

on Hawaiʻi Rules of Appellate Procedure (“HRAP”) Rule 4(a)(2)

(2016), which provides, “[i]f a notice of appeal is filed after

announcement of a decision but before entry of the judgment or

order, such notice shall be considered as final immediately

after the time the judgment or order becomes final for the

purpose of appeal.”    The ICA ruled that based on HRAP Rule

4(a)(2), the filing of the family court’s April 26, 2018 divorce

decree, entered after DL filed his March 26, 2018 notice of

appeal, allowed it to take jurisdiction over DL’s appeal.           The

ICA therefore concluded that it had appellate jurisdiction over

DL’s appeal from the filing of the April 26, 2018 divorce decree

pursuant to HRS § 571-54 (2006).

     DL’s opening brief was filed on July 25, 2018, and it

asserted two points of error:

          Point of Error Number One: Whether the Family Court erred
          in awarding CL sole physical custody of the parties’
          Children and permitting their relocation to Arizona because
          the evidence did not establish that it was in the
          Children’s best interest to relocate to Arizona or away
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           from [DL], there was neither a finding of family violence
           made against DL nor any evidence of family violence, the
           Family Court erred in relying on the Custody Evaluator’s
           purported recommendation in favor of relocation, and the
           Family Court should not have relied on evidence outside the
           record in deciding custody and relocation. It was also
           error for the Family Court to rubber-stamp all findings of
           fact, conclusions of law, and re-written orders submitted
           by CL’s attorney.

           Point of Error Number Two: Whether the Family Court erred
           in denying DL’s motion to disqualify CL’s attorney given
           that both her attorney and his law firm were disqualified
           from representing CL after they hired a paralegal formerly
           employed by DL’s former counsel who had worked on this case
           and had actual exposure to significant privileged
           communications and other confidential information related
           to the case, and given that CL’s attorney neither informed
           DL that the paralegal had been hired nor obtained DL’s
           consent to waive the actual conflict of interest and
           disqualification, and given that an effective “screen,”
           even if permitted, cannot be accomplished under the
           circumstances. Subsumed within the error is the court’s
           ruling striking unspecified testimony of [the attorney from
           DL’s prior law firm], related to his refreshed recollection
           further confirming the paralegal’s actual exposure to
           confidential information.

    With respect to the family court’s grant of sole physical

custody to CL, DL continued to argue that the family court erred

when it used HFCR Rule 52 to request additional findings of fact

and conclusions of law where the family court had already

entered substantive findings in its March Orders.           In summary,

DL also argued that the family court erred in awarding CL sole

physical custody of the children and permitting their relocation

to Arizona because the evidence did not establish that it was in

the children’s best interests to relocate to Arizona or away

from DL.

    With respect to the disqualification issue, in summary, DL


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argued that pursuant to Hawaiʻi Rules of Professional Conduct

(“HRPC”) Rule 1.10 (2014) and case law from other jurisdictions,

CL’s attorney and law firm should have been disqualified from

representing CL based on the paralegal’s transfer of employment.

     In summary, CL’s September 4, 2018 answering brief argued

that the family court’s custody decisions should be affirmed

based on the voluminous testimony and evidence in the case.       CL

further argued that the family court’s decision to deny DL’s

motion to disqualify was not in error because the new law firm

had appropriately screened the paralegal upon the transfer of

employment.

     DL’s September 28, 2018 reply brief repeated the argument

that the family court’s findings of fact and conclusions of law

after the notice of appeal should not be considered by the ICA.

Citing Kakinami v. Kakinami, 127 Hawaiʻi 126, 143, 276 P.3d 695,

712 (2012), DL contended that once a notice of appeal is filed,

a family court generally loses jurisdiction to modify a

previously entered order.

C.   ICA ruling

     In its February 28, 2019 SDO, the ICA affirmed the 4/26/18

FOFs/COLs re child custody as well as the 4/23/18 FOFs/COLs re

the motion to disqualify.   DL v. CL, CAAP-XX-XXXXXXX (App. Feb.

28, 2019) (SDO).   The ICA did not specifically address DL’s

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contention that once a notice of appeal is filed, the family

court loses jurisdiction to modify a previously entered order

and was therefore without jurisdiction to enter the 4/26/18

FOFs/COLs. (It had already ruled in its June 4, 2018 order

denying CL’s motion to dismiss the appeal as premature that the

appeal was not effective until the filing of the April 26, 2018

divorce decree.)

     Regarding the family court’s child custody decisions,

citing Fisher v. Fisher, 111 Hawaiʻi 41, 47, 137 P.3d 355, 361

(2006), the ICA noted that under HRS § 571-46, the sole issue in

a custody determination is the child’s best interests, and

concluded that the family court’s custody decisions were

supported by substantial evidence.    DL, SDO at 7.    The ICA noted

that HRS § 571-46(b) sets forth a non-exclusive list of factors

the court must consider in determining the best interests of

children, and “the family court is granted broad discretion to

weigh the various factors involved, with no single factor being

given presumptive paramount weight, in determining whether the

standard has been met[,]” quoting Fisher, 111 Hawaiʻi at 50, 137

P.3d at 364.   DL, SDO at 3.   The ICA also referred to the family

court’s factual findings regarding “family violence” and the

effect of such findings on custody and relocation.      See supra

note 2 (quoting HRS § 571-46(a)(9)); DL, SDO at 3-11.

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     Regarding the disqualification issue, the ICA noted that

HRPC Rule 1.10, which pertains to the imputation of conflicts of

interest, does not necessarily prohibit representation by others

in the law firm where the person prohibited from involvement in

a matter is a nonlawyer.     DL, SDO at 13-14 (citing HRPC Rule

1.10 cmt. 4).     The ICA further noted the family court’s finding

that CL’s law firm was aware from the outset that the paralegal

had a conflict, had prohibited the paralegal from any work on or

involvement in the matter, and had ensured that the paralegal

would be effectively screened.      DL, SDO at 15.     The ICA ruled

that, based on the record, it could not conclude that the family

court abused its discretion in denying DL’s motion to

disqualify.     DL, SDO at 16.

     Accordingly, the ICA affirmed the family court and entered

its judgment on appeal on May 3, 2019.

C.   Certiorari application

     DL raises the following three questions on certiorari:

          1.    Whether the ICA erred by considering and ultimately
          approving FOF-COLS drafted exclusively by CL’s counsel, and
          re-written interim orders drafted by CL’s counsel, that
          were entered verbatim, in their entirety, obviously without
          any meaningful review of their propriety or accuracy, and
          creating an improper moving target after DL filed his
          notice or appeal.

          2.    Whether the ICA erred by affirming the family court’s
          order denying DL’s motion to disqualify CL’s counsel.

          3.    Whether the ICA erred in affirming the family court’s
          order awarding to CL sole physical custody of the parties’


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          children and allowing CL to relocate the children to
          Arizona.

                       III. Standards of Review

A.   Family court decisions

     Generally, the “family court possesses wide discretion in

making its decisions and those decisions will not be set aside

unless there is a manifest abuse of discretion.”         In Interest of

Jane Doe, 84 Hawaiʻi 41, 46, 928 P.2d 883, 888 (1996) (internal

quotation marks and citation omitted).       “Under the abuse of

discretion standard of review, the family court’s decision will

not be disturbed unless the family court disregarded rules or

principles of law or practice to the substantial detriment of a

party litigant[, and its] decision clearly exceed[ed] the bounds

of reason.”   Id. (internal quotation marks and citation omitted,

alterations in original).

B.   Findings of fact and conclusions of law

     A family court’s findings of fact are reviewed on appeal

under the “clearly erroneous” standard.        Fisher, 111 Hawaiʻi at

46, 137 P.3d at 360.    “A [finding of fact] is clearly erroneous

when (1) the record lacks substantial evidence to support the

finding, or (2) despite substantial evidence in support of the

finding, the appellate court is nonetheless left with a definite

and firm conviction that a mistake has been made.”          Id.

“‘Substantial evidence’ is credible evidence which is of
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sufficient quality and probative value to enable a person of

reasonable caution to support a conclusion.”           Id.

     “The family court’s [conclusions of law] are reviewed on

appeal de novo, under the right/wrong standard.”             Id. (citation

omitted).    Conclusions of law are “not binding upon an appellate

court and are freely reviewable for their correctness.”             Id.

(citation omitted).

C.   Credibility of witnesses

     “[I]t is well-settled that an appellate court will not pass

upon issues dependent upon the credibility of witnesses and the

weight of the evidence; this is the province of the trier of

fact.”   In re Doe, 95 Hawaiʻi 183, 190, 20 P.3d 616, 623 (2001)

(internal quotation marks and citation omitted).

D.   Interpretation of court rules

     The interpretation of court rules involve principles of

statutory construction.      State v. Choy Foo, 142 Hawaiʻi 65, 72,

414 P.3d 117, 124 (2018).       This court’s construction of court

rules is guided by the following:

            First, the fundamental starting point for [rule]
            interpretation is the language of the [rule] itself.
            Second, where the . . . language [of the rule] is plain and
            unambiguous, our sole duty is to give effect to its plain
            and obvious meaning. Third, implicit in the task of [rule]
            construction is our foremost obligation to ascertain and
            give effect to the intention of the [promulgator], which is
            to be obtained primarily from the language contained in the
            [rule] itself. Fourth, when there is doubt, doubleness of
            meaning, or indistinctiveness or uncertainty of an
            expression used in a [rule], an ambiguity exists.

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Id. (citations omitted).

E.   Disqualification of counsel

          Appellate courts apply the abuse of discretion standard for
          reviewing a judge’s denial of a motion for
          disqualification. Under the abuse of discretion standard,
          the trial court may not be reversed by an appellate court
          unless the trial court clearly exceeded the bounds of
          reason or disregarded rules or principles of law or
          practice to the substantial detriment of a party litigant.

Hussey v. Say, 139 Hawaiʻi 181, 185-86, 384 P.3d 1282, 1286-87

(2016) (internal citations and quotation marks omitted).

                           IV.   Discussion

A.   The ICA did not err by considering and approving the
     4/26/18 FOFs/COLs re child custody

      In the first question on certiorari, DL alleges the ICA

erred by basing its appellate review on the 4/26/18 FOFs/COLs re

child custody because (1) the family court was without

jurisdiction to enter them after the notice of appeal had been

filed; and (2) even if the family court had jurisdiction to

enter the 4/26/18 FOFs/COLs re child custody after DL’s notice

of appeal, the ICA erred in not properly considering DL’s

arguments that they should be rejected because the family court

adopted CL’s submissions verbatim, suggesting the family court

did not even read the submissions.       We address each subpart of

the first question on certiorari below.




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     1.   The family court had jurisdiction to enter the 4/26/18
          FOFs/COLs re child custody

          a.     DL’s March 26, 2018 notice of appeal was
                 premature

     DL contends that the family court was divested of

jurisdiction to enter the 4/26/18 FOFs/COLs re child custody

because this court has stated “that once a party files a notice

of appeal, a family court is generally divested of jurisdiction

to proceed further on the matter,” citing Kakinami, 127 Hawaiʻi

at 143, 276 P.3d at 712.     As indicated in the ICA’s June 4, 2018

order denying CL’s motion to dismiss the appeal, however, DL’s

March 2, 2018 notice of appeal was actually premature.

     In Eaton v. Eaton, 7 Haw. App. 111, 748 P.2d 801 (1987),

the ICA ruled:

          Hawaii divorce cases involve a maximum of four discrete
          parts: (1) dissolution of the marriage; (2) child custody,
          visitation, and support; (3) spousal support; and (4)
          division and distribution of property and debts. Black v.
          Black, 6 Haw. App. 493, 728 P.2d 1303 (1986). In Cleveland
          v. Cleveland, 57 Haw. 519, 559 P.2d 744 (1977), the Hawaii
          Supreme Court held that an order which finally decides
          parts (1) and (4) is final and appealable even if part (2)
          remains undecided. Although we recommend that, except in
          exceptionally compelling circumstances, all parts be
          decided simultaneously and that part (1) not be finally
          decided prior to a decision on all the other parts, we
          conclude that an order which finally decides part (1) is
          final and appealable when decided even if parts (2), (3),
          and (4) remain undecided; that parts (2), (3), and (4) are
          each separately final and appealable as and when they are
          decided, but only if part (1) has previously or
          simultaneously been decided; and that if parts (2), (3),
          and/or (4) have been decided before part (1) has been
          finally decided, they become final and appealable when part
          (1) is finally decided.



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Eaton, 7 Haw. App. at 118-19, 748 P.2d at 805 (internal footnote

omitted).

    Thus, according to Eaton, the part (2) child custody order

within the March Orders was not appealable until the divorce

decree was entered on April 26, 2018.      The ICA properly denied

CL’s motion to dismiss the premature appeal because HRAP Rule

4(a)(2) provides that if a notice of appeal is filed before

entry of a judgment or order, the notice shall be considered as

filed immediately after the time the judgment or order becomes

final for the purpose of appeal.      Therefore, the ICA properly

concluded that it had appellate jurisdiction over DL’s premature

appeal pursuant to HRAP Rule 4(a)(2) as of the April 26, 2018

filing of the divorce decree.

    DL maintains the ICA erred because an immediate appeal of

the March Orders was authorized by HRS § 571-54, which allows an

appeal “by any interested party, aggrieved by any order or

decree of the court.”   DL, however, ignores the remaining

portion of the quoted sentence within HRS § 571-54, which

provides, “An interested party, aggrieved by any order or decree

of the court, may appeal to the intermediate appellate court for

review of questions of law and fact upon the same terms and

conditions as in other cases in the circuit court, and review

shall be governed by chapter 602, except as hereinafter

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provided.”6      HRS § 571-54 (emphasis added).        As stated in In re

Doe, 102 Hawaiʻi 246, 74 P.3d 998 (2003):

              We have construed this language as indicating that HRS
              § 641–1 (1993)[] which defines the limits of appeals in
              civil actions and proceedings, likewise defines the limits
              of judgments, orders, or decrees in family court
              proceedings from which an appeal may lie. Specifically, we
              have held that, under HRS § 571–54, we may hear
              appeals from only final orders, or decrees except as
              otherwise provided by law.

In re Doe, 102 Hawaiʻi at 249, 74 P.3d at 1001 (emphasis added)

(internal quotation marks omitted).




6       HRS § 571-54 provides in relevant part:

              An interested party, aggrieved by any order or decree of
              the court, may appeal to the intermediate appellate court
              for review of questions of law and fact upon the same terms
              and conditions as in other cases in the circuit court, and
              review shall be governed by chapter 602, except as
              hereinafter provided. Where the decree or order affects
              the custody of a child or minor, the appeal shall be heard
              at the earliest practicable time.
              . . . .
              The stay of enforcement of an order or decree, or the
              pendency of an appeal, shall not suspend the order or
              decree of the court regarding a child or minor, . . .
              unless otherwise ordered by the family court or by the
              appellate court after an appeal is taken. Pending final
              disposition of the case, the family court or the appellate
              court, after the appeal is taken, may make such order for
              temporary custody as is appropriate in the
              circumstances. If the appellate court does not dismiss the
              proceedings and discharge the child or minor, it shall
              affirm or modify the order of the family court and remand
              the child or minor to the jurisdiction of the court for
              disposition not inconsistent with the appellate court’s
              finding on the appeal.
              . . . .




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     DL relies on language in Kakinami stating “that once a

party files a notice of appeal, the [family] court is generally

divested of jurisdiction to proceed further on the matter.”

Kakinami, 127 Hawaiʻi at 143, 276 P.3d at 712.     Kakinami did not

address a premature notice of appeal and entry of findings of

fact and conclusions of law under HFCR Rule 52(a).      Lowther v.

Lowther, 99 Hawai‘i 569, 57 P.3d 494 (App. 2002), also did not

address the entry of findings of fact and conclusions of law

pursuant to HFCR Rule 52(a) after a premature notice of appeal,

and instead concerned the family court’s entry of order

regarding non-child custody matters while an appeal of prior

decisions regarding those matters was pending.      Lowther, 99

Hawaiʻi at 569-70, 578-79, 57 P.3d at 494-95, 503-04.      Thus,

these cases are completely distinguishable.

     DL cites to no authority “otherwise providing by law” that,

pursuant to the ICA’s holding in Eaton, a divorce decree was not

required to render the child custody decisions in the March

Orders appealable.   There was no order allowing an interlocutory

appeal.   Thus, pursuant to Eaton and HRAP Rule 4(a)(2), it was

only upon the April 26, 2018 filing of the divorce decree that

DL’s appeal became effective.    DL’s premature March 26, 2018

notice of appeal therefore did not divest the family court of

jurisdiction to enter its 4/23/18 FOFs/COLS re child custody.

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The 4/26/18 FOFs/COLs did not amend the 4/23/18 FOFs/COLs re

child custody, and merely added a child support guidelines

worksheet and property division chart as attachments.

          b.   In any event, HFCR Rule 52(a) required the family
               court to enter conclusions of law regarding child
               custody, as none had previously been entered

    The March Orders contained 12 findings of fact but no

conclusions of law regarding the minor children’s best interests

regarding the family court’s decision to award sole physical

custody of the minor children to CL and to allow CL to remain in

Arizona with the minor children.

    HFCR Rule 52(a) provides as follows:

          (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, where the written decision of the court does not
          contain the findings of fact and conclusions of law, within
          10 days after the filing of the notice of appeal, 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.

    The plain language of HFCR Rule 52(a) therefore requires a

family court to enter findings of fact and conclusions of law

after a notice of appeal is filed, unless it has previously

entered a written decision containing findings of fact and
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conclusions of law.7        As stated by the ICA in State v. Gonsales,

91 Hawaiʻi 446, 984 P.2d 1272 (App. 1999), “upon the filing of an

appeal, the family court is mandated, where HFCR Rule 52(a) is

applicable, to enter written findings of fact and conclusions,

unless they were previously set forth in a written decision or

decision and order.”        91 Hawaiʻi at 449, 984 P.2d at 1275.

        Although the March 26, 2018 notice of appeal was premature,

HFCR Rule 52(a) would have required the family court to enter

conclusions of law regarding child custody at some point, as

none were contained in the March Orders.            The “best interests”

standard governs child custody decisions.            See HRS § 571-

46(a)(1) (“Custody should be awarded . . . according to the best

interest of the child . . . .”).            Conclusions of law addressing

the “best interests” standard were first entered in the 4/23/18

FOFs/COLs re child custody (which were not amended by the

4/26/18 FOFs/COLs re child custody).            Thus, the March Orders did

not constitute “a written decision containing findings of fact



7     HFCR Rule 52(a) therefore differs from Hawaiʻi Rules of Civil Procedure
(“HRCP”) Rule 52(a)(2000), which requires that a circuit court enter findings
of fact and conclusions of law in all actions tried without a jury before a
final judgment allowing an appeal is filed. HRCP Rule 52(a) provides in
pertinent part:

              (a) Effect. In all actions tried upon the facts without a
              jury or with an advisory jury, the court shall find the
              facts specially and state separately its conclusions of law
              thereon, and judgment shall be entered pursuant to
              Rule 58 . . . .

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and conclusions of law” that would have obviated the family

court’s obligation to prepare conclusions as required by HFCR

Rule 52(a).8

        2.    The family court was not prohibited from adopting CL’s
              proposed findings of fact and conclusions of law in
              their entirety

        We now turn to the second subpart of DL’s first question on

certiorari.      DL asserts that even if the family court had

jurisdiction to enter the 4/26/18 FOFs/COLs re child custody,

the ICA erred in not properly considering DL’s arguments that

they should be rejected because the family court adopted CL’s



8     DL also posits that because the family court had entered cursory
findings of fact in its March Orders, it was prohibited from entering more
detailed findings of fact after the March 26, 2018 notice of appeal. The
March 26, 2018 notice of appeal was premature and did not become effective
until the April 26, 2018 filing of the divorce decree. The 4/23/18 FOFs re
child custody were entered before the filing of the divorce decree on
4/26/18, and the 4/26/18 FOFs re child custody entered a few hours after the
divorce decree did not amend the 4/23/18 FOFs re child custody. In any
event, HFCR Rule 52(a) does not prohibit a family court from entering
supplemental findings after a notice of appeal as long as they do not
substantively modify pre-appeal findings. Cf. Thomas-Yukimura v. Yukimura,
130 Hawaiʻi 1, 304 P.3d 1182 (2013) (holding that a family court cannot
substantively modify a divorce decree’s apportionment of capital gains tax
liability, unless pursuant to HFCR Rules 52(b), 59, or 60). There appear to
be previous cases in which amended findings and conclusions have been entered
pursuant to HFCR Rule 52(a) after the filing of a notice of appeal. See,
e.g., Ferreira v. Ferreira, No. 28912 (App. Nov. 18, 2009) (mem.); R.N. v.
B.F., No. 28241 (App. June 6, 2008) (SDO); In re Doe, No. 26276 (App. Mar. 9,
2005) (SDO). Also, allowing the entry of more detailed supplemental findings
of fact and conclusions of law pursuant to HFCR Rule 52(a) as long as they do
not substantively modify a family court’s pre-decree rulings allows for a
more informed and timely appellate review. One of the purposes for the
statutory requirement that an agency set forth its findings of fact and
conclusions of law is to enable judicial review. Dupree v. Hiraga, 121
Hawaiʻi 297, 309 n.14, 219 P.3d 1084, 1096 n.14 (2009). Also, “findings of
fact promote reasoned decisions and meaningful appellate review.” State v.
Hussein, 122 Hawaiʻi 495, 505 n.15, 229 P.3d 313, 323 n.15 (2010).


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submissions verbatim, suggesting the family court had not even

read the submissions.       For this assertion, DL cites to two out-

of-state cases.      In a Florida case, West v. West, 228 So.3d 727,

728 (Fla. Ct. App. 2017), the Florida Court of Appeals stated

that an “appearance of impropriety exists” when a trial judge

adopts a party’s proposed judgment verbatim, especially where

the judge did not orally announce findings or rulings during or

at the end of trial.       West, 288 So.3d at 728-29.      West, in turn,

is based on the Florida Supreme Court’s holding in Perlow v.

Berg-Perlow, 875 So.2d 383 (Fla. 2004), which had set forth

guidelines for dealing with proposed “judgments” submitted by

parties in divorce proceedings.        West, 228 So.3d at 729.       Perlow

makes it clear, however, that Florida does not have a rule

similar to HFCR Rule 52(a), which authorizes a trial court to

request findings of fact and conclusions of law, although it

appears such requests were not uncommon.          Perlow, 875 So.2d at

388.9




9      DL also cites to the Georgia case Floyd v. Gibson, 788 S.E.2d 84, 87-
88 (Ga. Ct. App. 2016) for the proposition that if the record contains
indicia, such as repeated typographical errors, that suggest the judge did
not even read the submissions, the findings should be rejected and the
judgment vacated. Instead, this case appears to stand for a related
proposition that an appellate court “cannot apply the appropriate deferential
standard of review to the trial court’s findings of fact when it is entirely
unclear that the trial court even made any such findings, or where it failed
to base its findings, to the extent any were made, on contemporaneous
evidence.” Floyd, 788 S.E.2d at 88.

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     In contrast, HFCR Rule 52(a) specifically allows a family

court “to order the parties or either of them to submit proposed

findings of fact and conclusions of law[.]”          In addition, there

are no Hawaiʻi appellate cases prohibiting a trial court from

adopting findings of fact and conclusions of law submitted by

counsel, as long as they are not clearly erroneous or wrong.

For example, in Molokoa Village Development Co., v. Kauai Elec.

Co., 60 Haw. 582, 593 P.2d 375 (1979), we stated that, “although

with only a few exceptions the trial court adopted findings of

fact prepared by counsel for Molokoa, the findings must stand if

not clearly erroneous.”      60 Haw. at 592, 593 P.2d at 382.10

     Based on the high volume of cases heard in our family

courts, it is unrealistic for our family court judges to prepare

their own findings of fact and conclusions of law in every case.

Although it would be preferable for the record to show that the

family court reviewed proposed findings of fact and conclusions

of law before adopting them verbatim, our law does not prohibit

wholesale adoption of proposed findings of fact and conclusions

of law as long as they are not clearly erroneous or wrong as a




10    In Molokoa, we cited to Wright and Miller, Federal Practice and
Procedure, Civil § 2578 (1971), governing “Preparation of Findings” under
Federal Rules of Civil Procedure (“FRCP”) Rule 52 (2009). FRCP Rule 52 also
does not have a provision specifically allowing a court to request that the
parties submit proposed findings.

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matter of law.   In addition, there is no basis for DL’s

assertion that the family court did not read the submissions

within the three days that elapsed between their submission and

adoption; counsel should not make unfounded assertions.

     Therefore, DL’s assertion that the 4/26/18 FOFs/COLS should

be rejected because the family court adopted CL’s submissions

lacks merit.

B.   The ICA did not err in affirming the family court’s
     denial of DL’s motion to disqualify CL’s counsel and law
     firm

     In the second question on certiorari, DL argues the ICA

erred in affirming the family court’s denial of DL’s motion to

disqualify CL’s counsel and law firm.

     HRPC Rule 1.10(c), Imputation of Conflicts of Interest,

generally states:

                When a lawyer becomes associated with a firm, and the
          lawyer is prohibited from representing a client because the
          lawyer’s former firm has represented a person whose
          interests are materially adverse to that client in the same
          or a substantially related matter, other lawyers in the
          firm may not thereafter represent the client unless:
                (1) the disqualified lawyer did not participate in
          the matter and has no confidential information regarding
          the matter;
                (2) the disqualified lawyer is timely screened from
          any participation in the matter and is apportioned no part
          of the fee therefrom; and
                (3) written notice is promptly given to any affected
          former client to enable it to ascertain compliance with the
          provisions of this Rule.

Comment 4 to HRPC Rule 1.10 states, however, that HRPC Rule 1.10

does “not necessarily prohibit representation by others in the


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law firm where the person prohibited from involvement in a

matter is a nonlawyer[.]”       Instead, such nonlawyers “may be

screened where effective from any personal participation in the

matter to avoid communication to others in the firm of

confidential information that both the nonlawyer and the firm

have a legal duty to protect.”        HRPC Rule 1.10 cmt. 4.

     DL’s motion to disqualify involved a paralegal and not an

attorney.    Even if the paralegal had been exposed to and had the

opportunity to acquire confidential information during

employment at DL’s prior law firm, pursuant to HRPC Rule 1.10

Comment 4, CL’s law firm would not necessarily be prohibited

from representing CL if an effective screen had been put in

place.11

     According to evidence the family court found credible, CL’s

law firm was aware of the conflict at the time of the

paralegal’s hiring and had put in place procedures that provided

effective screening “from any personal participation in the

matter to avoid communication to others in the firm of

confidential information that both the nonlawyer and the firm

have a legal duty to protect.”        See HRPC Rule 1.0(l).



11    “Screened” is further defined by HRPC Rule 1.0(l) (2014) to mean, “the
isolation of a lawyer from any participation in a matter through the timely
imposition of procedures within a firm that are reasonably adequate under the
circumstances to protect the information that the isolated lawyer is
obligated to protect under these Rules or other law.”
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Accordingly, the ICA did not err in ruling the family court did

not abuse its discretion, i.e., disregard rules or principles of

law or practice to the substantial detriment of a party

litigant, when it denied DL’s motion to disqualify.

C.   The ICA did not err in affirming the family court’s order
     awarding to CL sole physical custody of the parties’
     children and allowing CL to relocate the children to
     Arizona

     With respect to DL’s third and last question on certiorari,

as indicated in Section II.C above, the ICA carefully reviewed

the family court’s findings of fact and conclusions of law

regarding custody and relocation, which were supported by

substantial evidence.   For the reasons stated by the ICA, the

family court did not err in awarding sole physical custody of

the children to CL and allowing CL to relocate with the children

to Arizona.   Therefore, this question on certiorari lacks merit.

                           V.   Conclusion

     For the reasons explained above, we therefore affirm the

ICA’s   May 3, 2019 judgment affirming the family court’s (1)

April 26, 2018 Amended Findings of fact, Conclusions of Law and

Order Regarding:   June 21, 2017 Order Re:    Defendant’s Motion

for Pre-Decree Relief; March 13, 2016 Order Re:      Evidentiary

Hearing; and March 16, 2018 First Amended Order Re:      Evidentiary

Hearing, and (4/26/18 FOFs/COLs re child custody); and (2) the

April 23, 2018 Findings of Fact, Conclusions of Law and order
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Regarding Plaintiff’s Motion to Disqualify Counsel (4/23/18

FOFs/COLs re motion to disqualify).

Philip Leas                     /s/ Mark E. Recktenwald
(Rebecca A. Copeland
on the briefs                   /s/ Paula A. Nakayama
and application)
for Petitioner                  /s/ Sabrina S. McKenna

CL                              /s/ Richard W. Pollack
Respondent pro se
                                /s/ Michael D. Wilson




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