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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