NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-SEP-2022
08:46 AM
Dkt. 78 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
KIEU MEYER; STEPHEN MEYER;
KIEU MEYER on behalf of a Minor, Petitioners-Appellees, v.
MARY BASCO; JAMES BASCO, Respondents-Appellants.
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DSS-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)
Respondents-Appellants Mary and James Basco
(collectively, Bascos) appeal from the District Court of the
Second Circuit's January 11, 2021 Order Granting Petition for
Injunction Against Harassment and February 8, 2021 Order
Regarding Attorneys' Fees and Costs. 1
On appeal, the Bascos challenge the district court's
jurisdiction. Relying on Hawai‘i Revised Statutes (HRS) § 604-
10.5(g) (2016), the Bascos assert that the temporary restraining
1 The Honorable Blaine J. Kobayashi presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
order in this case expired on August 30, 2020 and, thus, the
district court "lacked jurisdiction to enter the Order Granting
Petition for Injunction Against Harassment on January 11, 2021"
and to award attorneys' fees and costs. We affirm. 2
On June 1, 2020, the Petitioners-Appellees Kieu Meyer,
Stephen Meyer, and Kieu Meyer on behalf of a minor
(collectively, Meyers) petitioned the district court for, inter
alia, (1) "[a]n ex parte temporary restraining order not to
exceed a period of ninety (90) days . . ." and (2) "[a]n order
of an Injunction not to exceed a period of three (3)
years . . . ." That same day, the district court granted the
temporary restraining order against the Bascos "for fifteen (15)
days, unless extended or terminated by the Court."
The district court held a hearing on the Meyer's
petition for injunction on June 15, 2020. However, due to the
contested nature of this case, further hearings were necessary,
and were held on July 6, 2020, August 17, 2020, September 28,
2020, December 7, 2020, and January 11, 2021. Each order for
continuance also ordered that the June 1, 2020 temporary
restraining order shall remain in effect.
2 The Bascos do not challenge extensions to the temporary restraining
order by the district court except to the extent it affected the district
court's jurisdiction to issue the injunction against harassment on
January 11, 2021, and to award fees and costs. Given our analysis below, we
need not address whether the temporary restraining order expired on
August 30, 2020 (i.e., after 90 days) or whether orders related to the COVID-
19 pandemic extended the statutory time period.
2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On December 28, 2020, after five hearings on the
injunction petition, the Bascos filed a motion to dismiss
asserting the district court no longer had jurisdiction to
proceed because more than ninety days had passed since the
issuance of the temporary restraining order. The district court
denied the motion to dismiss and granted the request to enjoin
harassment on January 11, 2021.
The Bascos' points of error on appeal require an
interpretation of HRS § 604-10.5 (2016) to determine whether the
alleged expiration of a temporary restraining order divests the
district court of jurisdiction over a petition to enjoin. We
review questions of statutory interpretation and subject matter
jurisdiction de novo. See Bhakta v. Cnty. of Maui, 109 Hawai‘i
198, 208, 124 P.3d 943, 953 (2005); Lingle v. Hawai‘i Gov't Emps.
Ass'n, AFSCME, Local 152, AFL-CIO, 107 Hawai‘i 178, 183,
111 P.3d
587, 592 (2005).
"[D]istrict courts shall have the power to enjoin,
prohibit, or temporarily restrain harassment" and "[a]ny person
who has been subjected to harassment may petition the district
court of the district in which the petitioner resides for a
temporary restraining order and an injunction from further
harassment." HRS § 604-10.5(b), (c).
"Upon petition to a district court under this section,
the court may temporarily restrain the person or persons named
in the petition from harassing the petitioner upon a
3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
determination that there is probable cause to believe that a
past act or acts of harassment have occurred . . . ." HRS
§ 604-10.5(f). That temporary restraining order, however,
"shall remain in effect at the discretion of the court for a
period not to exceed ninety days from the date the order is
granted." HRS § 604-10.5(g).
Once a petition for a temporary restraining order is
granted, a hearing must then be held on the petition to enjoin
within fifteen days or as set forth below:
A hearing on the petition to enjoin harassment shall be
held within fifteen days after the temporary restraining
order is granted. If service of the temporary restraining
order has not been effected before the date of the hearing
on the petition to enjoin, the court may set a new date for
the hearing; provided that the new date shall not exceed
ninety days from the date the temporary restraining order
was granted.
HRS § 604-10.5(g). "The parties named in the petition may file
or give oral responses explaining, excusing, justifying, or
denying the alleged act or acts of harassment." HRS § 604-
10.5(g).
Regarding the petition to enjoin, should the district
court find by clear and convincing evidence harassment of
"[p]hysical harm, bodily injury, assault, or the threat of
imminent physical harm, bodily injury, or assault," "it may
enjoin for no more than three years further harassment of the
petitioner[.]" HRS § 604-10.5(a), (g) (emphasis added). Should
the district court find by clear and convincing evidence
harassment of "[a]n intentional or knowing course of conduct
4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
directed at an individual that seriously alarms or disturbs
consistently or continually bothers the individual and serves no
legitimate purpose; provided that such course of conduct would
cause a reasonable person to suffer emotional distress[,]" "it
shall enjoin for no more than three years further harassment of
the petitioner[.]" HRS § 604-10.5(a), (g) (emphasis added).
Restated, a petitioner makes two separate requests to
the district court–a request for a temporary restraining order
and a request to enjoin harassment (i.e., order for injunction).
See HRS § 604-10.5(g). The petition for a temporary restraining
order may be granted on a finding of probable cause, and has a
statutory time limit of ninety days. HRS § 604-10.5(f), (g).
For the petition to enjoin harassment, the district
court must hold a hearing within fifteen days of granting the
temporary restraining order, or within the time set forth in HRS
§ 604-10.5(g). Should the district court find harassment by
clear and convincing evidence, it may or shall issue an order
granting the petition to enjoin depending on the nature of the
harassment. HRS § 604-10.5(g). That order has a statutory time
limit of three years. HRS § 604-10.5(g).
HRS § 604-10.5(g), however, does not require that the
district court decide the petition to enjoin harassment within
ninety days of granting the temporary restraining order. See
Ling v. Yokoyama, 91 Hawai‘i 131, 134, 980 P.2d 1005, 1008
(App. 1999) (holding that with respect to the requirement that a
5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
hearing be held within fifteen days, "the term 'held' suggests
that the parties must, at the least, convene or meet in a
hearing on the merits within the allotted time").
Moreover, HRS § 604-10.5(g) does not have any language
that indicates that the district court is divested of
jurisdiction over the petition to enjoin harassment after a
temporary restraining order expires. See State v. Villados, 55
Haw. 394, 397,
520 P.2d 427, 430 (1974) ("Because the
divestiture of jurisdiction is a serious matter, before a party
can claim that an act or statute has the effect of divesting
jurisdiction which has regularly and fully vested, the law in
favor of such divestment must be clear and unambiguous.")
It appears that the purpose of the temporary
restraining order is to protect the parties from imminent harm
by providing a period of separation while the district court
hears from the parties and decides whether to grant the petition
to enjoin harassment. See Hamilton ex rel. Lethem v. Lethem,
126 Hawai‘i 294, 305, 270 P.3d 1024, 1035 (2012) (discussing the
purpose of HRS chapter 586 temporary restraining orders as to
"provide emergency relief from imminent harm by assuring a
period of separation for the parties involved").
In sum, the petition for a temporary restraining order
and the petition to enjoin are related, and are part of a two-
step process. See HRS § 604-10.5(g). Each petition, however,
is a distinct legal vehicle for relief with different standards
6
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
of proof. See HRS § 604-10.5(f), (g). Thus, the district
court's jurisdiction over a petition to enjoin does not hinge on
the status of the temporary restraining order.
Finally, because the district court had jurisdiction
over the petition to enjoin harassment, the district court also
had jurisdiction over attorneys' fees and costs pursuant to HRS
§ 604-10.5(h), which provides that "[t]he court may grant the
prevailing party in an action brought under this section costs
and fees, including attorney's fees."
Based on the foregoing, we affirm the district court's
January 11, 2021 Order Granting Petition for Injunction Against
Harassment and February 8, 2021 Order Regarding Attorneys' Fees
and Costs.
DATED: Honolulu, Hawai‘i, September 20, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Hayden Aluli,
for Respondents-Appellants. /s/ Karen T. Nakasone
Associate Judge
Joy M. Yanagida,
for Petitioners-Appellees. /s/ Sonja M.P. McCullen
Associate Judge
7
