1997-12-3- Docketing Statement Kansas Court of Appeals Dom Brow Ski Case No. 96D217 (2)
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Transcript of 1997-12-3- Docketing Statement Kansas Court of Appeals Dom Brow Ski Case No. 96D217 (2)
8/8/2019 1997-12-3- Docketing Statement Kansas Court of Appeals Dom Brow Ski Case No. 96D217 (2)
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No. 97-80304-AS
IN THE
SUPREME COURT OF THE
STATE OF KANSAS
In th e Mat te r o f th e Marr iage o f
HALLECK RICHARDSON,
Pe t i t i one r /A ppe l l e e
v.
CLAUDINE DOMBROWSKI,
Respondent /Appel lant .
PETITION FOR REVIEW
Appeal from th e D i s t r i c t Cour t o f Shawnee County , Kansas
The Honorable James P. Buchele, Judge D i s t r i c t Cour t Case No. 96 D 217
GEARY N. GORUP
Atto rney a t Law
o f Counsel
RENDER KAMAS, L. C .
Sui te 700, 345 Riverview
P.O. Box 700
Wichi t a , Kansas 67201-0700(316) ·267-2212
Atto rney fo r Appel lan t
Claudine Dombrowski
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TABLE OF CONTENTS
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . 1
DATE OF THE DECISION . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . 2
The Evidence o f Violence by Mr. chardson . . .3
The Purpor ted Set t lement on Day o f Tr • • 6
The Evidence Permit ted a t a l . . . 7
The Divorce Decree . . • . • . • • • • • • _ • • . . . 7
ARGUMENTS AND AUTHORITIES . . . . . . . 8
1 . DID THE DISTRICT COURT'S POLICY TO PRES
SETTLEMENTS ON THE DAY OF TRIAL, ITS ARBITRARY
LIMITATION OF EVIDENCE AT TRIAL AND ITS ORDER
REQUIRING THE NATURAL MOTHER TO SUBMIT TO AN
UNREASONABLE RISK OF DOMESTIC VIOLENCE COMBINE
TO VIOLATE DUE PROCESS AND EQUAL TO
HER MINOR CHILD? ................... 8
A. STANDARD OF REVIEW . . . . . 8
In re Mariage o f McNeely, 15 Kan.App.2d 762,
815 P.2d 1125, rev . denied
249 Kan. 776 (1991) . . . . 8, 9
Slayton v. S lay ton , 211 Kan. 560,506 P.2d 1172 (1973) ................ 9
Sta te v. Richard, 252 Kan. 872,
850 P.2d 844 (1993) ................. 9
In re D.D.P. Jr . , 249 Kan. 529,
819 P.2d 1212 (1991) ................ 9
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S ta t e v. Pucket t , 230 Kan. 596,
640 P.2d 1198 (1982) . . . .......... 9
B. THE DISTRICT COURT'S COERCION TO SETTLE
THE CASE VIOLATED THE DUE PROCESS RIGHTS
OF THE APPELLANT . . . . . . . . . . . . . . . . 9
Stanley v. l i no i s , 405 U.S. 645,
31 L.Ed.2d 551, 92 S.Ct . 1208 (1972) ........ 10
Qui l lo in v. Walcot t , 434 U.S. 246,
54 L.Ed.2d 511, 98 S .c t . 549,
rehearing denied 435 U.S. 918 (1978) ......... 10
In re Cooper, 230 Kan. 57,
631 P.2d 632 (1981) ... . 10
Four teenth Amendment, United Sta tes Cons t i tu t ion . . 10
C. THE ARBITRARY LIMITATION ON THE NUMBER OF
WITNESSES AND TAKING JUDICIAL NOTICE OF FACTS
WITHOUT STATUTORY AUTHORITY DENIED THE
APPELLANT DUE PROCESS OF LAW .......... 10
Parish v. Parish, 220 Kan. 131,
551 P.2d 792 (1976) ................ 13
In re Marriage Osborne, 21 Kan.App.2d 374,
901 P.2d 12 (1995) . . . . .......... 13
In re R.C. , 21 Kan.App.2d 702,
907 P.2d 901 (1995) . . .......... 13
In re Cooper, 230 Kan. 57,
631 P.2d 632 (1981) ... . . . . 13
K.S.A. 6 0 - 4 0 9 . .11
K.S.A. 60-410 . . . .12
K.S.A. 60-1610 (a ) (4) . . . . 12
Four teenth Amendment, United Sta tes Const i tu t ion . . 11, 12
Sect ion 1, Kansas B i l l o f Rights ,Kansas Cons t i tu t ion ................ 12
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D. THE HOBSON'S CHOICE OF KEEPING HER CHILD OR
ENDANGERING HER LIFE WAS ARBITRARY, CAPRICIOUS
AND DENIED THE NATURAL MOTHER HER EQUAL RIGHTS
TO THE CHILD. . . . . . . . . . . . .13
Art i c l e 15, Sec. 6, Kansas Cons t i tu t ion . .14
Sec. 1, Kansas Bi l l of Rights , Kansas Cons t i tu t ion .14
CONCLUSION .......................... 15
APPENDIX A . . . . . . . . . . . . A-I
In the Matter o f the Marriage
Ha_Zleck Richardson and Claudine Dombrowski,
(unpublished opinion) No. 80,304 ( f i l edOctober 23, 1998) ...•..•......... A-I
APPENDIX B . . . . . . . . . . . . . . . . . . . . . . B-1
Journal Entry of Divorce
Tn the Matter o f Ma age
Halleck Richardson and audine Dombrowski,
Shawnee County Dis t r i c t Court Case No. 96-D-217
( f i l ed October 29, 1997) ............. B-l
CERTIFICATE OF SERVICE ....................C-1
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No. 97 803Q4-AS
IN THE
SUPREME COURT OF THE
STATE OF KANSAS
In the Matter o f the Marriage o f
HALLECK RICHARDSON,
Pe t i t ione r /Appe l lee
v.
CLAUDINE DOMBROWSKI,
Respondent/Appellant .
PETITION FOR REVIEW
PRAYER FOR REVIEW
COMES NOW Appel lan t , Claudine Dombrowski, and pursuan t to
Supreme Court Rule No. 8.03 respec t fu l ly prays fo r review of the
unpubl ished dec is ion of the Kansas Cour t o f Appeals f i l e d here in
(a copy o f which i s inc luded as th e Appendix to t h i s P e t i t i o n ) .
The Appel lan t reques t s a new t r i a l in which she would not be
unreasonably l imi from present ing necessary witnes ses to suppor t
her cla ims and to r e fu t e cla ims o f the Pe t i t i one r , and in which
the t r i a l cour t would no t abuse j u d i c i a l not ice power cont ra ry
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to s The A p p e l l a n t ~ so reques t s t h i s Cour t to s e t - a s id e
t he o rder r e qu i r ing h e r r e l oca t i on to th e Tope a , o r su f f e r
the loss o f cus tody of h e r c h i l d _ ( I I R. 305-09, 31 23}.
DATE OF THE DECISION
The unpubl i shed dec i s ion o f the Kansas Court o f Appeals was
f i l ed h ~ r e i n on October 23, 1998.
STATEMENT OF THE ISSUES
1 . Did s t r i c t c o u r t ' s po l i c y t o p r e s s u re s ements on
the day o f t r i a l , i t s a rb i t r a ry l im i o f evidence a t t r i a l and
its o rd e r requi r ing the n a t u r a l mother to submit to an unreasonable
r i s k o f domest vio lence combine to v io la t e due process and equa l
gh ts to h e r minor ch i ld?
STATEMENT OF THE FACTS
The p a r t i e s ' divorce cen te red around the r e s i d e n t i a l cus tody
o f t h e i r t h r e e year o ld daughter , Rikki . (I R. 18-20, 23-24, 30).
At the h e a r t of s Pe t i t i on fo r Review i s the Kansas o f
Appeals ' endorsement o f th e unreasonable l imi t a t ion o f evidence by
d i s t r i c t c our t a t t r i a l , and d i s t r i c t - - c o u r t - ' - s ~ u l t ± m a t u m the n a t u r a l mother endanger h er I i by re locat"fng' to t h e ~
communi ty of he i abus 'er, ,or l o se r e s i d e n t i a l cus tody of ' tha t d.
choose be tween 'her ch i ld -and h er l i f e .
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The opin ion of the Kansas Court o f Appeals re f a i l s to
mention the his to ry of violence by the na tu ra l f a the r aga ins t the
na tu ra l mother , and the l ike l ihood of violence if the
Appel lan t r e loca te s to the v i c i n i t y of abuser .
The Evidence o f Violence by Mr. Richardson
Mr Richardson has an extens s of c r imina l convic t ions
for violence aga ins t Ms. Dombrowski and o the r s . Mr. Richardson a t
t r i a l admit ted a c r imina l convic t ion from a b ar f i gh t and
a separa te inc ident r e s u l t a convic t ion for ba t t e ry o f a law
enforcement o{ f i ce r (IX R. 13-14, 16, 167) . His c r imina l h i s to ry
record a l so inc ludes dr iv ing under the i n f l uence o f a l cohol and
four more misdemeanor convic t inc lud ing domest ic violence
disorder ly conduct reduced a domest ic violence ba t t e ry aga ins t
. .cMs. Dombrowski ( I d . ) , obs t r uc t i on o f j u s t i c e and posseSSlon 01 ..
mar i juana (IX R. 36, 168, 170-71) . He has used an a l i a s to avoid
i de n t i f i c a t i on and a r r e s t (IX R. 170-71) .
Mr. Richardson admit ted to abusing Ms. Dombrowski (IX R.
75), bu t cIa combat was mutua l . Mr. Richardson i nd i ca t ed
t ha t the domest ic ence was "Not t h a t bad" (VII R. 51) . He
f i r s t s t ruck her , months pregnant , when she found out he was
still marr ied (IX R. 89) . Af te r R ikk i ' s b i r t h Ms. Dombrows was
beaten by Mr. chardson tWo- to- three t imes p er week, as well as
being kicked o r ked ou t o f t h e i r res idence from to him
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(VII R. 66) . Mr. Richardson below admit ted t h a t Ms. Dombrowski
moved out 'o f h is home with t h e i r ch i ld because he to ld her to "ge t
h er s h i t and ge t out " (VII R. 52) . When Rikki s t a ined the whi te
ca r pe t in t h e i r home, in anger he beat Ms. Dombrowski (IX R. 95) .
Mr. Richardson conceded t h a t Ms. Dombrowski would l eave
because of t h e i r arguing , and t h a t he had h i t her , bu t denied t h a t
was the reason she Ie (VII R. 45) . He admit ted s l apping he r , bu t
denied ever punching her ; he admi t t ed tw i s t ing h er l eg , bu t c la imed
it was i n s e l f -de fense (IX R. 173-74) . He admit ted t ha t s c r a t ches
shown in photos o f Ms. Dombrowski 's neck and face came from one of
h is f igh ts with her (IX R. 174) . Mr. Richardson once aimed and
cocked a shotgun a t Ms. Dombrowski and Rikki , bu t was s topped from
going any f u r t h e r by h is son (IX R. 89-90) . In February of 1996 Ms.
Dombrowski sought as s i s t ance from the Bat te red Women's She l t e r in
Topeka and l e f t with a su i t c a se ,he r ca r and Rikki (IX R. 93) .
The vio lence fol lowed t h e i r s epa r a t i on . On March 23, 1996, he
came to her apar tment on the p re tense of b r ing ing her fu rn i tu r e ;
,-
i n s t ead he brought a crow bar : ac ross he r s k u l l causing a wound
r e q u i r i n g ~ B ~ t i t ~ h ~ s (I R. 54-59; I I I R . ? ; IX R. 182-87) . s
vers ion of t h a t inc iden, t a l l eged t ha t she rece ived the wound
acc iden t l y as she drunkenly t r i e d to run him down whi le hanging
from t he wa i s t up ou t s ide the dr ive r ' s window; he c la imed her head
s t ruck a l ~ x 2" piece of cedar he had in h is hand (IX R. 175-80) .
Dr. Bernie Nobo provided a r epo r t to the d i s t r i c t c o u r t
emphasiz ing th e v o l a t i l e nature o f the r e l a t i onsh ip . Dr. Nobo d id
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no t fee l t ha t the ch i ld was-at ~ e ~ ~ o r i a i p a r t i ~ were not physica l ly pr e s e n t toge ther . However, the ch i ld
in th i sould be endangered should they g et in to a physical d i
highly vol Ie s i tua t ion . (IV R. 3 - 4 ) . Ms. Sharon l e r , Shawnee
county Court Services Of cer , agreed t ha t her ggest concern was
the domestic violence between them (VII R. 9) . The d i s t r i c t cour t
made f indings on th e hi s to ry of violence aga ins t Ms. Dombrowski:
"At t r i a l of t h i s case , considerable t ime was
spent proving t ha t s couple had a vio len t domestic re la t ionship and t ha t on a t l e a s t one occas ion Ms.
Dombrowski suf se r ious in ju ry the hands of Mr. Richardson al though the par t i e s cannot agree on exac t ly
when, where or how t h i s in jury was in f l i c t ed .
"From the evidence it appears to th e Court t ha t the v io lence in t h i s couple ' s re la t ionship comes from both direc t ions , ne i ther i s t o t a l ly blameless . Mr. Richardson, being male, i s s t ronger and therefore able to i n f l i c t grea te r physical in ju ry on Ms. Dombrowski than she on
him, however, th e Court f inds t ha t Ms. Dombrowski has i n i t i a t ed and provoked some of v io len t con tac t . Mr.
Richardson has been convicted of domestic ba t t e ry and a t
l e a s t one alcohol r e l a t ed offense .
l\\ The move from Topeka to Larned, due to the proximi ty of the par t i e s , has lessened the physi violence}. . .
" . . . it i s obvious t ha t supervis ion i s needed when the par t i e s exchange custody of the ch i ld because of the poten t i a l violence between th e par t i e s . . . "
( I I R. 3 1 5 -1 9 ) . Because of th i s violence the cour t ordered a l l
s i t a t i o n exchanges be supervised a t neu t ra l s i t e s ; extended
r es t r a in ing order another year ; and oined Mr. Richardson from
consuming a lcohol ic beverages when he had the ch i ld ( I I R. 3 1 9 -2 4 ) .
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The Purpor ted Set t lement on the Day o f Tr ia l
The Kansas Court of Appeals a t page 5 of i t s opinion
ind ica ted t h a t it found nothing in the record to support Ms.
Dombrowski's content ion of coerc ion o r a pre judice on th e p a r t of
the a l judge . On Apri l 17, 1997, the judge was anyth ing bu t
neu t ra l and detached in t ry ing to s e t t l e th e custody i s sue a t t r i a l
(V R. 4 27) . The Statement o f the Facts in the Br i e f o f Appel lant
c lea r ly demonst ra tes t h a t in pre l iminary remarks p r i o r to t r i a l the
judge.. w" :
ind ica ted 'a pre fe rence.
to• " . _ ••
fo l low-the __ recoInmendations- - ~ - - - - " " " " - - of - t he' ~ ~
guardian ad l i tem to_give r e s id e n t i a l custody to Mr. Richardson i f t
Tope ;' and d i rec t ed the guardian ad li tem to address h er di rec t ly
on h is reasons (V R. 2,4 , 7 ) . The judge to ld her t h a t exerc i s ing
c on t ro l over the ch i ld would be in the c h i l d ' s bes t i n t e r e s t (V R.
-....9), and t h a t th e dis tance between th e paren ts-made co-pa ren t i ng l
\imposs ib le (V R. 10) . The t r i a l cour t then to ld her t h a t she would
need to be wi l l i ng to s a c r i f i c e employment oppor tuni t i es and income
to re turn to the Topeka area to share custody ( Id . ) . He sa id t h a t
if she were unwi l l ing to make those compromises, she would be
de lega t ing t h a t decis ion to the cour t , "and someone i s no t going to
preva i l H (V R. 10-11) . The judge then sugges ted t h a t she t ake t h i s
"one f ina l opportuni tyH to t a lk and s e t t the case (V R. 10-12) .
One and one-ha l f hours a the Appel lant was to ld she would lose
custody if the case went to t r i a l , only Mr. Richardson and h is
counsel re turned to c our t to announce a se t t l ement ( Id . , 13-27) .
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The Evidence Permit ted a t Tr i a l
Pr ior to the subsequent a l The Honorable James P. Ie ,
Judge o f the D i s t r i c t Court , ided to " s t a r t put t ing clamps on"
(IX R. 185) . Judge B u c h e l e ~ l each s ide to the
of..- f ive -wi tnesses a t (IX R. 129) . He then prohib i t ed the
i n t roduc t ion o f hearsay repor t s or dence because the proper
witness could no t be ca l led to t e s t i f y (IX R. 36, 134-35, 147, 180
81) . The t r i a l cour t also took j ud i a l not ice of evidence without
s t a tu to ry author i ty or ev ident i foundat ion fo r admission and
with no opportuni ty fo r cross -examinat ion (IX R. 131-32, 183-84) .
ion
The Journal Entry o f Divorce ly fol lowed the se t t l ement
condi t the Appel lan t re jec ted in May o f 1997 (compare I I R.
313-23 and V R. 19-21) . With f u l l knowledge of the p o te n t i a l / o f
vIo when the p a r t i e s res ide the same community, bhe cour t ;- J
ordered her to r e l oca t e with the ch i l d i n Shawnee County, Kansas;I
on or January 1, 1998; if she il to do so, so le cus tody
would awarded- to Mr. Richardson ( I I R. 319-24) . The d i s t r i c t
cour t fu r t he r enjo ined Ms. Dombrowski making emergency ca l l s
to law enforcement of f ice r s without contac t ing a case
manager, and fa i l ed to provide fo r cont ingencies when th e case
manager was inaccess ib le , or when she or the Id were in imminent
danger o f harm Mr. Richardson ( Id . ) .
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The Kansas Court o f Appeals discussed the h i s to ry and
s ign i f i cance of the domes c vio lence h i s to ry a s ing le sentence
a t Page 2 of i t s unpublished dec is ion: "Dombrowski a l leged t h a t the
move was necessary to avoid fu r t he r abuse from Richardson and to
obta in employment." The appel l a t e opinion t o t a l l y f a i l s to address
the reasonableness of a d i s t r i c t cour t order t h a t requi res the
Respondent to chose between her ch i ld and her l i f e .
ARGUMENTS AND AUTHORITIES
I . DID THE DISTRICT COURT'S POLICY TO PRESSURE SETTLEMENTS ON THE
DAY OF TRIAL, ITS ARBITRARY LIMITATION OF EVIDENCE AT TRIAL
AND ITS ORDER REQUIRING THE NATURAL MOTHER TO SUBMIT TO AN
UNREASONABLE RISK OF DOMESTIC VIOLENCE COMBINE TO VIOLATE DUE
PROCESS AND EQUAL RIGHTS TO HER MINOR CHILD?
The domest ic c o u r t ' s t a c t i c to pressure se t t l ement a t t r i a l ,
i t s unreasonable r e s t r i c t i ons on evidence a t t r i a l , and i t s order
r equ i rg Ms. Dombrows to r e l oca t e are more about demonstra t ing
c on t ro l over the p a r t i e s and enforc ing the or ig ina l se t t l ement
/' . - ,- - -' -- .,.
terms khan the b e s t i n t e r e s t s of the ch i ld . ~ h e s e orders not only-"'"
vio la ted the cons t i t u t iona l r i gh t s of th e na t u ra l mother, but
unreasonably forces her to choose between her ch i l d and her I i
A. THE STANDARD OF REVIEW
The s t andard of review on i s sues of cus tody and v i s i t a t i on in
domest ic cases i s an abuse o f d i sc re t ion s tandard . In re Marriage
McNeely, 15 Kan.App.2d 762, 764, 815 P.2d 1125, rev . denied 249
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Kan . 77 6 ( 1991) . Jud ic i a l d i sc re t ion i s abused when jud ic ia l
ac t ion i s ' a r b i t r a r y , f anc i fu l , o r unreasonable , which i s another
way of saying tha t d i sc re t ion i s abused only where no reasonable
person would t ake the view adopted by the t r i a l cour t . Slayton v.
Slayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). Disc re t ion must
be exerc i sed in accordance with es t ab l i shed pr inc ip les of law.
State v. R.ichard, 252 Kan. 872, 882, 850 P.2d 844 (1993).
When cons t i t u t iona l grounds fo r r eve r sa l a re r a i s ed fo r the
f i r s t t ime on appeal , ord ina r i ly they a re no t proper ly before the
appel l a t e cour t fo r review. In re D.D.P. Jr . , 249 Kan. 5 2 9 ~ 545,
819 P.2d 1212 (1991). The appel l a t e c our t may consider an i s sue
ra i sed for the r s t t ime on appeal necessary to serve the
i n t e r e s t s of j u s t i c e or to prevent denia l of a fundamental r i g h t .
S ta t e v. Pucket t , 230 Kan. 596, Syl . Tt 1, 640 P.2d 1198 (1982).
B. THE DISTRICT COURT'S COERCION TO SETTLE THE CASE
VIOLATED THE DUE PROCESS RIGHTS OF THE APPELLANT.
The d i s t r i c t c o u r t ' s p r e - t r i a l t a c t i c s encouraging se t t l ement
were the domest ic cour t equiva len t of an "Al len charge" (VII R.
64) . What i s more dis turb ing about t h i s scenar io i s t h a t t h i s
not an i so l a t ed inc ident , but apparent ly pursuant to a loca l cour t
pol icy to give t h i s s o r t of charge and rou t i ne l y delay the s t a r t of
t r i a l fo r approximate ly one and-one-hal f hours to encourage a
" f i na l oppor tun i ty" to s e t t l e case (VI R. 10) .
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The United s t a t e s Supreme Court has recogniz th e fundamenta l
na tu re o f th e r e l a t i onsh i p between parent and ch i ld . Stanley v.
I l l i no i s , 405 U.S. 645, 31 L.Ed.2d 551, 92 S . c t . 1208 (1972). That
Court has sa id : "We have litt doubt the Due Process Clause
would be of fended ' [ i ] f a Sta te were to a t tempt to force th e
breakup of a na t u ra l family, over t he ob jec t ions o f the parents and
chi ldren , without some showing o f unf i t ness and fo r th e so le reason
t h a t to do so would be in ch i ld ren ' s bes t i n t e r e s t . ' " Quil loin
v. Walcott , 434 U.S. 246, 255, 54 L.Ed.2d 511, 98 S.Ct . 549,
earing denied 435 U.S. 918 (1978). The Kansas Supreme Court has
agreed t h a t a pa ren t ' s to the cus tody, care and c on t ro l of
h is o r her ch i l d i s a fundament l i b e r ty r i g h t pro t ec t ed by the
Four teenth Amendment of the Cons t i tu t ion of the United s t a t e s . In
re Cooper, 230 Kan. 57, 631 P.2d 632 (1981).
I f the Court o f Appeals does no t f ind coerc ion or pre judice in
th e se t t l ement t a c t i c s of the domest ic cour t , it i s di c u l t to
conceive o f what e l se th e d i s t r i c t cour t could have done to force
a se t t l ement - - except to make sure t h a t one who re fuses to s e t t l e
a case obta ins no b e n e f i t from going to a l .
C. THE ARBITRARY LIMITATION ON THE NUMBER OF WITNESSES AND
TAKING JUDICIAL NOTICE OF FACTS WITHOUT STATUTORY
AUTHORITY DENIED THE APPELLANT DUE PROCESS OF LAW.
The d i s t r i c t c o u r t ' s ru l i ngs guaranteed t h a t the Appel lan t
would not be c l u t t e r up i t s record wi th a lo t o f evidence by
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wi tnesses to f ive per
s and then a t t r i a l excluding documentary evidence because the
foundat ion could not be la s l imi ta t ion on the
sen ta t ion of t r i a l evidence cons t i tu ted an uncons t i tu t iona l
a l of a f u l l and f a i r hear ing of the fac tua l i ssues as
guaranteed by the Fourteenth Amendment Due Process of Law Clause.
The Kansas Court of Appeals a t Page 5 of i t s opinion
acknowledged these l imi t a t , bu t found no grounds fo r reversa l
because the t r i a l judge s a evidence was closed tha t he
agreed to give the pa r t i e s "the oppor tuni ty to argue with me to
open it up so you can submit fur ther evidence". No such comment
was found by e i the r of appel counsel fo r the par t i es and was
not c i t ed in e i the r the Brie of Appel lant or Appel lee .
Never theless , an "oppor tuni ty to argue with me to . .
fur ther evidence" a t the ose of evidence does not equate with
oppor tuni ty to present evidence. The t r i a l cour t did not open an
oppor tuni ty to present any re levant evidence, only an oppo ty
to argue about it. Nor d id the t r i a l cour t open an oppor tuni ty r
the cour t to accept evidence it had al ready excluded due to a lack
of foundat ion; the
a rb i ly l imi t ing the number of
cour t ' s heavy-handed conduct towards the
pa r t i e s d id not inv i te them to re-argue evident i a ry s ions
a lready made. Nor the t a l cour t open the oppor tuni ty to
cont inue the t r i a l to low the p a r t i e s to subpoena at tendance
of witnesses who had been sen t away.
11
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The t r i a l c our t was wel l aware of the claims and counter
claims of domest ic vio lence , denia l of v i s i t a t i on , denia l of
te lephonic communication with the chi ld , and many 0 r inc ident s
re levant to the whether so le custody should granted to e i t h e r
par ty . The a rb i t r a ry and capr ic ious l imi ta t ion of only f ive
witnesses , and then excluding re levant evidence o f c r imina l
convic t ions of vio lence , medical records and other evidence upon
s t r i c t appl i ca t ion of evident i a ry foundat ions c lea r ly vio la ted due
process of law. Throughout t r i a l th e cdqr t chas t i sed the pa r t i e s '
p r io r conduct , c a l l ~ d . them " l i a ~ s ' i , ) denied the oppor tuni ty to
presen t evidence to suppor t t he i r verac i t y , and inh ib i ted the r i g h t
o f Ms. Dombrowski to a f u l l and f a i r hear ing to present evidence to
suppor t her c la ims and to r e fu t e the claims by Mr. Richardson.
Fina l ly , th e d i s t r i c t cour t decided sua sponte to cons ider
evidence not presented a t t r i a l making i t s f indings of fac t and
conclus ions of law. At the c lose of t r i a l the cour t announced s
i n t e n t to ge t copies of · the pol ice and s h e r i f f ' s spatch r epor t s ,
ra the r than al low the par t i es to c a l l wi tnesses , to determine who
had l i ed in cour t . The t r i a l cour t took j u d i c i a l not ice of
newspaper adver t i sements in determining t ha t Ms. Dombrows could
have found employment in the pr iva t e sec tor or ina
pr i son asa
l i censed p ra c t i c a l nurse . No s t a t u t e permi ts the cour t t ake
such mat te r s in to evidence as a mat te r of - judic ia l , not ' ide. K. S .A.
60-409. The Appel lant was given no reasonable oppor tuni to
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chal lenge s hearsay, or even to address the j u d i c i a l not ice of
evidence a r the t r i a l was over. See K.S.A. 60-410.
The· "bes t i n t e r e s t s and weI re of t he / ch i ld" t e s t i s to be
used by the s t r i c t cour t in termining the r igh t to custody of
chi ldren . v. Par ish, 220 Kan. 131, 132, 551 P.2d 792 (1976);
Tn r e Mar r i o f Osborne, 21 Kan.App.2d 374, 377, 901 P.2d 12
(1995); see so K.S.A. 60-1610 (a) (4). However, the Appel lan t
did not have a 1 and f a i r hear ing before a neut ra l and detached
i l d ' s bes t i n t e r e s t s . Cf . , Tn re R. C., 21 Kan .App. 2d 702, Syl .
1, 907 P.2d 901 (1995). I t i s wel l es tab l i shed in Kansas tha t
paren ts ' r igh ts of custody and of t he i r Idren a re
l i be r ty in te re s pro tec ted by the Fourteenth Amendment Due Process
Clause . Tn re Cooper, 230 Kan. 57, Syl . 1, 631 P.2d 6 (1981) .
Ms. Dombrowski's r i g h t to equal and ina l i enable natura l ghts as
a parent to her daughter included as a pa r t of her l ibe r ty
i n t e r e s t s and her pur su i t of happiness were also by the
tri cour t ' s ac t ions . See § 1 of the 11 of Rights of the Kansas
Cons tu t ion .
D. THE HOBSON'S CHOICE OF KEEPING HER CHILD OR ENDANGERINGHER LIFE WAS ARBITRARY, CAPRICIOUS AND DENIED THE NATURAL
MOTHER HER EQUAL RIGHTS TO HER CHILD.
Shawnee County s t r i c t Court , being fu l ly aware of
h is to of domest ic vio even a f t e r the separa t ion of
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p a r t i e s , gave Mrs. Dombrowski th e Hobson's choice of he r chi ld o r
her Ii This unnecessary, a rb i t r a ry and capr ic ious asse r t i on of
t e r r i t o r i a l power and c on t ro l by the d i s t r i c t cour t under the guise
of the "bes t i n t e r e s t s of the c h i ld" denied her equal r i g h t s the
possess ion of her minor ch i ld in v io l a t ion o f Ar t i c l e 15, § 6 of
the Kansas Cons t i t u t i on . The b e s t i n t e r e s t s of the ch i ld cannot
r equ i re the deni o f MS.Dombrowski 's fundamental ghts to l i f e
and l i be r t y pursuan t to § 1 of the Kansas B i l l of Rights .
The Kansas Court of Appeals ' opinion , however, reduced e
cons t i t u t iona l i s sues to a mere economic argument t h a t the
'Appel lant -must"--bewrl"l ing to s a c r i f lce -he r - c l i r r enEhdme ' and
emplbyinent if s h e wants to mainta in cus tody of the ch i l d . This i s
more than a mat te r o f economics; it i s a mat te r o f I i and l imb.
The s ing le most compl ica t ing f a c to r was no t th e A ppe l l a n t ' s/
' ~ ' " "
move to Larned, b u t th e undisputed h i s to ry of domest ic vio lence
It h a t w i l l inev i t ab ly end in the se r ious phys ica l i n j u ry o r dea th o f
/
.', Ms. Dombrowski if she i s required to re turn to th e Shawnee County', '
\ area to main ta in any s o r t o f shared cus tody o f r ch i l d .//
-."'-- 7
I t i s undisputed t h a t when the two p a r t i e s remained in th e
same proximity , domest ic vio lence was i nev i t ab l e . Ms. Dombrowski's
cons t i t u t iona l r i gh t to her l i f e was j eopard ized by th e a rb i t r a ry
and c a pr i ous ru l ing t h a t it was in the b e s t i n t e r e s t s of the
ch i ld fo r he r to re turn to the community where she had suf fe red
dome ic abuse, where she would be more access e to v i o l en t
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temper of her b a t t e r e r whose cr iminal convic t ions fo r v io lence go
wel l beyond the conf ines o f th e home.
It i s a r b i t r a r y and capr i c ious fo r a d i s t r i c t c o u r t to requ i re
a ba t t e red woman to to s a c r i her per sona l phys 1 sa fe t y by
' r e t u rn i ng to cQmmuni ty of the · abuse r , who has repea ted ly
committed a c t s of v io lence upon her even t h e i r s e pa ra t i on .
To requi re a b a t t woman to choose between h er persona l sa fe t y
and r ch i l d i s an abuse o f d i s c r e t i o n .
CONCLUSION
The Appe l l an t r e s p e c t f u l l y reques t s t h a t Kansas Supreme
Court accep t review o f th e opin ion en te red by the Kansas Court o f
Appeals here in , and reverse d i s t r i c t c o u r t ' s orders r e l a t ing to
t "r j
. ch i c u s t o d y , / r e s i d e n t i a l cus tody and vi s i ta t ion .r
The Appe l l an t
a l so reques t s t h a t t h i s Cour t reverse any o r d e r which would base
th e be s t i n t e r e s t s o f th e chi ld upon th e endangering o f th e na tu ra l
mother by re ion t o the v ic in i t y o f her b a t t e r e r .
Respec t fu l ly Submit ted ,( ..;;G ~ . GEARY N.
At to rney \ Law
o f Counsel
RENDER KAMAS, L.C.Sui t e 700, 345 Riverview
P.O. Box 700
Wichi ta , Kansas 67201-0700
(316) 267-2212
At to rney fo r Appe l l an t
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APPIhNDITX A-TI NOT DESIGNATED FOR PUBLICATION
No. 80,304
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
HALLECK RICHARDSON, Appellee,
and
CLAUDINE DOMBROWSKI,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; JAN W. LEUENBERGER and JAMES P.
BUCHELE, judges. Opinion filed October 23, 1998. Affirmed.
Geary N. Gorup, of Render Kamas, L.C., of Wichita, for appellant.
Donald R. Hoffman, of Hoffman & Hoffman, of Topeka, for appellee.
Before MARQUARDT, P.L GERNON and KNUDSON, JJ.
Per Curiam: Claudine Dombrowski appeals ftop1. .a d i ~ ~ r c e d e c r e e which
."would require her to move back to the district court's jurisdiction or lose j-oip.t
custody of her minor child.)
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APPlhNDliX A-2 Dombrowski argues that her constitutional rights were violated by the district
court's ruling and by the court's policy to compel settlement of domestic issues
before trial. She further contends the district court erred in limiting the number of
witnesses each side could present at trial.
Dombrowski and Halleck Richardson were married in 1995, and a petition for
divorce was filed 4 months later. At the time of their marriage, their child, RD.,
was 11 months old.
At- ,some · ~ p o i n tustody and visitation issues were fiercely litigated. 4_ _ I
. IJombrowski sought and received the district court's- approval to move from!
Topeka, Kansas, to Great Bend, Kansas. ~ o m b r o w s k i alleged that the move was
, necessary to avoid further abuse from Richardson and to obtain employm-erif. She
also noted that while there was no statutory duty to obtain leave of the district court
to move from one county in Kansas to another, she sought permission to avoid any
concerns over the residential custody of RD .
.:
The court awarded Dombrowski temporary placement of the child and
ordered that Richardson would have the child 1 week out of the month. The court
,also ordered Dombrowski to move back to Topeka with RD. by a certain date or
.Richardson would assume' sole residential custody of the chilg. The court reserved
determining shared custody and appointing a residential parent until Dombrowski's
relocation deadline passed.
Dombrowski appeals.
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Dombrowski argues that her constitutional rights were violated by the court's
arbitrary ruling that it was in the best interests of the child for her to return to
Topeka, Kansas. She further claims that the unique circumstances of this case
denied her a full and fair opportunity to defend and to present evidence on her
behalf.
Dombrowski did not f i l ~ a motion for reconsideration or any other type of
post-judgment relief with the district court.
Dombrowski acknowledges that she failed to properly raise her contentions
but maintains this case' falls within the exceptions to the general rule where the
theories involve only legal questions arising on proven facts and it is necessary to
serve the interests of justice or prevent the denial of fundamental rights. See In re
M.M.L., 258 Kan. 254, 261, 900 P.2d 813 (1995).
I tis within the trial court's discretion to determine issues concerning child
custody and visitation. In re Marriage of McNeely, 15 Kan. App. 2d 762, 764, 815 P.2d
1125, rev. denied 249 Kan. 776 (1991); see In re Marriage of Bradley, 258 Kan. 39, 45,
899 P.2d 471 (1995). Discretion is' abused .when no -reasonable person would agree
with the trial court's actions. Fusaro v. First Family Mtg. Corp., 257 Kan. 794,804,
897 P.2d 123 (1995).
IIIIn determining the right of custody of children between parents, the
p r ~ m a r y consideration is the best interest and welfare of the children, and all other.
i s . ~ u e s are subordinate thereto.'" In re Guardianship of Williams, 254 Kan. 814, 819,
869 P.2d 661 (1994) (quoting Parish v. Parish, 220 Kan. 131, 132,551 P.2d 792 [1976]).
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APPENDllX A-4
liThe trial court is in the best position to make the inquiry and determination, and
in the absence of abuse of sound judicial discretion, its judgment will not be
disturbed on appeaL" Moran v. Moran, 196 Kan. 380, 386, 411 P.2d 677 (1966).
Here, the district court found the distance between the parents made.. i t
virtually impossible for an individual therapist or counselor to work with the J
family, for Richardson to have regular and frequent contact with. the child, and for
the parents to resolve their conflict!'. The court noted that if the long distance
/ visitation continued, it would take a toll on both the parents and the child. The
. court concluded 'that Dombrowski should relocate to Topeka with R.D. because it
was in the child's best interests for her to reside in a location where both parents
. would have access to her.)
The court further rejected Dombrowski's assertion that her move to Western
Kansas was prompted by the closure of the Topeka State Hospital. The court
emphasized that no evidence was presented regarding her effort to find
employment in the Topeka vicinity and took judicial notice of the Topeka
newspaper which advertised six to ten nursing positions in the area each weekend.
The court concluded that Dombrowski's residence in Western Kansas was not
necessary for her employment.
I
Dombrowski does not challenge the court's.finding regarding ~ e r daughter's>
(-best interests. Even i f Dombrowski disputed the finding, the testimony of the
guardian ad litem and the court services officer provides substantial competent
evidence to support the court's decision. Consequently I the mere fact that
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APPJhNDliX A-5
Dombrowski must decide whether to move or forfeit some of her rights to custody
does not establish an abuse of discretion.
Dombrowski next argues the district court violated her constitutional rights
by pressuring her into settlement negotiations the day of triaL
The trial judge held a conference on the day the case was scheduled for trial. '
An apparent settlement of the issues involving the child was later announced to the
court. The alleged agreement ~ a s i c a l l y provided' for jOint tustody'and ·required\ '
." \.
Dombrowski to move back to Topeka by a certam 'date or''1ose' resideilticir custody ofr
thechild."T Once she moved to Topeka, each parent would share residential custody
of the child on a week-by-week basis. If she failed to move by the certain time,
, Richardson would assume full-time residential custody of the child, subject to
reasonable visitation. In the interim, residential custody would alternate weekly
between the parents. The district court subsequently approved the se t t lemen
subject to the preparation of a journal entry. The next day, Dombrowski denied everagreeing to a settlement, and the oral agreement was never memorialized into ;,a?
written journal entry.
We find nothing in the record to support Dombrowski's contention of
coercion or a prejudice on the part of the trial judge.
The other issue raised by Dombrowski, the denial of a full hearing, would. be
more troublesome and perhaps the basis for reversal had not the trial judge stated,
late in the hearing: "[E]ven though I limited you initially, I want the record clear,
and I hope you all agree, I gave you the opportunity to argue with me to open it up
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AlPJPJhNDITX A-6
so you can submit further evidence." Both counsel agreed that the court allowed
them an opportunity.
In State v. Anderson, 243 Kan. 677, 678, 763 P.2d 597 (1988), our Supreme
Court recognized that "'[a] trial judge has the power within proper limits, to impose
limitations upon the number of witnesses, and to control their examination."'
At the time of trial, the parties' attorneys apparently indicated that as many as
50 subpoenas would be filed. However, the newly assigned trial court judge decided
to limit the presentation of evidence and informed the parties that he would only
allow each party to present five witnesses at the divorce trial.
While we agree with the power of the trial court to set limits, as recognized in
Anderson, we are also mindful of the language of Justice Lockett, writing in State ex
rei. Stephan v. O'Keefe, 235 Kan. 1022, 1027, 686 P.2d 171 (1984), in which he stated:
"The constitutional guarantee of providing for open courts and
insuring a civil remedy for injuries to persons and property is a
statement of our philosophy and a general rule which can be used to
solve civil conflicts. This right is generally regarded as one of the most
sacred and essential constitutional guarantees. However, the guarantee
creates no new rights but merely is declaratory of our fundamental
principles. In light of this guarantee, it is the policy and the obligation
of the state to furnish and of the courts to give every litigant his day in
court and a full and ample opportunity to be heard. This right extends
to everyone who may be materially affected by the action of the court in
a legal proceeding. The guarantee secures and places every citizen
within the protection of the law of the land. It insures the right of
every person protected by it to seek remedy by court action for any
injuries done to him or his personal property. The guarantee entitles
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APPJbNDITX A-7
the citizen to have justice administered according to the law without
denial or delay. A litigant is assured the right to prosecute or defend an
action, provided he prosecutes or defends the action as contemplated by
law. Since a prisoner can sue or be sued in this state he must be
afforded the right to his day in court."The right to a day in court means the right to be afforded an
opportunity to be heard."
The record reveals the court file was replete with information that was both
favorable and unfavorable to each of the parties. Moreover, the trial court allowed
Dombrowski's attorney to call an additional witness and gave her several
opportunities to present additional evidence at trial.
Based on the record before us, we find no abuse of discretion in the limits the
trial judge set here.
Affirmed.
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A p n t ~ - r ~ ~ W R i l I j f f l l & ' j Q 0 1 ~ t A L DISTWOCT Z9 9 37 an 'Sf
GE'NERAL dVn;SD!CTJDHTOPEKA. KANSAS
IN THE DISTRlCT COURT OF SHAWNEE COUNTY, KANSAS
DIVISION TWELVE
In the Matter of the Marriage of
HALLECK RICHARDSON
and
CLAUDINE DOMBROWSKI Case No. 96-D-217
JOURNAL ENTRY OF DIVORCE
This matter was tried to the Court on September 18 and 19, 1997 and taken under
advisement. The Court deems that the case is now fully submitted and after considering the
testimony and evidence presented at trial as well as the reports from social services providers
specifically Dr. Joel Nance, Dr. Richard Maxfield, guardian ad litem Scott McKenzie, the letter
ofJenny Shaw, the home visitation report of Shana O'Neil, court services officer, transcripts of
hearings before Judge Leuenberger, the Court has reached the following findings and conclusions.
1. This couple was married on the 22nd ofNovember, 1995 and separated on
February 5, 1996. This divorce case was filed on March 4, 1996. The parties are the parents of
one child, Rikki Alexandra Dombrowski., born on December 12, 1994.
2. The Court finds that the parties are incompatible and that a divorce should be
granted.
3. rpROPERTY DIVISION. Each party should be awarded all personal propeny
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APPENDliX B-2 currently in their possession and all personal property owned by them at the time of the marriage.
Mr. Richardson is involved in a Chapter 7 bankruptcy and makes a monthly payment of $314 per
month on his debts. Ms. Dombrowski is involved also in a bankruptcy case and make a $75 per
month payment. The Court would order that each party should conclude their bankruptcy
obligations and pay all debts they have incurred since the date of separation. Respondent is
awarded her KPERS account.
There are several items ofpersonal property which are in dispute. Neither party has
established by a preponderance of the evidence what would constitute the value of this property
how or when it was acquired. It has been established, however, that Ms. Dombrowski left the
marriage with only a suitcase and a few personal effects.
In November or December 1994, Mr. Richardson purchased a home. At that time the
parties were living together but were not married. Mr. Richardson testified he has executed a
contract of sale of this property for $78,950. There is a mortgage balance of between $49,000
and $50,000. In addition to the mortgage, there is an IRS lien against the property which Mr.
Richardson testified was approximately $4,800. After deducting these items and the $10,000
down payment which Mr. Richardson made with funds he acquired prior to cohabitation or
marriage, the Court concludes that there is,,an equity in this property of approximately $9,000.
The Court would order that Mr. Richardson pay to Ms. Dombrowski the sum of $4,500 upon the
closing of the sale of this property. In the event that the sale does not close, the Court will
impose a judicial lien in favor Claudine Dombrowski of $4,500 on the parties' real estate to carry
interest at 7.5% per annum from November 1, 1997. Based upon the weight of the evidence in
this case, it is the Court's conclusion that the $4,500 cash payment from the, sale of the residence
2
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is an equitable apportionment of property to Ms. Dombrowski for all claims she may have for her
interest in marital property. In the event of closing this sale before January 1, 1998, Mr.
Richardson is to pay to :MS. Dombrowski at closing or after Ms. Dombrowski has relocated to
Topeka, whichever occurs last.
4. MAINTENANCE The Court finds that maintenance should not be awarded in this
case.
, f
5. ,CUSTODY. . Each PartY requests the Court to award them custody of the minor
child. Temporary custody and visitation of the minor child has been fiercely litigated in this case
and has been the subject of several hearings before Judge Leuenberger.
At the trial of this case, considerable time was spent proving that this couple has had a
violent domestic relationship and that on at least one occasion :MS. Dombrowski suffered serious
injury at the hands ofMr. Richardson although the parties cannot agree on exactly when, where
or how this injury was inflicted. There is no evidence that either part has physically harmed Rikki.
From the evidence it appears to the Court that the violence in this couple's relationship
comes from both directions, neither is totally blameless. Mr. Richardson, being male, is stronger
and therefore able to inflict greater physical injury on Ms. Dombrowski than she on him, however,
the Court finds that:MS. Dombrowski has initiated and provoked some of the violent contact. Mr.
Richardson has been convicted ofdomestic battery and i at . l e ~ one alfPhol related offense.
Further, in the context of a custody decision, it is clear that neither parent at this time has the
capacity to co-:parent or to support the other parent's loving relationship with their daughter.
Mutual parental invol,:ement with this child been made.worse by Ms. DombrowskilsJ . -
unilateral decision to m()ve to L a r n ~ d , Kansas in. May of 1996. The distance between Topeka and
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APPlliND lX IB-4
Larned makes it virtually impossible for an individual treater to work with the family; for Mr.
Richardson to have regular and frequent contact with this child; to eStablisflartY r e a s o n ~ b l e
dialogue betWeen the parents toward resolving their conflicts. The move from Topeka to Larned,
due to the proximity of the parties, has lessened the physical violence. It'has; ~ o w e v e r , · d o ~ e
violence to the relationship ofRikki and her father.\ I f long distance visitation is continued, in the
Court's view, will take its toll not only on Rikki but each of the parties. The Court specifically
finds that separation ofthe child from either parent for long peFiods of t ~ m e is harmful for a, child• • - - + ... - - • .....
. . }
of about three years of age
..../
/ ' The Court believes that it is faced with choosing between two alternatives. The first is to. !I
place custody in one or the other the parents and continue a long distance visitation arrangement.
T h e ~ e c o n d choice is to'tequireMs:.Dombrowski to return to· Shawnee County withRikki and
/establish and a structured custody and visitation program so that Rikki may enjoy frequent and..
regular contact with both parents.
Ms. Dombrowski requests the Court to give her residential custody}n Pawnee Rock,
Kansas and visitation be ordered to take place in Wichita under supervised conditions, This plan
would curtail Mr. Richardson's access to Rikki even more than it currently is, Further, the Court
finds that there is no evidence which would support a court order for supervised visitation. While.,.
it is obvious that supervision is neede-d'when-theparties exchange custody of the child because of
the potential for violence between the parties, evidence is lacking that Mr. Richardson does not
adequately care for and protect the child. Mr, Richardson has been previously married. To that
marriage were born three children. From the evidence available to the Court, there is no basis to
support that Mr. Richardson has mistreated any ofms children in any way.
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The CSO, Sherri Keller, has had more contact with this couple and observed their
interactions more than any of the mental health professionals that have offered opinions. In the
Court's view, her recomrhendation to place custody in Mr. Richardson carri;S great weight. Also
weighing heavily in this case is the fact thafMs. Dombrowski has been the pririiaty caretaker· of
the child. The Court is always hesitant to change custody from a primary caretaker.
It is my conclusion that the best interest of the Rikki is-for her to reside-in a"]o"Catiom
where both parents have access to h ~ r ~ Further/the Court is ordering joint custody in this case as
7I am concerned that sole custody in either parent will result in manipUlation and abuse of their
position as sole custodian' to harm the relationship ofRikki and the other parent. ' The Court
enters tHe following specific orders rehiring to custody of the child:
A The Court awards joint custody of the parties' minor child with temporary
residential placement with the mother. Ms. Dombrowski is ordered to relocate with the child in
Shawnee County, Kansas, on or before January 1, 1998. Inthe event Ms. Dombrowski and t h ~
child are not residing in Shawnee County on January 1, 1 9 9 ~ , sole custody shall be ordered in Mr':
,Richardson. "
B. Shawnee County Court Services is appointed case manager to assist the parties in
developing a plan for residential custody and visitation pursuant to K.S.A 23-1001 et seq. after
. . IJanuary 1, 1998. The Court is reserving the question of shared custody or appointing a residential
,.parent for after January 1, 1998, at this tinie/In the event that the parties are unable to agree on
residential custody and visitation after relocation to Topeka, the Court will make a detennination
shortly after January 1, 1998 or upon motion of either patty i f impasse is reached 'prior to that
t i m ~ . ' · The parties are prospectively advised that its custody decision will be influenced by
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evidence on the willingness and ability of each parent to respect and appreciate the bond between
the child and the other parent. Each parent should endeavor during the next 60 days to
demonstrate a capacity to allow and foster a continuing relationship between the child and the
other parent.
c. As soon after the first of the year as it can be arranged, the couple shall consult
with Dr. Richard Maxfield for the purpose of re-evaluating the parties' circumstances and to
make recommendations regarding therapy for the parties and for a post-divorce co-parenting
process.
D. All exchanges ofRikki shall occur at the YMCA Safe Visit location under their
supervision.
E. The Court orders that neither party shall remove Rikki from Pawnee County or
Shawnee County except for direct transportation between Topeka and Pawnee Rock.
Specifically, this order means neither party shall take this child overnight to any location other
than their home without prior approval of the case manager. Disregard of this order will likely
.. result in a change of custody.
F. The Court orders the parties to work out petitioner's visitation in case
management through December, 1997 wherein the petitioner will have Rikki approximately one
week per month. All other orders and admonitions included in the May 28, 1997 order of Judge
Leuenberger notin
conflict with this order shall remainin
full force and effect.
G. ,Mr. Richardson shall not consume alcoholic beverages while Rikki is in his custody
or for four hours prior to picking her up for visitation.
H. Both parties are directed to complete anger management classes.
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I. During visitation with petitioner, the petitioner will assist Rikki in initiating a
telephone call to respondent every 48 hours at Sp.m. Respondent is enjoined from calling
PC!itioner's home except in case ofa bona fide emergency. Further, respondent is directed to not
call law enforcement authorities to investigate the petitioner .without first consulting with the case
manager. Failure to comply with this provision will result in alteration of the visitation schedule.
6. The Court has evaluated Ms. Dombrowski's assertion that her move to Lamed
was necessitated due to the closure oiTopeka State Hospital. No evidence was presented
regarding her effort to find employment locally. The Court has taken notice that the Topeka
Daily Capitol newspaper each weekend advertises from six to ten available positions for LPNs in
Topeka or surrounding counties including the Topeka Correctional Facility. The Court concludes
that Ms. Dombrowski's residence in Lamed is not necessary for her employment.
7. When Rikki was born the parties had not yet married. At that time the child was
named Rikki Alexandra Dombrowski. Petitioner, Mr. Richardson., requests that the Court order
that the child's name be changed to Richardson. The Kansas Court ofAppeals recently ruled In
Re: Marriage ojKillman, 23 Kan. App. 2d 975 that a trial court in a domestic relations action has
jurisdiction and the statutory authority to change the name of a child of the marriage which is
being dissolved.
The Court finds that it is in Rikki's best interest that her surname include the name of
Richardson. The Court'has made the decision that Rikki should have the benefitofrwo i n v o l v ~ d
parenfs. The ~ g g l e between Rikki's parents is significant and the animosity caused by her
surname can be easily eliminated. Since Rikki will be parented by both parents, there will be less
confusion i f her father's's surname is included. The Court notes that Ms. Dombrowski did not
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A P P ~ N D K X lB-3change her name at the time ofmarriage and therefore will permit her to elect whether or not
Rikki's surname shall be changed to Richardson or Dombrowski-Richardson. Attached to this
order, the Court is furnishing forms for counsel to complete to effectuate the name change. The
parties are directed to complete these forms and schedule and appointment with this Court to
execute same within 30 days from the date of this order.
8. The respondent's request for past maintenance is denied as the Court is without
jurisdiction to grant same. See In R e ~ M a r r i a g e ofBrown, 247 Kan. 152, 164 and K.S.A 60
161O(b)(2). Respondent's request for retroactive reimbursement ofmileage reimbursement and
medical expenses is also denied. Judge Leuenberger's order establishing child support and
structured visitation cannot be retroactively modified to increase Mr. Richardson's liability. See
In Re: Marriage ofBlagg, 13 Kan App 2d 530. Insofar as future travel expenses are concerned,
. ." . . .. . '. ,the Court finds that this cost should be borne by Ms. Dombrowski. It was she who removed-
herselfto Larned, Kansas. This unilateral decision should not impose a greater expense on Mr.
Richardson. Finally, the Court denies respondent's motion for retroactive child support. The
statute cited by counsel K.S.A 38-1121(e) is applicable to paternity cases. The Court does enter
judgment for all unpaid temporary child support ordered in this case.
9. For the months ofNovember and December, 1997, the Court orders child support
in the amount of $31 0 per month to be paid by the petitioner to the respondent in accordance with
the attached worksheet. The respondent shall provide health insurance and any uninsured health
care costs will pe divided equally. The Court will recalculate child support in connection with its
custody order or upon motion of either party if there is a change in c i r c u m s t ~ e s : !tespondent
shall claim Rikki as her dependent for income tax purposes in odd numbered years and petitioner
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AJPJPENDITX B-9 shall claim her in even numbered years.
I10. In respondent's closing argument, the claim is made for $602 representing medical
bills of petitioner's children from his first marriage that were "charged" to Ms. Dombrowski. The
Court is uncertain whether or not these expenses were paid by Ms. Dombrowski's insurance or
her personally. Assuming these expenses were paid by i n ~ u r a n c e , the request that she be
personally reimbursed for them is denied. In the event that Ms. Dombrowski is claiming that she
personally has paid medical bills for Mr. Richardson's children, the Court would direct that these
bills and her evidence of payment be itemized so that the Court may make a detennination on
whetheror
not a reimbursement should be made as a matter of equity.
11. The restraining order previously entered in this case is extended for a period of one
year.
12. Each party shall pay their own attorneys fees. Court costs are assessed against the
petitioner.
IT IS SO ORDERED.
ENTERED t h i J ~ day ofOctober, 1997, at Topeka, Kansas.
Copies to:
Don Hoffinan
AinkaKweliHarry MooreShem Keller .
Scott McKenzie
9
~ T A i E OF KANSAS, COUNTY OF SHAWNEE. ss.i h;:raby cemty the above !II1d tcregotng to be
i:! ! ~ u e and COtTet.T copy, lfIe ongmal 01 wnich:s jilud and s eX record in court
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APPlliNDXX C-li
CERTIFICATE OF SERVICE
This i s to ce r t i f y t h a t one (1) copy of t h i s Pe t i t i on fo r
Review were deposi ted in the Uni ted Sta tes Mail , f i r s t c lass
postage prepaid , and addressed to Mr. Donald R. Huffman, Attorney
a t Law, 112 West 7 th St ree t , Garden Sui te , Topeka, Kansas 66603 on
20 tht h i s day o f November, 1998.
Q , D " ~ ( j ~ , C ~ , , - ~GEARY N. ORUP
ATTORNEY AND COUNSELOR AT LAW