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



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

l

http://slidepdf.com/reader/full/Kan.App.2d




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

ii







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

iii



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.


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

1



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 .

2



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

3



(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

4



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 ) .

5



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) .

6



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 . ) .

7



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

8





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) .

9



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

10



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

t



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

12



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

13





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

14



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

15



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


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.)

1



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.



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]).

3



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



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

5



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



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.

7



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

1



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



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

3



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.

4



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

5



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.

6 .



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

7



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

8



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



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

Documents

1997-12-3- Docketing Statement Kansas Court of Appeals Dom Brow Ski Case No. 96D217 (2)