Download pdf - 1998 Brief of Appelant Dom Brow Ski

8/8/2019 1998 Brief of Appelant Dom Brow Ski

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IN THECOURT OF APPEALS OF THE

STATE OF KANSAS

In the Matter of the Marriage ofHALLECK RICHARDSON,Petitioner/Appellee

v.- ~ - " ...."-...~ ~ ; ~ ~ R-e-spondent/Appellant .

BRIEF OF APPELLANT

"].ppeal from the Distr ic t Court of Shawnee County, Kansas The Honorable James P. Buchele, Judge

Distr ict Court Case No. 96 D 217

GEARY N.GORUPAttorney a t Lawof CounselRENDER KAMAS, L.C.Suite 700, 345 RiverviewP.O. Box 700Wichita, Kansas 67201-070(316) 267-2212Attorney for Appellant


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NATURE OF THE CASE .. .. . .. . . . .. .. . . . .. . .. .. .. .. . . . ..

STATEMENT OF THE ISSUES....................STATEMENT OF THE FACTS . . . .. . . . . .. . . .. .

The Emergency Haring on the Move of Ms. Dombrowski to Larned . . . . . . . . . . . . . .The Pre-Trial Preparation Leading to the Original Tria l . '. ' . . . . . . . . . . . . . . The Purported Settlement on the Day of Trial . . . .The Hearing on Mr. Ambrosio's Motion to Withdraw.The Hearing to Place the Child in Protect ive Custody . . .The Preparation Leading up to the Second Trial Date ....The Evidence Permitted a t Tria l . . . . . . . . . . The Divorce Decree ....................

ARGUMENTS AND AUTHORITIES . . . . . . . . . .I . THE "POLICY" OF THE SHAWNEE COUNTY DISTRICT COURT DOMESTIC DIVISION TO PRESSURE LITIGANTS INTO SETTLEMENT AGREEMENTS ON THE DAY OF

TRIAL, COUPLED WITH THE SUBSEQUENT ORDERS AND ACTIONS OF THE DISTRICT COURT BELOW, DENIED THE RESPONDENT HER CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND HER EQUAL RIGHTS TO THE LIBERTY INTEREST IN HER MINOR CHILD .........A. STANDARD OF REVIEW . . . .In re Mariage o f McNeely, 15 Kan.App.2d 762, 815 P.2d 1125, rev. denied

249 Kan. 776 (1991) ..............

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http:///reader/full/Kan.App.2dhttp:///reader/full/Kan.App.2d


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. . . . . .........In re D.D.P. Jr . , 249 Kan. 529,819 P.2d 1212 (1991) ............... 48State v. Puckett, 230 Kan. 596,640 P.2d 1198 (1982) . . . . . . ........ 48Fourteenth Amendment, United States Consti tut ion . . 48Section 1, Kansas Bil l of Rights,Kansas Constitution . . . . . . . . 48, 49Article 15, Section 6, Kansas Consti tut ion ...... 48

B. THE DISTRICT COURT'S "POLICY" FO GIVINGTHE PARTIES IN A DOMESTIC DISPUTE THEEQUIVALENT OF AN "ALLEN CHARGE" UNDER THEUNIQUE FACTS OF THIS CASE DENIEDSUBSTANTIAL JUSTICE AND A RIGHT TO A FAIRTRIAL UNDER THE DUE PROCESS CLAUSE OF THEFOURTEENTH AMENDMENT TO THE UNITED STATESCONSTITUTION, AND DENIED THE APPELLANT OFTHE PROTECTIONS AFFORDED TO A PARENT BYTHE KANSAS CONSTITUTION. . ...... 49

Stanley v. I l l ino i s , 405 U.S. 645,31 L.Ed.2d 551, 92 S.Ct. 1208 (1972) ....... 52Quilloin v. Walcott, 434 U.S. 246,54 L.Ed.2d 511, 98 S.ct . 549,

rehearing denied 435 U.S. 918 (1978) ....... 52In re Cooper, 230 Kan. 57,631 P.2d 632 (1981). . . . . . . . . . 52, 56Parish v. Parish, 220 Kan. 131,551 P.2d 792 (1976) ................ 56In re Marriage o f Osborne, 21 Kan.App.2d 374,901 P.2d 12 (1995) ............... 56

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K.S.A. 60-410 . .K.S.A. 60-1610 (a ) (4) . . . Four teenth Amendment,

Sec t ion 1, Kansas B i l l o f Rights , United s t a t e s Const i tu t ion. . . . . . . . 52, 53Kansas C o n s t i t u t i o n . . . ......

Art i c l e 15, Sec t ion 6, Kansas Cons t i tu t ion .....

Model Rules of Profes s iona l Conduct, Rule 1. 16 (a) ( 3) . . . . . . . . . . . . . . . . Model Rules of Profess iona l Conduct , Rule 1.16 (b) (2) .............Model Rules of Profess iona l Conduct, Rule 1.16 (d) ...................

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . .

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . .

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COURT OF APPEALS OF THE

STATE OF KANSAS

In the Matter of the Marriage ofHALLECK RICHARDSON,Pet i t ioner /Appel lee

v.CLAUDINE DOMBROWSKI,Respondent /Appel lant .

BRIEF OF APPELLANT

NATURE OF THE CASE

This i s a d i rec t appeal from por t ions o f a decree of divorceentered in the Shawnee County Di s t r i c t Court on October 29, 1997,which would requi re the Appel lant to move from the Larned, Kansas,area to the Topeka, Kansas, area or su f fe r the l oss of primaryr e s iden t i a l custody of the minor chi ld ( I I R. 305-09, 313-23). TheRespondent 's reques t fo r a Stay Pending Appeal was denied by thed i s t r i c t cour t by a j ou rna l ent ry f i l ed December 1, 1997 ( I I R.

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- - .The Respondent here in also appeals herein from various adver

orders of the d i s t r i c t cour t tha t e s sen t i a l ly enforced the termand condi t ions of a se t t l ement agreement accepted by one of MDombrowski's former counsel below, but which was repudia ted by MDombrowski before it was reduced to wri t ing notwithstanding thinf luence of the d i s t r i c t cour t judge and the recommendation of hformer counsel ( I I R. 305, 313-23; IV R. 2-11) .

STATEMENT OF THE ISSUES1. Does the Shawnee County Di s t r i c t Court "pol icy" whi

t ends to compel se t t lement of domestic i s sues a t t r i a l , whcoupled with the l imi ta t ions se t upon the par t i e s oppor tuni typresen t witnesses and evidence on the complex fac tua l i s suest h i s case , deny the Respondent her cons t i t u t iona l r i g h t to dprocess of law guaranteed by the federa l and s t a t e cons t i tu t ions

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espon en - ppe an , au ne om rows , wer m arr e on ovem er22, 1995 (See, Pet i t ion , I R. 18 a t 3) . The sole ch i ld of t h a tmarr iage, Rikki Dombrowski, was al ready 11 months o ld as of theda te of t h a t marriage (See, Respondent 's Domestic Relat ionsAff idav i t , I R. 30 a t 3 and 6) . The Pet i t ion fo r divorce wasf i l ed l e s s than four months a f t e r the marriage commenced (See,Pe t i t ion , I R. 18) . From the beginning of the divorce a l l of thei s sues and evidence in dispu te centered around which of the twopa r t i e s should have primary r e s id e n t i a l custody of t h e i r chi ld(See, Pe t i t i o n , I R. 18-20, and Answer, I R. 23-24) .

Mr. Richardson upon f i l ing fo r divorce immediately requestedprimary r e s id e n t i a l custody of Rikki (See Pe t i t ion , I R. 18-20;see a lso Transc r ip t IV R. 3 ). The Respondent made an appl ica t ionfo r temporary maintenance and chi ld support on March 7, 1996, whichwas ignored by the d i s t r i c t cour ts u n t i l th i r teen months l a t e r(See, Applicat ion for Temporary Maintenance and Child Support a t IR. 38, 69, 159; see also , Temporary Child Custody and Support Orderf i l ed May 28,1997, I R. 186-190) .

Throughout the d ivorce proceedings th e Respondent f i l ednumerous Accusat ions in Contempt cla iming vio la t ions of there s t ra in ing order and request ing an order to sever con tac t betweenMr. Richardson and e i t h e r Ms. Dombrowski or Rikki . The f i r s t o f

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. , ,I R. 54-59; see a l so Transc r ip t IX R. 182-87) .

Within f ive days of f i l ing t h a t Accusat ion in contempt MrAlan F. Alderson, a t torney for Ms. Dombrowski, appeared before thHonorable Jan W. Leuenberger , Judge of the Dis t r i c t Court , Divis io'One, and announced t h a t he and Mr. Hoffman (counsel fo r MrRichardson) would l i ke t ime to work out the i s sues "withouc rea t ing a whole lo t o f fac t s in f ron t o f the Court" (Transcr ipof Hearing of Apri l 2, 1996, I I I R. 2) . Mr. Hoffman in suppor t ot ha t request advised Judge Leuenberger t ha t custody was not a majoproblem, but t ha t they needed some t ime to se t up v i s i t a t ion and t

! work on a "reasonable in te r im orde r on some f i n an c i a l help" ( Id .I I I R. 3 ) . Both Mr. Alderson and Mr. Hoffman agreed to s ign aOrder of Conci l ia t ion which inc luded a f inding t h a t it was " in t hb es t i n t e res t s of the pa r t i e s and t h e i r minor ch i ld ren t h a t therbe an amicable se t t l ement o f the custody and v i s i t a t i o n i s sues( Id . , I I I R. 4; see a lso , Order fo r Conc i l i a t ion , I R. 60 a t 1 )The Accusat ion in Contempt was not presented to the d i s t r i c t court h a t day o r upon any l a t e r day by Mr. Alderson (Transcr ip t oHearing o f Apr i l 2, 1996, I I I R. 5-6) . Ins tead of pursuing MsDombrowski's concerns fo r the sa fe ty o f he r se l f and Rikki from thhis tory of vio lence committed by Mr. Richardson, and contrary to a

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, ,Apri l Ms. Dombrowski replaced Mr. Alderson as her counsel withNancy E. Freund, Attorney a t Law (See, Motion to Allow Withdrawalof Counsel f i l ed Apri l 30, 1996, nota t ion on Appearance Docketnota t ion , I R. 1-18i see also Entry of Appearance f i led by Nancy E.Freund on May 1, 1996, nota t ion of Appearance Docket, I R. 1-18) .

The Emergency Hearing on the Move of Ms. Dombrowski to LarnedOn May 10, 1996, Ms. Freund f i l ed a Motion fo r Authorizat ion

to Move from Topeka to the Great Bend a rea so t h a t Ms. Dombrowski.could avoid the h is to ry of phys ica l and verbal abuse she hadsuffered from Mr. Richardson (I R. 61 a t en 4-6) . That Motion alsonoted t h a t Mr. Richardson had still not paid any ch i ld support(Id. , a t enen 7 and 12), and advised the d i s t r i c t cour t t ha t she hadbeen provided a opportuni ty for ga in fu l employment in the GreatBend area (Id. , a t en 9). Ms. Freund's Motion also noted t ha t whilethere was no s ta tu to ry duty to reques t l eave of the d i s t r i c t cour tto move from one county in Kansas to another , the Respondent soughtpermission to avoid any concerns over the r e s id e n t i a l custody ofRikki (Id. , a t en 11) . Mr. Hoffman requested an emergencyconference on th e mat ter , which was held on May 17, 1996(Transcr ip t of Hearing of May 17,1996, IV R. 2 ) . The emergency

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cour a s. om rows wou y e o ow ng on ay e wor na t Larned Sta te Hospi ta l and t h a t she would be res id ing a t 91Baker in Great Bend, Kansas (Id" a t 4-5, 14-15; see also Ordef i l ed June 17, 1996, a t 14) .

At t h a t hear ing Judge Leuenberger noted t h a t a res t ra in inorder was in place in Shawnee County Di s t r i c t Court Case No. 95 D696 i s sued on beha l f of Ms. Dombrowski agains t Mr. Richardso(Transcr ip t of Hearing of May 17, 1996, IV R. a t 3) in which MsDombrowski was given custody of Rikki sub jec t to reasonablv i s i t a t i o n by Mr. Richardson. Judge Leuenberger also took in tconsidera t ion the recommendations and f indings of Dr. Bernie Nobto Court Services Off icer Shar i Kel le r (Id. , IV R. 2):

"The - a f t e r t a lk ing with Mr. Nobo, he d id not fee l t h a t the ch i ld was a t personal r i sk , as long as the twopa r t i e s were not phys ica l ly presen t as betweenthemselves . In othe r words, it's a - whenever the twopar t i e s get together , it's a vola t ive s i tua t ion ; and, ofcourse , t ha t vo la t iv i ty could spread over to the ch i ld ,should they ge t in to phys ica l - a phys ica l d ispute asbetween themselves . f l (Id. , IV R. 3-4) .

Judge Leuenberger e lec ted to modify the Protect ion from Abuse ordei ssued by another judge as to reasonable v is i t a t ion based upon th"vo la t i ve s i tua t ion when the two are presen t fl , and temporar i lsuspended the reasonable v i s i t a t i o n in favor of a program osupervised v i s i t a t ion (Id. , IV R. a t 6-7) . While Judge Leuenbergepermit ted the move to Great Bend, the order included provisions fo

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s r c cour . , a , .

The Pre-Tria l Preparation Leading to the Original Tria lIn response Mr. Richardson's counsel f i led a Motion for Change

of Temporary and Permanent Residential Custody of Rikki (I R. 64).The hearing for th is motion, as well as on the original motion topermit the move to Great Bend, were original ly se t for June 6, 1996(I R. 65 and 63). However, on June 4, 1996, the clerk of thedis t r ic t court was advised to take the case off the docket for June6, 1996, by agreement of the at torneys unt i l the report of Dr.Maxfield was received (See Appearance Docket notat ions for June 4,1996, I R. 1-18 ) . This agreement between counsel further delayedthe hearing on the issues in the Affidavi t in Contempt and therequest for child support by Ms. Dombrowski; on June 5, 1996, Ms.Freund moved to withdraw c i t ing a "mutually asserted lack ofcommunication" between counsel and Ms. Dombrowski (See, Motion toWithdraw, notation of Appearance Docket a t I R. 1-18). On June 7,1996, Mr. John J . Ambrosio, Attorney at Law, entered his appearanceon behal f of Ms. Dombrowski (see Appearance Docket notat ion forJune 7, 1996, I R. 1-18).

Mr. Ambrosio waited unt i l August 28, 1996, to f i le a Motion toSet Child Support (I R. 1-18), but fai led to set the matter for any

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.November 5, 1996, se t t ing the t r i a l for January 30, 1997 (I R. 10108) . On t ha t same day Judge Leuenberger appoin ted Mr. ScoMcKenzie, Attorney a t Law, to serve as Guardian ad Litem to appeon beha l f of the minor ch i ld , Rikki Dombrowski (I R. 109).January 6, 1997, Mr. McKenzie moved to withdraw as Guardian Litem because Mr. Richardson had not advanced h is cour t -o rdershare of Mr. McKenzie's fees (see nota t ion on Appearance Docket fJanuary 6, 1997, I R. 1-18) .

During the in te r im Mr. Hoffman i s sued numerous subpoenas fp o t e n t i a l witnesses a t the t r i a l , but Mr. Ambrosio waited u n tJanuary 21, 1997, to f i l e a list of wi tnesses and exh ib i t s (I111-15). On January 23, 1997, the d i s t r i c t cour t advised c o u n sfo r the par t i e s by l e t t e r tha t the t r i a l scheduled fo r January 31997, had been canceled, and t h a t i ns t ead the cour t would holdschedul ing conference (I R. 124) .

On January 29, 1997, Mr. Richardson f i l ed a MotionEstabl ish Reasonable Vis i t a t ion Schedule Pending T r ia l (I R. 125On the fol lowing day the p a r t i e s agreed to a schedule beginniFebruary 7, 1997, fo r Ms. Dombrowski to l eave Rikki a t a prarranged neut ra l s i t e , and fo r Mr. Richardson to pick up the ch ifo r one week of vis i t a t ion ; t he rea f t e r , Ms. Dombrowski would ha

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, . .numerous subpoenas for the next t r i a l date , Apr i l 17, 1997 (seenota t ions on Appearance Docket, I R. 1-18, 132-134). The domest ict r i a l Factual Statement was f i led submitted by Mr. Hoffman on Apr i l15, 1997 (I R. 135) in which Mr. Richardson reques ted primaryres iden t ia l custody and ch i ld support in the amount of $347.00 permonth. Mr. Ambrosio wai ted u n t i l Apr i l 17 to f i l e a Factua lStatement , and the cour t records show no subpoenas i ssued by him onbeha l f o f Ms. Dombrowski (I R. 1-18) .

The Purpor ted Set t l ement on the Day of T r ia lPr io r to the commencement of t r i a l on Apri l 17, 1997, Judge

Leuenberger held a conference wi th counsel in chambers o f f therecord , and then on the record in c ou r t di rec ted Mr. McKenzie, asGuardian ad Litem, to place on the record h is comments \\with regardto one of the obs t ruc t ing problems as he sees it to making any typeo f - reaching any type o f fu r t he r agreements t ha t might e x i s t inre la t ionsh ip to custody and v i s i t a t ion" (Transcr ip t of Hearing ofApr i l 17, 1997, V R. a t 2 ) . Mr. McKenzie repor ted t h a t he hadat tempted to ob ta in advice from Ms. Dombrowski 's p r io r a t to rneys ,Ms. Freund and Mr. Alderson, bu t d id not l ea rn anything t h a t wasnot already in the cour t Ie ( Id . , a t 3-4) . The t r i a l cour t then

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.Ms. Dombrowski ( Id . , a t 4 ) . Judge Leuenberger noted t ha t ts ta tu tes required the cour t to en te r an order of j o in t custody, bif the cour t was requi red to make f indings in regard to socustody, "which might wel l inc lude the i nab i l i t y to communicatthe cour t would make such a f inding (Id. , a t 5 ). The judge thadvised the p a r t i e s t h a t if they could not reso lve the i ssuecustody themselves, then they delega ted the "heavy r e spons ib i lof making t ha t f i na l decis ion" (Id. , a t 6-7) . The judge threminded Ms. Dombrowski t ha t th e placement of the chi ld in hres ident ia l custody was only temporary and di rected Mr. McKenziemake a s ta tement d i rec t ly to Ms. Dombrowski (Id. , a t 7 ) .

Mr. McKenzie indicated t h a t as Guardian ad Litem h is b iggproblem was the i nab i l i t y of the parents to work toge ther , and t hwas why he recommended so le custody o f the chi ld to Mr. Richards(Id. )'. Mr. McKenzie based h is preference fo r Mr. Richardson upthe proximity o f h is res idence to the d i s t r i c t cour t (Id. , a t 7-Such proximi ty gave the cour t s t r i c t con t ro l over the par t i e ssucceed or to fa i l , and t ha t the resources ava i lab le in Topekathe monitoring of a supervised exchange was "so much eas ie r fo r tCourt here" (Id. , a t 8 ) . Mr. McKenzie also expressed h is s t rob e l i e f in keeping ha l f - s ib l ings of the extended family ( re fe r r i

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t h ~ ,Dombrowski might not have the same opportuni t ies in Topeka tha t shpresent ly enjoyed in Larned (Id . , a t 8-9) . Mr. McKenzie wanted thcour t to take cont ro l over the pa r t i e s and make a decis ion, r ighor wrong, which could be cor rec ted , if wrong ( Id. a t 9) .

Judge Leuenberger then indica ted tha t in l i g h t of thesfac tors it appeared to the cour t t h a t exerc is ing cont ro l over thchi ld would be in the ch i ld ' s bes t in te r e s t ( Id . ) . The judge c i t eas the "complicating fac tor" the distance between the parents whicmade "co-parent ing" impossible ( Id . , a t 10) . The judge then adviseMs. Dombrowski tha t :

\\ Parents f requen t ly a re ca l l ed upon to makesac r i f i ces fo r t he i r chi ldren; and if sac r i f i c ing means,you know, giving up a promotion and a job fo r more incometo s t ay in close p r o x i m i t y ~ then t h a t may need to bedone. And it would seem to me t h a t with your sk i l l s andyour exper ience, t h a t three i s a good opportuni ty tha tyou might f ind , maybe not for the same money, butsubs tan t i a l ly the same, and in an area not necessa r i lyTopeka, Lawrence or some place t h a t would put you in thepos i t i on to perhaps share o r it could be shared, what,somewhat o f a cus tod ia l bas i s .

"Now, I 'm not prejudging this. . But I simplywant to , if it would expedite the handl ing of t h i smatter , then, and the ul t ima te ly it's going to be, ifyou ' re unable to make some compromises yourse l f , thenit's going to - you ' re going to delegate t h a t to theCourt and then someone i s going to prevai l and someone i snot going to preva i l .

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" ... I want to give you a f ina l opportuni ty here fo rabout 15 minutes and t a lk th i s over among yourse lves ;otherwise, we ' l l go forward with the evidence ."(Ido, a t 10-12) .

That hearing concluded a t 2:45 p.m. , and a t 4:11 p.m. only MHoffman and Mr. Richardson re turned a n n o ~ n c i n g to the cour t tse t t l ement and compromise t h a t the d i s t r i c t cour t had desi red ahad recommended of Mso Dombrowski (Id . , 13-27) . Mr. Hoffman advisthe cour t t h a t both Mr. Ambrosio and Ms. Dombrowski had l e f t , at he rea f t e r through the tes t imony of Mr. Richardson placed on t

record the terms of the agreement reached:1 . The ch i ld would be placed in the j o i n t custody of t

pa ren t s ( Id . , a t 19).2. Ms. Dombrowski would be given u n t i l July 12, 1997,

re loca te from Larned to Topeka ( Id . ) .3. I f Ms. Dombrowski f a i l ed to re loca te to Topeka by Ju12, then Mr. Richardson would assume fu l l t i

r e s iden t i a l custody of ~ R i k k i ( Id . , a t 20) .4. Thereaf ter , Ms. Dombrowski would have some reasonab

vis i t a t ion to be es tabl ished under the gu ide l ines ( Id .5. However, assuming t ha t Ms. Dombrowski did re loca teTopeka the parents would share res iden t ia l custody of t

ch i ld on a week by week bas i s ( Id . ) .6. In the meantime r e s id e n t i a l custody would a l t e rnaweekly commencing Apri l 19, 1997, in Topeka to MRichardson, fol lowed by the c h i l d ' s re tu rn to M

Dombrowski a t a pre-designated locat ion in Abilene ( Id12


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. .8. Uninsured medical cos t s for the ch i ld would be s p l i tevenly by the paren ts ( Id . , a t 21) .9. No ch i ld suppor t would be paid by e i the r par ty ( Id . ) .10. The non-res iden t ia l paren t would have reasonable

te lephonic contac t with the ch i ld ( Id . ) .11. Nei ther par ty would seek any alimony or maintenance

(Id.) 12. Mr. Richardson, who had prepa id the co ur t cos t s , wouldbear the cos t s of the f i l ing fee ( Id . ) .13. Mr. Richardson would re tu rn and de l ive r Claudine ' s

c loth ing to her a t the upcoming v is i t a t ion ( Id . ) .14. A ll other personal proper ty would remain as it i s ( Id . ) .15. Each par ty would be responsible for i t s own at torney fees(Id. ) .16. The p a r t i e s would s p l i t the Guardian ad Litem expenses(Id.)

The cour t approved the se t t lement as presented by Mr. Hoffman andMr.. Richardson in the absence of Ms. Dombrowski and her counsel anddi rec ted Mr. Hoffman to prepare a journa l en t ry ( Id . , a t 23, 26) .

The Hearing on Mr. Ambrosio 's Motion to WithdrawOn Apri l 18, 1997, Ms. Dombrowski not i f i ed Mr. Ambrosio in

wri t ing tha t she was re l ieving him of represen t ing her in cour t (IR. 1-18) . Mr. Ambrosio led a Motion to Withdraw the same day (IR. 1-18) . On the same day Ms. Ainka C. Kweli, Attorney a t Law,

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. . . McKenzie which included a motion to stay judgment on the custody o

.:. the chi ld , a motion for temporary custody of the child, andmotion for the appointment of a new Guardian ad Litem (I R. 141-61I I R. 162-72). Mr. Hoffman responded on May 9, 1997, by f i l ingMotion to enforce the shared custody agreement, and on May 19 bf i l ing a separate motion for an order t ransferr ing immediatcustody of the minor chi ld to Mr. Richardson (II R. 1 7 5 - 7 9 ~ . McKenzie on May 19 f i led a dif feren t motion for protect ive custod---- an Dombrowski would be l ikelo f the child upon al legat ion that Ms.to move out of Kansas with the child or hide the child from thcourt i f not immediately detained (II R. 180-82). An emergenchearing designated as a "scheduling conference" was granted to MrHoffman and to Mr. McKenzie by the d is t r i c t court on May 19, 199(Transcript of Hearing of May 19, 1997, VI R. 2-3) .

At tha t hearing Mike Broemmel, Attorney at Law, appeared obehalf of Ms. Kweli who was a presenter a t a CLE conference (Id.a t 2, 12, 20; see also Transcript of Motion for Order of ProtectivCustody, VII R. 85). Judge Leuenberger at this hearing asked MAmbrosio to provide his reasons fo r withdrawing as counse(Transcript of Hearing of May 19, 1997, VI R. 3). Mr. Ambrosithen embarked upon a disser ta t ion which proceeded for eight page

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the shabby treatment tha t has been given to me by new counsel, but by what has occurred in this case. And again, I wil l not violate the attorney-cl ient pr ivi lege, but I wil l t e l l you tha t my cl ient came to my off ice af te r receiving my colleague Mr. McKenzie's report , the guardian ad l i tem's record, and she said tha t - she read tha t repor t . I believe it was the day before the scheduled t r i a l . Mr. McKenzie did not get tha t to my off ice unt i l that Monday or maybe the weekend before. "I'm not in any way being cr i t i ca l of Mr. McKenzie. I had time to read the report . I had time to prepare for the hearing . . . I was in a court appearance and she cam back tha t evening to discuss them and to prepare for t r i a l . . "I appeared the day of t r i a l about a half hour early. Mr. Hoffman and I had cal led and indicated we were going to meet a half hour early. The Court also, I recal l , had a br ief conference and did not prejudge th i s case, expressed some concerns, did not prejudge in any way, did not give a statement as to which way the Courtwas going You were pre t ty s t ra ight about tha t ."But we had a conference with the par t ies and counsel . The Court then indicated he would give the par t ies and counsel time to discuss the matter . "My colleague Mr. Hoffman and his client , myself, my associate Ms. Downey, and Ms. Dombrowski met in your conference room an hour, an hour and 20 minutes. Don't remember how long i t was. And during tha t time, my cl ien t was allowed to speak with some of her friends, two of whom were lawyers, I believe, and also some of them from Battered Women's Task Force. In that room, she entered into an agreement and we agreed on a number of i ssues." (VI R. 4-7).

Af ter placing upon the record his recollect ion of port ions of theagreement purportedly made, Mr. Ambrosio continued:

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, ,ind ica ted t h a t was giving you pause fo r concern, Ibe l ieve were your words. That may be my words, butt h a t ' s what I go t out of it. She agreed to re loca te inth i s county, a t l e a s t c lose to th i s county , maybe ge t ajob in Douglas County in a nursing home or some othe rcounty. She agreed.

"We went over and over th i s with her and she agreed

"My c l i e n t was happy with, with tha t se t t lementagreement. We l e f t the cour thouse and we t a lked . Shed id - never to ld me she wasn ' t happy and she l e f t . Thenext th ing I knew, the next th ing I received from her tomy secre tary or para legal , indica t ion tha t we was o ff thecase . " (VI R. 8-9) .

Then Mr. Ambrosio came to the reason he was making th i s s o r trecord before the d i s t r i c t cour t in the absence of Ms. Dombrows

"My reason fo r withdrawing i s I was t aught as ayoung lawyer when I s t a r t ed prac t ic ing in t h i sj u r i s d i c t i o n ~ dea l i s a deal . You give your word andyour c l i e n t gives a word, and you have a se t t lement . Youdo not go back the next day, you do no t go back a weekl a t e r . And I th ink I have t h a t repu ta t ion . I may be apain in the ne - a pain in the neck to a lo t of people ,I may be aggress ive , but I th ink most lawyers wi l l t e l lyou, I th ink a l l lawyers wi l l t e l l you tha t my word i s myword and once my c l i en t says t he re ' s a se t t lement , wenever have any problems a f t e r t ha t .

"And al though Mr. Hoffman and I have fought fo ryears and years a t the drop of a ha t , I th ink he wi l lt e l l you the same th ing , we both t r u s t each othe r . Andal though we' re aggress ive advocates , once we give ourword tha t th i s i s a set t lement , you have a set t lement andyou don ' t go back on it even if the next day you havesome doubts or even i f a week l a t e r your c l i en t i s havingsome doubts because the c l i en t i nd ica tes t ha t they ' r egoing to s e t t l e .

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"I l e f t the courthouse tha t day and did not go inand t e l l you ' l e t ' s try this case ' because we had a dealand my c l ien t said we had a deal . I know i t ' s not mychoice and she made the decision and Mr. - Mr. Dombrowski[sic] made the decision with the advice and consent oftwo of the lawyers in th is case, both of whom areexperienced." (VI R. 9-10).Judge Leuenberger then recal led tha t nei ther Mr. Ambrosio nor Ms.Dombrowski were in court when the sett lement was announced by Mr.Hoffman and jur isdic t ional testimony was taken from Mr. Richardson(VI R. 10-11). Mr. Ambrosio responded that such procedure was par tof the agreement between he and Mr. Hoffman, and that he had sincereviewed the journal entry prepared by Mr. Hoffman and found i t tobe consistent with a l l of the agreements that "my c l ient enteredinto with Mr. Dombrowski [sic] and vice versa on that ." (VI R. 11).

" However, before t r i a l , and I wit l t e l l you, wewere - I was prepared to t ry that case and Ms. Dombrowskiknew i t . Mr. Hoffman had a ser ies of witnesses here inorder to t ry the case."The reason I'm withdrawing or asking the Court 'spermission to withdraw i s because I made a deal . Myc l ien t made a deal . And then the next day, without aword to me, she recanted. I can ' t represent someone l iketha t , Judge. I could not give her effect ive assistanceof counsel when one enters in to a deal and then changesi t ."And I'm further angry tha t we had an agreement,that unt i l she moved back here, that that chi ld would bewith Mr. Dombrowski [sic] every other week. And I'mangry about that because that was the deal that we struck.... " (VI R. 11-12).

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. .Judge Leuenberger then turned to the fac t tha t notwithstandin

an ora l agreement between the par t ies , such approval was subjec t being reduced to wri t ing and approved by counsel and/or by threspect ive c l i en t s (VI R. 15) . Mr. McKenzie addressed the cour th is motion fo r an order o f emergency pro tec t ive custody d i rec t inthe Shawnee County Sher i f f to go to Larned, Kansas, f ind the ch iand re turn the ch i ld to Topeka to the re s iden t i a l custody of MRichardson (VI R. 17-19) . Mr. McKenzie made the argument basupon h is understanding of the his to ry of Ms. Dombrowsdisappear ing fo r "weeks on end with t h i s minor ch i ld when shenot get t ing along with pe t i t i one r" , and upon h is claim t h a t MDombrowski had threatened to leave the j u r i sd ic t ion with the chiin s ta tements to the cour t services o f f i c e r (VI R. 18) . .. MMcKenzie i nd ica ted t h a t he was dis turbed t h a t agreed v i s i t a t i oexchanges did not occur , and argued t h a t Ms. Dombrowski hcommitted the cr iminal offense of in te r fe rence with paren tcustody (VI R. 19) .

However, it was noted t h a t on the day of the or ig ina l t r i aThursday, Apri l 17, 1997, Mr. Richardson had v i s i t a t i o n from t hday fo r a little more than a week u n t i l Saturday, Apr i l 26, 19(VI R. 24, 25-26) . Pursuant to the most recent agreed orderv i s i t a t ion Ms. Dombrowski would re t a in re s iden t i a l custody for t

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, . ~ e r tha t may have been due to confusion fol lowing the repudia t ion ofthe agreement a t t r i a l (VI R. 26) . The Court deferred the mat terto the fol lowing day to permit the a t tendance of Ms. Dombrowski inperson to be able to respond to the a l lega t ions (VI R. 26-27, 29) .

The Hearing to Place the Chi ld in Protec t ive CustodyAt the hear ing o f May 20, 1997, Mr. McKenzie proceeded with

the Guardian ad Litem's motion fo r an emergency order of protec t ivecustody to remove the ch i ld from the r e s id e n t i a l custody of Ms.Dombrowski and given to Mr. Richardson (Transcr ip t of Motion fo rOrder of P ro tec t ive Cus t ody , VII R. 6-61) . Shar i Keller , CourServices Officer , t e s t i f i ed to the arrangements made for supervisedexchange of the ch i ld between the p a r t i e s in Sal ina , bu t tha t inSeptember of 1996 Mr. Richardson advised her he did not wish tocont inue supervised v i s i t a t i o n s under . those arrangements (VII R.7 ) . Ms. Keller a lso spoke to the h i s to ry of violence between thep a r t i e s :

" . . My bigges t concern in working with them ea r ly onwas th e domestic violence between the two of thesepeople , which I addressed between the two people . " (VIIR. 9 ) .

Ms. Keller spec i f i ca l ly r eca l l ed warning the p a r t i e s t ha t thesetypes of domestic violence cases might end up with Rikki being

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. . . .l ea rned tha t Ms. Dombrowski had as a ch i ld been placed SRS, atha t she did not have pleasan t memories of such placement ( Id .Ms. Keller came to the conclus ion t h a t if the d i s t r i c t couchanged custody to Mr. Richardson or placed the ch i ld in Scustody, tha t Ms. Dombrowski would be a "run r i sk with the chi l(VII R. 12) . Later in her tes t imony Ms. Kel le r admit ted t h a t tonly t ime Ms. Dombrowski had ever in t imated or suggested an i n t eto " leave the j u r i sd ic t ion" with the ch i ld was when she informMs. Kel le r t h a t she was moving from Topeka to Great Bend (VII14-15) . Ms. Kel ler admit ted t ha t there was no other statement frMs. Kel ler threa tening to take the ch i ld anywhere e lse o r to leathe s ta te of Kansas (VII R. IS , 21) . Ms. Kel ler also admit ted t hshe had not had any problems contac t ing Ms. Dombrowski (VII R. 228) . Ms. Kel le r a lso ind ica ted t h a t she agreed with the guardiad l i tem's motion to place the ch i ld with Mr. Richardson becaus

"The concern I have i s t ha t the two of these par t iesentered in to an agreement to share custody of the ch i ldso t ha t she could grow up with a mom and a dad and t ha twas not kept and I 'm concerned why t h a t was not kept ."(VII R. 28-29) . Although Ms. Kel le r be l ieved t h a t the ch i ldwhereabouts and the contac t with both paren ts needed tomainta ined, Ms. Kel le r d id not bel ieve t h a t Rikki needed toplaced in pro tec t ive custody (VII R. 29) .

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. 3 4 - 3 6 ~ .He t e s t i f i e d t ha t Ms. Dombrowski had t o ld him t h a t if the re weret h r e a t t h a t he would g e t cus tody of Rikki , t h a t she woulul t ima te ly take the ch i ld and go "underground", qu i t nurs ing anr e s o r t to pros t i t u t ion to suppor t herse l f (VII R. 39) . Hsugges ted t h a t she might take the c h i l d overseas to her f a the r inBelgium (VII R. 41). He also complained t h a t on s e ve ra l occas iont h a t he had gone to Sal ina o r Abilene fo r superv ised v i s i t a t i o nbu t t ha t Rikki would not be there (VII R. 35, 43-44, 53-55, 59-60)Mr. Richardson conceded t ha t most o f the t imes t h a t Ms. Dombrowskl e f t with the ch i ld were pr i o r to the divorce and any custody orde(VII R. 45). He a lso admit ted t h a t she would leave because of th earguing between them, and t h a t he had h i t her before , bu t t h ah i t t i n g was not the reason fo r her leav ing every t ime ( Id .) . Hconceded t h a t a pe r s on ' s pe rsona l sa f e t y was a va l i d reason toleave th e home (VII R. 45-46) . He cla imed to have given "severahundred do l l a r s " i n suppor t to Ms. Dombrowski p r i o r t o Apr i l o1996, and agreed t h a t he had not cont r ibu ted any suppor t fo r thc h i l d to Ms. Dombrowski in the 13 months fol lowing th e f i l i ng othe divorce (VII R. 46) . He a l so conceded t h a t he had nocont r ibuted to her cos ts for hea l th insurance fo r the ch i ld ( Id .)

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b e t ~ e e n ,t h a t it was "Not t h a t bad" (VII R. 51) . He conceded t h a t on al e a s t one occasion Ms. Dombrowski moved out of h is home with t h e ic h i l d because he to ld her to "get her s h i t and ge t out" (VII R52) . He also conceded t h a t on o t he r t imes when he bel ieved MsDombrowski to be " l iquored up drunk" and "she 'd be running heyap", tha t he would t e l l her to l eave and push her out the doo( I d . ) He. also conceded t h a t s ince the f i l ing of the divorcact ion tha t Ms. Dombrowski had remained within the St a t e o f Kansa(VII R. 56) . Then Mr. Richardson was permit ted to t e s t i f y to these t t lement agreement of Apr i l 17, and Ms. Dombrowski's repudia t ionof the terms of t h a t agreement before it was reduced to wri t ing(VI I R . 57 - 5 9)

Ms. Dombrowski t e s t i f i ed t ha t she had been employed by LarneSta te Hospi ta l cont inuously s ince May o f 1996 (VII R. 62) . As thnewest employee a t Topeka s t a t e Hospi ta l she knew t ha t when as ibegan to c lose , she would be the f i r s t employee to be l a id o f( I d . ) She denied t ha t she had agreed to the se t t l ement , ant e s t i f i ed t ha t a t the t ime of the se t t lement conference on Apr i l 1t h a t she to ld Mr. Ambrosio t ha t she did not agree (VII R. 64) . Hhad f i r s t proposed the se t t lement to her on the evening p r i o r tot r i a l and was "very angry" with her fo r no t accept ing h i

22

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. ,she would lose custody of Rikki and see her only two days per month(VII R. 64-65). Mr. Ambrosio told her tha t Judge Leuenberger wouldgive Mr. Richardson custody, and tha t she would be lucky to get twodays vis i t a t ion per month ( Id . ) . Mr. Ambrosio asked her i f shewould ra ther have two weeks with Rikki per month pursuant to thesettlement, or whether she would rather f ight in court and get onlytwo days per month with Rikki (VII R. 65). Ms. Dombrowskit e s t i f i ed tha t she was shocked and overwhelmed, but to ld him tha tshe s t i l l would not agree and tha t she wanted him to proceed witht r i a l (VII R. 65, 70, 72).

Ms. Dombrowski also t e s t i f i ed to being beaten by Mr.Richardson two-to-three times per week, being kicked out of the i rresidence, being locked out of the i r home, and admitted tha t shewould often be gone for as long as two or three weeks a t a time(VIr R. 66). She denied any intention of leaving Kansas with Rikkibecause she had a good job, and one f inal ly on the day shi f t , whichworked well with rais ing the two year old (VII R. 67). She deniedtha t Rikki ever "no showed" for a supervised vis i ta t ion and claimedtha t it was Mr. Richardson who had fai led to show up for vis i ta t ionsevera l times (VII R. 69). Ms. Dombrowski did not go to thosevis i ta t ions in person out of fear of Mr. Richardson, and due to the

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.jur isdict ion with Rikki. She admitted tha t she to ld Ms. Kelltha t SRS placement would never happen, but did so based upon hfa i th in the ' Kansas jud ic ia l system making the correct decisio(VII R. 74). She denied even possessing a val id passport to alloher to t ravel abroad (VII R. 75).

In denying the motion for emergency protect ive custody JudgLeuenberger again referred to the restraining order in the domestviolence case (Shawnee County Dis t r ic t Court Case No. 95 CV 69and to the volat i le circumstances tha t exis t between the part ieswhich there did not seem to be any reconci l iat ion (VII R. 94, 104Judge Leuenberger then established a vis i t a t ion schedule adirected a journal entry to be f i led specifying a l l condit ions fosupervised exchange of the minor chi ld (VII R. 96-100).

The Preparation Leading up to the Second Tria l DateBy May 28, 1997, the dis t r i c t court f inal ly signed a tempora

order for chi ld support as a par t of the journal entry ref lect inthe cour t ' s orders of the May 20 hearing (II R. 186-90). Ast r i a l only $100.00 towards $119.00 owed per month beginning on M20, 1997, had been paid by Mr. Richardson(IX R. 95). On the f i rday of t r i a l in September he paid another $238.00 (IX R. 95).

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, . .a t tha t conference did l imi t addit ional discovery, but reaffirmedi t s holding tha t an agreement in principle between the par t ies notreduced to writing or confirmed on the record on April 17 could notbe endorse by the court as "fa i r , jus t and equitable" (VIII R. 37).

Prior to t r i a l Judge Leuenberger recused himself pursuant toa request and grievance f i led by Ms. Dombrowski (II R. 252-53).Several requests for subpoenas, aff idavi t s in contempt, and pret r i a l motions were led by the part ies before the t r i a l which weredisposed of by a hearing held on the day of t r i a l (I R. 1-18i seealso Transcript of Hearing, IX R. 3).

At some time pr ior to t r i a l the at torneys indicated tha t asmany as 50 subpoenas would be led, and the newly assigned judgeto the case, the Honorable James P. Buchele, Judge of the Dist r ic tCourt, believing tha t the case was get t ing out of hand, decidedthat he needed to "s ta r t put t ing clamps on" (IX R. 185). JudgeBuchele l imited each side to the presentat ion of five witnesses a tt r i a l (IX R. 129). These l imi ts made it di f f icu l t or impossiblefor Ms. Dombrowski to bring in a l l of the witnesses to corroborateher claims, or to refute the counter-claims of Mr. Richardson. Att imes Judge Buchele would prohibi t the introduct ion of hearsayreports or evidence because the proper witness could not be cal ledto tes t i fy within the five witness l imitat ions (IX R. 36, 134-35,

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ene o prov ng oun a on or e a m ss on o ose reporor cross-examination of the i r content (IX R. 131-32, 183-84). Tt r i a l judge, exasperated with Mr. Richardson a t one point durit r i a l for his failure to take steps to have his minor son availabto t es t i fy once subpoenaed by Ms. Dombrowski, explained more fulh is reasons for cutt ing down on the par t ies ' s opportunitypresent evidence and his evaluation of the conduct of the par t ie

THE COURT: Don't play games with me. I 've seenwhat Judge Leuenberger put up with you. I can assureyou, you're not going to get a lo t o f time on this judge.Well, I am coming in with a cleaver and there will eitherbe phone ca l ls or not, there wil l be moving people backand forth. I'm not going to play_ You t r ied to sl ick methere. You go ca l l the school and get him a message tobe down here a t 3:30. Do i t now, Mr. Richardson, anddon ' t you ever t ry to s l ick me around l ike tha t again.Okay? I ca l l tha t game playing, and i f you've been doingit to her, no wonder she doesn ' t l ike you. And vice":'versa. You're no bet ter . I wil l not to lerate the kindof conduct that ' s been going on in this case. And we' l ljus t s ta r t with this l i t t l e incident r ight here." (IX R.130-31) .

Shortly thereafter , the t r i a l court expressed dissa t i s fac t ion ththe par t ies could not work out the i r custody, vis i ta t ion atelephone contact disputes without the cour t ' s assistance:

THE COURT: . "Easiest thing for me to do isjus t to stop i t . I t ' s - - I don't disagree with the idea.I t ' s probably good for the child to have that contact .But, you know, in divorce courts where parents areunreasonable with one another, you t ry to be too touchyand feely, a l l you do is build yourself a morass. Imean, you can ' t make parents deal with one another withgood wil l . And the more contact you order, the more

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Richardson to answer the te lephone dur ing pre-des ignated t imes fo rMs. Dombrowski to c a l l her daughter , t he cour t again sua sponteaddressed the p a r t i e s regarding t h e i r conduct and the e f f e c t t ha tit would have on Rikki :

"THE COURT: You missed p a r t of my littlespeech. We're going to s top t h i s nonsense, Mr.Richardson. I intend to t ighten t h i s th ing down so it'smanageable. This th ing i s crazy. This daughter i s goingto be as crazy as the two of you if somebody doesn ' t dosomething. She i s n ' t going to tu rn out any b e t t e r thane i t h e r of you. It's probably a fa l se hope or des i re ofthe cour t t ha t the ch i ld can grow up and be able to havea re la t ionsh ip and not get in to a re la t ionsh ip l i ke t h i s .She 's on her way. You folks are r a i s ing her in your ownimage, th inking it's okay to have to exchange with aparen t a t a pol ice s t a t ion , and the ly ing has been goingon in f ront of her l ike , obviously, has been going on a tthe mental heal th profess ionals and so on. This ch i ld i sprobably not only going to have a persona l i ty d i sorde r ,bu t be schizophrenic , too. You guys have got somechanging to do. I ' ve spent , you know, s ince yesterday - I haven ' t looked a t these very much. This i s t e r r i b l ewhat you guys are doing. Both of you. And I can t e l lyou, we' re not going to have anymore guardian ad l i temsin t h i s case . We' l l ge t SRS involved. Tha t ' s the wayI 'm seeing it. This little g i r l i s being pu t throughs t u f f t ha t no ch i ld should have to endure. A ll r i g h t .Cal l your next witness . " (IX R. 137-38) .

The Evidence Permit ted a t T r ia lDuring Mr. McKenzie's test imony it became apparent t ha t whi le

he was very experience in juveni le cour t proceedings (handling overone thousand cases) , tha t he had only served as a guardian ad l i tem

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Mr. Richardson and Ms Dombrowski was t e l l i n g the t r u th ( to whiJudge Buchele conunented sua sponte " I th ink it'sunders ta tement") (IX R. 10) . Mr. McKenzie ind ica ted t ha t a f tread ing the pol i ce repor t s of the violence , and the docto rrepor ts , he was not able to va l ida te any of the t ru th of any of taccusat ions of violence made by Ms. Dombrowski as to Mr. Richards(IX R. 11). Mr. McKenzie in h is repor t to the cour t indica ted hpersonal be l i e f t h a t the a l lega t ions of a v io len t and abusipropens i ty of Mr. Richardson were so fa r fe tched t h a t he d id nbe l ieve them c red ib le" (IX R. 12, 14) .

Mr. McKenzie admit ted tha t he did not in terview e i t h e r pareabout custody, and t ha t he did no t in terview Ms. Dombrowski or tchi ld a t a l l (IX R. 12-13) . Nor did Mr. McKenzie interview day caprov ide rs or the ch i ld ' s physic ian (IX R. 13) . Mr. McKenzie dnot reques t a horne s tudy of e i t h e r of the homes of the p a r t i( Id . ) . Mr. McKenzie 's reco l lec t ion of Mr. Richardson ' s cr iminhi s to ry record was a s ingle offense for ,dr iving under the inf lueno f a lcohol ; he was unaware of s ix other misdemeanor convic t ioinc luding domest ic violence ba t t e ry aga ins t Ms. Dombrowski,separa te misdemeanor ba t t e ry in a bar f ight , and a separa te ba t t eof a law enforcement o f f i c e r (IX R. 13-14, 16) . Mr. McKenzie d

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, even oug e new a s. om rows a res e a aBat tered Women's she l t e r many t imes (IX R. 18) . Mr. McKenzie didno t ques t ion Mr. Richardson o r Ms. Dombrowski concerning thea l lega t ions of v iolence made aga ins t him by Ms. Dombrowski (IX R15) . Mr. McKenzie a t f i r s t explained such f a i lu re to quest ion thepar t i e s because he would not ques t ion persons who were representedby counsel , but then had to admit t h a t he did interview MrRichardson in t h i s case ( Id . ) . Ins tead o f express ing any concernover repeated convic t ions for misdemeanor violence by MrRichardson in h is repor t to the cour t , Mr. McKenzie recommendet h a t Ms. Dombrowski, and not Mr. Richardson, a t tend angemanagement therapy (IX R. 16-17) . Although Mr. McKenzie was awareof an a l lega t ion tha t Mr. Richardson had never paid ch i ld suppor the took no s teps to ver i fy tha t information, and d id not considetha t i ssue in making recommendations to change primary r e s iden t i acustody from Ms. Dombrowski to Mr. Richardson (IX R. 19-20) .

Ms. Shari Kel ler t e s t i f i ed a t t r i a l t h a t she had not had muccontac t with e i t h e r of the p a r t i e s s ince September o f 1996 (IX R25-26). Ms. Kel ler indica ted t ha t Ms. Dombrowski's uni la te ra l movou t of Topeka without her p r io r knowledge and cour t approvagrea t ly complicated her e f fo r t s to implement the Order oConci l ia t ion (IX R. 28-30). She admit ted t h a t Ms. Dombrowski mad

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,group and the men's group that Mr. Richardson had been ordered tat tend following his domestic violence convict ion, as well as MRichardson's court services probation off icer (IX R. 33-34Notwithstanding the violence between the parents, Ms. Keller fe lthat the child was not in danger with ei ther of the parents (IX R35). Ms. Keller agreed that Rikki had been present during thesvio len t episodes, but she knew of no his tory of violence for MRichardson other than with Ms. Dombrowski, even though she concedethat Mr. Richardson had a history of violence with other men (IX R35) . She was also unaware of an obstruct ion of jus t ice anmarijuana conviction Mr. Richardson received based upon an arresa t his f i r s t wife ' s place of work (IX R. 36).

Dr. Bernard Nobo, a l icensed cl in ica l social worker in Topekahad seen Ms. Dombrowski between March 7, 1995, and May 23, 1996 (Ir . 39). At that time he had prescribed an antidepressant for hea t the onset of her relat ionship with Mr. Richardson (IX R. 40Ms. Dombrowski had a history of abuse, rape and physical violenccommitted against her, leading to her placement in foster homes anher independence a t the age of 15 (IX R. 40). Dr. Nobo indicatethat although he saw no physical proof of Ms. Dombrowski's domestabuse from Mr. Richardson, he had no reason to doubt her (IX R42). On one occasion Mr. Richardson admitted t rying to res tra i

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j o i n t sess ions with both pa r t i e s ill which he had to s top Mr.Richardson from a phys ica l a l t e r ca t ion with Ms. Dombrowski in h isof f i ce , and keeping him back so t h a t she could make a safe getawaywithout being followed (IX R. 42-43) . Dr. Nobo indica ted tha t dueto Ms. Dombrowski's separa t ion from her paren ts a t the age of 15,t h a t she had l earned the ropes of surviving on the s t r ee t s , andl ea rn to disappear fo r her own pro tec t ion from abuse (IX R. 43).Dr. Nobo specula ted t h a t i f she were ever put in t h a t pos i t ionagain , she would pro tec t her se l f or pro tec t anything t h a t wasaround her (IX R. 43-44) . He bel ieved t h a t might inc lude movingout o f county or out of s t a t e to a place where she would fee lprotec ted from the aggressor (IX R. 44) . He expressed suchconcerns to the cour t se rv ices personne l t h a t i f she werethrea tened with violence , phys ica l abuse or mental abuse t h a t shewould run, bu t he did not make t h a t s ta tement based upon anycustody i s sues , because a t the time he was unaware tha t custody wasan issue ( Id . , and a t 46) . His diagnos is of Ms. Dombrowski a t thet ime was major depressive episodes with some border l ine features onpersonal i ty disorder on the Axis I I , but mainly depress ion (IX R.48) . His diagnos is fo r Mr. Richardson was an adjustment disorderwith mixed emotional fea tures (depress ion or anxiety) (IX R. 49) .

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(ages 15 to 18) from a prior marriage (IX R. 53). He runs h is owbusiness, Topeka Vinyl Top and Minuteman Solar Film (IX R. 55). Hadmitted tha t Ms. Dombrowski volunteered to him on a Friday eveninbefore her move to Great Bend about her move (IX R. 57). At thtime he had not yet obtained a vis i ta t ion order, but he feared thmove to western Kansas would in te r fe re with his future vis i ta t iowith Rikki (IX R. 58). Mr. Richardson admitted that the safe v i s iprogram a t the Topeka YMCA had been one of the be t te r thingconcerning the exchange of Rikki for vis i ta t ion (IX R. 61-62Rikki has her own room in his double-wide t r a i l e r (IX R. 66).

Mr. Richardson admitted on a pr ior occasion t e l l ing cou~ s e r v i c e s that vis i ta t ion with Rikki was not necessary anymore (I-R. 67). This followed a si tuat ion where the Salina Police s ta t io

was used as an exchange point once the court services personnel iSaline County could no longer get volunteers to attend the exchang(Id . ) Although he picked up Rikki without incident, when hreturned a week l a te r , the pol ice "su.;-round me when I walkeoutside and to ld me to get in my t ruck, get the hel l out of towni f I looked over my shoulder, I was going to j a i l " ( Id . ) . Hbelieved tha t both the Saline Police Department, and the ShawnCounty Sher i f f ' s Office harassed him due to false claims by M

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no wan o ave o go a po ce s a o n n na or rea enfo r the exchange, and so he told cour t services he no longer wantedto exerc i se v i s i t a t i o n (IX R. 68) .

Mr. Richardson then was al lowed to advise Judge Bucheleconcerning the aborted f i r s t t r i a l and se t t l ement e f fo r t s (IX R.72-74) . ~ M r . Richardson admit ted to being an abuser of Ms.Dombrowski (IX R. 75), but claimed t h a t was due ~ m u t u a ~

Mr. Richardson a l so t e s t i f i e d to the terms of the repudia tedse t t l ement tha t would have required Ms. Dombrowski to re tu rn toTopeka fo r a shared custody arrangement (IX R. 84-85) . Mr.Richardson as of the t ime of the s t a r t of the divorce t r i a l hadpaid one hundred dol la r s , and then on the f i r s t day of t r i a l paidanother $200.00, toward a temporary order for chi ld support grantedin May, 1997, order ing payments of indica ted tha t he wanted thec ou r t to order Ms. Dombrowski to pay $347.00 per month in ch i ldsupport (IX R. 86) .

Ms. Dombrowski t e s t i f i ed a t t r i a l t h a t she i s a psych ia t r i cl i censed prac t ica l nurse a t Larned s t a t e Hospi ta l (IX R. 87) . Shet e s t i f i ed t ha t she was asking fo r the divorce on grounds ofincompat ib i l i ty based upon the extreme domestic violence and fea rfo r her l i f e (IX R. 88) . She t e s t i f i e d tha t the f i r s t t ime Mr.Richardson had struck her was during her four th month of pregnancywith his ch i ld when she learned t h a t he was in f ac t marr ied to

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. .Ms. Dombrowski also described an incident after Rikki was bo

in which Mr. Richardson had pointed a shotgun a t her, and cocki t , while she was feeding her baby in her arms ( Id . ) . St e s t i f i ed that Mr. Richardson's son came in and to ld MRichardson, "Dad, dad, don' t" , a t which time Mr. Richardson shohis head as i f he real ized what he was doing, handed the shotgunhis son, and told him to put i t in the close t (IX R. 90).

Ms. Dombrowski also related the incident following her f inseparation from Mr. Richardson in March, 1996, during which he wto bring over her furniture, but ins tead brought a crow bar ( Id .The blow he inf l ic ted upon her head required II external s t i tche

f X ~ ( . r r - e A and " internal/l s t i tches to her head ( I d . ) . Ms. Dombrowindicated tha t as the violence escalated from February, 1995,her separation in March, 1996, tha t she would leave him as muchtwo, three or four times a week to escape the abuse, or due to hfear of abuse (IX R. 90).

Ms. Dombrowski also te s t i f ied to an incident in which MRichardson cut up her mili tary uniforms (IX R. 93-94). She alre la ted incidents when Rikki would s ta in the white carpet in MRichardson's home, and Ms. Dombrowski would be beaten by him outanger over the damage done by Rikki (IX R. 95). In February

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, . .Ms. Dombrowski t e s t i f i ed t ha t Mr. Richardson had to ld he

about h is pr io r misdemeanor convict ion fo r ba t t e ry o f a lawenforcement of f i ce r , but t ha t he fa i l ed to complete the alcohot rea tmen t he had been ordered to a t t end (IX R. 98). She alst e s t i f i e d t ha t she was aware of h is domestic violence convic t iofor disorder ly conduct, reduced from domestic violence ba t te ryfol lowing which he had been ordered to go through a psychia t r ievaluat ion and follow the recommendations, but tha t again he fa i l eto follow up with those condi t ions (IX R. 98).

Ms. Dombrowski also t e s t i f i ed concerning her reasons foput t ing up with the phys ica l abuse from Mr. Richardson before thf ina l separat ion:

"Because I was in an abusive re la t ionsh ip and Idesperately wanted to make the family work. Hal was veryconvincing in convincing me tha t the reason the re la t ionswasn ' t working was because I wasn ' t a good enough wife ,or I wasn ' t a good enough mother, and t h a t ' s whatprec ip i t a t ed the violence . I f I had done something ace r t a in way, then it wouldn ' t have happened. And, so,yes , I was very depressed. And I s ta r t ed seeing BernieNobo in February of ' 95 . Rikki was a l ready a couple ofmonths old , then .... " (IX R. 106) .Ms. Dombrowski also t e s t i f i ed to the residence t ha t she ha

found in the Larned area which provided Rikki a one-and-a-hals tory home, a th ree -quar te r acre fenced yard, a huge woodeplayhouse, swing se t s and sandboxes. The home has two bedrooms an

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,f i e ld (IX R. 119) . She also t e s t i f i ed to her hopes fo r Rikki :

" I t i s not in the bes t i n t e re s t s o f Rikki to haveher bouncing back and fo r th r i g h t now. She ' s in adaycare. She has - - I mean, it's cons i s t en t . Everythingi s cons i s ten t . And I th ink it's very important tha tth ings s tay consis tent . She ' s two-and-a-hal f years old .This i s the t ime when they s t a r t bui ld ing t h a t t r u s t andbegin to bel ieve in - - I mean, it's important t h a t t h a tconsis tency be there , no t t ha t i n s t ab i l i t y , not when theygrow up, when they don ' t know what ' s going to go on withthem. That, I learned from personal exper ience . Youasked me e a r l i e r about my chi ldhood. There was not hatcons is tency because I was bounced from fos te r home tofos te r home. That ' s why I fee l it's very important tha tcons is tency be there ...

"I care about Rikki, Rikki ' s be s t i n t e r e s t . I j u s tcare tha t she grows up happy and emot ional ly heal thy andphys ica l ly hea l thy, tha t pa r t , you know, I mean theemotional p a r t . And a s i tua t ion l ike th a t scares me todeath" (IX R. 126-27).Dr. Joel Nance, a l i censes p s y c h i a t r i s t , then t e s t i f i e d t h

a f t e r three hours of in terviews with Ms. Dombrowski, he foundevidence of a psych ia t r i c i l l n e s s (IX R. 149-50). Upon fu r thques t ioning he summarized h is b e l i e f t h a t she was doing wel l wiwhat seemed to be a d i f f i c u l t s i tua t ion (IX R. 159) .

Mr. Richardson was reca l led to the witness s tand and admit ta pr io r ba t t e ry convict ion a r i s ing out of a f i s t f igh t with anothman (IX R. 167) . He a lso admit ted a convic t ion fo r ba t t e ry o flaw enforcement of f i ce r , but denied t h a t he s t ruck any pol iof f i ce r ( I d . ) . He could not r e c a l l ever being ordered to a t tend

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inc iden t in which he had s lapped Ms. Dombrowski (IX R. 168). Aone poin t he t e s t i f i e d t h a t he "always went by Hal G. Richardson,J r . " , but immediately had to concede tha t he had used the nam"Guarty Gonzales" to avoid being ar res ted on outstanding t r a f f i ct i cke t s and in regards to "a disorder ly conduct, or obst ruc t ion ol ega l process" charge (IX R. 170-71). He denied point ing a shotguna t Ms. Dombrowski (IX R. 172) . He admitted slapping MsDombrowski, but denied ever punching her ; he also admitted tha t indefending himse l f from a kick by her , he twis ted her leg (IX R173-74). He also admitted t ha t scra tches shown on Ms. Dombrowski'neck and face were the r e su l t of one of h is mutual f igh ts with he(IX R. 174). The t r i a l judge also asked Mr. Richardson to describeh is vers ion of the i nc iden t in which Ms. Dombrowski receiveds t i t ches to her sca lp :

"MR. RICHARDSON: Okay. F i r s t of f , I d id not h i t her with a crow bar . Not a t her res idence . No. She was under a r e s t r a in ing order . I never ever went to her house, I never bothered her . Every day when I was get t ing home, I would f ind my back doors kicked in and s tu f f gone. I j u s t had moved in to my house. She had been gone a couple of months, and it was j u s t pr io r to her moving, and a guy by the name of Alvin Corber and myself were in the house and we were doing some tr im work in the l iv ing room and Claudine come wheeling in the driveway and she come up to the door and she had a big purp le r ing around her mouth, and tha t to ld me r igh t there t h a t she had been drinking. She dr inks wine, and wine only. With t h a t purple r ing , the look in her eye, I knew there was going to be some problems. She walked

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, ,Claudine was hanging out the door screaming a t me, andshe dropped her car in low, down the driveway she came,and I ran outside, and I didn ' t go out there with thein tent ions of doing anything, but I had a one-by-twopiece of rough cedar that I was trimming the ent i re roomout with, and down the driveway she came in her carthrough the yard, and I jumped out of the way and she washanging out of the car from about her waist out, and i th i t her r ight there (indicating)"THE COURT: She was driving the car hanging out thewindow?"MR. RICHARDSON: Yes, yes, yes. She skidded on thebrakes."THE COURT: The chi ld was in the car?"MR. RICHARDSON: Yes, yes, and she skidded on thebrakes, and then she threw the car in reverse, she wentup the driveway and down into a ditch, the headlightswere pointing s t ra igh t up in the ai r , and she was outthere jus t a gunning i t , and there was jus t d i r t andsmoke and everything flying and, anyway, she shot out ofthe driveway, or out of the ditch and down the driveway.Again , she got up on the road, jumped out of the car,and was jus t , 'Mother fucker, ' th is , 'Mother fucker, 'that , and anyway, I went in and I cal led the ShawneeCounty Sheriff ' s Department. I 've got the report tha t If i led there on Mr. Hoffman's desk. The police came. Ito ld them what had happened. His name was Brad Metz. Ito ld Metz when he showed up, I said, ' I hi t her , ' andgave him the s t ick and told him that she come out theredrunk trying to run me over, I jus t - - I jus t cannot say

it enough, how much crap that I have been through and -

"THE COURT: What were you trying to do? Run heroff?"MR RICHARDSON: Oh, yeah, I wanted - - f i r s t off , I

didn ' t want her running around with my daughter drunkl ike she was, and, I mean, she was st inking drunk and38


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oor an c eare e s eps up n e yar , ou n edriveway, in her car , and dropped the car in gear , anddown the driveway she came when I was coming up thedriveway and I h i t her . I 'm no t going to l i e to you, Id id h i t her , but she sa id t h a t I came to her house andthrew Rikki across the room in to a wal l , pul led a crowbar out from underneath a t rench coat and rapped her inthe head. That ' s not t rue . We can prove t h a t .

"THE COURT: Did Mr. Corber , did he see th i s ""MR. RICHARDSON: Mr. Corber s tayed in the house.He saw her come in , and then she took of f . When she tooko ff running, he d i d n ' t see nothing, but when Mr. Metz

come out there , I gave him the s t ick and I to ld Mr. Metzwhat went on. He ca l led in , because I sa id , 'I want youguys' - - I d idn ' t know how bad, you know, she was h i t orhur t because, again she got to the top of the drivewayand parked her car and jumped out and was 'Motherfucker , ' th i s and tha t , and, anyway, she took o f f . Metzcomes ou t t he re . He goes, 'Look, I don ' t have t ime tochase your drunken old lady a l l o v e r th i s county , ' and itwas when he was ca l l ing in to d ispatch t h a t dispatch hadca l led him from the c i ty t e l l ing him t ha t they were j u s tnow get t ing a ca l l from Claudine a t her apartment sayingt ha t I had come to her apar tment and t ha t she buzzed met he re and l e t me in to her bui ld ing and I come up the reand I was wearing a t rench coat and pul led a crow bar outand wacked her in the head and pul led a crow bar out andwac ked her in the head and threw my daughter across theroom. That ' s not t rue , Your Honor. That ' s not t rue . Ihave never been a l a l t e r boy, but I d i d n ' t do tha t .

"THE COURT: You were t a lk ing to Deputy Metz a t thet ime she cla imed you were a t her house?"MR. RICHARDSON: Yes, s i r . Absolute ly . I f you 'd

ge t a copy of the pol i ce repor t , t h a t repor t the rer e f l e c t s me ca l l ing in with i t , and t he re ' s a casenumber, a date , and a t ime. I f you ca l l the c i ty , it hasanother da te and t ime - - the exac t da te and t ime withinminutes of me doing tha t , t ha t I was supposedly - because those dispa tchers were t a lk ing back and fo r th .They sa id , 'There ' s no way tha t guy could be over t he re .I 'm s tanding here and t a lk ing to him and I ' ve been here

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, __ n. , . -80} .The t r i a l cour t permit ted Ms. Dombrowski to t e s t i f y regarding thsame inc ident :

MS. DOMBROWSKI: What happened was, he was supposed to bebringing me some furni ture over to my apar tment . I t wasl a t e a t nigh t . I don ' t remember the exac t t ime in theevening. I l ived on the t h i rd f loor in an apar tmentbui ld ing. I t was l a te in the evening. Rikki wass leep ing . Seemed l a t e . I j u s t remember it being dark.He buzzed in on the buzzer . I t was a secured bui ld ing .I answered. He sa id , ' I 'm here with your fu rn i t u r e . ' Icame downstairs . I was angry about his at torney had sen tme a th ing saying l o w e d him $400 a month alimonyworksheet , and he was reaching in the back of h is t ruck ,he i s le f t -handed, the next th ing I know i s , boom. Irea l ly don ' t remember anything pas t tha t . When I came - I d o n ' t know t ha t I l o s t consc iousness . The hosp i ta lasked me if I did. I d id n ' t rea l ize how bad I was hur t .I immediately went back ups ta i r s . I f e l t warmth runningdown my face . I got very, very scared. I ca l led mygi r l f r iend , Jan. Jan came over . She s d, 'C laudia , weneed to ca l l the po l i ce . ' I sa id , 'No, we're not ca l l ingthe pol ice . Every t ime the pol i ce ge t ca l led , I gettaken to jail,' from pas t experience with my re la t ionshipwith him. We went in to the hosp i t a l and the hosp i t a lca l l ed the pol ice , and I sa id , "I wi l l not t a lk to thepol ice without a bat te red woman's advoca te , ' because I 'malways the one in t rouble , and t ha t ' s how tha t happened.

"THE COURT: So, your content ion i s t ha t th i s d idnot happen out a t h is house. Is he j u s t making t h a t up?"MS. DOMBROWSKI: Yes, s i r , he i s making it up. Heh i t me so hard t h a t it went down to my s k u l l . I couldbare ly walk."THE COURT: 11m more in te r e s ted in where ithappened than I am how bad you were hur t . Somebody herei s ly ing to me.

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the dispatch records from both the Sher i f f and the PoliceDepartment . I 'm going to f ind out who i s ly ing . I tcan ' t be both ways here .

"THE COURT: I 'm no t sure ye t j u s t how we're goingto f igure th i s out , but I want to know who the l i a r i s onth i s deal . Somebody i s , and I th ink tha t the re ' s recordsoutside the control of e i the r of you tha t ' s going to showt h i s . He cou ldn ' t have done th i s to you while he wast a lk ing to Metz a t the same t ime. Metz can ' t be t a lk ingto him while he ' s a t your apartment. I mean, seems to met h a t we can na i l t h i s one down.

"MS. DOMBROWSKI: See, the pol ice were no t ca l l edun t i l a f t e r I arr ived a t the hosp i ta l severa l - - I don ' teven know what the t ime was. I know it took Jan awhileto convince me to go to the hosp i t a l , and the pol ice werenever ca l l ed u n t i l I once ar r ived a t the hosp i t a l . So,you know, you might keep tha t in mind, t oo ." (IX R. 18284)

The t r i a l cour t a few moments l a t e r re-examined the pa r t i e s on thesub jec t :

"THE COURT: Let me, while I 'm th inking, Ms.Dombrowski, do you deny t ha t you were ever h i t in thehead with a board over a t h is house while he wasremodeling?"MS. DOMBROWSKI: I deny I was h i t by a board . Iwas h i t with a metal ob jec t ."THE COURT: Did something l i ke t h a t happen a t anyt ime?"THE COURT: Did something l ike t h a t happen a t anyt ime?"MS. DOMBROWSKI: No, s i r ."THE COURT: He's making a l l tha t up?

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"MR. RICHARDSON: Absolutely not ."THE COURT: The day she went to the hosp i ta l witha gash in her head was when you h i t her with a s t i ck a tyour place?"MR. RICHARDSON: Deputy Metz, I to ld him what Idid . I to ld him I knew I was going to be going to j a i l .I to ld him what I did . " (IX R. 186-87) .

During t h i s col loquy upon t h i s sub jec t , the d i s t r i c t coexpla ined i t s reasons fo r l imi t ing the pa r t i e s presen ta t ionevidence a t t r i a l , and gave Mr. Richardson 's at torney (Mr. Hoffman opportunity to present more evidence, but did not make the sof fe r to Ms. Dombrowski's a t torney:

"THE COURT:"All r i gh t . Now, counsel , when I did my l imi t s ont h i s , I to ld you t ha t I would be wi l l ing to l i s t en towhat you fee l - - anything e l se you might want to presen ta t some t ime. I don ' t want anybody to be deprived of thewhole s to ry . On the othe r hand, when I s t a r t hear ing

th ings l ike 50 some subpoenas and th ings l ike t h a t in acase l ike th i s , I s t a r t put t ing the clamps on, becauseit's out of hand.

"Now, p l a in t i f f , Mr. Hoffman, i s there any othe revidence tha t you want to present to me on the i s sues ofproper ty div i s ion , custody, ch i ld suppor t? I be l ievethose are the three main ones ." (IX R. 185) .

Mr. Hoffman suggested t ha t the t r i a l cour t al low Deputy Metzt e s t i f y , but the t r i a l cour t ignored t ha t reques t (IX R. 185-8At an ea r l i e r t ime the t r i a l judge had sua sponte to ld Deputy M

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The Divorce DecreeFinal arguments were submit ted to the t r i a l cour t in wri t ing

between September 29 and November 3, 1997 (II R. 294-304) . Thed i s t r i c t cour t f i l ed the Journal Entry of Divorce on October 29,1997, which to a l a rge degree conta ined the same condi t ions as inthe repudia ted agreement between the pa r t i e s in May of 1997(compare I I R. 313-23 and V R. 19-21) :

1 . The ch i ld would be placed in the j o in t custody of theparen t s ( II R. 317) .

2. Ms. Dombrowski would be given u n t i l January I , 1998, tore loca te from Larned to Topeka ( Id . ) .

3. I f Ms. Dombrowski fa i led to re loca te to Topeka by January1, 1998, then Mr. Richardson would assume f u l l t imere s iden t i a l custody of Rikki ( Id . ) .

4. Therea f te r , Ms. Dombrowski would have some reasonablev i s i t a t ion to be establ i shed under the guide l ines ( I I R.318) .5. However, assuming t h a t Ms. Dombrowski did re loca te toTopeka, the cour t would determine shared re s iden t i a lcustody of the ch i ld a t a l a t e r date ( II R. 317) .6. In the meantime re s iden t i a l custody would a l t e rna teweekly pursuant to the temporary orders previous ly

es tabl i shed by Judge Leuenberger on May 28, 1997 withexchanges of the ch i ld to occur a t the Topeka YMCA SafeVis i t loca t ion( I I R. 318) .7. Ms. Dombrowski would cont inue to provide fo r the cos t ofinsurance (and through her employment), and then fu tureinsurance would be borne equa l ly by the parents ( I I R.

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. .10. The non-res iden t ia l paren t would have reasonable

t e lephonic con tac t with the ch i ld (II R. 319).11. Neither par ty would rece ive any alimony or maintenance

(II R. 315) .12. Mr. Richardson, who had prepa id the c ou r t cos t s , would

bear the cos t s of the f i l ing fee ( I I R. 321) .13. Ms. Dombrowski's share of the proceeds of the sa le of thefamily home wi l l s a t i s f y any cla ims she has in the

mar i t a l proper ty ( II R. 315) .14. A ll other personal property would remain as it i s (II R.314-15) .15. Each par ty would be responsible for i t s own at torney fees( I I R. 321) .

Never theless , the d i s t r i c t cour t a l so made the fol lowing f indingsof f ac t and orders :

"At th e t r i a l of th i s case , cons iderable t ime wasspent proving tha t th i s couple has had a vio len t domesticr e la t ionsh ip and t h a t on a t l e a s t one occasion Ms.Dombrowski suf fe red se r ious in ju ry a t the hands of Mr.Richardson al though the pa r t i e s cannot agree on exact lywhen, where or how t h i s in ju ry was i n f l i c t ed . There i sno evidence t ha t e i the r pa r t [sic] has phys ica l ly harmedRikki .

"From the evidence it appears to the Court tha t th eviolence in t h i s couple ' s r e la t ionsh ip comes from bothdi rec t ions , ne i ther i s t o t a l l y blameless . Mr.Richardson, being male, i s s t ronger and therefore able toi n f l i c t grea t e r phys ica l i n ju ry on Ms. Dombrowski thanshe on him, however, the Court f inds t h a t Ms. Dombrowskihas i n i t i a t ed and provoked some of the v io len t contac t .Mr. Richardson has been convicted of domestic bat te ry anda t l e a s t one a lcohol r e la ted of fense . Further , in thecon tex t o f t h i s custody decis ion , it i s c lea r t h a t

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been made worse by Ms. Dombrowski's u n i l a t e r a l decis ionto move to Larned, Kansas in May of 1996. The di s t ancebetween Topeka and Larned makes it v i r tua l ly impossiblefo r an ind iv idua l t r e a t e r to work with the family; fo rMr. Richardson to have regular and f requent contac t witht h i s chi ld ; to es tab l i sh any reasonable d ia logue betweenthe paren ts toward r eso lv ing t h e i r c o n f l i c t s . The movefrom Topeka to Larned, due to the proximity of thep a r t i e s , has l e s sened the ph ys ica l v io lence . I has,however, done violence to the r e l a t i onsh i p o f Rikki andher fa the r . I f long dis tance vis i t a t ion i s continued, inthe Cour t ' s view, wi l l take i t s t o l l not only on Rikkibu t each of the p a r t i e s . The Court spec i f i ca l ly f indst ha t separa t ion of the chi ld from e i t h e r paren t fo r longper iods of t ime i s harmful fo r a ch i ld of about th reeyears of age.

" While it i s obvious t h a t superv i s ion i s neededwhen the par t i e s exchange custody of the ch i ld because ofthe poten t i a l fo r violence between the p a r t i e s , evidencei s l acking t h a t Mr. Richardson does not adequate ly carefo r and pro t e c t the ch i ld From the evidenceavai lable to the Court , there i s no bas is to suppor t t ha tMr. Richardson has mist rea ted any of h is ch i ld ren in anyway.

" I t i s my conclusion t ha t the be s t i n t e re s t s of theRikki [sic] i s for her to res ide in a locat ion where bothparen t s have access to he r . Fur ther , the Court i sorder ing j o i n t custody in t h i s case as I am concernedt h a t sole custody in e i t h e r paren t wi l l r e s u l t inmanipulat ion and abuse of t h e i r pos i t ion as solecustodian to harm the re la t ionsh ip of Rikki and the otherparen t . The Court enters the fol lowing spec i f i c order sr e la t ing to the cus tody of the ch i ld :

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"G. Mr. Richardson sha l l not consume a lcohol icbeverages while Rikki i s in h is custody or for four hourspr io r to picking her up for v i s i t a t i o n ."H. Both p a r t i e s are to complete anger management

c lasses .

" I . During v i s i t a t i o n with p e t i t i o n e r , thepe t i t i one r wi l l as s i s t Rikki in i n i t i a t i n g a te lephone ca l l trespondent every 48 hours a t 8 p.m. Respondent i s enjoined froc a l l i n g p e t i t i o n e r ' s home except in case o f bona f ide emergencyFur the r , respondent i s di rec ted not to c a l l law enforcemeau thor i t i es to inves t iga te the pe t i t i one r without f i r s t consul t inwith the case manager. Fai lure to comply with th i s provis ion wir e s u l t in a l t e ra t ion of the v i s i t a t i o n schedule .

"6 . The Court has evaluated Ms. Dombrowski'sasser t ion tha t her move to Larned was necess i ta ted due tothe c losure of Topeka Sta te Hospi ta l . No evidence waspresented regarding her e f fo r t to f ind employmentl oca l ly . The Court has taken not ice t h a t the TopekaDaily Capitol newspaper each weekend adver t i ses from s ixt o t en ava i l ab le pos i t ions fo r LPN's in Topeka o rsurrounding count ies inc luding the Topeka Correc t ionalF a c i l i ty . The Court concludes t h a t Ms. Dombrowski'sresidence in Larned i s not necessary for her employment."

( I I R. 315-319).

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THE DAY OF TRIAL, COUPLED WITH THE SUBSEQUENT ORDERS ANDACTIONS OF THE DISTRICT COURT BELOW, DENIED THE RESPONDENT HERCONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND HER EQUALRIGHTS TO THE POSSESSION OF HER MINOR CHILD.The Respondent, Ms. Dombrowski, f i r s t complains tha t the

prac t i ce and "pol icy" of the domestic divis ion of the Shawneecounty Di s t r i c t Court to p res sure the li t igan ts in a divorceproceeding to s e t t l e the mat ter , when coupled with the other uniquef a c t s and ci rcumstances of t h i s case , denied her a fu l l and f a i ropportuni ty to defend aga ins t the cla ims made agains t her and topresen t cor robora t ing evidence on her behal f .

A. THE STANDARD OF REVIEWThe s tandard of review in domestic re la t ions matters involving

the changing of custody of chi ldren or se t t ing v i s i t a t i o n i s anabuse of d i sc re t ion s tandard . In re Marriage o f McNeely, 15Kan.App.2d 762, 764, 815 P.2d 1125, rev. denied 249 Kan. 776(1991) . Jud ic ia l d i scre t ion i s abused when j u d i c i a l ac t ion i sa rb i t r a ry , fanc i fu l , or unreasonable , which i s another way ofsaying tha t d i sc re t ion i s abused only where no reasonable personwould take the view adopted by the t r i a l cour t . Slayton v.Slayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). scre t ion mustbe exerc ised, not in oppos i t ion to , but in accordance with ,

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O ~ d i n a r i l y , ra i sed for the f i r s t t ime on appeal , they are not proper ly befothe appel la te cour t fo r review. In re D.D.P. Jr. , 249 Kan. 52545, 819 P.2d 1212 (1991). The appel la te cour ts have recognizeexcept ions to t h i s genera l ru le when the i n t e re s t s of j u s t i ce sr equ i r e . The appel la te cour t has the power to consider an ' i ssura i sed for the f i r s t time on appeal when such issue i s necessaryserve the i n t e re s t s of ju s t i ce or to prevent denia l offundamental r igh t . S ta te v. Pucket t , 230 Kan. 596, Syl . 1, 64P.2d 1 1 9 ~ (1982). The Respondent, Ms. Dombrowski, asse t s thcons t i tu t iona l i s sues here involve the denia l of her r i g h t tofu l l and fa i r hearing of the fac tua l i ssues involved in t hcomplex custody ba t t l e below (as guaranteed by the FourteentAmendment Due Process of Law Clause) . Ms. Dombrowski fu r tha l leges tha t the proceedings below denied her the enjoymentequal and ina l ienable natura l r ights to due process of law pursuato 1 of the Kansas B i l l of Rights to the Kansas Cons t i tu t ioMs. Dombrowski fu r ther a l leges t h a t the proceedings below denieher equal r ights in the possession of her minor ch i ld in viola t ioof Art i c l e 15, 6 of the Kansas Cons t i tu t ion . While thunderlying fac ts are heatedly disputed below, these cons t i tu t ioni s sues are ra i sed involve only l ega l ques t ions ar is ing out

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,1 of the Kansas B i l l of Rights . The Respondent, t he re fore ,re spec t fu l ly suggests t h a t t h i s appe l l a t e cour t may go beyond amere determinat ion of whether the t r i a l cour t abused i t s discre t ionin i t s ch i ld custody ru l ings below to determine whether thep o l i c i e s and procedures of the Shawnee County Di s t r i c t Courdomest ic div is ion , as appl ied to the unique circumstances of th i scase , vio la te the fede ra l and s t a t e cons t i tu t ions .

B. THE DISTRICT COURT'S "POLICY" OF GIVING THE PARTIES IN ADOMESTIC DISPUTE THE EQUIVALENT OF AN "ALLEN CHARGE IUNDER THE UNIQUE FACTS OF THIS CASE DENIED SUBSTANTIALJUSTICE AND A RIGHT TO A FAIR TRIAL UNDER THE DUE PROCESCLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATECONSTITUTION, AND DENIED THE APPELLANT OF THE PROTECTIONSAFFORDED TO A PARENT BY THE KANSAS CONSTITUTION.

As noted in the Statement of the Facts the d i s t r i c t courbelow on Apri l 17, 1997, pr io r to the commencement of t r i a l made itc lea r t ha t , while purpor ted ly not prejudging the case, tha t itbe l ieved (1) the ch i ld should be in the proximity of the d i s t r i ccour t where it could maintain some s t r i c t cont ro l in t h i s mat te r(2) the resources des i red by the d i s t r i c t cour t were avai lab le inTopeka: and (3) t h a t the cour t be l ieved "pre t ty s t rong ly in theproximity of the hal f s ib l ings and of the extended family" and t h athere were "more of them here in Topeka" (V R. 8) . The cour t in

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