No.

97-80304-AS

I
IN THE

" SUPREME COURT OF THE

L
STATE OF KANSAS

,
In the Matter of the Marriage of
n
l HALLECK RICHARDSON,

11· Petitioner/Appellee
i
i
v.
n
,~ I
CLAUDINE DOMBROWSKI,

. .-, Respondent/Appellant .
( ,

r
PETITION FOR REVIEW

( Appeal from the District Court of Shawnee County, Kansas

The Honorable James P. Buchele, Judge

District Court Case No. 96 D 217

GEARY N. GORUP
Attorney at Law
of Counsel
RENDER KAMAS, L. C .
Suite 700, 345 Riverview
P.O. Box 700
Wichi ta, Kansas 67201-0700
(316) ·267-2212

Attorney for Appellant

Claudine Dombrowski

~,

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 TABLE OF CONTENTS

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . 1

DATE OF THE DECISION . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . 2

The Evidence of Violence by Mr. chardson . . .3

The Purported Settlement on Day of Tr • •6

The Evidence Permitted at al . . .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 of McNeely, 15 Kan.App.2d 762,

815 P.2d 1125, rev. denied
249 Kan. 776 (1991) . . . . 8, 9

Slayton v. Slayton, 211 Kan. 560,

506 P.2d 1172 (1973) ................9

State 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

. '

State v. Puckett, 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. linois, 405 U.S. 645,

31 L.Ed.2d 551, 92 S.Ct. 1208 (1972) . . . . . . . . 10

Quilloin v. Walcott, 434 U.S. 246,

54 L.Ed.2d 511, 98 S.ct. 549,
rehearing denied 435 U.S. 918 (1978) . . . . . . . . . 10

In re Cooper, 230 Kan. 57,

631 P.2d 632 (1981) . . . . 10

Fourteenth Amendment, United States Constitution . . 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. 60-409. .11

K.S.A. 60-410 . . . .12

K.S.A. 60-1610 (a) (4) . . . . 12

Fourteenth Amendment, United States Consti tution . . 11, 12

Section 1, Kansas Bill of Rights,

Kansas Constitution . . . . . . . . . . . . . . . . 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

f~
Article 15, Sec. 6, Kansas Constitution . .14
U Sec. 1, Kansas Bill of Rights, Kansas Constitution .14
r.'
j I
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 15

APPENDIX A . . . . . . . . . . . . A-I

In the Matter of the Marriage

Ha_Zleck Richardson and Claudine Dombrowski,
(unpublished opinion) No. 80,304 (filed
, . October 23, 1998) . . . • . . • . . . . . . . . . A-I

APPENDIX B . . . . . . . . . . . . . . . . . . . . . . B-1

Journal Entry of Divorce

Tn the Matter of Ma age

Halleck Richardson and audine Dombrowski,

Shawnee County District Court Case No. 96-D-217

(filed 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 of the Marriage of

HALLECK RICHARDSON,

Petitioner/Appellee

v.

CLAUDINE DOMBROWSKI,

Respondent/Appellant.

PETITION FOR REVIEW

PRAYER FOR REVIEW

COMES NOW Appellant, Claudine Dombrowski, and pursuant to

Supreme Court Rule No. 8.03 respectfully prays for review of the

unpublished decision of the Kansas Court of Appeals filed herein

(a copy of which is included as the Appendix to this Petition).

The Appellant requests a new trial in which she would not be

unreasonably limi from presenting necessary witnesses to support

her claims and to refute claims of the Petitioner, and in which

the trial court would not abuse judicial notice power contrary

I
 to s The Appellant~ so requests this Court to set-aside

the order requiring her relocation to the Tope a, or suffer

the loss of custody of herchild_(II R. 305-09, 31 23}.

DATE OF THE DECISION

The unpublished decision of the Kansas Court of Appeals was

filed h~rein on October 23, 1998.

STATEMENT OF THE ISSUES

1. Did strict court's policy to pressure s ements on

the day of trial, its arbitrary limi of evidence at trial and

.'
its order requiring the natural mother to submit to an unreasonable

risk of domest violence combine to violate due process and equal

ghts to her minor child?

STATEMENT OF THE FACTS

The parties' divorce centered around the residential custody

of their three year old daughter, Rikki. (I R. 18-20, 23-24, 30).

At the heart of s Petition for Review is the Kansas of

Appeals' endorsement of the unreasonable limitation of evidence by

district court at trial, and district--court-'-s~ult±matum

the natural mother endanger her Ii by relocat"fng' to the~

communi ty of hei abus'er, ,or lose residential custody of 'that d.

choose between'her child-and her life.

, ~
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2
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"..if j
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"='"
-=::..-~------------~---------------~--------~-- ............. -----"

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--.1

The opinion of the Kansas Court of Appeals re fails to

mention the history of violence by the natural father against the

natural mother, and the likelihood of violence if the ,

I
-4
Appellant relocates to the vicinity of abuser. 1

The Evidence of Violence by Mr. Richardson

Mr Richardson has an extens s of criminal convictions

for violence against Ms. Dombrowski and others. Mr. Richardson at

trial admitted a criminal conviction from a bar fight and

a separate incident result a conviction for battery of a law

enforcement o{ficer (IX R. 13-14, 16, 167). His criminal history

record also includes driving under the influence of alcohol and

four more misdemeanor convict including domestic violence

disorderly conduct reduced a domestic violence battery against

Ms. Dombrowski (Id.) ,

.
obstruction of justice and posseSSlon
.c
01..
J

marijuana (IX R. 36, 168, 170-71). He has used an alias to avoid

identification and arrest (IX R. 170-71).

Mr. Richardson admitted to abusing Ms. Dombrowski (IX R.

75), but cIa combat was mutual. Mr. Richardson indicated

that the domestic ence was "Not that bad" (VII R. 51). He

first struck her, months pregnant, when she found out he was

still married (IX R. 89). After Rikki's birth Ms. Dombrows was

beaten by Mr. chardson tWo-to-three times per week, as well as

being kicked or ked out of their residence from to him

3
 (VII R. 66). Mr. Richardson below admitted that Ms. Dombrowski

~, moved out 'of his home with their child because he told her to "get

her shit and get out" (VII R. 52). When Rikki stained the white

, , carpet in their home, in anger he beat Ms. Dombrowski (IX R. 95).

Mr. Richardson conceded that Ms. Dombrowski would leave

," ,
because of their arguing, and that he had hit her, but denied that

was the reason she Ie (VII R. 45). He admitted slapping her, but

denied ever punching her; he admitted twisting her leg, but claimed

it was in self-defense (IX R. 173-74). He admitted that scratches

shown in photos of Ms. Dombrowski's neck and face came from one of

his fights with her (IX R. 174). Mr. Richardson once aimed and

cocked a shotgun at Ms. Dombrowski and Rikki, but was stopped from

going any further by his son (IX R. 89-90). In February of 1996 Ms.

Dombrowski sought assistance from the Battered Women's Shelter in

Topeka and left with a suitcase,her car and Rikki (IX R. 93).

The violence followed their separation. On March 23, 1996, he

came to her apartment on the pretense of bringing her furniture;

,­
~ instead he brought a crow bar: across her skull causing a wound

requiring~B ~tit~h~s (I R. 54-59; III R.?; IX R. 182-87). s

---, I
version of that inciden,t alleged that she received the wound

accidently as she drunkenly tried to run him down while hanging

from the waist up outside the driver's window; he claimed her head

struck a l~x 2" piece of cedar he had in his hand (IX R. 175-80).

Dr. Bernie Nobo provided a report to the district court

emphasizing the volatile nature of the relationship. Dr. Nobo did

:1
not feel that the child was-at ~e~~oriai

parti~ were not physically present together. However, the child

could be endangered should they get into a physical di in this

highly vol Ie situation. (IV R. 3-4). Ms. Sharon ler, Shawnee

county Court Services Of cer, agreed that her ggest concern was

the domestic violence between them (VII R. 9). The district court

made findings on the history of violence against Ms. Dombrowski:

"At trial of this case, considerable time was

spent proving that s couple had a violent domestic

relationship and that on at least one occasion Ms.

Dombrowski suf serious injury the hands of Mr.

Richardson although the parties cannot agree on exactly

when, where or how this injury was inflicted .

"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 violent contact. Mr.

Richardson has been convicted of domestic battery and at

least one alcohol related offense .

l
\\ The move from Topeka to Larned, due to the

proximi ty of the parties, has lessened the physi

violence}. . .

" . . . it is obvious that supervision is needed when the

parties exchange custody of the child because of the

potential violence between the parties . . . "

(II R. 315-19). Because of this violence the court ordered all

sitation exchanges be supervised at neutral sites; extended

restraining order another year; and oined Mr. Richardson from

consuming alcoholic beverages when he had the child (II R. 319-24).

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J
--_.

 The Purported Settlement on the Day of Trial

---, The Kansas Court of Appeals at page 5 of its opinion

indicated that it found nothing in the record to support Ms.

r Dombrowski's contention of coercion or a prejudice on the part of
I;
the al judge. On April 17, 1997, the judge was anything but
r.
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neutral and detached in trying to settle the custody issue at trial

r.
I
(V R. 4 27). The Statement of the Facts in the Brief of Appellant

clearly demonstrates that in preliminary remarks prior to trial the

~. .. w" : • " . _ ••

judge indicated 'a . preference to follow-the __recoInmendations of-the

--~----""""-- '~~

guardian ad litem to_give residential custody to Mr. Richardson ift

Tope ;' and directed the guardian ad li tem to address her directly

on his reasons (V R. 2,4, 7). The judge told her that exercising

control over the child would be in the child's best interest (V R.

-....
9), and that the distance between the parents-made co-parentingl
\
impossible (V R. 10). The trial court then told her that she would

need to be willing to sacrifice employment opportunities and income

to return to the Topeka area to share custody (Id.). He said that

if she were unwilling to make those compromises, she would be

, \

delegating that decision to the court, "and someone is not going to

prevail H (V R. 10-11). The judge then suggested that she take this

"one final opportunityH to talk and sett the case (V R. 10-12).

One and one-half hours a the Appellant was told she would lose

custody if the case went to trial, only Mr. Richardson and his

counsel returned to court to announce a settlement (Id., 13-27).

--------- - - - - - - - - - _....._ - . _..... - - - _... - - ­

The Evidence Permitted at Trial

Prior to the subsequent al The Honorable James P. Ie,

Judge of the District Court, ided to "start putting clamps on"

(IX R. 185). Judge Buchele~l each side to the ion

of..- five-witnesses at (IX R. 129). He then prohibited the

introduction of hearsay reports or dence because the proper

witness could not be called to testify (IX R. 36, 134-35, 147, 180

81). The trial court also took judi al notice of evidence without

statutory authority or evidenti foundation for admission and

with no opportunity for cross-examination (IX R. 131-32, 183-84).

The Journal Entry of Divorce ly followed the settlement

condit the Appellant rejected in May of 1997 (compare II R.

313-23 and V R. 19-21). With full knowledge of the potential/of

.vIo when the parties reside the same community, bhe court;
- J

I
ordered her to relocate with the child in Shawnee County, Kansas;

on or January 1, 1998; if she il to do so, sole custody

would awarded-to Mr. Richardson (II R. 319-24). The district

court further enjoined Ms. Dombrowski making emergency calls

to law enforcement officers without contacting a case

manager, and failed to provide for contingencies when the case

manager was inaccessible, or when she or the Id were in imminent

danger of harm Mr. Richardson (Id.).

7
 The Kansas Court of Appeals discussed the history and

significance of the domes c violence history a single sentence

at Page 2 of its unpublished decision: "Dombrowski alleged that the

r move was necessary to avoid further abuse from Richardson and to

obtain employment." The appellate opinion totally fails to address

the reasonableness of a district court order that requires the

r
I,
Respondent to chose between her child and her life.

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 domestic court's tactic to pressure settlement at trial,

its unreasonable restrictions on evidence at trial, and its order

requir g Ms. Dombrows to relocate are more about demonstrating

control over the parties and enforcing the original settlement

/' . - ,- - -' -- .,. '

terms khan the best interests of the child. ~hese orders not only
-"'"
violated the constitutional rights of the natural mother, but

unreasonably forces her to choose between her child and her Ii

A. THE STANDARD OF REVIEW

The standard of review on issues of custody and visitation in

domestic cases is an abuse of discretion standard. In re Marriage

McNeely, 15 Kan.App.2d 762, 764, 815 P.2d 1125, rev. denied 249

8
Kan . 77 6 ( 1 991) . Judicial discretion is abused when judicial

action is'arbitrary, fanciful, or unreasonable, which is another

way of saying that discretion is abused only where no reasonable

person would take the view adopted by the trial court. Slayton v.

Slayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). Discretion must

be exercised in accordance with establ ished principles of law.

State v. R.ichard, 252 Kan. 872, 882, 850 P.2d 844 (1993).

When constitutional grounds for reversal are raised for the

first time on appeal, ordinarily they are not properly before the

appellate court for review. In re D.D.P. Jr., 249 Kan. 529~ 545,

819 P.2d 1212 (1991). The appellate court may consider an issue

raised for the rst time on appeal necessary to serve the

interests of justice or to prevent denial of a fundamental right.

State v. Puckett, 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 district court's pre-trial tactics encouraging settlement

were the domestic court equivalent of an "Allen charge" (VII R.

64). What is more disturbing about this scenario is that this

not an isolated incident, but apparently pursuant to a local court

policy to give this sort of charge and routinely delay the start of

trial for approximately one and-one-half hours to encourage a

"final opportunity" to settle case (VI R. 10).

9
,)

r
The United states Supreme Court has recogniz the fundamental

~ nature of the relationship between parent and child. Stanley v.

Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.ct. 1208 (1972). That

Court has said: "We have litt doubt the Due Process Clause

would be offended '[i] f a State were to attempt to force the

breakup of a natural family, over the objections of the parents and

children, without some showing of unfitness and for the sole reason

that to do so would be in children's best interest.'" Quilloin

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 that a parent's to the custody, care and control of

,­

his or her child is a fundament liberty right protected by the

Fourteenth Amendment of the Constitution of the United states. In

re Cooper, 230 Kan. 57, 631 P.2d 632 (1981).

If the Court of Appeals does not find coercion or prejudice in

the settlement tactics of the domestic court, it is di cult to

conceive of what else the district court could have done to force

a settlement -- except to make sure that one who refuses to settle

a case obtains no benefit from going to al.

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 district court's rulings guaranteed that the Appellant

would not be clutter up its record wi th a lot of evidence by

10

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 \r-\

arbi ly limiting the number of wi tnesses to five per

s and then at trial excluding documentary evidence because the

foundation could not be la s limitation on the

sentation of trial evidence constituted an unconstitutional

al of a full and fair hearing of the factual issues as

guaranteed by the Fourteenth Amendment Due Process of Law Clause.

The Kansas Court of Appeals at Page 5 of its opinion

acknowledged these limitat , but found no grounds for reversal

because the trial judge s a evidence was closed that he

agreed to give the parties "the opportunity to argue with me to

open it up so you can submit further evidence". No such comment

was found by either of appel counsel for the parties and was

not cited in either the Brie of Appellant or Appellee.

Nevertheless, an "opportunity to argue with me to . . t

further evidence" at the ose of evidence does not equate with

opportunity to present evidence. The trial court did not open an

opportunity to present any relevant evidence, only an oppo ty

to argue about it. Nor did the trial court open an opportunity r

the court to accept evidence it had already excluded due to a lack

of foundation; the court's heavy-handed conduct towards the

parties did not invite them to re-argue evidentiary sions

already made. Nor the t al court open the opportunity to

continue the trial to low the parties to subpoena attendance

of witnesses who had been sent away.

11
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I,

The trial court was well aware of the claims and counter­

claims of domestic violence, denial of visitation, denial of

telephonic communication with the child, and many 0 r incidents

relevant to the whether sole custody should granted to either

party. The arbitrary and capricious limitation of only five

witnesses, and then excluding relevant evidence of criminal

r convictions of violence, medical records and other evidence upon

I,
strict application of evidentiary foundations clearly violated due

process of law. Throughout trial the cdqrt chastised the parties'

prior conduct, call~d . them "lia~s'i,) denied the opportunity to

present evidence to support their veracity, and inhibited the right

of Ms. Dombrowski to a full and fair hearing to present evidence to

support her claims and to refute the claims by Mr. Richardson.

Finally, the district court decided sua sponte to consider

: . evidence not presented at trial making its findings of fact and

conclusions of law. At the close of trial the court announced s

intent to get copies of·the police and sheriff's spatch reports,

~ rather than allow the parties to call witnesses, to determine who

had lied in court. The trial court took judicial notice of

.r'
newspaper advertisements in determining that Ms. Dombrows could

have found employment in the private sector or in a prison as a

I.
licensed practical nurse. No statute permits the court take
," such matters into evidence as a matter of -judicial, not'ide. K. S .A.

60-409. The Appellant was given no reasonable opportuni to

r""'.
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12
challenge s hearsay, or even to address the judicial notice of

evidence a r the trial was over. See K.S.A. 60-410.

The· "best interests and weI re of the/child" test is to be

used by the strict court in termining the right to custody of

children. v. Parish, 220 Kan. 131, 132, 551 P.2d 792 (1976);

Tn re Marri of Osborne, 21 Kan.App.2d 374, 377, 901 P.2d 12

(1995); see so K.S.A. 60-1610 (a) (4). However, the Appellant

did not have a 1 and fair hearing before a neutral and detached

ild's best interests. Cf., Tn re R. C., 21 Kan .App. 2d 702, Syl.

~ 1, 907 P.2d 901 (1995). It is well established in Kansas that

parents' rights of custody and of their Idren are

liberty interes protected by the Fourteenth Amendment Due Process

Clause. Tn re Cooper, 230 Kan. 57, Syl. ~ 1, 631 P.2d 6 (1981) .

Ms. Dombrowski's right to equal and inalienable natural ghts as

a parent to her daughter included as a part of her liberty

interests and her pursuit of happiness were also by the

tri court's actions. See § 1 of the 11 of Rights of the Kansas

Cons tution.

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 HER CHILD.

Shawnee County strict Court, being fully aware of

histo of domestic vio even after the separation of

13

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I parties, gave Mrs. Dombrowski the Hobson's choice of her child or

her Ii This unnecessary, arbitrary and capricious assertion of

territorial power and control by the district court under the guise

of the "best interests of the child" denied her equal rights the

possession of her minor child in violation of Article 15, § 6 of

the Kansas Constitution. The best interests of the child cannot

require the deni of MS.Dombrowski's fundamental ghts to life

and liberty pursuant to § 1 of the Kansas Bill of Rights.

The Kansas Court of Appeals' opinion, however, reduced e

constitutional issues to a mere economic argument that the

'Appellant -must"--bewrl"ling to sacri flce ~ -her- clirrenEhdme' and

emplbyinent if she wants to maintain custody of the child. This is

more than a matter of economics; it is a matter of Ii and limb.

The single most complicating factor was not the Appellant's

/ i

'~'" " I
move to Larned, but the undisputed history of domestic violence
I that will inevitably end in the serious physical injury or death of
/
/
.', Ms. Dombrowski if she is required to return to the Shawnee County', '.

\ area to maintain any sort of shared custody of r child.

"-."'-- 7
//
It is undisputed that when the two parties remained in the

same proximity, domestic violence was inevitable. Ms. Dombrowski's

constitutional right to her life was jeopardized by the arbitrary

and capri ous ruling that it was in the best interests of the

child for her to return to the community where she had suffered

dome ic abuse, where she would be more access e to violent

14

~~~-.-~'.',,~"~'~-, --- --------------~----------------------

 temper of her batterer whose criminal convictions for violence go

well beyond the confines of the home.

It is arbitrary and capricious for a district court to require

a battered woman to to sacri her personal phys 1 safety by

'returning to cQmmuni ty of the· abuser, who has repeatedly

committed acts of violence upon her even their separation.

To require a batt woman to choose between her personal safety

and r child is an abuse of discretion.

CONCLUSION

The Appellant respectfully requests that Kansas Supreme

Court accept review of the opinion entered by the Kansas Court of

Appeals herein, and reverse district court's orders relating to

t "r j
. chi custody,/residential custody and visitation. r The Appellant

also requests that this Court reverse any order which would base

the best interests of the child upon the endangering of the natural

mother by re ion to the vicinity of her batterer.

Respectfully Submitted,
( ...;; ~

G~. ~.
GEARY N.
Attorney \ Law
of Counsel
RENDER KAMAS, L.C.
Suite 700, 345 Riverview
P.O. Box 700
Wichita, Kansas 67201-0700
(316) 267-2212

Attorney for Appellant

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

CLAUDINE DOMBROWSKI,

Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; JAN W. LEUENBERGER and JAMES P.

BUCHELE, judges. Opinion filed October 23, 1998. Affirmed.

Geary N. Gorup, of Render Kamas, L.C., of Wichita, for appellant.

Donald R. Hoffman, of Hoffman & Hoffman, of Topeka, for appellee.

Before MARQUARDT, P.L GERNON and KNUDSON, JJ.

Per Curiam: Claudine Dombrowski appeals ftop1. .a di~~rcedecree which

."
would require her to move back to the district court's jurisdiction or lose j-oip.t
custody of her minor child.)

 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
~,

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divorce was filed 4 months later. At the time of their marriage, their child, RD.,
was 11 months old.

Custody and visitation issues were fiercely litigated. At- ,some ·~point
4_ . _ I

. IJombrowski sought and received the district court's- approval to move from
!

Topeka, Kansas, to Great Bend, Kansas. ~ombrowski 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 fil~ 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).

It is 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).

f.
IIIIn determining the right of custody of children between parents, the
pr~mary consideration is the best interest and welfare of the children, and all other
. ~

is.~ues 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]).

 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.. it
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 ~er daughter's>

(-best interests. Even if 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 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 ~asically provided' for jOint tustody'and ·required
\ '

." \. Dombrowski to move back to Topeka by a certam 'date or''1ose' resideilticir custody of
r

thechild."T Once she moved to Topeka, each parent would share residential custody
of t he 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 settlement)1
subject to the preparation of a journal entry. The next day, Dombrowski denied ever ,//
agreeing 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

6
 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
,
.r->
afforded the right to his day in court.
.. '
,I

'
"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.

"'-~~'~------------------- _ _ _ _.._ _----1

 Apnt~-r~~WRi .

lIjffll&'jQ01~tAL DIST
~ W
OCT Z9 9 37 an 'Sf
GE'NERAL dVn;SD!CTJDH
TOPEKA. 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
I

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

of Jenny 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 ofthe 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 ofthis 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 ofthis 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 ofthe 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, considerabletime 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 of Mr. 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 andi at .le~ 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

J
with this child ~s been made.worse by Ms. Dombrowskils
. ­

unilateral decision to m()ve to Larn~d, Kansas in. May of 1996. The distance between Topeka and

3
 APPlliNDlX IB-4

Larned makes it virtually impossible for an individual treater to work with the family; for Mr.

r Richardson to have regular and frequent contact with this child; to eStablisflartY reason~ble
!

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; ~owever,· do~e

violence to the relationship of Rikki and her father.\ If long distance visitation is continued, in the

Court's view, will take its toll not only on Rikki but each ofthe parties. The Court specifically

finds that separation ofthe child from either parent for long peFiods of t~me 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.

The~econd choice is to'tequireMs:.Dombrowskito 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.

.. - - -.. -.~~~~~~~~-~--~---~~
 /
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
7
I am concerned that sole custody in either parent will result in manipUlation and abuse oftheir

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 ofthe 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 th~

child are not residing in Shawnee County on January 1, 199~, 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 ,

. . I
January 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 if impasse is reached 'prior to that

tim~.'· 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

;---,
.1
the child and the other parent. Each parent should endeavor during the next 60 days to
r
I.

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 I

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.
--
I

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 not in conflict with this order shall remain in 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 of Appeals 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 ofthe 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 benefit ofrwo involv~d

parenfs. The ~ggle 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 if her father's's surname is included. The Court notes that Ms. Dombrowski did not

7
 APP~NDKX lB-3
\ change her name at the time of marriage 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
r-
I

parties are directed to complete these forms and schedule and appointment with this Court to

t'-\
" f execute same within 30 days from the date ofthis order.
I

8. The respondent's request for past maintenance is denied as the Court is without

jurisdiction to grant same. See In Re~Marriage ofBrown, 247 Kan. 152, 164 and K.S.A 60­
r-.,
161O(b)(2). Respondent's request for retroactive reimbursement of mileage reimbursement and

l~
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.
.
'V
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 circumst~es: !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.

I
I
10. 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 in~urance, 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

whether or 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 thiJ~ day of October, 1997, at Topeka, Kansas.

Copies to:
Don Hoffinan
AinkaKweli
Harry Moore
Shem Keller .
Scott McKenzie ~TAiE OF KANSAS, COUNTY OF SHAWNEE. ss.
i h;:raby cemty the above !II1d tcregotng to be
i:! !~ue and COtTet.T copy, lfIe ongmal 01 wnich
:s jilud and s eX record in court

9
 APPlliNDXX C-li

CERTIFICATE OF SERVICE

This is to certify that one (1) copy of this Petition for

Review were deposited in the Uni ted States Mail, first class

postage prepaid, and addressed to Mr. Donald R. Huffman, Attorney

~.

at Law, 112 West 7th Street, Garden Suite, Topeka, Kansas 66603 on

this 20 th day of November, 1998.

'. ,

Q,D"~(j~ ,C~,,-~
GEARY N. ORUP
ATTORNEY AND COUNSELOR AT LAW

C-1