1998 Brief of Appelle Richardson-Dombrowski Case 96D217

8/8/2019 1998 Brief of Appelle Richardson-Dombrowski Case 96D217

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NATURE OF THE CASE ............................................... 1

STATEMENT OF THE ISSUES ........................................... 1

STATEMENT OF THE FACTS ........................................... 1

Supreme Court Rule No. 6.02( d)......................................1

ARGUMENTS AND AUTHORITIES ...................................... 2

I. THE CONSTITUTIONAL ISSUES RAISED BY APPELLANT FOR THE FIRST TIME ON APPEAL ARE NOT PROPERLY BEFORE THE COURT FOR REVIEW . . . . . . . .2

In re D.D.P., Jr., 249 Kan. 529, 819 P.2d 1212 (1991) ........................... 2

In re Residency Application of Bybee, 236 Kan. 443, 691 P.2d 37 (1984) ............... 2

Malone v. University ofKansas Medical Center, 220 Kan. 371,552 P.2d 85 (1976) ........ 2

Missionary Babtist Convention v. Wimberly Chapel Baptist Church, 170 Kan. 684, 228 P.2d 540 (1951)................................................... 2

Lamb v. Butler County, 108 Kan. 739, 196 Pac. 1059 (1921) . . . . . . . . . . . . . . . . . . . . . . 2

State v. Puckett, 230 Kan. 596, P.2d 1198 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858 (1967) ........... 3

II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION EITHER IN ITS MANAGEMENT OF THE CASE OR IN THE FINDINGS AND

ORDERS CONTAINED IN THE DIVORCE DECREE. . . . . . . . . . . . . . . . . . . . . . . . . . . 4

In re D.D.P., Jr., 249 Kan. 529, 819 P.2d 1212 (1991)........................... 4

Stayton v. Stayton, 211 Kan. 560, 562, 506 P .2d 1172 (1973) . . . . . . . . . . . . . . . . . . . . . . 4

In re Marriage ofMcNeely, 15 Kan.App.2d 762, 764, 815 P.2d 1125, reh. denied 249 Kan. 776 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Simmons v. Simmons, 223 Kan. 639, 643, 576 P.2d 589 (1978)..................... 5

CONCLUSION......

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CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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NATURE OF THE CASE

Richardson essentially concurs with Dombrowski's statement regarding the nature of the

case. However, it is important to note that certain procedural aspects of the post-appeal course of

this case are absent from Dombrowski 's statement. Specifically. the Court will note that on

January 22. 1998 the Court issued notice that this case would be expedited and that no extensions

of time for filing briefs would be granted. Pursuant to the rules of the court, Appellant's Brief was

due on or before February 9, 1998. On February 13, 1998 the Court issued an order to show

cause because of Dombrowski' s "substantial failure to comply with the rules of the court, and in

particular Supreme Court Rule No. 6.01". Under the terms of the aforesaid order, Dombrowski

was to have her brief on file no later than March 5, 1998. On March 9, 1998, Dombrowski flled

her Motion to File Brief Instanter. On March 11, 1998 appellee filed his Motion to Strike Filing of

Appellant's Brief. On March 18, 1998 Richardson's motion to strike was denied.

STATEMENT OF THE ISSUES

I. THE CONSTITUTIONAL ISSUES RAISED BY DOMBROWSKI FOR THE FIRST TIMEON APPEAL ARE NOT PROPERLY BEFORE THE COURT FOR REVIEW

II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION EITHER IN ITSMANAGEMENT OF THE CASE OR IN THE FINDINGS AND ORDERS CONTAINED IN

THE DIVORCE DECREE

STATEMENT OF THE FACTS

Richardson agrees with the statement of facts provided by Dombrowski for the limited

purpose of this appeal. However, with regard to the way in which the "facts" are presented.

Richardson would state that Dombrowski has, in some instances, argued her case in this section

contrary to Supreme Court Rule No. 6.02(d) which states that Appellant's Brief shall contain "a

concise but complete statement, without argument, of all the facts material to the determination of

the questionor

questions presented for appellate decision." (Emphasis added).

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ARGUMENTS & AUTHORITIES

L THE CONSTITUTIONAL ISSUES RAISED BY DOl\1BROWSKI FOR THE FIRST TIMEON APPEAL ARE NOT PROPERLY BEFORE THE COURT FOR REVIEW

As cou,nsel for Richardson understands Dombrowski's argument, she complains that her

right to due process under the Fourteenth Amendment, her right to "the enjoyment of equal and

inalienable natural rights to due process of law under § 1 of the Kansas Bill of Rights and her '

"equal rights in the possession of her minor child" under Article 15,,6 of the Kansas Constitution

were violated by the trial court's handling of this matter. See Appellant's Brief, p. 48. These

matters are brought to the Court's attention in a broad brush manner and the accusations regarding

the trial court are sweeping and, quite frankly, not supported by the voluminous record.

Regardless of how these matters are dealt with by Dombrowski, the fact remains that she seeks

reversal of the trial court's rulings based on issues not raised at the trial court level and admits as

much in her brief. Appellant's Brief, p. 48. The law regarding appeals of this sort is well

established in Kansas.

In In re D.D.P., Jr., 249 Kan. 529, 819 P.2d 1212 (1991), the court states: [w]e have

long held that where constitutional grounds for reversal are raised for the first time on appeal, they

are not properly before the appellate court for review." In re D.D.P., Jr., 249 Kan. at 545 citing

In re Residency Application of Bybee, 236 Kan. 443, 449, 691 P.2d 37 (1984); Malone v.

University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 85 (1976); Missionary Babtist

Convention v. Wimberly Chapel Baptist Church, 170 Kan. 684, 688, 228 P.2d 540 (1951); Lamb

v. Butler County, 108 Kan. 739, 740-41, 196 Pac. 1059 (1921). In order to avoid the application

of this well established principle of appellate review to her detriment, Dombrowski relies on the

holding in State v. Puckett, 230 Kan. 596, P.2d 1198 (1982).

The Puckett court recognizes the general rule that a reviewing court will ordinarily only

consider those issues developed before the trial court. Puckett, 230 Kan. at 598. The Puckett

court goes on to say, however, that there are three exceptions to the general rule as follows:

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proved or admitted facts and which is fmally detenninative of the case;

(2) Questions raised for the first time on appeal if consideration of the same is necessary to

serve the ends of justice or to prevent denial of fundamental rights; and

(3) That a judgment of a trial court may be upheld on appeal even though that court may

have relied on the wrong ground or assigned the wrong reason for its decision.

Puckett, 230 Kan. at 598-99, citing Pierce v. Board of County Commissioners, 200 Kan. 74, 434

P.2d 858 (1967). The Puckett court goes on to note that a reviewing tribunal will only apply one

of the noted exceptions to the general rule under "exceptional circumstances". Puckett, 230 Kan.

at 601.

This case is exceptional only in regard to the vast amount of effort put into assuring that

Dombrowski's rights were protected from the very outset of the case. As Dombrowski's

Statement of Facts makes clear, she was afforded every opportunity to present her cause against

Richardson. This matter was litigated in one form or another before two district judges.

Dombrowski was, at one time or another, represented by seven different attorneys prior to

retaining her current counsel. The pleadings filed by the parties prior to the trial of this matter

encompass almost 300 pages and two volumes of the record on appeal. The transcripts of the

proceedings in this matter are voluminous. Richardson respectfully suggests that no "exceptional

circumstances", as required by the Puckett court, exist in this case that warrant review of issues not

previously raised before the trial court.

Even assuming arguendo that the case before this Court is exceptional in some meaningful

. way, it is clear that neither of the two exceptions relied upon by Dombrowski are applicable.

Dombrowski alleges that "while the underlying facts are heatedly disputed below, these

constitutional issues are raised [sic] involve only legal questions arising out of proved facts."

Appellant 's Brief, pp. 48-49. This allegation necessarily involves the second exception stated by

the Puckett court regarding the prevention of a denial of fundamental rights. As such, it appears

that Dombrowski rests her argument on the idea that the analysis of her constitutional claims-

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can be resolved as a matter of law and that their resolution will be determinative of the case. Inview of the standard of review applied by the appellate courts in cases like the one at bar,

Dombrowski's claims must fail.

n. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION EITHER IN ITSMANAGEMENT OF THE CASE OR IN THE FINDINGS AND ORDERS CONTAINED INTHE DIVORCE DECREE

All of Dombrowski's arguments rest on the idea that the trial court abused its discretion insome fashion during the course of events leading up to trial and during the trial itself. The abuse of

discretion standard is discussed at length in the previously cited case In re D.D.P., Jr., as follows:

Judicial discretion is abused when judicial action is arbitrary, fanciful, or

unreasonable, which is another way of saying that discretion is abused only whenno reasonable person would take the view adopted by the trial court. I f reasonablepersons could differ as to the propriety of the action taken by the trial court, then it

cannot be said that the trial court abused its discretion. All judicial discretion mustthus be considered exercise able only within the bounds of reason and justice in thebroader sense, and only to be abused when it plainly overpasses those bounds.

In re D.D.P., Jr., 249 Kan. at 546 citing Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172

(1973) (further citations omitted).

Dombrowski argues that the trial court gave the parties an "Allen charge" when it verbalized

its thoughts regarding the case prior to the original trial date and then afforded the parties an

opportunity to resolve the matter. In essence, Dombrowski urges this Court to find that the trial

court somehow forced her to enter into a settlement agreement and that that act is sufficient to

warrant a finding that her right to a fair hearing was violated. Nothing can be further from the truth

in this case. The parties were given the chance to settle the case-- one last time --without court

• interference. It is undisputed that Dombrowski had the advice and assistance of competent counsel

when she entered into the court's conference room to discuss this case with Richardson and his

counsel. She had every opportunity to refuse to engage in settlement discussions and to demand

that the case be tried right then and there.

The second point somewhat bluntly raised by Dombrowski is that the trial court "arbitrarily

and capriciously limited each party to present only five witnesses, and there after further

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medical records and other evidence upon strict application of the rules of hearsay because the

proper witness was not available." Appellant's Brief, p. 54. The thrust of this argument is again

couched in the broad terms of a perceived fundamental rights violation. Initially, it should be noted

that the trial court's decision to limit witnesses cut both ways. Richardson was every bit as

hampered by the court's decision to place limits on the volume of evidence to be presented as

Dombrowski. Secondly, it is clear that by the time this matter came up for trial that the court flle

was over-flowing with information that was both favorable and unfavorable to each of the parties.

The issues before the court needed to be resolved and the court, in its sound discretion, set

parameters by which those issues could be presented by the parties.

With specific regard to the divorce decree that Dombrowski complains of, insofar as the

decreed deals with the visitation and custody of her child, the case law is clear and states:

The question of a change of custody is addressed to the sound judicial discretion of

the trial court and the appellate court's review of the trial court's determination isvery limited. [Citation omitted.] The trial court is in the most advantageousposition to judge how the interests of the children may best be served. [Citationsomitted.] While an appellate court has only the printed page to consider, the trialcourt has the advantage of seeing the witnesses and the parties, observing theirdemeanor, and assessing the character of the parties and quality of their affectionand feeling for children. [Citation omitted.] The judgment of the trial court will norbe disturbed without an affmnative showing of an abuse in the exercise of

discretion.

In re Marriage ofMcNeely, 15 Kan.App.2d 762, 764, 815 P.2d 1125 (1991) quoting Simmons v.

Simmons, 223 Kan. 639, 643, 576 P.2d 589 (1978). The trial court in the instant matter was

presented with the facts of the case, took sworn testimony from the parties and their witnesses and

made findings and issued orders according to how it felt the interests of the minor child would best

be served.

CONCLUSION

Dombrowski has presented the Court with a fifty eight page brief setting forth, in essence,

the argument that her "fundamental rights" were violated with respect to the trial court's handling

of this matter. She argues that these perceived violations are so extraordinary that the Court should

take up her appeal on the merits even though she failed to raise them below. The truth of the matter

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to present her cause. There is nothing extraordinary about this case other than the fact that so much

effort went in to seeing that Dombrowski got a fair shake.

Even assuming Dombrowski's situation is so unique that Court takes up the issues she

raises, none of her broadly stated claims are meritorious. Dombrowski must show that the trial

court abused its discretion in handling the case in the manner it did and that the court's case

management techniques, taken as a whole, resulted in a divorce decree that is arbitrary and

capricious. Dombrowski simply cannot meet this high burden based on the facts set out in the

record and in the forty-six page rendition of the facts set out in Appellant's Brief. It is apparent

that Dombrowski will not be satisfied until she has drained every available resource out of

Richardson and the courts system and until she is able, by whatever means necessary (or how

many attorneys she has to go through), to get a child custody order that is satisfactory to her.

Respectfully submitted,

on d R. Hoffman

Jason P. Hoffman (#17HOFFMAN&HO

112 West Seventh StreetGarden SuiteTopeka, Kansas 66603Ph. (785) 233-5887Fax (785) 233-2173Attorneys for Appellee

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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that on the 4th day of May, 1998, I deposited five (5)copies of the above and foregoing document in the United States mail, postage prepaid, addressedto:

Geary N. GroupAttorney at LawRender Kamas, L.C.345 Riverview, Suite 700Wichita, KS 67201

and that the original and sixteen (16) copies of the same were hand delivered to:

Carol G. GreenClerk of the Appellate CourtKansas Judicial Center301 S.W. 10th StreetTopeka, KS 66612-1507

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Documents

1998 Brief of Appelle Richardson-Dombrowski Case 96D217