"

In the Matter of the Marriage of )

HALLECK RICHARDSON, ')

)
Petitioner-Appellee, )
vs. ) Case No. 99-83905-A
)
CLAUDINE DOMBROWSKI, )
)
Respondent-Appellant. )

APPELLANT'S RESPO'NSE TO' O'RDER TO' SHO'W CAUSE

COMES NO'W, the Appellant-Respondent, Claudine Dombrowski, by and through her

counsel, Rebecca A. King, ofthelaw firm of Riling, Burkhead & Nitcher, Chartered, and for her

response the court's Order to ,,%ow Cause filed on September 24th , 1999, states that the

fundamental issues in the instant appeal are not identical in all respects to those decided by the

court's decision in In the Matter ofthe Marriage ofHalleck Richard'Wn and Claudine

. Dombrowski, Case No. 80,304, (unpublished opinion filed October 23,d, 1998, review denied

December 22nd, 1998). Further, the Appellant-Respondent states:

1. That although the basic issue of both of the cases has been the Appellant­
.
Respondent's right not to be forced to move.from Central Kansas or give up the

custody of her child, there have been intervening events that makes the issues in
~

..
this case different than In the Matter ofthe Marriage ofHalleck Richardson and

Claudine Dombrowski, Case No, 80,304, (unpublished opinion filed October 23'd,

1998, review denied December 22nd, 1998). The current appeal arises out of an

Order to Enforce Prior Order; Order Establishing S'upervised Visitation." Order

 Amending Prior Decishm Regarding Surname issued on June 28th, 1999.

2. In the Matter of the Marriage (if Halleck Richardson and Claudine Dombrowski,

Case No. 80,304, (unpublished opinion filed October 23rd, 1998, review denied

December 22nd, 1998), arose from an initial divorce proceeding where there had

been regularly scheduled visitation between the father, the Appellee-Petitioner, and

the daughter. In the present appeal, the Appellee-Petitioner, voluntarily gave up

his right to see his child/or over a year. (This is a paraphrase from the original

transcript as transcribed in a hearing on, June 15 1\ 1999, in Shawnee County

District Court, Division 12, p. 108, lines 1-10. Attached as Exhibit 1 for the

Courts convenience.) It had nothing to do with the status of the appeal as Judge

Buchele indicated in his decision. (Please see attached Exhibit 2, a quote from the

original transcript as transcribed in a hearing on, June 15 th , 1999, in Shawnee

County District Court, Division 12, p. 139, lines 11-25.)

The Appellee-Petitioner clearly gave up an otherwise enforceable right.

Thus, the real issue then becomes one of the Appellee-Petitioner acquiescing to the

Appel1ant-Respondenfs residence being in Central Kansas. Bec.ause of this, he

should be estopped from trying to enforce a prior order for the Appellant-

Respondent to move when the Appellee-Petitioner would not enforce his own

visitation.

3. In the original appeal from In the Matter ofthe Marriage qfHalleck Richardson

and Claudine Dombrowski, Case No. 80,304, (unpublished opinion filed October

Page 2
 abuse or abandonment (physically, emotionally and monetarily) as is evidenced

from the record in the current appeal from Hon. James Buchele's Order of June

28, 1999. Once again, the trial court clearly denied what was in the best interest of

the child in trying to force a shared custody arrangement for a man who has

physically assaulted many people during the years, as was evidenced in the above

mentioned appeal, but for whom there is now suspicion of abuse (physically and

sexually) against the minor child, and who has abandoned the child voluntarily for

more than a year. However, if the Appellant-Respondent does not comply with

the Order to move, sole custody could be granted to the above described

individual as the Appellee-Petitioner, the father of the child. Is making a child

uproot from the only home she knows to move to the same county with an

abusive, absentee father in tlte minor child's best interest?

4. Additionally, the current Motion for Stay, involves a question as to whether or not

the Court properly made rulings without having an evidentiary hearing on the

issues, which was not an issue in the previous case. The Appellee-Respondent,

through Counsel, had filed many motions before the hearing on June 15'\ 1999.

The Motions that were filed were, to-wit: Motion for Child Support, Motion to

Change Venue, Motion to ModifY Child Custody. At the beginning of the hearing

held on June 15 th, 1999, the Appellee-Respondent's Counsel asked the Hon. James

Buchele what matters were before the court on that morning. The response was

that we were there on the Appellee-Respondent' s O~jection to the Case

Page 3
 original transcript as transcribed in a hearing on: June 15 th , 1999, in Shawnee

County District Court, Division 12, pA, lines 17 - 24.)

However, when the Court issued it's Order, it also included the following

orders that were not heard on that day: Order Establishing Supervised Visitation.

Order for Hearing on Child Support. Order on Motion to Change Venue and

Order Amending Prior Decision Regarding Surname. At that time, there was

not even a Motion before the court regarding the minor child's surname. Clearly,

this is an issue that was not raised on appeal in In the Matter ofthe Marriage of

Halleck Richardson and Claudine Dombrow.\*f, Case No. 80,304, (unpublished

opinion filed October 23rd, 1998, review denied December 22 od, 1998), as the

Order currently being appealed did not occur until June 28 th, 1999.

5. That in the original appeal of 111 the Matter qf the Marriage ofHalleck Richardson

and Claudine Dombrowski, Case No. 80,304, (unpublished opinion filed October

23 rd, 1998, review denied December 22od, 1998), the Appellant-Respondent had

not made herself a part of the community and had just recently moved to the

Central Kansas area. At the present time, the Appellant-Respondent has gained

seniority as a psychiatric nurse at Larned State Hospital, provided all of the

.' insurance and care for the minor child, provided all monetary care for the child as

the Appellee-Petitioner was not paying child support, and purchased a home in

Pawnee Rock, Kansas. This is a material change in circumstance, that has

happened since the previous appeal, for which the Hon. James Buchele ignored in

Page 4
 WHEREFORE, the Appellant-Respondent respectfully requests that this Court issue a

Stay pending Appeal

Respectfully submitted,

SUPREME COURT REG. NO. 16772

ATTORNEY AT LAW
RILING, BURKHEAD & NITCHER, CHTD.
P.O. B
808 MASSACHUSETTS
LAWRENCE, KANSAS 66044
Telephone: (758)841-4700
Fax: (785)865-0161
Attorney for Respondent-Appellant
pate: September 20, 1999

CERTIFICATE OF SERVICE

This is to certify that one (1) true and correct copy of this Appellant's Response to Order
to Show Cause was deposited in the United States Mail, first class postage prepaid, and properly
addressed on this 30 lh day of September, 1999, to the following: Mr. Don R. Hoffman,
HOFFMAN & HOFFMAN, 112 West 71h Street, Garden Suite, Topeka, KS 66603 and Harry
Moore, 200 SE 71h Street, Topeka, KS 66603.

This further certifies that one (1) true and correct copy of this Appellant's Response to
Order to Show Cause was sent via facsimile on this 30 th day of September, 1999, fromfacsimile
number 785-843-016, to: Carol Green, Clerk of the Appellate Court, Kansas Judicial Center, 301
S.W. 10th Street, Topeka, Kansas 66612-1507,facsimile 785-296-1028.

~t4,~
Rebec A. King

Page 5
 2 period of time when Rikki was younger that you didn't
3 see her for a significant amount of time; is that
4 correct?

5 A. Yes.

6 Q. And then there was this past year and-a-half where

7 you haven't seen her; correct?

8 A. That's right.

9 Q. And were both those times voluntary?

10 A. Right.

11 Q. Okay. When you arrived at the Safe Visit Program

12 this past May, were you aware that an objection had

13 been on file to the case management recommendation?

14 A. No.

15 Q. Why do you think there would be a problem in getting

16 visitation somewhere else?
17 A. I think the Court here has a little clearer picture
18 of everything that's went on. There's-- we've tried

19 visitation in Salina. It did not work. We tried it

20 in Abiline. It did not work. Everything that we

21 have tried is just-- it never works. The only thing

22 that has worked, and that is even limited, is

23 visitations taking place here in Topeka. That is the

24 only thing. And I think that it needs to stay that

25 way. That way the courts can have a little- better

ESTHER L. THOMPSON, Certified Shorthand Reporter

Third Judicial District, Division 12, 233-8200 x-4676
 2 any other spin, that that's the way i t happened. So,

3 she's out there with an okay by the Court, but it

4 wasn't anything that the Court thought up or put a

5 star on or said was a good idea and, so, I would like

6 to put that to rest, that that's kind of what the

7 facts are and i t happened that way and that was Judge

8 Leuenberger's jUdgment. And I'm not here to

9 relitigate what should have been the decision at that

10 time. I've got to deal with what I have here.

11 So, 20 months later from my prior decision, 18

12 months after I suggested that was an appropriate time

13 for her to relocate back to Topeka, I'm faced with

14 trying to determine what is the best interest of the

15 child.

16 Counsel are aware that there's an axiom in the

17 law that the delays and the inefficiencies of the

18 legal process sho~ld not work to the prejudice of

19 either party. And that's a good principle;

20 otherwise, what is already a very cumbersome and

21 inefficient process gets used for the benefit of the

22 side who wants to be the most litigious and exploit

23 the system, and in a usual case-- if i t ' s a contract

24 case, I can secure that with financial sanctions,

25 interest, awards of attorney fees, and so forth. But

ESTHER L. THOMPSON, Certified Shorthand Reporter

Third JUdicial District, Division 12, 233-8200 x-4676
 2 motion that's been filed for my recusal, nor have I

3 received any Order on it, so that's the only response

4 I can give you. Did you file it with me~

5 MS. KING: No, with-- I sent you one and I

6 filed it with the clerk yesterday. Is it not in the

7 file?

8 THE COURT: I don't know. As I

9 indicated to you in the phone conference that we had

10 when you filed your initial request, that I was

11 denying it and that you should file i t forthwith as

12 the statute indicated. ~nd, so, I don't know. It's

13 not a matter that I would rule on, anyway, and that I

14 would remain in the case until there was an Order.

15 So, I don't know.

16 MS. KING: .And then the other preliminary

17 matter, Your Honor, is what exactly are we here on

18 today? It was my' understanding it was just on my

19 objection to the case manager's recommendation.

20 THE COURT: I think that enforcing the

21 case manager's recommendation is the issue; is it

22 not?

23 MR. HOFFMAN: Yes, Your Honor. That was my

24 understanding. Mr. Moore had issued directives

25 twofold; one, that Ms. Dombrowski comply with the

ESTHER L. THOMPSON, Certified Shorthand Reporter

Third Judicial District, Division 12, 233-8200 x-4676