No.

99-83905-A

IN THE COURT OF APPEALS

OF THE STATE OF KANSAS <

In the Matter of the Marriage of

Halleck Richardson,

Petitioner-Appellee.

and

Claudine Dombrowski, Respondent-Appellant

BRIEF OF APPELLANT

Appeal from the District Court of Shawnee County

Case No. 96D217

Honorable James P. Buchele, Honorable Richard Anderson, Judges

Rebecca A. King # 16772

Rilin~ Burkhead & Nitcher, Chtd.

808 Massachusetts St.

Lawrence, KS 66044

(785) 841-4700
Attorney for Appellant

..- - .
-~ ~.-.~-«- ..<-.. - - - ..~..- « - - - - - - - - - - - - . ~. ~._ . _ - <-.~<-.-..- . - «
Nature of the Case ................................................... " 1

Statement ofthe Issue .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2

Arguments and Authorities .............................................. 5

Issue. The district court's orders concerning residence, custody, and visitation

fly in the face ofthe best interests of the minor child and violate the

constitutional rights of both the child and her mother.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5, 6

Green v. Greene. 201 Kan. 701, 443 P.2d 1356 (1980) .............. 5

Stanl0'v. Dlinois, 405 U.S. 645, 31 L.Ed.2d551, 92 S.Ct. 1208 (1972). 5

In re Cooper. 230 Kan. 57,631 P.2d 632 (1981) ................... 5

Carlson v. Carlson, 8 Kan. App. 2d 564, 661 P.2d 833 (1983)

· ................................................ " 6

Anhalt v. Fesler, 6 Kan. App. 2d 921, SyI. 1[ 1~ 636 P.2d 224 (1981)

· . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . . . . . .. 6

In re Hipple, 124 Kan. 3,256 Pac. 1015 (1927) ..................... 7

Carney v. Carney, I Kan. App. 2d 544, Syl. ~ 2,571 P.2d 56, rev. denied

222 Kan. 749 (1977). .................................. 7

Perry v. Perry, 25 Kan.App.2d 447, _ P.2d _ (1998)............... 7

Struble v. Struble, 19 Kan. App. 2d 947,948,879 P.2d 37 (1994).

· . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . .. 8

Simmons v. Simmons, 223 Kan. 639,642,576 P.2d 589 (1978 ........ 8

In the Matter of the Marriage of Whipp, 265 Kan. 500, P.2d _ (1998) .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8, 13

K.S.A.60-1610(a)(3)(B) ..................................... 9

Hoffman v. Hoffman, 228 Kan. 290, 613 P.2d 1356 (1980), ......... 11

Merriweather v. Merriweather, 190 Kan. 598,376 P.2d 921 (1962)

12

Dickiso~ ~~ jji~ids~~i9·K~.·A~~~ 2d'6ii, '63'8~ ·874·P.2~i695 (i994)': 12

Smith v. Printup., 262 Kan. 587, 592, 938 P.2d 1261 (1997). . . . . . . . .. 12

Concl~sion ............................................... , 13

11
 No. 99-83905-A

IN THE COURT OF APPEALS

OF THE STATE OF KANSAS

In the Matter of the Marriage of

Halleck Richardson,

Petitioner-Appellee.

and

Claudine Dombrowski. Respondent-Appellant

BRIEF OF APPELLANT

Nature of the Case

This is an appeal from orders entered and actions taken by the district court

with respect to the custody of the minor child of the parties. The district court's

orders disregard the emotional and physical safety ofthe minor child, subjecting her

and her mother. the appellant herein, to the dangerous potential for abuse and

violence that appellee poses to them. The district court has gone so far as to limit

appellant's right ofaccess to protection from abuse by law enforcement authorities.

Appellant.seeks relief from these orders of the district court iR-this appeal.

1
Issue. The district court's orders concerning residence, custody, and visitation

fly in the face of the best interests of the minor child and violate the

constitutional rights of both the child and her mother.

Statement of Facts

On June 28, 1999. the district court entered its Order to Enforce Prior Order;

Order Establishing Supervised Visitation; Order for Hearing on Child Support;

Order onMotion to Change Venue; andOrder Amending Prior Decision Regarding

Surname. (R.XII at 32-36.) It is these orders, which govern the custody. residence,

and visitation ofthe parties with their minor child, Rildci, that are the subject ofthis

appeal.

The parties share joint custody of Rikki, with appellant designated as the

primary physical custodian. (RXII at 32.) On December 1, 1997, the district court

entered an order requiring appellant to move back to Topeka, where appellee

resides, from the home she had established for herself and Rikki in Lamed, Kansas.

(R.XII at 13.) Appellant's earlier appeal from the district court's order that she

relocate, which was based primarily on arguments about the procedure that led to

the initial custody and visitation provisions of the divorce decree. was unsuccessful;

the orders subsequently entered by the district court on June 28, 1999, provide for

2
 in circumstances calling for modification ofthe relocation order. (R.XII at 32-33.)

By the time of the entry of its June 28, 1999, orders by the district court,

appellant had been settled with Rikki in the Larned, Kansas area for approximately

three years. (R.XV at 13, 26-5 L) Appellant had gainful employment in Lamed, as

a licensed practical nurse that was unavailable to her in any other location due to a

foot disability that affects her strength and mobility. Appellant owns a home in

Pawnee Rock, which is approximately eight (8) miles from Larned. Rikki was in the

midst of receiving specialized medical care for problems with her ears in Great

Bend, Kansas, which is approximately 20 miles from Lamed and twelve (12) miles

from Pawnee Rock. Rikki has also been to counseling in Lamed from the affects

ofthe past abuse she obseIVed from her father, the Appellee. Rikki had friends and

a happy, safe, comfortable life. (R.XV at26-SL)

Appellee had voluntarily suspended any visitation with Rikki for more than

a year. (R.XV at 11-13.) The relationship of the parties was no longer

characterized by the violence to which appellant and Rikki had previously been

subjected by appellee. (R.ll at 315-318.) Appellant had been seriously harassed and

abused by appellee in the past, including having been the victim ofan armed assault

and battery that led to the issuance of restraining orders against appellee. After

3
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the result was a reduction in the physical violence that had ruled the relationship

between the parties. (R.ll at 315-318.) The district court's orders for visitation still

require that appellee's visits with the minor child occur at and under the supervision

ofthe staffofthe YMCA Safe Visit location, and appellant agreed to transport Rikki

from Larned to Topeka for this purpose. (R.ll at 315-318.)

Nevertheless, the district court has reiterated its order that appellant and the

minor child move their residence from the Lamed area back to Topeka. According

to the district court. if appellant does not comply with this order, sole residential

custody of the minor child will be awarded to appellee, a person who is still not

allowed to visit the child without supervision, who voluntarily forewent his

visitation rights for nearly two years, who has failed to made regular child support

payments, and who has a history of alcohol abuse that necessitated an order from

the district court prohibiting appellee from consuming alcohol with 4 hours or

during the visits. (R,ll at 318; R.XII at 32-36.)

The district court has compounded the dangers posed by appellee to appellant

and the minor child by issuing an additional, patently illegal, order prohibiting

appellant ,from calling law enforcement authorities for help or protection from

appellee without first consulting the case manager who was appointed by the district

4
 Appellant submits that these orders ofthe district court cannot be reasonably

interpreted to protect the best interests ofthe minor child, and that the circumstances

of this case require that the orders of the district court be vacated or modified.

Arguments and Authorities

Issue. The district court's orders concerning residence, custody, and visitation

fly in the face of the best interests of the minor child and violate the

constitutional rights of both the child and her mother.

This Court must respond to appellant's claims by determining whether the

orders of the district court can be interpreted by any reasonable person to be

consistent with the best interests of the minor child and the legal rights ofthe child

and the parties. Green v. Greene, 201 Kan. 701,443 P.2d 1356 (1980). This Court

must also respect the fundamental nature of the relationship between parent and

child that has been described by the United States Supreme Court. Stanley v.

lllinois, 405 U.S. 645,31 L.Ed.2d 551,92 S.Ct. 1208 (1972). The Kansas Supreme

Court has also recognized that a parent's right to the custody. care and control ofher

child is a fundamental liberty right protected by the Fourteenth Amendment ofthe

Constitution ofthe United States. In re Cooper; 230 Kan. 57, 631 P.2d 632 (1981).

Ifthese well-established legal standards are applied in this case, this Court will fmd

5
 This is not a case in which a custodial parent has taken the child out of state.

Rikki still lives in Kansas, at a location only three hours away from appellee, and

appellant must bear the expense of transporting Rikki to Topeka for her supervised

visitations with appellee. Under these circumstances, Riklci's best interests cannot

possibly dictate that she be moved from her stable home environment to a different

in-state location that is within easy driving distance ofappellee" s place ofresidence.

See Green v. Greene, 201 Kan. 701,443 P.2d 1356 (1980).

In Carlson v. Carlson. 8 Kan. App. 2d 564, 661 P.2d 833 (1983), the

children's mother wanted to move from Kansas to Arizona, and she contended that,

by reason of the residency restriction contained in the fmal custody order entered

by the district court, and in order for her to have custody of the children, she had

been required to move her residence from the state of Arizona to McPherson

County. Kansas. She also contended that the restriction contained in the order

violated her constitutional right to travel. This Court ruled:

While we recognize that citizens of this nation

ordinarily have the constitutional right to travel from
one state to another and to take up residence in the state
of one's choice, we also recognize a legitimate state
interest in restricting:the residence ofa custodial parent.

6
 2d 921, SyI. 1f 1, 636 P.2d 224 (1981): "The same
considerations which detennine the custody ofchildren
are applied to the question ofremoval ofchildrenfrom
the state. [emphasis added. J Ofprimary concern are the
best interests and welfare of the children; all other
issues are subordinate,,,. It is apparent that a divorced
person may ordinarily move about without restraint or
limitation imposed by the desires or the wishes of a
former spouse, However, as to a divorced parent to
whom custody of minor children has been en1rusted,
such person may be required to forego or forfeit some
rights to custody or visitation, as the case may be,
consistent with the best interests iUld welfare of the
children and the rights ofthe other parent. ... [emphasis
added.] See In re Hipple. 124 Kan. 3,256 Pac. 1015
(1927}." Carlson. 8 Kan. App. 2d at 567. See also
Carney v. Carney, I Kan. App. 2d 544, SyI. ~ 2, 571
P.2d 56, rev. denied 222 Kan. 749 (1977).
The orders of the district court in the instant case are not "consistent with the best

interests and welfare of the [child]. ... " See Carlson. 8 Kan. App. 2d at 567.

Moreover, the simple passage oftime during which Rikki has been healthily

and comfortably entrenched in her home in Pawnee County is a change of

circ~stance that demands that the relocation order entered by the district comt

7
reason to modify a visitation or relocation order even without a showing of a

material change in the circumstances ofthe parties. Peny v. PellY- 25 Kan.App.2d

447, _ P.2d _ (1998).

[T]he district court may consider, based upon the

totality ofcircumstances, what custody order would be

in the best interests ofRP. See Hill v. Hill, 228 Kan.

680, Syl. ,2. Our standard of review is whether the

district court abused its judicial discretion. See Struble

v. Struble~ 19 Kan. App. 2d 947; 948. 879 P.2d 37

(1994).... After considering the evidence shown by the

record and the findings entered by the district court, we

hold the district court did not abuse its discretion in

deciding [what] would be in [the child's] best

interests ....

~Perry, 25 Kan.App.2d at 452.

Quoting Simmons y. Simmons, 223 Kan. 639, 642,576 P.2d 589 (1978); in

the case of In the Matter of the Maniage of Whipp, 265 Kan. 500, _ P.2d _

(1998), the Kansas Supreme Court discussed the fonowing rules of law for

determining the best interests of a child and whether a material change in

circumstance calls for a chrume in earlier decrees:

I
'In order to insure that the interests of the children are

8
 circumstances, K.S.A. 60-1610(a) vests the trial court
with continuing jwisdiction to modifY a custody order.
Therefore, a decree awarding child custody is res
judicata with respect to the facts existing at the time of
the decree. [Citations omitted.] However, when facts
and circumstances change, custody may be changed....
[Citations omitted.]'
K.S.A. 60-1610(a)(3)(B) outlines the considerations on which the decision should

be based when the determination is made about changes in custody:

(B) In determining the issue ofcustody or residency of

a child, the court shall consider all relevant factors,
including but not limited to:
(i) The length oftime that the child has been under the
actual care and control of any person other than a
parent and the circumstances relating thereto;
(ii) the desires of the child's parents as to custody or
residency;
(iii) the desires of the child as to the child's custody or
residency;
(iv) the interaction and interrelationship of the child
with parents, siblings and any other person who may
significantly affect the child's best interests;
(v) the child's adjustment to the child's home, school
and cemmunity;

..
~.~ ~ - - - - . - -_._-_.-_.­
.. --~
.~ .. - - -..- - . - . - - - - - - - - - - - ..- . -..- . -.. ~.-
 respect and appreciate the bond between the child and
the other parent and to allow for a continuing
relationship between the child and the other parent; and
(vii) evidence of spousal abuse.
Neither parent shall be considered to have a vested
interest in the custody or residency of any child as
against the other parent, regardless of the age of the
child...
According to Whipp:

When the custody issue lies only between the parents,

the paramount consideration ofthe court is the welfare
and best interests ofthe child. The trial court is in the
f\
best position to make the inquiry and detennination,
and in the absence ofabuse ofsound judicial discretion,
its judgment will not be disturbed on appeal. Moran v.
MOratL 196 Kan. 380, 386, 411 P.2d 677 (1966). See
Struble v. Struble, 19 Kan. App. 2d 947,879 P.2d 37
(1994) (custody order modifietl).
K.S.A. 60-1610(a)(2)(A) provides:
"Subject to the provisions ofthe unifonn child custody
jurisdiction act (K.S.A. 38-130 I et seq., and
amendments thereto), the court may change or modify
any prior order of custody when a material change of
circumstances is shown."

10

--~.-~ .. --.-.~--------------
silent as to what constitutes a material change in
circumstances. Rather, there has been a universal focus
on what is in the best interests of the child m
determining whether a change of custody IS

appropriate. In Simmons, 223 Kan. at 642, we noted:

"The paramount question for detennination ofcustody
as between the parents is what best serves the interests
and welfare of the children. All other issues are
subordinate thereto. The court must determine which
parent will do a better job of rearing the children and
provide a better home environment. ...
"In order to insure that the interests ofthe children are
fully protected from an adverse change of
circumstances, K.S.A. 6O-1610{a) vests the trial court
with continuing jurisdiction to modifY a custody order.
Therefore, a decree awarding child custody is res
judicata with respect to the facts existing at the time of
the decree. [Citation omitted]. However, when facts and
circumstances change, custody may be changed.
[Citation omitted]."
In Hoffinan v. Hoffinan, 228 Kan. 290,. 613 P.2d 1356
(1980), we again looked to the best interests of the
child to determine whether a change in custody was
warranted. The Hoffinan court only implicitly

11
circumstances. We said:
"In the case now before us, both Deanna and Gregory
have established new homes with new mates since the
divorce was granted. Their life styles have changed.
The trial court had an opportunity to observe the
parents and their new spouses in the courtroo~ to hear
and evaluate the testimony, and to weigh the evidence.
There were many things ofimportance which the court
considered in addition to the then unmarried status of
Deanna and Cooper. The evidence ofdrug usage and its
impact upon the child, Cooper's prior felony record,
attempted denial of visitation privileges, neglect of
Alex's health and clothing needs, lack of discipline,
leaving the child unattended, and taking him to a tavern
late at night, all support the trial court's finding that the
home was unfit. We find adequate substantial evidence
as a basis for the trial court's order, and we :find no
abuse ofdiscretion." 228 Kan. at 292.
In Merriweather v. Merriweather, 190 Kan. 598, 376
P.2d 921 (1962), the question ofwhetber there was a
material change in circumstances was not addressed.
Instead, we stated: "It goes almost without saying that
the real problem posed here is the question of the best
interest of the child involved." 190 Kan. at 599.

12
 should not be disturbed unless it has abused its
discretion. Dickison v. Dickison. 19 Kan. App. 2d 633,
638, 874 P.2d 695 (1994). Discretion is abused when
no reasonable person would take the view adopted by
the trial court. Smith v. Printup,. 262 Kan. 587, 592,938
P.2d 1261 (1997).
Whipp, 265 Kan. 510.

In other words, the controlling consideration should be the best interests of

the minor child, which must be given paramount significance even over a material

change in circumstances that is shown by the party seeking modification. Appellant

more than met her

, burdens under these legal standards in this case. (R.XV at 26­

. :-::56.)

Conclusion

For the foregoing reasons, the orders ofthe district court must be vacated or

modified, and the relief sought by appellant granted.

13

 REBEC A. KING
SUPREME COURT REG. NO. 16772
ATTORNEY AT LAW
RILING, BURKHEAD & NITCHER, CHID.
P.O. BOX B
808 MASSACHUSETTS
LAWRENCE, KANSAS 66044
Telephone: (758)841-4700
Fax: (785)865-0161
Attorney for Respondent-Appellant
Date: December 14, 1999

Certificate of Service
I hereby certifY that five (5) true and correct copies of the foregoing brief
were placed in the United States mail, postage prepaid, addressed to Don R.
Hoffman, Esq.~ J~ffman and Hoffman, 112 W. Th St. Garden Suite, To ek~ KS
66603, on this ~ tlay of December, 1999. . .

14