.

­ IN THE

- COURT OF APPEALS OF THE

STATE OF KANSAS

-
- In the Matter of the Marriage of

HALLECK RICHARDSON,
- Petitioner/Appellee

- v.
-~-" ...."-...

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

...
BRIEF OF APPELLANT
-
"­
].ppeal 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
Wichita, Kansas 67201-0700
(316) 267-2212

Attorney for Appellant

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

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

STATEMENT OF THE FACTS . . . . . . . • . . . . .. . • 3

The Emergency Haring on the Move

of Ms. Dombrowski to Larned . . . . . . . . . . . . . ..5

The Pre-Trial Preparation Leading

to the Original Trial . '.' . . . . . . . . . . . . . . 7

The Purported Settlement on the Day of Trial . . . . .9

The Hearing on Mr. Ambrosio's Motion to Withdraw. .13

The Hearing to Place the Child in Protective Custody . . . 19
The Preparation Leading up to the Second Trial Date . . . . 24
The Evidence Permitted at Trial . . . . . . . . . . 27
The Divorce Decree . . . . . . . . . . . . . . . . . . . . 43

ARGUMENTS AND AUTHORITIES . . . . . . . . . . .47

I. THE "POLICY" OF THE SHAWNEE COUNTY DISTRICT

COURT DOMESTIC DIVISION TO PRESSURE LITIGANTS

INTO SETTLEMENT AGREEMENTS ON THE DAY OF

TRIAL, COUPLED WITH THE SUBSEQUENT ORDERS AND

ACTIONS OF THE DISTRICT COURT BELOW, DENIED

THE RESPONDENT HER CONSTITUTIONAL RIGHTS TO

DUE PROCESS OF LAW AND HER EQUAL RIGHTS TO THE

LIBERTY INTEREST IN HER MINOR CHILD . . . . . . . . . 47

A. STANDARD OF REVIEW . . . . .47

In re Mariage of McNeely, 15 Kan.App.2d 762,

815 P.2d 1125, rev. denied

249 Kan. 776 (1991) • . . . . . . . . . . . . . . • 47

i
 850 P.2J 844 (1993) . . . . . . . . . . . . . 48

In re D.D.P. Jr., 249 Kan. 529,

819 P.2d 1212 (1991) . . . . . . . . . . . . . . . 48

State v. Puckett, 230 Kan. 596,

640 P.2d 1198 (1982) . . . . . . . . . . . . . . 48

Fourteenth Amendment, United States Constitution . . 48

Section 1, Kansas Bill of Rights,

Kansas Constitution . . . . . . . . 48, 49

Article 15, Section 6, Kansas Constitution . . . . . . 48

B. THE DISTRICT COURT'S "POLICY" FO GIVING

THE PARTIES IN A DOMESTIC DISPUTE THE
EQUIVALENT OF AN "ALLEN CHARGE" UNDER THE
UNIQUE FACTS OF THIS CASE DENIED
SUBSTANTIAL JUSTICE AND A RIGHT TO A FAIR
TRIAL UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, AND DENIED THE APPELLANT OF
THE PROTECTIONS AFFORDED TO A PARENT BY
THE KANSAS CONSTITUTION. . . . • . . • . . 49

Stanley v. Illinois, 405 U.S. 645,

31 L.Ed.2d 551, 92 S.Ct. 1208 (1972) . . . • . . . . 52

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

54 L.Ed.2d 511, 98 S.ct. 549,
rehearing denied 435 U.S. 918 (1978) . . . . . . . • 52

In re Cooper, 230 Kan. 57,

631 P.2d 632 (1981). . . . . . . . . . 52, 56

Parish v. Parish, 220 Kan. 131,

551 P.2d 792 (1976) . . . . . . . . . . . . . . . . 56

In re Marriage of Osborne, 21 Kan.App.2d 374,

901 P.2d 12 (1995) . . . . . . . • . . . . . . . . 56

ii
 K.S.A. 60-410 . . .55

K.S.A. 60-1610 (a) (4) . . . . 56

Fourteenth Amendment,

United states Constitution. . . . . . . . 52, 53, 56

Section 1, Kansas Bill of Rights,

Kansas Constitution. . . . . . . . . . 56

Article 15, Section 6, Kansas Constitution . . . . . 56

Model Rules of Professional Conduct,

Rule 1. 16 (a) ( 3) . . . . . . . . . . . . . . . . . 53

Model Rules of Professional Conduct,

Rule 1.16 (b) (2) • . . . . . . . . • • . . . . . • 53

Model Rules of Professional Conduct,

Rule 1.16 (d) . . . . . . . . . . . . . . . . . . . 53

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . .60

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 61

iii

---------------------~ .. ~-- ...- . - .. ~--.-.--~ ..- -..- -.. ~--_ ..._

 IN THE

COURT OF APPEALS OF THE

STATE OF KANSAS

In the Matter of the Marriage of

HALLECK RICHARDSON,

Petitioner/Appellee

v.

CLAUDINE DOMBROWSKI,

Respondent/Appellant.

BRIEF OF APPELLANT

NATURE OF THE CASE

This is a direct appeal from portions of a decree of divorce

entered in the Shawnee County District Court on October 29, 1997,

which would require the Appellant to move from the Larned, Kansas,

area to the Topeka, Kansas, area or suffer the loss of primary

residential custody of the minor child (II R. 305-09, 313-23). The

Respondent's request for a Stay Pending Appeal was denied by the

district court by a journal entry filed December 1, 1997 (II R.

~-~------~----.~--- ..... - - - -....- _.... _ _ _ ..._ _ ....._ _. _ ....._ _ _.... _ _ _ .... _

 97-809304-A) .

The Respondent herein also appeals herein from various adverse

orders of the district court that essentially enforced the terms

and conditions of a settlement agreement accepted by one of Ms.

Dombrowski's former counsel below, but which was repudiated by Ms.

Dombrowski before it was reduced to writing notwithstanding the

influence of the district court judge and the recommendation of her

former counsel (II R. 305, 313-23; IV R. 2-11).

STATEMENT OF THE ISSUES

1. Does the Shawnee County District Court "policy" which

(~ tends to compel settlement of domestic issues at trial, when

coupled with the limitations set upon the parties opportunity to

present witnesses and evidence on the complex factual issues of

this case, deny the Respondent her constitutional right to due

process of law guaranteed by the federal and state constitutions?

Respondent-Appellant, Claudine Dombrowski, werd married on November

22, 1995 (See, Petition, I R. 18 at ~ 3). The sole child of that

marriage, Rikki Dombrowski, was already 11 months old as of the

date of that marriage (See, Respondent's Domestic Relations

Affidavit, I R. 30 at ~~ 3 and 6). The Petition for divorce was

filed less than four months after the marriage commenced (See,

Petition, I R. 18). From the beginning of the divorce all of the

issues and evidence in dispute centered around which of the two

parties should have primary residential custody of their child

(See, Petition, I R. 18-20, and Answer, I R. 23-24).

Mr. Richardson upon filing for divorce immediately requested

primary residential custody of Rikki (See Petition, I R. 18-20;

see also Transcript IV R. 3). The Respondent made an application

for temporary maintenance and child support on March 7, 1996, which

was ignored by the district courts until thirteen months later

(See, Application for Temporary Maintenance and Child Support at I

R. 38, 69, 159; see also, Temporary Child Custody and Support Order

filed May 28,1997, I R. 186-190).

Throughout the divorce proceedings the Respondent filed

numerous Accusations in Contempt claiming violations of the

restraining order and requesting an order to sever contact between

Mr. Richardson and either Ms. Dombrowski or Rikki. The first of

.~.~.-- -.------------­
 by Mi. Richardson (See, Affidavit in contempt filed March 27,1996,

I R. 54-59; see also Transcript IX R. 182-87).

Within five days of filing that Accusation in contempt Mr.

Alan F. Alderson, attorney for Ms. Dombrowski, appeared before the

Honorable Jan W. Leuenberger, Judge of the District Court, Division

'One, and announced that he and Mr. Hoffman (counsel for Mr.

Richardson) would like time to work out the issues "without

creating a whole lot of facts in front of the Court" (Transcript

of Hearing of April 2, 1996, III R. 2). Mr. Hoffman in support of

that request advised Judge Leuenberger that custody was not a major

problem, but that they needed some time to set up visitation and to

(\! work on a "reasonable interim order on some financial help" (Id.,

III R. 3). Both Mr. Alderson and Mr. Hoffman agreed to sign an

Order of Conciliation which included a finding that it was "in the:

best interests of the parties and their minor children that there

be an amicable settlement of the custody and visitation issues"

(Id., III R. 4; see also, Order for Conciliation, I R. 60 at ~ 1).

The Accusation in Contempt was not presented to the district court

that day or upon any later day by Mr. Alderson (Transcript of

Hearing of April 2, 1996, III R. 5-6). Instead of pursuing Ms.

Dombrowski's concerns for the safety of herself and Rikki from the

history of violence committed by Mr. Richardson, and contrary to an

4
Transcript of Hearing of May 17, 1996, IV R. at 6). By the end of

April Ms. Dombrowski replaced Mr. Alderson as her counsel with

Nancy E. Freund, Attorney at Law (See, Motion to Allow Withdrawal

of Counsel filed April 30, 1996, notation on Appearance Docket

notation, I R. 1-18i see also Entry of Appearance filed by Nancy E.

Freund on May 1, 1996, notation of Appearance Docket, I R. 1-18).

The Emergency Hearing on the Move of Ms. Dombrowski to Larned

On May 10, 1996, Ms. Freund filed a Motion for Authorization

to Move from Topeka to the Great Bend area so that Ms. Dombrowski .
could avoid the history of physical and verbal abuse she had

suffered from Mr. Richardson (I R. 61 at en 4-6). That Motion also

noted that Mr. Richardson had still not paid any child support

(Id., at enen 7 and 12), and advised the district court that she had

been provided a opportunity for gainful employment in the Great

Bend area (Id., at en 9). Ms. Freund's Motion also noted that while

there was no statutory duty to request leave of the district court

to move from one county in Kansas to another, the Respondent sought

permission to avoid any concerns over the residential custody of

Rikki (Id., at en 11). Mr. Hoffman requested an emergency

conference on the matter, which was held on May 17, 1996

(Transcript of Hearing of May 17,1996, IV R. 2). The emergency

5
 court that Ms. Dombrowski would by the following Monday be working

at Larned State Hospital and that she would be residing at 912

Baker in Great Bend, Kansas (Id" at 4-5, 14-15; see also Order

filed June 17, 1996, at ~ 14).

At that hearing Judge Leuenberger noted that a restraining

order was in place in Shawnee County District Court Case No. 95 DV

696 issued on behalf of Ms. Dombrowski against Mr. Richardson

(Transcript of Hearing of May 17, 1996, IV R. at 3) in which Ms.

Dombrowski was given custody of Rikki subject to reasonable

visitation by Mr. Richardson. Judge Leuenberger also took into

consideration the recommendations and findings of Dr. Bernie Nobo

to Court Services Officer Shari Keller (Id., IV R. 2):

"The - after talking with Mr. Nobo, he did not feel

.~ that the child was at personal risk, as long as the two
parties were not physically present as between
themselves. In other words, it's a - whenever the two
parties get together, it's a volative situation; and, of
course, that volativity could spread over to the child,
should they get into physical - a physical dispute as
between themselves. f l (Id., IV R. 3-4).

Judge Leuenberger elected to modify the Protection from Abuse order

issued by another judge as to reasonable visitation based upon the

"volative situation when the two are present fl , and temporarily

suspended the reasonable visitation in favor of a program of

supervised visitation (Id., IV R. at 6-7). While Judge Leuenberger

permitted the move to Great Bend, the order included provisions for

.---~---
district court (Id., at 9, 13).

The Pre-Trial Preparation Leading to the Original Trial

In response Mr. Richardson's counsel filed a Motion for Change

of Temporary and Permanent Residential Custody of Rikki (I R. 64).

The hearing for this motion, as well as on the original motion to
permit the move to Great Bend, were originally set for June 6, 1996
(I R. 65 and 63). However, on June 4, 1996, the clerk of the
district court was advised to take the case off the docket for June
6, 1996, by agreement of the attorneys until the report of Dr.
Maxfield was received (See Appearance Docket notations for June 4,
1996, I R. 1-18 ). This agreement between counsel further delayed

the hearing on the issues in the Affidavit in Contempt and the

request for child support by Ms. Dombrowski; on June 5, 1996, Ms.

Freund moved to withdraw citing a "mutually asserted lack of

communication" between counsel and Ms. Dombrowski (See, Motion to

Withdraw, notation of Appearance Docket at I R. 1-18). On June 7,

1996, Mr. John J. Ambrosio, Attorney at Law, entered his appearance
on behalf of Ms. Dombrowski (see Appearance Docket notation for
June 7, 1996, I R. 1-18).

Mr. Ambrosio waited until August 28, 1996, to file a Motion to

Set Child Support (I R. 1-18), but failed to set the matter for any

7
 (Id.) • A Pretrial Order was approved by Judge Leuenberger on

November 5, 1996, setting the trial for January 30, 1997 (I R. 102­

108) . On that same day Judge Leuenberger appointed Mr. Scott

McKenzie, Attorney at Law, to serve as Guardian ad Litem to appear

on behalf of the minor child, Rikki Dombrowski (I R. 109). On

January 6, 1997, Mr. McKenzie moved to withdraw as Guardian ad

Litem because Mr. Richardson had not advanced his court-ordered

share of Mr. McKenzie's fees (see notation on Appearance Docket for

January 6, 1997, I R. 1-18).

During the interim Mr. Hoffman issued numerous subpoenas for

potential witnesses at the trial, but Mr. Ambrosio waited until

~\ January 21, 1997, to file a list of witnesses and exhibits (I R.

111-15). On January 23, 1997, the district court advised counse~

for the parties by letter that the trial scheduled for January 30,~

1997, had been canceled, and that instead the court would hold a

scheduling conference (I R. 124).

On January 29, 1997, Mr. Richardson filed a Motion to

Establish Reasonable Visitation Schedule Pending Trial (I R. 125).

On the following day the parties agreed to a schedule beginning

February 7, 1997, for Ms. Dombrowski to leave Rikki at a pre­

arranged neutral site, and for Mr. Richardson to pick up the child

for one week of visitation; thereafter, Ms. Dombrowski would have

8
 Meanwhile, Mr. Hoffman on behalf of Mr. Richardson issued

numerous subpoenas for the next trial date, April 17, 1997 (see

notations on Appearance Docket, I R. 1-18, 132-134). The domestic

trial Factual Statement was filed submitted by Mr. Hoffman on April

15, 1997 (I R. 135) in which Mr. Richardson requested primary

residential custody and child support in the amount of $347.00 per

month. Mr. Ambrosio waited until April 17 to file a Factual

Statement, and the court records show no subpoenas issued by him on

behalf of Ms. Dombrowski (I R. 1-18).

The Purported Settlement on the Day of Trial

Prior to the commencement of trial on April 17, 1997, Judge

Leuenberger held a conference with counsel in chambers off the

record, and then on the record in court directed Mr. McKenzie, as

Guardian ad Litem, to place on the record his comments \\with regard

to one of the obstructing problems as he sees it to making any type

of - reaching any type of further agreements that might exist in

relationship to custody and visitation" (Transcript of Hearing of

April 17, 1997, V R. at 2). Mr. McKenzie reported that he had

attempted to obtain advice from Ms. Dombrowski's prior attorneys,

Ms. Freund and Mr. Alderson, but did not learn anything that was

not already in the court Ie (Id., at 3-4). The trial court then

- - - - - _.. __ ...- -----­

 from Dr. Richard Maxfield to give primary residential custody to

Ms. Dombrowski (Id., at 4). Judge Leuenberger noted that the

statutes required the court to enter an order of joint custody, but

if the court was required to make findings in regard to sole

custody, "which might well include the inability to communicate",

the court would make such a finding (Id., at 5). The judge then

advised the parties that if they could not resolve the issue of

custody themselves, then they delegated the "heavy responsibility

of making that final decision" (Id., at 6-7). The judge then

reminded Ms. Dombrowski that the placement of the child in her

residential custody was only temporary and directed Mr. McKenzie to

make a statement directly to Ms. Dombrowski (Id., at 7).

Mr. McKenzie indicated that as Guardian ad Litem his biggest

problem was the inability of the parents to work together, and that

was why he recommended sole custody of the child to Mr. Richardson

(Id. )'. Mr. McKenzie based his preference for Mr. Richardson upon

the proximity of his residence to the district court (Id., at 7-8).

Such proximity gave the court strict control over the parties to

succeed or to fail, and that the resources available in Topeka for

the monitoring of a supervised exchange was "so much easier for the

Court here" (Id., at 8). Mr. McKenzie also expressed his strong

belief in keeping half-siblings of the extended family (referring

10

--------- - ----------- - -- -------------

th~ Topeka community were stronger, but acknowledged that Ms.

Dombrowski might not have the same opportunities in Topeka that she

presently enjoyed in Larned (Id., at 8-9). Mr. McKenzie wanted the

court to take control over the parties and make a decision, right

or wrong, which could be corrected, if wrong (Id. at 9).

Judge Leuenberger then indicated that in light of these

factors it appeared to the court that exercising control over the

child would be in the child's best interest (Id.). The judge cited

as the "complicating factor" the distance between the parents which

made "co-parenting" impossible (Id.,at 10). The judge then advised

Ms. Dombrowski that:

\\ Parents frequently are called upon to make

sacrifices for their children; and if sacrificing means,
you know, giving up a promotion and a job for more income
to stay in close proximity~ then that may need to be
done. And it would seem to me that with your skills and
your experience, that three is a good opportunity that
you might find, maybe not for the same money, but
substantially the same, and in an area not necessarily
Topeka, Lawrence or some place that would put you in the
position to perhaps share or it could be shared, what,
somewhat of a custodial basis.

"Now, I'm not prejudging this. . But I simply

want to, if it would expedite the handling of this
matter, then, and the ultimately it's going to be, if
you're unable to make some compromises yourself, then
it's going to - you're going to delegate that to the
Court and then someone is going to prevail and someone is
not going to prevail.

11

 " . . . I want to give you a final opportunity here for

about 15 minutes and talk this over among yourselves;
otherwise, we'll go forward with the evidence."

(Ido, at 10-12).

That hearing concluded at 2:45 p.m., and at 4:11 p.m. only Mr.

Hoffman and Mr. Richardson returned anno~ncing to the court the

settlement and compromise that the district court had desired and

had recommended of Mso Dombrowski (Id., 13-27). Mr. Hoffman advised

the court that both Mr. Ambrosio and Ms. Dombrowski had left, and

thereafter through the testimony of Mr. Richardson placed on the

record the terms of the agreement reached:

1. The child would be placed in the joint custody of the

parents (Id., at 19).

2. Ms. Dombrowski would be given until July 12, 1997, to

relocate from Larned to Topeka (Id.).

3. If Ms. Dombrowski failed to relocate to Topeka by July

12, then Mr. Richardson would assume full time
residential custody of ~Rikki (Id., at 20).

4. Thereafter, Ms. Dombrowski would have some reasonable

visitation to be established under the guidelines (Id.).

5. However, assuming that Ms. Dombrowski did relocate to

Topeka the parents would share residential custody of the
child on a week by week basis (Id.).

6. In the meantime residential custody would alternate

weekly commencing April 19, 1997, in Topeka to Mr.
Richardson, followed by the child's return to Ms.
Dombrowski at a pre-designated location in Abilene (Id.).

12
 by the parents (Id.).

8. Uninsured medical costs for the child would be split

evenly by the parents (Id., at 21).

9. No child support would be paid by either party (Id.).

10. The non-residential parent would have reasonable

telephonic contact with the child (Id.).

11. Neither party would seek any alimony or maintenance

(Id.) .

12. Mr. Richardson, who had prepaid the court costs, would
bear the costs of the filing fee (Id.).

13. Mr. Richardson would return and deliver Claudine's

clothing to her at the upcoming visitation (Id.).

14. All other personal property would remain as it is (Id.).

15. Each party would be responsible for its own attorney fees
(Id. ) .

16. The parties would split the Guardian ad Litem expenses

(Id.) .

The court approved the settlement as presented by Mr. Hoffman and

Mr.. Richardson in the absence of Ms. Dombrowski and her counsel and

directed Mr. Hoffman to prepare a journal entry (Id., at 23, 26).

The Hearing on Mr. Ambrosio's Motion to Withdraw

On April 18, 1997, Ms. Dombrowski notified Mr. Ambrosio in

writing that she was relieving him of representing her in court (I

R. 1-18). Mr. Ambrosio led a Motion to Withdraw the same day (I

R. 1-18). On the same day Ms. Ainka C. Kweli, Attorney at Law,

13
 Ms. Kweli mailed a series of motions to Mr. Hoffman and to Mr.

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

.:. the child, a motion for temporary custody of the child, and a

motion for the appointment of a new Guardian ad Litem (I R. 141-61;

II R. 162-72). Mr. Hoffman responded on May 9, 1997, by filing a

Motion to enforce the shared custody agreement, and on May 19 by

filing a separate motion for an order transferring immediate :j

custody of the minor child to Mr. Richardson (II R. 175-79~. ~

----
McKenzie on May 19 filed a different motion for protective custody
/of the child upon an allegation that Ms. Dombrowski would be likely

to move out of Kansas with the child or hide the child from the
r-\ court if not immediately detained (II R. 180-82). An emergency

hearing designated as a "scheduling conference" was granted to Mr.

Hoffman and to Mr. McKenzie by the district court on May 19, 1997
(Transcript of Hearing of May 19, 1997, VI R. 2-3).
At that hearing Mike Broemmel, Attorney at Law, appeared on

behalf of Ms. Kweli who was a presenter at a CLE conference (Id.,

at 2, 12, 20; see also Transcript of Motion for Order of Protective

Custody, VII R. 85). Judge Leuenberger at this hearing asked Mr.

Ambrosio to provide his reasons for withdrawing as counsel
(Transcript of Hearing of May 19, 1997, VI R. 3). Mr. Ambrosio

then embarked upon a dissertation which proceeded for eight pages

14

- -.....- -...- - ..... -~.-- .. - - - _..... _ - - _ . _ - - ­

 "The reason for my withdrawal is not just to relate

the shabby treatment that has been given to me by new

counsel, but by what has occurred in this case. And

again, I will not violate the attorney-client privilege,

but I will tell you that my client came to my office

after receiving my colleague Mr. McKenzie's report, the

guardian ad litem's record, and she said that - she read

that report. I believe it was the day before the

scheduled trial. Mr. McKenzie did not get that to my

office until that Monday or maybe the weekend before.

"I'm not in any way being critical of Mr. McKenzie.

I had time to read the report. I had time to prepare for

the hearing . . . I was in a court appearance and she cam

back that evening to discuss them and to prepare for

trial . .

"I appeared the day of trial about a half hour

early. Mr. Hoffman and I had called and indicated we

were going to meet a half hour early. The Court also, I

recall, had a brief conference and did not prejudge this

case, expressed some concerns, did not prejudge in any

way, did not give a statement as to which way the Court

was going You were pretty straight about that.
"But we had a conference with the parties and

counsel . The Court then indicated he would give the

parties and counsel time to discuss the matter.

"My colleague Mr. Hoffman and his client, myself, my

associate Ms. Downey, and Ms. Dombrowski met in your

conference room an hour, an hour and 20 minutes. Don't

remember how long it was. And during that time, my

client was allowed to speak with some of her friends, two

of whom were lawyers, I believe, and also some of them

from Battered Women's Task Force. In that room, she

entered into an agreement and we agreed on a number of

issues." (VI R. 4-7).

After placing upon the record his recollection of portions of the

agreement purportedly made, Mr. Ambrosio continued:

15
 something this Court, again not making a decision,
indicated that was giving you pause for concern, I
believe were your words. That may be my words, but
that's what I got out of it. She agreed to relocate in
this county, at least close to this county, maybe get a
job in Douglas County in a nursing home or some other
county. She agreed.

"We went over and over this with her and she agreed

"My client was happy with, with that settlement

agreement. We left the courthouse and we talked. She
did - never told me she wasn't happy and she left. The
next thing I knew, the next thing I received from her to
my secretary or paralegal, indication that we was off the
case." (VI R. 8-9).

Then Mr. Ambrosio came to the reason he was making this sort of

record before the district court in the absence of Ms. Dombrowski:

"My reason for withdrawing is I was taught as a

young lawyer when I started practicing in this
jurisdiction~ ~ deal is a deal. You give your word and
your client gives a word, and you have a settlement. You
do not go back the next day, you do not go back a week
later. And I think I have that reputation. I may be a
pain in the ne - a pain in the neck to a lot of people,
I may be aggressive, but I think most lawyers will tell
you, I think all lawyers will tell you that my word is my
word and once my client says there's a settlement, we
never have any problems after that.

"And although Mr. Hoffman and I have fought for

years and years at the drop of a hat, I think he will
tell you the same thing, we both trust each other. And
although we're aggressive advocates, once we give our
word that this is a settlement, you have a settlement and
you don't go back on it even if the next day you have
some doubts or even if a week later your client is having
some doubts because the client indicates that they're
going to settle.

16
 "I left the courthouse that day and did not go in
and tell you 'let's try this case' because we had a deal
and my client said we had a deal. I know it's not my
choice and she made the decision and Mr. - Mr. Dombrowski
[sic] made the decision with the advice and consent of
two of the lawyers in this case, both of whom are
experienced." (VI R. 9-10).
Judge Leuenberger then recalled that neither Mr. Ambrosio nor Ms.
Dombrowski were in court when the settlement was announced by Mr.
Hoffman and jurisdictional testimony was taken from Mr. Richardson
(VI R. 10-11). Mr. Ambrosio responded that such procedure was part
of the agreement between he and Mr. Hoffman, and that he had since
f
reviewed the journal entry prepared by Mr. Hoffman and found it to

be consistent with all of the agreements that "my client entered

into with Mr. Dombrowski [sic] and vice versa on that." (VI R. 11).

" However, before trial, and I witl tell you, we

were - I was prepared to try that case and Ms. Dombrowski
knew it. Mr. Hoffman had a series of witnesses here in
order to try the case.
"The reason I'm withdrawing or asking the Court's
permission to withdraw is because I made a deal. My
client made a deal. And then the next day, without a
word to me, she recanted. I can't represent someone like
that, Judge. I could not give her effective assistance
of counsel when one enters into a deal and then changes
it.
"And I'm further angry that we had an agreement,
that until she moved back here, that that child would be
with Mr. Dombrowski [sic] every other week. And I'm
angry about that because that was the deal that we struck
. . . . " (VI R. 11-12).

17
rece";'ved that document into evidence (VI R. 12-14).

Judge Leuenberger then turned to the fact that notwithstanding

an oral agreement between the parties, such approval was subject to

being reduced to writing and approved by counsel and/or by the

respective clients (VI R. 15). Mr. McKenzie addressed the court on

his motion for an order of emergency protective custody directing

the Shawnee County Sheriff to go to Larned, Kansas, find the child

and return the child to Topeka to the residential custody of Mr.

Richardson (VI R. 17-19). Mr. McKenzie made the argument based

upon his understanding of the history of Ms. Dombrowski

disappearing for "weeks on end with this minor child when she's

not getting along with petitioner", and upon his claim that Ms.

Dombrowski had threatened to leave the jurisdiction with the child

in statements to the court services officer (VI R. 18). .. Mr.

McKenzie indicated that he was disturbed that agreed visitation

exchanges did not occur, and argued that Ms. Dombrowski had

committed the criminal offense of interference with parental

custody (VI R. 19).

However, it was noted that on the day of the original trial,

Thursday, April 17, 1997, Mr. Richardson had visitation from that

day for a little more than a week until Saturday, April 26, 1997

(VI R. 24, 25-26). Pursuant to the most recent agreed order on

visitation Ms. Dombrowski would retain residential custody for the

18
visitation, and counsel for Ms. Dombrowski suggested in ~er absence

that may have been due to confusion following the repudiation of

the agreement at trial (VI R. 26). The Court deferred the matter

to the following day to permit the attendance of Ms. Dombrowski in

person to be able to respond to the allegations (VI R. 26-27, 29).

The Hearing to Place the Child in Protective Custody

At the hearing of May 20, 1997, Mr. McKenzie proceeded with

the Guardian ad Litem's motion for an emergency order of protective

custody to remove the child from the residential custody of Ms.

Dombrowski and given to Mr. Richardson (Transcript of Motion for

Order of Protective Custody, VII R. 6-61). Shari Keller, Court

Services Officer, testified to the arrangements made for supervised

exchange of the child between the parties in Salina, but that in

September of 1996 Mr. Richardson advised her he did not wish to

continue supervised visitations under. those arrangements (VII R.

7). Ms. Keller also spoke to the history of violence between the

parties:

" . . My biggest concern in working with them early on

was the domestic violence between the two of these
people, which I addressed between the two people." (VII
R. 9).

Ms. Keller specifically recalled warning the parties that these

types of domestic violence cases might end up with Rikki being

19
that that wouJ.d never happen" (VII R. 10). Later Ms. Keller

learned that Ms. Dombrowski had as a child been placed SRS, and

that she did not have pleasant memories of such placement (Id.).

Ms. Keller came to the conclusion that if the district court

changed custody to Mr. Richardson or placed the child in SRS

custody, that Ms. Dombrowski would be a "run risk with the child"

(VII R. 12). Later in her testimony Ms. Keller admitted that the

only time Ms. Dombrowski had ever intimated or suggested an intent

to "leave the jurisdiction" with the child was when she informed

Ms. Keller that she was moving from Topeka to Great Bend (VII R.

14-15). Ms. Keller admitted that there was no other statement from

Ms. Keller threatening to take the child anywhere else or to leave

the state of Kansas (VII R. IS, 21). Ms. Keller also admitted that

she had not had any problems contacting Ms. Dombrowski (VII R. 26,

28). Ms. Keller also indicated that she agreed with the guardian

ad litem's motion to place the child with Mr. Richardson because:

"The concern I have is that the two of these parties

entered into an agreement to share custody of the child
so that she could grow up with a mom and a dad and that
was not kept and I'm concerned why that was not kept."

(VII R. 28-29). Although Ms. Keller believed that the child's

whereabouts and the contact with both parents needed to be

maintained, Ms. Keller did not believe that Rikki needed to be

placed in protective custody (VII R. 29).

20
days or weeks after an argument or act of violence (VII R. 34-36~.

He testified that Ms. Dombrowski had told him that if there were a

threat that he would get custody of Rikki, that she would

ultimately take the child and go "underground", quit nursing and

resort to prostitution to support herself (VII R. 39). He

suggested that she might take the child overseas to her father in

Belgium (VII R. 41). He also complained that on several occasions

that he had gone to Salina or Abilene for supervised visitation,

but that Rikki would not be there (VII R. 35, 43-44, 53-55, 59-60).

Mr. Richardson conceded that most of the times that Ms. Dombrowski

left with the child were prior to the divorce and any custody order

(VII R. 45). He also admitted that she would leave because of the

arguing between them, and that he had hit her before, but that

hitting was not the reason for her leaving every time (Id.). He

conceded that a person's personal safety was a valid reason to

leave the home (VII R. 45-46). He claimed to have given "several

hundred dollars" in support to Ms. Dombrowski prior to April of

1996, and agreed that he had not contributed any support for the

child to Ms. Dombrowski in the 13 months following the filing of

the divorce (VII R. 46). He also conceded that he had not

contributed to her costs for health insurance for the child (Id.).

21
 When asked about violence bet~een them, Mr. Richardson indicated

that it was "Not that bad" (VII R. 51). He conceded that on at

least one occasion Ms. Dombrowski moved out of his home with their

child because he told her to "get her shit and get out" (VII R.

52). He also conceded that on other times when he believed Ms.

Dombrowski to be "liquored up drunk" and "she'd be running her

yap", that he would tell her to leave and push her out the door

(Id.) • He. also conceded that since the filing of the divorce

action that Ms. Dombrowski had remained within the State of Kansas

(VII R. 56). Then Mr. Richardson was permitted to testify to the

settlement agreement of April 17, and Ms. Dombrowski's repudiation

n of the terms of that agreement before it was reduced to writing

(VI I R . 57 - 5 9) •

Ms. Dombrowski testified that she had been employed by Larned

State Hospital continuously since May of 1996 (VII R. 62). As the

newest employee at Topeka state Hospital she knew that when as it

began to close, she would be the first employee to be laid off

(Id.) • She denied that she had agreed to the settlement, and

testified that at the time of the settlement conference on April 17

that she told Mr. Ambrosio that she did not agree (VII R. 64). He

had first proposed the settlement to her on the evening prior to

trial and was "very angry" with her for not accepting his

22

- _....... _ - - - - ­ --~-~ ....... ------~ -----­

and told by Mr. Ambrosio that if she did not agree to settle, that

she would lose custody of Rikki and see her only two days per month
(VII R. 64-65). Mr. Ambrosio told her that Judge Leuenberger would

give Mr. Richardson custody, and that she would be lucky to get two

days visitation per month (Id.). Mr. Ambrosio asked her if she

would rather have two weeks with Rikki per month pursuant to the

settlement, or whether she would rather fight in court and get only

two days per month with Rikki (VII R. 65). Ms. Dombrowski
testified that she was shocked and overwhelmed, but told him that
she still would not agree and that she wanted him to proceed with

trial (VII R. 65, 70, 72).

Ms. Dombrowski also testified to being beaten by Mr.

Richardson two-to-three times per week, being kicked out of their

residence, being locked out of their home, and admitted that she

would often be gone for as long as two or three weeks at a time

(VIr R. 66). She denied any intention of leaving Kansas with Rikki

because she had a good job, and one finally on the day shift, which

worked well with raising the two year old (VII R. 67). She denied

that Rikki ever "no showed" for a supervised visitation and claimed

that it was Mr. Richardson who had failed to show up for visitation
several times (VII R. 69). Ms. Dombrowski did not go to those

visitations in person out of fear of Mr. Richardson, and due to the

23
 Ms. Dombrowski also denied making any threat to leave the
jurisdiction with Rikki. She admitted that she told Ms. Keller
that SRS placement would never happen, but did so based upon her
faith in the' Kansas judicial system making the correct decision
(VII R. 74). She denied even possessing a valid passport to allow
her to travel abroad (VII R. 75).
In denying the motion for emergency protective custody Judge
Leuenberger again referred to the restraining order in the domestic

violence case (Shawnee County District Court Case No. 95 CV 696)

and to the volatile circumstances that exist between the parties to

which there did not seem to be any reconciliation (VII R. 94, 104).

Judge Leuenberger then established a visitation schedule and

directed a journal entry to be filed specifying all conditions for
supervised exchange of the minor child (VII R. 96-100).

The Preparation Leading up to the Second Trial Date

By May 28, 1997, the district court finally signed a temporary

order for child support as a part of the journal entry reflecting

the court's orders of the May 20 hearing (II R. 186-90). As of

trial only $100.00 towards $119.00 owed per month beginning on May

20, 1997, had been paid by Mr. Richardson(IX R. 95). On the first
day of trial in September he paid another $238.00 (IX R. 95).

24
from the settlement of April 17, 1997 (VIII R. 36-38). The Court
at that conference did limit additional discovery, but reaffirmed
its holding that an agreement in principle between the parties not
reduced to writing or confirmed on the record on April 17 could not

be endorse by the court as "fair, just and equitable" (VIII R. 37).

Prior to trial Judge Leuenberger recused himself pursuant to

a request and grievance filed by Ms. Dombrowski (II R. 252-53).

Several requests for subpoenas, affidavits in contempt, and pre­

trial motions were led by the parties before the trial which were
disposed of by a hearing held on the day of trial (I R. 1-18i see

also Transcript of Hearing, IX R. 3).

At some time prior to trial the attorneys indicated that as

many as 50 subpoenas would be led, and the newly assigned judge

to the case, the Honorable James P. Buchele, Judge of the District

Court, believing that the case was getting out of hand, decided
that he needed to "start putting clamps on" (IX R. 185). Judge

Buchele limited each side to the presentation of five witnesses at

trial (IX R. 129). These limits made it difficult or impossible

for Ms. Dombrowski to bring in all of the witnesses to corroborate

her claims, or to refute the counter-claims of Mr. Richardson. At

times Judge Buchele would prohibit the introduction of hearsay

reports or evidence because the proper witness could not be called
to testify within the five witness limitations (IX R. 36, 134-35,
25
benefit of providing foundation for the admission of those reports
or cross-examination of their content (IX R. 131-32, 183-84). The
trial judge, exasperated with Mr. Richardson at one point during
trial for his failure to take steps to have his minor son available
to testify once subpoenaed by Ms. Dombrowski, explained more fully
his reasons for cutting down on the parties's opportunity to
present evidence and his evaluation of the conduct of the parties:
THE COURT: Don't play games with me. I've seen
what Judge Leuenberger put up with you. I can assure
you, you're not going to get a lot of time on this judge.
Well, I am coming in with a cleaver and there will either
be phone calls or not, there will be moving people back
and forth. I'm not going to play_ You tried to slick me
there. You go call the school and get him a message to
be down here at 3:30. Do it now, Mr. Richardson, and
don't you ever try to slick me around like that again.
Okay? I call that game playing, and if you've been doing
it to her, no wonder she doesn't like you. And vice":'
versa. You're no better. I will not tolerate the kind
of conduct that's been going on in this case. And we'll
just start with this little incident right here." (IX R.
130-31) .

Shortly thereafter, the trial court expressed dissatisfaction that

the parties could not work out their custody, visitation and

telephone contact disputes without the court's assistance:

THE COURT: . "Easiest thing for me to do is
just to stop it. It's -- I don't disagree with the idea.
It's probably good for the child to have that contact.
But, you know, in divorce courts where parents are
unreasonable with one another, you try to be too touchy
and feely, all you do is build yourself a morass. I
mean, you can't make parents deal with one another with
good will. And the more contact you order, the more

26
Richardson to answer the telephone during pre-designated times for

Ms. Dombrowski to call her daughter, the court again sua sponte

addressed the parties regarding their conduct and the effect that

it would have on Rikki:

"THE COURT: You missed part of my little

speech. We're going to stop this nonsense, Mr.
Richardson. I intend to tighten this thing down so it's
manageable. This thing is crazy. This daughter is going
to be as crazy as the two of you if somebody doesn't do
something. She isn't going to turn out any better than
either of you. It's probably a false hope or desire of
the court that the child can grow up and be able to have
a relationship and not get into a relationship like this.
She's on her way. You folks are raising her in your own
image, thinking it's okay to have to exchange with a
parent at a police station, and the lying has been going
on in front of her like, obviously, has been going on at
the mental health professionals and so on. This child is
probably not only going to have a personality disorder,
but be schizophrenic, too. You guys have got some
changing to do. I've spent, you know, since yesterday -­
I haven't looked at these very much. This is terrible
what you guys are doing. Both of you. And I can tell
you, we're not going to have anymore guardian ad litems
in this case. We'll get SRS involved. That's the way
I'm seeing it. This little girl is being put through
stuff that no child should have to endure. All right.
Call your next witness." (IX R. 137-38).

The Evidence Permitted at Trial

During Mr. McKenzie's testimony it became apparent that while

he was very experience in juvenile court proceedings (handling over

one thousand cases), that he had only served as a guardian ad litem

27

indicating that he had "great difficulty" in determining who among

Mr. Richardson and Ms Dombrowski was telling the truth (to which

Judge Buchele conunented sua sponte "I think it's an

understatement") (IX R. 10). Mr. McKenzie indicated that after

reading the police reports of the violence, and the doctor's

reports, he was not able to validate any of the truth of any of the

accusations of violence made by Ms. Dombrowski as to Mr. Richardson

(IX R. 11). Mr. McKenzie in his report to the court indicated his

personal belief that the allegations of a violent and abusive

propensity of Mr. Richardson were so farfetched that he did not

believe them credible" (IX R. 12, 14).

Mr. McKenzie admitted that he did not interview either parent

about custody, and that he did not interview Ms. Dombrowski or the

child at all (IX R. 12-13). Nor did Mr. McKenzie interview day care

providers or the child's physician (IX R. 13). Mr. McKenzie did

not request a horne study of either of the homes of the parties

(Id.). Mr. McKenzie's recollection of Mr. Richardson's criminal

history record was a single offense for ,driving under the influence

of alcohol; he was unaware of six other misdemeanor convictions

including domestic violence battery against Ms. Dombrowski, a

separate misdemeanor battery in a bar fight, and a separate battery

of a law enforcement officer (IX R. 13-14, 16). Mr. McKenzie did

28
14), even though he knew that Ms. Dombrowski had resided at a

Battered Women's shelter many times (IX R. 18). Mr. McKenzie did

not question Mr. Richardson or Ms. Dombrowski concerning the

allegations of violence made against him by Ms. Dombrowski (IX R.

15). Mr. McKenzie at first explained such failure to question the

parties because he would not question persons who were represented

by counsel, but then had to admit that he did interview Mr.

Richardson in this case (Id.). Instead of expressing any concern

over repeated convictions for misdemeanor violence by Mr.

Richardson in his report to the court, Mr. McKenzie recommended

that Ms. Dombrowski, and not Mr. Richardson, attend anger

management therapy (IX R. 16-17). Although Mr. McKenzie was aware

of an allegation that Mr. Richardson had never paid child support,

he took no steps to verify that information, and did not consider

that issue in making recommendations to change primary residential

custody from Ms. Dombrowski to Mr. Richardson (IX R. 19-20).

Ms. Shari Keller testified at trial that she had not had much

contact with either of the parties since September of 1996 (IX R.

25-26). Ms. Keller indicated that Ms. Dombrowski's unilateral move

out of Topeka without her prior knowledge and court approval

greatly complicated her efforts to implement the Order of

Conciliation (IX R. 28-30). She admitted that Ms. Dombrowski made

29
parties and contacted the Sheriff's Office, the battered women's
group and the men's group that Mr. Richardson had been ordered to
attend following his domestic violence conviction, as well as Mr.
Richardson's court services probation officer (IX R. 33-34).
Notwithstanding the violence between the parents, Ms. Keller felt
that the child was not in danger with either of the parents (IX R.
35). Ms. Keller agreed that Rikki had been present during these
violent episodes, but she knew of no history of violence for Mr.
Richardson other than with Ms. Dombrowski, even though she conceded
that Mr. Richardson had a history of violence with other men (IX R.
35) . She was also unaware of an obstruction of justice and
marijuana conviction Mr. Richardson received based upon an arrest
at his first wife's place of work (IX R. 36).
Dr. Bernard Nobo, a licensed clinical social worker in Topeka,
had seen Ms. Dombrowski between March 7, 1995, and May 23, 1996 (IX
r. 39). At that time he had prescribed an antidepressant for her
at the onset of her relationship with Mr. Richardson (IX R. 40).
Ms. Dombrowski had a history of abuse, rape and physical violence
committed against her, leading to her placement in foster homes and
her independence at the age of 15 (IX R. 40). Dr. Nobo indicated
that although he saw no physical proof of Ms. Dombrowski's domestic
abuse from Mr. Richardson, he had no reason to doubt her (IX R.
42). On one occasion Mr. Richardson admitted trying to restrain
30
j oint sessions with both parties ill which he had to stop Mr.

Richardson from a physical altercation with Ms. Dombrowski in his

office, and keeping him back so that she could make a safe getaway

without being followed (IX R. 42-43). Dr. Nobo indicated that due

to Ms. Dombrowski's separation from her parents at the age of 15,

that she had learned the ropes of surviving on the streets, and

learn to disappear for her own protection from abuse (IX R. 43).

Dr. Nobo speculated that if she were ever put in that position

again, she would protect herself or protect anything that was

around her (IX R. 43-44). He believed that might include moving

out of county or out of state to a place where she would feel

protected from the aggressor (IX R. 44). He expressed such

concerns to the court services personnel that if she were

threatened with violence, physical abuse or mental abuse that she

would run, but he did not make that statement based upon any

custody issues, because at the time he was unaware that custody was

an issue (Id., and at 46). His diagnosis of Ms. Dombrowski at the

time was major depressive episodes with some borderline features on

personality disorder on the Axis II, but mainly depression (IX R.

48). His diagnosis for Mr. Richardson was an adjustment disorder

with mixed emotional features (depression or anxiety) (IX R. 49).

31

 Mr. Richardson testi ed at trial that he has three children

(ages 15 to 18) from a prior marriage (IX R. 53). He runs his own
business, Topeka Vinyl Top and Minuteman Solar Film (IX R. 55). He
admitted that Ms. Dombrowski volunteered to him on a Friday evening

before her move to Great Bend about her move (IX R. 57). At the
time he had not yet obtained a visitation order, but he feared the
move to western Kansas would interfere with his future visitation
with Rikki (IX R. 58). Mr. Richardson admitted that the safe visit
program at the Topeka YMCA had been one of the better things
concerning the exchange of Rikki for visitation (IX R. 61-62).
Rikki has her own room in his double-wide trailer (IX R. 66).
Mr. Richardson admitted on a prior occasion telling court
~services that visitation with Rikki was not necessary anymore (IX
-R. 67). This followed a situation where the Salina Police station
was used as an exchange point once the court services personnel in
Saline County could no longer get volunteers to attend the exchange

(Id. ) • Although he picked up Rikki without incident, when he

returned a week later, the police "su.;-round me when I walked

outside and told me to get in my truck, get the hell out of town,

if I looked over my shoulder, I was going to jail" (Id.). He

believed that both the Saline Police Department, and the Shawnee
County Sheriff's Office harassed him due to false claims by Ms.

( \, 32
did not want to have to go a police station in S&lina or Great Bend

for the exchange, and so he told court services he no longer wanted

to exercise visitation (IX R. 68).

Mr. Richardson then was allowed to advise Judge Buchele

concerning the aborted first trial and settlement efforts (IX R.

72-74). ~Mr. Richardson admitted to being an abuser of Ms.

Dombrowski (IX R. 75), but claimed that was due ~mutua~

Mr. Richardson also testified to the terms of the repudiated

settlement that would have required Ms. Dombrowski to return to

Topeka for a shared custody arrangement (IX R. 84-85). Mr.

Richardson as of the time of the start of the divorce trial had

paid one hundred dollars, and then on the first day of trial paid

another $200.00, toward a temporary order for child support granted

in May, 1997, ordering payments of indicated that he wanted the

court to order Ms. Dombrowski to pay $347.00 per month in child

support (IX R. 86).

~ Ms. Dombrowski testified at trial that she is a psychiatric

licensed practical nurse at Larned state Hospital (IX R. 87). She

testified that she was asking for the divorce on grounds of

incompatibility based upon the extreme domestic violence and fear

for her life (IX R. 88). She testified that the first time Mr.

Richardson had struck her was during her fourth month of pregnancy

with his child when she learned that he was in fact married to

33
(IX R. 89).
Ms. Dombrowski also described an incident after Rikki was born
in which Mr. Richardson had pointed a shotgun at her, and cocked

it, while she was feeding her baby in her arms (Id.). She

testified that Mr. Richardson's son came in and told Mr.

Richardson, "Dad, dad, don't", at which time Mr. Richardson shook
his head as if he realized what he was doing, handed the shotgun to
his son, and told him to put it in the closet (IX R. 90).
Ms. Dombrowski also related the incident following her final
separation from Mr. Richardson in March, 1996, during which he was

to bring over her furniture, but instead brought a crow bar (Id.).

The blow he inflicted upon her head required II external stitches

fX~(.rr-eA
and " internal/l sti tches to her head (Id.). Ms. Dombrowski·

indicated that as the violence escalated from February, 1995, to

her separation in March, 1996, that she would leave him as much as
two, three or four times a week to escape the abuse, or due to her
fear of abuse (IX R. 90).

Ms. Dombrowski also testified to an incident in which Mr.

Richardson cut up her military uniforms (IX R. 93-94). She also
related incidents when Rikki would stain the white carpet in Mr.
Richardson's home, and Ms. Dombrowski would be beaten by him out of
anger over the damage done by Rikki (IX R. 95). In February of

34
possessions, her car and Rikki (IX R. 93).

Ms. Dombrowski testified that Mr. Richardson had told her

about his prior misdemeanor conviction for battery of a law

enforcement officer, but that he failed to complete the alcohol

trea tment he had been ordered to at tend (IX R. 98). She also

testified that she was aware of his domestic violence conviction

for disorderly conduct, reduced from domestic violence battery,

following which he had been ordered to go through a psychiatric

evaluation and follow the recommendations, but that again he failed

to follow up with those conditions (IX R. 98).

Ms. Dombrowski also testified concerning her reasons for

putting up with the physical abuse from Mr. Richardson before the

final separation:

"Because I was in an abusive relationship and I

desperately wanted to make the family work. Hal was very
convincing in convincing me that the reason the relations
wasn't working was because I wasn't a good enough wife,
or I wasn't a good enough mother, and that's what
precipitated the violence. If I had done something a
certain way, then it wouldn't have happened. And, so,
yes, I was very depressed. And I started seeing Bernie
Nobo in February of '95. Rikki was already a couple of
months old, then . . . . " (IX R. 106).

Ms. Dombrowski also testified to the residence that she had

found in the Larned area which provided Rikki a one-and-a-half

story home, a three-quarter acre fenced yard, a huge wooden

playhouse, swing sets and sandboxes. The home has two bedrooms and

35
able to get a day shift, which is difficult to do in the nursing

field (IX R. 119). She also testified to her hopes for Rikki:

" It is not in the best interests of Rikki to have

her bouncing back and forth right now. She's in a
daycare. She has -- I mean, it's consistent. Everything
is consistent. And I think it's very important that
things stay consistent. She's two-and-a-half years old.
This is the time when they start building that trust and
begin to believe in -- I mean, it's important that that
consistency be there, not that instability, not when they
grow up, when they don't know what's going to go on with
them. That, I learned from personal experience. You
asked me earlier about my childhood. There was not hat
consistency because I was bounced from foster home to
foster home. That's why I feel it's very important that
consistency be there . . .

"I care about Rikki, Rikki's best interest. I just

care that she grows up happy and emotionally healthy and
physically heal thy, that part, you know, I mean the
emotional part. And a situation like that scares me to
death" (IX R. 126-27).

Dr. Joel Nance, a licenses psychiatrist, then testified that

.,,-.­

after three hours of interviews with Ms. Dombrowski, he found no

evidence of a psychiatric illness (IX R. 149-50). Upon further

questioning he summarized his belief that she was doing well with

what seemed to be a difficult situation (IX R. 159).

Mr. Richardson was recalled to the witness stand and admitted

a prior battery conviction arising out of a fist fight with another

man (IX R. 167). He also admitted a conviction for battery of a

law enforcement officer, but denied that he struck any police

officer (Id.). He could not recall ever being ordered to attend a

36
being ordered to attend anger control therapy out of separate

incident in which he had slapped Ms. Dombrowski (IX R. 168). At

one point he testified that he "always went by Hal G. Richardson,

Jr. ", but immediately had to concede that he had used the name

"Guarty Gonzales" to avoid being arrested on outstanding traffic

tickets and in regards to "a disorderly conduct, or obstruction of

legal process" charge (IX R. 170-71). He denied pointing a shotgun

at Ms. Dombrowski (IX R. 172). He admitted slapping Ms.

Dombrowski, but denied ever punching her; he also admitted that in

defending himself from a kick by her, he twisted her leg (IX R.

173-74). He also admitted that scratches shown on Ms. Dombrowski's

neck and face were the result of one of his mutual fights with her

(IX R. 174). The trial judge also asked Mr. Richardson to describe

his version of the incident in which Ms. Dombrowski received

stitches to her scalp:

"MR. RICHARDSON: Okay. First off, I did not hit her

with a crow bar. Not at her residence. No. She was

under a restraining order. I never ever went to her

house, I never bothered her. Every day when I was

getting home, I would find my back doors kicked in and

stuff gone. I just had moved into my house. She had

been gone a couple of months, and it was just prior to

her moving, and a guy by the name of Alvin Corber and

myself were in the house and we were doing some trim work

in the living room and Claudine come wheeling in the

driveway and she come up to the door and she had a big

purple ring around her mouth, and that told me right

there that she had been drinking. She drinks wine, and

wine only. With that purple ring, the look in her eye,

I knew there was going to be some problems. She walked

37
car, opened the door, Rikki was in her car seat and
Claudine was hanging out the door screaming at me, and
she dropped her car in low, down the driveway she came,
and I ran outside, and I didn't go out there with the
intentions of doing anything, but I had a one-by-two
piece of rough cedar that I was trimming the entire room
out with, and down the driveway she came in her car
through the yard, and I jumped out of the way and she was
hanging out of the car from about her waist out, and it
hit her right there (indicating)
"THE COURT: She was driving the car hanging out the
window?
"MR. RICHARDSON: Yes, yes, yes. She skidded on the
brakes.

"THE COURT: The child was in the car?

"MR. RICHARDSON: Yes, yes, and she skidded on the
brakes, and then she threw the car in reverse, she went
up the driveway and down into a ditch, the headlights
were pointing straight up in the air, and she was out
there just a gunning it, and there was just dirt and
smoke and everything flying and, anyway, she shot out of
the driveway, or out of the ditch and down the driveway.
Again , she got up on the road, jumped out of the car,
and was just, 'Mother fucker,' this, 'Mother fucker,'
that, and anyway, I went in and I called the Shawnee
County Sheriff's Department. I've got the report that I
filed there on Mr. Hoffman's desk. The police came. I
told them what had happened. His name was Brad Metz. I
told Metz when he showed up, I said, 'I hit her,' and
gave him the stick and told him that she come out there
drunk trying to run me over, I just -- I just cannot say
it enough, how much crap that I have been through and -­

"THE COURT: What were you trying to do? Run her

off?

"MR RICHARDSON: Oh, yeah, I wanted -- first off, I

didn't want her running around with my daughter drunk
like she was, and, I mean, she was stinking drunk and
38
door and cleared the steps up in the yard, out in the
driveway, in her car, and dropped the car in gear, and
down the driveway she came when I was coming up the
driveway and I hit her. I'm not going to lie to you, I
did hit her, but she said that I came to her house and
threw Rikki across the room into a wall, pulled a crow
bar out from underneath a trench coat and rapped her in
the head. That's not true. We can prove that.

"THE COURT: Did Mr. Corber, did he see this"

"MR. RICHARDSON: Mr. Corber stayed in the house.

He saw her come in, and then she took off. When she took
off running, he didn't see nothing, but when Mr. Metz
come out there, I gave him the stick and I told Mr. Metz
what went on. He called in, because I said, 'I want you
guys' -- I didn't know how bad, you know, she was hit or
hurt because, again she got to the top of the driveway
and parked her car and jumped out and was 'Mother
fucker,' this and that, and, anyway, she took off. Metz
comes out there. He goes, 'Look, I don't have time to
chase your drunken old lady allover this county,' and it
was when he was calling in to dispatch that dispatch had
called him from the city telling him that they were just
now getting a call from Claudine at her apartment saying
that I had come to her apartment and that she buzzed me
there and let me into her building and I come up there
and I was wearing a trench coat and pulled a crow bar out
and wacked her in the head and pulled a crow bar out and
wac ked her in the head and threw my daughter across the
room. That's not true, Your Honor. That's not true. I
have never been al alter boy, but I didn't do that.

"THE COURT: You were talking to Deputy Metz at the

time she claimed you were at her house?

"MR. RICHARDSON: Yes, sir. Absolutely. If you'd

get a copy of the police report, that report there
reflects me calling in with it, and there's a case
number, a date, and a time. If you call the city, it has
another date and time -- the exact date and time within
minutes of me doing that, that I was supposedly -­
because those dispatchers were talking back and forth.
They said, 'There's no way that guy could be over there.
I'm standing here and talking to him and I've been here

39

______
 around, she would cry foil [sic] and __ n. ,IX R. 175­
80} .

The trial court permitted Ms. Dombrowski to testify regarding the

same incident:

MS. DOMBROWSKI: What happened was, he was supposed to be

bringing me some furniture over to my apartment. It was
late at night. I don't remember the exact time in the
evening. I lived on the third floor in an apartment
building. It was late in the evening. Rikki was
sleeping. Seemed late. I just remember it being dark.
He buzzed in on the buzzer. It was a secured building.
I answered. He said, 'I'm here with your furniture.' I
came downstairs. I was angry about his attorney had sent
me a thing saying lowed him $400 a month alimony
worksheet, and he was reaching in the back of his truck,
he is left-handed, the next thing I know is, boom. I
really don't remember anything past that. When I came -­
I don't know that I lost consciousness. The hospital
asked me if I did. I didn't realize how bad I was hurt.
I immediately went back upstairs. I felt warmth running
down my face. I got very, very scared. I called my
girlfriend, Jan. Jan came over. She s d, 'Claudia, we
need to call the police.' I said, 'No, we're not calling
the police. Every time the police get called, I get
taken to jail,' from past experience with my relationship
with him. We went in to the hospital and the hospital
called the police, and I said, "I will not talk to the
police without a battered woman's advocate,' because I'm
always the one in trouble, and that's how that happened.

"THE COURT: So, your contention is that this did

not happen out at his house. Is he just making that up?

"MS. DOMBROWSKI: Yes, sir, he is making it up. He

hit me so hard that it went down to my skull. I could
barely walk.

"THE COURT: 11m more interested in where it

happened than I am how bad you were hurt. Somebody here
is lying to me.

40

 "THE COURT: I want -- I want to get both -- I want

the dispatch records from both the Sheriff and the Police
Department. I'm going to find out who is lying. It
can't be both ways here.

"THE COURT: I'm not sure yet just how we're going
to figure this out, but I want to know who the liar is on
this deal. Somebody is, and I think that there's records
outside the control of either of you that's going to show
this. He couldn't have done this to you while he was
talking to Metz at the same time. Metz can't be talking
to him while he's at your apartment. I mean, seems to me
that we can nail this one down.

"MS. DOMBROWSKI: See, the police were not called

until after I arrived at the hospital several -- I don't
even know what the time was. I know it took Jan awhile
to convince me to go to the hospital, and the police were
never called until I once arrived at the hospital. So,
you know, you might keep that in mind, too." (IX R. 182­
84) •

The trial court a few moments later re-examined the parties on the

subject:

"THE COURT: Let me, while I'm thinking, Ms.

Dombrowski, do you deny that you were ever hit in the
head with a board over at his house while he was
remodeling?

"MS. DOMBROWSKI: I deny I was hit by a board. I

was hit with a metal object.

"THE COURT: Did something like that happen at any

time?

"THE COURT: Did something like that happen at any

time?

"MS. DOMBROWSKI: No, sir.

"THE COURT: He's making all that up?

41
 with a crow bar?

"MR. RICHARDSON: Absolutely not.

"THE COURT: The day she went to the hospital with

a gash in her head was when you hit her with a stick at
your place?

"MR. RICHARDSON: Deputy Metz, I told him what I

did. I told him I knew I was going to be going to jail.
I told him what I did." (IX R. 186-87).

During this colloquy upon this subject, the district court

explained its reasons for limiting the parties presentation of

evidence at trial, and gave Mr. Richardson's attorney (Mr. Hoffman)

an opportunity to present more evidence, but did not make the same

offer to Ms. Dombrowski's attorney:

"THE COURT:

"All right. Now, counsel, when I did my limits on

this, I told you that I would be willing to listen to
what you feel -- anything else you might want to present
at some time. I don't want anybody to be deprived of the
whole story. On the other hand, when I start hearing
things like 50 some subpoenas and things like that in a
case like this, I start putting the clamps on, because
it's out of hand.

"Now, plaintiff, Mr. Hoffman, is there any other

evidence that you want to present to me on the issues of
property division, custody, child support? I believe
those are the three main ones." (IX R. 185).

Mr. Hoffman suggested that the trial court allow Deputy Metz to

testify, but the trial court ignored that request (IX R. 185-86).

At an earlier time the trial judge had sua sponte told Deputy Metz

42
The Divorce Decree

Final arguments were submitted to the trial court in writing

between September 29 and November 3, 1997 (II R. 294-304). The

district court filed the Journal Entry of Divorce on October 29,

1997, which to a large degree contained the same conditions as in

the repudiated agreement between the parties in May of 1997

(compare II R. 313-23 and V R. 19-21):

1. The child would be placed in the joint custody of the

parents (II R. 317).

2. Ms. Dombrowski would be given until January I, 1998, to

relocate from Larned to Topeka (Id.).

3. If Ms. Dombrowski failed to relocate to Topeka by January

1, 1998, then Mr. Richardson would assume full time
residential custody of Rikki (Id.).

4. Thereafter, Ms. Dombrowski would have some reasonable

visitation to be established under the guidelines (II R.
318) .

5. However, assuming that Ms. Dombrowski did relocate to

Topeka, the court would determine shared residential
custody of the child at a later date (II R. 317).

6. In the meantime residential custody would alternate

weekly pursuant to the temporary orders previously
established by Judge Leuenberger on May 28, 1997 with
exchanges of the child to occur at the Topeka YMCA Safe
Visit location(II R. 318).

7. Ms. Dombrowski would continue to provide for the cost of

insurance (and through her employment), and then future
insurance would be borne equally by the parents (II R.
320) .

43
 Dombrowski returns to Topeka with the child (Id.).

10. The non-residential parent would have reasonable

telephonic contact with the child (II R. 319).

11. Neither party would receive any alimony or maintenance

(II R. 315).

12. Mr. Richardson, who had prepaid the court costs, would
bear the costs of the filing fee (II R. 321).

13. Ms. Dombrowski's share of the proceeds of the sale of the

family home will satisfy any claims she has in the
marital property (II R. 315).

14. All other personal property would remain as it is (II R.

314-15) .

15. Each party would be responsible for its own attorney fees
(II R. 321).

Nevertheless, the district court also made the following findings

of fact and orders:

"At the trial of this case, considerable time 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 [sic] 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 of domestic battery and
at least one alcohol related offense. Further, in the
context of this custody decision, it is clear that

44
 "Mutual parental invul vement with this child has
been made worse by Ms. Dombrowski's unilateral decision
to move to Larned, Kansas in May of 1996. The distance
between Topeka and Larned makes it virtually impossible
for an individual treater to work with the family; for
Mr. Richardson to have regular and frequent contact with
this child; to establish any reasonable 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. I has,
however, done 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 of the parties. The Court specifically finds
that separation of the child from either parent for long
periods of time is harmful for a child of about three
years of age.

" While it is obvious that supervision is needed

when the parties 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 From the evidence
available to the Court, there is no basis to support that
Mr. Richardson has mistreated any of his children in any
way.

"It is my conclusion that the best interests of the

Rikki [sic] is for her to reside in a location where both
paren ts have access to her. Further, the Court is
ordering joint custody in this case as I am concerned
that sole custody in either parent will result in
manipulation and abuse of their position as sole
custodian to harm the relationship of Rikki and the other
parent. The Court enters the following specific orders
relating to the custody of the child:

45
 "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 to complete anger management

classes.

"I. During visitation with petitioner, the

petitioner will assist Rikki in initiating a telephone call to
respondent every 48 hours at 8 p.m. Respondent is enjoined from
calling petitioner's home except in case of bona fide emergency.
Further, respondent is directed not to 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 Larned was necessitated due to
the closure of Topeka 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 LPN's in Topeka or
surrounding counties including the Topeka Correctional
Facili ty. The Court concludes that Ms. Dombrowski's
residence in Larned is not necessary for her employment."

(II R. 315-319).

/
~,

\ 46
 THE DAY OF TRIAL, COUPLED WITH THE SUBSEQUENT ORDERS AND
ACTIONS OF THE DISTRICT COURT BELOW, DENIED THE RESPONDENT HER
CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND HER EQUAL
RIGHTS TO THE POSSESSION OF HER MINOR CHILD.

The Respondent, Ms. Dombrowski, first complains that the

practice and "policy" of the domestic division of the Shawnee

county District Court to pressure the li tigants in a divorce

proceeding to settle the matter, when coupled with the other unique

facts and circumstances of this case, denied her a full and fair

opportunity to defend against the claims made against her and to

present corroborating evidence on her behalf.

A. THE STANDARD OF REVIEW

The standard of review in domestic relations matters involving

the changing of custody of children or setting visitation is an

abuse of discretion standard. In re Marriage of McNeely, 15

Kan.App.2d 762, 764, 815 P.2d 1125, rev. denied 249 Kan. 776

(1991) . 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). scretion must

be exercised, not in opposition to, but in accordance with,

47
 O~dinarily, when 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. 529,

545, 819 P.2d 1212 (1991). The appellate courts have recognized

exceptions to this general rule when the interests of justice so

require. The appellate court has the power to consider an'issue

raised for the first time on appeal when such issue is necessary to

serve the interests of justice or to prevent denial of a

fundamental right. State v. Puckett, 230 Kan. 596, Syl. ~ 1, 640

P.2d 119~ (1982). The Respondent, Ms. Dombrowski, assets the

constitutional issues here involve the denial of her right to a

full and fair hearing of the factual issues involved in this

complex custody battle below (as guaranteed by the Fourteenth'"

Amendment Due Process of Law Clause). Ms. Dombrowski further

alleges that the proceedings below denied her the enjoyment of

equal and inalienable natural rights to due process of law pursuant

to § 1 of the Kansas Bill of Rights to the Kansas Constitution.

Ms. Dombrowski further alleges that the proceedings below denied

her equal rights in the possession of her minor child in violation

of Article 15, § 6 of the Kansas Constitution. While the

underlying facts are heatedly disputed below, these constitutional

issues are raised involve only legal questions arising out of

48
rights to life, liberty and the pursuit of happiness pursudnt to §

1 of the Kansas Bill of Rights. The Respondent, therefore,

respectfully suggests that this appellate court may go beyond a

mere determination of whether the trial court abused its discretion

in its child custody rulings below to determine whether the

policies and procedures of the Shawnee County District Court

domestic division, as applied to the unique circumstances of this

case, violate the federal and state constitutions.

B. THE DISTRICT COURT'S "POLICY" OF GIVING THE PARTIES IN A

DOMESTIC DISPUTE THE EQUIVALENT OF AN "ALLEN CHARGE II
UNDER THE UNIQUE FACTS OF THIS CASE DENIED SUBSTANTIAL
JUSTICE AND A RIGHT TO A FAIR TRIAL UNDER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, AND DENIED THE APPELLANT OF THE PROTECTIONS
AFFORDED TO A PARENT BY THE KANSAS CONSTITUTION.

As noted in the Statement of the Facts the district court

below on April 17, 1997, prior to the commencement of trial made it

clear that, while purportedly not prejudging the case, that it

believed (1) the child should be in the proximity of the district

court where it could maintain some strict control in this matter;

(2) the resources desired by the district court were available in

Topeka: and (3) that the court believed "pretty strongly in the

proximity of the half siblings and of the extended family" and that

there were "more of them here in Topeka" (V R. 8). The court in

49

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