This action might not be possible to undo. Are you sure you want to continue?
Battery in the Brevard County Courts
Statement of Facts by Florence Paton
Members of my own family including me are not the only ones who have been traditionally abused and battered by husbands and fathers and then by the courts. Battery on women and children is still virtually ignored and continued in many of the nation’s courts. Countless women and children have been denied their rights in the courts of Brevard County, Florida, and it is hoped that they will also come forward and bear witness to the pattern of abuse.
I certify that this is a true and correct account of the events taking place related to the dissolution of my divorce from Francis Berger, occurring from November 1990 thru June 2002. Florence Paton
STATEMENT OF FACTS The Eighteenth Judicial Circuit of Brevard County has failed to protect women and children against violence, failed to administer justice, failed to recognize and apply the laws of the State of Florida and the United States. My name is Florence Paton. I was married to Francis Berger. This is my statement of certain facts in my case, which is only one of many examples of the abuse that women and children have suffered in the hands of the gender biased Florida Judiciary in Brevard County. Francis Berger and I were married in Ottawa, Ontario, Canada in November, 1990. We moved to Florida in 1991. There are two minor children of the marriage. I have three children from a previous marriage. Throughout the marriage there was verbal, physical, mental and sexual abuse towards me by Francis Berger. He also physically and mentally abused our children, including the three children from a previous marriage. There was evidence that Francis Berger sexually abused the children. I was naturally concerned about the safety of my children left unsupervised by the court in the care of the Francis Berger. My concerns were substantiated by the findings of protective investigators of the Florida Department of Children and Families, various psychologists, and triers of the facts. I separated from Francis Berger in March 1996, attaining an injunction for protection order from Judge Warren Burke. Francis Berger violated the order by breaking in and burglarizing the home, stalking and continually harassing myself and the children. He refused to abide by the court order by not attending the Batterers Intervention Program, not attending Alcoholics Anonymous, and not complying with child support and visitation orders. Further abuse to the minor children commenced following his limited visitation with them. Numerous court proceedings were initiated by Francis Berger. The Florida Department of Children and Families initiated a dependency action against him, and he charged me with failure to protect the children. Francis Berger received supervised visitation. Judge Bruce Jacobus became the judge for the case in late 1996. He was informed of the state actions and the non-compliance of Francis Berger with the orders of the court. I was forced to sell the family home due to non-payments of the Francis Berger. Judge Jacobus allowed the sale of the home, ordered that the Francis Berger receive half of the proceeds from the sale, even though the monies did not actually belong to us because they were loaned to me by my parents, and placed a judgment against the Francis Berger for arrearages of non payment of child support Page 2 of 8
in the amount of approximately $2700.00. The judge permitted Francis Berger and his attorney Henry Martocci to proceed with false statements, fraudulent motions and verbal abuse. Judge Edward Richardson was the next Judge assigned to the case. He allowed continuous delays by Francis Berger and his attorney, Henry Martocci, and the trial was stalled. He refused to complete the divorce issues. Numerous motions were commenced by Henry Martocci and Francis Berger. The judge ordered overnight visitation to Francis Berger. This resulted in allegations of sexual abuse by Francis Burger during the visitations, and a hearing was commenced by the Department of Children and Families. Judge Richardson stated that he would like to see them prove sexual abuse – the Department attorney requested a recusal of this abusive judge. Judge Jere Lober became the next judge on the case. In 1998, after numerous delays and continuances by the Francis Berger’s attorney, the state began their proceedings before him. Many witnesses were not called. Francis Berger and his attorney further abused, intimidated and harassed me, my three older children, and various witnesses in the courtroom and surrounding areas. Judge Lober made no attempt to end the abusive, unethical and unprofessional behavior in the courtroom or surrounding areas. Judge Lober also refused to let the minor children testify privately in chambers, stating: “I’m not going to be in any room alone with those two children. If they are going to testify, it will be right here in open court, in front of both of these people.” The Department of Children and Families attorney advised me that she felt there was enough evidence presented to the judge, at least on the physical abuse issues, that it was not necessary to put the children through that. At the end of this trial, Lober stated that if this had come to trial in ‘96 or ’97, he would have found the children dependent. No order of visitation or otherwise was issued by Judge Lober. He stated that Henry Martocci assured him earlier that morning that he wasn’t going to go after the Department for costs. Judge Lober was not aware of extensive evidence and witness testimony that should have been presented. To add insult to injury, he made many insulting statements, comments, and facial gestures towards me throughout this trial. One statement was about his recollection of an old Broadway song that he felt described the situation: “Those Men That Put us On.’ His statements were documented in our motion for recusal. The issues were tried in November 1999 before Judge W. David Dugan. After a nine day trial, Judge Dugan entered a Final Judgment of Dissolution of Marriage. On January 21, 1999 he entered an amended final judgment of dissolution of marriage that added the additional finding that there had been evidence of the physical and verbal abuse of the minor children, and that Florence Paton would be the primary residential parent of the minor children. As a matter of fact, ample evidence and testimony had been provided to the court showing the extensive abuse suffered by my three children from a previous marriage, the two children from this marriage, me, and the family pets at his hands. The abuse consisted of hair being pulled out by the roots; being thrown around bodily; being choked; head slammed into walls; shaking; punching; screaming; name calling; sexual abuse; gripping and choking the family dog; holding the dog under water; slamming the dog into cement walls. Many experts, police officers, and Page 3 of 8
witnesses to the abuse testified at trial. In part, the trial judge stated that the court was concerned with the circumstantial evidence of child abuse, that there was overwhelming evidence of physical and verbal abuse of me by Francis Berger, which continued after separation, as well as evidence of verbal and physical abuse of the minor children. Judge Dugan was concerned with the fact that Francis Berger refused to attend Batterers Intervention although ordered to do so. He ordered that I be awarded primary custody of the minor children. Francis Berger was ordered to have supervised visitation at the Salvation Army visitation center. Any exchange of information between him and me was to occur by exchange of notes during supervised visitation with the children. But Francis Berger made no attempt to access visitation with the children. He made no attempt to pay the child support as ordered by the court. Indeed, he made no attempt to comply with any of the trial judge’s orders. On February 9, 2000 Francis Berger filed notice of appeal of the trial judgment in the consolidated cases. On April 20, 2000 Judge Dugan entered an order denying my motion for an order vacating the administrative assignment of this cause to Judge Vincent Torpy. On April 24, 2000, Judge Torpy granted Francis Berger a stay only to the extent that he would have alternate weekend visitation. But he did not find him in contempt for non-payment of child support nor did he make any attempt to assure that Francis Berger would comply with the court orders. The judge entered the visitation order without even reviewing the evidence, and accepted on face value the perjury and fraudulent motion provided by my ex-husband’s attorney Henry Martocci. On April 26, 2000 Judge Torpy entered his order denying my motion for permission to relocate to Canada, on the grounds that the court did not have jurisdiction over that matter in the absence of an order from the District Court of Appeal permitting the trial court to proceed thereon. He declined to hear this motion in chambers. On May 8,200 The District Court of Appeal of the State of Florida entered its order denying my motion for a review of the stay order. On Friday, May 15, 2000 Judge Torpy made the statement, “Those are American-born children. I want them back on American soil. I am giving custody to Francis Berger.” In short, Judge Torpy denied me due process, did not review the evidence of severe abuse or expert opinions, and ignored appeal court procedures. Judge Torpy, when advised by my counsel that his actions were inappropriate, advised Francis Berger’s counsel to make a motion for a change of custody, and said he would have a hearing on Monday, May 18, 2000. The specific issue, of the violation of the shared parental responsibility provision of Judge Dugan’s amended final judgment, was not noticed or pleaded, but was raised by the trial court. On May 18, 2000 Judge Torpy entered his order on Francis Berger’s emergency motion for temporary change of custody. The order provided the Francis Berger with ten continuous weeks of visitation with the minor children to commence on the date that the children were returned to Brevard County, Florida. I appealed this order. Judge Torpy entered an order on May 18, 2000, in response to Francis Berger’s emergency motion for an adjudication of contempt, finding that I was in contempt of the shared parental responsibility provisions of the amended final judgment as well as the stay order and the order clarifying the stay order. Now Judge Torpy had provided Francis Berger with makeup visitation Page 4 of 8
with the minor children, with the makeup visitation period to be determined at such time as the children had been returned from Canada to Brevard County, Florida for the purpose of such visitation. No prior custody or visitation order in this case had been awarded such substantial contact. There was no evidence that it would be in the best interest of the children. Judge Torpy was clearly punishing me hence placing the children in danger. On June 3, 2000 I filed a notice of appeal of the above two non-final orders which had been entered by Judge Torpy. Francis Berger’s motion to consolidate the appeals was denied by the Fifth District Court of Appeal. Around June 13, 2000 Francis Berger filed a motion to dismiss or abate his own appeal on jurisdictional grounds as well as his claim that I was in contempt of the prior orders of the trial court. On July 14, 2000 the appellate court entered its order denying Francis Berger’s prior motion to dismiss or abate the appellate proceeding. On September 20, 2000 the Francis Berger renewed his motion to dismiss or abate his appeal. The Fifth District denied his motion to dismiss or abate the appeal on September 29, 2000. October 4, 2000 Francis Berger filed a motion to the Fifth District Court to permit the lower tribunal to proceed with certain matters during the pendency of appellate proceedings. That motion was denied on October 12, 2000. On or about November 1, 2000, the two minor children were removed from my custody in Canada, against our will, and placed with their abusive father to be returned to Florida. He had arrived in Canada in late October 2000 to take custody, after he and his attorney submitted fraudulent affidavits and false statements to the Canadian courts and to law enforcement and the American courts. Again, this was done due to unlawful, illegal orders obtained by Francis Berger and his attorney Henry Martocci through fraud, perjury, illegal activities, corruption, battery and threat of battery. There was no prior judicial order preventing the children and myself from leaving Florida. To reiterate, I had legal custody due to a nine day evidentiary trial in 1999, where Judge Dugan found overwhelming evidence of physical and emotional abuse to me, and clear evidence of abuse to the children. Judge Dugan had strong concerns of molestation of the children by Francis Berger - criminal charges were pending at the time against Francis Berger for sexual molestation of the children; Francis Berger did not take advantage of supervised visitation nor did abide by the order of the court; he simply appealed the order and continued his battery through unlawful use of the courts. After the arrival of the children in Florida on November 2, 2000, Judge Torpy held a hearing in Florida which I attended by telephone in Canada. I was denied due process of law. I was denied a continuance in order to obtain an attorney. I was ordered to supervised visitation in the state of Florida. No notice was advanced of this hearing and I did not have an attorney to represent me at this time. I informed Judge Torpy of the order from the Fifth District denying permission for the lower court to proceed. The only testimony was that of Francis Berger’s attorney, Henry Martocci, consisting of fraudulent statements and fabrications which were objected to by me throughout the proceeding. The laws, the orders from the Fifth District Court of Appeal, prior court orders , and the evident abuse of the children and myself were ignored. The children were left in the care of the abuser.
Page 5 of 8
I returned to the state of Florida in January 2001. Since then there were numerous motions filed containing false statements and information; there were fraudulent court proceedings, continuous battering in the courts by Francis Berger and his attorney; successful attempts to delay the proceedings of the lower court and those of the Fifth District Court of Appeals. All legal rights were effectively denied to the children and to me. The children have been kidnapped, and denied protection. On February 9, 2001 a rehearing of the November 2, 2000 hearing was to occur. Judge Torpy allowed a modification hearing instead. He suggested to Francis Berger’s counsel that they should consider having me attain a bond in order to secure my presence in Brevard County. He said that Francis Berger would not be held in contempt of court for not obeying any court orders because he did not blame him for disobeying them. Judge Torpy also said that I had testified that I did not know for certain if the Francis Berger was sexually abusing the children around the time I was testifying. “You believe he is sexually abusing the children right now, don’t you?” was the question asked of me, and I replied, “I hope in my heart that he is not.” So I had answered the question as it was asked. No question of knowledge or beliefs of past sexual abuse committed on the children was asked, and I had seen evidence of such abuse. March 5, 2001 Judge Torpy entered another order which I duly appealed. Henry Martocci continued to harass, verbally abuse, and threaten in the court hallways in February, March and May 2001. On or about May 24, 2001, I sought an order of protection from the Brevard County court. Judge Rainwater denied the request and forwarded it to the Florida Bar for review of professional misconduct. Henry Martocci’s unethical and unprofessional behavior portrayed a personal vendetta on me and my family due to previous Florida Bar proceedings. In those proceedings - Case no 1998-32,033(18B) and 1998 -32, 145 (18B) - the Florida Bar referee found Henry Martocci guilty of violating Rule 4-8.4 (d) for engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice, including knowingly or through callous indifference disparaging, humiliating, or discriminating against litigants, jurors, witnesses, court personnel, or other lawyers on any basis. Henry Martocci indicated during those disciplinary proceedings that he would not get off the case “no matter what,” which was exactly what the referee thought he should do before the abuse worsened. Despite of and because of the Bar proceedings, Henry Martocci and Francis Berger continued to abuse and threaten me, my family , my attorney, and numerous witnesses throughout the years of these proceedings. He even threatened my father with physical harm. Henry Martocci (now deceased) was publicly reprimanded by the Florida Board of Governors for his misconduct, placed on two year’s probation, and ordered to attend a psychological evaluation. Again and again, both Francis Berger and Henry Martocci continued to batter me using the legal system as their weapon .They submitted numerous motions containing fabrications and false statements, requested hearings in order to further confuse the issues and to obstruct justice and to batter me into intimidated submission to their abuse. The court continued to entertain these motions and scheduled hearings. In April and May, they scheduled hearings, including a hearing on an attempt to suspend my supervised visitation with the children. Judge Torpy found that there was not any evidence to support my claims that my children were subject to abuse, but I had ample evidence to the contrary, and I showed that the children feared living with their father.
Page 6 of 8
At a scheduled hearing in or around July, 2001, Judge Lober recused himself and informed me that he had informed Henry Martocci and Francis Berger that the hearing was canceled, and that none of the current proceedings should be occurring. And on July 6, 2001 the Fifth District Court of Appeal opinion (case no: 5DOO-440) affirmed the Amended Final Judgment. Mandate was issued July 25, 2001. But my children were not returned to me. The case was assigned to Judge Tonya Rainwater in August 2001.On August 10, 2001, The Fifth District Court of Appeals opinion (case no: 5DOO-1539) reversed the successor judges’ orders and affirmed the Amended Final Judgment again. Mandate was issued October 12, 2001. But my children were not returned. Judge T. Rainwater just ignored the higher court orders and the children remained with their abusive father. In September, the court entertained another hearing, admitting that the higher court had affirmed the dissolution order. However, the children were still not returned, and were left in the care of the abusive father. In November, at a hearing, Judge Rainwater still refused to return the children as mandated by the Fifth District, yet allowed me to visit the children every other week rather than the supervised visitation at a local visitation center. Henry Martocci and Francis Berger proceeded to submit false information and fraudulent affidavits to the Fifth District Court of Appeal, requesting that the higher court dismiss the appeal of the temporary order of Judge Torpy of March 2000 (case no: 5DOI-1957) . They falsely stated that I agreed that my former husband should have custody of the children, among many other false statements. On April 5, 2002 the Fifth District Court of Appeals opinion (case no: 5DO1- 1957) was filed. That opinion re-affirmed the Amended Final Judgment, dismissing the appeal of the successor judges’ orders with directions. A Fifth District judge stated that they do not understand why my rights under the Amended Final Judgment had been denied by the lower court. But opinion by a Fifth District Court Judge, who was not involved in any of the prior appeals and was not aware of the extensive abuse, stated that the lower court was to have a hearing on the matter in sixty days and the burden of proof is on Francis Berger. That judge, Judge Pleus, had prior affiliation with Judge Torpy. Francis Berger’s hearing for temporary custody, took place on July 1, 2002. The presiding judge, Judge T Rainwater, reserved a decision in order to review some of the court files. Judge Rainwater once again gave temporary custody to my former husband, and in doing so she went against all laws. In early October 2002 I received a call from my attorney informing me that there was another hearing taking place. I questioned the reasoning for the hearing and informed my attorney to relay to the judge that I did not want to participate in the continuing fraud and corruption, among other things. And in November, I found out by chance that yet another hearing was taking place in this case. I was not properly notified of that hearing, but I appeared at the hearing and informed Judge Rainwater that she was going against the laws, ignoring the mandates from the Fifth District Court of Appeals, denying the children protection, and, in effect, that she and the court was denying us of all rights. I informed her that I would not participate in their fraud and corruption. I also informed her that God is real and that she could not buy her way into heaven. Let God be the judge.
Page 7 of 8
Now it is evident that Francis Berger, Henry Martocci, with the help of various officers of the court, judges, clerks and others, all of whom I can name, have ignored opinions and mandates of the Fifth District Court of Appeal. Further harm was inflicted on the children, my family, and me since then .Our rights have been denied and great harm has been inflicted due to gender bias, citizenship, battery, retaliation, corruption, fraud, illegal activities, and disrespect for women. I was denied due process of the law, child support, medical attention, review of sexual abuse and physical injuries. Expert testimony was ignored. Evidence of sexual and physical abuse vanished. Records appertaining to criminal charges against my former husband for sexual abuse of minor children disappeared. Transcripts were altered, perjury committed and permitted and condoned, fraudulent motions and false affidavits accepted, victims were ridiculed and harassed in court by perpetrator, judge and attorney. Battery within the courts was permitted. Records were sealed and withheld from me. Valid motions and hearings were refused. The orders of the appellate court were ignored. Return of minor children as ordered was refused. The court assisted the kidnap of children by their father and his attorney. False statements, affidavits, and other fraudulent information were submitted to the Canadian and American courts, to the Canadian police and others by Francis Berger and Henry Martocci. Domestic violence and other abuse were ignored. All legal, moral, civil and other rights were denied. Justice was blocked and subverted. Members of my own family including me are not the only ones who have been traditionally abused and battered by husbands and fathers and then by the courts. Battery on women and children is still ignored and even continued by many of the nation’s courts. Countless women and children were routinely denied their rights in the courts of Brevard County, Florida, and it is hoped that they will also come forward and bear witness to the pattern of abuse. -XYX-
© 2010 Florence Paton Editor: David Arthur Walters Permission granted to David Arthur Walters to publish this article at will
Page 8 of 8
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.