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IN THE CIRCUIT COURT OF ST. LOUIS COUNTY STATE OF MISSOURI FAMILY DIVISION In re the Marriage of: ) ) CAROLINE VAN DEN BERGH, ) (aka CAROLINE LESS) ) ) Petitioner, ) ) Cause No. 15SL-DR05021-01 ) v. ) ) Division No. 13 MELCHIOR VAN DEN BERGH, ) ) Respondent. )
PETITIONER’S
EMERGENCY MOTION FOR RECUSAL, TO DISQUALIFY OR CHANGE THE JUDGE FOR CAUSE, FOR REVIEW BY THE PRESIDING JUDGE, TO DISSOLVE TRO AND FOR OTHER RELIEF
COMES NOW, Petitioner, Caroline Less
(hereinafter, “Mom”),
by and through her attorney, Natalia D. McKinstry of Natalia McKinstry LLC, and for her Emergency Motion for Recusal, to Disqualify or Change the Judge for Cause, for Review by the Presiding Judge, to Dissolve TRO and for other Relief, states to the Court as follows.
I.
BACKGROUND
1.
On November 24, 2020, Respondent Melchior Vandenbergh
(“Dad”)
filed a Petition for TRO, which the Court granted in part, on November 25, 2020. 2.
Hearing on the Petition for TRO and permanent injunctions was set for December 4, 2020, continued to December 14, 2020, for new GAL to prepare. 3.
The setting of the TRO hearing was from 1:00 pm to 3:45pm, per Court Order. 4.
Dad previously filed several petitions for TROs, orders of protection and four motions for contempt against Mom.
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5.
The Court record is incorporated herein as if set forth in full herein. 6.
The Modification Judgment of December 13, 2018, incorporated GAL
’s
Exhibit A2 concerning the therapy for the child, the parties counselling and access to medical records (
hereinafter referred to as the “Therapy Order”).
7.
A copy of partial transcripts of the testimony of police officer J. Wiggs (Exhibit 3), Dad (Exhibit 1) and Mom (Exhibit 2) completed by the deadline to file findings and conclusions are incorporated herein as Exhibit 1, 2 and 3.
II. DECEMBER 14, 2020, HEARING -- AREAS OF CONCERN
8.
Hearing on December 14, 2020, started at least half-an-hour late because the Judge was still hearing a prior case. 9.
Petitioner had three other witnesses; only police officer J. Wiggs was heard. 10.
Judge Bruce Hilton inquired
who was Dr. Donna Spencer (Petitioner’s
therapist), but there was no time for her testimony. The Therapy Order required both parties to be in therapy. Questioned by GAL, Dad admitted that he was not presently in therapy, that he stopped going to therapist and that he was not discharged by a therapist (Exhibit 2, p. 74, ln. 18-19). 11.
There were continuous issues with internet connection via Zoom on December 14, 2020, wherein the Court Reporter indicated on several occasions that she could not hear testimony,
particularly Mom’s testimony.
12.
During Mom’s testimony
and her counsel’s examination
, internet connection and sound were repeatedly lost, the undersigned
“froze” (Exh. 1, p. 36, ln.23)
. 13.
Due to Mom’s attorney and Dad having foreign accents, the Court Reporte
r requested them several times to repeat themselves which also consumed time.
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14.
As a result, Mom’s counsel
believes that the partial transcripts are missing pieces
of the parties’ testimony and/or counsels’ and Judge’s comments.
15.
Even though the hearing started half-an-hour later, at 15:47 pm the Judge stopped direct testimony of Mom after her counsel finished with appendicitis- related questions right before she could start her therapy-related direct testimony, and provided floor for questions to other attorneys. 16.
It should be noted that Dad’s counsel made numerous long, “speaking”
objections, which even the Court identified as such, consuming the time. 17.
The Judge did not hear separately pending
Petitioner’s
motions filed in
response to Dad’s Petition for TRO;
however, Judge Hilton ruled or commented on how he was inclined to rule before the hearing concluded. 18.
In his introductory remark before any testimony adducted, Judge Hilton stated
about pending Motion to Strike Petition for TRO: “.. the parties are here v
ia
video conferencing on… I guess motion to strike but I think that’s mo
o
t.”
Exhibit 3, Partial Transcript, p. 2, ln. 7-8).
III . STANDARD
19.
Pursuant to the Missouri Supreme Court Rule 51.05
(d) (“Change of Judge –
Procedure”), “…no party shall be preclude
d from later requesting any change of
judge for cause.”
20. The procedure for the change of judge is set forth in the Missouri Supreme Court Rule 51.05 (e):
“T
he judge promptly shall sustain a timely application for change of judge upon its presentation. The disqualified judge shall transfer the case to a judge stipulated to by the parties if the new judge agrees to take the case.
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