Beruflich Dokumente
Kultur Dokumente
97-80304-AS
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IN THE
L
STATE OF KANSAS
,
In the Matter of the Marriage of
n
l HALLECK RICHARDSON,
11· Petitioner/Appellee
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v.
n
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CLAUDINE DOMBROWSKI,
. .-, Respondent/Appellant .
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PETITION FOR REVIEW
GEARY N. GORUP
Attorney at Law
of Counsel
RENDER KAMAS, L. C .
Suite 700, 345 Riverview
P.O. Box 700
Wichi ta, Kansas 67201-0700
(316) ·267-2212
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TABLE OF CONTENTS
A. STANDARD OF REVIEW . . . . . 8
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D. THE HOBSON'S CHOICE OF KEEPING HER CHILD OR
ENDANGERING HER LIFE WAS ARBITRARY, CAPRICIOUS
AND DENIED THE NATURAL MOTHER HER EQUAL RIGHTS
TO THE CHILD. . . . . . . . . . . . .13
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Article 15, Sec. 6, Kansas Constitution . .14
U Sec. 1, Kansas Bill of Rights, Kansas Constitution .14
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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 15
APPENDIX A . . . . . . . . . . . . A-I
APPENDIX B . . . . . . . . . . . . . . . . . . . . . . B-1
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No. 97 803Q4-AS
IN THE
STATE OF KANSAS
HALLECK RICHARDSON,
Petitioner/Appellee
v.
CLAUDINE DOMBROWSKI,
Respondent/Appellant.
Supreme Court Rule No. 8.03 respectfully prays for review of the
the trial court would not abuse judicial notice power contrary
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to s The Appellant~ so requests this Court to set-aside
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its order requiring the natural mother to submit to an unreasonable
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that the domestic ence was "Not that bad" (VII R. 51). He
first struck her, months pregnant, when she found out he was
still married (IX R. 89). After Rikki's birth Ms. Dombrows was
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(VII R. 66). Mr. Richardson below admitted that Ms. Dombrowski
~, moved out 'of his home with their child because he told her to "get
her shit and get out" (VII R. 52). When Rikki stained the white
was the reason she Ie (VII R. 45). He admitted slapping her, but
denied ever punching her; he admitted twisting her leg, but claimed
shown in photos of Ms. Dombrowski's neck and face came from one of
his fights with her (IX R. 174). Mr. Richardson once aimed and
cocked a shotgun at Ms. Dombrowski and Rikki, but was stopped from
going any further by his son (IX R. 89-90). In February of 1996 Ms.
Topeka and left with a suitcase,her car and Rikki (IX R. 93).
from the waist up outside the driver's window; he claimed her head
struck a l~x 2" piece of cedar he had in his hand (IX R. 175-80).
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not feel that the child was-at ~e~~oriai
county Court Services Of cer, agreed that her ggest concern was
the domestic violence between them (VII R. 9). The district court
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\\ The move from Topeka to Larned, due to the
violence}. . .
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(V R. 4 27). The Statement of the Facts in the Brief of Appellant
Tope ;' and directed the guardian ad li tem to address her directly
on his reasons (V R. 2,4, 7). The judge told her that exercising
prevail H (V R. 10-11). The judge then suggested that she take this
One and one-half hours a the Appellant was told she would lose
custody if the case went to trial, only Mr. Richardson and his
witness could not be called to testify (IX R. 36, 134-35, 147, 180
81). The trial court also took judi al notice of evidence without
.vIo when the parties reside the same community, bhe court;
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ordered her to relocate with the child in Shawnee County, Kansas;
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The Kansas Court of Appeals discussed the history and
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Respondent to chose between her child and her life.
terms khan the best interests of the child. ~hese orders not only
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violated the constitutional rights of the natural mother, but
McNeely, 15 Kan.App.2d 762, 764, 815 P.2d 1125, rev. denied 249
8
Kan . 77 6 ( 1 991) . Judicial discretion is abused when judicial
person would take the view adopted by the trial court. Slayton v.
Slayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). Discretion must
State v. R.ichard, 252 Kan. 872, 882, 850 P.2d 844 (1993).
first time on appeal, ordinarily 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 court may consider an issue
State v. Puckett, 230 Kan. 596, Syl. Tt 1, 640 P.2d 1198 (1982).
policy to give this sort of charge and routinely delay the start of
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The United states Supreme Court has recogniz the fundamental
Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.ct. 1208 (1972). That
Court has said: "We have litt doubt the Due Process Clause
children, without some showing of unfitness and for the sole reason
earing denied 435 U.S. 918 (1978). The Kansas Supreme Court has
conceive of what else the district court could have done to force
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was found by either of appel counsel for the parties and was
to argue about it. Nor did the trial court open an opportunity r
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The trial court was well aware of the claims and counter
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challenge s hearsay, or even to address the judicial notice of
children. v. Parish, 220 Kan. 131, 132, 551 P.2d 792 (1976);
did not have a 1 and fair hearing before a neutral and detached
Cons tution.
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I parties, gave Mrs. Dombrowski the Hobson's choice of her child or
territorial power and control by the district court under the guise
of the "best interests of the child" denied her equal rights the
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move to Larned, but the undisputed history of domestic violence
I that will inevitably end in the serious physical injury or death of
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.', Ms. Dombrowski if she is required to return to the Shawnee County', '.
and capri ous ruling that it was in the best interests of the
child for her to return to the community where she had suffered
14
CONCLUSION
also requests that this Court reverse any order which would base
the best interests of the child upon the endangering of the natural
Respectfully Submitted,
( ...;; ~
G~. ~.
GEARY N.
Attorney \ Law
of Counsel
RENDER KAMAS, L.C.
Suite 700, 345 Riverview
P.O. Box 700
Wichita, Kansas 67201-0700
(316) 267-2212
15
APPIhNDITX A-TI
No. 80,304
HALLECK RICHARDSON,
Appellee,
and
CLAUDINE DOMBROWSKI,
Appellant.
MEMORANDUM OPINION
APPlhNDliX A-2
Dombrowski argues that her constitutional rights were violated by the district
court's ruling and by the court's policy to compel settlement of domestic issues
before trial. She further contends the district court erred in limiting the number of
witnesses each side could present at trial.
Dombrowski and Halleck Richardson were married in 1995, and a petition for
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divorce was filed 4 months later. At the time of their marriage, their child, RD.,
was 11 months old.
Custody and visitation issues were fiercely litigated. At- ,some ·~point
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. IJombrowski sought and received the district court's- approval to move from
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Topeka, Kansas, to Great Bend, Kansas. ~ombrowski alleged that the move was
, necessary to avoid further abuse from Richardson and to obtain employm-erif. She
also noted that while there was no statutory duty to obtain leave of the district court
to move from one county in Kansas to another, she sought permission to avoid any
concerns over the residential custody of RD.
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Dombrowski appeals.
Dombrowski argues that her constitutional rights were violated by the court's
arbitrary ruling that it was in the best interests of the child for her to return to
Topeka, Kansas. She further claims that the unique circumstances of this case
denied her a full and fair opportunity to defend and to present evidence on her
behalf.
Dombrowski did not fil~ a motion for reconsideration or any other type of
post-judgment relief with the district court.
custody and visitation. In re Marriage of McNeely, 15 Kan. App. 2d 762, 764, 815 P.2d
1125, rev. denied 249 Kan. 776 (1991); see In re Marriage of Bradley, 258 Kan. 39, 45,
899 P.2d 471 (1995). Discretion is' abused .when no -reasonable 'person would agree
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with the trial court's actions. Fusaro v. First Family Mtg. Corp., 257 Kan. 794,804,
897 P.2d 123 (1995).
f.
IIIIn determining the right of custody of children between parents, the
pr~mary consideration is the best interest and welfare of the children, and all other
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is.~ues are subordinate thereto.'" In re Guardianship of Williams, 254 Kan. 814, 819,
869 P.2d 661 (1994) (quoting Parish v. Parish, 220 Kan. 131, 132,551 P.2d 792 [1976]).
APPENDllX A-4
liThe trial court is in the best position to make the inquiry and determination, and
in the absence of abuse of sound judicial discretion, its judgment will not be
disturbed on appeaL" Moran v. Moran, 196 Kan. 380, 386, 411 P.2d 677 (1966).
Here, the district court found the distance between the parents made.. it
virtually impossible for an individual therapist or counselor to work with the J
family, for Richardson to have regular and frequent contact with. the child, and for
the parents to resolve their conflict!'. The court noted that if the long distance
,/ visitation continued, it would take a toll on both the parents and the child. The
. court concluded 'that Dombrowski should relocate to Topeka with R.D. because it
was in the child's best interests for her to reside in a location where both parents
. would have access to her .
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The court further rejected Dombrowski's assertion that her move to Western
Kansas was prompted by the closure of the Topeka State Hospital. The court
emphasized that no evidence was presented regarding her effort to find
employment in the Topeka vicinity and took judicial notice of the Topeka
newspaper which advertised six to ten nursing positions in the area each weekend.
The court concluded that Dombrowski's residence in Western Kansas was not
necessary for her employment.
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guardian ad litem and the court services officer provides substantial competent
evidence to support the court's decision. Consequently the mere fact that
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APPJhNDliX A-5
Dombrowski must decide whether to move or forfeit some of her rights to custody
does not establish an abuse of discretion.
, . Dombrowski next argues the district court violated her constitutional rights
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by pressuring her into settlement negotiations the day of triaL
The trial judge held a conference on the day the case was scheduled for trial. '"
An apparent settlement of the issues involving the child was later announced to the
court. The alleged agreement ~asically provided' for jOint tustody'and ·required
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." \. Dombrowski to move back to Topeka by a certam 'date or''1ose' resideilticir custody of
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thechild."T Once she moved to Topeka, each parent would share residential custody
of t he child on a week-by-week basis. If she failed to move by the certain time,
, Richardson would assume full-time residential custody of the child, subject to
reasonable visitation. In the interim, residential custody would alternate weekly
between the parents. The district court subsequently approved the settlement)1
subject to the preparation of a journal entry. The next day, Dombrowski denied ever ,//
agreeing to a settlement, and the oral agreement was never memorialized into ;,a?
written journal entry.
The other issue raised by Dombrowski, the denial of a full hearing, would. be
more troublesome and perhaps the basis for reversal had not the trial judge stated,
late in the hearing: "[E]ven though I limited you initially, I want the record clear,
and I hope you all agree, I gave you the opportunity to argue with me to open it up
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AlPJPJhNDITX A-6
so you can submit further evidence." Both counsel agreed that the court allowed
them an opportunity.
In State v. Anderson, 243 Kan. 677, 678, 763 P.2d 597 (1988), our Supreme
Court recognized that "'[a] trial judge has the power within proper limits, to impose
limitations upon the number of witnesses, and to control their examination. "'
At the time of trial, the parties' attorneys apparently indicated that as many as
50 subpoenas would be filed. However, the newly assigned trial court judge decided
to limit the presentation of evidence and informed the parties that he would only
allow each party to present five witnesses at the divorce trial.
While we agree with the power of the trial court to set limits, as recognized in
Anderson, we are also mindful of the language of Justice Lockett, writing in State ex
rei. Stephan v. O'Keefe, 235 Kan. 1022, 1027, 686 P.2d 171 (1984), in which he stated:
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APPJbNDITX A-7
the citizen to have justice administered according to the law without
denial or delay. A litigant is assured the right to prosecute or defend an
action, provided he prosecutes or defends the action as contemplated by
law. Since a prisoner can sue or be sued in this state he must be
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afforded the right to his day in court.
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"The right to a day in court means the right to be afforded an
opportunity to be heard."
The record reveals the court file was replete with information that was both
-- favorable and unfavorable to each of the parties. Moreover, the trial court allowed
Dombrowski's attorney to call an additional witness and gave her several
opportunities to present additional evidence at trial.
Based on the record before us, we find no abuse of discretion in the limits the
trial judge set here.
Affirmed.
lIjffll&'jQ01~tAL DIST
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OCT Z9 9 37 an 'Sf
GE'NERAL dVn;SD!CTJDH
TOPEKA. KANSAS
IN THE DISTRlCT COURT OF SHAWNEE COUNTY, KANSAS
DIVISION TWELVE
HALLECK RICHARDSON
and
This matter was tried to the Court on September 18 and 19, 1997 and taken under
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advisement. The Court deems that the case is now fully submitted and after considering the
testimony and evidence presented at trial as well as the reports from social services providers
specifically Dr. Joel Nance, Dr. Richard Maxfield, guardian ad litem Scott McKenzie, the letter
of Jenny Shaw, the home visitation report of Shana O'Neil, court services officer, transcripts of
hearings before Judge Leuenberger, the Court has reached the following findings and conclusions.
1. This couple was married on the 22nd ofNovember, 1995 and separated on
February 5, 1996. This divorce case was filed on March 4, 1996. The parties are the parents of
2. The Court finds that the parties are incompatible and that a divorce should be
granted.
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APPENDliX B-2
currently in their possession and all personal property owned by them at the time of the marriage.
Mr. Richardson is involved in a Chapter 7 bankruptcy and makes a monthly payment of $314 per
month on his debts. Ms. Dombrowski is involved also in a bankruptcy case and make a $75 per
month payment. The Court would order that each party should conclude their bankruptcy
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obligations and pay all debts they have incurred since the date of separation. Respondent is
There are several items ofpersonal property which are in dispute. Neither party has
established by a preponderance ofthe evidence what would constitute the value of this property
how or when it was acquired. It has been established, however, that Ms. Dombrowski left the
In November or December 1994, Mr. Richardson purchased a home. At that time the
parties were living together but were not married. Mr. Richardson testified he has executed a
contract of sale ofthis property for $78,950. There is a mortgage balance of between $49,000
and $50,000. In addition to the mortgage, there is an IRS lien against the property which Mr.
Richardson testified was approximately $4,800. After deducting these items and the $10,000
down payment which Mr. Richardson made with funds he acquired prior to cohabitation or
marriage, the Court concludes that there is,,an equity in this property of approximately $9,000.
The Court would order that Mr. Richardson pay to Ms. Dombrowski the sum of $4,500 upon the
closing of the sale ofthis property. In the event that the sale does not close, the Court will
impose a judicial lien in favor Claudine Dombrowski of $4,500 on the parties' real estate to carry
interest at 7.5% per annum from November 1, 1997. Based upon the weight of the evidence in
this case, it is the Court's conclusion that the $4,500 cash payment from the, sale of the residence
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is an equitable apportionment of property to Ms. Dombrowski for all claims she may have for her
interest in marital property. In the event of closing this sale before January 1, 1998, Mr.
Richardson is to pay to :MS. Dombrowski at closing or after Ms. Dombrowski has relocated to
4. MAINTENANCE The Court finds that maintenance should not be awarded in this
case.
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5. ,CUSTODY. . Each PartY requests the Court to award them custody of the minor
child. Temporary custody and visitation ofthe minor child has been fiercely litigated in this case
and has been the subject of several hearings before Judge Leuenberger.
At the trial of this case, considerabletime 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 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 ofdomestic battery andi at .le~ one alfPhol related offense.
Further, in the context of a custody decision, it is clear that neither parent at this time has the
capacity to co-:parent or to support the other parent's loving relationship with their daughter.
unilateral decision to m()ve to Larn~d, Kansas in. May of 1996. The distance between Topeka and
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APPlliNDlX IB-4
Larned makes it virtually impossible for an individual treater to work with the family; for Mr.
r Richardson to have regular and frequent contact with this child; to eStablisflartY reason~ble
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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. It'has; ~owever,· do~e
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 ofthe parties. The Court specifically
finds that separation ofthe child from either parent for long peFiods of t~me is harmful for
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place custody in one or the other the parents and continue a long distance visitation arrangement.
establish and a structured custody and visitation program so that Rikki may enjoy frequent and /
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regular contact with both parents.
Ms. Dombrowski requests the Court to give her residential custody}n Pawnee Rock,
Kansas and visitation be ordered to take place in Wichita under supervised conditions, This plan
would curtail Mr. Richardson's access to Rikki even more than it currently is, Further, the Court
finds that there is no evidence which would support a court order for supervised visitation. While
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it is obvious that supervision is neede-d'when-theparties 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. Mr, Richardson has been previously married. To that
marriage were born three children. From the evidence available to the Court, there is no basis to
support that Mr. Richardson has mistreated any ofms children in any way.
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The CSO, Sherri Keller, has had more contact with this couple and observed their
interactions more than any of the mental health professionals that have offered opinions. In the
Court's view, her recomrhendation to place custody in Mr. Richardson carri;S great weight. Also
weighing heavily in this case is the fact thafMs. Dombrowski has been the pririiaty caretaker· of
the child. The Court is always hesitant to change custody from a primary caretaker.
It is my conclusion that the best interest of the Rikki is-for her to reside-in a"]o"Catiom
where both parents have access to h~r~ Further/the Court is ordering joint custody in this case as
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I am concerned that sole custody in either parent will result in manipUlation and abuse oftheir
position as sole custodian' to harm the relationship ofRikki and the other parent.' The Court
A The Court awards joint custody ofthe parties' minor child with temporary
residential placement with the mother. Ms. Dombrowski is ordered to relocate with the child in
Shawnee County, Kansas, on or before January 1, 1998. Inthe event Ms. Dombrowski and th~
child are not residing in Shawnee County on January 1, 199~, sole custody shall be ordered in Mr':
,Richardson. "
B. Shawnee County Court Services is appointed case manager to assist the parties in
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developing a plan for residential custody and visitation pursuant to K.S.A 23-1001 et seq. after ,
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January 1, 1998. The Court is reserving the question of shared custody or appointing a residential
,.parent for after January 1, 1998, at this tinie/In the event that the parties are unable to agree on
residential custody and visitation after relocation to Topeka, the Court will make a detennination
shortly after January 1, 1998 or upon motion of either patty if impasse is reached 'prior to that
tim~.'· The parties are prospectively advised that its custody decision will be influenced by
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evidence on the willingness and ability of each parent to respect and appreciate the bond between
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the child and the other parent. Each parent should endeavor during the next 60 days to
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demonstrate a capacity to allow and foster a continuing relationship between the child and the
other parent.
c. As soon after the first of the year as it can be arranged, the couple shall consult
with Dr. Richard Maxfield for the purpose of re-evaluating the parties' circumstances and to I
make recommendations regarding therapy for the parties and for a post-divorce co-parenting
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process.
\"' D. All exchanges ofRikki shall occur at the YMCA Safe Visit location under their
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supervision.
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E. The Court orders that neither party shall remove Rikki from Pawnee County or
Shawnee County except for direct transportation between Topeka and Pawnee Rock.
Specifically, this order means neither party shall take this child overnight to any location other
than their home without prior approval of the case manager. Disregard of this order will likely
F. The Court orders the parties to work out petitioner's visitation in case
management through December, 1997 wherein the petitioner will have Rikki approximately one
week per month. All other orders and admonitions included in the May 28, 1997 order of Judge
Leuenberger not in conflict with this order shall remain in full force and effect.
G. ,Mr. Richardson shall not consume alcoholic beverages while Rikki is in his custody
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telephone call to respondent every 48 hours at Sp.m. Respondent is enjoined from calling
PC!itioner's home except in case ofa bona fide emergency. Further, respondent is directed to not
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 Lamed
was necessitated due to the closure oiTopeka 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 LPNs in
Topeka or surrounding counties including the Topeka Correctional Facility. The Court concludes
that Ms. Dombrowski's residence in Lamed is not necessary for her employment.
7. When Rikki was born the parties had not yet married. At that time the child was
named Rikki Alexandra Dombrowski. Petitioner, Mr. Richardson., requests that the Court order
that the child's name be changed to Richardson. The Kansas Court of Appeals recently ruled In
Re: Marriage ojKillman, 23 Kan. App. 2d 975 that a trial court in a domestic relations action has
jurisdiction and the statutory authority to change the name of a child ofthe marriage which is
being dissolved.
The Court finds that it is in Rikki's best interest that her surname include the name of
Richardson. The Court'has made the decision that Rikki should have the benefit ofrwo involv~d
parenfs. The ~ggle between Rikki's parents is significant and the animosity caused by her
surname can be easily eliminated. Since Rikki will be parented by both parents, there will be less
confusion if her father's's surname is included. The Court notes that Ms. Dombrowski did not
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APP~NDKX lB-3
\ change her name at the time of marriage and therefore will permit her to elect whether or not
order, the Court is furnishing forms for counsel to complete to effectuate the name change. The
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parties are directed to complete these forms and schedule and appointment with this Court to
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" f execute same within 30 days from the date ofthis order.
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8. The respondent's request for past maintenance is denied as the Court is without
jurisdiction to grant same. See In Re~Marriage ofBrown, 247 Kan. 152, 164 and K.S.A 60
r-.,
161O(b)(2). Respondent's request for retroactive reimbursement of mileage reimbursement and
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medical expenses is also denied. Judge Leuenberger's order establishing child support and
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structured visitation cannot be retroactively modified to increase Mr. Richardson's liability. See
In Re: Marriage ofBlagg, 13 Kan App 2d 530. Insofar as future travel expenses are concerned,
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the Court finds that this cost should be borne by Ms. Dombrowski. It was she who removed-
herselfto Larned, Kansas. This unilateral decision should not impose a greater expense on Mr.
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Richardson. Finally, the Court denies respondent's motion for retroactive child support. The
statute cited by counsel K.S.A 38-1121(e) is applicable to paternity cases. The Court does enter
judgment for all unpaid temporary child support ordered in this case.
9. For the months ofNovember and December, 1997, the Court orders child support
in the amount of $31 0 per month to be paid by the petitioner to the respondent in accordance with
the attached worksheet. The respondent shall provide health insurance and any uninsured health
care costs will pe divided equally. The Court will recalculate child support in connection with its
custody order or upon motion of either party if there is a change in circumst~es: !tespondent
shall claim Rikki as her dependent for income tax purposes in odd numbered years and petitioner
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AJPJPENDITX B-9
bills of petitioner's children from his first marriage that were "charged" to Ms. Dombrowski. The
Court is uncertain whether or not these expenses were paid by Ms. Dombrowski's insurance or
her personally. Assuming these expenses were paid by in~urance, the request that she be
personally reimbursed for them is denied. In the event that Ms. Dombrowski is claiming that she
personally has paid medical bills for Mr. Richardson's children, the Court would direct that these
bills and her evidence of payment be itemized so that the Court may make a detennination on
11. The restraining order previously entered in this case is extended for a period of one
year.
12. Each party shall pay their own attorneys fees. Court costs are assessed against the
petitioner.
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IT IS SO ORDERED.
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ENTERED thiJ~ day of October, 1997, at Topeka, Kansas.
Copies to:
Don Hoffinan
AinkaKweli
Harry Moore
Shem Keller .
Scott McKenzie ~TAiE OF KANSAS, COUNTY OF SHAWNEE. ss.
i h;:raby cemty the above !II1d tcregotng to be
i:! !~ue and COtTet.T copy, lfIe ongmal 01 wnich
:s jilud and s eX record in court
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APPlliNDXX C-li
CERTIFICATE OF SERVICE
Review were deposited in the Uni ted States Mail, first class
at Law, 112 West 7th Street, Garden Suite, Topeka, Kansas 66603 on
Q,D"~(j~ ,C~,,-~
GEARY N. ORUP
ATTORNEY AND COUNSELOR AT LAW
C-1