1999-83901-as petition for review kansas supreme court denial order

8/7/2019 1999-83901-As Petition for Review Kansas Supreme Court Denial Order

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UPREKE COURT ORDER DISTI • CAS S NO.

I N T H Il SUP R Il K Il COURT

o F T H Il S TAT Il O.F K A N S A S

••••• FLAT-FILIl-COPY *.***

IN THB MATTIlR OF TBIl KARRIAGIl OF

HALLIlCK RICHARDSON, RIlSPONDIlNT,

AND

CLAUDINIl DOMBROWSKI, PIlTITIONllR.

NO. 1999-83901-A8

•

YOU ARB HIlRBBY NOTIFIIlD OF THIl FOLLOWING ACTION TAItIlNBY TBIl COURT,

PIlTITION FOR RIlVIEW BY CLAUDINIl DOMBROWSKI.

CONSIDIlRIlDBY TBIl COURT AND DIlNIIlD.

DATIl, la/al/1999. '

C AR OL G . G RI lI lN

CLIlRIt

C O P I E S t o C O U N S E Lvon lifl o?-

-. . ---. ~- . --------------------------- --- ..------------



No. 99-83,901

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE MATIER OF THE MARRIAGE OF

HALLECK RICHARDSON, Responden t,

AND

CLAUDINE DOMBROWSKI,Petitioner.

ORDER

The petitioner's and respondent's responses to this court's order to show

cause are noted. The petition for writ of habeas corpus is denied. The issues raised

in the petition have been addressed and decided by this court in In the Matter of the

Marriage of Halleck Richardson and Claudine Dombrowski, Case Number 80,304

(unpublished opinion filed October 23, 1998, rev. denied December 22, 1998). The

petitioner's response addresses the merits of the direct appeal in Case Number 99-.

83,905. This order does not preclude the petitioner from raising issues that pertain

specifically to the order of June 28, 1999, in the direct appeal; this court will not,

however, rehear issues it has already decided.

DATED: October 7,1999

l 'o P \t S \0 t O U I S ilu <~10 l~



No. 99-83901

THE SUPREME COURT

THE STATE OF KANSAS

In the Matter of the Marriage of '.

'" Halleck Richardson,

Petitioner-Appellee

and

Claudine Dombrowski,

Respondent-Appellant

APPELLANT'S PETITION FOR REVIEW

Appeal from the District Court of Shawnee County, Kansas

Case No. 960217

Honorabldames P. Buche1e, Honorable Richard Anderson, Judges

Rebecca A King #16772

Riling, Burkhead &Nitcher, Chtd

808 Massachusetts SI.

Lawrence, KS 66044

(785) 841-4700 c

Attorney for Appellant



Table of Contents

Prayer for Review , 1

Statement of the Issue 2

Statement of Faels 3

Arguments and Authorities 3

Issue. The best interests of the minor child, and the constitutional rights of both the child

and her mother. demand that a stay or other relief from the onders of the district court

that are the subject of this appeal be Issued.

Greene y. Greene. 201 Kan. 701, 443 P.2d 1356 (1980) 3. 4

In Re Marriage of Burness. 51 Cal.Rptr2d 444. 913 P.2d 473 1996) 4

D'Onofrio y. p'Onofrio, 365 A.2d 27 (N.J. Sup.Ct.Ch.Div. 1976) : 5

Carlson y, Carison, 8 Kan.App.2d 564, 661 P.2d 833 (1983) 5

LaGrone by Bridoerv, LaGrone, 238 Kan. 630, 713 P.2d 474 (1986) 5

ConClusion......... 5

•



No. 99-83901

IN TIlE SUPREME COURT

OF THE STATE OF KANSAS

In the Matter of the Marriage of

Halleck Richardson,

Petitioner- Appellee

and

Claudine Dombrowski,

Respondent-Appellant

APPELLANT'S PETITION FOR REVIEW

Prayer for Review

Comes Now the Appellant herein, Claudine Dombrowski, by and through her

counsel, Rebecca A. King, Attorney at Law, and respectfully requests that this Court

review and reverse the decision of the Court of Appeals denying the petition for writ of

habeas corpus and motion for stay of proceedings pending this appeal that were filed by,

Appellant in this case.

.Date of Decision

October 7, 1999.

Statement of the Issue,

Issue. The best interests of the minor child, and the constitutional rights of both the

child and her mother, demand that a stay or other relief from the orders of the

district court that are the subject of this appeal be issued.



Statement of Facts

On September 24, 1999, the Court of Appeals, concerned that the issues raised in

appellant's petition for writ of habeas corpus herein were governed by the unpublished

decision of this Court in Case No. 80304 (same caption), ordered the parties to show

cause why Appellant's petition for writ of habeas corpus should not be dismissed.

Appellant's response to the show cause order was filed on September 30, 1999, but, on

October 7, 1999, the Court of Appeals entered an order denying the pelition. However,

contrary to the findings of the Court of Appeals, the issues brought before this Court in

appellant's petition for writ of habeas corpus were not addressed or decided in the earlier

appeal.

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

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

Motion to Change Venue; and Order Amending Prior Decision Regarding Surname. This

appeal, including the petition for writ of habeas corpus filed herein, seeks to challenge

these orders, which had not even been entered when the earlier appeal was decided.

According to the decision in Case No. 80304, appellant argued then that her constitutional

rights were violated by the district court's arbitrary ruling that it was in the best interests of

the child for her to retumto Topeka, Kansas. But the Court of Appeals limited its inquiry

to the question of whether the districi 'court abused its discretion or failed to consider the

best interests of the parties' minor child, and did not address the constitutionality of the

district court's orders. Appellant is entitled to have this Court immediately address her

claim that the restraints imposed upon her by the orders entered by the district court on

June 28, 1999, are unconstitutional.



Arguments and Authorities

Issue, The best interests of the minor child, and the constitutional rights of both the

child and her mother, demand that a stay or other relief from the orders of the

district court that are the subject of this appeal be issued.

In this appeal Appellant challenges the legality and propriety of the June 28, 1999,

orders entered in the district court concerning custody, visitation, and residence of the

parties with their minor child, Rikki Dombrowski. These orders cannot be interpreted by

any reasonable person to be consistent with the best interests of the minor child of the

legal rights of the parties. See Greene v. Greene. 20 I Kan. 70 I, 443 P.2d 1356 (J 980).

Appellant has gainful employment in Lamed, Kansas, as a licensed practical nurse

that is unavailable to her in any other location due to a foot disability that affects her

strength and mobility. Appellant owns a home in Lamed, Kansas. Rikki is in the midst of

receiving specialized medical care for problems with her ears in Lamed, Kansas.

Appellant has been seriously harassed and abused by Appellee, in the past, including being

the victim of an armed assault and battery, that led to the issuance of restraining orders

against Appellee. After Appellant moved from Topeka to Lamed. Kansas, the district

court recognized that the result was a reduction in the physical violence that has

characterized the relationship between the parties. The district court's orders for visitation

visitation require that the Appellee's visits with the minor child occur at and under the•

supervision of the staff of YMCA Safe Visit location, and Appellant has assumed and lived

up to the responsibility, at her own expense, of traveling from Lamed to Topeka to bring,

the minor child to her visitations with Appellee.

Nevertheless, the district court has ordered Appellant and the minor child to move

their residence from Lamed back to Topeka. According to the district court, if Appellant

does not comply with this order, sole residential custody of the minor child will be

awarded to Appellee, a person who is still not allowed to visit the child without

supervision, has failed to make regular child support payments, and has a history of

3



alcohol abuse that necessitated an order from the district prohibiting Appellee from

consuming alcohol within 4 hours of or during the visits. The district court compounded

the dangers posed by Appellee to Appellant and the minor child by issuing an additional

order prohibiting Appellant from calling law enforcement for help or protection from

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

court to handle visitation and other arrangements. The legality of this order was never

addressed at all by this Court in Case No. 80304.

Appellant has established a residence in Topeka, Kansas, and she has informed the

district court case manager of that fact. Appellant has not yet given up her job and home

in Lamed, Kansas, but soon she will have no choice, because her employer will not wait

long, and she cannot afford to maintain two households. Consequently, the denial of

Appellant's request for a stay and/or a writ of habeas corpus renders this appeal moot and

Appellant's right to appeal meaningless because she will have had to either give up her

house, her livelihood and her relatively abuse-free life in Lamed, or custody of Rikki.

Nevertheless, the district court has ordered Appellant and the minor child to move their

residence from Lamed back to Topeka.

Appellant is entitled to the relief she seeks from the illegal restraint on her liberty

that the orders of the district court impose. Most of the case law relevant to the

determination of the best interests of the child in terms of residence deals with custodial

parents who want to move to another state. Greene v. Greene, 201 Kan. 701, 443 P.2d

1356 (1980). Even in those cases most states attach a favorable presumption to the

desires of the custodial parent. In Re Marriage of Burgess, 51 Cal.Rptr.2d 444, 913 P.2d

473 (1996) [custodial parent has presumptive right to move child against wishes of other

parent]. Moreover, the appropriate analysis looks at the real advantage to the family unit

4



F A X N O , 7 8 5 8 4 3 0 1 6 1 p , 0 2 / 0 2

'

that will resull from the move. Q'D.J.IjllljoV p'Ogoll1o, 365 i\.2d 27 (N.J. Sup.etCh.Div.

' ' '11 I'c •.•ons have a wnstitutillinal right to li'ef!lytnIvel and move their residence

from onc slntc 10 anot~, '" 10 a fmugn country, and that right Is unfeltcre<1except for

limilati~,,,,,on an aduh's risittlO take their oIlild wilh m e m , ogaill1t lhe withes oftha othor

parcnL (',rlsoll v (arlH!.\!. 8 Kan.App.2d ~64, 661 P.2d 833 (1983), And Appellant dQe$

nOIseck 10 reside with her child ill another state or couJIIIY,only in another city within the

st.le of KaoSl\l\ In considering the best intcr8llU of the child, decllions about re1ldency,

muSl 00 lell to Ihe Pllf'Cntwho hIlS physical alstoc!y, bOClluatthe less in~ence and

inlerrruplion of a child'. environ,nonl is gencmty. better for the child's weIJ-beitlll. S«

LaGrQne by Uriduc:r y, ~Jlll, 238 Kan. 630, 713 P.2d 474 (1986). Under theae

circumslances. an order to move back to Topeka infiinlles on Appellant', consitutional

rights 10travel. to beslow Ille benefits of a w e envtrotlll1llllton R1k1ci .

conc lus i on

For the foregoing reasons, Appellant prays thaI this Court review and revers. the

deci.;on ufth. C\lun of Appeals and granlthe reli.fahe seeks.

(' O!tI!iCl\teof $mice

1 hercb} ccnily lhal live lrue lind corroc,t copies o f th e IOTellQingPetition fo rR~vkw •.•.ere placed i,l lhe lJnhcd SWlIltlMalls, postage prepaid. addr••• ed to [){In R.

I Joi l inu l l. I ! sq . . Ilollillltli and Hof f inan , 112 W . 71h51.. Garden Suite. Topeka . KS C 1 O O O 3 .('In thi, lllh dll) or

N,wcmlnrr.1999.

1999-83901-as petition for review kansas supreme court denial order

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