1999_11-8- supreme court of kansas, appellant petition for review (rebecca king)

8/8/2019 1999_11-8- Supreme Court of Kansas, Appellant Petition for Review (Rebecca King)

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No. 99-83901

IN THE SUPREME COURTOF THE STATE OF KANSAS

\ In the Matter of the Marriage ofHalleck Richardson,Petitioner-Appellee

andClaudine Dombrowski,Respondent -Appellant

APPELLANT'S PETITION FOR REVIEW

Appeal from the District Court of Shawnee County, Kansas Case No. 96D217 Honorable James P. Buchele, Honorable Richard Anderson, Judges

Rebecca A. King #16772 Riling, Burkhead & Nitcher, Chtd. 808 Massachusetts S1. . Lawrence, KS 66044 (785) 841-4700Attorney for Appellant


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Table of Contents Prayer for Review ..............................................................................................................1

Statementofthe Issue........................................................................................................2

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

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

In Re Marriage of Burgess, 51 Cal.Rptr.2d444,913 P.2d 473 1996) .....................................4

D'Onofrio v. D'OnofriO, 365 A,2d 27 (N.J. Sup.CtCh.Div. 1976) ............................................5

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

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

Conclusion........................................................................................................................." 5
http:///reader/full/Cal.Rptr.2dhttp:///reader/full/Kan.App.2dhttp:///reader/full/Cal.Rptr.2dhttp:///reader/full/Kan.App.2d


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No. 99-83901

IN THE 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 Courtreview and reverse the decision of the Court of Appeals denying the petition for writ ofhabeas corpus and motion for stay of proceedings pending this appeal that were filed byAppellant in this case.

Date ofDecisionOctober 7, 1999.

Statement of the Issue

Issue. The best interests of the minor child, and the constitutional rights of both thechild and her mother, demand that a stay or other relief from the orders of thedistrict court that are the subject of this appeal be issued.


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Statement ofFactsOn September 24, ] 999, the Court of Appeals, concerned that the issues raised in

appellant's petition for writ of habeas corpus herein were governed by the unpublisheddecision of this Court in Case No. 80304 (same caption), ordered the parties to showcause 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, onOctober 7, 1999, the Court of Appeals entered an order denying the petition. 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 earlierappeal.

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 onMotion to Change Venue; and Order Amending Prior Decision Regarding Surname. Thisappeal, including the petition for writ of habeas corpus filed herein, seeks to challengethese 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 constitutionalrights were violated by the district court's arbitrary ruling that it was in the best interests ofthe child for her to return to Topeka, Kansas. But the Court ofAppeals limited its inquiryto the question ofwhether the district court abused its discretion or failed to consider thebest interests of the parties' minor child, and did not address the constitutionality of thedistrict court's orders. Appellant is entitled to have this Court immediately address herclaim that the restraints imposed upon her by the orders entered by the district court onJune 28, 1999, are unconstitutional.

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Arguments and AuthoritiesIssue. The best interests of the minor child, and the constitutional rights of both thechild and her mother, demand that a stay or other relief from the orders of thedistrict 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 theparties with their minor child, Rikki Dombrowski. These orders cannot be interpreted byany reasonable person to be consistent with the best interests of the minor child of thelegal rights of the parties. See Greene v. Greene, 201 Kan. 701, 443 P.2d 1356 (1980).

Appellant has gainful employment in Larned, Kansas, as a licensed practical nursethat is unavailable to her in any other location due to a foot disability that affects herstrength and mobility. Appellant owns a home in Lamed, Kansas. Rikki is in the midst ofreceiving specialized medical care for problems with her ears in Larned, Kansas.Appellant has been seriously harassed and abused by Appellee, in the past, including beingthe victim of an armed assault and battery, that led to the issuance of restraining ordersagainst Appellee. After Appellant moved from Topeka to Lamed, Kansas, the districtcourt recognized that the result was a reduction in the physical violence that hascharacterized the relationship between the parties. The district court's orders for visitationvisitation require that the Appellee's visits with the minor child occur at and under thesupervisi on of the staffofYMCA Safe Visit location, and Appellant has assumed and livedup to the responsibility, at her own expense, of traveling from Lamed to Topeka to bringthe minor child to her visitations with Appellee.

Nevertheless, the district court has ordered Appellant and the minor child to movetheir residence from Larned back to Topek.a. According to the district court, if Appellantdoes not comply with this order, sole residential custody of the minor child will beawarded to Appellee, a person who is still not allowed to visit the child withoutsupervision, has failed to make regular child support payments, and has a history of

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alcohol abuse that necessitated an order from the district prohibiting Appellee fromconsuming alcohol within 4 hours of or during the visits. The district court compoundedthe dangers posed by Appellee to Appellant and the minor child by issuing an additionalorder prohibiting Appellant from calling law enforcement for help or protection fromAppellee without first consulting the case manager who was appointed by the districtcourt to handle visitation and other arrangements. The legality of this order was neveraddressed at all by this Court in Case No. 80304.

Appellant has established a residence in Topeka, Kansas, and she has informed thedistrict court case manager of that fact. Appellant has not yet given up her job and homein Larned, Kansas, but soon she will have no choice, because her employer will not waitlong, and she cannot afford to maintain two households. Consequently, the denial ofAppellant's request for a stay and/or a writ of habeas corpus renders this appeal moot andAppellant's right to appeal meaningless because she will have had to either give up herhouse, her livelihood and her relatively abuse-free life in Larned, or custody of Rikki.Nevertheless, the district court has ordered Appellant and the minor child to move theirresidence from Larned back to Topeka.

Appellant is entitled to the relief she seeks from the illegal restraint on her libertythat the orders of the district court impose. Most of the case law relevant to thedetermination of the best interests of the child in terms of residence deals with custodialparents who want to move to another state. Greene v. Greene, 201 Kan. 701, 443 P.2d1356 (1980). Even in those cases most states attach a favorable presumption to thedesires of the custodial parent. In Re Marriage ofBurgess, 51 CaLRptr.2d 444, 913 P.2d473 (1996) [custodial parent has presumptive right to move child against wishes of otherparent]. Moreover, the appropriate analysis looks at the real advantage to the family unit

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that will r


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CLAUDINE DOMBROWSKI, Petitioner. ., ---:-.-,Q R D E ~

The petitionerJ's and respondent's responses to this court's order to showcause are noted. The petition for writ of habeas corpus is denied. The issues raisedin the petition have been addressed and decided by this court in In the Matter of theMarriage of Halleck Richardson and Claudine Dombrou'ski, Case Number 80,304(unpublished opinion filed October 23, 1998, ref.'. denied December 22, 1998). Thepetitioner'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 pertainspecifically to the order of June 28, 1999, in the direct appeal; this court will not,however, r e h ~ a r issues it has already decided.

DATED: October 7, 1999

'{?IE C ~ . : ? TT. .

OVID S. K N U D S b N ~ Judge

1999_11-8- supreme court of kansas, appellant petition for review (rebecca king)

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