IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT, DIVISION ONE
| JAMES A. G. OVERTON, Respondent and Appellant vs. SHAWN DOLANSKY, Plaintiff and Defendant | Court of Appeal No. D0 53050 and D0 53821 (Consolidated Appeal) (Super. |
Appeal from Judgments/Orders
Of the Superior Court,
Hon. Joel R. Wohlfeil, Judge
| APPELLANT’S RESPONSIVE BRIEF |
James A. G. Overton
511 E. San Ysidro Blvd #5046
(858) 568 2430
Appellant
Self-Represented
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ii
STATEMENT OF THE CASE 1
STATEMENT OF ISSUES 2
STANDARD OF REVIEW 6
ARGUMENT: 6
n Evidence of “Bad Faith”/Justification for Imputation of Income arising from the Respondent’s use of Legal Expenditures ………………………………………………………….6
n Further evidence of the Court’s Bias and Discrimination against me…………………….7
n A long list of judicial improprieties, prejudice, racism, collusion with crimes of moral turpitude, and discretional bias……………………………………………………………………….8
n Judicial racism………………………………………………………………………………………………12
n Judicial encouragement of crimes of moral turpitude………………………………………..20
n Wrongful designation as Vexatious Litigant………………………………………………………32
n Arguments re Intentional Infliction of Emotional Distress…………………………………..33
n Summary………………………………………………………………………………………………………37
CONCLUSION 38
CERTIFICATE OF COMPLIANCE 41
TABLE OF AUTHORITIES
PAGE
CASES
Ordini v. Ordini, 701 So. 2d 663 (Fla. 4th DCA 1997) ……………………………….……………..8
Meighen v. Meighen, 813 So. 2d 173 (
Cooper v. Kahn, 696 So. 2d 1186 (Fla. 3d DCA 1997) ……………..……………………………...8
Thalgott v. Thalgott, 571 So. 2d 1368 (Fla. 1st DCA 1990) ……………………………………...8
In re Marriage of Rogers, 213
In re Marriage of
Petrini v. Petrini,
Matter of Martinez-Recinos,
23
Ernst and Ernst v. Hochfelder,
425
State Rubbish etc. Assn. v. Siliznoff
(1952) 38 Cal.2d 330, 336-337……………………………………………………………………………. 34
Alcorn v. Anbro Engineering, Inc
(1970) 2 Cal.3d 493, 497-498 ………………………………………………………………………………35
STATUTES
Section 101(a)(48)(S) of the Immigration and Nationality Act …………………………………24
18 U.S.C. section 1621 (1994)………………………………………………………………………………25
California Penal Code Section 470, subsections a), b), c), and d) …………………………….28
California Penal Code Section 132.………………………………………………………………………..29
California Penal Code Section 134 ………………………………………………………………………..29
I
STATEMENT OF THE CASE
This is a consolidated case from Appeals D053050 and D053821. A Notice of Appeal for D053050 was originally presented on April 24
There were two other Findings and Orders issued from the same Hearing of May 2, 2008, both of which were filed on June 4, 2008, prior to the final July 14, 2008 orders. As the Court of Appeals issued its communication of July 16, 2008 indicating that D053050 was already extended to encompass the “final judgment” of the Case issued on July 14, 2008, it was my unqualified and explicit understanding that it applied to ALL appealable orders prior to the final orders of July 14, 2008, including and in particular stemming from the same final hearing of May 2, 2008. This appeal would also and therefore apply to the two sets of Findings and Orders of June 4, 2008 originating from the same May 2, 2008 hearing. I believed it unnecessary, redundant, and inappropriate to, after the Court of Appeal’s communication of July 16, 2008, then file yet another appeal to address the two sets of Orders filed on June 4, 2008, which pertain to the same Hearing of May 2, 2008 as the final orders of July 14, 2008. Appeal D053050 would therefore apply to all appealable orders of the Court filed between February 6, 2008 and July 14, 2008, including and not limited to the two sets of Orders filed on June 4, 2008.
The D053821 is an Appeal of Findings and Order filed on August 4, 2008 which pertains to a Hearing held on July 28, 2008.
II
STATEMENT OF ISSUES
In a letter to Attorney General Edmund Randolph concerning the selection and qualification of
“Impressed with a conviction that the due administration of justice is the firmest pillar of good Government, I have considered the first arrangement of the Judicial department as essential to the happiness of our Country, and to the stability of its political system; hence the selection of the fittest characters to expound the law, and dispense justice, has been an invariable object of my anxious concern.”
My opponent states that I offer no “authority in support” of my appeals before the Appellate Court. Disregarding his attempt to cloud the issues in the muddy and murky waters of deception and distraction, tactics which have served him and his predecessors so well throughout this case before the San Diego Family Court, it is precisely the lack of “due administration of justice” together with the Government’s evident failure in “the selection of the fittest characters to expound the law, and dispense justice” that are primary, key, and fundamental issues In the Marriage of Overton.
My opponent has stated that I have not clearly stated my requests before the present Court. There are many, inextricably bound and gravely important issues for the Court of Appeals to make landmark Rulings In the Marriage of Overton, including issues critical to our nation with its plurality of cultures, races and ethnicities, physical and mental disabilities, single parent homes, and socio-economic statuses – all with presumably equal rights under the law:
1. A Finding of Discrimination, as evidenced in the manner in which the San Diego Family Court has systematically denied my rights as an individual, a citizen, a father with joint custody over two children, and as a human being.
2. A Finding of Racial discrimination, demonstrated in the manner in which the Family Court has methodically refused to value, protect, and defend the children’s rights to their multiethnic identity and Spanish language heritage.
3. A Finding of Judicial prejudice as evidenced by the Court’s refusal to impute the Respondent’s income in spite of the extensive history and evidence of ongoing, reliable, and recurrent financial support from her parents.
4. A Finding of Abuse of discretion – if not corruption – evidenced in the manner in which judges whimsically ordered alteration of records (removing references to “perjury”) and even privately altered Final Orders (removal of “Item
5. A Ruling that cancer – or any physically or mentally incapacitating disease – constitutes a valid change of circumstances for the purposes of reducing (illicitly) imputed income and child support, or fairly reallocating responsibilities for child visitation costs.
6. A Ruling that loss of multiethnic identity constitutes a valid change of circumstances for change of custody and which would require in the present Case primary custody to be awarded to me.
7. A Ruling that loss of children’s Spanish language heritage constitutes a valid change of circumstances for change of custody and which would require in the present Case primary custody to be awarded to me.
8. A Ruling that the failure to provide psychological treatment to a minor constitutes a valid change of circumstances for change of custody and which would require in the present Case primary custody to be awarded to me.
9. A Ruling to impute income to mother commensurate to her expenses and extensive evidence of parental financial support.
10. A Ruling that a Court – even a Family Court - must take action against, or at deny benefit from, including retroactively, material acts of deceit, perjury, fraud, forgery or other manners of moral turpitude committed by the Respondent, including recovery of lost visitation time with children, vacating of resulting accumulated arrearages, and potentially “contempt of Court” sanction.
11. A Ruling to Vacate the Court on May 31, 2006 custody and visitation order due to Duress or Coercion which would require the children to return to their
12. A Ruling that the mother’s derisive and dismissive attitude towards the children’s multi-ethnic identity and bilingual heritage and her refusal to allocate resources at her disposal for the development of the same, constitute a failure to act according to the Best Interest of the children which would require in the present Case primary custody to be awarded to me.
13. A Ruling of a lack of Due Process on October 13, 2006 when the Court denied my motions immediately after granting me a Continuance for the same.
14. A Ruling that in a Move Away case, presumably motivated by increase in financial opportunity, does not justify an increase in prior child support responsibilities stemming from the decrease in visitation it has caused. In other words, should the mother’s choice to move away and take the children, thus reducing my visitation time with them, suddenly entitled her to an increase in child support to the extent that it would warrant an imputation of my income beyond what I was earning prior to the Move Away in the first place?
15. A Ruling that the Family Court’s handling of the Petition for Disqualification was not legally processed which would leave all subsequent orders – including those stemming from the May 2, 2008 Hearing (June 4 and July 14, 2008 Findings and Orders) – invalid, null, and automatically void.
16. A Ruling that the Respondent is guilty of Intentional Infliction of Emotional Distress and subject to monetary sanctions accordingly.
17. A Ruling that the Trial Court abused its discretion in denying me legal representation paid by the Respondent under Family Code 2030.
18. A Ruling that Trial Court abused its discretion in making me responsible for 100% of the communal debt.
19. A Ruling that the imputation of income of December 18, 2006 was based on false testimony and must be vacated, together with all ensuing child support arrearages.
20. A Ruling that the imputation of income of October 13, 2006 was illegally based on my student loan income and must be vacated, together with all ensuing child support arrearages.
21. A Ruling that the Family Court abused its discretion in ordering me to pay for ½ of the Respondent’s visitation costs in lieu of (illicitly obtained) child support arrearages.
22. A Ruling that the Family Court should have required the Respondent, as the individual initiating the Move Away and demonstrating far superior financial resources, to be responsible for all visitation costs and expenses.
23. A Ruling that Family Court is not exempt from, and has a responsibility towards, employing its powers of Contempt against perjury, forgery, fraud, or other acts of deception and manipulation.
24. A Ruling that in a Move Away case, prior evidence of moral turpitude (e.g. perjury) or bad faith in the primary custodian’s efforts to interfere with, or deny access to the other parent with respect to the children is ‘dispositive’ in denying the primary custodian’s right to Move Away.
These are the core issues at the heart of In the Marriage of Overton. All of these issues are stem directly from Family Court’s orders appealed under the consolidated appeal before the Court of Appeals. They are comprehensive and far-reaching: nationally in terms of our concept of, and our confidence in our own justice system, the enforceability of our rights under the Constitution, and “the stability of our political system”. Moreover they are also of international scope and impact, particularly in terms of the image of our Nation: if the Higher Courts do not take exemplary action in the matters at hand and set a clear and unequivocal precedent of justice against the patterns of ‘indiscretion’ displayed by the Family Court Division of the Superior Court of California, it would signify to our critics abroad that we are but hypocrites no more free from corruption in our dispensation of justice than the drug-trafficking controlled courts of those third world nations we so openly and publically disparage. My opponent, continuing to employ the tactics of deceit and distraction that served the Respondent’s case so well in Family Court, wishes to overlook these facts and issues in favor of emphasizing alleged procedural defects in my application of my Appeals.
III
STANDARD OF REVIEW
Given that there is no specific standard of review pertaining to the scope and severity of the allegations of extensive misconduct and impropriety on the part of the judges presiding over this case, which include discrimination, racism, and complicity with perjury, fraud, forgery, and collusion, and others, the only standard of review would be “abuse of judicial discretion.”
IV
ARGUMENT
I am not an attorney, and therefore I am not seasoned in the sophistic art of obfuscation which makes truth subservient to technicality, makes reason acquiescent to judicial discretion, or which makes justice subordinate to bureaucratic expediency – or perhaps more simply to corruption. Nor am I, in all matter of fact, an accountant, but if I were endowed with the skills to make assessments of human financial enterprises and reduce them to dollars spent in terms of services rendered or results obtained, I would quite carefully consider the bottom line of this Case and make the following observations:
Evidence of “Bad Faith”/Justification for Imputation of Income arising from the Respondent’s use of Legal Expenditures:
n The Respondent, Ms. Dolansky, has spent well over $130,000 in attorney fees – at least $100,000 of which have lined the pockets of my current opponent, Mr. James P. Clark; and the escalation of these costs remains unabated.
n This figure does not begin to represent the social costs to the American Taxpayer in terms of the salaries of judges, court clerks, reporters, bailiffs, etc., all invested in a protracted litigation which has done nothing for the Best Interest of the children but much for the Best Financial Interest of the representing attorneys, principally Mr. Clark himself.
n The Respondent’s could have easily chosen to invest her financial resources, rather than in litigation, in the following – with a drastically lower bottom line:
a) paying for the children’s visitations expenses in an agreement that would fairly reflect the 43% time share the children enjoyed with their father;
b) payment for Alex’s forensic psychological assessment;
c) payment for the children’s Spanish language training, and
d) payment for the children’s multicultural programs – even private – for the proper development of their multi-ethnic heritage.
n The children’s Best Interests would have been far better then by contributing to Mr. Clark’s retirement fund.
Though not an accountant, my understanding of human nature do suggest that the financial facts in this Case alone are sufficiently evident as to reveal the Respondent’s intent inasmuch as they establish, beyond a reasonable doubt, that her motivation to have refused investment in the four items I have listed above – a), b), c), and d) – and which would have been in the Best Interest of the Children, has been sufficient to justify her willingness to have contributed, and continue to contribute, so significantly to the financial wellbeing of her attorneys, again most notably my present adversary Mr. Clark. I have no doubt that the Respondent’s actions in so spending are not due to a lack of understanding of “costs and benefits,” but rather to a firm grasp of which “benefits are worthy of the mounting costs:" her primary motivation has been precisely the denial of the four items listed above, all of which constituted the Best Interest of the children, and each of which are directly related to the interfering with and denying the children a relationship with me.
Further evidence of the Court’s Bias and Discrimination against me:
During the July 28th, 2008 hearing the Trial Court decided that since my father had recently paid for his grandchildren’s visitation expenses as a gift, I could therefore afford to pay 50% of the mother’s children’s visitation expenses for the children’s tickets in lieu of child support arrearages, thus making a de facto imputation of my income based on a single and sole instance of the benefits of a gift from my father to his grandchildren.
The Court has refused to remotely apply the same standard to the mother despite her extensive history of extensive financial assistance from her parents. Family Code Section 4058 states that the “annual gross income of each parent means income from whatever source derived,” therefore by stipulation the extended, regular, recurrent, and predictable economic support that extends indefinitely into the future from her parents should have constituted imputable income for calculation of child support.
There are many precedents in which extended financial support from parents, similar to that received by the Respondent, constitutes grounds for imputation of income (Ordini v. Ordini, 701 So. 2d 663 (Fla. 4th DCA 1997), Meighen v. Meighen, 813 So. 2d 173 (Fla. 2d DCA 2002), Cooper v. Kahn, 696 So. 2d 1186 (Fla. 3d DCA 1997), Thalgott v. Thalgott, 571 So. 2d 1368 (Fla. 1st DCA 1990), In re Marriage of Rogers, 213 Ill. App. 3d 129, 820 N.E. 2d 386(2004), In re Marriage of
A long list of judicial improprieties, prejudice, racism, collusion with crimes of moral turpitude, and discretional bias:
My opponent, Mr. Clark, is not an ignorant man. He is a master at his trade and therefore a man of letters who at the very least must have some recollection of the very principle which underscored our legal justification to independent nationhood and which inspired the very Constitution which is the basis of his profession: “A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate” (Thomas Jefferson). Somewhere along his training as an attorney he must have been informed of the responsibilities free citizens have in a democratic society adequately enough to recognize and appreciate the substance, if not the exactitude, of the following words: "so long as we have enough people in this country willing to fight for their rights, we'll be called a democracy." (Roger Baldwin).
Furthermore, Mr. Clark is also a veteran citizen of our society, sufficiently so to recognize and appreciate, from his own life experience, the meaning, intent, and uncompromising determination behind my words when I wrote to him, early on in his tenure as legal counsel to the Respondent, that “I will not move to the back of the bus on this one” – though at the time he claimed ignorance as to how this would apply to a divorce proceeding. For the record I note that here resides the crux of the matter: In the Marriage of Overton is much more than just another divorce Case; it is a Case Study which it sheds light upon the Family Court infrastructure and the Superior Court of the State of
That a litigant and her attorneys would stop at nothing to seek an advantage in the course of a judicial trial is neither novel nor of ‘interest’. Of ‘interest’ is the manner in which moral turpitude in the form of fraud, forgery, perjury and subordination of perjury have throughout the Case proven themselves to be profitable, advantageous, and reliable litigation tactics in a division of the Superior Court of the State of California.
Of ‘interest’ also is the partiality with which the Court has repeatedly favored the very perpetrator of these iniquitous actions to the point where one can only refer to the Court in terms of bias, prejudice, complicity, discrimination and corruption. Of even greater ‘interest’ is the manner in which not one, but three Superior Court justices throughout the Case have ignored, refused to take action against, or even outright defended said acts of forgery, fraud, perjury, and subornation of perjury – even to the extent of allowing the perpetrator to reap and accumulate the benefits of said illicit actions, i.e., in the form of accumulated child support arrearages.
Of ‘grave interest’ will be the extent to which ‘others’ – perhaps visible minorities, perhaps the socio-economically challenged and deprived, perhaps fathers at large – will see their own experiences in Family Court reflected in these accounts; most likely not only in the State of California.
It is possible, even, that in the manner in which I have personally, even while fraught with the debilitating effects of life-threatening infirmity refused to waver in the defense of the Best Interest of my children and submit to the wholesale injustice of the Family Court, that others will find inspiration in my efforts and in doing so act upon the following words:
"If you will not fight for right when you can easily win without blood shed; if you will not fight when your victory is sure and not too costly; you may come to the moment when you will have to fight with all the odds against you and only a precarious chance of survival. There may even be a worse case. You may have to fight when there is no hope of victory, because it is better to perish than to live as slaves." (Winston Churchill)
The Family Court in essence has continuously determined, disregarding all other facts and essentials, laws or common decency, that the mother’s ‘right’ to Move Away with the children – and retain custody of the same – superseded all other reasons and considerations, including the father’s rights as a joint-custodial parent, the mother’s recurring acts of criminality (forgery, fraud, collusion, and repeated counts of perjury – including perjury to have my income imputed for the purposes of raising my child support expenses); her bad faith and intentional infliction of emotional distress; her refusal to provide psychological treatment to our 5 year-old son victim of sexual abuse and rape while on her watch; her refusal to comply with Court orders regarding Spanish language training for the children and participation in extra-curricular multi-ethnic programs; her continuous interference with my visitations and communication with children; her refusal to comply with a Court Order for repayment of visitation expenses, and even the denial of a children’s rights to have frequent and continued access to their father – a stipulation supposedly protected under California Family Law.
The cherry on the proverbial cake is a judge (Judge Wohlfeil) who completely disregarded proper and legal procedure in dealing with a Judicial Challenge to Disqualify himself from the Case, only to, in the isolation and privacy of his Chambers, decide to alter final orders – without a motion, argument, change of circumstances, or hearing – and remove a critical item which stipulated custodial repercussions as a preventative measure against the mother’s compulsive pattern of illicit and punitive interference with my contact, communication, visitation, and relationship with the children.
Faced with the facts of the Case, my opponent Mr. Clarks claims are quite inconsequential. He states that my appeals are “fatally flawed,” which, to my limited understanding implies that I have not properly and specifically listed the orders for which I am filing my appeals, or that I have not filed my appeals in a timely fashion. I have already addressed this issue previously in the present Brief.
The sheer scope of the issues I am denouncing before this Court is vast and far reaching. Nonetheless, I have made more than a mere apposite effort to detail and corroborate, via specific references to the Appellate Record, the basis for my appeals. There can be little left for equivocation with respect to my position pertaining to the history of judiciary indiscretions if not corruption that have culminated in the improper and unjust rulings Judge Wohlfeil has made in this Case. There is therefore no basis that would justify my opponent stating that I have not properly presented my Case before the Court of Appeals.
Mr. Clark’s standpoint is clearly reflective of a professional class of legal Pharisee that has our citizens convinced that justice is subordinate to their interpretation manipulation of the law, rather than vice-versa; his position is best summarized by the U.S. v. Minker Supreme Court opinion, which stated, "Because of what appears to be a lawful command on the surface, many Citizens, because of respect for the law, are cunningly coerced into waiving their rights due to ignorance." It is through this type of coercion and cunning, quite profitably propagated by the likes of Mr. Clark, that so many citizens of this country have slowly but surely abdicated their Constitutional rights and permitted, by successive waves of apathy and accumulated ignorance, that Family Law judges seem to all too commonly forget that they are subservient to the rules and principles of justice and the Constitution, and begin to fashion themselves as tyrannical creators and generators of their personal flavor of justice.
However, as stated earlier, I am no attorney and have not been educated in the technicalities and methodologies of the law. I also lack the material means and resources so readily available to the Respondent in this matter which allow her to freely make use of the expensive expertise of highly trained individuals to serve her cause, formulate her arguments, and lend their presence and credibility before the Court. Nor have I benefitted from the type of judicial favor and discretion which has made of deliberate deceit – perjury even – a winning tactic throughout this Case. In comparison to the iniquitous tactics of my opponent and his predecessors in the Case my approach throughout has been naïve and simplistic; it has consisted of repeatedly and consistently present the underlying facts which expose the truth in as clear a matter as possible and the (to date fruitless) pursuit of justice in exchange.
Judicial Racism:
Having stated the above, and to borrow an expression from my opponent – this approach has indeed been “fatally flawed,” and it has been so for good reason: although we live in a country whose very foundation rests upon the concept of the universal and inalienable rights of its citizens to justice, I am neither too young nor too naive to not have felt directly the legacy of the lack of “justice for all” that has characterized a great part of American history. This is precisely why the unjust attitudes of the Family Court neither surprise nor intimidate me – but they do nonetheless outrage me; especially with the racist attitudes of the Family Court in its refusal to recognize my children’s loss of their multiethnic identity and Spanish language heritage as critical and serious enough to constitute a valid cause for a change of circumstances affecting custody and visitation.
As an individual of African American and Native American descent I feel and have often dealt with the issue of prejudice directly. Individuals of Chinese, Japanese, Mexican or other ethnicities of color have their own histories in this regard. The
The history of the legally sanctioned injustices upon my ancestors has been the most decisive factor in the formation of their cultural identity as Americans:
Others may have forgotten, may choose to not remember, or perhaps never knew, but ‘We’ are not to be fooled to overlook the historical facts that have shaped our consciousness as a People simply and just because of the recent election of an African American to the office of the presidency.
Others may have forgotten, may choose to not remember, or perhaps never knew, but ‘We’ – those referred to by the posted signs that read “if black stay back!” – remember the Black Codes, laws in place to enforce and established an order of discrimination, of economic, social, and educational privation, and of a denial of our fundamental rights – civil rights and civil liberties – that were guaranteed under the Constitution: justice for all.
Others may have forgotten, may choose to not remember, or perhaps never knew, but ‘We’ recall the Jim Crow laws – laws of discrimination and human degradation – that ruled our lives for nearly a century after slavery had been legally abolished and were still in effect in some states after I was born in 1963. My relatives still tell stories of being banned from public libraries, denied service at restaurants, and in my own lifetime and experience my parents were denied apartments for rent.
Others may have forgotten, may choose to not remember, or perhaps never knew, but ‘We’ recall the long list of Courts of law, including but not limited to a Supreme Court – the Highest Court in the Land – which ruled in 1883 that the Civil Rights Act of 1875 was unconstitutional for it attempted to enforce the fair treatment and decency – justice for all – upon private citizens and corporations that wanted to uphold and preserve the legalized status of discrimination against peoples of Color.
Others may have forgotten, may choose to not remember, or perhaps never knew, but ‘We’ recall that the long road from chains and shackles, from being subject to the worst form of legalized degradation and dehumanization – the institutionalized injustice of slavery and segregation – to earning a position as the most powerful human being on the planet – the President of the United States of America – and in less than 150 years did not happen without sacrifice. The move from slaves to equal citizens to president of a former nation of slave owners did not take place on its own. It transpired because of the moral conscience – of the passion for fairness – of many individuals of all races, religious creeds, and political persuasions, inspired and motivated by a sense of justice who were willing to take the establishment and its distorted sense of law and order to task. This fact holds a critical lesson for all Americans as well as a point to be made at the outset of any analysis of this Case: it is a transition that took place despite the law and in contradiction with the established order and took place thanks to the Court of Public Opinion. After all this is what the Civil Rights movement was all about and any significant changes in the Family Court system will arise similarly: because the system is publicly shamed into being just.
Many Americans gave up life, liberty, and the pursuit of their own personal happiness so that the
Others may have forgotten, may choose to not remember, or perhaps never knew, but ‘We’ recall and admire the likes of Jackie Robinson, who as the first ‘Negro’ to play in the Major Leagues in 1947 had to agree as part of his contractual obligation to the Dodgers not to complain when he was spat upon by the crowd. Today ‘We’ do not agree; and in doing so we acknowledge the road to equality under the law that so was painfully paved by the likes of Jackie Robinson. We honor his memory by exercising our hard-won right to not be ‘spat’ upon, literally or figuratively.
My opponent states in his “Response” to my “Opening Brief” that I have failed to present the Standard for the Appellate Court to Proceed in reviewing the present Appeal. In response I make the following statement:
Racism or racial discrimination, which according to the United Nations is indistinguishable from ethnic discrimination, appears in many forms in a given society; its expression is illegal in this country in any form of public, corporate, or governmental policy – that would include the policies of the San Diego Family Court.
Racism can be found in the way in which one racial group is systematically and legally deprived of opportunities and freedoms afforded others, such as was characteristic of
Racism or racial discrimination also takes place when one or more groups are commonly represented as having inherently inferior, substandard, contemptible, or disreputable qualities – such as is the case today in the United States as manifested by prevailing negative stereotypes of Hispanics and African Americans alike. Another, even more insidious form of racial or ethnic discrimination takes place when the ethnic heritage of one group is considered unworthy or lacking in value, and is methodically exterminated: between the 1870s and the 1930s the United States government removed many Native American children from their tribes and interned them in boarding schools in order to ‘civilize’ or ‘assimilate’ them by dispossessing them of their language and identity. And yet another form of racism consists of trivializing the heritage of a given group, thereby reducing and downplaying the worth of its ethnic identity. Such is the case In the Marriage of Overton when Ms. Dolansky, the mother of two racially mixed children, who suggested that a good way to promote the children’s African American heritage would be to enroll them in ‘dance lessons’:
“Alex has shown a real interest and talent for dance, and there are a variety of classes offered nearby in hip-hop, African dance, jazz and tap. Perhaps enrolling him in such a dance class or even at a dance class at an African-American cultural center in
Equating African American culture to simply “dance” is the most denigrating and insulting enactment of the racist stereotype that has been established in American Culture from the 1930s onward by way of the Minstrel Show which portrayed Blacks as ignorant, lazy, buffoonish, superstitious, joyous, and musical. The reductive equivalency of our culture to “dance” is at the very core of the stereotyping that was demonstrated in the Jump Jim Crow song and acts which in turn lent their name to the Jim Crow segregation laws that dominated our existence for over a century.
And what would be the Superior Court of California’s ultimate response to these and other statements and attitudes by the mother which clearly indicated her derisory attitude towards the ethnic heritage of her own children together with her refusal to provide them with any meaningful exposure to any cultural heritage other than their Jewish one? As we shall see later, the Court (Judge Wohlfeil) responded by simply rescinding all previous Court Orders in effect that required Ms. Dolansky to enroll the children in extra-curricular, ethnic-related programs – at her expense – in order to cultivate their and multi-ethnic heritage and identity, stating that schools in Boston were sufficiently ethnically diverse to fulfill this need.
If evidence of manifest racism – which is simply a form of institutionalized injustice – in a lower Court’s rulings does not represent an “abuse of discretion” and is not something the Court of Appeals can act upon, then I must appeal to the Supreme Court of California if not the Supreme Court of the United States.
Race, ethnicity and bilingualism came to the official forefront of In the Marriage of Overton by way of the first page of Mr. Terrence Chucas’ Statement of Minors’ Counsel’s to the Court. Mr. Chucas’ Statement informs the Court of the ethnic heritage of the two children of the marriage, Alexander Jesse Overton (DOB 01-18-2001) and Julia Rachel Overton (DOB 12-15-2003). The Statement further adds that “Alexander presents as a Caucasian child” (CT 196) – a racist-charged concept for it directly reminisces to a deplorable reality of American History in which African Americans of light skin were impelled to deny their own identity in favor of self-effacing attempts to avoid the privations of racist America. The Statement continues,
“Julia presents as a child of mixed race heritage. Alex could easily pass for a white child; Julia could not. I mention the race issue because unfortunately we live in a time and place where fear, hate and bigotry still exist. It still exists in
The Statement continues with:
“. . . The children are learning Spanish and leaning of their multiple cultural legacies when they visit the father. When they are with the father they see on a daily basis that their world includes a African-American father. The father is proud of his African-American, Cherokee-American, Jewish and Spanish legacies. Having an appreciation of these legacies is important to both children; but it will be of critical importance to Julia. The father argues that the mother and her family will disrespect his legacies and will only develop the mother’s Jewish legacies. I am confident that the father will support and nurture the children’s Jewish legacy. (CT 198) (Emphasis mine).
Disregarding my admonishments to the contrary, Mr Chucas concluded in his Statement that “. . . I believe it is in the best interest of the children for the children to move with the mother to
Mr. Chucas wants to have his cake and eat it. In order to appear objective and ‘learned’ on the critical issue of race, ethnicity, and language in the children’s development he acknowledges them; at the same time he makes sure to fall short of considering these issues as extremely important for the children so that they may develop the proper psychological and social coping skills, an inherent aspect of their ethnic – or multi-ethnic – identity, required to contend with and transcend the discriminating and stereotyping effects of racism endemic to our society. Mr. Chucas therefore downplays the crippling effect that the lack of development of the children’s multi-ethnic identity will have on them in a society riddled with discrimination. How else if not with a strong sense of who I am, and where I come from would I possess the intestinal fortitude and inner strength necessary to do what I must do and face the trials and tribulations, the injustices and even the inhumanities I have confronted by the San Diego Family Court throughout the course of In the Marriage of Overton?
Mr. Chucas’ Statement did, however, indicate the importance of the children’s bilingual – Spanish/English – education, stipulating that the mother would be responsible for registering and paying for the children’s enrolment in Spanish language lessons for the purposes of making them bilingual. Unfortunately, the language of the final order in this respect was watered down sufficiently to not explicitly compromise the mother should she fail to comply with this stipulation.
Furthermore, the Court refused to act upon the evidence from a professional linguistic evaluation that the children clearly demonstrated no effective exposure to the Spanish language:
“I the undersigned hereby declare that Alexander Jesse Overton and Julia Rachel Overton made a series of Spanish evaluation exams in this Institution. [. . . ] In both cases, we identify that the children have not been exposed to the Spanish language at home, nor have they taken Spanish classes which would give them the opportunity to practice and to express themselves in this language as other bilingual children of their ages do. Both children are well below average for children their age who speak Spanish even as a second language. (CT Augment 178) (Emphasis mine.)
The mother, in her systematic efforts to alienate the children from all things pertaining to their father, including and especially their multi-ethnic and bilingual heritage, methodically and by design insured that the children would lose their Spanish. The Superior Court of the State of
Therefore, while I cannot claim that racism was at the root of the manner in which the Family Court has continuously and repeatedly discriminated against me throughout its adjudication of the Case, I can claim that racism is clear and present in the manner in which the Family Court has refused to fully consider the significance and the relevance of the children’s multi-ethnic identity and Spanish language heritage, with respect to the best interest of the children. Racism is, therefore, one of the most compelling and poignant issues In the Marriage of Overton and undoubtedly represents an abuse of discretion on the part of the judiciary.
Judicial encouragement of crimes of moral turpitude:
There are even more undeniable reasons as to why In the Marriage of Overton is a very important Case to be presented before the open scrutiny of Public opinion and of the
Justice is a universal concept, such as love, anger, fear, or hatred, and much like these universal concepts it is easy to recognize yet difficult to define and to apply. What becomes easier to identify is the lack of its application: injustice. The emotional state of indignation that the presence of injustice occasions in the human spirit is also universal; it is a state of indignation that finds its beginnings in childhood and that constitutes a fundamental expression of one’s moral decency and ethical values.
As children we often learn about injustice – or ‘unfairness’ – while playing games. Games have rules, and the breaking of those rules, we learn, must bring about consequences. An unfair or unjust game is one in which either the rules are deliberately established to provide a select number of the players with advantages and opportunities to win above the rest. The worst game in this respect would be one in which a player would not only be allowed to break the rules, such as stealing from the bank while playing Monopoly, but would also be allowed, once caught, to continue to play while benefiting from her infraction. And yet this is precisely what the Superior Court of the State of
As children our sense of righteous indignation before unjust games later becomes the basis of our conscience, our sense of morality and of our concept of justice as adults; it leads us to refuse to play with those who continually break the rules – cheaters. Being cheated, that is, being treated unjustly, often leads children (and adults) to anger and acts of violence. We must learn to control our actions, to “use our words” and to recur to the adults as just figures of authority to intervene fairly in the matter. As children we expect these adults to show some form of impartiality, a necessary condition of justice, and to bring about a fair resolution to the situation. As adults when we seek fair figures of authority we recur to Judges who dwell in the so-called “Halls of Justice” – the Courtrooms of the Land. Riots have ensued and even revolutions have been sparked when injustice has been codified by the institutions of law and order. Indeed, this very issue – the issue of injustice – was the spirit at the very foundation of the
As parents we teach our children that “cheaters never prosper” in order to instill in them a sense of morality, or fair play, of justice. However, those children never played in the Courtrooms of the Family Court Division of the Superior Court of the State of
Much of the evidence regarding the illegality and fraudulent nature of the 2005 MSA and the collusive nature of its filing could be circumstantial and ‘explained away’ – should one choose to do so. Nevertheless, the irrefutable fact, the “smoking gun” that leaves no question as to whether the document presented before the Family Court in November of 2005 and dated October 31 of 2005 was not the “self-same” document I signed on October 13,
n “There is presently on file in the Superior Court of the State of
It is simply impossible for a document containing the above references to matters that transpired in the past – August 15 and August 22, 2005 respectively – to have been signed in its final and complete form on October 13, 2004. By logical inferences, it is also impossible for a document signed in its final and complete form on October 13, 2004 to contain refer to the fact that there is “presently” (meaning in the time period when the document was deliberately altered to have appeared to have been signed, which is on November 1, 2005) (CT 18) “on file in the Superior Court of the State of California of San Diego, Case number D491976, a proceeding for dissolution of marriage between the parties” an event that took place subsequent to the filing of the petition on August 15 of 2005. I have already in my Opening Statement as well as in previous Declarations before the San Diego Family Court presented my arguments as to the fraudulent nature of the 2005 MSA; they need not be reiterated here.
However, what is disgracefully, scandalously obvious from the Court Record is that the Family Court Division of the Superior Court of the State of California failed to demonstrate any interest or concern, or take any measure or provisions towards conducting an investigation to determine the validity of my allegations, or to contend in any way whatsoever with the alleged forgery, fraud, perjury, or the subornation of perjury, or any similarly maliciously intended acts to deceive and manipulate its juridical process.
The last point in particular is tremendously disturbing, for if it is the case that lying, cheating, and deceiving are acceptable or even tolerated in Family Court – or in any Court for that matter – and if it is the case that Judges make no effort to sanction those who do lie, cheat and deceive them, and if it is also the case that Judges make no effort to correct their own misconceived and misguided Findings and Orders resulting from those lies and deceits – even once the nature and extent of those lies and deceptions have been properly identified and presented to them – then the institution of Family Court as a whole has no moral basis on which to seek the backing of the State of California, or the Government of the United States, in the recognition, acceptance, support, or enforcement of its findings, orders, and adjudications.
Explicitly and frankly put, any legal institution that does not have a means, a policy, and a determination to take action against those who would deceive its judicial officers and would seek to manipulate its powers to take unfair action against another party lacks the moral integrity to call upon the authority of the State to enforce its Orders and support its Findings, for one could never be sure what forms of prejudice or deceit would be reflected in those Findings and Orders.
The willful and deliberate deceit of a Court of Law must be considered a serious act by any standards. For one, it subverts the validity and legality of the juridical process. Justices supposedly make their decisions based upon the information at their disposal. The decision (and by extension the law-) making process is intended to be objective and impartial, and a direct reflection of the rules and regulations, the laws and precedents, that have been convened within a given jurisdiction. These laws and precedents and their application – collectively referred to as jurisprudence – are the consequence of decades if not centuries of a process intended to capture and to manifest in pragmatic and concrete form the abstract concept of justice. In our
Judges must act upon information known as the ‘facts;’ once presented with these ‘facts’ it is their responsibility to apply their understanding and interpretation of the laws to reach an outcome which is in agreement with the same, and which in turn is ultimately in accordance with the Constitution of the United States of America. Knowingly deceiving a Court of law for the purposes of obtaining unfair benefits to oneself or unjust detriment to another party subverts the very process upon which the Constitution is based. The reason why actions such as perjury, forgery, and fraud are not only penalized by the law but are considered acts of moral turpitude is that they subvert, hi-jack, undermine, and sabotage the entire legal process. The very point of making individuals take oaths or affirmations before a Court, and under penalty of perjury, is in order to preserve the integrity of this juridical process.
Perjury is defined as the "willful and corrupt taking of a false oath in regard to a material matter in a judicial proceeding." It is in essence deliberately lying in a courtroom proceeding after having taken an oath to tell the truth, lying in a manner that is material to the case at hand — in other words in such a fashion as could affect the outcome of the case. I will not go into depth into a review of the severity of deceiving a Court beyond a single example: the Matter of Martinez-Recinos, 23
“The Board of Immigration Appeals has issued a unanimous en banc precedent decision finding that a
“The BIA began its consideration of the appeal by examining subsection (S) of the "aggravated felony" definition of INA section 101(a)(48). Subsection (S) applies to "an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year." The BIA then compared the
“The BIA also upheld the IJ's conclusion that the perjury offense is a crime of moral turpitude, rendering Martinez-Recinos ineligible for adjustment of status without a 212(h) waiver. And the BIA agreed with the INS that Martinez-Recinos is ineligible for a 212(h) waiver because he was previously admitted to the
The relevance of the above Matter to the present Case is material for three reasons:
1) It lays a claim to the severity of perjury as a criminal offense that would justify the deportation of a legal alien from the
2) It clarifies the nature of the perjury in terms which can be simply stated as ‘lying for one’s benefit under any circumstance in which lying is illegal’ – including of course, lying to a Court; and
3) It makes perjury – such as lying before a Court, any Court – an immoral act, an act of “moral turpitude,” an act which states the corrupt nature of the individual committing the act.
In general, legal definitions and descriptions of moral turpitude include:
n Conduct that is “considered contrary to community standards of justice, honesty, or good morals” (emphasis mine) and “Crimes involving moral turpitude have an inherent quality of baseness, vileness, or depravity with respect to a person's duty to another or to society in general.” [2]
n “Moral Turpitude is the gross disregarding of moral standards expected of a human being while doing some activity or crime.”[3]
n A “gross violation of standards of moral conduct, vileness. An act involving moral turpitude is considered intentionally evil, making the act a crime” (emphasis mine).[4]
n “Immorality. An element of crimes inherently bad (malum in se), as opposed to crimes bad merely because forbidden by statute (malum prohibitum).”[5]
What all of these definitions have in common is that the action by the person transgresses simply a breaking of the law, but rather consists of an additional quality or attribute of defiling the moral standards of decency upheld by a community. This is issue is material to the Case because if Immigration and Nationality Act would remove individuals guilty of moral turpitude in order to rid their corrupting presence from our society, why would similar acts of moral turpitude committed in the course of a Family Court litigation not be a primary consideration in the adjudication of custody of small minor children? One must seriously question the integrity of a Court which repeatedly demonstrates a blatant indifference to an individual’s actions that prove to be “contrary to the community's standards of justice, honesty, or good morals.”
A final point to be made regarding the issue of ‘moral turpitude,’ and who we allow to remain in our country is the following recent ruling of November 18, 2008 pertaining to its definition under the Immigration and Nationality Act:
n “To qualify as a crime involving moral turpitude for purposes of the Immigration and Nationality Act, a crime must involve both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness”[6] (emphasis mine).
The condition of ‘scienter’ is extremely important to the present Case. From the Latin meaning “knowingly,” legally the term scienter refers to
n “a state of mind often required to hold a person legally accountable for her acts. The term often is used interchangeably with Mens Rea, which describes criminal intent, but scienter has a broader application because it also describes knowledge required to assign liability in many civil cases. Scienter denotes a level of intent on the part of the defendant. In Ernst and Ernst v. Hochfelder, 425
The legal concepts of ‘moral turpitude’ and ‘scienter’ are material to the Case because it is obvious that Ms. Dolansky acted with the “intent to deceive, manipulate, or defraud” the Court with her actions of forgery, fraud, and repeated acts of perjury throughout the Case – such as the perjury which led to the imputation of my income on December 18, 2006. It also establishes a legal precedent by which a Court of Law should have taken action to investigate my claims regarding Ms. Dolansky’s actions and not ignored them, defended them, and by de facto encouraged them and rewarded them. Again: intent to deceive was implicit in the manner in which Ms. Dolansky kept from me all of the details of the November 28, 2005 Judgment and the attached MSA until March 16, 2006, only weeks after she was to leave for Boston; in the manner in which she sought and obtained the March 29, 2006 Restraining Order against me; and in the manner in which Ms. Dolansky falsely testified before the Court on December 18, 2006 leading to the imputation of my income – among many other instances throughout the Case.
Forgery is also a crime of moral turpitude. Forgery has been defined as 'the fraudulent making and alteration of a writing to the prejudice of another man's right', or alternatively, 'a false making; a making malo animo, of any written instrument, for the purpose of fraud and deceit.' [8] It another example of the “intent to deceive, manipulate, or defraud,” in essence another way of deceiving the Court for one’s advantage but by alteration of a legal and material document to the detriment of another person rather than by direct declaration or testimony. California Penal Code Section 470, subsections a), b), c), and d) state the following with respect to forgery:
(a) Every person who, with the intent to defraud, knowing that he or she has no authority to do so, signs the name of another person or of a fictitious person to any of the items listed in subdivision (d) is guilty of forgery.
(b) Every person who, with the intent to defraud, counterfeits or forges the seal or handwriting of another is guilty of forgery.
(c) Every person who, with the intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court or the return of any officer to any process of any court, is guilty of forgery.
(d) Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery: [. . .] request for the payment of money, [. . .] writing obligatory, or other contract for money or other property, contract, due bill for payment of money [ . . .], or for the delivery of any instrument of writing, [ . . . ] or other power to receive money, [ . . . ], or falsifies the acknowledgment of any notary public, or any notary public who issues an acknowledgment knowing it to be false; or any matter described in subdivision (b). (Emphasis mine)
At least ONE of those definitions above MUST apply to a Marital Settlement Agreement as well as to the verbal testimony Ms. Dolansky made before the Court on December 18, 2006 regarding the availability of contracts as an adjunct professor in San Diego and which resulted in the imputation of my income.
Fraud is also considered a crime of moral turpitude. California Penal Code 132 states the following regarding Fraud:
Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony. (Emphasis mine)
California Penal Code 134 states the following:
Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony. (Emphasis mine)
The events pertaining to the fabrication, filing and litigation of the 2005 Marital Settlement Agreement by Ms. Dolansky merit at the very least the allegation of Fraud. Furthermore, they are also worthy of the allegation of collusion, defined as:
n “An agreement between two or more people to defraud a person of his or her rights or to obtain something that is prohibited by law.
n “A secret arrangement wherein two or more people whose legal interests seemingly conflict conspire to commit Fraud upon another person; a pact between two people to deceive a court with the purpose of obtaining something that they would not be able to get through legitimate judicial channels.
n “Collusion and fraud of every kind vitiate all acts which are infected with them, and render them void.”[9] (Emphasis mine.)
The last point which states that collusion and fraud “vitiate all acts which are infected with them, and render them void” is critical to a legal interpretation of In the Marriage of Overton in several material ways:
1) For one, it can be demonstrated that the Family Court Division of the Superior Court of the State of
2) Secondly, it makes the Family Court responsible for all damages, detriment, and injuries resulting from in its negligence to perform its legal duties, including and not limited to the rape of my son by much older boys not two months after the mother took the children to
3) It makes all actions deriving from Ms. Dolansky’s false representation (i.e., perjury) before the Family Court on December 18, 2006 regarding my alleged employment opportunities, null and void. This would include not only the child support arrearages accumulated, but also the Orders that arose as a result of her claims to such arrearages such as, but perhaps not limited to, orders that require me to pay for visitation costs beyond those stipulated by the initial Court orders of May 31, 2006.
4) Finally, it justifies my efforts – and legal right – to continue to bring the evidence of the collusion and fraud to the Court’s attention and therefore not meriting the Finding of “Vexatious Litigant.”
The above legal entry regarding ‘collusion’ offers an additional and very interesting and powerful point to be made which is also material to the present Case: “The fundamental societal objection to collusion is that it promotes dishonesty and fraud, which, in turn, undermines the integrity of the entire judicial system.” [10]
One cannot help but to pause to remark on that final point, in particular the issue of “undermines the integrity of the entire judicial system” for this is a critical point both in terms of the nature, severity and moral turpitude characteristic of Ms. Dolansky’s actions, but also the nature, severity, complicity and lack of integrity of a Court system that would not take great offense and impose sanctions against her for the same, for by its lack of action the Court itself “undermines the integrity of the entire judicial system.”
In my Opening Brief I have enumerated the repeated occasions in which the Family Court has refused to apply its powers of Contempt of Court against the mother, Ms. Dolansky for the manner in which she has employed deliberate deception in order to further her Case before the Court: the 2005 MSA which can only be qualified as a forgery; the March 29, 2006 Ex-Parte Hearing for Restraining Order in which the mother deceives the Court from start to finish, including deliberately not notifying me of the Hearing; the April 3, 2006 Ex-Parte Hearing seeking an addition to the previous Order, again failing to notify me; the December 4, 2006 Ex-Parte seeking cancellation of the Winter visitation claiming “psychological abuse” endorsed by a fictional ‘psychologist’; the December 18, 2006 Hearing which lied about my potential employment as an adjunct professor and led to the imputation of my income; the June 2007 Ex-Parte, again seeking cancellation of visitation with the children and which required me to interrupt my cancer treatment; and the entire basis for the campaign of legalized harassment which my opponent Mr. Clark undertook seeking “interrogatories” and “disclosures” of my income while I endeavored to survive chemotherapy, radiation treatment, and countless major surgeries, when the Respondent was fully aware of the fact that I had no history of income to disclose.
If collusion, because of its deceptive nature, undermines the integrity of the entire judicial system, then the Family Court’s refusal to act upon these and other blatant iniquities and deceits on the part of Ms. Dolansky only demonstrates the lack of integrity inherent in the system itself. Yet this issue begs the following question: if a Court lacks moral integrity on what legal grounds are its Findings and Orders enforceable? The Court, by not acting against the mother for her demonstrated iniquity throughout the entire Case, brings into question the moral and legal basis upon which the Court derives its authority and therefore the power it would have to seek enforcement of its Orders. By inference its discretion would be morally and legally abusive.
Wrongful designation as Vexatious Litigant:
The Family Court had knowledge (scienter) of Ms. Dolansky’s iniquities, and having the authority to take action against them not only refused to do so but also allowed her to repeatedly reap the benefits of her illicit actions. The Court as a result deprived itself of its moral and legal authority to make enforceable orders in this Case, and to make matters worse took action against me by designating me a “Vexatious Litigant” for my efforts to seek legal regress for its continual denial of my legal rights. This argument would apply to ALL Orders made by Judge Wohlfeil during his tenure presiding over the Case; all Orders made by Judge Wohlfeil subsequent to his failure to respond appropriately to his Judicial Disqualification; as well as all orders made by the previous Judges who failed to take action against Ms. Dolansky for her fraud, forgery, collusion and repeated acts of perjury. I cannot think of a more compelling argument in favor of abuse of judicial discretion then a repeated pattern of decisions that would serve to undermine the integrity of the entire judicial process.
Arguments re Intentional Infliction of Emotional Distress:
My opponent, Mr. Clark, has also challenged my right to claim damages under Intentional Infliction of Emotional Distress. I will begin to address this issue by first making reference to a section of the California Penal Code Section
“Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.” (Emphasis mine) The Court record shows that Ms. Dolansky has, on repeated occasion acted to withhold, conceal, and/or maliciously deprive me as lawful custodian to right to visitation with the children. The first occasion is prior to the litigation but was confirmed during the Family Court Services mediation of April 2006 as having factually occurred. This first act transpired when Ms. Dolansky absconded with the children to a hotel in the summer of 2005 upon arriving to
On all three occasions it is clear that Ms. Dolansky, by refusing to deliver or present the children as promised or ordered, and/or by concealing the location of the children from me broke the law. It is also clear that Ms. Dolansky had no regard for the children’s need to see their father on each of these occasions, which of itself constitutes both psychological abuse of the children and parental alienation. Additional, it is the case that her actions constitute an Intentional Infliction of Emotional Distress (IIED), which is as material to In the Marriage of Overton as it is indicative of the type of recurrently malicious behavior Ms. Dolansky has engaged in throughout the Case. Therefore, and in response to my opponent’s comments, the issue of IIED merits consideration in terms of the definition and application of the concept:
“
The tort of intentional infliction of emotional distress has four prima facie elements: “(1) the defendant must act intentionally or recklessly; (2) the defendant's conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress.”[12] Alternately this has been expressed as follows:
(1) outrageous conduct by the defendant;
(2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress;
(3) the plaintiff's suffering severe or extreme emotional distress; and
(4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Alcorn v. Anbro Engineering, Inc (1970) 2 Cal.3d 493, 497-498[13]
The questions in this matter, which we will apply equally to subsequent counts of Ms. Dolansky’s behavior, are:
1) What constitutes “extreme and outrages conduct”? The answer is,
“. . . conduct which goes beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community. . . . conduct which would cause an average member of the community to immediately react in outrage.”[14]
I believe that there is little question that Ms. Dolansky’s on all three occasions, constitutes what the “average member” of any community would term “extreme and outrages conduct” – in fact, it was illegally so.
2) What constitutes “severe emotional distress”?
n “The term "emotional distress" means mental distress, mental suffering or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.
n “The word "severe," in the phrase "severe emotional distress," means substantial or enduring as distinguished from trivial or transitory. Severe emotional distress is emotional distress of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it. In determining the severity of emotional distress consideration is given to its intensity and duration.”[15]
3) What constitutes “intention of causing”?
n “A defendant intended to inflict emotional distress if it is established that he or she desired to cause such distress or knew that such distress was substantially certain to result from his or her conduct.” [16]
There is no doubt that Ms. Dolansky acted intentionally to inflict distress by keeping the children from me because she used this action as a mere to obtain a result: a) clean her house, b) deny visitation and punish me for seeking to vacate her illegal 2005 MSA, and c) keep me from accessing Alex in order that he would inform me of what had truly transpired to him over a period of time, as he did during his recorded disclosures. In all cases Ms. Dolansky knew of the distress she was causing and used it deliberately to coerce me into acceding to her demands, seeking retribution, or further concealing her actions from legal reprisal.
4) Finally, was I severely distressed by Ms. Dolansky’s behavior?
n The answer is “yes,” as I believe any parent would under similar circumstances. The latter occasion I was so distressed that I began to hemorrhage rectally.
I believe that we can readily conclude that Ms. Dolansky’s conduct by lying and deceiving the Superior Court of the State of California into taking extreme punitive action against me in the form of depriving me of all contact with my children was (1) “extreme and outrageous,” (2) performed with the full and complete intention of causing emotional distress, (3) that I suffered extreme distress over the event, and (4) that my suffering was immediately resulting from Ms Dolansky’s “outrageous conduct.” She is therefore once again guilty of the intentional infliction of emotional distress.
The issue of IIED is also applicable to other instances of the Case. It was certainly present when she had her attorney of turn require my presence before the Court in June of 2007 knowing that I was under treatment for cancer. It was certainly present when she had her current attorney hassle and harass me during the height of my illness in search of meaningless and pointless declarations or my past and present finances – i.e., “interrogatories” and “discoveries” – when, but her own declaration to me via email, she was well aware of the fact that my financial recourses during the years of, and preceding, our marriage were negligible and the fact that at the present I had to withdraw from my PhD program due to the physical, psychological, and emotional pressures of my infirmity.
Summary:
While Ms. Dolansky actions bespeak of her value as a human being – or lack thereof – the manner in which the Family Court has allowed her to act, and in so becoming a co-conspirator and accessory to her iniquity is appalling. As an American citizen I am deeply ashamed and outraged by how I have been treated throughout In the Marriage of Overton by the Superior Court of the State of
“I pledge allegiance to the flag of the
It is not intended to be a mere empty recitation of 31 words but rather a succinct affirmation of
Martin Luther King, Jr. once stated that “Many of the ugly pages of American history have been obscured and forgotten....
V
CONCLUSION
I am not an attorney, but I am both a man of conscience and a father dedicated to his children. At the very heart of the issues before this higher Court rest the responsibilities which the founding fathers of our nation have placed upon our judicial system in terms of reflecting and protecting the moral conscience of our country. Racism, discrimination, tolerance towards and complicity with acts and crimes of moral turpitude, etc., have no place in the rulings of American courts – I need not a degree in law to sustain that opinion or to claim my right to justice, only courage, a determination to ‘endeavor to persevere’, a conscience and a will to abide by it:
Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation on conscientious men is a corporation with a conscience. Law never made men a whit more just; and, by means of their respect for it, even the well disposed are daily made the agents on injustice. A common and natural result of an undue respect for the law is, that you may see a file of soldiers, colonel, captain, corporal, privates, powder-monkeys, and all, marching in admirable order over hill and dale to the wars, against their wills, ay, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart. They have no doubt that it is a damnable business in which they are concerned; they are all peaceably inclined. Now, what are they? Men at all? or small movable forts and magazines, at the service of some unscrupulous man in power? (Henry David Thoreau, Resistance to Civil Government, 1849)
What Mr. Thoreau is advocating is that if the law runs contrary to my conscience, which is to say, contrary to my sense of justice, then as a free citizen my duty requires me to endeavor to change the laws and seek to rectify the incongruity, despite recognizing all along that if I am alone in my efforts I will surely fail to achieve the intended objective. The judiciary is afforded great discretion in the execution of its functions. As a result, theirs is the solemn duty associated with
In the loss of my children and subject to the whim and mercy of a corrupt Family Court system, I am currently living Churchill’s “worse case” scenario: in a “fight when there is no hope of victory;” nonetheless descending from a once enslaved people who fought hard for their freedom, I do believe it is indeed “better to perish than to live as slaves.” At the very least in my trials and tribulations in defense of my rights I will offer my children, whom the Family Court has denied me the right and opportunity to father, a documented and recorded legacy of who I am and by extension of who they truly are; of their own identity. In this I state that “in righteous loss there is more honor than in iniquitous victory” (The Master’s Log, J. A. Overton, Sr., 2007).
What is at stake here is much more then my personal circumstances. If my opponent is correct, and I have no proper recourse within the judiciary to seek remedy to the corrupt actions of the San Diego Family Court, then the true loss goes to ‘We the People,’ for the results of this Case would indeed serve to ‘Find and Rule’ that the words “with liberty and justice for all” are empty and meaningless, that the “Judicial department” has failed us in its essential role as guardians of the happiness of our Country and of “the stability of its political system.” Tragically, it would indicate that our demise as a first rate nation is all but imminent, for we indeed lacked “the most indispensable element of greatness—justice.”
In this vein I respectfully leave my opponent, as well as the members of the Court of Appeals and of the Supreme Court, with a final quote: “
CERTIFICATE OF COMPLIANCE
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief contains 13,957 words, including footnotes. In making this certification, I have relied on the word count of the computer program used to prepare the brief.
By James Alexander Guerra Overton, Appellant
[1] Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001.
[2] http://legal-dictionary.thefreedictionary.com/moral+turpitude. The same entry is found in the Law Encyclopedia of Answers.com at http://www.answers.com/topic/moral-turpitude?cat=biz-fin.
[3] Legal-Explanations.com at http://www.legal-explanations.com/definitions/moral-turpitude.htm.
[4] Law.Com Dictionary at http://dictionary.law.com/default2.asp?selected=1282&bold=||||
[5] The
[6] ImmigrationProf Blog at http://lawprofessors.typepad.com/immigration/2008/11/new-ag-ruling-o.html.
[7] http://legal-dictionary.thefreedictionary.com/scienter
[8] The 'Lectric Law Library's Legal Lexicon On Forgery at http://www.lectlaw.com/def/f056.htm.
[11] See entry regarding “Infliction of Emotional Distress” in http://www.west.net/~smith/distress.htm.
[12] Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497-498 cited in “California Employment Law – Fight Harassment” blog at http://www.fightharassment.com/2007/06/emotional-distress-torts-to-know.html. See also Louisiana State Law school at http://biotech.law.lsu.edu/Courses/tortsF01/IIEM.htm.
[13] “Infliction of Emotional Distress” in http://www.west.net/~smith/distress.htm.
[14] Found in “Infliction of Emotional Distress” at http://www.west.net/~smith/distress.htm
[15] Found in “Infliction of Emotional Distress” located at http://www.west.net/~smith/distress.htm
[16] Found in “Infliction of Emotional Distress” located at http://www.west.net/~smith/distress.htm
