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 (Super. |
Appeal from a Judgment/Order
Of the Superior Court,
Hon. Joel R. Wohlfeil, Judge
| APPELLANT’S OPENING BRIEF |
James A. G. Overton
511 E. San Ysidro Blvd #5046
(858) 568 2430
Appellant
Self-Represented
TABLE OF CONTENTS
Page
STATEMENT OF THE CASE 1
STATEMENT OF APPEALABILITY 2
STATEMENT OF FACTS 2
ARGUMENT
There are three general principles of Law which the Court has chronically failed to apply throughout this Case. 43
A. The Standard of Review. 43
B. No Evidence to support its Findings and Orders 43
CONCLUSION 46
CERTIFICATE OF COMPLIANCE 47
i
STATEMENT OF THE CASE
The case begins a motion to vacate an illegal 2005 Marital Settlement Agreement in the context of a disputed Move Away case from
On October 7, 2006, shortly after arriving to
My motion to vacate the May 31, 2006 Move Away Order, alleging duress was first continued from October 13 to December 18, 2006, only to be denied during that same hearing. Temporary child support orders were issued on October 13, 2006, based on my student loan income, and on December 18, 2006, based on imputed income. (RT 150) The Court has repeatedly refused to impute the mother’s income to reflect the extensive financial support from her parents, or hear my allegations of her perjury leading to my imputation of income.
The Court has also repeatedly refused to apply Item 17 for a finding a “change of circumstances” in the mother’s failure to comply with her obligations under Minors’ Counsels’ Statement to the Court, or accept my cancer as a change of circumstances to reduce my imputed income or alter the children’s visitation payment schedule.
Due to my insistence on presenting the Court with the above issues, the Court ordered my designation as a Vexatious Litigant and denied all my pending motions. (RAT[2] 1) It also required me to prepay the mother’s visitation costs in lieu of child support arrears, and then refused to enforce the Order which required reimbursement of her share of the costs. The Court without motion removed Item 17 from the Final Orders. (CT2 1147.) The Court also failed to respond to a Judicial Disqualification or remove the challenge from the Record. (CT2 1090.)
STATEMENT OF APPEALABILITY
This appeal is from a judgment of the San Diego County Superior Court and is authorized by the Code of Civil Procedure, section 904.1, subdivision (a)(1).
STATEMENT OF FACTS
October 13, 2004: the mother, Ms. Dolansky, and I entered her attorney Mr. Shular’s office then located on 1551 Fourth Avenue, Suite
All the requisite documents for the
The Notary Public employed for all matters was Mr. Shular’s employee Daniel Rekalske whose Commission expired on June 18 2005, prior to the filing of the 2005 Marital Settlement Agreement. (CT AG 2 3.)
The ‘Agreement’ executed on October 13,
Community Assets and Liabilities are also listed in the “Divorce Agreement,” no monetary assets were listed (CT 208-9.). Community Debt listed in the “Divorce Agreement” consists of my student loans, credit card debt, and the lease expenses for Nissan X-Terra. Division of Community Debt is detailed and assigned, with the issue of responsibility over the “Best Buy” outstanding. No child support was assigned or requested. (CT A1 208-9.)
Email correspondence between the mother and me (CT 61.) confirms that the status quo that governed both parties between October 13, 2004 and until March 16, 2006 closely reflected the terms outlined in the “Divorce Agreement.” The noteworthy discrepancy was that in the final draft of the Divorce Agreement executed on October 13, 2004 I became responsible for the Best Buy card (CT 399.); the mother would remind me of this responsibility regularly (e.g. CT 29-31, and CT 107.) The Record contains a Summary of the status quo between both parties, the events which took place on October 13, 2004 at Mr. Shular’s office, as well as the terms of the Divorce Agreement signed. (CT 399.)
December 14, 2004: a Notice of Assignment of Judge to Case was filed before the Superior Court of Guam (LBD 1 2.); the Final Decree of divorce was filed and a Certificate of Divorce was issued. (LBD 1 8-16.)
No other financial agreements were entered once the rental agreement expired on June 15, 2005 (CT 207.). From June 15, 2005 to August 15, 2005 the mother and I made an arrangement that I would house-sit, rent free, while she and the children would visit her parents in Canada for eight weeks (RT 3.); other terms of the verbal agreement were (a) a quid pro quo for the 24 lost days/nights of my lost visitation time with the children (CT 43.) and (b) the agreement that the children would immediately visit with me upon their return on August 15, 2005.
During this house-sitting I received news that my single-semester contract as an adjunct professor would not be renewed (2005-6). (CT A1 222.) I forwarded this email with a comment to the mother as it affected my ability to continue living in
August 15, 2005: upon her return to
November 28, 2005: A Hearing was held and a (default) Judgment was entered for the Dissolution of the Marriage. (CT 1). I was not present at the Hearing, nor did I file a Response. A Marital Settlement Agreement (the “2005 MSA”) (CT 3) was entered as an Order; page 2 of said document states, “The Petition was filed by Wife on August 15, 2005. The Court acquired jurisdiction of Husband on August 22,
Among other anomalies, the 2005 MSA lacks a Notarized Signature page. Mr. Shular would later admit to having removed it because he felt it “was not required.” (CT 128.) It also lacks a Community Debt section, and no mention is made of the “Best Buy” card whatsoever. Rather than the Rental Agreement for $1,000 a month, Child Support is set in its place. Visitation with the children is set at only 2 days a week rather than the “roughly 50%” in the “Divorce Agreement” and which had been the status quo (CT 28.) The Record contains a summary list of the mayor anomalies in the 2005 MSA suggestive of fraud. (CT 399-300.)
The Record of Mr. Shular’s filing of the Petition and related documents contains the following:
n A copy of a Personal Proof of Service, stating that I was (allegedly) served by Ms. Dawn Rekalske (same Notary from October 13, 2004) on October 31, 2005, at 11:00 am at 14261 Danielson Street, Poway, CA, 92064, with documents related to the Hearing, including a Summons. (LBD 1 79.)
n The Notice of Entry of Judgment, listing the mother’s address as 14261 Danielson Street, Poway, CA, 92064 (Mr. Shular’s business address) and my address as 7711 Canyon Point Lane, San Diego, CA, 92126 (the mother’s address at the time) (LBD 1 73.)
n Payment of my Respondent fees of $300.72 by Mr. Shular – without my knowledge or consent (LBD 1 71.)
n Nowhere in the Court record during this period does a valid address or phone number of mine appear where the Court could have contacted me or by which Mr. Shular’s office could have notified me for service. (CT 59.) No evidence of our December 14, 2004 Guamanian divorce is filed.
It would not be until Mid-December 2005, while sorting through mail the mother handed me, that I would discover by accident that she had filed the above action. When I inquired as to the nature of this action the mother retrieved the letter from me and remarked that they were “just the divorce papers.” (CT 400.)
December 26, 2005: Shortly after the above incident Ms. Dolansky finally replied to an email I had sent her asking for a copy of the court papers referred to above as well as her attorney’s name since I had never received notification of the proceeding. (CT. 32.)
I would not act immediately on the contact information regarding the mother’s attorney until after the shocking March 16, 2006 email I received from her. The email in question indicated that she would be taking the children to Boston and that I owed $13,000 in child support – all in accordance to a November 28, 2005 Order of which I had been totally unaware. (CT 34.) The Record contains a summary of the main points of her email. (CT 400.)
On March 20, 2006 I emailed Mr. Shular to arrange to get a copy of the November 28, 2005 Judgment as well as a copy of the “original” Agreement signed on October 13, 2004. Mr. Shular informs me of his “new” address in
On March 21, 2006, I ventured to Mr. Shular’s new office on 14261 Danielson Street in
On March 22, 2006 I filed a Motion before the Superior Court to Set Aside the November 28, 2005 Judgment based on the fact that (a) the Petition was fatally flawed because we were already divorced; (b) there was no notarized signature page – required per FC 2338.5; and (c) the fact that the document filed was a forgery constructed by adding signature pages from the previous document I did sign. (CT 21.) The Order to Show Cause presents a
On March 24, 2006 I would provide a more detailed, Supplementary Declaration to my pending Motion. (CT 23.) This declaration provides email correspondence with the mother, substantiating my claims that the 2005 MSA is a fraudulent document, including emails regarding the mother’s repeated demands for payment for the Best Buy card (which was present in the original agreement signed on October 13, 2004, but absent in the 2005 MSA), as well as email references to the 3 x 24 hour periods of child custody I enjoyed since October 2004. I noted that in the mother’s email of March 16, 2006 she makes no reference to the $1,000 a month in RENT I had paid her from October 2004 to June 2005. This Supplementary Declaration also presents my
On March 25, 2006 I entered into USE bank to obtain a detailed print out of the mother’s bank account transactions between November 2004 and February 2006; these copies are repeated in the Court record and were included in my declaration filed on April 25, 2006. (CT 55.) The mother’s bank accounts included deposits totaling nearly $96,000 over a 16 month period; approximately $6,000 a month. (CT A2 46.)
On that day I also wrote the mother an email reminding her of our agreement regarding the 24 custodial days I had missed during the previous summer, and that I would be claiming those days in the “coming month of April.” (CT 43.) The children were returned to the mother as per our status quo on the following day, Sunday March 26, 2006.
On March 29, 2006 and while the children were still in her custody, the mother and her new attorney, Paul Staley, entered Ex-Parte requesting a Restraining Order. (RT 1.) The mother also filed moving papers for a modification of custody and visitation. (CT 36.) In the mother’s ex-parte form she stated that I was “a credible risk” to abduct the children. I was never informed of the Hearing because: “Respondent is in
In her Attachment 10 the mother reiterated that there was “a credible risk” that I would “abduct the children and take them into
During the Hearing, Mr. Staley referred to my email regarding the 24 day extended visitation, my OSC to vacate the marital settlement agreement, and reiterated the mother’s fear that I would abscond with the children. (RT 3.) With practically no evidence to support her allegations, the Court ordered Supervised Visitation, that no passports be issued to the children, and Family Court Services mediation (RT 4/5.)
On April 3, 2006, Mr. Staley again entered Ex Parte before the Court, again without notification as per Rule 5.16., accusing me of trying to abduct the children from the pre-school, stating that the preschool was “asking for some clarification.” (RT 6.) Mr. Staley was seeking to augment the previous order of March 29, 2006 by adding two provisions, “one prohibiting the dad from picking the children up, the other prohibiting the preschool staff from releasing the children” (RT 6.) Again I was not informed of the Ex-parte because it “would defeat the purpose of ex parte.” The Court does not ask Mr. Staley that given that I “try to pick up the children” and the preschool cannot prevent it, then why is it that I have not successfully abducted the children into Mexico?, or if I can cross the border regularly to attempt to abduct the children then why am I not informed of these ex-parte proceedings? The Order was granted. I was never notified of this Hearing nor does the Record show a Proof of Service.
On April 6, 2006, the mother and I attended Family Court Services mediation. The report was filed before the Court on April 25, 2006 (CT A2 3.019.) Most relevant parts of the Report are as follows:
n The mother’s willingness to ONLY allow four-one week periods of visitation a year. (CT A2 3.02.)
n “According to the father when he consented to the mother taking the children to
n “The father states that the mother uses the children as punishment against him and does not know how to share. . . The father states that he does not trust the mother to enforce a relationship between him and the children if she moves.” (CT A2 3.04.)
n “The mother states that while she was in
n “The mother’s allegations that the father was going to abduct the children to
n “The undersigned also has some questions regarding the mother’s ability to assure that the children have frequent contact with their father once she moves.” (CT A2 3.06.) (Emphasis mine)
n Child Sharing percentage was determined to be mother 65% and father 35%. (CT A2 3.10) despite the fact that three overnights a week constitutes 42.85%.
Discussed during the mediation, but not listed in the above Report was “Alex’s secret”: the mother’s psychological intimidation of the children which prevented them from expressing their love for me to the extent that Alex stated he had to keep it a secret from his mother. I convinced Alex that he should let his mother know that he loved me. On December 12, 2005 the mother sent me an email acknowledging that Alex had shared his “secret” with her. (CT 125.)
The Restraining Order would not be rescinded until April 11, 2006, which meant that I lost another 6 days of visitation time, which in addition to the 24 days previously agreed upon, represents a total of 30 days of lost time with my children. (CT 52.)
On April 25, 2006 I filed a very extensive and thorough declaration with 14 Exhibits (CT A1 1-73) and copies of the mother’s bank account statements from November 2004 until February 2006. This declaration argued why it was not in the Best Interest of the children to move away with the mother given the evidence of her crimes of moral turpitude (fraud, forgery, collusion and repeated perjury).
On April 27, 2006 the mother’s former attorney, Marc Shular, filed a declaration before the Court in response to my allegations that the 2005 MSA was not the self same document signed in his office on October 13, 2004. (CT 128.) In this declaration Mr. Shular admits to having made several changes to the original documents signed in his office (CT 128-9.) and concludes his declaration by stating that the MSA “attached to the Judgment filed November 28, 2005 was the Marital Settlement Agreement executed by Ms. and Mr. Overton with the exception of the notary page and the other correction noted above.” (CT 129.) None of the changes to which Mr. Shular confesses account for the evidence on page 2 of the 2005 MSA which refers to events occurring on August 15, 2005 and August 22, 2005 – almost a year after the document was signed in its ‘final’ form in his former San Diego office on October 13, 2004.
During the May 3, 2006 Hearing my attorney Mr. Freeman requested a Continuance (RT 51.) and attempted to have the November 28, 2005 Judgment vacated on grounds that the California Petition itself was illegal in light of the prior Guamanian divorce. (RT 52.)
The Court commented regarding the abduction claim in Ex-Parte application was exaggerated by stating “I don’t think I would have granted that if I had known all the facts.” (RT 57.)
The Court dismissed the allegations of fraud in the 2005 MSA stating that the arguments presented did not “jell.” Furthermore, the Court posited that even if the Judgment was invalid “because there is already a judgment” that it would not necessarily invalidate the contractual nature of the agreement. (RT 57-8.)
Mr. Freedman attempted to address the issue of the date of the signing of the MSA by bringing up the possibility of a subpoena of the notary page. (RT 58.) The Court dismissed this argument by stating “Let’s assume there’s a disagreement. Is it still a valid contract?” to which Mr. Freeman countered, “It isn’t. If he didn’t sign it.” The Court concluded with “Let’s assume he did.” (RT 58.)
The Court made an indirect reference to FC 2338.5 by stating, “I’m not sure how that Judgment got entered because his signature is not notarized,” (RT 59.) but continued to argue in favor of the contractual validity of the agreement to Move Away, and refused to address the issue of Setting Aside the Judgment until after the Move Away issue was determined. (RT 63.) Finally the Court decided in favor of the contractual validity of the 2005 MSA and that the issue to proceed with first was the mother’s motion for the Move Away under the Detriment to the children in terms of Brown vs.
The mother accused me of psychological abuse and manipulation of the children and motioned to deny visitation altogether. (RT 65.) Terrence Chucas was assigned Minors’ Counsel (CT 134.) and the matter was continued to May 24, 2006. After the May 2, 2006 Hearing I was forced to litigate in Propia Persona for lack of financial resources.
On May 17 2006 Minors’ Counsel visited my home in
May 24, 2006: Minutes prior to the Hearing, Mr. Chucas convinced me to forgo the mandatory 10 day period (FC 3111) to review his report. (RT 77.) I accepted fully believing he would represent the “smoking gun” evidence of fraud in his report, which would force the Court to hear my arguments in this respect. Mr. Chucas presented his request for a Continuance stating that he needed to speak with Mr. Shular to complete his investigation into my allegations of fraud; he also acknowledged the cultural, religious, and social complexities pertaining to the needs of the children. (RT 78.)
The Court stated its tentative conclusion that the 2005 MSA should have been notarized but that it could “be dissuaded . . . if it’s important to you.” (RT 78.) In addition, the Court concluded that the only ‘Agreement’ signed was executed on October 13, 2004. (RT 78.) I attempted to address the Court in order to argue that based on this fact alone the presence of the August 15 and August 22, 2005 references constituted irrefutable evidence of fraud, but the Court refused to allow my argument. (RT 78).
May 31, 2006: I received a copy of the Statement of Minors’ Counsel immediately prior to the Hearing. (CT 140.) The Statement omits any reference to the “smoking gun” evidence (August 15 and 22 dates on page 2 of the 2005 MSA) and disagrees with my conclusion of fraud (CT 193.). Mr. Chucas cites his personal relationship with Mr. Shular as the primary evidence against fraud (CT 194.). The Statement concludes, however, that the November 28, 2005 Judgment should be set aside for lack of a notarized signature page. (CT 194.)
Mr. Chucas’ Statement proceeds to address various items that he considers would be detrimental to the children in the case of a move away with their mother to
n Loss of multicultural/multiethnic heritage: “I mention the race issue because unfortunately we live in a time and place where fear, hatred, and bigotry still exist. It still exists in
n Loss of Spanish language development: “The move will also harm the children’s cultural and linguistic development. There is no doubt that the children’s mastery of Spanish will be hampered if they move away from the father.” (CT 197.) “The children are learning Spanish and learning of their multiple cultural legacies when they visit the father.” (CT 198) (Emphasis mine.)
n Loss of relationship with father: “There is no doubt in my mind that the mother’s move to
Having stated the critical importance that the children derive from their continued relationship and frequent and continuous contact with me, Mr. Chucas then proceeds to address the issue of the mother’s future potential detriment to said relationship and contact in light of her previous conduct:
n “The mother sought an ex parte order seeking supervised visits for the father in April 2006. Her alleged concern was that the father would abduct the children. There is no doubt in my mind that the mother’s allegations were without merit. The father was not a risk to abduct the children.” (CT 198.) (Emphasis mine.)
n “The mother has made at least two poor choices in the way she has conducted herself in the litigation. The first was discussed above and the second poor choice was recruiting the father’s daughter to write two declarations for the mother that cast the father in a poor light.” (CT 199.) (Emphasis mine.)
Mr. Chucas also summarizes my views of the mother:
n “My assessment is that the father does not trust the mother. He is convinced that he was a victim of fraud and that the mother will do anything to take him out of the children’s lives.” (CT 199.)
While Mr. Chucas establishes clear guidelines and conditions in terms of what would constitute a change of circumstances to take custody of the children away from her and give them to me:
n “If the mother will frustrate the father’s visits in the future like she did in April 2006, then custody should be removed from her and given to the father. I am prepared to give the mother the benefit of the doubt concerning her future conduct, but I think it is very important for the mother to understand that any future efforts to restrict the father’s contact with the children will result in the children being removed from her.” (CT 198.) (Emphasis mine.)
n “17. The mother is admonished that the children’s ongoing relationship with the father is of critical importance to their development and that any efforts to restrict or interfere with this relationship shall be viewed as a change of circumstances enabling the Court to reconsider these custody orders.” (CT 203.) This item was included as part of the Orders of Court.
In addition, Mr. Chucas made explicit that “the father’s arguments concerning the importance of his cultural and linguistic gifts that he can provide for the children have great merit,” and that his “recommendations will attempt to protect these gifts.” (CT 199.) Among these recommendations were the following:
n “15. The mother shall enroll the children in age-appropriate Spanish language courses in the
n “16. The mother shall take all reasonable steps to insure that the children are enrolled in schools that have a diverse ethnic makeup and schools that support the development of multi-cultural sensitivity. The mother shall provide the father with all pertinent information regarding the children’s school prior to the children’s enrollment in the school. This requirement shall also apply to day care for the children.” (CT 203.)
The Statement does not make reference to the over 40% time share I had with the children which should have dismissed the Move Away entirely.
The Statement makes specific reference to the manner in which the mother has benefitted financially from ongoing and predictable support from her parents and explicitly makes its recommendations based on an expectation of this continued financial support:
n The mother has “relief on the largess of her parents to help support herself and the children.” (CT 196)
n “The maternal grandparents have been generous towards the children for years and I plan to take advantage of that generosity in the recommendations that follow below.” (CT 199)
In other words, the Statement of Minors’ Counsel explicitly identifies the repeated and reliable support the mother has received from her parents as the financial basis upon which he was making key recommendations and considerations to support the Move Away.
Having only moments to consider Statement of Minors’ Counsel while pressured to meet with opposing Counsel Mr. Staley, the mother, and Mr. Chucas to discuss the findings outlined therein, I met with Mr. Chucas in private and admonished him for not having included the “smoking gun” evidence for fraud in his Statement. (CT 140.) Mr. Chucas stated that I could argue this point myself before the Court.
I attempted to argue that I was entitled to 10 days to review and respond Mr. Chucas’ Statement (FC 3111). Mr. Chucas and Mr. Staley insisted that I had already legally waived that right. (CT 140.) Fearing the Court would continue to discriminate against me as it had in the past, I felt coerced to negotiate with the attorneys rather than attempt to argue before a biased and prejudiced Court that was clearly partial to the mother’s requests and her Case.
The May 31, 2006 Hearing entered a Stipulation in Reference to the Custody and Visitation issues, which had as its basis the Recommendation Section of the Statement of Minors Counsel. (RT 87). There were several modifications to the previous section that were read into the Court Record, however item 17 was included “as written.” (RT 89.)
Therefore, Item 17 continued to read: “The mother is admonished that the children’s ongoing relationship with the father is of critical importance to their development and that any efforts to restrict or interfere with this relationship shall be viewed as a change of circumstances enabling the Court to reconsider these custody orders.” (CT 203.) (Emphasis mine.)
Towards the end of the Hearing, the November 28, 2005 Judgment was Set Aside “Pursuant to Family Code
n “I think the Judgment does need to be Set Aside on that ground rather without getting into any of the other things about the date. It is very odd the way that was done but I don’t think I need to go there.” (CT 92.) (Emphasis mine.)
The Court made the following remark with respect to the ex parte hearing and opposing Counsel’s request for sanctions: “I was deeply offended by the way the temporary order was handled. I think I was misled. I thought there was perjury and so if there are going to be some sanctions issues, they could be sprinkled around. Okay?” (Emphasis mine.) (RT 95/99.)
On July 19, 2006 I filed a Motion to Vary Custody and Visitation (CT 136.) alleging, among other things, the coercive conditions under which I was forced to accept the terms and conditions outlined in the Statement of Minors’ Counsel on May 31, 2006. I believed that the circumstances warranted, under FC 2122 (c), that the May 31, 2006 Order be Set Aside. (CT 138.) In addition I predicted detriment and harm to my children due to the mother’s lack of supervision resulting from the mother’s lack of time for the children. (CT 146 and CT 404.)
On July 24, 2006 I filed a Motion for Sanctions and Damages against the mother for the March 29, 2006 and the April 3, 2006 ex parte hearings, outlining the evidence for perjury in both. (CT A1 74.)
On July 31, 2006 the Findings and Order after Hearing for the May 31, 2006 Hearing were filed. (CT 188.) Item 2b on page 2 of the F&O reads “See the attached 13 – page document dated (specify date): 5/30/06 (MINORS’S CNSL STMT)” (CT 189.) Attachment to Findings and Order after Hearing Overton v. Dolansky reads:
“The recommendations of Terrence M. Chucas, counsel for the minor children, and which are found in this STATEMENT OF MINORS’ COUNSEL dated May 30th, 2006, on pages 10 through 13, attached hereto and as modified below, are incorporated by reference as though fully set forth herein and are made the Order of the Court. The recommendations modified are identified below with the same numbering as appears in Mr. Chucas’ STATEMENT OF MINORS’ COUNSEL and are modified as follows:” (Emphasis mine.) (CT 205)
Item 17 of the above Order (CT 203) was not listed under the recommendations to be modified and therefore was fully incorporated and continues to read as stated in the STATEMENT OF MINORS’ COUNSEL. (CT 203)
On August 25, 2006 Mr. Staley entered ex parte, this time providing me with notice, in order to seek a Continuance to all pending OSCs (CT 208) and to schedule around his vacation plans (RT 107). All matters were continued to October 13, 2006. (CT 208.)
On October 11, 2006 I received notification by the mother’s attorney, Mr. Staley that on Friday, October 7, 2006, our son Alex (at the time 5 years old) had been the victim of sexual abuse and had been assaulted with rocks while playing alone, unsupervised and at night with three older boys ages 7, 9 and 11. (CT 405 and CT A2[7] 247.) Alex had been routinely required to be the ‘patient’ and to remove his clothes while the older boys played ‘doctor’ on him and touched his private parts. (CT 405.) Alex’s mother would not discover the cut on Alex’s anus until the following day; apparently she had failed to immediately check his rectal area for signs of penetration. (CT A2 247.)
Although the incident had taken place on Friday, October 7, 2006, the mother had not only refused to notify me but also prevented Alex from doing the same during subsequent webcam visitations (Saturday October 8, 2006 and Sunday October 9, 2006) (CT 405.)
I received Mr. Staley’s emailed letter on Wednesday October 11, 2006, just as I was entering the Internet to webcam with the children. Dismayed by the letter, I was delayed approximately 10 minutes and found the mother logging off the Internet just as I was connecting to webcam with the children. I phoned the mother but she refused to take my calls, reconnect online, or to allow me to speak with Alex. (CT 405.) Overcome with grief, frustration, and anger at the mother’s irresponsibility, at not having been notified immediately, and at not even being allowed to speak to my son I experienced my first incidence of rectal hemorrhaging. (CT 334.)
The October 13, 2006 Hearing begins with Judge Oberholtzer making reference to the official complaints I filed against him (RT 150.) and continues with my making reference to my son Alex’s rape and my request for a Continuance which was initially granted (RT 168), only have my motions denied minutes later (RT 176). These contradictions are also reflected in the Findings and Order after Hearing (CT 213).
Mr. Staley seemed to grasp the essence of my argument regarding my OSC for Change of Custody and Visitation by stating:
n “Essentially we had a Motion to Vacate the July 31 Order, its alleged basis, but looked like duress or undue influence, that we’ve filed our responsive declaration. (RT 165.) (Emphasis mine)
However, the Court, in its efforts to justify denying my Motions without a Hearing, seemed unable to recall FAMILY CODE 2122 (c) which reads: n “The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following:
(c) Duress. An action or motion based upon duress shall be brought within two years after the date of entry of judgment.” I argued that the mother’s refusal to notify me in a timely fashion, her refusal to allow Alex to communicate with me during the subsequent webcam visitations, and her refusal on Wednesday October 11 to allow me contact with the children, constituted a clear interference with my relationship with the children which should constitute a Change of Circumstances according to item 17 of the Orders. (RT 159-161.) I also argued that the circumstances involved in Alex’s assault implied sexual abuse over a period of time, a lack of trust on the part of Alex to disclose to his mother, and the mother’s lack of judgment and neglect. (RT 159-161.) This motion was denied. (CT 213.) With respect to my allegations of neglect the Court concluded that it was not so apparent and that “Kids play doctor. That happens.” (CT 163.) The Court concluded that “nothing that’s been presented to me today, up through today” would justify a change of the visitation schedule or custody. (RT 181.)
Having quashed my Motions by continuing them on the one hand, then denying them on the other without allowing for Argument, the Court then proceeded to Hear the mother’s motion for child support and asked me: “What efforts are you making to support your children?,” (RT 167) to which I argued that when my children were living with me three days/nights a week, child support for them was not an issue, if anything the mother would have had to have paid me child support because of the discrepancy in our incomes. Now that the mother had moved them to
With respect to its comment on May 31st regarding “perjury” during the Restraining Order matters, the Court stated that “I felt at the time, and I still feel, that I was lied to by omission,” yet upon request by the mother’s attorney had “perjury” stricken from the record. (RT 178-9.)
Mr. Staley attempted to make his client’s payment of visitation costs contingent upon child support payment, but was denied. (RT 182-3.) Mr. Staley also attempted to have the Court order me to remove my publication of the case on the Internet but was denied with a reference to the “Pentagon Papers Case” and my rights under the First Amendment of the Constitution. (RT 185-6.)
On November 15, 2006 I received a communication from Mr. Staley indicating that due to the “unavoidability of recurrent contact with the perpetrators” the mother was moving with the children to another township in
On November 17, 2006 Alex and Julia arrived at
On December 1, 2006 I filed a declaration before the Superior Court which included information regarding Child Sexual Abuse (CT A2 121), consequences of father absence (CT A2 156), and mother’s Income and Expense Declaration, stating having spent over $12,000 on attorney’s fees from “loans from parents.” (CT A2 174)
December 4, 2006:
n Office of the District Attorney for the Norfolk District charged two of the three boys who attacked my son with Assault and Battery by means of a Dangerous Weapon, Rape, and Indecent Assault and
n Mr. Staley entered ex parte to cancel the winter visitation, alleging that my recorded conversations with Alex constituted “interrogations” which were ‘abusive’ in nature (RT A 4), that Alex had been visibly traumatized by the “interrogation,” (CT A2 202) and that the psychologist with whom she consulted “also referred to it as ‘abusive,’ and was appalled and frightened when she read it” (CT A2 202-3). The mother never explained why she took the transcripts rather than Alex to see the psychologist.
The ex parte motion was denied; the Court concluded that the disclosures constituted neither an ‘interrogation’ nor abuse (RT A 8), and further stated to Mr. Staley that “in the portions that you have pointed out to me, Mr. Overton is actually showing a great deal of understanding and empathy with what went on.” (RT A1 9.)
December 15, 2006: Not knowing the mechanism by which I could convene an Ex Parte Hearing, I followed the indications of the Family Court Facilitators who stated that I could submit a declaration in order to seek a continuance for the December 18, 2006 Hearing.
December 18, 2006: My absentee request for a Continuance was denied. Both the Court as well as Mr. Staley seemed to have overlooked the important fact that the Motions for which I sought to be Continued on October 13, 2006 had in fact denied (RT A1 205) during the same Hearing despite the Continuance being granted (CT 213).
Mr. Staley argued in favor of an Imputation of my Income (RT 205). The mother then knowingly and repeatedly provided the Court with false statements regarding my financial conditions such as “He could make 2-, $3,000 a month at times,” (RT 207) which directly contradicts her subsequent statement regarding my lack of financial contribution to the marriage: “My parents and I supported you and your children from your first marriage for 12 years. . . . Your contributions to our domestic expenses were negligible while we both studied” (CT 372). (Emphasis mine.)
The mother then proceeded to commit perjury by stating that I chose to not continue to work as an adjunct professor in
Jan 5, 2007: I entered the Court ex-parte seeking an emergency change of custody based on the fact that the mother had still denied Alex psychological treatment, which was in violation of California Act regarding Child Abuse and Neglect. The Court replied that the mother was not subject to the California Penal Code and denied my request. (RT 252) The Court also accepted my Motion for a Change of Custody and my Mandated Report of Alex’s sexual abuse and related disclosures (RT 255) (filed on January 9, 2007) (CT A2 216).
On Jan 25, 2007 the Statement of Findings and Order after Hearing for the December 18, 2006 Hearing was filed. (CT 227.) Page 2 of said Statement reads (item 11):
n “…The current custody and visitation orders of May 31, 2006 remain in full force and effect, and are final orders within the meaning of Montenegro v. Diaz.” (CT 229).
Therefore, Item 17 of the July 31, 2006 Orders (CT 203) pertaining to a “change of circumstances” should the mother interfere with my contact and relationship with the children became part of Final Orders.
February 8, 2007 I sought Ex Parte relief (before newly appointed Judge Browder Willis III), in the form of expedited Family Court Services Mediation. (RT 350.) Relief was granted. The following arguments were made before the Court:
n Mr. Staley argued that Final Orders on Custody and Visitation were made on December 18, 2006 (RT 350) and that the Court had reserved jurisdiction on the issue of child support and retroactivity. (RT 357.)
n Mr. Staley agrees that the Court’s calculation of child support on October 13, 2006 based on my student loan income was inappropriate. (RT 369.)
n I argued that the Motion for Change of Custody initiated in July of 2006 was denied on October 13, 2006 – despite the granting of a Continuance for the same – therefore the only Motion Continued from October 13, 2006 and properly before the Court on December 18, 2006 was child support. (RT 351 and RT 360)
March 6, 2007: the Court heard my Motion for Change of Custody and Child Support and my Motion to Vacate the Imputation of Income/Child Support Order of December 18, 2006. The Court Reserved Jurisdiction over issues of the Division of Community Debt and Spousal Support (RT 400). The Court acknowledged documents Lodged as well as a copy of the mother’s bank statements from 2004 and 2005, with declarations (RT 401-2) as well as the transcripts of Alex’s disclosures. (RT 413) The Court stated that the principle issue was the “substantial or significant change of circumstances that would warrant a change in the custody order which is a permanent order” (RT 403).
In support of that effort I made the following arguments:
n The mother had continued to deny Alex psychological treatment (RT 405).
n The Court accepted my representation of my academic and work-related experience and credentials in the area of clinical and forensic psychology in the diagnosis and treatment of victims of child sexual abuse in my recommendation for therapy for Alex. (RT 405-7)
n I recounted the history of the mother’s interference in my relationship and visitation with the children (RT 410, RT 412, RT 413). I also reported to the Court the manner in which the mother had interfered with the webcam visitations by not allowing my son Alex to report to me the issues of his assault, canceling visitations, scheduling visitations with the grandparents immediately before mine (RT 447), playing the television in the same room as the webcam, and recently making a unilateral decision to reduce the webcam visitations from 1 hour that had been the status quo to 30 minutes. RT (420-22)
n The Court recognized that the mother had denied Alex the right to a father in her refusal to notify me and include me in the events resulting from Alex’s assault. (RT 414) Also, I informed the Court that the mother never provided me with an explanation or an apology for what had happened to Alex on her watch (RT 423).
n I referred to the “change of circumstances” stipulation in the Final Orders (Item 17 found on CT 203) regarding further interferences by the mother; however the Court, failed to identify that stipulation as part of the Final Orders (RT 412).
n I pointed out that as multicultural, multiethnic and bilingual children Alex and Julia have additional needs – identified in Minors’ Counsel’s Statement – in maintaining continuous and frequent contact with me as the only parent capable of truly fostering their development in this regard (RT 416-7), and that the mother had done nothing to foster their multicultural identity. (RT 425).
n I reiterated the mother’s perjury before the Court on December 18, 2006 that occasioned the imputation of my income. (RT 455-59.)
n The Court had illegally, but without prejudice, used my student loans on October 13, 2006 as income for child support, yet had subsequently refused to retroactively readjust my child support arrearages. (RT 455-6.)
n The Court had refused to consider all sources of the mother’s by refusing to address the issue of the mother’s bank account statements and her capacity to currently retain legal counsel beyond her stated financial means. (RT 447-8)
n I declared that since my move to
n I also argued that the Court had, according to In the Marriage of Riddle, abused its discretion by imputing my income on December 18, 2006.
Mr. Staley, the mother’s attorney argued:
n That the May 31, 2006 orders were “Final Orders” (RT 431-2) and that on December 18, 2006 we get the “magic words” making them into final orders to remain intact with the exception of reducing the webcam visitation to no longer than 30 minutes. (RT 436).
n That despite the mother’s arguments against “having this child in psychotherapy” she has acquiesced to the Family Court Mediator’s recommendation and made an appointment with an individual on the Boston DA’s referral list. (RT 433)
n That I had not met the threshold requirement for a request for financial relief (RT 443.) and that I should be required to pay for a vocational evaluation at my expense. (RT 444.)
The Court concluded the following:
n That the present “bad circumstances” were “the same circumstances” and did not qualify as a “change of circumstances” necessary to modify the Final Orders of May 31, 2006. (RT 464)
n That “in order to make that change,” there has to be “a finding of or change of circumstances, a substantial change of circumstances from the moment the order was made to this particular date” (RT 463-4).
n That there was no excuse for the mother to not have informed me “of what happened to Alex the very moment it happened, the first reasonable moment after it happened,” and that it was “a basic human decency” that the mother should have afforded me. (RT 464).
n The Court stated: “I love your devotion, Sir. Your willingness to stand up and battle constantly for what is right relate to your son and daughter. You are a father of immense pride and love for your children. That is clear to me.” (RT 465)
n Authorized recording and preserving of communications between the mother and me, including but not limited to phone conversations; to call to speak to the children within reasonable hours – until 7:30 PM, and ordered the mother to “make that effort to contact the father” and inform me of events in the children’s lives (RT 466)
n Ordered the mother to establish contact with me on a regular basis informing me of the children progress and events in their lives: “Make that effort to contact the Father and say, hey, Alex made 100 on a test today. That’s human decency.” (RT 466)
n Informed the mother: “If you frustrate the public policy under 3020 of promoting continuous and frequent contacts, you are going to end up trying to explain how come that may or may not be a change of circumstances to grant his future requests.” (RT 467)
n The Court ordered a structured Spanish training program where progress reports were to be submitted to me. (RT 477 and 478)
n Ordered up to 5 webcam visitations of 30 minutes each per week. (RT 467-8)
n Concluded that there was no “interrogation” of my son Alex (pertaining to the recorded and transcribed transcripts) just “a father inquiring of his son” (RT 415) and “nothing more than the father making a rightful inquiry into an event in his son’s life” (RT 416).
n Reserved jurisdiction on the issue of child support arrearages (RT 475) yet my request for “financial relief” was denied.
May 22, 2007:
I filed a detailed Declaration, with copies of supporting emails, re the mother’s continued delay of psychological treatment for Alex and refuting her accusation of my responsibility for “alienating” the therapists. (CT2[8] 688)
May 29, 2007 Hearing:
n The issues before the Court were my alleged “change of circumstances” due to Alex’s continued lack of therapy, and the mother’s failure to provide stipulated “bilingual education” and multiethnic training (RT 483).
n The Court acknowledged receiving lodged documents consisting of two binders of lodged documents of articles and studies pertaining bilingual children and the rearing of bilingual children and multicultural and/or biracial children.
n The Court expressed its concern over the “compliance or lack thereof on the previous Court order related to the getting Alex in therapy that would lend some insight as to where we need to go” (RT 484).
n I refuted the mother’s accusation that somehow I was responsible for Alex’s lack of therapy or that I had in some way intimidated the therapists (RT 485-87) and brought the Court up to speed on the latest developments in regards to a therapeutic program for Alex (RT 487-91).
n The Court restated its position that “there will be no change of circumstances until I get an independent understanding from a therapist” (RT 491) emphasizing that it required a report from a therapist (492). All other issues pertaining to the children’s education, bilingual education, and multicultural education would not be fully addressed until the Court had obtained “a determination, as to the trauma aspect” of Alex’s situation. (RT 493.) The mother asked whether the determination of trauma might affect her custody, to which the Court responded with “I refuse to go down that road until I have a determination by a therapist.” (RT 494).
n The Court, despite Minors’ Counsel’s Statement incorporated into the May 31, 2006 order requiring the mother to pay for Spanish lessons, asked me what my financial contribution to the mother’s efforts pertaining to the children’s bilingual education. (RT 502).
n I presented the Court for the first time evidence and details of my medical status. (RT 502). I also argued before the Court that the children’s bilingual[9] and multiethnic heritage was not something to be subjected to the mother’s financial conditions and that this loss constituted an irredeemable detriment which should count as a “change of circumstances.” The Court replied that “We’re not talking modifications because I’ve already told you that until I get something from a therapist, it’s off the table as far as the modification.” (RT 503) The Court reiterated that the primary consideration with which it was dealing was Alex’s trauma (RT 505) but that the bilingual and multicultural issue would be dealt with (RT 506).
n The Court informed the mother that attending “public school” does not satisfy the children’s needs for multicultural training and reiterated that “it needs to be more than that,” adding that “this is a very difficult issue to resolve, because really, the only person that could provide it in the proper context is probably the father, who is multiracial” (RT 508). (Emphasis mine)
n I stated for the Court that I had suggested to the mother take the children to an African American Church as a means to provide them access to a safe and ethical immersion in African American culture and that the mother had refused to do so – yet did take them to a gay wedding. (RT 510) The Court replied that “Going to an African American setting is a, to me, a wonderful idea” and that the mother should not “just dismiss the idea.” (RT 512). The mother insisted that she preferred taking the children to dance classes in regard to their African American heritage (RT 513).
n Due to financial constraints I requested that the order of payment of the visitations be switched for the coming summer, but the Court refused to make any changes in that respect (RT 515).
June 15, 2007
Ex Parte Hearing; the mother sought to cancel the children’s visitation alleging that I had not fully apprised her of my medical status. Email evidence presented to the Court proved the mother’s allegations to be another iniquitous attempt to block an extended visitation: relief denied. (CT2 756)
July 16, 2007
Declaration filed in support of OSC summarizing mother’s history of interference, and Court’s refusal to act against the mother in defense of Best Interest of the Children. (CT2 757)
July 25, 2007
I filed a declaration demonstrating the children failure in a Spanish language competency exam as well as Court Order evidence that I had communicated with, and agreed to allow Alex to be treated by, the Children’s Charter from Boston.
July 30, 2007: Hearing
n The issue of my cancer and its prognosis was presented; the Court acknowledged my being hooked up to a catheter for the dispensation of chemotherapy. I declared that I was in radiation therapy and requiring to take a medical leave from my doctoral studies. (RT 519-20)
n I was seeking a change in the final orders to make the mother pay for the following summer visitation due to my lack of income and inability to pay for it. (RT 520-522).
n The Court recognized that our last appearance before it took place when the mother sought an Ex Parte to terminate the visitation on the issue of the status of my health. (RT 520)
n I argued that my medical condition of cancer and its related disabilities constituted a significant “change of circumstances,” which in addition to the public policy of frequent and continuous contact merited a change in the payment of visitations costs and child support (RT 525-6); the Court however, denied my request and ordered a vocational evaluation instead (RT 526-7).
n I also reiterated, yet again, my argument that the mother had lied to the Court on December 18,
n The Court also denied my request to alter the schedule of payments for the children’s visitations, despite my reiterating that I never have had the funds to pay for the previous visitations (RT 531).
n Mother’s new Counsel, James P. Clark, stipulated that the since the Order of November 28, 2005 was set aside the default should also be set aside and that a response was now pending as a result. (RT 532). The Court granted that motion and ordered me to enter a Response within 30 days (RT 534) and to include preliminary declaration of disclosure of assets and scheduled assets. (RT 535)
n With respect to the pending issue of Alex’s therapy, Mr. Clark stated that the requirements of the Court pertaining to Alex’s alleged trauma required a forensic evaluation that could cost up to $8,000. (RT 536-41) I reported to the Court my understanding that if the child were physically residing in
n The Court ordered a Case Management Conference/OSC regarding a plan to get Alex into therapy, and the children bilingual and multicultural training programs. (RT 542)
n I informed the Court that the children had recently undergone a Spanish-language competency assessment test and had failed miserably. (RT 546). The Court replied that the children “needed to be in some type of Bilingual training. The recommendation is 5 hours a week” and that “that needs to be the direction we need to head because I do feel that that’s an important part of your relationship with your children.” (RT 546).
January 9, 2008 Ex Parte seeking a Continuance to the January 10, 2008 Hearing
(Judge Wohlfeil presiding) Based on my medical circumstances which necessitated the heavy use of prescribed narcotics for pain management due my surgery, chemotherapy and after-effects of my radiation therapy I sought a Continuance to next day’s hearing. (RT 551-2). Mr. Clark remarked on a discrepancy in the dates presented on the medical notes that were faxed earlier that day; the Court remarked that my appearance had improved since December (RT 553), and that Mr. Clark’s arguments were compelling (RT 557); continuance denied.
January 10, 2008 Hearing
n The Court acknowledged receiving materials I lodged on May 24 and May 25, 2007 respectively, and in reviewing some of the articles contained therein, in particular the article entitled “Ethnic Identity” which appears in the May 24, 2007 volume. (RT 601) It also acknowledged, among others, the documents entitled “…Application to Set Aside Support Order Under FCS
n I filed before the Court a corrected copy of the letter (CT2 915) from my attending oncologist I had presented in Ex-Parte the day before and which had presented a controversy as to the date (RT 604) as well as a copy of the Emergency Room notes for January 4, 2008 (RT 605).
n The Court ordered me to provide a preliminary declaration of disclosure under Family Code Section 2104, serve the mother and file proof of such on or prior to January 15th of 2008. (RT 603)
The Court noted or stated among the following:
n That on July 30, 2007 the Court had directed me to receive a Vocational Evaluation and file a response to the petition and a preliminary declaration of disclosure under Section 2104.
n Its conviction that had acted in bad faith in responding to the discovery request propounded long ago by the petitioner (RT 607) and imposed sanctions by making me solely responsible for the community credit card debt (RT 608).
n That the remaining issues to be resolved in this case were (1) child and (2) spousal support, (3) attorney’s fees and costs, and (4) child support arrearages (RT 608).
n That the mother denies Alex’s need for therapy (RT 609) and that the mother insisted that “she had attempted to establish a relationship with at least three other therapists, each of whom declined to participate and provide therapy after having spoken to Mr. Overton” (RT 610). The mother also denies that she had the resources to enroll the children into a Spanish language instruction other than the one hour a week classes she says the children are enrolled into.
n That the mother had made all reasonable and satisfactory efforts to comply with the Court’s direction that the children be exposed to Spanish language instruction and that if I wanted the children in additional instruction then I would have to pay for them myself before the Court would consider the issue any further. (RT 611).
n It was “struck” by the mother’s statements indicating that my children of my first marriage had neither Spanish language instruction nor multicultural exposure, and that “they never spoke any Spanish at home during the 12 years” they lived with Ms. Dolansky and myself. Discounting my Respondent’s Case Management Conference Statement (CT2 816), and Minors’ Counsels’ Statement “The children are learning Spanish and learning of their multiple cultural legacies when they visit the father”, and giving overriding veracity to the mother’s declaration and her previous statement the “children’s educational experience and exposure up to this point in their lives is sufficiently multicultural and diverse.” (RT 611)
n The Court had misunderstood my CMC statement understood me as stating that I had not served responses to the mother’s interrogatories. The Court also stated that, concluding today’s hearing a short-cause trial would be set to contend with the remaining issues in the Case, namely: (1) child support, (2) spousal support, (3) child support arrearages, and (4) if appropriate attorney’s fees and costs. (RT 613)
n Access to the school psychologist would satisfy the Court in terms of the Alex’s potential need for therapy. (RT 614)
I argued that,
n I had indeed complied with the discoveries and that there was a discrepancy in the syntax of my statements which were intended to mean that I had not provided the mother with my own list of questions (discoveries) not that I had failed to provide her with her responses to her own. (RT 615-618)
n The previous order of the Court was that the children have 5 hours a week in Spanish language instruction and extra-curricular multicultural education. (RT 622-3). The Court replied that the mother lacked resources and therefore she had adequately complied with the Court’s requirements. (RT 622) The Court dismissed my claims regarding the bilingualism of my daughter Julia prior to leaving for
n The mother’s true financial resources greatly exceeded, and continued to greatly exceed her declared income for many years, as evidenced by her mounting legal expenditures and her bank account statements prior to the litigation (RT 626).
n The Court had on October 13, 2006 imputed my student loans as the basis for child support calculation which was illegal according to Rocha vs Rocha, and that the Court refused to recognize the mother’s perjury leading to the imputation of my income on December 18, 2006. (RT 627-8). The Court replied that all child support arrearages would be enforced. (RT 628). The Court was in error in concluding that I had not responded in full to the mother’s request for responses to the discoveries. (RT 630). The Court then relied exclusively on Mr. Clarks’ representation as to the deficiencies of my responses. (RT 630-3). I objected by informing the Court that I had indeed made corrections in compliance with Mr. Clark’s objections to my previous responses but was overruled (RT 632).
n I had provided ample evidence in terms of my medical history and resulting physical and mental incapacity to dedicate more time and effort to the complying with Mr. Clark’s requirements regarding what the mother knew to be my non-existent financial history, or to make public use of family court facilitators to assist me in the Case. (RT 634-5).
The Court ruled all of its tentative findings as final (RT 635) then proceeded to state that my pending OSC would be heard on the same date as the Short Cause Trial which would be limited to the following issues: (1) permanent child support; (2) permanent spousal support – if any; (3) child support arrearages; and attorney’s fees and costs – if any. (RT 637)
Jan 11, 2008
Respondent filed OSC and Declaration for Finding of Fraud/Forgery in 2005 MSA, MSA not “self-same” document, Intentional Infliction of Emotional Duress, and Bad Faith Litigation (CT2 916-919).
Jan 25, 2008
Respondent filed OSC with 18 motions reflecting principle issues in its abuse of discretion the Court had failed to address (CT2 944).
Feb 14, 2008
Petitioner filed “Vexatious Litigant” OSC.
Ex-Parte Hearing of March 28, 2008
Petitioner sought temporary custody over passports because I was too sick to cross the border and have the necessary paperwork notarized as a joint-custodian. (RT A2[10] 51) Ex-Parte relief was granted.
April 23, 2008
Filed OSC re Motion for Impeachment of Plaintiff’s Credibility (CT2 1062) and Responsive Declaration to mother’s Vexatious Litigant OSC. (CT2 1072)
April 24, 2008
I filed a Motion for Disqualification for Cause of Judge Wohlfeil pursuant to C.C.P. Sec. 170.3 subd. (c)which cites Code of Civil Procedure 170.1 (CT2 1090). Not being sure if my declaration was sufficient in its format and needing a precise Judicial form to accompany it, I filed it together with the closest form available: the “Peremptory Challenge” form CT2 1110. This form was marked as received on April 24, 2008, yet it, together with the accompanying Motion for Disqualification was filed by the Court on April 28, 2008.
April 28, 2008: my “Peremptory Challenge” form was marked “Denied” but the Court failed to strike the Declaration for Judicial Disqualification from the Record and also failed to file an answer to the Challenge.
April 30, 2008
Mother files income and expense declaration in which she admits to having spent/owed over $65,000 in current attorney’s fees between July 2007 and April 30, 2008 (10 months) as a “loan from parents” (CT2 1122).
May 2, 2008, Short Cause Trial
The Court outlines the following issues from the Petitioner’s perspective as being before the Court: (1) Child Support, including a “sub-issue” involving the cost of travel expenses to and from
The Court also outlined a series of Motions of mine before it (RAT V1, 8) all of which it denied.
The Court acknowledged or concluded the following:
n Making visitation and child support be interdependent “may effectively reduce, if not eliminate, father’s visitation with the kids.” (RAT, V1, p. 6).
n Accepts as credible “Petitioner’s representation that with current counsel she’s incurred or paid somewhere in the neighborhood of $70,000” and “that she has also incurred or paid a substantial amount of attorney’s fees and costs with former counsel.” (RAT, V1 p. 7).
n The Court concluded that my motions had been “previously ruled upon, on one, if not multiple, occasions.” (RAT V1, p. 8)
n My income is imputed at minimum wage due to my medical disability, but not applied retroactively to when I first provided proof of cancer. The Court made medical claims regarding my health based on its visual observation (RAT, V1, p. 21).
July 18, 2008
Mother’s Ex Parte Hearing (RAT V5, p. 118) requesting expedited OSC for Change of Visitation Fees. Despite having just made Final Orders regarding visitation and without a change of circumstances provided or assumed, the Court provided relief.
The Court filed “Judgment on Reserved Issues” in which it alters the December 18, 2006 Final Orders of Custody and Visitation by removing all references to “Item
Jul 28, 2008
Hearing commences with Court addressing me by stating “I may have become your least first Judge” (RAT V6, p. 123). In my Responsive Declaration (CT2 1171) as well as in my verbal argument, I described the mother’s petition as a clear attempt to use financial pressures to block my visitations with the children and stated that her claims for lack of funds were disingenuous because her legal costs for the ex parte and the hearing clearly exceeded the cost of the children’s travel itself. I also reminded the Court that the only reason I have accumulated such child support arrearages is because the Court (a) has refused to consider the mother’s total sources of income, and (b) has refused to take action against the mother’s perjury leading to my imputation of income of December 18, 2006. Despite the fact that I declared that my father paid for the children’s last visitation so I could comply with the Court order re payment of visits, the Court ordered me to pre-pay the mother’s assigned visitations while she was Ordered to repay me in percentage within 30 days.
November 4, 2008
Hearing for mother’s motion to move Case to Massachusetts, despite being in Appeal in California; motion denied was denied, but mother’s iniquitous intent as well as extensive and unnecessary expense was noted in my Responsive Declaration (CT2 1221).
November 5, 2008
Denied were (2) Requests and Order to file an OSC. Mother refused to comply with Court Order filed on August 4, 2008 and reimburse me for visitation costs, claiming lack of funds despite having ample resources for futile motion to move Case out of
November 21, 2008
Request and Order to file an Action for Contempt (as mother continued to refuse to comply with Court Order to reimburse me for visitation costs) was denied. (CT2 1309, 1326)
ARGUMENT
There are three general principles of Law which the Court has chronically failed to apply throughout this Case:
I. EQUAL RIGHTS UNDER THE LAW (14TH AMENDMENT)
II. BEST INTEREST OF THE CHILDREN, AND
III. FREQUENT AND CONTINUOUS CONTACT WITH THE NON-CUSTODIAL PARENT.
A. The Standard of Review. The trial Court abused its discretion in its determining me a Vexatious Litigant, denying my motions for Change of Custody and Visitation, Imputation of the mother’s Income, Setting Aside the Imputation of my Income, its Finding of Bad Faith Litigation, and assigning me full responsibility over the Community Debt, in addition to its Order to make me pay for part of the mother’s visitation costs.
B. No evidence to support its Findings and Orders. From the very beginning the Court has refused to make a finding that would negatively impact the mother’s claim to custody or financial advancement – both to the children’s and my detriment. It refused to vacate the 2005 MSA in a timely manner that would not jeopardize me, only to avoid making a finding on the issue of fraud. It granted me a Continuance, only to immediately deny the very motions continued. It categorical refused to apply “Item
On the financial side, the Court has refused to apply “income from whatever source derived” ignoring the established, ongoing, and anticipated “largess of her parents” even though Minors’ Counsel recognized this reality and based his recommendations on said income.
The Court’s refusal to apply any form of legal consequences to the mother iniquity, even having references to her “perjury” stricken from the record, has made perjury a winning tactic for her.
This has had dire consequences for both me and the children. By refusing to acknowledge the mother’s full financial resources the Court has allowed the mother to “have her cake and eat it”: she can reap the legal benefits of a top-notched lawyer, but still making the “I can’t afford it” argument at her convenience, charging me with an unfair – and illicitly gained – child support obligation yet not fulfilling her responsibilities with the children’s development according to Minors’ Counsel’s Statement, not to mention avoiding the incriminating implications a psychological evaluation for the Court would have had by confirming Alex’s own allegations that his sexual abuse (and therefore the mother’s negligent supervision) had been recurrent issue and not a one-time event.
Minors’ Counsel’s support of the Move Away had not been unconditional, but rather established certain stipulations or “circumstances” critical to their development: bilingualism in Spanish, multicultural identity development, and frequent and continued access to their father. This issue is critical and can best be addressed as follows: given the emphasis Minor’s Counsel placed upon these stipulations, would he have supported the mother in moving the children to Boston had he known a priori what the Case has continuously demonstrated: her complete lack of support of any aspect of their multiethnic legacies together with her continued and unrelenting interference with their relationship with their father? The answer is an unequivocal “No!”
It could be argued that had it not been for the mother’s legal expenditures she would have been able to comply with Minors’ Counsel’s stipulations for the children’s development. However, this would be a “carriage before the horse” interpretation of the Case: the litigation begins with the contesting of an illegal 2005 MSA, and hinges on an attempt to get the Court to require the mother to provide psychological treatment for Alex, effective Spanish language training and multi-ethnic education to both children, while staving off the mother’s repeated attacks on my visitations.
The Court has been the mother’s accomplice in this regard, imposing a blatantly biased and inequitable double standard under the law reminiscent of Scott v. Sandford (1857). The Court not has only denied my legal rights, i.e., in its continued refusal to apply Item 17 of the Final Orders, but also my human and civil rights, refusing to even recognize cancer as a valid change of circumstances to alter my (illicitly) imputed income and vary the visitation payment schedule, or refusing to recognize the deliberately harassing tactics of the mother’s attorney to demand responses to discoveries and interrogatories regarding my past finances which the mother even acknowledged was “negligible” in the first place – and this while I was undergoing a life-and-death struggle involving chemotherapy, radiation, and multiple surgeries.
By granting her request to designate me a Vexatious Litigant, the Court simply endorsed the mother’s denial of the children’s multicultural heritage, her repeated rejection of cooperative parenting, her prevention of Alex’s psychological treatment, and her continuous interference with the children’s relationship with me.
By allowing the mother to benefit from her perjury and imputing my income, then refusing to apply the law to deprive her of her iniquitous gains, together with its categorical failure to recognize as her ‘extra’ income, the Court has also colluded with the mother to progressively reduce my visitation time to zero: completely violating the public policy of frequent and continuous contact and facilitating the mother in her strategy of complete eradication of my presence in the children’s lives.
In essence, the Court has failed to interpret and apply the laws and orders in an objective and impartial manner; instead it has acted upon its own prejudices, selectively applying the law to enforce its own agenda. These judgments must be reversed.
CONCLUSION
To the extent that the Appellate Court finds that a Court should take action against perjury, forgery, and fraud, and that rape, sexual abuse, denial of linguistic and ethnic heritage, refusal to provide psychological treatment, loss of contact with a non-custodial parent, etc., constituting a “change of circumstances,” and not in the Best Interest of the Children, I respectfully request the Appellate Court reverse the trial court’s decisions, and grant the following:
1. Vacate the Vexatious Litigant designation
2. Vacate the December 18, 2006 and October 13, 2006 Imputations of my Income, and consequent child support arrearages
3. Grant me primary custody over the children of the marriage.
4. Impose a monetary sanction against the mother for the Intentional Infliction of Emotional Distress, she has widely manifested throughout the litigation and which no doubt has been injurious to my health.
Respectfully submitted,
By ________________
James A. G. Overton
DATED:
CERTIFICATE OF COMPLIANCE
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief contains 13,976 words, including footnotes. In making this certification, I have relied on the word count of the computer program used to prepare the brief.
By _______________________
[1] “CT2” refers to Clerks’ Transcripts for Appeal D0 53821.
[2] “RAT” means Reporter’s Augmented Appeal Transcript
[3] “CT AG 1
[4] Refers to Clerk’s Transcript Augment 2 – yellow binder.
[5] Lodged Bound Documents Filed on April 23, 2008, (LBD 1) page 75
[6] CT A2 refers to Clerk’s Transcript, Augment 2.
[7] CT A2 refers to Clerk’s Transcript Augment 2.
[8] CT2 refers to “Clerk’s Transcripts for DO
[9] There is a typo in the Reporters Transcript on page 503, line 13: the sentence that reads “I only communicated with her in English as did my fiancée” should read “I only communicated with her in SPANISH as did my fiancée.”
[10] RT A2 refers to “Reporter’s Transcript, Appeal D053821”.
No comments:
Post a Comment