1998 Court of Appeals Opinion

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NOT DESIGNATED FOR PUBLICATION No. 80,304

IN THE COURT OF APPEALS OF THE STATE OF KANSAS . .\ ,

In the Matter 'of the Marriage of HALLECK RICHARDSON, Appellee,

'..

and

CLAUDINE DOMBROWSKI,Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; JAt"\! VV. LEUENBERGER and JAMES P.BUCHELE, judges. Opinion filed October 23, 1998. Affirmed.

Geary N. Gorup, of Render Kamas, L.e, of Wichita, for appellant.

Donald R. Hoffman, of Hoffman & Hoffman, of Topeka, for appellee.

Before MARQUARDT, P.J., GERNON and KNUDSON, IT.

Per Curiam: Claudine Dombrowski appeals from a divorce decree whichwould require her to move back to the district court's jurisdiction or lose jointcustody of her minor child.

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Dombrowski argues that her constitutional rights were violated by the districtcourt's ruling and by the court's policy to compel settlement of domestic issuesbefore triaL She further contends the district court erred in limiting the number ofwitnesses each side could present at triaL

Dombrowski and Halleck Richardson were married in 1995, and a petition fordivorce was filed 4 months later. At the time of their marriage, their child, RD.,was 11 months old.

Custody and visitation issues were fiercely litigated. At some point,Dombrowski sought and received the district court's approval to move fromTopeka, Kansas, to Great Bend, Kansas. Dombrowski alleged that the move wasnecessary to avoid further abuse from Richardson and to obtain employment. Shealso noted that while there was no statutory duty to obtain leave of the district courtto move from one county in Kansas to another, she sought permission to avoid anyconcerns over the residential custody of RD.

The court awarded Dombrowski temporary placement of the child andordered that Richardson would have the child 1 week out of the month. The courtalso ordered Dombrowski to move back to Topeka with RD. by a certain date orRichardson would assume sole residential custody of the child. The court reserveddetermining shared custody and appointing a residential parent until Dombrowski'srelocation deadline passed.

Dombrowski appeals.

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Dombrowski argues that her constitutional rights were violated by the court'sarbitrary ruling that it was in the best interests of the child for her to return toTopeka, Kansas. She further claims that the unique circumstances of this casedenied her a full and fair opportunity to defend and to present evidence on herbehalf.

Dombrowski did not file a motion for reconsideration or any other type ofpost-judgment relief with the district court.

Dombrowski acknowledges that she failed to properly raise her contentionsbut maintains this case falls within the exceptions to the general rule where thetheories involve only legal questions arising on proven facts and it is necessary toserve the interests of justice or prevent the denial of fundamental rights. See In reM.M.L., 258 Kan. 254,261,900 P.2d 813 (1995).

It is within the trial court's discretion to determine issues concerning childcustody and visitation. In re Marriage of McNeely, 15 Kan. App. 2d 762, 764, 815 P.2d1125, rev. denied 249 Kan. 776 (1991); see In re Marriage of Bradley, 258 Kan. 39, 45,899 P.2d 471 (1995). Discretion is abused when no reasonable person would agreewith the trial court's actions. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 804,897 P.2d 123 (1995).

' ' 'In determining the right of custody of children between parents, theprimary consideration is the best interest and welfare of the children, and all otherissues are subordinate thereto.'" In re Guardianship of Williams, 254 Kan. 814, 819,869 P.2d 661 (1994) (quoting Parish v. Parish, 220 Kan. 131, 132,551 P.2d 792 [1976]).

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"The trial court is in the best position to make the inquiry and determination, andin the absence of abuse of sound judicial discretion, its judgment will no t bedisturbed on appeal." Moran v. Moran, 196 Kan. 380, 386, 411 P.2d 677 (1966).

Here, the district court found the distance between the parents made itvirtually impossible for an individual therapist or counselor to work with thefamily, for Richardson to have regular and frequent contact with the child, and forthe parents to resolve their conflicts. The court noted that i f the long distancevisitation continued, it would take a toll on both the parents and the child. Thecourt concluded that Dombrowski should relocate to Topeka with R.D. because itwas in the child's best interests for her to reside in a location where both parentswould have access to her.

The court further rejected Dombrowski's assertion that her move to WesternKansas was prompted by the closure of the Topeka State HospitaL The courtemphasized that no evidence was presented regarding her effort to findemployment in the Topeka vicinity and took judicial notice of the Topekanewspaper which advertised six to ten nursing positions in the area each weekend.The court concluded that Dombrowski's residence in Western Kansas was notnecessary for her employment.

Dombrowski does not challenge the court's finding regarding her daughter'sbest interests. Even i f Dombrowski disputed the finding, the testimony of theguardian ad litem and the court services officer provides substantial competentevidence to support the court's decision. Consequently, the mere fact that

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Dombrowski must decide whether to move or forfeit some of her rights to custodydoes not establish an abuse of discretion.

Dombrowski next argues the district court violated her constitutional rightsby pressuring her into settlement negotiations the day of trial.

The trial judge held a conference on the day the case was scheduled for trial.An apparent settlement of the issues involving the child was later announced to thecourt. The alleged agreement basically provided for joint custody and requiredDombrowski to move back to Topeka by a certain date or lose residential custody ofthe child. Once she moved to Topeka, each parent would share residential custodyof the child on a week-by-week basis. If she failed to move by: the certain time,Richardson would assume full-time residential custody of the child, subject toreasonable visitation. In the interim, residential custody would alternate weeklybetween the parents. The district court subsequently approved the settlementsubject to the preparation of a journal entry. The next day, Dombrowski denied everagreeing to a settlement, and the oral agreement was never memorialized into awritten journal entry.

We find nothing in the record to support Dombrowski's contention ofcoercion or a prejudice on the part of the trial judge.

The other issue raised by Dombrowski, the denial of a full hearing, would bemore troublesome and perhaps the basis for reversal had not the trial judge stated,late in the hearing: "[E]ven though I limited you initially, I want the record clear,and I hope you all agree, I gave you the opportunity to argue with me to open it up

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so you can submit further evidence." Both counsel agreed that the court allowedthem an opportunity.

In State v. Anderson, 243 Kan. 677, 678, 763 P.2d 597 (1988), our SupremeCourt recognized that W[a] trial judge has the power within proper limits, to imposelimitations upon the number of witnesses, and to control their examination."'

At the time of trial, the parties' attorneys apparently indicated that as many as50 subpoenas would be filed. However, the newly assigned trial court judge decidedto limit the presentation of evidence and informed the parties that he would onlyallow each party to present five witnesses at the divorce trial.

vVhile we agree with the power of the trial court to set limits, as recognized inAnderson, we are also mindful of the language of Justice Lockett, writing in State exreI. Stephan v. O'Keefe, 235 Kan. 1022, 1027, 686 P.2d 171 (1984), in which he stated:

"The constitutional guarantee of providing for open courts andinsuring a civil remedy for injuries to persons and property is astatement of our philosophy and a general rule which can be used tosolve civil conflicts. This right is generally regarded as one of the mostsacred and essential constitutional guarantees. However, the guaranteecreates no new rights but merely is declaratory of our fundamentalprinciples. In light of this guarantee, it is the policy and the obligationof the state to furnish and of the courts to give every litigant his day incourt and a full and ample opportunity to be heard. This right extendsto everyone who may be materially affected by the action of the court ina legal proceeding. The guarantee secures and places every citizenwithin the protection of the law of the land. It insures the right ofevery person protected by it to seek remedy by court action for anyinjuries done to him or his personal property. The guarantee entitles

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the citizen to have justice administered according to the law withoutdenial or delay. A litigant is assured the right to prosecute or defend anaction, provided he prosecutes or defends the action as contemplated bylaw. Since a prisoner can sue or be sued in this state he must beafforded the right to his day in court.liThe right to a day in court means the right to be afforded anopportunity to be heard." ,

The record reveals the court file was replete with information that was bothfavorable and unfavorable to each of the parties. Moreover, the trial court allowedDombrowski's attorney to call an additional witness and gave her severalopportunities to present additional evidence at triaL

Based on the record before us, we find no abuse of discretion in the limits thetrial judge set here.

Affirmed.

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Documents

1998 Court of Appeals Opinion