IN THE ARIZONA COURT OF APPEALSDIVISION ONE

Re: In the marriage of

Patrick Kelledy, M.D.,

Appellee,

vs.

Kimberly Tara Cockerham,

Appellant.

1 CA-CV 09-0093

Maricopa County Superior CourtCase # DR1999-014483

Trial Judge: The Honorable Carey Snyder Hyatt

APPELLANT’S REPLY BRIEF 1CA-CV09-0333

Appellant, Kimberly Tara Cockerham6714 N 14th St

Phoenix, AZ 85014

OPENING STATEMENT

Appellant, Kimberly Tara Cockerham (hereafter referred to as

Mother), begs this Court to consider the fact that she is representing herself

and doing her best to follow the rules of an appeal. She asks the Court for

some latitude. Mother is currently on public assistance due to health

problems brought on by the overwhelming stress of ten (10) years of

constant attrition from Appellee, Patrick Kelledy (hereafter referred to as

Father), keeping this case before the Court. Among other health issues,

Mother suffers from panic attacks and Social Anxiety Disorder and therefore

cannot adequately express herself verbally in Court. Well aware of

Mother’s inability to publicly speak-up for herself, Father and his attorney

always ask for oral arguments. Additionally, even though Judge Hyatt was

informed of these issues by Mother’s therapist, she never made any attempt

to accommodated Mother regarding the disabilities which is in violation of

The Americans with Disabilities Act (ADA).

Father on the other hand, is a very successful anesthesiologist of more

than adequate financial means who is determined to keep Mother, and

anyone who knows her, away from her children at any cost. He has multiple

lawyers and investigators, all who continuously dig and probe trying to find

anything to use against Mother and everyone who associates with her. More

than ten (10) years of relentlessly searching has resulted in nothing. Yes,

there have been many allegations, but nothing substantiated. Even when

Father has had “proof,” Mother had evidence and witness statements

showing how Father manipulated evidence, twisted the facts, or outright

fabricated allegations against Mother. Much of Mother’s evidence,

however, has not made it to court. Due to her lack of legal knowledge,

inability to speak-up for herself, and panic attacks in court, Father’s lawyer

has been able to have most of Mother’s evidence thrown out before being

seen. Additionally, since Mother has had to represent herself, there have

been many times Father has gone to court without Mother knowing court

had been scheduled or that Father had filed a motion against her.

FACTS OF THE CASE

In his reply, Father says that the Court did not abuse its discretion.

Mother claims that Judge Hyatt’s court repeatedly, consistently, and

intentionally abuses its discretion in regards to this case. This is well

documented in Mother’s two (2) Opening Briefs. Furthermore, Judge

Hyatt’s history of partiality, courtroom misconduct, and inability to control

her temper is well documented and extends far beyond this one case. She’s

been reprimanded more than once by the Arizona Commission on Judicial

Conduct. (EXHIBIT A)

Notwithstanding the fact that Mother was yelled at and verbally abuse

by Judge Hyatt in court, there are also many other documented irregularities.

Mother claims that this case supersedes the impartiality of the judiciary and

the animosity that Judge Hyatt has against Mother is too great to ever be

repaired and therefore Mother is unable to get a fair judgment from Judge

Hyatt.

On 7 October 2008, when Father requested an order be issued for Mr.

Bennett not to drive the children, Judge Hyatt agree, considering her prior

knowledge of Mr. Bennett’s medical records and the medication he was

taking at that time all of which was made available to her during the trial of

Bennett v. Bennett. When considering Father’s request for the restriction

against Mr. Bennett, Judge Hyatt was relaying on prior knowledge of marital

problems between Mr. Bennett and Ms. Bennett, a case in which she was

judge. Not only is this cause for her to have dismissed herself from this

case, Judge Hyatt did not follow the law regarding ex-parte proceedings.

Since October 2008, in almost every ruling for this case, Judge Hyatt

has included rulings against Mr. Bennett. Not once has Mr. Bennett been

notified of an impending hearing. Not once has he been notified of the

allegations against him. Not once has he been allowed to speak or present

evidence on his own behalf. Not once has he been notified that legal

judgment was ordered against him, as required by law for the judge to do as

soon as possible. Until October 2008, Mr. Bennett had nothing to do with

this case.

In fact, Mr. Bennett is only involved at present in this case because

Father keeps asking Judge Hyatt to issue orders against him. This is a well

used strategy of Father’s, however. The name of anyone in Mother’s life

who is friendly toward her, who could help her, or lend her moral support

starts showing up in Father’s complaints. Exaggerated, and sometimes

outright false, accusations get made and their name gets dragged through the

mud. Obviously, Father is exploiting the situation because he found out

there has been previous conflict between Mr. Bennett and Judge Hyatt.

In 2007 to 2008, Mr. Bennett had a case before Judge Hyatt Maricopa

County Superior Court, case number FC 2007-053086. Mr. Bennett’s case

was separate and independent from Mother and Father’s case and makes no

mention to either of them.  Mr. Bennett was not happy with Judge Hyatt’s

behavior or her ethical conduct.  He initiated an investigation with the

Arizona Commission on Judicial Conduct against Judge Hyatt, requested a

change of judge, and appealed the case. 

RULE 1.2. Promoting Confidence in the Judiciary A judge shall act at all times in a manner that promotes public

confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Comment 1. Public confidence in the judiciary is eroded by improper conduct and

conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge.

5. Actual improprieties include violations of law, court rules, or provisions of this code.

The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge. An appearance of impropriety does not exist merely because a judge has previously rendered a decision on a similar issue, has a general opinion about a legal matter that relates to the case before him or her, or may have personal views that are not in harmony with the views or objectives of either party. A judge’s personal and family circumstances are generally not appropriate considerations on which to presume an appearance of impropriety.

RULE 2.2. Impartiality and Fairness A judge shall uphold and apply the law, and shall perform all duties of

judicial office fairly and impartially.

Comment 1. To ensure impartiality and fairness to all parties, a judge must be

objective and open-minded. 2. Although each judge comes to the bench with a unique background

and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.

3. A good faith error of fact or law does not violate this rule. However, a pattern of legal error or an intentional disregard of the law may constitute misconduct.

RULE 2.11. Disqualification (A) A judge shall disqualify himself or herself in any proceeding in

which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

Comment1. Under this rule, a judge is disqualified whenever the judge’s

impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (5) apply.

5. A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.

Judge Hyatt never disclosed or made a statement for the record any

possible reason for disqualification, as required. Mother had filed a Change

of Judge for Cause Motion stating all the allege misconduct in the case and

not only did Judge Hyatt have prior knowledge and have access to public

and private records in Mr. Bennett’s case, she was also his judge. The rules

are very clear. “A judge is disqualified whenever the judge’s impartiality

might reasonably be questioned.” If not, then surely the judiciary should

remove that judge.

On 7 April 2009, Mother was violently ill and made sure the Court was

notified in advance of the hearing scheduled for that day. The Court is well

aware that Mother is also disabled but continued in ex-parte which is

another clear abuse of discretion. An “Act of God” has been recognized by

all state and federal courts as a valid reason to delay proceeding. Even when

court cannot be delayed, by law, the Judge is obligated to withhold judgment

until the missing party has an opportunity to present argument. Judge Hyatt

apparently did not feel obligated to follow the law.

In CV 08-0281 Seidman v. Seidman, the Arizona Court of Appeals

concluded that someone who failed to appear due to medical reasons should

at least have the opportunity for an evidentiary hearing before any sanctions

are ruled on by the Court. The Arizona Court of Appeals wrote,

“Here, the record does not indicate that the Family Court ‘thoroughly considered other, less severe, sanctions before resorting to the most extreme.’ Montgomery Ward & Co., 176 Ariz. at 622, 863 P.2d at 914. Without express findings from the court that it thoroughly considered whether less severe sanctions would suffice, we cannot conclude that Wife was afforded due process.” … “For the foregoing reasons we reverse the trial court’s entry of default as a sanction against wife for her failure to appear for her deposition, and remand for further proceedings.”

A.R.S. § 25-406. Investigations and ReportsA. In contested custody proceedings, and in other custody proceedings

if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by the court social service agency, the staff of the juvenile court, the local probation or welfare department, or a private person. The report must include a written affirmation by the person completing the report that the person has met the training requirements prescribed in subsection C.

B. If an investigation or report is ordered pursuant to this section or if the court appoints a family court advisor, the court shall allocate cost based on the financial circumstances of both parties.

IT IS FURTHER ORDERED affirming the appointment and involvement of the Parenting Coordinator, Annette Burns, however, all fees for future appointments and reports will be shared equally by the parties, with both parties directed to comply with the Parenting Coordinator’s retainer and fee requirements. . ~ Judge Hyatt, 7 April 2009.

This order is a clear violation of A.R.S. § 25-406(B) among others.

The Court knows that Mother is on public assistance while Father is a very

wealthy anesthesiologist making hundreds of thousands a year. The same

Judge previously ordered Father to pay one hundred percent (100%), but

reversed herself after finding Mother is a family friend of Mr. Bennett. This

is also discrimination and violation of Mother’s rights to equality and equal

access to the law as guaranteed by the Fourteenth (14th) Amendment as well

as a violation of the Eighth (8th) Amendment, which states,

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

IT IS ORDERED modifying Mother’s parenting time from alternate weekends to supervised parenting time only by Parenting Skills or similar agency and/or by a supervisor approved by Father, pursuant to a schedule left to Father’s discretion with no overnight access until further Order of the Court or recommendation by the PC. . ~ Judge Hyatt, 7 April 2009.

IT IS FURTHER ORDERED that prior to filing any Petition to Modify these Parenting Time Orders, except in an emergency pursuant to the requirements of A.R.S. § 25-411(A), Mother must:

1) Produce to the Parenting Coordinator a signed, original copy of her current residential lease, including information as to all authorized cohabitants of said premises;

2) Produce to the Parenting Coordinator a progress report from her counselor, Cindy Baysdorfer, regarding the education/tools being provided to Mother on the issue of Co-Parenting;

3) Produce proof of the resolution/dismissal of any and all falsified Injunctions or Orders of Protection involving Father, the children, and Mother’s boyfriend/roommate and/or any members of her household. . ~ Judge Hyatt, 7 April 2009.

Here Judge Hyatt clearly shows that her abuse is not accidental but

calculated. When Mother tried to see her children and contacted Father he

told her to comply with the Court order. When Mother tried to go to the

Court and asked to see her children, she was told to see the PC. Of course,

the PC would not talk to Mother without the $1,500 retainer.

Notwithstanding, these unrealistic orders are an outrageous display of

judicial abuse.

Judge Hyatt’s third (3rd) order even goes so far as to have Mother

force Mr. Bennett to basically, return to court in California, declare all

evidence given was falsified, and remove the Order of Protection he

obtained against Father. Mother’s penalty for not giving in to Judge Hyatt’s

dressed-up blackmail? Until Mother can force a third party to commit

perjury and do Judge Hyatt’s bidding, she is not allowed to see her children

and has not been permitted contact with her children since February 2009.

On or about January 2009, Mother posted on You-Tube, an audio

recording of a threatening message left by Father on her voicemail.  In her

report on or about 6 February 2009, the PC instructed Mother “…not to

make any further audio or videotapes or any written documentation about

these legal proceedings public in any fashion…violations will be

punished…”

IT IS ORDERED adopting and approving the recommendations set forth in the Parenting Coordinator’s report dated 28 January 2009 and 6 February 2009. ~ Judge Hyatt, 10 February 2009.

It is clear the PC abused her power by recommending this order. In

addition, the Court not only abused its discretion by adopting the

recommendation, but also violated Mother’s First (1st) Amendment rights,

which state,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” 

Father’s Answering Brief is full of exaggerations, omissions, and

inaccuracies. For example, on page 31, Father claimed not to know about

any Order of Protection (OOP) except for the OOP Mother obtained against

Father. In Father’s Motion to Dismiss submitted to this Court 22 May 2009,

page 5, Father knew exactly what OOP Mother refers to and he dealt with it

in length. He even admitted that Mr. Bennett was never served.

Regarding the incident at the boys’ school, pages 18 and 19 in Father’s

Reply: The facts show Mother and Mr. Bennett where not together that

night and Mother had no prior knowledge of the incident and only found out

later when the police told her. (EXHIBIT B, Police Report) The only

conversation regarding the incident that Mother had with the PC was by

phone a few days later. Mother told the PC that she had a brief casual phone

conversation with Mr. Bennett. Any claim Mother “signaled” Mr. Bennett is

supposition and completely false. Also, claims that Mr. Bennett “fled the

scene” are false and contradicted by the Police Report. (EXHIBIT B)

In fact, Father’s argument here contradicts itself. If Mother and Mr.

Bennett were together that evening, why would Mother need to call to

“signal” him?

Claims that Mr. Bennett only had “paperwork” and did not have an

OOP against Father are false and ignore the evidence that can be verified by

contacting The Superior Court, Joshua Tree District of San Bernardino

County, State of California, 6527 White Feather Road, Joshua Tree,

California 92252, 760-366-5770, Case Number CIV 900008. In fact, when

the police told Mother what had happened, the officer said Mr. Bennett’s

OOP was recent and the court in California probably had not had time to

input it in the National Database. The officer also advised Mr. Bennett to

follow-up with the detective to pursue criminal charges against Father.

Furthermore, the officer informed Mother that her OOP against Father

was in the database and asked if she wanted an incident report for Father

violating it by coming to the school during her custodial time. Mother

explained Judge Hyatt had overturned her OOP, but the officer said they had

no proof of that and were obligated to enforce the OOP. Mother said her

children were there and asked that Father not be reprimanded, especially

since he had not tried to approach her.

Father’s allegations in this matter are supposition and not supported by

evidence. Mother maintains the Court abused its discretion when it

considered the school incident from 20 February 2009, solely on Father’s

word, especially when all evidence supports Mother.

Father argues Mother has no right to appeal since she did not object to

the PC’s report within ten (10) days. To begin with, Mother was still

waiting for the PC to meet with her and the children regarding the incident

as ordered by Judge Hyatt 25 February 2009. More importantly, however,

Mother is specifically appealing orders handed down by Judge Hyatt. The

PC makes recommendations. The judge decides to what extent, if at all, the

recommendations will be ordered into action.

Father claims this appeal should be denied because Mother did not

object to the PC report is absurd. In fact, Father is asking this Court to

uphold major misconducts, errors in state law, and violations of

Constitutional law on a technicality that may or may not have happened,

depending on interpretation. Of course his request should be rejected.

Father claims that the 10 February 2009 hearing was not “a final

judgment” and therefore also be dismissed. The visitation judgment was the

final judgment, at least until the children’s summer break. On the same

token, Father can argue that all visitations are not final until the children turn

eighteen (18), and therefore all appeals, should be dismissed. To Mother,

however, who has not been allowed contact with her children for almost a

year now, the order seems very final. In addition, the orders issued 10

February 2009, supported by the orders issued 7 April 2009, do constitute a

final judgment. The facts show that Judge Hyatt and Father have made it

impossible for Mother to see her children or exercise her Constitutional

rights as a parent.

Furthermore, Father neglected to mention that two (2) issues were

absolutely final during the hearing on 10 February 2009. The prohibition for

Mother to post any part of this proceeding on the internet and the

“injunction” regarding Mr. Bennett. Judge Hyatt ordered Mother to follow

the “injunction in place” against Mr. Bennett, referring to an OOP Father

requested against Mr. Bennett. Since it was never served, according to

Arizona law, it is not enforceable and therefore there is not now nor has

there ever been an injunction against Mr. Bennett. How can Mother follow

something not in existence? (EXHIBIT C)

On Page 39 of the reply, Father claims Mother never objected to

Judge Hyatt. Most of Judge Hyatt’s rulings that are being objected against

are from the hearing on 7 April 2009. As previously stated, Mother was not

present in and therefore could not object in court.

Also on page 39, Father claims Mother is objecting to the appointment

of the PC. Mother wants to reassure Father that she was not objecting to the

appointment of the PC but rather to the allocating of funding of the PC.

A.R.S. § 25-406(B) …” the court shall allocate cost based on the financial

circumstances of both parties.”

Regarding allegations about the ruling from 7 April 2009, pages two

(2) and three (3) of the Minute Entries, Mother will respond to the numbers

listed.

1. Mother did provide the PC with her lease and addendum and had

done so in January 2009. (See Mother’s Opening Brief and EXHIBIT D.)

2. Not supported by any evidence. Even though this order is not legal,

the children were never with Mr. Bennett after Judge Hyatt’s order and

Father has not and cannot prove otherwise.

3. Not supported by any evidence. Mother always insists on the use

of seatbelts and Father has not and cannot prove otherwise.

4. Not supported by any evidence. The Police Report contradicts this

statement. Father and the PC had the police report also. Mother had nothing

whatsoever to do with the incident and Father has not and cannot prove

otherwise.

5. Not supported by any evidence. Mother left the school with the

children when and how the police instructed her. She did her utmost to

address the children’s concerns and let them call their Father. The PC failed

to interview the children as the Court order, which could have corroborated

this fact.

6. Not supported by any evidence. Mother provided the school

officials with a copy of her OOP when it was valid. Nothing else was

delivered. Also refer to page nine (9) and ten (10) of this response.

7. Mother asked Cindy Baysdorfer to deliver a copy to the court.

Also refer to Mother’s Opening Brief where Ms. Baysdorfer reported to her

that it was highly unusual for the request to come from Mother and not

directly from the Court.

CONCLUTION

In the conclusion of Father’s reply to Mother’s Opening Briefs, he

asked the Court to rule that all relief requested by Mother be denied. In

effect, Father is requesting this Court to legitimize that parents have no right

to see, visit, or talk on the phone with their children. This unprecedented

request obviously should be denied. The Fourteenth (14th) Amendment to

the US Constitution already establish that even parents in prison, on

probation or on death row has the right to see and visit their children.

A.R.S. § 25-402(4) also guarantees parenting time, and the right to see and

be in contact with the children.

The Fourteenth (14th) Amendment begins, “1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Mother claims that a parent’s right to see and be involved in his or her

child’s upbringing is guaranteed by the Fourteenth (14th) Amendment and

this right has been reinforced in a variety of court cases. Consider Meyer v.

Nebraska, Pierce v. Society of Sisters, and Santosky v. Kramer, in which the

Supreme Court acknowledged that "freedom of personal choice in matters of

family life is a fundamental liberty" and stated that natural parents have a

"fundamental liberty interest...in the care, custody, and management of their

child." Similarly, in Bowen v. American Hospital Ass'n, the Supreme Court

recognized "a presumption...that parents are the appropriate decision maker

for their infants."

The sanctity of the parent/child relationship is protected by the

Fourteenth (14th) Amendment. Scientific studies have shown, and many

higher courts have upheld, that no parent, even hardened, incarcerated

parents, can be forcibly removed from the lives of their children. Adequate

and appropriate contact must be maintained. Moreover, the primary

custodial parent, in order to maintain primary custody, must foster the

relationship between the children and the other parent and must be able to

demonstrate (i.e. prove) how this is being done.

Of course, Father’s actions are proof enough that he is in no way

fostering the relationship between Mother and her children. For what reason

does Mother deserve to be separated from her children? She has committed

no crime, does not smoke, drink, do drugs, or even date. Father has tried for

more than ten (10) years to find something to use against her and has come

up empty. He is just mad that she did not die while they were still married.

Mother has asked the Court multiple times to have Father prove how

he fosters the parent/child relationship between the children and their

Mother. Father has never had to do this, however, because he uses the

strategy that serves him so well. He starts accusing Mother of anything and

everything, and then he submits reams and reams of paper at the Court.

Mother is forced to spend so much time correcting and re-correcting petty

accusations, it is difficult to bring the Court’s focus back to the real issues

and facts at hand. For example, Father and Judge Hyatt insist on referring to

Mr. Bennett as Mother’s “boyfriend.” The truth, however, is that Mr.

Bennett is not now, nor ever has been Mother’s boyfriend. The truth is,

Mother is a friend to all of Mr. Bennett’s family, not just him. Father likes

to keep everyone so busy looking in the other direction, no one has time to

look at him. If there is enough dirt in the air, no one can see from where the

dirt comes.

Therefore, Mother asks this Court to

Reverse all Judge Hyatt’s rulings and order a new judge to continue

with the case

Allow Mother and her children to have reunification therapy

Order Father to reimburse Mother for the cost of this appeal,

according to Rule 21, ARCAP and A.R.S. § 25-324