No.

99-83901

IN THE SUPREME COURT

OF THE STATE OF KANSAS

\ In the Matter of the Marriage of

Halleck Richardson,
Petitioner-Appellee
and
Claudine Dombrowski,
Respondent -Appellant

APPELLANT'S PETITION FOR REVIEW

Appeal from the District Court of Shawnee County, Kansas

Case No. 96D217

Honorable James P. Buchele, Honorable Richard Anderson, Judges

Rebecca A. King #16772

Riling, Burkhead & Nitcher, Chtd.

808 Massachusetts S1. .

Lawrence, KS 66044

(785) 841-4700
Attorney for Appellant
 Table of Contents

Prayer for Review...............................................................................................................1

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

Statement of Facts.............................................................................................................3

Arguments and Authorities ..................................................................................................3

Issue. The best interests of the minor child, and the constitutional rights of both the child

and her mother, demand that a stay or other relief from the orders of the district court

that are the subject of this appeal be issued.

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

In Re Marriage of Burgess, 51 Cal.Rptr.2d 444,913 P.2d 473 1996) ......................................4

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

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

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

Conclusion ........................................................................................................................." 5

 No. 99-83901

IN THE SUPREME COURT

OF THE STATE OF KANSAS

In the Matter of the Marriage of

Halleck Richardson,

Petitioner- Appellee

and

Claudine Dombrowski,

Respondent-Appellant

APPELLANT'S PETITION FOR REVIEW

Prayer for Review

Comes Now the Appellant herein, .Claudine Dombrowski, by and through her

counsel, Rebecca A. King, Attorney at Law, and respectfully requests that this Court

review and reverse the decision of the Court of Appeals denying the petition for writ of
habeas corpus and motion for stay of proceedings pending this appeal that were filed by

Appellant in this case.

Date of Decision

October 7, 1999.
Statement of the Issue

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

On September 24, ] 999, the Court of Appeals, concerned that the issues raised in
appellant's petition for writ of habeas corpus herein were governed by the unpublished
decision of this Court in Case No. 80304 (same caption), ordered the parties to show
cause why Appellant's petition for writ of habeas corpus should not be dismissed.

Appellant's response to the show cause order was filed on September 30, 1999, but, on

October 7, 1999, the Court of Appeals entered an order denying the petition. However,
contrary to the findings of the Court of Appeals, the issues brought before this Court in.
appellant's petition for writ of habeas corpus were not addressed or decided in the earlier
appeal.

On June 28, 1999, the district court entered its Order to Enforce Prior Order;
Order Establishing Supervised Visitation; Order for Hearing on Child Support; Order on

Motion to Change Venue; and Order Amending Prior Decision Regarding Surname. This
appeal, including the petition for writ of habeas corpus filed herein, seeks to challenge

these orders, which had not even been entered when the earlier appeal was decided.
According to the decision in Case No. 80304, appellant argued then that her constitutional

rights were violated by the district court's arbitrary ruling that it was in the best interests of
the child for her to return to Topeka, Kansas. But the Court of Appeals limited its inquiry
to the question of whether the district court abused its discretion or failed to consider the

best interests of the parties' minor child, and did not address the constitutionality of the
district court's orders. Appellant is entitled to have this Court immediately address her
claim that the restraints imposed upon her by the orders entered by the district court on
June 28, 1999, are unconstitutional.

 Arguments and Authorities

Issue. The best interests of the minor child, and the constitutional rights of both the
child and her mother, demand that a stay or other relief from the orders of the
district court that are the subject of this appeal be issued.
In this appeal Appellant challenges the legality and propriety of the June 28, 1999,

orders entered in the district court concerning custody, visitation, and residence of the

parties with their minor child, Rikki Dombrowski. These orders cannot be interpreted by

any reasonable person to be consistent with the best interests of the minor child of the

legal rights of the parties. See Greene v. Greene, 201 Kan. 701, 443 P.2d 1356 (1980).

Appellant has gainful employment in Larned, Kansas, as a licensed practical nurse

that is unavailable to her in any other location due to a foot disability that affects her

strength and mobility. Appellant owns a home in Lamed, Kansas. Rikki is in the midst of

receiving specialized medical care for problems with her ears in Larned, Kansas.

Appellant has been seriously harassed and abused by Appellee, in the past, including being

the victim of an armed assault and battery, that led to the issuance of restraining orders

against Appellee. After Appellant moved from Topeka to Lamed, Kansas, the district

court recognized that the result was a reduction in the physical violence that has

characterized the relationship between the parties. The district court's orders for visitation
visitation require that the Appellee's visits with the minor child occur at and under the

supervisi on of the staff of YMCA Safe Visit location, and Appellant has assumed and lived

up to the responsibility, at her own expense, of traveling from Lamed to Topeka to bring

the minor child to her visitations with Appellee.

Nevertheless, the district court has ordered Appellant and the minor child to move

their residence from Larned back to Topek.a. According to the district court, if Appellant

does not comply with this order, sole residential custody of the minor child will be

awarded to Appellee, a person who is still not allowed to visit the child without

supervision, has failed to make regular child support payments, and has a history of

---------------------~. - - - - - - ..... __
._-- .. - ....~--
alcohol abuse that necessitated an order from the district prohibiting Appellee from

consuming alcohol within 4 hours of or during the visits. The district court compounded
the dangers posed by Appellee to Appellant and the minor child by issuing an additional

order prohibiting Appellant from calling law enforcement for help or protection from

Appellee without first consulting the case manager who was appointed by the district

court to handle visitation and other arrangements. The legality of this order was never

addressed at all by this Court in Case No. 80304.

Appellant has established a residence in Topeka, Kansas, and she has informed the

district court case manager of that fact. Appellant has not yet given up her job and home

in Larned, Kansas, but soon she will have no choice, because her employer will not wait

long, and she cannot afford to maintain two households. Consequently, the denial of

Appellant's request for a stay and/or a writ of habeas corpus renders this appeal moot and

Appellant's right to appeal meaningless because she will have had to either give up her

house, her livelihood and her relatively abuse-free life in Larned, or custody of Rikki.

Nevertheless, the district court has ordered Appellant and the minor child to move their

residence from Larned back to Topeka.

Appellant is entitled to the relief she seeks from the illegal restraint on her liberty

that the orders of the district court impose. Most of the case law relevant to the

determination of the best interests of the child in terms of residence deals with custodial

parents who want to move to another state. Greene v. Greene, 201 Kan. 701, 443 P.2d
1356 (1980). Even in those cases most states attach a favorable presumption to the

desires of the custodial parent. In Re Marriage of Burgess, 51 CaLRptr.2d 444, 913 P.2d

473 (1996) [custodial parent has presumptive right to move child against wishes of other

parent]. Moreover, the appropriate analysis looks at the real advantage to the family unit

.................. __.._. ----------­

 that will r<:!\ult from tho move. Q'!).!,1!lftio v. D'Onofrio. 365 A.2d 27 (N.J. sup.et.Ch.Div

All 1't>I'Sons have a eo"stitutloinai right to freely travel and move their residence

from on" state to another. N to a 1\mlign couf\try, and that right is unfettered except for

limitatkm!; on an ad~lh's right 10 take their child with them, .,ainst the wishes of the othor
.parent. {,:ar)son v C!t1~. 8 Kan.App.2d S64, 661 P.2d 833 (1983). And Appellant doe$
no! seek to' reside with her child in another state or country. only in another city Vilitbin tbe
state of Kanlil!..'; In considering the best interests of w.e child, decisions about residency
. ,

must be lon to the parent who bas physical custody. b01:aust the less intetfetence and
intcrrruption or a child's; environment is generally. better for the child's well.being. See,

LaGrorw by tlrjgger v. k!\QrQ.n~. 238 Kan. 630~ 113 P.2d 474 (1986). Under these

circum"tanccs, an order to m~)Ve buck to To~ infringes on Appellantts conmutional

rights to travel. to bestow the benefits of a safe environtlH'mt on Rikki.
Concluli,gn

For the foregoing reasons. Appellant Pl11Ys that this Court review and reverse the

decision Qfthe Court ()f Appeals and grant the rcliefshe seeks.

R.eapcQtfuUy submitted, .­

R~~~~
Attorney for AppeUant

t~ ortifil)!l\e Qf Service

1 hereby (I.~l1itY that five true .md corre,* copies of the foresoing Petition for

R('vkw w~rc placed III the United Stat~ Mails, postage prepaid, addressed to Don R.

tloRinan, £!sq .. [\Ofl'illlttl and Hoffin.'ln, 112 W. 7th St.. Garden Sujt~. Topeka. KS 6()()03.

{'In lhis 81h d.ty of N~)yember, 1999, .

~~~@
s

, :- ' ,
 CLAUDINE DOMBROWSKI,

Petitioner. ---:-.-,
.,

QRDE~

The petitionerJ's and respondent's responses to this court's order to show

cause are noted. The petition for writ of habeas corpus is denied. The issues raised
in the petition have been addressed and decided by this court in In the Matter of the
Marriage of Halleck Richardson and Claudine Dombrou'ski, Case Number 80,304
(unpublished opinion filed October 23, 1998, ref.'. denied December 22, 1998). The
petitioner's response addresses the merits of the direct appeal in Case Number 99­
83,905. This order does not preclude the petitioner from raising issues that pertain
specifically to the order of June 28, 1999, in the direct appeal; this court will not,
however, reh~ar issues it has already decided.

DATED: October 7, 1999

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

OVID S. KNUDSbN~ Judge