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1998 Brief of Appelle Richardson-Dombrowski Case 96D217
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8/8/2019 1998 Brief of Appelle Richardson-Dombrowski Case 96D217
can be resolved as a matter of law and that their resolution will be determinative of the case. Inview of the standard of review applied by the appellate courts in cases like the one at bar,
Dombrowski's claims must fail.
n. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION EITHER IN ITSMANAGEMENT OF THE CASE OR IN THE FINDINGS AND ORDERS CONTAINED INTHE DIVORCE DECREE
All of Dombrowski's arguments rest on the idea that the trial court abused its discretion insome fashion during the course of events leading up to trial and during the trial itself. The abuse of
discretion standard is discussed at length in the previously cited case In re D.D.P., Jr., as follows:
Judicial discretion is abused when judicial action is arbitrary, fanciful, or
unreasonable, which is another way of saying that discretion is abused only whenno reasonable person would take the view adopted by the trial court. I f reasonablepersons could differ as to the propriety of the action taken by the trial court, then it
cannot be said that the trial court abused its discretion. All judicial discretion mustthus be considered exercise able only within the bounds of reason and justice in thebroader sense, and only to be abused when it plainly overpasses those bounds.
In re D.D.P., Jr., 249 Kan. at 546 citing Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172
(1973) (further citations omitted).
Dombrowski argues that the trial court gave the parties an "Allen charge" when it verbalized
its thoughts regarding the case prior to the original trial date and then afforded the parties an
opportunity to resolve the matter. In essence, Dombrowski urges this Court to find that the trial
court somehow forced her to enter into a settlement agreement and that that act is sufficient to
warrant a finding that her right to a fair hearing was violated. Nothing can be further from the truth
in this case. The parties were given the chance to settle the case-- one last time --without court
• interference. It is undisputed that Dombrowski had the advice and assistance of competent counsel
when she entered into the court's conference room to discuss this case with Richardson and his
counsel. She had every opportunity to refuse to engage in settlement discussions and to demand
that the case be tried right then and there.
The second point somewhat bluntly raised by Dombrowski is that the trial court "arbitrarily
and capriciously limited each party to present only five witnesses, and there after further
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8/8/2019 1998 Brief of Appelle Richardson-Dombrowski Case 96D217
medical records and other evidence upon strict application of the rules of hearsay because the
proper witness was not available." Appellant's Brief, p. 54. The thrust of this argument is again
couched in the broad terms of a perceived fundamental rights violation. Initially, it should be noted
that the trial court's decision to limit witnesses cut both ways. Richardson was every bit as
hampered by the court's decision to place limits on the volume of evidence to be presented as
Dombrowski. Secondly, it is clear that by the time this matter came up for trial that the court flle
was over-flowing with information that was both favorable and unfavorable to each of the parties.
The issues before the court needed to be resolved and the court, in its sound discretion, set
parameters by which those issues could be presented by the parties.
With specific regard to the divorce decree that Dombrowski complains of, insofar as the
decreed deals with the visitation and custody of her child, the case law is clear and states:
The question of a change of custody is addressed to the sound judicial discretion of
the trial court and the appellate court's review of the trial court's determination isvery limited. [Citation omitted.] The trial court is in the most advantageousposition to judge how the interests of the children may best be served. [Citationsomitted.] While an appellate court has only the printed page to consider, the trialcourt has the advantage of seeing the witnesses and the parties, observing theirdemeanor, and assessing the character of the parties and quality of their affectionand feeling for children. [Citation omitted.] The judgment of the trial court will norbe disturbed without an affmnative showing of an abuse in the exercise of
discretion.
In re Marriage ofMcNeely, 15 Kan.App.2d 762, 764, 815 P.2d 1125 (1991) quoting Simmons v.
Simmons, 223 Kan. 639, 643, 576 P.2d 589 (1978). The trial court in the instant matter was
presented with the facts of the case, took sworn testimony from the parties and their witnesses and
made findings and issued orders according to how it felt the interests of the minor child would best
be served.
CONCLUSION
Dombrowski has presented the Court with a fifty eight page brief setting forth, in essence,
the argument that her "fundamental rights" were violated with respect to the trial court's handling
of this matter. She argues that these perceived violations are so extraordinary that the Court should
take up her appeal on the merits even though she failed to raise them below. The truth of the matter
I, the undersigned, hereby certify that on the 4th day of May, 1998, I deposited five (5)copies of the above and foregoing document in the United States mail, postage prepaid, addressedto:
Geary N. GroupAttorney at LawRender Kamas, L.C.345 Riverview, Suite 700Wichita, KS 67201
and that the original and sixteen (16) copies of the same were hand delivered to:
Carol G. GreenClerk of the Appellate CourtKansas Judicial Center301 S.W. 10th StreetTopeka, KS 66612-1507