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Author Topic: Reply Brief  (Read 1061 times)

floridadad630

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Reply Brief
« on: Aug 04, 2004, 10:29:05 AM »
Thought you may find this interesting as I'm trying to defend the right to use strict scrutiny and avoid abuse of discretion.   Florida State Law has some gray areas regarding best interest of the child v. fundamental rights of parents in parent v. parent disputes.





IN THE COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

5th DCA Case No.: 5D04-1545
L.T. Case No.: DR03-147

xxxx
   Appellant
v.
xxxxx
   Appellee   

____________________________________

REPLY BRIEF OF APPELLANT TO ANSWER BRIEF OF APPELLEE
____________________________________

ON REVIEW FROM THE
SEVENTH JUDICIAL CIRCUIT, IN AND
FOR ST.JOHNS COUNTY, FLORIDA

____________________________________












DOUGLAS PAUL MATHENY
130 Vera Cruz Drive, Unit 725
Ponte Vedra, FL 32082
Home: (904) 285-8851;
Work: (904) 791-2847

TABLE OF CONTENTS            page no.

TABLE OF CITATIONS……………………………………………………ii

PRELIMINARY STATEMENT……………………………….……………ii

STATEMENT OF TYPESETTING………………………………………....ii

ARGUMENT
I   Dr. Risch's recommended visitation schedule was one
overnight each week, expanded weekends from Friday to
Monday morning, one half of all holidays and summer visitation of one week until 2006 which would then be expanded to four weeks………………………..……………………………………1

II. Nothing in the record suggest that the Trial Court's ordered visitation furthered the best interest of the minor child by being more restrictive than the recommendations of the court appointed expert witness,…...……………………………………………….5

III   Trial Court's judgment as a whole amounts to an abuse of discretion at a minimum and tends to indicate bias:
(a) visitation was unnecessarily restrictive with no support
in the record to do so,
(b) child support was miscalculated
(c) evidence was submitted during the hearing which was not mentioned in the pre-trial stipulations
(d) Trial Court made comments which indicated he
did not want to listen to the cross-examination of Appellee.…………………………..…………………...9

IV   Standard of review: abuse of discretion vs. strict scrutiny ……..12

CONCLUSION……………………………………………………………….15
 
CERTIFICATE OF SERVICE………………………………………………..16



-i-
TABLE OF CITATIONS
Florida Supreme Court Cases:                        page
Hirshman v. Hirshman, No. 5D03-2797 (Fla. 5th DCA
April 8, 2004)……………………………………………………………1
In re Guardianship of D.A.McW,  
460 So. 2d 368, 369-70 (Fla. 1984)……………………..………12

Richardson v.  Richardson, 766 So. 2d 1036 (Fla. 2000)…..…12,13,14
Troxel v. Granville, 68 U.S.L.W. 4458,
49 120 S. Ct. 2054, 147 L. Ed. 2d (2000)……..……………………13,15


PRELIMINARY STATEMENT
References to the record are prefaced by the letter "R" and are made to the page number assigned in the Index to Record on Appeal.
Appellant, Douglas Paul Matheny is referred to as "Appellant", "Mr. Matheny", or  "Father".  Appellee, Lisa Rachelle Briggs is referred to as "Appellee", "Ms. Briggs", or "Mother".  Ruby Rachelle Matheny is referred to as "Ruby", "Daughter" or "Child".  This reply brief also is intended to also supplement the Initial Brief of Appellant.

STATEMENT OF TYPESETTING
   This Initial Brief is typed with times new roman, 14 point font in Word 97 for windows format.

-ii-
ARGUEMENT
Dr. Risch's recommended visitation schedule was one overnight each week, expanded weekends from Friday to Monday morning, one half of all holidays and summer visitation of one week until 2006.
(a)Weekly Visitation
Dr. Risch had reviewed the Findings and Recommendations of the General Master and knew the Fathers' alternate weekend visitation schedule had consisted of Friday through Sunday night.  From her statements at the final hearing[R632, page 74 lines 9-12]:
   Q   Were you given that information at the time of the evaluation?
   A   At the time of the evaluation I believe it was every other weekend,
no overnight during the week.
Weekend visitations are normally Friday afternoon through Sunday evening at 6pm.  Dr. Risch has been involved in the custody disputes for a number of years and was recognized as an expert witness by the Trial Court [R632: page 38 line 4-8],  and relied upon by the Fifth District Court of Appeal in Hirshman v. Hirshman, [Hirshman v. Hirshman, No. 5D03-2797 (Fla. 5th DCA April 8, 2004)].  She was familiar with this standard weekend visitation.
1
She then stated in both her deposition and at the final hearing that the Father's weekend could include Sunday night.  From her statements at the final hearing[R632, page 58 lines 2-7]:
Q   Dr. Risch, do you see anything wrong or inappropriate with Mr. Matheny being able to keep the child overnight, say on Sunday and take her to daycare on Monday mornings?
A   No, there's nothing inappropriate about that.

Dr. Risch's statements from her deposition[R124, page 50 lines 1-17]:
Q   Okay is there any evidence that you have uncovered that Ruby was either disturbed or disrupted when she spent time with Mr. Matheny or Mr. Matheny's family?
   A   Disturbed or disruptive.
   Q   Well, how about if --was it all positive experiences for her?
   A   Yes.
   Q   Okay.  And in her best interest.
   A   Yes.


2
Q   Considering Ruby's age and relationship that you've described, do you find anything wrong or inappropriate with Mr. Matheny being able to keep the child overnight say on Sunday night and take her to daycare on Monday morning?
   A.   I can't see any reason why that couldn't happen.

Clearly she indicated to the Trial Court that expanding the father's weekend to include Sunday nights would still be within the best interest of the child.  Dr. Rish also recommended one overnight every week in addition to every other weekend, several times during the hearing [R632, page 49 line 10].  As she stated in her cross-examination[R632, page 73 lines 1-13]:
Q   And your reasonable visitation schedule is a couple of afternoons with father commencing at one overnight during the week.
A   That's correct.
Q   And, in addition to that every other weekend, is that correct?
A   That's correct.



3
(b) Holiday Visitation
Dr. Risch recommended sharing all holidays equally [R632, page 86 lines 9-13].  
(c) Summer visitation
Dr. Risch recommended one week vacation until 2006 which would increase up to four weeks [R632, page 87].

Under Dr.Risch's recommendation's father would have had five overnights every two weeks or ten each month.  Trial Court gave Appellant three every two weeks or six a month.  This difference amounts to 48 overnights each year (4 x 12). Holiday visitation could have been potentially 25 overnights each year, but Trial Court awarded only between 1-3 per year.  This totals around seventy additional overnights each year which could have been awarded to the father and still within the best interest of the child.





4
Nothing in the record suggest that the Trial Court's ordered visitation furthered the best interest of the minor child by being more restrictive than the recommendations of the court appointed expert witness.
The only insecurity Dr. Risch could find with Ruby was that she was shy in her presence, or sad when she was away from her father more than a day or two.  From her deposition[R124, page 47, lines 7-25 and page 48, lines 1-9]:
   Q   Were you able to note or comment on any insecurities that Ruby
might feel?  
A   Other than what I mentioned in my report, that when I entered the room, she did not feel comfortable with me as a stranger.
Q   Did that warm up? Did she change with you had your second visit with her?
A   Not really.
Q   Did your interviews with Mr. Matheny, did he describe to you incidences where Ruby clung to him and cried during times he was returning the you child to the mother?
A   Yes, he did.


5
Q   In your interviews with Shirley Hochman, the daycare provider, did she mention episodes where Ruby was sad and tearful when she was not allowed to see her father for more than a day or two?
A   I recall Ms. Hochman sharing that type of information with me, yes I do.
Q   Did Ms. Briggs confide in you as to what the visitation schedule was she wants to see imposed on the father with regards to Ruby?
A   As I recall, it was one night every other weekend and a few hours in the evening one day a week.
Q   Which you have already commented on that you felt was totally inadequate.
A   That’s correct.

Also from her deposition [R124, page 63, lines 9-18]:
Q   ..have you found it normal for young children to be uncomfortable in your presence in their home.
A   Yes.  Its called stranger anxiety.
   Q   Does that concern you at all.
   A   No it didn't concern me.
6
These are only two references in the record with regards to Ruby's insecurities:
(1) She is shy with strangers and
(2) She misses her father when away from him more than a day or two.

 Appellant argues it was not in the best interest of the child to have a more restricted visitation schedule with her father.  Dr. Risch attested to the close proximity of the parties. [R632: page 82 line 9].  Dr. Risch repeatedly attested to the very close relationship between the Appellant and the minor child [R632: page 43 line 2-3].   "All parties interviewed described both parents as equally loving and bonded to Ruby"[R99, page 13, 3rd paragraph]. "Having the parents equally involved with Ruby on a regular basis would afford her an opportunity to continue to develop a close bond with both parents" [R99: page 14, items 3 ].  Dr.Risch repeatedly stated that equal time between the two parties was in the best interest of the child [R632: page 47 line 2-7] [R632: page 45 line 7-12].




7
When Dr. Risch was asked on cross-examination by Appellee's council [R632: page 68 lines 7-20]:
Q   Do you believe that switching overnights, midweek, like two nights in one home and then one night in another, then one night in another is structured?
THE WITNESS:   I think that structured and consistent can be one overnight in one home and then two nights in the other home, because they are consistent.  That is structured and consistent.  Yes I do believe that.

On redirect examination [R632: page 85 lines 10-13]
Q   So the things that you spoke against was actually this two weeks in house A and two weeks in house B, because the child doesn't have a consistent place that she could call home.
   A   That's correct.




8
Trial Court's judgment as a whole amounts to an abuse of discretion at a minimum and tends to indicate bias:
(a) visitation was unnecessarily restrictive with no support in the record to do so,
(b) child support was miscalculated
(c) evidence was submitted during the hearing which was not mentioned in the pre-trial stipulations
(d) Trial Court made comments which indicated he did not want to listen to the cross-examination of Appellee.

(a) (b) As mentioned previously in Initial Brief of Appellant, visitation awarded was unnecessarily restrictive, and child support was calculated incorrectly.  
(c) Trial Court allowed Appellee to bring to the hearing a performance review dated
05/06/2004, which was right after the time Appellant informed his employer that
he would exercise his rights under FMLA to care for Ruby an additional three months after he had just worked from home for three months.  Appellant tried to explain during the hearing, that his manager threatened to blackball him when he informed him of this, but the Trial Court prevented him from explaining this [R632, page 112-113].  

9
Appellee obviously had access to Appellant's personnel file, as she is an executive at Appellant's place of employment and this document was never subpoenaed.  Trial Court also allowed Appellee to submit an amended financial affidavit the day of the hearing which did not conform to its pre-trial stipulations.  This affidavit showed Appellee made less income than what was previously reported [R632, page 164, line 12].  Trial Court was also stated that the Appellee's 15 year old son(Christopher) could testify without allowing the Appellant to depose him[R632, pages 4-7].  
(d) Trial Court also changed the scheduled four hour hearing to be three hours the day of the hearing.  From the hearing [R632, page 169 lines 6-24]:
THE COURT:   I'm going to need you to finish up in just a minute.
MR. ZISSER:    Sorry?
THE COURT:    I'm going to need you to finish up.  We are way past the three hour mark, so…
MR. ZISSER:    Okay, We had-- I thought we had four scheduled.
THE COURT:   My notice says three hours.
MS. MARCH:   8:30 to 12:30, Your honor.
THE COURT      Never, never in the…
MS. MARCH:   I was wondering about that.
10
THE COURT   :   history that I've been on the bench has it been to 12:30.

This discussion took place when Appellee was being cross-examined and after Appellee's coucil had the opportunity to fully cross-examine the Appellant.  It would tend to suggest the Trial Court had no interest in listening to the cross-examination of the Appellee.  All of these items all taken as a whole tends to suggest the Trial Court had a predisposition in favor of a more traditional visitation schedule and did not adequately consider the unique facts and circumstances of this case.











11
Standard of review: abuse of discretion vs. strict scrutiny and substantive due process challenge.
In Richardson v.  Richardson  the Florida Supreme Court quoted In re Guardianship of D.A. McW :
"When a custody dispute is between two parents, where both are fit and have equal rights to custody, the test involves only the determination of the best interests of the child".
The court also stated:
   " Although D.A.McW. was not decided on constitutional principles, we reaffirmed there our longstanding view that the natural parent had a clear preference to custody over all others based upon the status of parenthood. Id. at 370."
[Richardson v.  Richardson, 766 So. 2d 1036 (Fla. 2000)]
The Richardson court states that both parents have equal rights.  Nowhere in either case does the court suggest that parents involved in a custody dispute lose their fundamental rights to the broad discretion of a court, who can ignore significant details in the record.  It infers that the "best interest of the child" are to be given primary consideration when making custody decisions involving natural parents.  
12
The Richardson decision, does imply that these fundamental rights of parents are completely suspended in custody disputes between two parents.  The Richardson court decision states that In re Guardianship of D.A. McW
"was not decided on constitutional principles".  This language clearly supports Appellant's argument.  The Florida Supreme Court affirmed in Richardson that the right to privacy is heightened in custody disputes involving parents and non-parents. As stated by the U.S. Supreme Court in Troxel v. Granville, "there is a presumption that fit parents act in their children’s best interests" [Troxel v. Granville, 68 U.S.L.W. 4458, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)]. Trial courts have extremely limited discretion in cases involving that parents and non-parents due to the fact that parents have privacy rights and
non-parents do not.

Trial courts are given broader discretion in custody disputes involving parents due to the best interest of the child.  This is to in accommodate the varying circumstances in each case, but not to ignore them. The record fails to demonstrate a more restrictive visitation schedule for the father was in the best interest of the child, and indicates more equal time between both parents would have best served the interest of the minor child.  
13
By failing to apply the best interest of the child test correctly under the circumstances of this case the Trial Court violated both the father's and the minor child's rights under privacy and substantive due process.  Trial Court committed an abuse of discretion and violated father's rights under the privacy and substantive provisions in the Florida Constitution.  

The interpretation of the Richardson case or any other law by this court to mean the appropriate standard of review is "abuse of discretion" and Appellant is not entitled to "strict scrutiny" would be unconstitutional under "procedural due process".  Appellant clearly has some level of privacy protection under substantive due process in a custody dispute, and is entitled to protect those rights by seeking the strictest standard of review.  If the Appellant Court does not review the record using strict scrutiny, the Appellant Court could also ignore circumstances in this case ignored by the Trial Court. Appellant request the strict scrutiny standard be applied since a more restrictive visitation schedule was not shown to be in the best interest of the minor child by the facts and circumstances in the record.


14
CONCLUSION
(1) Appellant prays that the Appellant Court set the visitation schedule itself, which is the least restrictive to both the child and the father, based on the facts and circumstances in the record.  As stated succinctly in Troxel: " There is also no reason to remand this case for further proceedings. The visitation order clearly violated the Constitution, and the parties should not be forced into additional litigation." [Troxel v. Granville, 68 U.S.L.W. 4458, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)].  Appellee has concurred with the Appellant on the issue that "It is not in the best interest of children or their parents to have constant protracted lititgation concerning child custody or primary residence." [Appellee's Amended Answer Reply Brief, page 27, Conclusion 1st paragraph].
(2) If the Appellant Court finds the Appellant has no rights under substantive due process in this case, then the Appellant prays the Appellant Court finds an abuse of discretion of the Trial Court and to reverse and remand this visitation issue.



15
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to xxxxx by US Mail this _____ of August, 2004.

                     _________________________
                     xxxxxx








16


socrateaser

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RE: Reply Brief
« Reply #1 on: Aug 04, 2004, 11:26:32 AM »
I can't really comment, as you have not provided the Appellee's original response. Appellee may have made a strong or weak counterargument.

This brief as posted, however, is not as good as your original appellate brief.

floridadad630

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RE: Reply Brief
« Reply #2 on: Aug 09, 2004, 09:09:44 PM »
She argued that the Appellant Court had no authority to review since Trial Court has broad discretion to determine the best interest of the child.  She argues my references to substantive due process involve parent v 3rd party disputes.  The broad discretion rule is that if any reasonable judge could agree then it stands.

I'm trying to argue that the Trial Court ignored the testimony of the evaluator and provided a more retrictive schedule without furthering the best interest of the child.  Althought the best interest of the child is the normal test in determining custody, if that judgment is not shown to be supported by the facts and cicumstances of the record fundamental rights can be violated.  A strict standard of review is needed to reveal  this error.  To deny strict scrutiny is to deny procedural due process(would be unconstitutional).  Broad discretion is needed to accomadate the changing facts and circumstances, not ignore them.  Richardson states the test in parent v parent is best interest of the child.  It does not suspend parental rights.  If Court's interpretation  of the best interest of the child is not suported by the record, then fundamental rights are violated.


Obviously I'm going into some really gray areas pro-se with hardly no presidence(regarding parent v. parent disputes), but Richardson was pro-se, so what the hell.  

Can you give me some last minute insight or inspiration before I prepare for oral arguements?  What are the weakneses and the way to defend them?  If you don't feel like responding thats cool too, thanks for your help(I'm sick of this crap too).

socrateaser

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RE: Reply Brief
« Reply #3 on: Aug 10, 2004, 12:06:48 AM »
First, be aware that you will get about 5 words out of your mouth and then the justices will start to pepper you with questions. Most of the time, the appellate court has already decided an issue before oral argument occurs, and they are interested in posing some hypothetical questions to the parties in order to try to generate a response that the justices did not consider in advance.

Your problem with the substantive due process issue will be overcoming the idea that the entire custody process is closely sheparded by the court, so one could argue that it is all subject to strict scrutiny.

Your counter is that, regardless of how much attention the court pays, if the court's decision is not narrowly tailored to advance a compelling state interest, then you have not been afforded strict scrutiny.

This begs the question of whether ANY custody decision that does not afford each parent the maximum amount of time consistent with the child's best interest could stand up to the strict scrutiny test. Unfortunately, the court will almost certainly decide that if the trial judge reasonably believed that his decision advanced the child's best interests, and that the custody award was the maximum possible for each parent under the circumstances.

My point is that if you spend time trying to prove your due process argument, you will not win your case, because you can't win the due process argument -- if you were allowed to win, it would turn the entire family law system on its ear, and that just ain't gonna happen.

You should concentrate on showing that the facts could not possibly lead the judge to the custody order made -- that in order for the judge to decide on such a lopsided order, it was necessary for the judge to ignore the testimony and evidence of all of the experts, and instead assume facts completely unknown to the litigants, and not in evidence on the trial record, and then base the decision on those facts.

And that, is an abuse of discretion, because courts decide based on assumed facts not in evidence.

 

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