IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Irene M. Dvorak, n/k/a/ Irene M. Howard|
|Supreme Court No. 99-C-0311|
|Larry H. Dvorak,|
Appeal from the District Court
Northwest Judicial D321 istrict
Ward County, North Dakota
The Honorable Robert Holte presiding
|Assistant States Attorney|
|P.O. Box 2249|
|Minot, ND 58702-2249|
|Attorney for Plaintiff/Appellee|
|Larry H. Dvorak, pro se|
|PO Box 458|
|Riverton, Utah 84065|
TABLE OF CONTENTS
|1. CASE LAW||I|
|5. STATEMENT OF CASE||1|
|6. REVIEW OF CHILD SUPPORT||3|
|7. PRODUCTION OF DOCUMENTS (ND Child Support & Lisa Benson)||5|
|8. CONTEMPT OF COURT||(ND Child Support & Lee Armstrong)||6|
|9. PERJURY||(Lisa Benson)||6|
|11. NOTIFICATION TO TRUST||10|
|12. PROPOSED SETTLEMENT TO IRENE M. HOWARD||12|
|16. DOMESTIC VIOLENCE PROTECTION ORDER||19|
|17. PRODUCTION OF DOCUMENTS (Irene M. Howard)||21|
|18.CONTEMPT OF COURT (ND Child Support & Lisa Benson)||22|
|19. OFFER TO IRENE M. HOWARD||22|
|21. DEMAND AND REQUEST FOR ORAL ARGUMENT|
|22. CERTIFICATE OF SERVICE||25|
|TABLE OF AUTHORITIES|
|6. Martin v. Rath, 589 N.W.2d 896 1999, ND 31 [¶9], [¶10], [¶11]|
|7. Zarrett v. Zarrett, 1998 ND 49, ¶8, 574 N.W.2d 855|
|8. Richter v. Richter, 126 N.W.2d 634, 637 (ND1964)|
|9. Peterson v. Peterson, 555 N.W.2d 359, 361 (ND 1996)|
|10. CUNA Mortgage v. Aafedt, 459 N.W.2d 801, 803 [¶15] (ND 1990)|
|11. Nelson v. Nelson, 547 N.W.2d 741 (ND 1996) p.3,par.2|
|12. Eklund v. Eklund, 538 N.W.2d 182, 185,86 (ND 1995)|
|13. Garbe v. Garbe, 467 N.W.2d 740, 742-43 (ND 1991)|
|14. Knoll v. Kuleck, NW2d 740, 742-43 (ND 1991)|
|15. Berge v. Berge, 710 NW2d 417, 2006 ND 46|
|16. Knobs v. Jacobson, 707 NW2d 803, 2005 ND 222|
|17. Bandner v. Brandner, 698 NW2d 259, 2005 ND111|
|18. Christoffersen v. Giese, 691 NW2d 195, 2005 ND 17|
|19. Minar v. Minar, 625 NW2d 518, 2001 ND 74|
|20. Nelson v. Nelson, 547 NW2d, 741 p.3, par.2 (ND 1996)|
|21. Mahoney, 538 NW2d at 192 (ND 1995)|
|22. Beverly v. Beverly, 317 NW2d 213, in Parent and Child #3.1(7)|
|23. Oien v. Oien, 706 NW2d 81, p.3, #11, [¶7], 2005 ND 205|
|24. Peters-Riemers v. Riemers, 674 NW2d 287, p.1,par.1, 2004 ND 28|
|25. Surerus v. Matuska, 548 NW2d 384, p.7, par.4|
|26. Hentz v. Hentz, 624 NW2d 694, p.9,par.9, 2001 ND 70|
|27. Chazen v. Chazen, 309 NW2d 612|
|28. Pronesti v. Pronesti, 118 NW2d 254|
|29. Barker v. Barker, 115 NW2d 367|
|1. Rule 60 (b) N.D.R.Civ.P.|
|2. NDCC 14-09-08.3|
|3. NDAC 75-02-04-02 (7)|
|4. NDAC 75-02-04.1-07, 4(b)|
|5. NDCC 14-09-08.4(3)|
|6. NDCC 14-09-08.17|
|7. NDCC 12.1-37-01|
|8. NDAC 75-02-04.1-09|
|9. Fourteenth Amendment Right|
|10. 42 U.S.C. 667 (b)(2)|
|11. NDCC 14-07.1-01, Definition #2|
|12. NDCC 14-07.1-02.1|
|13. NDCC 14-09-24|
|14. NDCC 28-26-01|
|15. NDCC 28-26-22|
|1. Exhibit A||3, 17|
|2. Exhibit B||3|
|3. Exhibit C||5|
|4. Exhibit D||6|
|5. Exhibit E||6|
|6. Exhibit F||7, 10|
|7. Exhibit G||7, 12, 16, 20|
|8. Exhibit H||11|
|9. Exhibit I||19|
|10. Exhibit J||21|
|11. Exhibit K||21|
|12. Exhibit L||22|
|13. Exhibit M||22|
That the Defendant, Larry H. Dvorak does hereby MOTION THE SUPREME COURT for RELIEF FROM JUDGEMENT OR ORDER that was issued by Ward County District Court. The Defendant claims relief under Rule 60 (b) N.D.R.Civ.P. and other issues based on the following case law, and State and Federal laws.
STATEMENT OF CASE
I have tried dozens of times over the last fifteen years to have my child support reviewed due to my disability. I am entitled under Rule 60 (b) N.D.R.Civ.P., to have this Judgement/Order overturned and pay child support a corrected amount set by the Administrative Code Guidelines.
In Martin v. Rath 589 N.W.2d 896, [¶ 9] "The statutory scheme for child support clearly envisions periodic reviews of child support order to ensure support is consistent with the guidelines. Zarrett v. Zarrett, 1998 ND 49, ¶ 8, 574 N.W.2d 855. The doctrine of res judicata does not apply to matters which are incidental or collateral to the determination of the main controversy. Richter v. Richter, 126 N.W.2d 634, 637 (ND 1964).
[¶10] "... On March 16, 1998, Martin filed a motion under Rule 60(b) N.D.R.Civ.P. requesting the July 1997, order be vacated and a new order issue granting her interest on the arrearage. The district court granted the motion and issued a corrected judgment, finding a mistake entitled Martin to relief under Rule 60(b) N.D.R.Civ.P.
[¶11] We review the granting of a motion under Rule 60(b) N.D.R.Civ.P., for abuse of discretion by the district court, Peterson v. Peterson, 555 N.W.2d 359, 361 (ND 1996). A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner. Id An action is arbitrary, unreasonable, or unconscionable if the court's decision is not the product of rational mental process. Id.
[¶12] Rule 60(b) N.D.R.Civ.P., provides in relevant part:
Rule 60, RELIEF FROM JUDGMENT OR ORDER
(b) Mistakes Inadvertence Excusable Neglect Newly Discovered Evidence Fraud Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment or order in any action or proceeding for the following reasons: (1) or (vi) any other reason justifying relief from the operation of the judgment. The motion must be made within a reasonable time, and for reasons (I),(ii), and (iii) not more than one year after notice that the judgment or order was entered in the action or proceeding if the opposing party appeared. . . . [¶13] Rath argues none of the conditions for granting a Rule 60(b) N.D.R.Civ.P., Motion exist, and asserts such motions should be limited to situations when the moving party has had default judgment entered against them. Although Rule 60(b) N.D.R.Civ.P. may be more leniently construed regarding default judgments, it is by no means limited to cases of default. See. e.g., CUNA Mortgage v. Aafedt, 459 N.W.2d 801,803 (ND 1990). The Supreme Court further stated in:
[¶15] Although the posture of this Rule 60(b), motion is somewhat unique, based on the record, we do not believe the district court abused its discretion when it found a mistake had been made justifying relief under Rule 60(b) N.D.R.Civ.P.
REVIEW OF CHILD SUPPORT OBLIGATION
Since my child support was set in September of 1991, State Child Support has
never reviewed my case, even though numerous attempts were made. In December of 1992, through attorney, Paul Temanson, (Exhibit A) we tried to get my child support lowered. They would not lower my child support. I personally called Child Support in January of 1993 and told them that I had eye surgery and wanted to get my child support lowered until I can start working. They told me to talk to Child Support attorney, Lee Armstrong and he would help me get it lowered. Over the next couple of months, I talked to Armstrong three different times and his answer was the same, "We can't do anything for three years." In March of 1993, I had attorney Robert Keogh contact my Dr. in South Dakota, (Exhibit B) to find out about me eye and help me get my child support lowered. At this time, Mr. Keogh tried to get my child support lowered until the Dr. could correct what was happening with my eye. Again, Child Support would not lower my support.
"NDCC 14-09-08.3. Periodic review of child support orders. (1). Each child support order must be reviewed by the child support agency no less frequently than thirty-six months after the establishment of the order or the most recent amendment or review of the order by the court or child support agency unless:"
The ND Supreme Court ruled in Nelson v. Nelson, 547 N.W.2d 741 (ND 1996), p.3, par.2, "Now, however, our legislature has authorized and directed periodic review of all child support orders. See Eklund v. Ekund, 538 N.W.2d 182, 185-86 (ND 1995); see also Garbe v. Garbe, 467 NW2d 740, 742-43 (ND 1991.
NDAC 75-02-04.1-02. (7) Determination of support amount-General instructions. 7. Income must be sufficiently documented through the use of tax returns, current wage statements, and other information to fully apprise the court of all gross income."
As in Knoll v. Kuleck, NW2d, 370, p.2, #II, "Section 75-02-04.1-02(7), N.D. Admin. Code, requires documentation of a child support obligor's income: "Income must be sufficiently documented through the use of tax returns, current wage statements, and other information to fully apprise the court of all gross income." Then on p.4, #III., the Supreme Court ruled, " Because the trial court's determination of Kuleck's child support obligation was not based on documented income, the trial court's determination did not comply with the child support guidelines, and the court erred as a matter of law.", then again on p.5, par.3, the Supreme Court states: " The Regional Child Support Enforcement Units are charged with the public interest in seeing that the correct amount of child support is determined under the statutes and guidelines, and then that amount is paid. N.D.C.C. # 14-09-09.27, The units' lawyers are to be seekers of truth and justice. Their goal must not be to stick an obligor with a higher (or lessor) obligation than is appropriate. Their goal must be to present the courts with all relevant evidence."
Other cases the Supreme Court ruled that the trial court erred as a matter of law in calculating child support obligations include: Berge v. Berge 710 NW2d 417, Knobs v. Jacobson, 707 NW2d 803, Brandner v. Brandner 698 NW2d 259, Christoffersen v. Giese 691 NW2d 195 and again in Minar v. Minar 625 NW2d 518.
When I moved to Montana in 2002, and the Montana Child Support saw that I was disabled, they contacted the North Dakota Child Support to find out why my child support was so high. The Montana Child Support then told me to file documents with the ND Child Support to get it lowered. Only then, did the ND Child Support lower my support. After all the years of being disabled and even having two attorneys helping me to get it lowered, they would not do it. Only after having another State get involved, did they lower my support??
I personally, and a lot of other people believe that the people that work in Child Support are only there to collect their paycheck and do not do their job.
PRODUCTION OF DOCUMENTS
On August 14, 2006, the Defendant Motioned the Court, Lisa Benson and North Dakota Child Support for Production of Documents, (Exhibit C). The Motion moved the Court for an Order requiring Lisa Benson and the N.D. Child Support to produce records for each and every time that my child support was reviewed.
In the States Response, p.1, par.3, they stated: "The Unit objects to this request because it is not relevant to the issues before the Court that concern the Court's decision
that funds due to Dvorak be applied to his child support arrearage. A review of a child support obligation has nothing to do with the accuracy of child support arrears that are due and unpaid according to obligations ordered by a Court. No defense to accrued arrears will have any basis or support in copies of child support review materials.
Then in the States conclusion, p.3, par.2, the State requested that the Court issue a Protection Order to keep me from getting any documents concerning reviews of my child support.
CONTEMPT OF COURT
On August 1, 2006, I filed Contempt of Court (Exhibit D) in Stark County Court against Attorney Lee Armstrong and N.D. Child Support for not reviewing my child support when they were Court Ordered in 1998.
If the State reviewed my child support, they would have nothing to hide, and would have done nothing illegal. Why are they asking for a protection order to keep me from seeing my records? But since they never reviewed my child support until I moved to Montana, what they are claiming that I owe is ILLEGAL.
On August 21, 2006, I filed perjury against Lisa Benson, (Exhibit E). Lisa Benson knowingly entered false information in a legal document concerning my child support. In Benson's response, she still continues to twist the fact that she committed perjury.
Only after I filed a complaint with the Ward County District Attorney, did Child Support try and cover up their embezzlement/fraud/perjury, or was it just plain extortion of over $6,500, by giving a corrected amount on 6-05-06 of their Financial Ledger.
I haven't filed income tax in fifteen years and had only one (1) pay-stub when I worked for two weeks in South Dakota before my second eye surgery. When my boss noticed that I could not even read due to my disability with my eye, he sent me to the Black Hills Eye Institute. The Eye Institute did testing on me, every day, for three months before they found out what happened to my eye. (Exhibit F) Due to the negligence of Dr. Reichert from Bismarck, ND, who did a lenses implant in November of 1991, my eye got infected inside the eye, to where the eyeball swelled up so large that it cracked my cornea. While living in South Dakota, is when it was the worst. I lost fifty-seven (57) pounds and there was two weeks, while living by myself, that I don't remember anything. The pain that I went through the last fifteen years was more than anyone should have to bear. The Dr. in Rapid City, S.D. told me that he does not believe there are even "Five (5) people in the world that this has happened too." No one, not even the Mayo Clinic, has ever heard of this before.
In our divorce decree (Exhibit G, p.6, no.7. CHILD SUPPORT. "Larry shall pay initially as and for child support to Irene the sum of $400 per month. Payment shall be made payable to the Dunn County Clerk of Court in Manning, North Dakota. This shall
be reevaluated and reviewed from time to time. At this time Larry is still not fully employed, but only recently became self-employed. This provision will be modified to comply with Section 75-02-04.1-10 or other reasonable support guidelines, or amount as agreed upon by the parties, and if no agreement, then an amount as set by the Court. This will be increased as Larry's employment or income situation improves."
Even our divorce decree states that I was not employed and that my child support should be evaluated and modified to comply with Section 75-02-04.1-10.
Child Support not only violated their own laws, but violated a Court Order, our divorce decree, by not reevaluating and/or reviewing my child support.
Also in Nelson v. Nelson, 547 NW2d, 741 p.3, par.2, the Supreme Court stated: "Consequently, and obligor only has to demonstrate a material change in circumstances to seek modification of a child support order within one year after its entry. NDCC 14-09-08.4(3); see Mahoney, 538 NW2d at 192.
I have been disabled since November of 1991, just two months after the child support was set. In January of 1992, I talked to my Child Support case worker about my disability with my eye. She told me to talk to Child Support Attorney, Lee Armstrong and that he would help me get my child support lowered. I went to Armstrong, told him the problem I had after my eye surgery. Armstrong laughed about it and said that they will not do anything for three years. Over a period of the next three months, I went to
Armstrong 3-4 times and was told the same thing, that they will not review my case for three years. NDAC 75-02-04.1-07., 4(b) Inputting income based on earning capacity. 4. Monthly gross income based on earning capacity may be imputed in an amount less than would be imputed under subsection 3 if the obligor shows: (b) "The obligor suffers from a disability sufficient in severity to reasonably preclude the obligor from gainful employment that produces average monthly gross earnings equal to one hundred sixty-seven times the hourly federal minimum wage." Beverly v. Beverly 317 N.W.2d 213, in Parent and Child #3.1(7), Whether non-custodial parent should be relieved, either totally or partially, of his or her child support obligation depends primarily upon financial status, employment or employability, health and any other factors which bear on earning capacity.
In Oien v. Oien, 706 N.W.2d 81, p.3, #II, [¶7] Under N.D.C.C. 14-09-08.4(3), the Unit is authorized to seek modification of a prior child support order if the amount ordered is inconsistent with the guidelines. If the prior order was entered at least one year before the motion to modify, the trial court must apply the guidelines and order support in the presumptively correct amount, unless the presumption is rebutted. The Supreme Court further states on p.3, [¶9] "The presence of a disability is a discretionary consideration that the court can take into account when determining the amount of support. N.D.Admin. Code 75-02-04.1-07 (4)(b). The guidelines provide that gross income "may be imputed in an amount less" if there is a showing of "disability sufficient in severity to reasonably preclude the obligor from gainful employment." And again on
p.4, #III, the Supreme Court ruled [¶ 12], The district court misapplied the guidelines by determining disability automatically precludes a child support obligation without a hearing. We reverse the order denying Huso's motion to modify judgment and remand for further proceedings consistent with this opinion."
In 1994, while living in Nebraska, I tried to apply for SSI Disability (Exhibit F). I was denied twice and gave up on it. As the Dr. stated in Exhibit A-9, "He has not been able to work because of the discomfort that he experiences with the eye." Throughout the years I kept track of what was happening with my eye, (Exhibit A-10). In 2005, I again applied for SSI Disability, and in September of 2005, I finally started to receive SSI disability.
NOTIFICATION TO TRUST
I am going to address the Ward County Courts err on his decision that the State Child Support notified the American State Bank Trust.
NDCC 14-09-08.17. Delinquent obligor may not renounce claims. An obligor whose child support obligation is delinquent may not renounce, waive, or disclaim any interest that obligor might otherwise claim in a decedent's estate, a trust, or a similar device, to the extent necessary to satisfy the delinquency. Any attempt to renounce, waive, or disclaim such an interest is void if attempted after notice of the delinquency is furnished to the person administering the estate, trust, or similar device, and is otherwise voidable.
The State first notified the Trustee, Russell Schank on October 20, 2004. (Exhibit H) They again notified the Trust on March 10,2005, in their GARNISHMENT SUMMONS AND NOTICE TO LARRY H. DVORAK OF CONTINUING LIEN, which was filed with the Clerk of District Court on March 22, 2005.
American Trust Center, Russell Schank, Trustee filed a GARNISHMENT DISCLOSURE on the 18th day of April, 2005. In this Garnishment Disclosure, the State has stated on page 4, #5. "Adverse Interest: Enter in the space below any amounts claimed by other persons by reason of ownership of interest in Larry H. Dvorak's property. State the names and addresses of the persons and nature of their claim, if known. (Any assignment of wages made by Larry H. Dvorak within ten days before the receipt of the first garnishment on a debt is void and should be disregarded.)"
My Assignment to Harold Dahl was dated August 10, 2004, months before the notice was given to American Trust Center. The State claims that they notified attorney, Gene Bursh. NDCC 14-09-08.17 states: "Any attempt to renounce, waive, or disclaim such an interest is void if attempted after notice of the delinquency is furnished to the person administering the estate, trust, or similar device, and is otherwise voidable."
The State claimed that they contacted attorney Gene Buresh on July 7, 2004. Mr. Buresh was not "the person administering the trust." Mr. Russell Schank is the Administer of the Trust, and the one that was to be contacted. On March 15, 2006, Trustee, Russell Schank sent a letter to Ward County District Court stating that Mr.
Buresh only acted as counsel on behalf of the Trust. My Assignment to Dahl was given before the notice to American Trust Center, not after. This was a business arraignment between Dahl and myself on money owed to Dahl, not an attempt to defraud Child Support. The Ward County Court erred on all points concerning the Notice of Garnishment to the Trust.
FOR THE PROPOSED SETTLEMENT WITH IRENE M. HOWARD FOR THE AMOUNT SHE CLAIMS I OWE HER, IN THE AMOUNT OF $41,328.06.
On May 16, 1992, Irene M. Howard started keeping the children from me. Irene would lie, when I would call to talk to the children, saying that they were not home, when
I could hear them in the background. Irene would "hide" the children on the days that I was to have visitation. She would even take the children to my sisters place in Bismarck and drop them off, leaving them for a week. My sister didn't even hear from Irene. My sister found out that the one time, Irene went with District Attorney, Joe Kubik to Montana for a week. Irene would file false charges on me to keep me away from the children. She would not even give the children any cards or letters that I sent the children. As she was "dating" the District Attorney, it was easy for her to get the false charges filed against me.
When we got divorced in February of 1993,(Exhibit G) my attorney and I walked
into the Courtroom. I saw the Dunn County Sheriff and District Attorney, Joe Kubik in the courtroom. I asked my attorney why they were there, being it was a Civil matter. He said he didn't know. We went into court trying to get Irene to let me see the children and the hearing wound up being a divorce hearing and nothing was done to force Irene to abide to my visitation rights. Judge Allen Schmallenberger was the presiding Judge. After he divorced us, he looked at Irene and smiled, then said, "Now you can date who you want." For the next seven years I wondered about his statement to Irene and if all Judge's tell the women after the divorce hearing that they can "now date who they want."
In 1999, while in prison, I found out that Irene was dating the District Attorney, Joe Kubik. All the Judges in the Southwest Judicial District, Allen Schmallenberger, Zane Anderson, Ron Hilden and Maurice Hunke, along with D.A., Tom Henning and assistant D.A., Owen Mehier, knew about Kubik and Irene's affair and were covering it up by constantly filing false charges on me and putting me in jail and prison. If the Court would check my child support file, they would see that Stark County was constantly taking me to court, sometimes every week, for not being able to pay child support. If the Court would check the records, they would see that shortly after Irene moved to Minot and shortly after I got out of prison, is when they, the S.W. Judicial District really came after me for child support. They knew that I just got out of prison and was unable to work, but yet they forced me to borrow money from my parents to stay out of jail. Irene really had a lot of "pull" in Stark County.
NDCC 12.1-37-01. Willful failure to pay child support...Affirmative defense, #4. It is an affirmative defense to a charge under subsection 1 that the defendant suffered from a disability during the periods an unpaid child support obligation accrued, such as to effectively preclude the defendant's employment at any gainful occupation. This defense is available only if the defendant lacked the means to pay the ordered amounts other than from employment."
I kept telling them that I can't work due to my eye. They kept fining me because Mr. Kubik told them one time that Larry can borrow from his folks, "they have a lot of money." Is this what out legal system has become, a corrupt "illegal" system??? If I was unable to work due to a disability, my child support should have been lowered immediately.
In Peters-Riemers v. Riemers 674 NW2d 287 p.1, par.1, the Supreme Court states: "We reverse the contempt order and the money judgment and remand for further proceedings because Roland was not informed of his right to counsel when the contempt proceedings could have resulted in incarceration.
See Peters-Riemers v. Riemers 2003 ND 96, 663 N.W.2d 657. The Supreme Court rules on p.3, III, "When a trial court has failed to inform a pro se defendant of his constitutional right to appointed counsel in a contempt proceeding in which the defendant faces potential incarceration, we will not attempt to discern whether the error was
harmless. "Id at ¶ 24 (citation omitted). We concluded that "a trial court's failure to inform a pro se defendant of the right to counsel is fatal to a finding of contempt as well as to orders related to that finding."
Not once was I informed that I was entitled to counsel by the Southwest Judicial District when they took me to court for child support. This was a violation of my Constitutional Rights.
NDAC. 75-02-04.1-09. Criteria for rebuttal of guideline amount., #2., j, k(1)(2). 2. The presumption that the amount of child support that would result from the application of this chapter, except for this subsection, is the correct amount of child support is rebutted only if a preponderance of the evidence establishes that a deviation from the guidelines is in the best interest of the supported children and:
(j) The reduced ability of the obligor to pay child support due to a situation, over which the obligor has little or no control, which requires the obligor to incur a continued or fixed expense for other that subsistence needs, work expenses, or daily living expenses, and which is not otherwise described in this subsection.
(k) The reduced ability of the obligor to provide support due to the obligor's
health care need's, to the extent that the costs of meeting those health care needs. (1) Exceed ten percent of the obligor's gross income. (2) Have been incurred and are reasonably certain to continue to be incurred by the obligor.
While in prison for false and illegal charges, I was entitled to a reduction in child support according to the guidelines. Because my incarceration was not due to my bad conduct, but the corruption in the legal system in the Southwest Judicial District to cover up the affair of District Attorney, Joe Kubik and my ex-wife Irene M. Howard. As Chief Judge, Gerald W. VandeWalle stated in Surerus v. Matuska, 548 N.W.2d 384, p.7,par.4, "I do not believe it is wise to release obligors from prison with an arrearage in child support so large that it is inconceivable the obligor will be able to earn enough to pay it."
In the States own Administrative Codes, it states that my child support should not have been more than $22.00 per month, due to my disability.
In 1997, the children called me and told me they were moving in three days to Minot and they wanted to come and live with me. Irene never told me that she was moving 185 miles with the children. Being the children wanted to live with me, Irene got mad and that was the last time I saw the children.
In our divorce settlement, (Exhibit G, p.5, par. d) states: "Larry shall be entitled to longer visits with the minor children during the summer. Larry shall have up to two weeks, at a minimum, of visitation with the children during the summer." In the summer of 1995, was the first summer that Irene let me have the children. I was living in
Nebraska and made sure that the children called Irene every week. On the third week, Irene and D.A., Joe Kubik filed charges for Removal of Child from State. In the complaint, Kubik stated that I could only have the children a maximum of two weeks and that I could not take them out of state. This is the complete opposite of what the divorce papers stated.
I filed a complaint with D.A., Kubik, twice against Irene for violating a court order for not letting me see the children. Mr. Kubik just laughed about it and told me that Irene could do what she wants, because she has physical custody. Irene and I had joint custody of the children. In Hentz v. Hentz, 624 N.W.2d 694, p.9, par.9, the Court states: "The reason for N.D.C.C. 14-09-07 is to protect the visitation between the non-custodial parent and the child." In Chazen v. Chazen, 309 N.W.2d 612, "...the court of appeals held that where wife was engaged in protracted course of conduct designed to frustrate visitation rights of husband, conducting designed, concerted effort to separate father and son identification to point of antagonism, such affirmative acts amounted to wrongful denial of visitation rights, and trial court properly set aside any and all arrearage of child support and terminated all child support."
In December of 1992, attorney Paul Temanson filed Contempt of Court (Exhibit A) against Irene Howard. Due to her association with the District Attorney and Judges in the Southwest Judicial District, the charge was dismissed. Even attorney, Robert Keogh tried to get Irene to give me visitation with the children. I tried several times after this to
file Contempt of Court against Irene for not allowing me visitation with the children, but the DA, Joe Kubik, whom Irene was dating, would just laugh at me. I always looked forward to the visitation with my children, even though, with my disability, I always found a way to get gas money, so I can see my children. I would really get disappointed when I would make arraignments to see the children, travel the three hundred (300) mile trip and find out that Irene would not be home or would not allow me visitation with the children.
As in Pronesti v. Pronesti, 603 N.W.2d 254, "...since wife's conduct had operated to prevent husband from seeing his children during period of their minority and she had not attempted in good faith to make collection of payments ordered by divorce decree for support of minor children during period of time that decree required such payments to be made."
Even after Irene moved to Minot, I tried to see the children and Irene would not let me see them. I then went to Social Services, who in turn called Irene, but yet Irene refused to bring the children for visitation.
"Trial judge was justified in modifying divorce decree by canceling arrearages in payments decreed for support of minor children where wife's conduct had operated to prevent husband from seeing his children..." and again in Barker v. Barker, 115 N.W.2d 367, the Court states: "Court held that cancellation of support arrearage was proper."
If, as the State claims, that everything is for the best interest of the children, then WHY WERE MY CHILDREN KEPT FROM SEEING THEIR FATHER and nothing was done to Irene for contempt of court??? This was a violation of my Fourteenth Amendment Rights and 42 U.S.C. 667(b)(2).
DOMESTIC VIOLENCE PROTECTION ORDER
Irene filed for a D.V.P.O. in 1997. (Exhibit I) Irene's reasons for the order was that I was giving the children candy and gum, then she claimed that the children were afraid of me and would run home and lock the door. I have my children on tape saying that they were not afraid of me. This tape will be produced and played in Court. The only one that was afraid of me was Irene. She was afraid that I would find out about her affair with the D.A., Joe Kubik and how they were always trying to put me in prison under false charges. I have about two dozen tapes recordings between Irene, the children and myself. An Attorney told me to record every time I called to talk to the children, because Irene was interfering in my visitation rights. During this hearing for the D.V.P.O., former DA, Joe Kubik was representing Irene. Mr. Kubik and Judge Hunke were even trying to keep me from going to the same church as Irene. My attorney, Bob Keogh, told them, "I don't think you want to go there."
In 1999, I went to prison for domestic violence. I saw my in-laws at the Shopping Mall. My daughter, Kelsey was with them. I gave my daughter and mother in-law a hug and gave my daughter $50 to buy shoes. Irene filed a complaint of domestic violence.
Judge Zane Anderson was the presiding judge. When Mr. Anderson was campaigning for judge, he was telling everyone that he was a family man. Then Judge Anderson put me in prison for giving my child a hug. This is quite a family man. Also, assistant DA, Owen Mehrer, who years earlier, told me, "I really feel bad about what Dunn County is doing to you", (meaning all the false charges) then he knowingly puts me in prison for false charges, all to cover up the affair between Joe Kubik and Irene Howard, or maybe there was more going on, than just between Howard and Kubik.
N.D.C.C. 14-07.1-01 Definitions. #2. "Domestic violence" includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members." Giving your child a hug is not domestic violence.
The Domestic Violence Protection Order was illegal in itself. (Exhibit G) The Order was a life-time Order. North Dakota law states that a D.V.P.O. is only good for two (2) years, then it must be renewed. Then they also included Irene's parent's in the Order, which is also illegal. If and when her parent's wanted to keep me away, they would have had to motion the court for their own D.V.P.O.. Irene's parent's didn't even know about the Order. I told them about it over a year later when they asked why I don't stop in to see them.
This was just another way for the Southwest Judicial District to cover up what they were doing to me before 1999, by putting me in prison to "keep me out of the way."
Due to all the false charges Irene was filing on me over the years, I went to the Senate Hearings. It was my testimony (Exhibit J) that passed N.D.C.C. 14-07.1-02.1. Allegation of domestic violence Effect. If the court finds that a party's allegation of domestic violence in a domestic violence protection order proceeding, divorce proceeding, child custody proceeding, child visitation proceeding, separation proceeding, or termination of parental rights proceeding is false and not made in good faith, the court shall order the paarty making the false allegation to pay court costs and reasonable attorney's fees incurred by the other party in responding to the allegation."
PRODUCTION OF DOCUMENTS
IRENE M. HOWARD
On August 14, 2006, I gave Notice to the Court and Irene Howard (Exhibit K) to produce all documents and police reports of physical abuse caused by me toward Irene and/or the children. In Howard's response, par. 2, Irene states: "Once we were legally separated, Larry wasn't physically abusive..." If I was not physically abusive, then why did Irene apply four-five times for a protection order??? Why did the Southwest Judicial District even give her an Order, not once, but twice, and the second one is a lifetime Order, which is illegal??
CONTEMPT OF COURT
ND CHILD SUPPORT AND LISA BENSON
On September 18, 2006, I filed Contempt of Court against Lisa Benson and ND Child Support in Stark County District Court. (Exhibit L) The charge is for not releasing everything after Court Ordered by Stark County Court after we reached a total settlement on my child support arrears.
OFFER TO CHILD SUPPORT DISBURSEMENT UNIT
According to Child Support records, I have paid a total of $4,906.10. On June 9, 2005, I made an offer (Exhibit M) of another $5,000.00 to Child Support to settle all past due arrears. The $5,000.00 offer, plus what I have already paid, would be a total of $9,906.10. According to the Administrative Code Guidelines, this is more than the $22.00 per month that I was supposed to be paying.
OFFER TO IRENE M. HOWARD
As for the settlement offer to Irene M. Howard, she is not entitled too, and will receive nothing. Due to her contempt of court for denying the rightful visitation between the children and myself, not giving the children all the cards and letters I have sent them over the years, and turning the children against their father. Also, due to her conspiracy with the Southwest Judicial District in filing false charges against me over the last fifteen years to keep me away from the children.
I am also asking the Court to order Irene to write the children a letter of apology, apologizing for interfering and denying us visitation and turning the children against their father and for the over two dozen false charges she filed against their father. I am also asking that the Court Order Irene to give all the children's addresses and phone numbers to me. I believe that it is up to the children and me if we want to write or talk to each other. It is not up to Irene to say that the children and me can't have a family relationship.
I am asking that the Court Order Irene to pay all my costs and attorney fees her interference with visitation in this matter in accordance with N.D.C.C. 14-09-24, and/or N.D.C.C. 28-26-01, and/or, along with the State, N.D.C.C. 28-26-22.
I am requesting that the Supreme Court Order the following:
12. That the Ward County District Court Order a corrected amount of child support set by the Administrative Code Guidelines and State law, for someone who is disabled.
13. That Ward County District Court hold Irene M. Howard in Contempt of Court for violating my visitation rights and that she be sentenced to the maximum sentence allowed by law.
14. That Irene M. Howard be Ordered to write a letter of apology to our children for not allowing us visitation and to give all the children's addresses and phone numbers to me and not ever interfere again.
15. That Stark County District Court hold ND Child Support and Lisa Benson in Contempt of Court for disobeying a Court Order in not signing a release after they had all their money set aside.
16. That the Stark County District Court hold ND Child Support and Lee Armstrong in Contempt of Court for not reviewing my child support since 1993.
17. That the Stark County District Court hold Lisa Benson in contempt for perjury.
18. That Child Support and Irene M. Howard pay for all of my expenses and attorney fees throughout this case.
Dated this day of November, 2006.
|Larry H. Dvorak, pro se|
|PO Box 458|
|Riverton, Utah 84065|
DEMAND AND REQUEST FOR ORAL ARGUMENT
The Defendant requests a hearing at a time and date convenient for the parties and the Court. I am also requesting time for four witnesses to testify at this hearing.
Dated this day of November, 2006.
|Larry H. Dvorak, pro se|
|PO Box 458|
|Riverton, Utah 84065|
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the forgoing APPEAL BRIEF, APPENDIX AND MOTION AND BRIEF TO HOLD IRENE M. HOWARD IN CONTEMPT OF COURT was mailed in the United States mail, postage prepaid and mailed to the following:
|Assistant District Attorney|
|P.O. Box 2249|
|Minot, ND 58702-2249|
|Irene M. Howard|
|712 Lincoln Ave.|
|Minot ND 58701|
Dated this ____ day of November, 2006.
Larry H. Dvorak
Subscribed and sworn to before me this day of June, 2006.
For the State of Utah
My commission expires: