IN AND FOR THE COUNTY OF MANATEE
FAMILY DIVISION 3
Petitioner/Former Husband, CASE NO. 2002-DR-003254
Filed October 25, 2011
and Hon. Janette Dunnigan
Chief Judge Andrew D. Owens, Jr.
PETITIONER’S MOTION FOR RECONSIDERATION, CLARIFICATION AND APPEAL
TO 12TH CIRCUIT CHIEF JUDGE HON. ANDREW D. OWENS, JR.
OF “ORDER DENYING PETITIONER’S MOTIONS”
INCLUDING MOTION TO DISQUALIFY HON. JANETTE DUNNIGAN
NOW COMES Petitioner/Former Husband GLEN GIBELLINA, who, having his March 8, 2011 Amended Supplemental Petition to Modify Custody effectively dismissed by Court order dated September 26, 2011 (attached hereto), who having moved the Court on October 7, 2011 in writing to restore his time-sharing rights with his minor child Stormie, dob 7/19/01, suspended and denied since November 13, 2009 by order of this Court, and by a succession orders of this Court resulting from notices of hearing of status conferences that did not include the issue of time-sharing rights modification in the notices of hearing, in violation of the Fourteenth Amendment to the United States Constitution, and Article I, Section 9 of the Constitution of the State of Florida; to declare a April 20, 2009 Order, a October 26, 2009 Order, and a December 22, 2009 Order entered herein void, discharged, satisfied, and/or inequitable to apply prospectively pursuant to Fla. R.Civ.P. 1.540, and to disqualify Hon. Janette Dunnigan for bias and prejudice against Petitioner’s cause (motions submitted Chief Judge Owens herewith), and Judge Dunnigan having entered an October 10, 2011 “Order Denying Petitioner’s Motions” (attached hereto), your Petitioner respectfully requests Chief Judge Owens to exercise his administrative supervision over all courts within the judicial circuit in the exercise of judicial powers and over the judges and officers of the courts, and reconsider and issue clarification on said “Order Denying Petitioner’s Motions” by stating as follows:
1. Petitioner has not seen his 10-year-old daughter for two years, has never been found an unfit Parent by this court, or any other court or Tribunal in this county, circuit or the State of Florida and has never be found an unfit Parent in any other state in the US at any time.
2. Petitioner filed a motion to disqualify because he justifiably feared that he would not receive a fair hearing on his motions to restore his time-sharing rights, and for relief from void orders pursuant to Fla. R.Civ.P. 1.540(b)(4) and (5) because of the prejudice or bias of Judge Dunnigan, and moved to disqualify Judge Dunnigan pursuant to the Rules of Judicial Administration 2.330(d)(1). A separate sworn affidavit averring the truth of the assertions therein and certifying the motion was made in good faith was submitted therewith, and there were no previous motions to disqualify filed or granted under Rules of Judicial Administration 2.330. The motion to disqualify was clearly legally sufficient.
3. Petitioner had filed an Amended Supplemental Petition for change of custody in March of 2011 and was given on June 2, 2011 a trial date by Hon. Janette Dunnigan of August 22 and August 23, 2011.
4. Counsel for Respondent had previously filed a Motion for the Appointment of Attorney Ad Litem for Minor Child on January 4, 2011, yet the need for the appointment of an Attorney Ad Litem did not even merit counsel for Respondent’s time to even set it for a motion hearing until six months after counsel filed the motion, until the Court set the Amended Supplemental Petition to Modify for trial on June 2, 2011. Only then did a nonsensical need for an Attorney Ad Litem become important enough to set the motion for hearing. This additional layer of government intrusion into the father/daughter relationship clearly was requested only for the purposes of delaying or preventing a hearing.
5. The Court granted the motion and appointed Susan Chapman as Attorney Ad Litem on July 12, 2011.
6. Susan Chapman made a motion to withdraw on August 2, 2011.
7. Susan Chapman, according to the Hon. Janette Dunnigan, advised the Court that attorney Janella Leibovitz would accept the case, and so on the day of trial, the Court entered an order appointing Ms. Leibovitz as Attorney ad Litem. Ms. Leibovitz is a friend of Counsel for Respondent on Facebook.
8. Respondent and her counsel filed a Motion To Continue the August 22, 2011 hearing in bad faith on August 18, 2011, one business day before the trial, at the last second so as to cause the greatest possible inconvenience and prejudice to Petitioner’s cause and his witnesses who made arrangements to testify at great expense, one witness even being from out of state.
9. On August 22, 2011, Judge Dunnigan granted Respondent’s request for a 30-day continuance filed by attorney for Respondent one business day before the trial.
10. Respondent’s Motion To Continue requested a 30-day adjournment of trial, and Judge Dunnigan engineered an open-ended adjournment of trial in this matter in the same way the social investigators, and the Attorney for Respondent, have engineered an open-ended, illegal limitation of a father’s rights to visit his daughter.
11. Judge Dunnigan easily could have heard Petitioner’s witness’ testimony on the issue of custody, and adjourned the hearing to hear from the Attorney ad Litem at a later date without compromising the “independent legal interests” of the minor child.
12. Attorney for Respondent’s dilatory attention to drafting a 30-day adjournment order pronounced orally in open court on August 22, 2011, and the Court’s ruling as an open-ended adjournment, and this contrivance to turn the continuance into an open-ended delay served merely to delay and obfuscate.
13. Petitioner filed objections to proposed orders mailed September 13, 2011; however, Judge Dunnigan has indefinitely suspended the trial dependent on what she terms Petitioner’s compliance with the Court’s order of December 22, 2009.
14. The Attorney Ad Litem issue is a red herring for the illegal limitation of a father’s rights to visit his daughter.
15. When Judge Dunnigan agreed to adjourn the custody hearing, Petitioner orally moved to have his parental and visitation rights restored (Penny A. Zunker Transcript of August 22, 2011 hearing, pp 22, 83); however, the Court either deflected the motion (p 22), or ruled that Petitioner had not properly prepared and noticed a written motion (p 83).
16. On August 23, 2011, the Court held Petitioner in contempt of court for visiting his daughter’s school on September 13, 2010, and for sending text messages to the Respondent to be relayed to his daughter in the nature of “I love you”. In so holding, and denying an oral motion to have the minor child participate with Petitioner’s therapist, Judge Dunnigan declared, “The Court will not hear any motions, any additional motions until such time there has been compliance with the 2009 order. When you do that, you may ask for additional relief.”
17. Petitioner, as he did back in 2009-2010, again in August and September of 2011 attempted to comply with the illegal and hopelessly outdated order by contacting therapist Sara King for an appointment. Ms. King as of September of 2011 refuses to allow Petitioner to participate in therapy sessions pursuant to the 2009 order. She has filed a “Motion to be Removed from the Case”, though she desires to continue as the therapist for the minor child, a position she has held for two years and one-half years. She is either not making any professional progress whatsoever, or is milking the system for fees.
18. Judge Dunnigan, in a September 26, 2011 order called “Order Striking Former Husband’s Notice For Trial” (attached hereto) has turned Respondent’s request for a 30-day adjournment into an indefinite adjournment by summarily denying without explanation Petitioner’s objections to orders proposed by counsel for Respondent.
19. Judge Dunnigan made a finding not at issue in the August of 2011 hearings, without taking proofs on the issue of whether Petitioner had complied with the December of 22, 2009 order, and declared most disconcertingly, that “At the hearing on August 23, 2011, this Court ordered the Former Husband to comply with the General Magistrate’s Order and instructed him that until he complies with same, no further action shall be taken upon his Amended Supplemental Petition to Modify”, and the Court ordered on September 26, 2011 (received by Petitioner on September 28, 2011) that Petitioner 12 months to comply with the December of 2009 Order, or the Court would dismiss Petitioner’s Amended Supplemental Petition. Not only is that a false statement of what happened at the August 23, 2011 hearing, (Judge Dunnigan declared that no further motions could be filed, not that the custody trial would not be reset for hearing) Judge Dunnigan has denied Petitioner a fair trial, indeed any trial whatsoever on his Petition directly owing to her bias and prejudice against Petitioner as a “vexatious litigant”.
20. Petitioner has been continuously sober since April of 2009, and the Court has denied him the right to see his daughter since November of 2009 without a finding of parental unfitness, in violation of the Fourteenth Amendment to the United States Constitution, and Article I, Section 9 of the Constitution of the State of Florida.
21. Judge Dunnigan has effectively decided she needs to “punish” Petitioner, without taking proofs on the issue, for not following a Court order by requiring her subjective adherence to a December 22, 2009 order Petitioner submits was issued illegally in violation of due process. Even were it legal, said order is hopelessly subjective, outdated in that the Court’s own appointed social investigator refuses to participate in the process outlined in the order.
22. The Supreme Court of Florida reversed an order denying recusal on facts similar to the present in Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978). There, it held:
Regardless of whether respondent ruled correctly in denying the motion for disqualification was legally insufficient, our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disqualification shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification. When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification. Our disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent what occurred in this case–the creation of an intolerable adversary atmosphere between the trial judge and the litigant.
23. The inquiry is supposed to focus on the reasonableness of the litigant’s belief that he or she will not receive a fair hearing:
[A] party seeking to disqualify a judge need only show a well-grounded fear that he [or she] will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind and the basis for such feeling. The question of disqualification focuses on those matters from which a litigant may reasonably question a judge’s impartiality rather than the judge’s perception of his ability to act fairly and impartially….
Facts alleged in the motion need only show that the party making it has a well grounded fear that he will not receive a fair trial at the hands of the judge. If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there…
The ultimate inquiry is “whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Id. This determination must be based solely on the alleged facts–the presiding judge “shall not pass on the truth of the facts alleged nor adjudicate the question of
disqualification.” Rogers v. State of Florida, 630 So.2d 513 (Fla. 1993; Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983).
24. Though she does not do pass on the truth of the facts in form, Judge Dunnigan does so in substance—she rules that “the motion” (unspecified by the judge) is “legally insufficient”, then she enters an order entitled “Order Denying Petitioner’s Motions”, which purports to deny all of the motions. Judge Dunnigan is a jurist of some subtlety, and she is clearly thorough and wise enough to have entered an order entitled “Order Denying Petitioner’s Motion to Disqualify”, but she chose not to do so. Petitioner’s Motion to Disqualify is patently legally sufficient on its face; Judge Dunnigan’s response leaves Petitioner without direction as to how to have his other motions, the Motion to Restore His Time-Sharing Rights, and his Motion For Relief Pursuant to Fla. R.Civ.P. 1.540(b)(4) and (5)—heard. Petitioner has been held in contempt by Judge Dunnigan for visiting his daughter’s school on September 13, 2010, and for sending text messages to the Respondent to be relayed to his daughter in the nature of “I love you”. He has been instructed by Judge Dunnigan not to file any further motions, ostensibly in violation of his right to seek see his daughter and Judge Dunnigan’s duty to be a jurist. Petitioner is justly apprehensive that if he files further motions before Judge Dunnigan, he will be jailed by her, precisely what the Florida disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent—the creation of an intolerable adversary atmosphere between the trial judge and the litigant.
WHEREFORE, Petitioner respectfully requests 12th Circuit Chief Judge Hon. Andrew D. Owens, Jr. exercise his administrative supervision over all courts within the judicial circuit in the exercise of judicial powers and over the judges and officers of the courts, and reconsider on its face Petitioner’s Motion to Disqualify Judge Dunnigan pursuant to the Rules of Judicial Administration 2.330(d)(1), and issue, or cause to be issued, disqualification of Judge Dunnigan, and clarification on said “Order Denying Petitioner’s Motions” so that Petitioner may have some idea of where, or if, his Motion to Restore His Time-Sharing Rights, and his Motion For Relief Pursuant to Fla. R.Civ.P. 1.540(b)(4) and (5) can or has been heard.
2473 Twin Drive
Sarasota, FL 34234
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have served a true and correct copy of the foregoing by first class mail to Hon. Janette Dunnigan, P O Box 3000 Bradenton FL. 34206, and to Angela D. Tobaygo, Esq., t 3307 Clark Road, Suite 201, Sarasota, FL 34231 this 25th day of October, 2011.
2473 Twin Drive
Sarasota, FL 34234
I HEREBY CERTIFY that I have served a true and correct copy of the foregoing has been hand delivered Chief Judge Andrew D. Owens Jr. Circuit Court Judge Lynn N. 2002 Ringling Blvd. Silvertooth Judicial Center Sarasota, Florida 34237 this 25th day of October, 2011.
2473 Twin Drive
Sarasota, FL 34234
Error of opinion may be tolerated where reason is left free to combat it. – Thomas Jefferson
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