Petition for Writ of Certiorari — Martinez v. Lizarribar

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Q% - yA 57 | Supreme Court, U.S,

FILED

AUG 14 1987

JOSEPH F SPANIOL, JR.

CLERK

IN THE ——

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1987

EDGARD MARTINEZ

Petitioner,

LYDIA LIZARRIBAR,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE COMMONWEALTH

OF PUERTO RICO

Edgard Martinez

Box 4994

Falls Church, Va. 22044

(703) 354-2468

Petitioner - Pro Se

August, 1987

a eS AER Wanna

Questions Presented

1. When and to what extent do the rights

and obligations of residents of a

jurisdiction cease if they both move to

another jurisdiction with different rights

and obligations.

2. Does the Full Faith and Credit Clause

protect a decision by a Virginia court

with jurisdiction over the parties and

subject matter that is challenged in

Puerto Rico and reversed by the Puerto

Rico courts.

3. What are the obligations imposed on

courts under the Due Process Clause and

the rights under the Writ of Habeas

Corpus when resolving issues relating to

child support.

4, Can a court order the incarceration of

a citizen for civil contempt when it is

at that time impossible for the citizen

to comply with the conditions imposed by

the court, and the court arbitrarily

refuses to accept any other form of

compliance of its orders.

5. Can a court require or coerce third

parties to pay monies for the release

from prison of the party involved when it

is impossible for the party in interest

to comply with the court's order.

6. Can a party relitigate a controversy

in contravention of the doctrines of

collateral estoppel and res adjudicata

and the Full Faith and Credit Clause and

the Due Process Clause of the United

States Constitution. ‘

Parties Below

The parties below were Lydia Lizarribar

and Edgard Martinez.

TABLE OF CONTENTS

ee MM oe eh bec ee eee ee eases

JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED.

= €.8 4 2 8 6 62 6.8 ¢ 8 oO

PEMeeAL QUESTIONS RAISED.........-

REASONS FOR GRANTING THE WRIT......

1. The Puerto Rico Courts Have

Disregarded Provisions of the

United States Constitution,

particularly the Full Faith and

Credit Clause, the Writ of

Habeas Corpus, and the Due

Process Clause, Matters Which

Require This Court's Attention

2. Issuing the Writ is

Necessary Because the

Violations of Petitioner's

Constitutional Rights

Are Capable of Repetition..........

3. Issuing the Writ Will Ensure

that Arbitrary Decisions in

Violation of the Due Process

Clause and Other Constitutional

eS Ee ee eT.

4. This Court Should Enunciate

Clear Guidelines for Courts to

Follow in Child Support Matters

iii

that Have Been Adjudged in

Other Jurisdictions to Ensure

the Applicability of the Full

Paith and Credit ClawuSO@. + ccesecevesss 42

Coe ae Ss So aa ne ee eee ee eee 47

Negi i325 Be a i)» Pe ee eee viii

TABLE OF AUTHORITIES

Cases Page

Judicial Decisions

Angel v. Bullington, 330 0.5.

G2, 260 © P9GGF snk suas hn ae ee ae 24

Barber v. Barber, 323 U.S. 76

Ce y FR ere rer Tres r eer ere Te. eee 23

Fauntleroy v. Lum, 210 U.S. 230

[ PPT 40 600 8a eR ees bane A3

Heiser v. Woodruff, 327 iP

ry. le & | eS. |. ree ere en z3

Maggio v. Zeitz, 333 U.S. 56,

re gi! 3s PRP err re ey Sere Tee ere 29

Milliken v. Meyer, 311 U.S.

ye ae LS Pre er ee 20

Morris v. Jones, 329 U.S. 54>,

SOT CEPR) sc kkoe se oxo chai eee ee 21

Nebraska Press Assn. v. Stuart,

623 U.3. 423595 Boece teerercceeaacns 30

Nebraska Press Assn. v. Stuart,

S23 OU.3. E3al, Baee CESS «dence ee 30

TABLE OF AUTHORITIES, continued

Page

New York Times Co. v.

Jascalevich, 439 U.S. 1317,

iS 6s 46.44 5 6-0-6:0-0-> 6 0:60:40 %58-COR ED 30

Southern Pacific Terminal Co.

v. ICC, 219 U.S. 498, 515

WEES Fa a 6606-006 6505905%40400000 008 29

Sutton v. Leib, 342 U.S. 402

PE D6 56666 4604046605060 SAR ORES 23

Titus v. Wallick, 306 U.S. 282

oy | PP rrr eres oer a 23

Union Land Bank v. Byerly, 310

oO Va Bei: > errr ore ry 25

U.S. v. Rylander, 460 U.S.

eB see} y Pr era re 29

Wiliiams v. North Carolina, 31/7

7 Re ae 2) eee 23

United States Constitution

Full Faith and Credit Clause,

Article IV, Section 1, United

PeMeee GORSCLC MELON «és osc awd eee ee 2

TABLE

Due Pr

Amendm

Consti

Writ o

I, Sec

States

OF AUTHORITIES, continued

Page

ocess Clause, Fifth

ent, United States

A219") Perry yerern es eee rer )

f Habeas Corpus, Article

tion 9, Clause 2, United

CORSERCOCICN <3... 3

Vil

- APPENDIX INDEX

Appendix

Page

APPENDIX A

Certification of Virginia

JudgMeENtS.... ccc esc cece resssceseees |

Attachment I, Order for Support.... 5

Attachment II, Respondent's

1980 Petition and 1980

JudeMeOt .ccccccccnscecessscservecsess

APPENDIX B

Certified Translation of

Judgment of Supreme Court of

the Commonwealth of Puerto Rico.. 17a

APPENDIX C

Certified Translation of

Judgment of Trial Court of

POREEO BAGO. ac isacccccscascvesaese 20a

viii

IN THE SUPREME COURT OF THE UNITFD STATES

LYDIA LIZARRIBAR

Plaintiff - Respondent

CIVIL ACTION NUM,

Vv.

87 -

EDGARD MARTINEZ CERTIORAK!

Defendant - Petitioner

PETITION

Comes now petitioner, pro se, and

respectfully avers and prays that a writ

of certiorari issue to review the

decision of the Supreme Court of Puerto

Rico of May 21, 1987.

OPINIONS BELOW

The Supreme Court of Puerto Rico

denied petitioner's Petition for

Certiorari of the decision of the trial

court, the Superior Court of Puerto Rico,

San Juan Division, which denied

petitioner's motion for summary judgment.

——

The trial court's decision is unreported

as is the decision by the Puerto Rico

Supreme Court.

JURISDICTION

The Supreme Court of Puerto Rico's

denial of review was issued May 21, 1987.

This court has jurisdiction under 28

U.S.C. Section 1258. This court has

jurisdiction also under Article III of

the United States Constitution.

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED

The violation of three provisions

of the United States Constitution form

the basis of this petition for

certiorari: Full Faith and Credit Clause,

Due Process Clause, and Writ of Habeas

Corpus of the United States Constitution.

The Full Faith and Credit Clause of the

United States Constitution, Article IV,

Section 1 of the Constitution, provides

as follows:

"Full Faith and Credit shall be

given in each State to the

public Acts, Records, and

judicial Proceedings of every

other State. And the Congress

may by general Laws prescribe

the Manner in which such Acts,

Records and Proceedings shall

be proved, and the Effect

thereof."

The Due Process Clause, Fifth

Amendment, of the United States

Constitution provides as follows:

"No person shall be held

to answer for a capital, or

otherwise infamous crime,

unless on a presentment or

indictment of a Grand Jury,

except in cases of arising in

the land or naval forces, or in

the Militia, when in actual

service in time of War or

public danger; nor shall any

person be subject for the same

offense to be put twice of

jeopardy of life or limb; nor

shall be compelled in any

Criminal case to be a witness

against himself, nor be

deprived of life, liberty, or

property, without due process

of law; nor shall private

property be taken for public

use, without just

compensation."

The Writ of Habeas Corpus is

provided for in the United States

Constitution, Article I, Section 9,

Clause 2, as follows:

"The privilege of the writ of

habeas corpus shall not be

suspended, unless when in cases

of rebellion or invasion the

public safety may require it.

STATEMENT OF THE CASE

In 1975 the parties were divorced in

Puerto Rico. There were two children in

the marriage. Respondent was granted

custody of the children and petitioner

was granted visitation rights. The

divorce decree provided, pursuant to the

intent of the parties, that petitioner

pay alimony to respondent. Petitioner

voluntarily provided additional

substantial sums for the children until

such time as respondent repeatedly

violated his right to visitation and the

enjoyment of a relationship with his two

children.

In 1979 both parties established

permanent residency in the State of

Virginia. Kespondent moved the daughter

with her to Virginia and left the son

living with respondent's parents in

Puerto Rico, notwithstanding the requests

made by petitioner to have his son live

with him in Virginia.

In 1980 respondent sued petitioner

in the Virginia courts alleging that

petitioner was delinquent in child

Support payments under the divorce decree

of the court of the Commonwealth of

Puerto Rico from approximately July of

1979 through 1980.

Petitioner presented various

defenses and counter allegations. Among

these defenses and counter allegations

were the fact that respondent was

depriving petitioner of his visitation

rights and had left the son living with

respondent's parents to deprive

petitioner of his rights to enjoy a

relationship with the children. Under

Virginia law, this latter action would

preclude respondent from obtaining child

Support.

The judge in Virginia noted that at

the time of the hearing the son was

living with petitioner in Virginia, and

the daughter was living with respondent

in Virginia. The trial judge in Virginia

dismissed the case ruling that under the

divorce decree of Puerto Rico respondent

was granted alimony, not child support,

and that her right to alimony had been ,

terminated as a matter of law due to

respondent's subsequent marriage.

Additionally, the evidence reflected that

both respondent and petitioner were

employed as attorneys and had comparable,

if not identical, incomes and were

fo)!

equally responsible for the support of

each child.

The trial judge in Virginia also

ruled that respondent could commence a

new support petition with the Court of

Virginia. Respondent, within an hour,

proceeded to commence said new child

Support action but later dismissed the

same. Respondent did not appeal the

adverse judgment regarding the fact that

the divorce decree called for alimony and

not child support. The judgment became

final thereafter.

In 1984, respondent, by then a

citizen of the Commonwealth of Puerto

Rico, commenced a second action in

Virginia alleging again that petitioner

was in arrears in child support payments

under the divorce decree of Puerto Rico.

Respondent again alleged that petitioner

was delinquent for the period included in

the prior Virginia judgment in 1980, and

thereafter.

Again petitioner responded to the

new allegations, as well as the

previously adjudicated allegations.

Among other defenses, petitioner raised

the defenses of collateral estoppel and

res adjudicata. The case was dismissed

on the merits again. Again, respondent

did not appeal the adverse judgment.

This second judgment also became final.

On March 16, 1986, petitioner

traveled toa Tuerto Rico on a temporary

job assignment. During the trip he was

summarily incarcerated, because

respondent alleged that petitioner owed

in excess of $20,000 in child support

under the 1975 Puerto Rico divorce

decree.

On March 20, 1986, petitioner was

served a notice to appear within one and

one half hours before the trial court in

Puerto Rico to show cause why he should

not be held in civil contempt for

allegedly not complying with provisions

of the divorce decree from that same

court of Puerto Rico. Although the

divorce decree stated, pursuant to the

original intent of the parties, that

petitioner agreed to pay alimony, the

trial court in Puerto Rico, at the urging

of respondent, chose to interpret the

decree as requiring child support. This

issue was adjudicated twice by the courts

of Virginia in 1980 and in 1984. The

trial court in Virginia interpreted the

divorce decree to mean alimony to which

respondent was not entitled.

The summary incarceration occurred

notwithstanding the fact that petitioner,

who was on a temporary job assignment in

Puerto Rico, called the trial court :judge

and notified him of the short notice and

inability to adequately prepare himself,

that he was on a.work assignment, and

that he was willing to appear at a future

date to raise his defenses, particularly

the existence of prior judgments

between the parties on the same matter

before a court of Virginia with

jurisdiction over the parties and subject

matter. The trial court in Puerto Rico

denied petitioner's requests an@d

petitioner was incarcerated that same

night, and thereafter for a total of

sixteen days until ordered released by

the Supreme Court of Puerto Rico. i

Petitioner's release from prison was

conditioned upon the payment of $7,000 by

third parties.

During the sixteen days of the

incarceration the trial court of Puerto

Rico refused to issue a ruling on its

order for incarceration so that

petitioner's counsel could file an appeal

before the Supreme Court of Puerto Rico.

Petitioner was not permitted to file a

Writ of Habeas Corpus, because the

Supreme Court of Puerto Rico held in a

prior decision that the Writ of Habeas

Corpus was not applicable in Puerto Rico

in cases in which a person was

incarcerated for civil contempt stemming

from proceedings involving child .upport

payments and that only a certiorari

‘

proceeding could be used to ascertain

rights arising from civil contempt

incarcerations.

During his incarceration, petitioner

was allowed to appear before the trial

court. The trial court continuously

demanded the full payment of the

allegedly owed child support as a

condition for release from prison. In

2 \

addition, the trial court indicated that -

no judgments contrary to the court's

understanding of, and the laws of Puerto

Rico, would be recognized, regardless of

the United States Constitution. The

judge from Virginia was available for a

telephone conference call as to the

validity and finality of the Virginia

judgments and the trial court judge

refused to accept the call for the stated |

reason.

The trial court judge stated that )

judgments by a State Court of Virginia

are not entitled to the protection of the

Full Faith and Credit Clause of the

United States Constitution even though

the judgments of Virginia were issued by

a court with jurisdiction over the

parties and subject matter and

uncontroverted, authenticated copies of

the judgments were admitted into evidence

by the trial court in Puerto Rico. If

permitted to proceed, the trial court

will deny petitioner his constitutional

rights by permitting respondent to select

yet another convenient forum to

adjudicate her claims after two

unsuccessful attempts in Virginia on the

Same cause of action and same set of

facts.

Petitioner filed a motion for

summary judgment alleging his rights

under the Full Faith and Credit Clause of

the United States Constitution and the Due

Process Clause. The suspension of right

to file a Writ of Habeas Corpus in cases

involving child support had already been

decided by the Supreme Court of Puerto

Rico. Additionally, petitioner brought

forward other claims and rebuttals to

respondent's opposition to the motion of

summary judgment. Some will be discussed

later.

The proceedings before the trial

court in Puerto Rico resulted in the

summary incarceration of petitioner from

March 20 to April 6, 1986,

notwithstanding the uncontroverted proof

of the existence of judgments from a

State Court in Virginia in 1980 and in

1984, holding that the decree was for

alimony and not child support. By

Petitioner was ordered incarcerated until

he could, prior to any hearing, pay to

the court all of the alleged monies owed.

Petitioner repeatedly asserted his

rights, including the fact that he was

without the financial means to pay the

required sums. The trial judge stated in

open court on various occasions that the

judgments from Virginia did not exist,

and if they did, he would not honor them

because they were contrary to his

understanding of the laws of Puerto Rico.

These views became part of the judgment

issued by the trial court in Puerto Rico

denying petitoner's request for summary

judgment.

Furthermore, the judgment of the

trial court of Puerto Rico totally

ignores most, if not all, of petitioner's

defenses, counter allegations, and

rebuttals. The court ignored the

requirements of Virginia regarding

dismissals or nonsuits that were brought

to its attention. Virginia law only

permits one dismissal without prejudice,

Even assuming arguendo as respondent

asserts, that she withdrew the 1980

action, Virginia requires that she

recommence her action within six months,

Respondent failed to recomménce her

action within six months in 1980, because

her case was dismissed on the merits.

Her only recourse was an appeal which she

failed to pursue. Thus, the trial court

in Puerto Rico also ignored that in

Virginia after a matter is adjudicated

and dismissed, withdrawal is impossible

as respondent asserts. Instead,

respondent filed the same cause of action

in Virginia in 1984 which was also

dismissed.

The March 16, 1987, order of the

Puerto Rico trial court attributed fraud

to petitioner's translation adopted by

the court of Virginia. The Puerto Rico

trial court totally ignored the fact that

the court of Virginia was notified that.

the proffered translation was performed

by petitioner and that respondent

received a copy of this translation and

proffer well in advance of the hearing

before the court of Virginia in 1980.

The Puerto Rico trial court also ignores

that respondent submitted her own

uncertified translation to the Virginia

court which was not adopted by the court.

The Puerto Rico trial court ignores

the fact that petitioner submitted yet a

third translation made in Puerto Rico by

a court certified interpreter during his

incarceration in 1986. This court

certified interpreter also translated the

1975 divorce decree to require the

payment of alimony. The Puerto Rico

trial court ignores the fact that during

the 1986 proceeding in Puerto Rico

respondent profferred a six year old

translation of the 1975 divorce decree

clearly obtained one week after the 1980

adjudication in Virginia. The inference

to be drawn from respondent's action in

obtaining a court certified

interpretation after the 1980

adjudication in Virginia is that

respondent understood the finality and

adjudication of the controversy and was

deliberating an appeal, a right

respondent knew she had since she was an

attorney and member of the _ bat

The Puerto Rico trial court ignores

the fact that on its face the judgment of

Virginia adjudicated the controversy over

child support or alimony and the fact

that other proceedings consonant to this

adjudication may have been commenced and

dismissed. The court ignores the fact

that respondent has not presented any

proof to the effect that the controversy

was not adjudicated in Virginia except by

her assertions through pleadings. The

court ignores the second adverse judgment

on the merits by the court of Virginia

and the respondent's failure to appeal.

The court ignores the fact that

respondent was a resident of Virginia at

the time of

was subject to

established

laws of Virgin

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The

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court did not address or even acknowledge

the issue of Full Faith and Credit in its

order of March 16, 1987. Moreover, the

trial court did not acknowledge the

existence of two prior final judgments

from the courts of Virginia adjudicating

the same issues in its order of March 16,

1987. On appeal from the trial court's

dismissal of petitioner's motion for

Summary judgment, the Supreme Court of

Puerto Rico denied certiorari on ilay 2l,

1987.

Petitioner relied on United States

Supreme Court cases in his motion for

Summary judgment in asserting the

applicability of the Full Faith and

Credit Clause to the instant set of

facts. In the case of Milliken v. Meyer,

311 U.S. 457, 462 (196G), the VU.5.

Supreme Court stated:

"But if the judgment on its fact

appears to be a ‘record of a

court of general jurisdiction,

such jurisdiction over the

cause and the parties is to be

presumed unless disproved by

extrinsic evidence, or by the

record itself.'....In such case

the Full Faith and Credit

Clause of the Constitution

precludes any inquiry into the

merits of the cause of action

the logic and consistency of

the decision, or the validity

of the legal principles on

which the judgment is

based...Whatever mistakes of

law may underlie the

judgment...it is conclusive

as to all the media .

concludendi.'"

Under the Full Faith and Credit

Clause, the trial court was obligated to

recognize the October 21, 1980, and

October 4, 1984 judgments of Virginia

which fully and completely adjudicated

the claims of the parties. Under the

Full Faith and Credit Clause, tke

judgments of the courts of a state must

be accorded the same Full Faith and

Credit in other states. Morris v. Jones,

329 U.S. 545, 547 (1947).

In Morris, the U.S. Supreme Court

stated that "...full faith and credit is

a more inexorable command; its

applicability does not turn on a balance

of convenience as between litigants."

Respondent's statement on the trial court

record, nonetheless, was to the effect

that she "...can direct her efforts to

vindicate and validate her rizhts in any

manner, within the law, that is most

prudent and convenient." This is

precisely what respondent has done by

filing three separate suits on the same

cause of action between 1980 and 1986.

Petitioner asserts that the

judgments of Virginia dated October 2l,

1980, and October 4, 1984 are correct and

entitled to the full force and effect of

the law. The 1980 judgment from Virginia

was a judgment on the merits. In 1984,

respondent's action was dismissed on the

merits for her failure to respond to a

court order requiring her sworn response

to petitioner's answer. Respondent

failed to appeal either judgment in

Virginia. Thus, both judgments became

final, and petitioner is entitled to rely

on those judgments and not face yet a

third lawsuit involving the Same facts in

yet another jurisdiction. Even if for

any reason the 1980 and 1984 Virginia

judgments can be found to be in error,

the United States Supreme Court has held

that a state must honor the judgments of

another state pursuant to the Full Faith

and Credit Clause even if the judgment

was in error. Fauntleroy v. Lum, 210

U.S. 230 (1908); Williams v. North

Carolina, 317 U.S. 287 (1942); and Titus

ws weseice, 306 U.S. 282 (1938).

In Sutton ¥. Leib, 342 U.S. 402

(1952) and Barber ¥. Barber, 323 U.S. 76

(1944), the U.S. Supreme Court held that

a judgment between the parties is not

subject to a collateral attack. In

Barber, the U.S. Supreme Court stated

that "Neither the full faith and credit

clause of the Constitution nor the Act of

Congress implementing it says anything

about final judgments or, for that

matter, about any judgments. Both

require that full faith and credit be

given to ‘judicial proceeding' without

limitation as to finality." Not only is

respondent estopped from relitigating the

1980 and 1984 Virginia judgments, she is

estopped from relitigating all issues

that should have been brought to the

court's attention at that time. Angel v.

Bullington, 330 U.S. 183, 186 (1946). In

Angel, the U.S. Supreme Court held:

After an adverse decision

against Bullington on a cause

of action...Bullington

wants to start all over in

another North Carolina

court...The doctrine of res

judicata is a barrier against

it. Litigation is the means

for vindicating rights, but it

may also involve unwarranted

friction and waste...Litigation

is needless if, by fair

process, a controversy has once

gone through the courts to

conclusion....And it has gone

through, if issues that were or

could have been dealt with in

an earlier litigation are

raised anew between the same

parties.

See also Heiser v. Woodruff, 327 U.S.

726, 735 (1945); and Union Land Bank ve

Byerly, 310 U.S. 1 (1939).

Petitioner raised the second and

third federal questions in this case by

his incarceration for civil contempt and

the requirement that third parties post

$7,000 for petitioner's release from

prison, both of which violate the Writ of

Habeas Corpus and the Due Process Clause.

On March 20, 1986, petitioner was

incarcerated without a hearing and

without a sworn statement by respondent

to the contested facts. In fact, the

record reflects the trial court in Puerto

Rico postponed the hearing. However,

during meetings off the record the

decision was made to issue a bench

warrant for petitioner's arrest.

Petitioner was incarcerated for sixteen :

(16) days before the Supreme Court of

Puerto Rico ordered his release by order

dated April 3, 1986, which resulted from

petitioner's petition for certiorari. A

request by petitioner to transcribe these

trial court proceedings has been denied

by the Puerto Rico courts. This is a

violation of petitioner's right to due

process under the Fifth Amendment of the

United States Constitution.

The Supreme Court of Puerto Rico had

suspended the right to a Writ of Habeas

Corpus in civil contempt proceedings

resulting from child support arrearages

which jmndcted on petitioner's

incarceration. This not only violates

the United States Constitution regarding

the existence of Habeas Corpus Writs, but

also violates the Due Process postulates

of the Fifth Amendment of the United

States Constitution. This ailows the

Supreme Court of Puerto Rico to

incarcerate United States citizens for

longer periods of time than result from

the expeditious consideration of Writs of

Habeas Corpus filed before the Puerto

Rico Supreme Court. To allow a citizen

to be incarcerated under such conditions

is contrary to the United States

Constitution.

A one and a half hour notice to

appear before the trial court, such as

petitioner on March 20, 1986, does not

constitute appropriate notice under the

Due Process Clause of the United States

Constitution. Petitioner presented

uncontroverted evidence before the trial

court during his incarceration of his

present inability to comply with the

court's request for full satisfaction of

the amount allegedly owed. The

uncontroverted evidence proved that

petitioner was terminated from his

Wea 6 On al bs a oe

employment in November of 1984, and that

iach

since 1984 had only obtainec tenporary

employment on a week by week basis as a

temporary secretary or consultant.

Further, the uncontroverted evidence

proved that petitioner owned no property .

except for personal belongings with an

inconsequential value.

This court has held that when

compliance with a court order is

impossible, neither the moving party nor

the court has any reason to proceed with -—

the civil contempt action. U.S. v

Rylander, 460 U.S. 752, 757 (1983). This

court has further held that to jail one

for civil contempt of omitting an act he

is powerless to perform would make the

proceeding purely punitive, to describe

it charitably. Maggio v Zeitz, 333 U.S.

56, 72 (1948), Clearly, to demand the

payment of more than $20,000 as a

condition precedent to release from jail,

when the uncontroverted evidence proves

that petitioner could not comply with

such a request, is contrary to the

mandates of this court. It is clear that

civil contempt matters, such as

petitioner faces, are the type of case

or controversy "capable of repetition,

yet evading review" Southern Pacific

Terminal Co. v. ICC, 219 U.S. 498, 515

(1911).

This court has found there is a need

for a prompt decision when constitutional

rights and protections are involved

This is is a precept well established by

this court. Nebraska Press Assn. v.

stwert, 423 US 329, £325. (1975) 3

Nebraska Press Assn. v. Stuart, 423 US

1327, 1328 (1975). There is no greater

right protected by the Constitution than

the right to freedom. New York Times Co.

v. Jascalevich, 439 US 1317, 1319 (1978).

As a result of petitioner's

incarceration, third parties were coerced

into posting the sum of $7,000 to secure

petitioner's release from prison and to

guarantee that petitioner would appear at

teh te Petitioner was, at all relevant

times herein, without employment and

without the financial means to pay the

sum sought by respondent or to post any

funds for his release from prison. The

trial court construed this sum as a

Mic encieteniiciamunmimaiiiaihaiaaiaaii

guarantee for payment of any sums

adjudged to be owed to respondent. The

Supreme Court of Puerto Rico sttivece

this position in its April 3, 1986 order

and reaffirmed this in its order dated

April 24, 1987. The sum of $7,000 has

been within the trial cou c's control

Since on or about April 3, 1986, and

unavailable to petitioner's mother and

Sister. On April 16, 1987, the trial

court ordered the $7,000 to be paid to

respondent. These funds were ordered

to be paid even though no hearing has

been held to adjudicate the claims of the

parties. The hearing is not scheduled

until September of 1987,

Although petitioner presented

uncontroverted certified judgments,

admitted into evidence, that the matters

had been adjudicated by the courts of

Virginia in 1980 and 1984, the trial

court denied all requests for

petitioner's release from prison and

requested, acceding to the requests of

respondent, that petitioner's mother and

sister provide collateral guarantees for

the payment of the $20,000 alleged to be

owed.

To require that the release of

petitioner be conditioned to the meeting

of a demand that third parties provide

acceptable compliance with a court order

is contrary to the rights under the

Constitution. At the least, it is a

taking of property without just

compensation. It is contrary to law to

require compliance by third parties when

the person involved is unable to comply.

The release from prison of

petitioner should have been granted upon

the uncontroverted showing of the

impossibility of his compliance with the

order to pay more than~-$20,000. It is

wholly improper to coerce the payment of

$7,000 from third parties, at

respondent's urging, who knew of the

recent butchering of eight prison inmates

in the penitentiary where petitioner was

incarcerated, and feared for the life and

limb of petitioner. These third parties

have minimal income and had no legal

obligation to provide compliance with the

court's order. However, in light of the

refusal of the trial court to recognize

petitioner's right to immediate release

from prison, third parties suffered a

taking without just compensation. The

third parties were faced with the

knowledge that the living and safety

conditions in the penitentiary where

petitioner was incarcerated were so bad

that the United States District Court for

the District of Puerto Rico had placed

the penitentiary in the hands of court

appointed trustees.

REASONS FOR GRANTING THE WRIT

The Puerto Rico Courts Have

Disregarded Provisions of the

United States Constitution, |

particularly the Full Faith and

Credit Clause, the Writ of

Habeas Corpus, and the Due

Process Clause, Matters Which

Require This Court's Attention

This court has repeatedly held that

it is the final atkiker of rights under

the Full Faith and Credit Clause. The

trial court of Puerto Rico totally

disregarded the cases of this court

regarding the Full Faith and Credit

Clause which were brought to the trial

court's attention and discussed earlier

in this petition. The Puerto Rico

Supreme Court declined to review the

trial court's actions. The judgment of

the trial court of Puerto Rico does not

even mention any of these United States

Supreme Court cases.

Petitioner submits that the United

States Constitution and this court's

decisions interpreting it are binding on

the courts of Puerto Rico. This court

should ensure that rights under the

constitution are not lost. The trial

court of Puerto Rico totally ignored case

law precedent of this Court which was

brought to the trial court's attention in

the request by petitioner for a summary

judgment.

If not reversed, the courts of

Puerto Rico, and other states, will be

allowed to reverse and ignore judgments

by the courts of other jurisdictions

which could have, and should have, been

appealed in the other jurisdiction if a

party disagreed with the result. The

Courts of Virginia, with jurisdiction

over the person and subject matter,

adjudicated the controversy in 1980 and

1984 between petitioner and respondent,

and respondent did not appeal the adverse

decision, a right she possessed.

Issuing the Writ is Necessary

Because the Violations of

Petitioner's Constitutional Rights

Are Capable of Repetition

The rule of law of this Honorable

Court to issue this writ of certiorari is

found in the cases of Nebraska Press

Association v. Stuart, 432 U3. taeF

(1975), 423 U.S. 1319 (1975), 427 U.S.

539 (1978), New York Times Co. v.

Jascalevich, 439 US 1317 (1978), and

Southern Pacific Terminal Co. v. ICC, 219

U.S. 498, 315 (i9i4);

In the case of Nebraska Press

Association v. Stuart, 423 U.S. 1319

(1975) this Court held that:

"It is apparent, therefore,

that if no action on the

applicant's application to the

Supreme Court of Nebraska could

be anticipated before December

1, as the above-described

ene eee

LP ELA ME

Dane eT ee gO TREE a ae

a te ES A oe

_— a a

communication from that court's

clerk intimated, a definitive

decision by the State's highest

court on an issue of profound

constitutional implications,

demanding immediate resolution,

would be delayed for a period

so long that day-to-day

duration of that delay would

constitute and aggravate a

deprival of such constitutional

rights, if any, that the

applicants possess and may

properly assert. Under those

circumstances, I would not

hesitate promptly to act."

In the case of Nebraska Press

Association v. Stuart, 423 U.S. 15327,

i326,

that:

1329, 1330 (1975) this Court held

"One full week has elapsed

Since my in-chambers opinion

was filed. No action has been

taken by the Supreme Court of

Nebraska during that week. The

clerk of that court has~stated,

however, that the applicants

have been allowed to docket

their original application by

way of mandamus to stay the

order of the District Court of

Lincoln County, and that the

matter is set for hearing

before the Supreme Court of

Nebraska on November 25.

Whether the Nebraska court will

reach a definitive decision on

November 25, or very shortly

thereafter, I do not know.

Obviously at least 12 days will

have elapsed, without action,

since the filing of my in-

chambers opinion, and more than

four weeks since the entry of

the District Court's

restrictive order. I have

concluded that this exceeds

tolerable limits. Accordingly,

subject to further action by

this Court, and subject to such

refining action as the Supreme

Court of Nebraska may :

ultimately take on the

application pending before, it,

I issue a partial stay....

Where, however, a direct prior

restraint is imposed upon the

reporting of news by the media,

each passing day may constitute

a separate and cognizable

infringement of the First

Amendment....By deferring

action until November 25, and

possibly later, the Supreme

Court of Nebraska has decided,

and, so far as the intervening

days are concerned, has finally

decided, that this restraint on

the media will persist. In

this sense, delay itself is a

final decision....

Yet neither can I accept that

this Court, or any individual

Justice thereof, is powerless

to act upon the failure of a

State's highest court to lift

ee a ee |

what appears to be, at least in

part, an unconstitutional

restraint on the press. When a

reasonable time in which to

review the restraint has

passed, as here, we may

properly regard the state court

as having finally decided that

the restraint should remain in

effect during the period of

delay."

In the case of New York Times Co. v.

Jascalevich, 439 US 1317, 1319 (1978)

this Court held that:

se ¢o@ CHiniasl or civii

contempt judgment imposed for

refusing to obey the order

presents a different

consideration. -At least where

such orders are entered against

nonparty witnesses, such as the

present applicants, the.

judgments are "final" for the

purposes of appellate

jurisdiction within the federal

System. They are also final for

purposes of this Court's

jurisdiction to review state-

court judgments if they have

been rendered by the highest

court of the State in which

decision could be had."

The courts of Puerto Rico have

already, by their actions and inactions,

indicated their position with respect to

petitioner. The courts of Puerto Rico

intend to incarcerate petitioner, and

other citizens who are without financial

means, even while the proceedings are on-

going and prior to any adjudication on

the merits. Petitioner, upon prevailing |

with any of his claims and defenses would

be exonerated from any obligation to

respondent. Further, no contempt or

A ee EE NRE A mg

incarceration for contempt could be

legally carried out against petitioner.

There is more than a possibility that the

incarcerations will repeat themselves,

not only with regards to petitioner, but

with regards to other U.S. citizens that

live or may find themselves present in

Puerto Rico. i

In the case of Southern Pacific

Terminal Co. v. ICC, 219 U.S. 498, 515

(1911) this Court held that it would

exercise its jurisdiction in matters that

involved a case or controversy that - was

"capable of repetition, yet evading

review". Petitioner submits that his

incarceration before the resolution of

his claims is a violation of his rights

under the Due Process Clause of the

United States Constitution, that it is

capable of repetition, and yet in

Situations similar to the one petitioner

is in will evade review, placing

petitioner in a position where he will

suffer the irreparable injury of losing

his liberty and personal freedom for an

indeterminate period of time.

After obtaining an order of

for release from prison from the Supreme

Court of Puerto Rico, petitioner has had

to relitigate the two final judgments

from the state court of Virginia in the

courts of Puerto Rico to no avail.

Issuing the Writ Will Ensure

that Arbitrary Decisions in

Violation of the Due Process

Clause and Other Constitutional

Rights Are Corrected

The trial court of Puerto Rico's

arbitrary disregard of petitioner's

uncontroverted evidence regarding the

validity of the Virginia judgments, the

propriety of his actions and correctness

of his translation as verified by third

sartien, and lack of means to comply with

the requirements of full satisfaction,

does not comply with the reyguiresents of

the Due Process Clause. These and the

acceptance by the trial court of

respondent's allegations and reasoning,

deprived petitioner of his rights under

the Due Process Clause.

This Court Should Enunciate

Clear Guidelines for Courts to

Follow in Child Support Matters

that Have Been Adjudged in

Other Jurisdictions to Ensure

the Applicability of the Ful]

Faith and Credit Clause.

This Court must ensure that trial

courts do not trammel upon the rights of

U.S. citizens when courts are pursuing

social goals. The United States

Constitution's restrictions upon

governmental and judicial actions and the

rights of U.S. citizens to be protected

by the U.S. Constitution must not be

eroded. The number of courts that are

adjudicating child support matters, the

incarceration orders that are being

unjustly issued, and the loss-of the

protections guaranteed by the United

States Constitution must be forcefully

proscribed by this Court.

In petitioner's case, issues arose

during his incarceration by which his

rights under the Constitution were

ignored by the trial court. The first

was the fact that he was incarcerated and

held indefinitely without a hearing. The

trial court ordered him incarcerated

after a one and a half hour summons to

appear, to which petitioner bread his

willingness to appear at a later time

with counsel, and which was denied.

After summary incarceration petitioner

was kept incarcerated notwithstanding

raising the fact that the matters had

been adjudicated and that he was

illegally detained.

In addition, petitioner was required

to pay an alleged debt of more than

$20,000 even when the uncontroverted

evidence was to the effect that he had no

property, and could not come forward with

this amount of money. Additionally, he

was informed that the Supreme Court of

the Commonwealth of Puerto Rico had

suspended the Writ of Habeas Corpus in

cases of child support arrearages.

Further, the trial court, as per the

request of respondent, required that

third parties were obliged to guarantee,

even when petitioner as the sole

responsible party could not guarantee

payment, before petitioner could be

released from prison. This is violation

of the Due Process Clause and the case

law of this Court. that establishes that a

person can not be incarcerated in

contempt of a court order when compliance

with the court is presently impossible.

Petitioner was able to obtain people to

guarantee his appearance in court for a

hearing but the Puerto Rico courts

dissallowed this and required that third

parties were obliged to guarantee

payment. The trial court stated that

respondent had indicated that

petitioner's mother, a retiree, should

mortgage her only property and residence,

in order for petitioner to be released.

This is a taking without just

compensation of third party monies under

duress. This behavior by the courts of

Puerto Rico and any state in violation of

the Constitution must be energetically

proscribed by this Court through the

issuance of this Writ.

This Court should clearly establish

that when a person, in petitioner's

position, presents uncontroverted

évidence of the inability to comply with

a court order, incarceration for civil

contempt is inappropriate under the

United States Constitution. This Court

must leave no doubts that the United

States Constitution mandates apply to

Puerto Rico and the States of the Union

and that they do not allow incarceration

for civil contempt when compliance is not

possible. During petitioner's

incarceration, hundreds of persons

similarly situated were also incarcerated

in the same prison. During his

incarceration, petitioner was informed

that one third of the more than fifteen

hundred prisoners, were imprisoned as a

result of civil contempt orders for child

Support. All were men, and most of them

could not comply with the requirements

set by the courts for their release from

prison, yet were kept incarcerated.

CONCLUSION

This court should issue the Writ to

guarantee and protect the rights of

petitioner and others under the United

States Constitution.

Respectfully submitted this 14th day

of August of 1987.

CERTIFICATION OF SERVICE

I hereby certify that on this day I have

delivered a copy of this petition to Mr.

Juan M. Masini-Soler, Esquire, counsel

for respondent, via certified mail,

return receipt requested, at Box 3367,

Old San Juan, Puerto Rico, 00904.

Oe Fay, a

= cK a

Edgard R. Martinez

Petitioner - Pro Se

Renatige

Pay,

etna

Fels

ry %

Se os

$45 3

isos

of ee

APPENDIX A

THE STATE OF VIRGINIA

7] ss

FAIRFAX COUNTY 1

IN THE DISTRICT COURT, JUVENILE AND

DOMESTIC RELATIONS, FAIRFAX COUNTY, STATE

OF VIRGINIA.

I, Barbara J. Daymde, Court Clerk of

Fairfax County, the State of Virginia, do

hereby certify that by reason and virtue

of being such Court Clerk, I am the legal

custodian of and have under my charge and

care all of the record books and files of

the District Court of Fairfax County,

Juvenile and Domestic Relations, that

there is no other Clerk of said District

Court of said Fairfax County, Juvenile

ane Domestic Relations, and I do further

certify that the above and foregoing is a

full, true and correct, and complete copy

of Consent Order in Case No. 80841-K,P&Q

entitled IN RE: Edgard Martinez, Edgard

Martinez (child) and Gretchen Martinez

(child), In the Juvenile and Domestic

Relations Court for the County of

Fairfax, the State of Virginia, as

appears from the records and files

thereof.

IN WITNESS WHEREOF, I hereunto set my

hand and seal at my office in the City of

Fairfax, County of Fairfax, the State of

Virginia, on this the 9th day of April,

1986.

(signed)

COURT CLERK OF FAIRFAX COUNTY,

The State of Virginia

THE STATE OF VIRGINIA

J ss

FAIRFAX COUNTY q

I, Michael J. Valentine, a Judge

of the District Court, Juvenile and

Domestic Relations, of Fairfax County,

et Oe Lees

a a a Leer © ea neyo

PbO RN, eet AO) A OR Te I Ie he NC cme at IIE me Oe ee 8 A eye

the State of Virginia, do hereby certify

that the above named Barbara J. Daymude,

by whom the certificate was made, was at

the date thereof, Clerk of said Court,

duly acting and qualified, and that the

said certificate is in due form of law

and made by the proper officer and the

attached orders are final judgments of

this Court.

(signed)

JUDGE OF THE DISTRICT COURT OF FAIRFAX

COUNTY, Juvenile and Domestic Relations,

State of Virginia

ee eae ia ea ee ee

THE STATE OF VIRGINIA

7] ss

FAIRFAX COUNTY q

I, Barbara J. Daymude, Court Clerk

of Fairfax County, Juvenile and Domestic

Relations, the State of Virginia, do

hereby certify that the Honorable Michael

J. Valentine, whose name is subscribed to

the foregoing certificate, was at the

date of making the same, a Judge of said

Court, duly elected, and qualified as

such, and that his signature to the same

re genuine.

IN WITNESS WHEREOF, I have hereunto set

my hand and affixed my official Seal at ~-

my office in Fairfax, said County and

State, this the 9th day of April, 1986.

(signed)

COURT CLERK OF FAIRFAX COUNTY,

The State of Virginia

OO oooEEEEOEOEEEEEeEeEeeee SS ree ,eEeEOOOOO |

Attachment I

APPENDIX A

Virginia:

In the Juvenile and Domestic

Relations District Court for Fairfax

County

Commonwealth of Virginia

05-01

v. Case 080841-K

Their OAT 84-464-s

Martinez, Edgard R.

Defendant

ORDER FOR SUPPORT

This cause came on to be heard this

day of vo 19 » upon the

Petition pursuant to Title 20, Chapter

5.2 of the 1950 Code of Virginia, as

amended.

The Court finds Defendant has a duty

of support for and based upon

the financial needs of said dependents

and Defendant's ability to pay, Defendant

is hereby ordered to pay $ per

for the support of said dependents

commencing

Further, Defendant is hereby placed

on probation for an period of time

and must follow these rules:

Defendant must contact his counselor

within 5 days of change of address or

employment.

Defendant, having agreed to execute

wage assignment, assumes full

responsibility for keeping said

assignment in full force and effect

regardless of changes in employment.

Defendant must immediately contact

counselor concerning any late or missed

payment.

7-5-84 (check mark) Continue 60 days for

plaintiff to answer charges made by the

defendant. Response must be under oath

plaintiff is to attach her pay voucher to

Heessenneenesenenieeieneeieiaiamaaiiimiaaanaail

answer.

A COPY TESTE

BARBARA J. DAYMUDE by DEPUTY CLERK

Note on left margin, handwritten (signed)

10-4-84 7

Dismissed

The defendant is directed to make

all support payments to:

Fairfax County Juvenile and Domestic

Relations Court, Support Section-4000

Chain Bridge Road, Fairfax, Virginia

22030.

Payments must be by certified check,

cashier's check or money order payable to

Lydia Lizarribar. Inclued case number on

payment.

Your Probation Counselor Frank Sedei

can be reached at 691-3241.

Failure to comply with any part of this

order will result in the issuance of a

EEO eooO

contempt citation and such other

penalties as the law provides.

Date Judge

I have received copy of this order

Date Defendant

Attachment I]

APPENDIX A

COMMONWEALTH OF VIRGINIA

The Juvenile and Domestic Relations Court

of Fairfax County,

THE COMMONWEALTH OF VIRGINIA, at the rel,

Lydia Lizarribar, 6641 Wakefield Dr.

#613, Alexandria, VA Complainant

Edgard Ratael (sic) Martinez, c/o EEOC

Room 900, 5203 Leesburg Pike, Falls

Church, VA Defendant

TO the Honorable Judge of said Court:

Your petitioner, Lydia Lizarribar,

respectfully represents:

1. That on the 21st dav of July, 1966,

the said defendant, Edgard Martinez, and

Lydia Lizarribar (Give Maiden Name) were

lawfully married by

in the of San Juan, State

of Puerto Rico.

2. That on or about the lst day of

August 1979 the said defendant did,

without just cause, desert and wilfully

neglect and refuse and fail to provide

for the support and maintenance of his

said wife, and the following male

children under the age of seventeen

years, to-wit:

Edgard Born 11/5/72

and the following female children under

the age of seventeen years, to-wit:

Gretchen Born 7/21/67

and the following children above said

ages who are crippled or otherwise

incapacitated for earning a living, to-

wit:

Born

such wife, child or children being then

and there in necessitous circumstances.

10a

3. That Your Honor has jurisdiction in

the premises Sec. 20-61, Va. Code, 1950,

as amended in 1954 by reason of the fact:

a. That at the time of desertion

such wife, child or children were living

b. That such child or children are

now living in

in necessitous condition and have

remained therein in such condition with

the knowledge an acquiescence of said

defendant; or

c. That the defendant is now and

may be found, living in

4. That the facts and circumstances

of the case are as follows: "He has

unlawfuliy failed to provide any support

for his children being in necessitous

circumstances, since 8/1/79." (20-61)

WHEREFORE, Your petitioner prays that

proper process nay issue; that the Court

lla

may make all proper and necessary

inquiries into the matters herein set

forth and enter such judgement or orders

in the premises as to the Court may seem

meet; and your petitioner will ever

prayer, etc.

(signed) Lydia Lizarribar

Petitioner sign here Address

Relation to Complainant or Defendant

Date

COMMONWEALTH OF VIRGINIA: TO-WIT.

This day personally appeared before me,

Keith True Intake Officer of Court in and

for the County and State aforesaid, the

above-named petitioner who, upon being

duly sworn makes oath that the facts

stated in the foregoing petition are true

to the best of his knowledge, information

and belief.

Given under my hand, this 27th day of

August, 1980.

l2a

(signed) Keith A. True

Intake Officer

A copy teste: Barbara J. Daymude

By: Deputy Clerk

(Typed on the right hand margin is the

following note):

I hereby request permission to withdraw

this petition: (signed) Lydia Lizarribar

Complainant, 12/09/80

IN THE JUVENILE AND DOMESTIC RELATIONS

COURT OF FAIRFAX COUNTY

COMMONWEALTH OF VIRGINIA

at the rel. of:

VS.

This cause came on to be heard this

date upon the petition of desertion and

or non=support, the Defendant not being

represented by counsel, entered a plea of

not guilty, and upon trial the Court does

now find the said Defendant not guilty of

said misdemeanor.

Further, upon consideration of the

circumstances of the case, the Defendant

is hereby ordered and directed to pay to

the sum of $ weekly/

monthly toward the support -of his

dependents as set forth on the reverse

l4a

side, beginning the day of

19 —seuntil further order of this court.

Further upon consideration of the

circumstances of the case, the Defendant

be and hereby is sentenced to the State

Convict Road Force at hard labor for a

period of months.

Upon further consideration the

execution of the sentence to the State

Convict Road Force is hereby suspended

Failure to comply with the terms of the

Support order or any breach of the peace

will cause revocation of the suspension

of imposition/execution of sentence.

Given under my hand this day of

» 19

10/2:/80 - Cont. for Defendant &

Plaintiff to get financial info. correct

presented to Court. Divorce decree

indicates alimony only - child support is

L5a

to be determined on present needs of the

children. (signed by Judge)

12.11.80 dismissed request of

complaint. (signed by Judge)

A Copy teste: Barbara J. Daymude

By: Deputy Clerk

l6a

APPENDIX B

IN THE SUPREME COURT OF PUERTO RICO

Lydia Lizarribar

Petitioner

Number CE-87-283

Edgard Martinez Gelpi

Certiorari

Respondent

RESOLUTION :

Court composed of Chief Judge Pons Nunez

and Associate Judges Rebollo Lopez and

Alonso Alonso

San Juan, Puerto Rico, May 21, 1987

As to the Petition of Certiorari, the

petition is denied.

By agreement of the Court and

certified by the Secretary General.

(signature)

Bruno Cortes Trigo

Secretary General

17a

IN THE SUPREME COURT OF PUERTO RICO

MEMBERS OF THE

COURT

ORDER

San Juan, Puerto Rico, May 21, 1987

Due to the non-participation of Associate

Judges Negron Garcia, Ortiz, Associate

Judge Mrs. Naveira de Rodon and Associate

Judge Mr. Hernandez Denton in the case

CE-87-283 Lydia Lizarribar v. Edgard

Martinez Gelpi, a special tribunal has

been convened, made up by Chief Judge

Pons Nunez and Associate Judges Rebollo

Lopez and Alonso Alonso to hear the case.

Signed and ordered

(signature)

Victor M. Pons Nunes

Chief Judge

Certified by:

(signature)

18a

Bruno Cortes Trigo

Secretary General

I, Irene B. King, Certified Court

Interpreter hereby certify

translation of an original

Spanish into English, done

10th day of August 1987 to

ability.

Irene B. King

5, tf

iYa

this to be a

document in

by me on this

the best of my

APPENDIX C

IN THE SUPERIOR COURT OF PUERTO RICO

SAN JUAN DIVISION

LYDIA LIZARRIBAR )

) CIVIL NUM, _

Plaintiff )

) RF-75-246 (702)

vs. ) |

)

EDGARD MARTINEZ ) In Re

)

Defendant ) DIVORCE (CRUFLTY)

RESOLUTION

Present at the hearing to discuss

pending matters and motions, are the

parties themselves and duly represented

by their counsel of record

It is indispensable in order to

resolve the controversy concerning the

20a

alimony set in this case, to carry out a

detailed study of each and every one of

the incidents that comprise the present

case.

STATEMENT OF THE CASE

1. The plaintiff filed on January

22, 1975, the cited case on grounds of

cruelty which in the part pertaining to

alimony stated as follows:

"S. That the plaintiff

requires for herself and her

children the sum of Three

Hundred Fifty ($350.00) per

month in alimony.

2. The defendant responded to the suit

on his own behalf in a brief dated

January 28, 1975; he accepted each and

every one of the allegations in the suit

and specifically requested the court to

impose the sum of Three Hundred Fifty

Dollars ($350.00) per month for alimony.

2la

——————— aE

3. On February 27, 1975, a

conciliation meeting took place with the

social worker as per Article 97 of the

Civil Code of Puerto Rico with the

_arties concluding that there was no

possibility of conciliation.

4. On May 20, 1975, the

conciliation hearing took place before

the Honorable Ramon Perez De Jesus, with

both spouses present with the following

decision being rendered as contained in

the certification of the conciliation

meeting brief signed by Judge Perez De

Jesus.

"The parties agree that upon

the rendering of the judgment

and as a pendente lite measure

the following will be agreed

upon:

1. custody of the two children

to the plaintiff.

22a

a aaa

ayy eee Se ee ee eee eee |

2. pension: $350.00 per month

for the minor children

3. paternal visitation will be

agreed upon by the parties.

as Oe June 13, 1975, this court

rendered a judgment in the cited case in

which the matrimonial bond was declared

broken and dissolved between the parties.

6. In said rendered judgment, in

the part pertaining to alimony, the

Honorable Luis Victor Castro Rivera

Stated the following:

"The patria potestas and custody

of the minor children born of

this marriage, to say, Gretchen

Camille and Edgard Rafael

Martinez Lizarribar, ages seven

and three respectively is

granted to the plaintiff as

well as alimony of Three

Hundred Fifty ($350.00) per

23a

month which the defendant

agreed to in his reply to the

suit."

7. The judgment rendered is

registered and filed on June 24, 1975.

8. According to the decrees of the

present case from December, 1975, to

October 14, 1976, this court heard

incidents concerning father-children

relations, thus proceeding, finally

through a written brief, dated January

14, 1977, to normalize said father-

children relations.

9. On February 9, 1977, the

plaintiff filed her first contempt

motion, alleging that the defendant had

not complied with the child support for

the minor children born during the

marriage.

10. This court scheduled and held a

contempt hearing on April 4, 1977,

24a

_———————————

concluding that the defendant owed,

according to stipulations to that effect,

the amount of Three Hundred Fifty Dollars

($350.00) commiting himself to satisfying

said debt in seven installments of Fifty

Dollars ($50.00) each in addition to the

regular set allowance of Three Hundred

Fifty Dollars ($350.00) per month.

12. The hearing on the motion filed

by the defendant took place on January 4,

1978, having come before the cones the

defendant pro se and the plaintiff

represented by counsel of record. The

previously mentioned hearing, in other

words, the one held on January 4, 1978,

showed the following, according to that

which the magistrate has been able to

confirm upon hearing Miss Migdalia

Dominguez, Stenographer of Record,

reading the notes taken in stenotype of

the entire hearing.

25a S

PARTIAL TRANSCRIPT

JUDGE: HON. EDITH PARDO DE VAZEQUEZ

ATTORNEY FOR THE PLAINTIFF:

JOSE MALDONADO CASILLAS

ATTORNEY FOR THE DEFENDANT:

EDGARD MARTINEZ

DATE OF THE HEARING:

JANUARY 4, 1978

STENOGRAPHER OF RECORD:

MIGDALIA DOMINGUEZ ROBLES”

MR. EDGARD MARTINEZ:

I understand that the mother of the

children has been working or works.

During great part of the time that has

passed the expenses of the children, from

what I can figure, does not exceed the

sum of three hundred fifty dollars per

month which ‘a the allowance I have been

assigned and which I understand as a

matter of economic reality, that if said

26a

children are not spending, nor warrant

tuition, additional expenses, this amount

-, She is responsible for half of the

Payment. JI understand I have the right

and so request it that I be ...,that

other right with the obligation I am

fulfilling. Those three hundred fifty

dollars ($350.00) of allowance that have

been paid until now, do not include all

the additional expenses I have incurred

during the last three years for the

childrens' well-being, clothing, shoes,

school tuition, at one time a car for the

i taxeas’ mother, gasoline, a series of

additional expenses that have been

Substantial in accordance to my means at

that given time. At this time, I submit

to the court, my financial position does

ot allow me to be generous, bountiful,

as I had been in the past and I do not

have the support for the children. At

meaveé

2/a

this time, financially, from the economic

point of view, my position is extremely

delicate and embarrassing.

CERTIFICATION

I, Migdalia Dominguez, Stenographer

of Record,

CERTIFY: That the proceeding is a

partial, true, and accurate transcription

of the notes taken by me in stenotype in

the case cited on January 4, 1978, before

the Honorable Judge Edith Pardo de

Vazquez.

I further certify that on this day,

September 15, 1986, I am handing the

original to the Honorable Angel D.

Ramirez Ramirez for use by the court.

(signature) Migdalia

Dominguez

Stenographer of Record

i4. On November 2, 1978, the Hon.

Edith Pardo de Vazquez denied the motion

28a

for revocation of alimony and however

reduced the allowance set to Two Hundred

Fifty en ($250.00) per month

effective November 7, 1977, date on which

the defendant filed his motion the

allowance set.

15. On May 30, 1979, after a

hearing another ruling was handed down in

the cited case holding the defendant

liable for contempt as of December, 19/77,

until the date of the hearing September,

1978, and granting him a period of thirty

(30) days to pay the amount owed.

16. Through a motion filed on July

13, 1979, the plaintiff verified that the

defendant had paid all allowances owed up

to and including the month of June, 1979.

17. The proceedings of the cited

case were totally stopped from the month

of July, 1979, to March, 1984.

18. The plaintiff filed two

29a

-motions, the first, a motion to increase

alimony, and the xenowd motion requesting

a salary attachment.

19. This court issued several

orders requiring the plaintiff to amend

the briefs in order to provide due

process of the law. Said orders were

amended and eventually signed by the Hon.

Jesus Luis Maldonado.

20. On March 19, 1986, the

pleintiff filed a contempt motion which,

in summary, alleges the defendant owed

the amount of $22,850.00 plus the

applicable legal interest up to the date

of the motion.

21. The court scheduled a hearing

for March 20, 1986, at the 9:00 a.m.

22. The defendant was duly served

motice on March 20, 1986, at 7:20 a.m. in

San Juan, Puerto Rico.

23. The defendant is an attorney,

30a

duly admitted to practice the profession

by the Supreme Court of Puerto Rico.

24. Through an order issued on

March 20, 1986, this court ordered the

arrest and imprisonment of the defendant

for not having been present at the hear-

ing for which he was duly served notice.

25. The same day the arrest order

was issued, the marshalls of this court

executed said order, proceeding with the

arrest and imprisonment of the defendant

in the State Penitentiary in Rio-Piedras,

Puerto Rico.

26. On March 24, 1986, the

defendant filed an extensive brief in

reply to the contempt motion presenting a

large number of aekers that eventually_

deserve and will be considered by this

court.

27. The defendant alleges in his

brief of March 24, 1986, that a Virginia

3la

state court determined that the plaintiff

"has no right to claim the. iowance, and

to that effect, had to begin a procedure

eA]

claiming ‘child support The defendant

alleges, also, that "The judgment handed

down by the State of Virginia created a

legal status, whose consequences were to

relieve the defendant from paying

allowances until a new request for them

was filed".

28. In addition to the allegations

on the judgments of the Virginia State

Court, the defendant maintains that the

allowance set in the cited case in Puerto

Rico is for the claimant and her

children, while in the State of Virginia,

for him, the same was a pension for an

ex-spouse, in other words, "alimony".

29. After several briefs by the

parties, based on decrees, the defendant

filed a writ of certiorari, Num. J-0-86-6

32a

before the Supreme Court of Puerto Rico,

and said court, in a decision, dated

April 3, 1986, ordered the lower court to

release the defendant from jail upon

making a deposit of $7,000.00 as a

guarantee of payment for the amount the

defendant owes in alimony.

30. The lower court in an order

dated April 4, 1986, released the

defendant as he had deposited the sum of

$7,000.00 ordered by the Supreme Court of

Puerto Rico.

31. On April 28, 1986, the

defendant filed a brief entitled

"Proceeding for Exequatur and Motion for

Summary Judgment".

32. On May 9, 1986, the plaintiff

filed an opposition to the motion for

Summary Judgment and Exequatur

Proceeding.

33. On May 12, 1986, a hearing was

33a

held to discuss the Motion for Summary

Judgment and other legal issues relating

to the positions of the parties.

Basically, it is the position of the

defendant that there exists a judgment

issued by the "Juvenile and Domestic

Relations District Court of the County of

Fairfax, Virginia, on December 11, 1980,

that exempts him from the payment of

subsistence to his two minor children and

thereby requests that this court through

a Proceeding of Exequatur give full faith

and credit to said judgment. The

defendant also maintains that for the

purposes of the Virginia Court, the

judgment issued in Puerto Rico

establishes that the allowances set are

for the plaintiff, in other words,

"alimony" and that for the purposes of

the proceedings in Puerto Rico, the

allowances set by the judgment must be

34a

SS <<

considered for the plaintiff and her

children,

! The plaintiff understands such

judgment does not exist but if it did, it

would be null because the court in

Virginia was misled by the defendant

himself and in addition, is contrary to

law of the Commonwealth of Puerto Rico.

toe he

In view of the statements of the

i case mentioned, each and every one of the

briefs based on decrees, the certified

copy of File 80-841 of the Virginia court

: and the arguments presented in this

i hearing, the court-hereby renders the

following conclusions:

3 LEGAL CONCLUSIONS

| As you can ecaeictaca through

examination of the Motion for Proceeding

of Exequatur and Summary Judgment, this

is based on the foundation that there

] exists a judgment issued by a court in

35a

Virginia that adjudicated finally and

firmly, the controversy over alimony of

$250.00 which the defendant was obligated

to provide in the cited case. The

records of the Virginia court submitted

by the defendant himself, show that on

August 27, 1980, the plaintiff here Lydia

Lizarribar, filed, in Juvenile and

Domestic Relations Court of Fairfax

County, a brief to the effect that the

defendant, Edgard Martinez-Gelpi, was not

complying with the order issued by the

Superior Court of Puerto Rico granting a

monthly allowance of $250.00 for his two

minor children.

Having been cited for October 21,

1980, both appeared on their own behalf

and argued their respective positions.

The plaintiff offered a translation of

the divorce decree issued by this court,

translated by a translator outside this

36a

controversy. The defendant offered a

translation, translated by him. The

plaintitf's translation translated

"alimentos" as "child support", while the

defendant's version translated

wt . °

alimentos" as “alimony

Apparently,

the Virginia court accepted the

defendant's version as being a good

translation, since a handwritten note in

the docket of the case states

"....Divorce decree indicates alimony

only"; left the case pending and

requested additional information. On

December 9, 19801, the plaintiff requests

permission to withdraw her petition ("I

hereby request permission to withdraw

this petition."), and on December ll,

1980, the Virginia court granted this

request in a note in the docket stating

"12-11-80 dismissed request of plaintiff

and some initials. This is the

37a

annotation which the defendant calls a

judgment on its merits and is attempting

to register it in Puerto Rico through a

Proceeding of Exequatur.

The defendant is trying to have this

court give full faith and credit to an

alleged judgment by a Virginia court,

which seen in its most favorable light,

incorrectly interpreted the judgment of

this court. It corresponds to the |

Virginia court to give full faith and

credit to the judgment of this court.

The jurisprudence as far as

dismissal (voluntary dismissal) in the

State Courts of common law, as well as in

Puerto Rico, is patently clear.

In Kane v. Republica de Cuba, 90 DPR

428 (1966), the Supreme Court of Puerto

Rico stated the following:

"It is the absolute right of a

plaintiff to withdraw his

38a

action, at any date,

unilaterally, and at his will

without prior notification,

Without an order or judement

from the court where the suit

was filed, admitting his

withdrawal and without

Prejudice as long as said

action is not a class action

Suit, and the withdrawal be

executed before notification of

a motion for summary judg

ment

or of the reply

Although we underst and that in the

Virginia controversy the fact that the

defendant presented a translation of what

he alleged was a divorce decree this does

not constitute a "response", If it were,

voluntary dismissal would still be j

39a

DPR 85 (1965).

"After defending a suit for a

defendant to withdraw from the

Suit, he needs to obtain

permission from the court,

through a regular motion and he

must, at the time he announces

his withdrawal, impose those

conditions that will result

convenient in accordance to the

circumstances of the

litigation".

The records of the Virginia court

show that the plaintiff in a regular

motion, requested and obtained said

permission and, also, no conditions were

imposed when the dismissal was decreed.

The Virginia court's determination

concerning voluntary withdrawal is in

line with the practice adopted in

Virginia since 1789 (sic) and is

ie)

discussed in Moore v. Moore, 240 5.E.2¢

935, Supreme Court of Virginia, 1978, and

reads to the effect that "Every person

desirous of suffering a nonsuit on trial,

snall be‘barred thereof, unless he do so

before the jury retire from the bar.

This statute (Code s 8.01-380 (a),

actually reads: "A party shall not be

allowed to suffer a nonsuit unless he do

so before the jury retire from the bar or

on has been

before the suit or act

submitted to the Court for decision by

the Court". (Emphasis added).

a x 7 2 ae : + ° . :

rrom the Virginia cour Ss records it

1 Al ¢

is clear that this controversy had NOT

been SUD PEt j Co Cne Court ror ts

decision. un tne Contrary, the case. wa

Opened be ywvse th ( lirt } r , t

pened dE aus Me €CoOQeer i nad Lt euueste

idditional finan 11 infor tne

) rey i

be l J t ft 17

~ ,

_— a

thing that remains to be clarified is the

status of the annotation by the Virginia

court of October 21, 1980, to the effect

that “divorce decree (the one in Puerto

Rico) indicates alimony only." Without,

at the moment, going into the merits of

said determination it suffices to point

out that state jurisdictions of common

law recognized that voluntary dismissal

operates in such a fashion that the

parties remain in identical situations as

to the moment prior to the beginning of

the suit that is being voluntarily

dismissed, as pointed out in:

Brackenridge vs. State, ll S.W.

630 (Texas). "As a matter of

general definition, a dismissal

is an order for the termination

of a case without a trial on

- . "

any of its issues.

A.B. Dick Co. vs. Marr, 197 F

42a

2498 (New York). "Dismissal of

an action by the plaintiff

generally operates to annul

orders, rulings, or judgments

previously made in the case.

Thus, there can be no ancillary

proceedings to enforce an

interlocutory order made in the

dismissed suit".

27 C.J.S. "Dismissal & Nonsuit

39"... "A voluntary nonsuit,

dismissal or discontinuance is

a final determination of the

action and there remains no

cause pending in

which...defendant may

thereafter file an answer or

plea...A dismissal or nonsuit

leaves the situation though no

Suit had ever been bought, and

43a

it has the effect of any

absolute withdrawal of the

claim and leaves defendant as

though he had never been a

party. It carries down with it

previous proceedings and orders

in the action, and all

pleadings, both of plaintiff

and of defendant...’ (Emphasis

added).

Federal Rules of Civil

Procedures, Rule 4l(a)(2)

..."Unless otherwise specified

in the order, a dismissal under

this paragraph is whithout

(sic) prejudice.”

As expressed previously, this court

CANNOT accept the argument of the

defendant that there exists a judgment by

a Virginia court that exonerates him from

complying with the obligation of

44a

providing a subsistence allowance for

his two minor children, as decreed by

this court.

On the contrary, we accept the

arguments of the plaintiff that such

judgement does not exist and, if it

existed, it would not be recognized in

this jurisdiction as in the case of

Efectos Litograficos,C.A. vs. National

Paper & Type Company of Puerto Rico,

Inc., 112 DPR 389 (1982), because it i

contrary to public order, to the basic

principles of justice and for having been

obtained through fraud. We make

ourselves clear. It is, in this

jurisdiction, contrary to public order

and to the basic principles of justice

that a father, who has the necessary

means to help feed his minor children

and,while the need exists for them to be

fed, he be exonerated from providing such

45a

food. See the general case law: Codigo

Civil d uerto Rico, 1930, Articles 142

to 151; Ada Olga Mundo vs. Francisco

Cervoni, 115 DPR 422; Elsie Awilda

Martinez vs. Gilberto Rivera Hernandez,

CA-85-14: Carlos Key Nieves vs. Isabel

Oyola Nieves, CA-85-23; Pedro Otero

Fernandez vs. Alguacil Tribunal Superior,

CA-85-74 and Wilma Quinones vs. Baltazar

Jimenez Conde, CA-86-15.

The defendant, who is an attorney,

admitted to practice in this

jurisdiction, upon having translated the

judgement for subsistence of this court

as "alimony" instead of "child support"

when he knew that it was not even so (we

will explain this further on) nor in our

own law could it be so, this constitutes

a behavior that goes beyond that which

is a fraud before the court. Therefore,

it is concluded that this conduct of

46a

brief of attest of Conciliation Hearing

in decrees signed by the Hon. Juan Perez

De Jesus).

In order to be totally convinced

that the defendant's determination, as

far as the pension being for the benefit

of his children, we undertook the task of

holding a hearing on January 4, 1978,

which was held due to the defendant's

request to revoke the allowance set.

The defendant clearly, upon referring to

the allowance set at $350.00 per month,

establishes that the same was for his

childrens’ expenses (See statement of

case number 13 and partial transcript in

decrees).

The obligation of fathers to provide

subsistence to their children has been

and will be guaranteed by our courts.

The obligation to provide subsistence

has, as its foundation, the material

48a

ne ee

Oo. >

~ ~

filed on April 28, 1986.

3. Concludes that the allowance set in

the present case has been and is for the

benefit of the two children borne of both

parties.

4. Concludes the defendant is up-to-date

with his monthly allowance payments of

$250.00 up to and including June 1979.

5. The defendant is given a period of

(thirty) 30 days to file a report, under

oath, in which he outlines each and every

one of the credits requested in his

motion of March 23, 1986 and fifteen (15)

days for the plaintiff to file a

response.

6. Both parties are granted a period of

forty-five (45) days to use the

mechanisms of discovery. The parties

will have to provide copies of their tax

returns for 1986.

7. Both parties are granted a period of

50a

forty-five (45) days to submit an income

and expense statement, under oath. To

this report, there must be attached

evidence to substantiate each and every

entry claimed as an expense. (Example:

copies of cheques, invoices, work

verification of the parties and their

Spouses, certificates from universities

or schools for the children, etc.)

5. A "Status Conference" is scheduled

for May 5, 1987 at 10:00 a.m.

9. A hearing to argue the Contempt

Motion filed on March 19, 1986 and the

Motion to Revoke Alimony filed by the

defendant on March 24, 1986, is scheduled

for May 12, 1987 at 9:00 a.m,

10. The defendant is granted a period of

twenty (20) days to present reasons for

why we should not dispose of the assigned

allowances earmarked in the case of

decrees, exceeding the amount of

5la

$7,000.00 (seven thousand dollars),

ordering their immediate delivery to the

plaintiff. After the period previously

granted expires, we will dispose of said

allowances according to law.

ll. The terms granted in this Resolution

will be effective on the date of

notification of same.

BE IT NOTIFIED:

San Juan, Puerto Rico, March 16, 1987.

(signature)

Angel D. Ramirez Ramirez

Superior Court Judge

I, Irene B. King, Certified Court

Interpreter, hereby certify this to be a

translation into English of the original

text written in Spanish done by me on

the 10th day of August, 1987, to the best

of my ability.

Irene B. King

52a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.